author: WATKINS, Judge: SPAETH, Judge,

text:
    457 A.2d 966
    COMMONWEALTH of Pennsylvania v. Bradford Douglas RITZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 27, 1981.
    Filed March 18, 1983.
    Judgment of Sentence of Common Pleas Court Vacated and Matter Remanded Sept. 21, 1983.

      Dante G. Bertani, Public Defender, Greensburg, for appellant.
    Albert M. Nichols, District Attorney, Greensburg, for Commonwealth, appellee.
    Before SPAETH, HESTER and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from the order of the Court of Common Pleas, Criminal Division, of Westmoreland County, by the defendant-appellant, Bradford Douglas Ritz, after the lower court denied his post-trial motions in arrest of judgment and for a new trial.

On September 26, 1978, the defendant was charged with two counts of possession with intent to deliver a controlled substance subsequent to 35 P.S. 780-113(30) as the result of a search of the defendant’s home pursuant to a search warrant. On October 27, 1978, the defendant’s counsel filed an Omnibus Pre-Trial Motion consisting of three motions: A Motion to Suppress the Evidence; a Motion to Suppress Statements and a Motion for Return of Seized Property. On November 2, 1978, the Commonwealth filed its answer to these motions and after a lengthy evidentiary hearing and oral arguments on these motions, the lower court denied the motions in a written opinion. The defendant was tried on December 3, 1979 and found guilty. Post-trial motions were denied and the defendant sentenced to eleven and one-half to twenty-three (IIV2 to 23) months imprisonment and two (2) years probation. This appeal followed.

On appeal, the appellant raises questions involving the sufficiency of the evidence and various errors by the court below in denying his Omnibus Pre-Trial Motions.

The pertinent facts of the case were adequately summarized by the court below as follows:

On September 7, 1978 at 9:45 P.M., Officers Joseph J. Marseli, of the Pennsylvania Bureau of Drug Control, and Ronald A. Yeverka, of North Huntingdon Township Police Department, obtained two search warrants from District Justice Tubbs; one warrant was for 1219 HahntownWendell Road, the residence of Bradford D. Ritz, and the other for 1289 Hahntown-Wendell Road, the residence of John Ritz, in North Huntingdon Township. Each search warrant contains an affidavit of probable cause identical to the other. The affiants’ averment of facts in support of probable cause for the issuance of warrants is, in summary, that:
In August, 1977, information was received from an confidential informant that Douglas Ritz (of 1219 Hahntown-Wendell Road) was trafficking in marihuana and cocaine; that the informant had purchased marihuana and cocaine from Ritz, and had seen as much as sixty pounds of marihuana inside the Ritz home; that the marihuana was delivered to Douglas Ritz in a trailer (titled to Ritz’s father, John A. Ritz); and, that the informant was reliable because the affiant had verified as correct and reliable details such as names, descriptions of person, vehicles and houses and telephone numbers.
That since August of 1977 surveillance of 1219/i289 Hahn-town-Wendell Road has revealed visits by numerous known or convicted drug offenders. (Names of two convicted drug offenders are set forth in affidavit). That on June 28, 1978, two North Huntingdon Township Police Officers (while responding to an unrelated theft call) observed a male,. known to be involved in drugs, conceal á bag from police view while departing the Douglas Ritz residence.
That on June 29, 1978, surveillance revealed a known drug offender enter the Ritz residence through a garage door opened for them by Ritz, depart with a large paper shopping bag, which the officers believed to be marihuana, and place the bag in his car trunk.
On August 2, 1978, the automobile of another known drug dealer was observed by officers at the Ritz residence (1219 Hahntown-Wendell Road).
On September 1, 1978, the affiant interviewed a confidential informant (not the same on alluded to above) and received verifying information asto drug sales inside 1219/i289 Hahntown-Wendell Road. The informant stated that the marihuana was stored at 1289 because 1219 is small and has no basement; that he has seen marihuana at both placed and that he himself was a user and would recognize marijuana.
On September 7, 1978, at 7:00 P.M., the police observed James Parker arrive at and enter 1219, proceed with Douglas Ritz to 1289, return with Ritz and a large brown bag to 1219, then leave with the brown bag by car. The police arrested Parker for possession an recovered two pounds of marihuana from the bag.
The police served the search warrants for 1219 at 10:25 P.M. September 7, 1978, and for 1289 at 10:30 P.M. At 1289, the residence of John A. Ritz, the police confiscated plastic baggies containing four pounds of marihuana, numerous other plastic bags, marihuana seeds and pipe. At 1219, the residence of Bradford Ritz, the police confiscated cocaine, a brown bag containing marihuana, a scale, $930.00 in cash on the person of Bradford Ritz, $9,900.00 in cash in a brown bag, vehicle rental slips and bank receipts of Mary Ann Nichols, a marihuana separator, $23,500.00 in cash in a brown bag and some miscellaneous items containing marihuana residue.

The defendant claims that the court below erred when it refused to grant his suppression motion. He claims that the police officers erred in the manner that they executed the search warrant claiming that they did not knock on his door before entering the premises. With respect to this argument the court below stated:

The second contention advanced by the defendant for suppression of evidence is that the Commonwealth is bound by an admission of pleading. Paragraph four of defendant’s Omnibus Pre-Trial Motion is as follows:
“4. The warrant issued for the premises described at 1219 Hahntown-Wendell Road was improperly executed in that the executing officers opened and entered the front door of said residence and only then announced their identity and purpose without affording the occupants the opportunity to voluntarily surrender the premises.”
The District Attorney answers only:
“4. Denied that search warrant was improperly executed in any manner.”
The defendant argues that the answer fails to deny the well-pleaded fact that the officer “opened and entered the front door ... and only then announced their identity and purpose”. Such an entry would, of course, violate the requirement that the police must afford an occupant a reasonable time to voluntarily surrender the premises. Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1975).
During the suppression hearing counsel sought to forclose (sic) any testimony by the officer on the question of execution of the warrant or entry into the premises. Counsel objected to the officer’s testimony that the front door was open at the time of the officers’ arrival at the premises and that only the screen door was closed, and that the officers announced themselves and were admitted by Bradford Ritz. The Court ruled during the hearing that allegations of a strictly factual nature (though not conclusions of law) would be deemed admitted. The Court has reconsidered this question and now, in this opinion, narrows its ruling on this question in order to give due consideration to the issue. For reasons set forth below, the Court finds that the admissibility of evidence and lawfulness of the search will be determined on the basis of testimony adduced at the suppression hearing, rather than on the narrow, somewhat unclear area of pre-trial pleading requirements.
The facts testified to by Officer Todoric were that he walked up to the front door, which was apparently, a screen door, looked in through the door and noticed four legs extending over the edge of a sofa. The officer then knocked and proceeded to open the screen door. As he opened the door the defendant Bradford Ritz came to the front door and opened it. The officer testified that Ritz came to the door and voluntarily admitted the officers prior to the officer entering the house. On cross examination Officer Todoric revealed that there was indeed very little time between the knock on the door and entry by Todoric. A forceful or surreptitious entry would be fatal to this search, but it appears that, though the screen door was opened by the officer, the actual entry was made peaceably after announcement and in the presence and view of Mr. Ritz. Therefore, the Court does not view this case as a violation of the Fourth Amendment of or DeMichel, supra. The premises were actually turned over to the officers by Bradford Ritz and it cannot be said that the entry was unreasonable or without permission from the occupant.

As stated by the court below: “the thrust of defendant’s argument is to require specificity similar to assumpsit rules”. No such requirement is imposed on the Commonwealth in filing its answer to pre-trial motions. See Pa.R. Crim.Pro. 308. The court below was correct when it determined that justice is not denied the defendant by having the suppression motion decided on the basis of testimony rather than on the specificity of the pleadings. The dissent appears to recognize this principle but would remand the case in order to give defendant’s counsel the opportunity to cross-examine the police officers regarding the execution of the warrant. The problem with such a holding is that the defendant had already been provided with a full hearing regarding his suppression motion and had the opportunity to cross-examine all witnesses at that time. He chose, at that time, to base his argument solely on the Commonwealth’s answer to his motion. He could have cross-examined the policemen, but chose not to do so because he felt that the court below was “buying” his argument regarding the pleadings. Ultimately, the court did not accept that argument. We do not find that to be a sufficient reason to remand the case and give the defendant “another bite at the apple”. After review, we find that the defendant’s other arguments are without merit.

Judgment of sentence affirmed.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

The judgment of sentence should be reversed and the case remanded for a new suppression hearing.

Appellant was convicted on the basis of evidence seized during a search of his premises. One of the grounds upon which appellant sought to have the evidence suppressed was that the police had entered his premises without first knocking and announcing their identity, purpose, and authority, in violation of Pa.R.Crim.P. 2007. See Commonwealth v. Golden, 277 Pa.Super. 180, 419 A.2d 721 (1980).

During the suppression hearing, the court interpreted the Commonwealth’s answer to appellant’s motion to suppress as an admission that the police had entered appellant’s premises without first knocking and announcing their identity, purpose, and authority. Slip op. at 6 (suppression court). The court therefore ruled that the Commonwealth could present testimony regarding the manner in which the warrant was executed, but that testimony inconsistent with the admission would be stricken. N.T. 232. The testimony of one of the officers who executed the warrant was inconsistent with the admission. In accordance with its ruling, the court ordered the officer’s testimony stricken. N.T. 234. In view of this order, appellant’s counsel neither cross-examined the officer nor introduced any evidence in support of his motion.

After the hearing was over, the court decided, sua sponte, to reverse itself on the question whether the police had entered appellant’s premises without first knocking and announcing their identity, purpose, and authority. The court revived the stricken testimony and, in reliance on it, held that the police had not executed the search warrant in violation of Pa.R.Crim.P. 2007. Slip op. at 8 (suppression court). This was unfair, and denied appellant due process of law. See generally Sniadaeh v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (Essential elements of procedural due process are notice that interest is in danger of being deprived and opportunity to prove that deprivation of interest is improper); Parker v. Children’s Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932 (1978) (same). Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973) (same). Appellant justifiably relied upon the court’s ruling that the officer’s testimony was stricken. By reversing its ruling and reviving and relying upon the testimony, all without notice to appellant, the court effectively denied appellant the right to cross-examine the officer and to introduce evidence of his own. See generally Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (Criminal defendant has due process right to cross-examine witnesses against him); cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (Criminal defendant denied fair trial where deprived of opportunity to present exculpatory evidence).

The items seized in the search of appellant’s premises were instrumental in obtaining appellant’s conviction. Slip op. at 40 (court en banc). Accordingly, the introduction of these items at appellant’s trial, if erroneous, was not harmless beyond a reasonable doubt.

The judgment of sentence should be vacated and the case remanded for a new suppression hearing. If after the new hearing the motion to suppress is denied, the sentence should be reinstated, but if the motion is granted, a new trial should be ordered.

       Rule 308 expressly provides that no answer is required to a pre-trial motion unless ordered by the Court. It also provides that failure to file an answer shall not constitute an admission of well-pleaded facts unless an answer is ordered by the Court.
      Rule 306(c) provides that an omnibus motion which sets forth facts not of record shall be sworn to by one having knowledge of the facts. Rule 306(b) provides that the attorney’s signature constitutes a certification that he has read the motion and that to the best of his knowledge and belief, there is good ground to support it.
      It does not appear to the Court that there is any "affidavit” affixed to the motion and the attorney’s “certification” is not meant to be an affidavit of one who has "knowledge” of the facts. Therefore, the Commonwealth is not to be precluded in going forward with its suppression testimony on the strength of a routine, apparently ex-parte motion unsupported by an affidavit. It should be noted that Rule 306(c) provides for the taking of testimony in the absence of an affidavit. In this case there is neither testimony nor an affidavit.
      The thrust of defendant’s argument is to require specificity similar to assumpsit rules. In view of the unshifting burden on the Commonwealth to prove the lawfulness of this search, justice is not denied the defendant by having the suppression of evidence turn on testimony.

      . The majority says that appellant's counsel "could have cross-examined the policemen, but chose not to do so because he felt that the court below was 'buying' his argument regarding the pleadings.” Op. at 443. The court did accept counsel’s argument: it ruled that the testimony in question would be stricken. The majority is therefore mistaken in saying that remand would give appellant " ‘another bite at the apple,’ ” id., i.e., another chance to cross-examine the officer and to introduce his own evidence. Appellant has never had a first bite.


source: Caselaw Access Project

author: WATKINS, Judge:

license: Public Domain

text:
    457 A.2d 970
    COMMONWEALTH of Pennsylvania, Appellant, v. George CLARKE. COMMONWEALTH of Pennsylvania, Appellant, v. James BANKS a/k/a Mobley.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1982.
    Filed March 18, 1983.

      Mark Stuart Gurevitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Leo H. Loffel, Philadelphia, for appellees.
    Before BROSKY, McEWEN and WATKINS, JJ.
   WATKINS, Judge:

In these consolidated appeals by the Commonwealth it is contended that the orders entered by the court of Common Pleas of Philadelphia County discharging the defendants from charges of conspiracy (18 Pa.C.S.A. § 903) and bribery in official and political matters (18 Pa.C.S.A. § 4701) for failure to establish a prima facie case at the preliminary hearing was error.

The defendants, George Clarke and James Banks, are the owner and manager of the Thomas Jefferson Democratic Club in West Philadelphia, a private club under the provisions of the Pennsylvania Liquor Code. They were arrested on the charge of conspiracy to bribe and five counts of bribery of a Philadelphia police sergeant to ignore after-hour sales of alcoholic beverages at the club beyond the 3 A.M. limit set forth by the law.

After a preliminary hearing before Judge J. Earl Simmons of the Municipal Court of Philadelphia County, the defendants were discharged for lack of a prima facie case. On appeal to, the Court of Common Pleas by way of rearrest, a second preliminary hearing was held before Honorable Edward J. Blake, the Criminal Motions Judge, who also determined that a prima facie case was not established by the Commonwealth. Reárrest was the appropriate procedure for the Commonwealth. Commonwealth v. Mirarchi, 481 Pa. 385, 392 A.2d 1346 (1978).

The Commonwealth’s evidence at the rearrest preliminary hearing was as follows: Sergeant James McDonald testified that when working the morning tour it was his duty to insure that no alcoholic beverages were sold or other Liquor Code violations committed after the 3:00 A.M. deadline at the club. On August 4, 1980, Banks told him that “he was hurting and he needed more time to operate the club to make money.” Berks then introduced him to Clarke, who told the officer he would take care of him for “extra time”. When McDonald arrived at the club the next day at 3:20 A.M., he was given $25.00, the defendant saying they appreciated the extra time. On four separate, occasions in the following weeks when McDonald came to the club after 3:00 A.M., one or the other of the defendants gave him cash totally $125.00 and thanked him for the time. McDonald also testified that during this time period from August 4, 1980 to September 24, 1980, he observed illegal sales after 3:00 A.M. which he believed to be alcoholic beverages although he never investigated to determine that they were actually alcoholic in nature.

The proof that defendants offered and then tendered consideration to the officer for overlooking the after-hour sales was more than sufficient to meet the Commonwealth’s burden to establish a prima facie case at the preliminary hearing.

The offense of bribery is defined in the Crimes Code as follows:

“Bribery in Official and Political Matters.
(a) Offense defined.—A person is guilty of bribery, a felony of the third degree, if he offers, confers, or agrees to confer upon another, or solicits, accepts or agrees to accept from another:
(3) any benefit as consideration for a violation of a known legal duty as public servant or party official.” 18 Pa.C.S.A. § 4701(a)(3).

The crime of bribery is committed once the offer is made to confer a benefit or when the benefit, as here, is conferred, on a public official to cause that official to violate his legal duty. Under the section of the Crimes Code proscribing bribery in official and political matters, once the offer to confer the proscribed benefit, or once an agreement is made, the crime is complete. There need be no waiting for the benefit to actually be conferred. See Commonwealth v. Ohle, 291 Pa.Superior Ct. 110, 435 A.2d 592, 596 (1981). See also, Commonwealth v. Weselyk, 268 Pa.Superior Ct. 569, 408 A.2d 1149 (1979).

It should also be noted that the defendants indicated to the officer that they needed time beyond the legal limit to make money and paid the officer $125.00 over a seven week period to motivate him not to investigate Liquor Code violations. The money was clearly paid to cause him not to perform required investigatory functions. Here the Commonwealth’s evidence unequivocably demonstrated that the accused actually conferred a benefit for the improper use of the officer’s duty as a public servant. Commonwealth v. Lynch, 270 Pa.Superior Ct. 554, 411 A.2d 1224 (1979); Commonwealth v. Kelly, 245 Pa.Superior Ct. 851, 369 A.2d 438 (1976) and Commonwealth v. Weselyk, supra.

The conduct of the defendants in this case falls within the acts intended to be proscribed by the Bribery Statute, and are sufficient to establish a prima facie case. If sufficient for the crime of bribery, it also follows they are sufficient for the crime of conspiracy.

The orders of the court below are reversed and the case remanded so that the defendants may be held for trial.


author: LIPEZ, Judge:

text:
    457 A.2d 972
    COMMONWEALTH of Pennsylvania, Appellant, v. Joseph NIXON.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1981.
    Filed March 18, 1983.

      Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Kalvin Kahn, Philadelphia, for appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   LIPEZ, Judge:

This is a Commonwealth appeal under section 5 of Act 319, which provides for interim sentencing guidelines, pending adoption of guidelines by the Pennsylvania Commission on Sentencing. Section 5(a) of Act 319 provides a guideline sentence of at least four to eight years imprisonment for certain specified offenses, if the defendant has been previously convicted of any of the specified offenses. Section 5(b) requires that, if the sentence deviates from the section 5(a) guideline, “the court shall provide a contemporaneous written statement of the reason or reasons for the sentence.”

Defendant pled guilty to several charges, one of which (No. 1434) is specified in section 5(a), “aggravated assault as defined by 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) involving the use of a firearm.” At the sentencing hearing on September 9, 1980, the prosecutor claimed that defendant’s prior aggravated assault conviction made Act 319 applicable. The judge refused to consider this claim, and imposed a two to five year sentence for aggravated assault, without stating any reasons.

At a hearing to reconsider the sentence on September 29, 1980, the judge did state reasons for the sentence. He also purported to “reimpose” the two to five year sentence for aggravated assault, as well as the sentences which had been originally imposed on September 9 for the other offenses, although none of the sentences had ever been vacated. On October 9, 1980 the Commonwealth took this appeal.

Defendant contends that the appeal by the Commonwealth violates the double jeopardy clauses of both the United States and Pennsylvania Constitutions. We reject this contention for the reasons stated in Commonwealth v. Love, 295 Pa.Super.Ct. 276, 281-87, 441 A.2d 1230, 1232-36 (1982) (concurring opinion by Hoffman, J., joined by Cirillo, J.).

However, we do not review the merits of the Commonwealth’s claim that the sentence was “unreasonable” under section 5(e)(3) of Act 319, because we find the issue waived. This court en banc has held unanimously that to preserve a claim under Act 319, the Commonwealth must file a motion to modify sentence in accordance with Pennsylvania Rule of Criminal Procedure 1410. Commonwealth v. Anderson, 304 Pa.Super.Ct. 476, 450 A.2d 1011 (1982). There is no such motion contained in the record certified to this court under Rule of Appellate Procedure 1921, and there is no lower court docket entry indicating the filing of a motion to modify sentence by the Commonwealth.

The transcript of the September 29 sentencing reconsideration hearing contains a statement by the judge that a motion had been handed to him ten days after the September 9 sentencing hearing. What we have said with respect to post-verdict motions is equally applicable to motions to modify sentence:

[Ljeaving motions in the judge’s chambers, or even handing a copy to the judge in the courtroom or elsewhere, does not constitute filing. A document in any criminal matter must be filed in the office of the clerk of courts, 42 Pa.C.S. § 2756(a), who in Philadelphia is known as the Clerk of Quarter Sessions. 42 Pa.C.S. § 2751(c).

Commonwealth v. Lynch, 304 Pa.Super.Ct. 248, 252, 450 A.2d 664, 666 (1982), rearg. den’d. Thus the alleged motion referred to by the court below was never “filed in the lower court” within the meaning of Rule 1921, and is not part of the record on appeal. We may therefore not consider it, because “ ‘in Commonwealth v. Quinlan, 488 Pa. 255, 258, 412 A.2d 494, 496 (1980), our Supreme Court has unanimously condemned consideration by an appellate court of material outside the record.’ ” Commonwealth v. Lynch, supra 304 Pa.Super. at 255, 450 A.2d at 668, quoting Commonwealth v. Rini, 285 Pa.Super.Ct. 475, 483, 427 A.2d 1385, 1389-90 (1981) (footnote omitted). Since the Commonwealth filed no motion under Rule of Criminal Procedure 1410, its claim under Act 319 is waived. Commonwealth v. Anderson, supra. Therefore the judgment of sentence for aggravated assault (No. 1434) must be affirmed.

On its notice of appeal, the Commonwealth also listed the information numbers (Nos. 1432, 1433 and 1435) for the defendant’s other offenses, as to which Act 319 gives the Commonwealth no right to appeal the sentence. Since those judgments of sentence are not appealable by the Commonwealth, the appeal will be quashed as to them.

Judgment of sentence for aggravated assault (No. 1434) affirmed; appeal quashed as to judgments of sentence for Nos. 1432, 1433 and 1435.

      . Act of November 26, 1978, P.L. 1316, No. 319, § 5. See Note to 42 Pa.C.S. § 9721, “Interim Sentencing Guidelines.” In the "statement of jurisdiction" in its brief, the Commonwealth relies on both section 5(c) of Act 319, which provides for an appeal as of right of the legality of the sentence, and section 5(d), which provides for petitioning for allowance of appeal of the discretionary aspects of the sentence. The Commonwealth need not file a petition for allowance of appeal to take advantage of Section 5(d), since the notice of appeal takes the place of the petition. See Note, Pa.R.A.P. 902; see also Pa.R.A.P. 2116(b), 2119(f). As in Commonwealth v. Love, 295 Pa.Super.Ct. 276, 278, 441 A.2d 1230, 1231 (1982), petition for allowance of appeal den'd, we shall allow an appeal under section 5(d), and hence need not decide whether the Commonwealth has raised 'an issue of legality of sentence, entitling it to an appeal as of right under section 5(c).

      . The Commission has now adopted such guidelines, 12 Pa.Bull. 431 (1982), but they are inapplicable here, as they apply only to offenses committed on or after July 22, 1982.

      . Section 5(a) provides: "Until sentencing guidelines by the Pennsylvania Commission on Sentencing and relating to the offenses set out in this subsection become effective pursuant to 18 Pa.C.S. § 1385 (relating to publication of guidelines for sentencing), when any person is convicted in any court in this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery, aggravated assault as defined in 18 Pa.C.S. § 2701(a)(1) (relating to aggravated assault) involving the use of a firearm, arson or kidnapping, or of attempt to commit any of these crimes, and when that person has been previously convicted in this Commonwealth, or any other state or the District of Columbia, or any Federal court, of any of the offenses set forth in this section or their equivalent, the sentencing court shall consider as a guideline in imposing sentence that such person be sentenced to a minimum of not less than four years imprisonment.”

      . Because of our determination, infra, that the Commonwealth waived its Act 319 claim, we need not determine the effect, if any, of the fact that the judge’s statement of reasons was neither "contemporaneous" nor “written” as required by section 5(b) of Act 319.

      . The “reimposition” of sentence on September 29 did not extend the appeal time, because there was no compliance with either requirement of Rule of Appellate Procedure 1701(b)(3), which requires the timely filing of both an "application for reconsideration” and "an order expressly granting reconsideration.” Compare Commonwealth v. Leonard, 308 Pa.Super.Ct. 292, 294-295, 454 A.2d 136, 137 (1982) with Commonwealth v. Lynch, 304 Pa.Super.Ct. 248, 255 n. 3, 450 A.2d 664, 668, n. 3 (1982), rearg. den’d. Nevertheless, the Commonwealth’s appeal was timely, since the notice of appeal was filed within 30 days of the original entry of the judgment of sentence.

      . Regarding Pennsylvania’s double jeopardy provision, Judge Hoffman’s opinion in Love stated: "It is unclear whether article 1, section 10 of the Pennsylvania Constitution is limited in application to capital offenses. Compare Commonwealth v. Boerner, 281 Pa.Superior Ct. 505, 513-15, 422 A.2d 583, 587-88 (1980) (double jeopardy clause applies to both capital and non-capital offenses; summarizing conflicting authorities) with Commonwealth v. DiValerio, 283 Pa.Superior Ct. 315, 320 n. 4, 423 A.2d 1273, 1276 n. 4 (1980) (double jeopardy clause applies to capital offenses only). Because I would hold that the Pennsylvania double jeopardy clause would not bar a Commonwealth appeal under section 5 of Act 319, I would not need to resolve the apparent conflict over the applicability of that provision." 295 Pa.Super.Ct. at 285-86, n. 6, 441 A.2d at 1235, n. 6. We hold here that the Supreme Court cases relied on in Boemer must control over this court's later panel opinion in DiValerio. See Mackey v. Adamski, 286 Pa.Super.Ct. 456, 465-66, 429 A.2d 28, 32 (1981), reconsideration den’d; Commonwealth v. Manley, 282 Pa.Super.Ct. 376, 383 n. 5, 422 A.2d 1340, 1343 n. 5 (1980), rearg. den’d, petition for allowance of appeal granted; cf. Commonwealth v. Lynch, 304 Pa.Super.Ct. 248, 254-255, 450 A.2d 664, 667-68 (1982), rearg. den’d. Therefore the Pennsylvania double jeopardy clause applies to the offense involved here. On the merits, we adopt Judge Hoffman’s reasoning that the clause does not bar a Commonwealth appeal under Act 319.

      . In holding that the Commonwealth must comply with Rule 1410, the en banc opinion in Anderson has overruled sub silentio the contrary holding in the panel opinion in Commonwealth v. Love, 295 Pa.Super.Ct. 276, 278-79 n. 1, 441 A.2d 1230, 1231 n. 1 (1982), petition for allowance of appeal den’d. Of course, the en banc opinion in Anderson is controlling. Pa.R.A.P. 3103(b); see Commonwealth v. Manley, supra, note 6. It should be noted, however, that Anderson overrules Love solely on the Rule 1410 issue. The holding in Love that the Commonwealth need supply neither formal nor informal notice of its intention to raise Act 319, because our Supreme Court has adopted no rule requiring notice, remains unaffected. Thus in Commonwealth v. Lightly, 307 Pa.Super.Ct. 239, 453 A.2d 14 (1982), in which the lower court had held that the Commonwealth had waived an Act 319 claim both by failing to file the applicability of Act 319 in writing and by failing to file a Rule 1410 motion, this court affirmed solely on the latter ground.

      . Although the Commonwealth has placed a copy of the motion in the reproduced record, it is not part of the original record, Pa.R.A.P. 1921, and the Commonwealth should not have included it in the reproduced record. General Accident Fire & Life Assurance Corp., Ltd. v. Flamini, 299 Pa.Super.Ct. 312, 317 n. 3, 445 A.2d 770, 773 n. 3 (1982); see Pa.R.A.P. 2152(a).

      . The Commonwealth has not pursued any issue concerning these nonappealable judgments of sentence, and if the appeal were not quashed as to them, it would be dismissed as abandoned. See Cohen v. Jenkintown Cab Company, 300 Pa.Super.Ct. 528, 530 & n. 2, 446 A.2d 1284, 1285 & n. 2, 1290 (1982), reh'g den’d. We realize that the Commonwealth probably never intended to appeal these judgments of sentence, and listing them on the notice of appeal was an understandable technical error by the Philadelphia district attorney’s office, which has usually been exemplary in such matters. We hope, however, that all concerned will pay close attention to proper procedure, in order to minimize confusion and delay as we begin to cope with the approaching flood of litigation under the new sentencing guidelines.


author: PER CURIAM:

text:
    457 A.2d 976
    COMMONWEALTH of Pennsylvania, Appellant, v. Timothy E. SECOTT.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1981.
    Filed March 18, 1983.

      William H. Platt, District Attorney, Allentown, for Commonwealth, appellant.
    W. Hamlin Neely, Allentown, for appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   PER CURIAM:

We here consider an appeal brought by the Commonwealth from an Order of the Common Pleas Court of Lehigh County, sitting en banc, which granted a motion in arrest of judgment, following a finding of guilty of driving a vehicle while under the influence of alcohol. We reverse.

The arresting officer testified at trial that on November 24, 1979, at 6:30 in the morning, while en route to the police station to report for duty, he observed a green Plymouth automobile swerving back and forth on Route 309. The officer further testified that he observed the Plymouth for approximately two miles, that he could see the driver of the car, and that he copied down the license number. Since the policeman was not in his jurisdiction, he proceeded to his police station, obtained a patrol car, and waited on a side road which intersected with Route 309 for the Plymouth to pass. While so waiting, a motorist approached the patrol car and informed the officer that an accident had occurred on Route 309. As a result, the policeman went to the scene of the accident and observed that one of the cars involved in the accident was the same green Plymouth which he had earlier seen proceeding in an erratic manner.

The police officer testified that he recognized appellee as the person he had minutes before seen driving the green Plymouth, noticed an odor of alcohol on the appellee’s breath, and observed that appellee had bloodshot eyes and was staggering. Appellee responded affirmatively when asked by the officer whether he was the operator of one of the vehicles involved in the accident. At that point the policeman read the Miranda warnings to appellee, arrested him, required him to perform various sobriety tests and transported appellee to the police station for admission of a breathalyzer test.

Prior to trial appellee filed an application to suppress evidence and an application to quash the information. The trial judge denied both motions and, following a non-jury trial, found appellee guilty as charged. The court en banc arrested judgment based on its determination that the pretrial motion to quash the information was improperly denied. The court en banc concluded that the complaint filed against appellee contained a substantive defect in that it did not state facts and circumstances from which the magistrate could independently determine probable cause and directed that appellee be discharged.

The requirement that probable cause for the issuance of process be ascertained by the issuing authority is set forth in Pennsylvania Rule of Criminal Procedure 134. That rule expressly states that it is only applicable in those cases where the proceeding is initiated by a complaint. The instant proceeding was not commenced in such a fashion, but rather, was initiated by the arrest of appellee without a warrant pursuant to Pennsylvania Rule of Criminal Procedure 101(4). Thus, there was no need for the Commonwealth to comply with the requirements of Rule 134 and no basis for the discharge of appellee for such a reason.

The opinion of the court en banc addressed only the Rule 134 contention of appellee and did not rule upon the other questions presented in the motions of appellee. Thus, we remand this case so as to enable the court en banc to consider the other questions presented in those motions of appellee.

Case remanded. Jurisdiction is relinquished.

CAVANAUGH, J., concurs in the result.

      . 75 Pa.C.S.A. § 3731(a).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . That Rule provides in pertinent part:
      Rule 134. Issuance of Process Pursuant to Complaint
      (a) In any proceeding initiated by complaint, the issuing authority shall ascertain that:
      (2) there is probable cause for the issuance of process, in the form of an affidavit;


author: MONTEMURO, Judge:

text:
    457 A.2d 1272
    COMMONWEALTH of Pennsylvania v. James B. McKNIGHT, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 3, 1981.
    Filed Feb. 4, 1983.
    Reargument Denied April 19, 1983.
    Petition for Allowance of Appeal Denied Sept. 19, 1983.

      Marilyn J. Gelb, Philadelphia, for appellant.
    Gaele McGlaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and MONTEMURO, JJ.
   MONTEMURO, Judge:

In the present case, we are faced with the difficult procedural question of the extent of this court’s power to fashion relief when a determination is made, in an appeal from on adverse order in a collateral attack on a judgment of sentence under the Post-Conviction Hearing Act [hereinafter PCHA], that appellant was denied his appellate rights due to ineffectiveness of counsel. Specifically, whether this court, once a determination has been made that appellate rights were denied and that appellant is entitled to an appeal nunc pro tunc, can decide appellant’s other claims as if they were before the court on the nunc pro tunc appeal, and not on the collateral attack appeal. We find that in the limited circumstances of this case, we should resolve appellant’s claims without.further remand. To do otherwise would make a mockery of the oft-stated concept of “judicial economy.”

Appellant, James B. McKnight, brings this appeal from the order of the lower court denying relief pursuant to the PCHA. Appellant contends that counsel was ineffective in failing to preserve the appellate rights of the appellant by not filing an appeal; in failing to file a timely motion to dismiss under Pa.R.Crim.P. 1100; in failing to preserve for appeal an objection to prejudicial remarks by the trial judge; and in failing to preserve for appeal an objection to the trial court’s charge to the jury regarding the elements of conspiracy. We find that (1) appellant was denied his right to appeal through the ineffectiveness of counsel, and (2) appellant’s other claims lack merit. Accordingly, we reverse in part and affirm in all other respects the order of the lower court.

James B. McKnight was arrested on November 8, 1974 and following the denial of pre-trial motions, a jury trial was conducted. The appellant was found guilty of robbery, conspiracy, and possession of an instrument of crime. Appellant’s post-trial motions were denied and he was sentenced to five (5) to fifteen (15) years imprisonment on the robbery charge. No direct appeal was taken from the judgment of sentence.

Subsequently, appellant, without the aid of counsel, attempted to avail himself of post-conviction relief. On May 11, 1976, appellant filed a pro se PCHA petition, which was denied without a hearing. On October 26, 1976, appellant filed a second pro se PCHA petition, which was also denied without a hearing. Appellant then filed a pro se petition for allowance to file an appeal nunc pro tunc in this court, which was denied in a per curiam order. Appellant then sought allocatur to the Pennsylvania Supreme Court which issued a per curiam order to the trial court for appointment of counsel to assist in the filing of a new PCHA petition. An amended petition was filed asserting essentially the same claims which are before us now.

On January 7, 1980, an evidentiary hearing was held to take testimony relevant to appellant’s ineffectiveness claims. Only the appellant and his trial counsel testified. The appellant testified that following his sentencing hearing, he requested his trial counsel, a member of the Defender’s Association, to file an appeal. In support his testimony, appellant produced two letters from appellant to trial counsel, regarding the desirability of filing an appeal. One letter was undated, the other was post-marked August 25, 1976.

The Commonwealth introduced correspondence from the Defender’s Association, dated September 25, 1975, enclosing forms and instructions for filing an appeal. The letters stated that the forms were being sent at the request of appellant’s trial counsel. In his own testimony, trial counsel was unable to recall any discussion with the appellant regarding the desirability of an appeal. The PCHA court denied relief and appellant filed a timely appeal.

This court, in determining whether a criminal defendant was afforded effective assistance of counsel, will make an independent review of the record, Commonwealth v. Strader, 262 Pa.Super. 166, 396 A.2d 697 (1978), and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives. Com monwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Gray, 297 Pa.Super. 123, 443 A.2d 330 (1982). Counsel will be deemed effective if this court determines that the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, supra; Commonwealth v. Johnson, 280 Pa.Super. 309, 421 A.2d 737 (1980). However, it is only when the claim is of arguable merit that we must make an inquiry into the basis for counsel’s decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Moreover, an accused has an absolute right to an appeal. Pa. Const., Art. V, Sec. 9, and counsel can be faulted for allowing that right to be waived unless the accused himself effectively waived the right. Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980); Commonwealth v. Johnson, supra. The appellant’s right to appeal includes the right to the assistance of counsel in the task of taking and perfecting the appeal. Commonwealth v. Ritchie, 298 Pa.Super. 165, 444 A.2d 712 (1982); Commonwealth v. Fareri, 271 Pa.Super. 174, 412 A.2d 632 (1979); Commonwealth v. Blackwell, 258 Pa.Super. 121, 392 A.2d 714 (1978). In Commonwealth v. Wilkerson, supra, our Supreme Court set forth a requirement that counsel, at a minimum, initiate procedures consistent with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). On the other hand, an accused can waive his right to the assistance of counsel if the waiver constitutes “an intentional relinquishment or abandonment of a known right.” Commonwealth v. Wilson, 430 Pa. 1, 3, 241 A.2d 760, 762 (1968). The Commonwealth has the burden of proving a waiver by a preponderance of the evidence. Commonwealth v. Wilson, supra.

The PCHA hearing court found that the appellant “knowingly and voluntarily waived his appellate rights.” Our independent examination of the record convinces us that an opposite conclusion is mandated. The record amply demonstrates that the appellant actively pursued his appellate rights, first, by requesting counsel to pursue an appeal and later by communicating with counsel by letter to ascertain the status of the appeal. The letter from the Defender’s Association transmitting forms and instructions to the appellant supports a finding of no waiver since this exact situation has been previously decided by this court in Commonwealth v. Cooley, 298 Pa.Super. 163, 444 A.2d 711 (1982). The court in Cooley, found that the mere transmission of forms and instructions did not fulfill counsel’s duty to aid appellant in the perfection of his appeal. Commonwealth v. Cooley, supra; Commonwealth v. Fareri, supra. Having found that the appellant has been denied his appellate rights we must now determine what remedy is appropriate.

The Commonwealth contends, should we decide as we have that the appellant was denied his right to appeal, that it would be superfluous to grant the defendant the right to file an appeal nune pro tunc only to raise the same issues which have been fully briefed and which were subject to an evidentiary hearing. We agree and therefore we shall proceed to resolve appellant’s remaining claims.

Appellant contends that his trial counsel was ineffective in failing to assert a motion to dismiss pursuant to Pa.R. Crim.P. 1100. A brief recitation of the relevant facts is in order to determine if appellant’s claim has merit. Commonwealth v. Hubbard, supra.

Appellant was arrested on November 8, 1974 after robbing a young woman of her purse and twenty-five ($25.00) dollars at knifepoint. A criminal complaint was filed November 9, 1974. The trial commenced with a suppression hearing reserved until the time of trial on May 12, 1975. Commonwealth v. Whitner, 278 Pa.Super. 175, 420 A.2d 486 (1980). Hence, 184 days elapsed from the time of the filing of the complaint until the commencement of trial. 1 Pa.C.S.A. § 1908. Thus, the appellant is entitled to be discharged unless we can determine from the record that a period of time in excess of four days is excludable under Pa.R.Crim.P. 1100(d).

Four periods of potentially excludable time are proposed by the Commonwealth; (1) January 21, 1975 to February 26, 1975 because of a requested continuance by defense counsel, (2) February 21, 1975 to April 8, 1975 because of the lack of availability of a courtroom; (3) April 8, 1975 to April 25, 1975 also because of the lack of availability of a courtroom, and (4) April 25, 1975 to April 29, 1975 because a co-defendant’s attorney was not available.

In determining whether there was a claim of arguable merit, we must examine counsel’s stewardship under the standards as they existed at the time of his action. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Arthur, 488 Pa. 262, 412 A.2d 498 (1980). Under the standards, as they existed in May, 1975, it is clear that counsel was not ineffective in failing to raise a Pa.R.Crim.P. 1100 motion.

Appellate decisions rendered after appellant’s trial have held that periods attributable to judicial delay (unavailability of courtrooms) are not to be considered excludable from the 180 day computation, Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. Riddick, 248 Pa.Super. 120, 374 A.2d 1347 (1977). However, these decisions were rendered subsequent to appellant’s trial and therefore counsel cannot be found ineffective for failing to foresee them. Commonwealth v. Arthur, supra. A similar analysis is applicable to the time period attributable to the absence of co-defendant’s counsel. These periods were made non-excludable by this court in Commonwealth v. Thomas, 266 Pa.Super. 381, 404 A.2d 1340 (1979), again subsequent to the appellant’s trial. Finding these periods (attributable to either judicial delay or co-defendant delay), a total of sixty-two days, were excludable at the time of trial, counsel cannot be found ineffective for failing to pursue a Pa.R.Crim.P. 1100 claim.

Appellant’s next claim is that the trial judge erred by making prejudicial remarks to the jury and that counsel was ineffective in failing to assert on appeal a claim based on them. We find no merit in this argument.

The remarks appellant complains of occurred in the trial court’s charge to the jury:

“Now this is a charge of robbery. This is not a pocketbook snatch where a bag is grabbed and a person flees. But this was done with a weapon and society takes a very dim view of this type of crime because of the fear.”

The remarks were excepted to by counsel and also an argument was raised orally in post-trial motions.

The remarks, as quoted by appellant, are taken from context in the course of a jury instruction extending over twenty-five pages. When read in context it is apparent that the trial judge was merely trying to distinguish the crime of theft from the crime of robbery. As the court stated immediately following the above quoted passage:

“Let me explain it to you. I shall explain it to you in the framework of the facts that we heard in this case. If a person steals by threats or by putting another person in serious harm, then he is a robber. Thus, if you find that the demand by the robber, to quote ‘give it up,’ and the use of the knife put Mrs. Coleman in fear of immediate bodily harm, then you have a robbery.”

It is apparent that the trial judge was not attempting to invade the province of the jury, nor was the remark “of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.” Commonwealth v. Rolison, 473 Pa. 261, 274, 374 A.2d 509, 514 (1977); Commonwealth v. Humphreys, 267 Pa.Super. 318, 406 A.2d 1060 (1979). Read in context, the remarks are not prejudicial, but merely an attempt by the trial court to distinguish two separate crimes. We find that this issue is not of arguable merit and therefore counsel was not ineffective.

Appellant’s final claim is that the trial judge erred in defining the crime of criminal conspiracy by failing to set forth the requisite element of an overt act. This claim is rebutted by a reading of the trial court’s charge wherein the court states, “[T]he law says there has to be at least one act by one of the co-conspirators in furtherance of the conspiracy before you can find it.” Therefore, this claim is also without merit.

Having decided all of the appellant’s claims herein and, thus vitiating any further need for a nunc pro tunc appeal, we affirm the order of the lower court in all respects save that part of the lower court’s order finding no denial of appellate rights, which has now been corrected by our determination herein.

      . Act of January 25, 1966, P.L. 1580 (1965), § 1 et seq., 19 P.S. § 1180-1 et seq., repealed § 2(a) [1397] of Act 1978, April 28, P.L. 202, No. 53, to take effect June 27, 1980, reinstated Act of June 26, 1980, No. 41 § 1, to June 27, 1982.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 905.

      . 18 Pa.C.S.A. § 2705.

      . The undated letter read in pertinent part:
      “I will [sic] appreciate if you will send judge (Kubacki) a pertiction [sic, petition] asking for a contentious [sic, continuation] of (30 days) on grounds to go over my case, that something had been overlooked.
      I hope that you had [sic] apeal [sic] the case for a new trial.”

      . The August 14, 1976 letter read, in pertinent part:
      "I wrote you before and got no reply ... you know my right [sic] was violated and my 180 days by law I should be home. This will be my last letter my mind is made up just send me my note, like you was supposed to do from the start and my entrie [sic] of the court.”

      . The September 25th correspondence was addressed to the appellant and signed by John W. Packel, Appeals Division.

      . In Commonwealth v. Cooley, supra, and Commonwealth v. Ritchie, 298 Pa.Super. 165, 444 A.2d 712 (1982), this court found a denial of appellate rights in appeals from PCHA orders denying relief. In both Cooley and Ritchie, the relief granted was an order to remand for the filing of an appeal nunc pro tunc. The present case can be distinguished from Cooley and Ritchie in that in each of those cases there was no indication that any other claims were before the court. In the present case each of the appellant’s other claims was presented to the lower court and a full evidentiary hearing was conducted. Furthermore, the issues are fully briefed by the parties. Given this combination of factors we find the better course to be resolution of the other claims in the context of a nunc pro tunc appeal. The resolution of appellant’s claims in the posture of a nunc pro tunc appeal serves the dual purpose of quickly remedying the denial of a direct appeal, and at the same time promoting the traditional policies of judicial economy and fairness. Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982). Cf. Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980).

      . Appellant’s trial counsel did attempt to assert a motion to dismiss pursuant to Pa.RXrim.P. 1100, but only after appellant had (1) repeatedly urged him to do so, and (2) filed a pro se motion. Counsel’s motion, made after the swearing of the jury, was not timely. Pa.R. Crim.P. 1100(f). Commonwealth v. Ziegler, 286 Pa.Super. 26, 428 A.2d 220 (1981). The motion was denied by the trial court although the record does not indicate whether it was denied on the merits or because it was not timely made.

      . In Commonwealth v. Shelton, supra, the court held that periods attributable to judicial delay are not excludable from the 180 day computation. The Commonwealth must petition for extension to toll the 180 day limit.

      . Additionally, appellant’s trial counsel testified at the PCHA hearing that the practice in Philadelphia County at the time of appellant's trial was to consider judicial delay and co-defendant delay excludable from the 180 day computation.


author: CERCONE, President Judge: JOHNSON, Judge,

text:
    457 A.2d 1278
    COMMONWEALTH of Pennsylvania, Appellant, v. Linda DINCEL, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1982.
    Filed March 11, 1983.
    Petition for Allowance of Appeal Granted July 13, 1983.

      Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Neil E. Jokelson, Philadelphia, for appellee.
    Before CERCONE, President Judge, and SPAETH, CAVANAUGH, WICKERSHAM, BROSKY, BECK and JOHNSON, JJ.
   CERCONE, President Judge:

Linda Dincel, appellee, was convicted in the Municipal Court of Philadelphia of Involuntary Manslaughter and of Driving Under the Influence of Alcohol. She was sentenced to five years probation on the Involuntary Manslaughter conviction with the condition that she pay the family of Charles Murray their funeral and interment expenses. On the Driving Under the Influence conviction, she was sentenced to undergo from three to twenty-three months of incarceration, to be served on weekends. Shortly thereafter, Dincel filed a petition for a writ of certiorari with the Court of Common Pleas of Philadelphia County. She prayed that the Common Pleas Court “reverse her conviction and discharge her from all liabilities on the above charges.” The Hon. Charles Mirarchi sustained the Municipal Court’s judgment of sentence as to Involuntary Manslaughter, but reversed the judgment of sentence as to the Driving under the Influence; however, the court noted an adjudication of “not guilty” on its order pertaining to the dismissal of the Driving Under the Influence charge.

Dincel appealed her conviction for involuntary manslaughter and the Commonwealth appealed from the Common Pleas Court reversal of her conviction for Driving Under the Influence. The appeals were consolidated. In an opinion filed on February 5, 1982, by a panel of our court, Dincel’s conviction for involuntary manslaughter was affirmed and the appeal of the Commonwealth was quashed under the principle that “the Commonwealth may not appeal from a verdict of ‘not guilty’ in a criminal prosecution.” Commonwealth v. Thinnes, 263 Pa. Superior Ct. 79, 397 A.2d 5 (1979); Commonwealth v. Ray, 448 Pa. 307, 292 A.2d 410 (1972); Commonwealth v. Burton, 292 Pa. Superior Ct. 73, 436 A.2d 1010 (1981).

The Commonwealth was subsequently granted en banc reargument on the issue of the quashal of its appeal. The Commonwealth does not dispute that it may not appeal a finding of “not guilty” by a trial judge. Rather, the Commonwealth, characterizing the judge’s decision as a “putative acquittal,” urges its appealability since the lower court was, in effect, sitting as an appellate court pursuant to the writ of certiorari and exceeded its scope of review by declaring Dincel “not guilty”. Because we find that this argument has merit, and because we find the evidence was sufficient to convict appellee of driving under the influence, we vacate the order by which Dincel was adjudged not guilty and reinstate the original verdict of the Municipal Court of Philadelphia.

Our decision is guided by Double Jeopardy concerns since the general rule is that the entry of a verdict of acquittal by a trial court in a criminal proceeding usually cannot be reviewed without placing the defendant twice in jeopardy in violation of the double jeopardy clauses of both the Fifth Amendment of the United States Constitution and of Article I, § 10 of the Pennsylvania Constitution. Sanabria v. U.S., 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Borough of West Chester v. Lal, 493 Pa. 387, 426 A.2d 603 (1981); Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1980); Commonwealth v. Lodge No. 148, Loyal Order of Moose, 188 Pa. Superior Ct. 531, 149 A.2d 565 (1959). This rule, however, must be qualified by the particular facts in certain cases. For example, in Sanabria, supra, the defendant was on trial for two violations of gambling laws. Midway through the trial certain numbers evidence was erroneously excluded, which fact resulted in a judgment of acquittal. The Supreme Court ruled that such an error in the defendant’s favor on the merits of the charge was an acquittal in fact. In that circumstance, the Double Jeopardy Clause absolutely barred a second trial, thus the government was not permitted to appeal. Similarly, in Fong Foo v. U.S., 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), the court’s error in directing jury verdicts of acquittal resulted in their nonappealability since review would put the defendants twice in jeopardy, and thereby violate the Constitution. Moreover, this fundamental rule of the government’s inability to appeal a not guilty verdict has been extended to situations where a court sustains a defendant’s demurrer to the prosecution’s evidence, an ordinarily appealable order, but in addition, erroneously enters a judgment of not guilty, Commonwealth v. Kerr, 150 Pa. Superior Ct. 598, 29 A.2d 340 (1942), cited with approval in Commonwealth v. Haines, 410 Pa, 601, 190 A.2d 118 (1963). In addition, our Supreme Court has looked beyond the characterization of an order of the grant of a demurrer which in actuality was a de facto, but silent, judgment of acquittal, Commonwealth v. Wimberly, supra, and has rendered such an order nonappealable by the Commonwealth.

The underlying rationale for all of the cases appears to focus on whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged. U.S. v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), quoting U.S. v. Martin Linen Supply, 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), in Commonwealth v. Wimberly, 488 Pa. at 173, 411 A.2d at 1194. Moreover, the trial judge’s characterization of his own action cannot control the classification of the action. U.S. v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (opinion of Harlan, J.) in Wimberly 488 Pa. at 173, 411 A.2d at 1195.

A concomitant consideration is whether permitting review in a case would “expose the defendant to the risk of a second trial after the finder of fact ruled in [her] favor in the first.” U.S. v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975).

With these considerations in mind, this court finds that the “not guilty” which was erroneously entered by the reviewing court below in its order was not, in fact, an acquittal. It was not the erroneous entry of a not guilty verdict by a trial court otherwise empowered to so rule at another stage of the trial proceeding. Rather, it was a legal determination that the evidence was insufficient to sustain the verdict of guilty of Driving Under the Influence after a review of the Municipal Court record. A trial de novo was never held. That the Court labeled its dismissal as a not guilty verdict is not, in itself, determinative. In addition, the review of the court’s order will not expose appellee Dincel to the risk of a second trial. Rather, the most that could happen is the reinstatement of her guilty verdict by the Municipal Court.

An important distinction separates the instant case from others in which this court quashed appeals by the Commonwealth although the lower courts erroneously entered not guilty verdicts. In this case, the lower court, did not have the power to act as a fact-finder by declaring appellee not guilty. In the cases cited above which delineate the parameters of double jeopardy guarantees, the lower courts were empowered to find facts and to rule on the law as trial courts. The errors of those cases involved decisions on factual issues which redounded in the defendant’s favor. Therefore, in those cases, for any reviewing court to permit such review would open up the acquitted defendants to the possibility of another criminal proceeding. This is the classic proscription implicating the Double Jeopardy clause.

However, in this case, appellee elected to proceed in such a way that the court of common pleas could render a legal determination based on its review of the evidence.

Assuming the viability of the process by which a defendant may file a petition for a writ of certiorari after a guilty verdict by a Philadelphia Municipal Court, it is helpful to review the difference between the appeal and the writ in that context. As one authority has described the procedure,

A defendant may also appeal municipal court convictions on the record rather than de novo, and this appeal is heard by the court of common pleas. This mode of appeal is instituted by a petition for a writ of certiorari filed in the common pleas court. This appeal is not granted as a matter of right and the success of this procedure depends on the record made in the municipal court. If a successful appeal would require an arrest of judgment and a termination of a prosecution, then this procedure may be the most appropriate. For example, if the evidence was insufficient to sustain the conviction, an appeal by writ of certiorari would terminate the prosecution, while a de novo appeal would merely require a new trial at which the Commonwealth would have another opportunity to convict the defendant. Wasserbly, Pennsylvania Criminal Practice I, § 12.04 (1981). (emphasis added)

In the instant case, appellee requested the Common Pleas Court to review the sufficiency of the evidence by writ. By this procedure, the court, sitting in review of the municipal court proceedings, was empowered either to affirm the driving under the influence conviction or to order the defendant discharged for insufficient evidence. Nevertheless, the court labeled its finding of insufficient evidence as an adjudication of not guilty.

Keeping in mind the principle that the trial judge’s characterization of his own action cannot control the classification of the action, Commonwealth v. Wimberly, supra, quoting U.S. v. Jorn, 400 U.S. 470, 91 S.Ct. 549, 27 L.Ed.2d 543 (1971) (Opinion of Harlan, J.), we find that the lower court’s not guilty verdict entered erroneously and without the power to so rule, does not preclude a review of the proceedings.

Appellee argues that the Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution would be violated by such review. Appellee relies on Commonwealth v. Ferrone, 218 Pa. Superior Ct. 330, 280 A.2d 415 (1971) and Commonwealth v. Haines, 410 Pa. 601, 190 A.2d 118 (1963). In Ferrone, after a trial on the merits, the trial court both suppressed the evidence and acquitted the defendant. The Commonwealth attempted to appeal because it claimed it was appealing the grant of a suppression motion. However, this court quashed the Commonwealth’s appeal since there was a trial on the merits before the order of suppression was entered, and therefore, Ferrone represented a not guilty verdict, unappealable by the Commonwealth. So also was this the situation in Haines, wherein the court, after sustaining a demurrer, directed the jury to return a verdict of not guilty. Although the procedure was incorrect, the Commonwealth could not appeal.

However, in the instant case, by appellee’s choosing to proceed by writ of certiorari, she forewent the right to a trial de novo, after which the lower court could have rightfully found her not guilty, and elected to have the common pleas court act as an appellate court in rendering legal determinations.

We, therefore, hold that when the lower court, sitting as an appeals court from a determination of guilty by a municipal court judge, found the defendant not guilty from its review of the municipal court record, it exceeded its jurisdiction.

In effect, looking beyond the label which the lower court gave to its order, we find that its ruling was, in fact, a dismissal of the driving under the influence charge for insufficient evidence, a legal determination. Therefore, the Commonwealth’s right to appeal is preserved.

II. Sufficiency of the Evidence

On September 23, 1976, at approximately 10 p.m., appellee Linda Dincel was driving toward the Benjamin Franklin Bridge from Philadelphia to New Jersey. Her Plymouth Duster went wildly out of control onto a sidewalk. It knocked down three steel poles and struck two young men who were standing there. One victim, Charles Murphy, age nineteen, was killed instantly by the impact. His companion, James H. Schmitt, was injured, but survived. The evidence before the Municipal Court revealed that Dincel drove her car away from the scene, but was detained at the bridge toll booth when officials became aware of her inappropriate behavior and suspected that she may have been the driver involved in the fatal accident.

The municipal court judge found Dincel guilty of both Involuntary Manslaughter and Driving Under the Influence of Alcohol. The convictions were presented to the Honorable Charles Mirarchi for review as an appellate court, whose subsequent order of not guilty on the charge of Driving Under the Influence we hold invalid by this Opinion. We have regarded said order as his dismissal of that charge for insufficient evidence. We, therefore, review the evidence presented in the Municipal Court in the light most favorable to the verdict winner in the original court proceeding, the Commonwealth. Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975). Because we find from our review of the proceedings in the Philadelphia Municipal Court that the evidence was sufficient to support a verdict of guilty of Driving Under the Influence, we hereby vacate the dismissal of the Court of Common Pleas subsequent to appellee Dincel’s writ of certiorari and reinstate the guilty verdict of the Municipal Court of Philadelphia.

To establish that appellee was guilty of driving under the influence of liquor, the Commonwealth had to prove that (1) she was operating a motor vehicle, (2) she was under the influence of liquor. Commonwealth v. Arizini, 277 Pa. Superior Ct. 27, 419 A.2d 643 (1980).

Testimony by toll collector Archie T. Swan established that at about 10 p.m. on September 23, 1976, Linda Dincel drove her car into the exact change line of the toll area near the Benjamin Franklin Bridge. She offered a dollar bill to Swan who told her she would have to go to the manual lane since she did not have exact change. He also noticed that her lights were out. Swan brought that to her attention. At this time, a motorist called to Swan that two men were lying on the plaza on the Philadelphia side. Swan again told Dincel to move to another lane and she objected and also remarked that her lights were on. Then Dincel said “I just left a beautiful dinner and I put my lights on and I had a couple of drinks...”

Then Dincel backed her car to the curb and got out of her car. As she did so, a check fell to the ground. Swan’s testimony was that Dincel staggered as she retrieved it. When Swan asked her if she was all right, she replied “Yes, Pm all right. I just had a few drinks and a lovely dinner.” Swan also observed Dincel as dazed, with glassy eyes, and unstable on her feet. He opined from his observations that she was intoxicated.

Then, Sergeant Jessee Maass of the Delaware Port Authority testified as to his encounter with appellee Dincel. That night, as he was arriving at the scene of the accident, he received word over his radio that fellow officers had a vehicle bearing the description of the one which struck the two young men at the toll plaza. (This was Dincel’s car.) He went to the plaza and there observed Dincel leaning for support against a cyclone fence. He noted a strong odor of alcohol on her breath, her bloodshot eyes, and her blank staring look. Her feet were spread wide for balance; her speech was slow; she was polite and cooperative, but sleepy, and her movements were slow. Maass gave his opinion that Dincel had been driving while under the influence of alcohol. Additionally, the results of the breathalyzer test, which was administered at 12:35 a.m., September 24, 1976, were .09, one-one hundredth less than the statutory inference in Pennsylvania for intoxication. 75 Pa.C.S. § 1547(d)(3). This breathalyzer test result has been found to be an inference which the factfinder may accept or reject in light of all of the evidence in a case. Commonwealth v. DiFrancesco, 458 Pa. 188, 329 A.2d 204 (1974).

It is this court’s conclusion that the Court of Common Pleas which sat in review of the lower court proceeding pursuant to a writ of certiorari should have considered the evidence presented to the Municipal Court in a light most favorable to the Commonwealth. This Court, in applying this standard, finds that the evidence was indeed sufficient to prove appellee guilty of driving under the influence beyond a reasonable doubt.

The Court of Common Pleas found that the evidence presented him with a serious conflict of facts. He placed great weight on the fact that neither of the officers noticed that appellee drove her car erratically. We find this unpersuasive, especially as the testimony established that a fatal accident occurred because appellee drove her car onto a sidewalk. (The. Commonwealth presented several witnesses who saw the accident and described the car and the fact that a woman was driving.) She then continued driving to the wrong toll lane, and there she aroused suspicion in the mind of the toll officer by her inappropriate responses to his inquiries. The Court also relied on the report of one Dr. Pickering who examined Dincel at 1:00 a.m. on September 24, 1982, about three hours after the accident. He stated that her speech and coordination were normal and that she was not under the influence of alcohol. The court found that because of the conflict in testimony that a reasonable doubt existed as to appellee’s guilt of driving under the influence.

We hold contrary. Despite the testimony pertaining to appellee’s emotional upset, the evidence established, both by eyewitnesses and appellee herself, that Dincel had consumed a few drinks earlier that evening, that she caused an accident which resulted in death and serious injury, that her demeanor immediately after the accident was characteristic of one who is under the influence of alcohol, that her breath smelled of alcohol and that two and one half hours after the accident her breathalyzer reading was .09. Additionally, it must be noted that it was the Municipal Court which originally adjudged appellee guilty of this charge with the benefit of being able to view the witnesses themselves. Taking all of this evidence as a whole, then, in the light most favorable to the Commonwealth, we find that the evidence was sufficient to sustain appellee’s conviction of Driving under the Influence. The order of not guilty by the Court of Common Pleas is vacated and the judgment of sentence of guilty of Driving Under the Influence of the Municipal Court is reinstated.

JOHNSON, J., files a concurring opinion.

JOHNSON, Judge,

concurring:

Although I concur in the result reached by the majority in the instant case, I reach that result by a different analysis.

First, I do not believe that an in-depth analysis of the Double Jeopardy aspects of this case is warranted. As our result does not involve either a new trial or an affirmance of a valid acquittal, Double Jeopardy is not at issue. This follows from a determination that the court of common pleas was in error in entering the “not guilty” verdict when reviewing the Philadelphia Municipal Court convictions on certiorari.

Secondly, if we are to hold that the reviewing court in this case exceeded its scope of authority or review, it is incumbent on this court to set forth the proper scope. It is far from clear what the scope of review of the court of common pleas is, on review pursuant to an acceptance of certiorari to the Philadelphia Municipal Court. No case law exists on this precise point.

Prior to the suspension of 42 P.S. § 3006, which permitted an appeal from a summary conviction by means of writ of certiorari, the scope of review by a court of common pleas upon appeal to it by writ of certiorari from a minor court was clear: the writ of certiorari was merely a remedy to bring before a court of record asserted procedural defects in the proceedings before a justice of the peace or magistrate. See Commonwealth v. Wadzinski, 485 Pa. 247, 401 A.2d 1129 (1978). The writ afforded but a limited scope of review, not embracing substantive errors such as sufficiency of the evidence. Commonwealth v. Quinn, 215 Pa.Super. 78, 257 A.2d 266 (1969). Where there exists a statutory right of appeal, questions of fact may not be reviewed on certiorari, nor issues related to sufficiency, admissibility, competency or relevancy of evidence presented to a justice of the peace. Commonwealth v. Cook, 226 Pa.Super. 273, 308 A.2d 151 (1973). The judgment on writs of certiorari from a summary conviction before an alderman or justice of the peace was limited to (1) sustaining or (2) setting aside the judgment. Commonwealth ex rel. Burton v. Baldi, 147 Pa.Super. 193, 24 A.2d 76 (1942), quoting Commonwealth v. Benson, 94 Pa.Super. 10 (1928). An appeal on the merits from a summary conviction before a minor court could be taken only to the court of quarter sessions, to be heard de novo. See Commonwealth v. Wadzinski, supra.

In Commonwealth v. Poindexter, supra, the defendant appealed from the orders of the court of common pleas, after that court issued a writ of certiorari to the Philadelphia Municipal Court, on the defendant’s petition. However, neither the superior nor the supreme court opinions in that case discuss the applicable scope of review, either for the common pleas court on certiorari or on further review. The court of common pleas, on certiorari, in Poindexter did review the sufficiency of the evidence, in terms of the Commonwealth’s proof of the elements of the crimes charged.

Therefore, the scope of review in the instant case remains unclear. Pursuant to a review of the cases cited supra, I believe the scope of review of the court of common pleas on certiorari from the Philadelphia Municipal Court on non-summary charges to now include (1) review of procedural defects in the proceedings before the Philadelphia Municipal Court and (2) review of the legal sufficiency of the evidence. By use of this standard, the court of common pleas will be able to correct those procedural errors which appear from the record, thereby protecting the due process rights of the defendant. Also, by permitting review of the legal sufficiency of the evidence, those prosecutions involving legally insufficient evidence can be corrected directly, instead of requiring a trial de novo. Finally, I do not consider the setting forth of this scope of review as necessarily changing the law in this area, therefore, it will be applied to my review of the actions of the court of common pleas in the discussion following.

In the instant case, the reviewing judge of the common pleas court, after a review of all the evidence presented, reversed Appellee’s conviction for Driving Under the Influence of Alcohol, 75 Pa.C.S.A. § 3731, and entered the verdict of not guilty. The judge, sitting as an appellate court, clearly had no authority to enter such a verdict; only the fact finder has such authority.

The majority has come to the same conclusion regarding the entry of the not guilty verdict. However, I disagree with the majority opinion in regard to its classification of the reviewing court’s review and determination as based on insufficient evidence. My review of the reviewing court’s opinion indicates that it, in essence, reviewed the record of the municipal court proceeding as a fact finder.

As stated in Commonwealth v. Council, 491 Pa. 434, 437, 421 A.2d 623, 624 (1980):

It is essential to the fair administration of justice that appellate tribunals not sit as second fact-finders. Rather, on appeal the evidence must be viewed in the light most favorable to the verdict winner with all reasonable inferences flowing therefrom. Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975).

See also Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 (1981).

Upon reviewing the testimony of the witnesses, the reviewing court determined that the alleged conflict in the witnesses’ testimony suggested the invocation of reasonable doubt. The reviewing court, weighing the evidence of the witnesses differently than the Municipal Court, then made its determination. This was error.

Credibility is within the exclusive province of the trier of fact and only when the evidence is so inconsistent and unreliable that the verdict is based upon conjecture, will the reviewing court overturn the conviction. Commonwealth v. King, 287 Pa.Super. 105, 429 A.2d 1121 (1981). The reviewing court reviewed the evidence as would a trial court in reviewing a motion in arrest of judgment following trial. This was improper, as the reviewing court in the instant case had the status of an appellate court when reviewing a conviction on writ of certiorari and therefore was bound by the appellate scope of review as set forth supra.

Finally, I join in the majority’s determination that on proper review of the evidence, both convictions must be sustained. Hence, I join in the result vacating the order of the court of common pleas and reinstating the Municipal Court judgment of sentence.

      . Pa.C.S.A. § 2504; 75 Pa.C.S. § 3731.

      . The Commonwealth may usually appeal from an adverse ruling in a criminal case, e.g., where a new trial is granted to a convicted defendant on the sole ground that the introduction of certain evidence at his trial was prejudicial error, Commonwealth v. Antonini, 165 Pa. Superior Ct. 501, 69 A.2d 436 (1949), or where an indictment has been quashed or judgment arrested after a verdict of guilty, Commonwealth

        v. Wallace, 114 Pa. 405, 6 A. 685 (1886), or where the defendant’s demurrer to the Commonwealth’s evidence has been sustained. Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328 (1961).

      . The Writ of Certiorari (hereinafter referred to as the Writ), is authorized as a mode of appeal from the Municipal Court in the City of Philadelphia by Section 26 of the Schedule to Article 5 of the Constitution of Pennsylvania.
      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 use of the Writ by those found guilty of summary offenses has been abolished, the Act which authorizes its issuance in misdemeanor convictions has not been abolished. Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 934.
      Furthermore, in Commonwealth v. Poindexter, 248 Pa. Superior Ct. 564, 375 A.2d 384 (1977) reversed on other grounds, 484 Pa. 472, 399 A.2d 390 (1979) this court assumed that since the writ was not expressly abolished by the Supreme Court in all cases, but only in summary cases, that the Philadelphia Court of Common Pleas retained the power to issue writs in non-summary cases. See also, Commonwealth v. McHarris, 246 Pa. Superior Ct. 488, 490 n. 5, 371 A.2d 941, 942 n. 5 (1977). The Supreme Court has never addressed this specific question directly, although in Commonwealth v. Anderson, 481 Pa. 292, 294 n. 1, 392 A.2d 1298, 1299 n. 1 (1978), the Supreme Court did note that the writ has been abolished in summary cases.

      . See Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (double jeopardy bars retrial if evidence is found to be insufficient); Commonwealth v. Wright, 449 Pa. 358, 296 A.2d 746 (1972) (Where it is determined that evidence is insufficient to sustain charge, trial court is mandated to discharge defendant and dismiss the case.)

      . Cf. Commonwealth v. Thinnes, 263 Pa. Superior Ct. 79, 397 A.2d 5 (1979). (court sustained demurrer, but entered not guilty verdict; Commonwealth could not appeal). See also Commonwealth v. Kerr, 150 Pa. Superior Ct. 598, 29 A.2d 340 (1942); and see Commonwealth v. Ray, 448 Pa. 307, 292 A.2d 410 (1972) (after declaring an ordinance unconstitutional, court entered not guilty verdict, from which Commonwealth could not appeal); Commonwealth v. Lodge No. 148 Loyal Order of Moose, 188 Pa. Superior Ct. 531, 149 A.2d 565 (1959) (where parties submit appeal from magistrate's judgment on stipulated facts, adjudication of not guilty by trial court may not be appealed by Commonwealth); but see, Commonwealth v. Davis, 247 Pa. Superior Ct. 450, 372 A.2d 912 (1977) (Commonwealth was permitted to appeal pre-trial order of court and finding by court that defendant was “not guilty”; no mention of "not guilty” appeared on docket, no evidence was presented, and order involved only a question of law).

      . We find appellee’s argument unpersuasive that the Court of Common Pleas acted within its jurisdiction in finding her not guilty while sitting as a reviewing court because of broad King’s Bench powers conferred on the Common Pleas court. On the contrary, a court of common pleas is not vested with the powers of the Justices of King’s Bench. Pa. Labor Relations Board v. Butz, 411 Pa. 360, 192 A.2d 707 (1963).

      . This court recently permitted the Commonwealth to appeal from a lower court's sua sponte post-verdict order changing verdicts of guilty to not guilty since an appellate reversal would result only in the reinstatement of the original verdicts of guilty. Commonwealth v. Parker, 305 Pa. Superior Ct. 516, 451 A.2d 767, 769 (1982). This court found that since the lower court exceeded its post-verdict authority, its order must be vacated.

      . In determining whether one charged with driving under the influence of liquor was in fact under the influence, it is proper for the fact-finder to consider the circumstances surrounding the accident. Commonwealth v. Long, 131 Pa. Superior Ct. 28, 198 A. 474 (1938) in Commonwealth v. Arizini, supra, 277 Pa.Super. at 45, 419 A.2d at 652.

      . Appellee testified in her defense that she had no recollection of the circumstances surrounding the accident. She did testify that she had been emotionally upset earlier in the evening as a male acquaintance terminated their relationship. Appellee also presented testimony by a psychiatrist who treated Dincel as having experienced acute hysterical neurosis because of the emotional upset.

      . Those cases holding that the Commonwealth may not appeal from an erroneously entered acquittal are distinguishable from the instant case. In those cases, it was the trial court who, having authority to enter an acquittal, did so improperly. See e.g. Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1979). In the instant case, the court of common pleas, sitting as an appellate court of review, did not have the authority to enter the not guilty verdict.

      . I agree with the majority that certiorari is an available method of appeal in the instant case. See Pa. Const.Sched. Art. 5, § 26; 42 Pa.C.S.A. §§ 932, 934. See also Commonwealth v. Poindexter, 248 Pa.Super. 564, 375 A.2d 384 (1977), rev’d on other gds., 484 Pa. 472, 399 A.2d 390 (1979).

      . 42 P.S. § 3006 was suspended by Pa.R.Crim.P. 159(e) as of January 1, 1974.


author: PRICE, Judge:

text:
    457 A.2d 1287
    Grace BULLOCK and Clifford Bullock v. Marilyn PARISER and Mildred Zurbin and Pennsylvania Insurance Guaranty Association and U.S. Fidelity & Guaranty Co. and Fireman’s Fund Insurance Company. Appeal of PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1981.
    Filed March 11, 1983.

      Joseph J. Hankins, Philadelphia, for appellant.
    Eugene Spector, Philadelphia, for Bullock, appellees.
    Lawrence R. Pierce, Philadelphia, for Pariser, appellee.
    Michael A. Etkin, Philadelphia, for Zurbin, et ah, appellees.
    Angelo L. Scaricamazza, Jr., Philadelphia, for U.S., appellee.
    Joel P. Fishbein, Philadelphia, for Fireman’s, appellee.
    Before PRICE, WIEAND and HOFFMAN, JJ.

       This Decision was reached prior to the death of Judge PRICE.

   PRICE, Judge:

On May 7, 1971, appellee, Grace Bullock, was bitten by a dog kept for security purposes on the premises at 646 South Sixteenth Street, Philadelphia, Pennsylvania. These premises were owned by appellees, Marilyn Pariser and Mildred Zurbin, who conducted a partnership at that address, known as “Kiddie Castle.”

At the time of the accident, the partnership was open and conducting business, and had in effect a liability insurance policy, issued by Penn State Mutual Insurance Company (“Penn Mutual”). This policy covered the partnership for liability arising out of the operation of the business to the extent of $10,000 per injury.

The partnership gave prompt and proper notice of the incident to Penn Mutual. Suit was instituted by Mrs. Bullock and her husband, Clifford Bullock, in December of 1971, against Mrs. Pariser and Mrs. Zurbin. After suit was instituted, Penn Mutual became defunct and the defense of the partnership was undertaken by counsel on behalf of appellant, the Pennsylvania Insurance Guaranty Association (“PIGA”).

When PIGA became involved in the suit, it investigated the possibility of the existence of other carriers which might have provided coverage for Mrs. Pariser’s or Mrs. Zurbin’s liability arising out of the dog-bite incident. Each woman apparently had a homeowner’s policy at the time, covering her own residence, Mrs. Pariser with appellee, Fireman’s Fund Insurance Company (“Fireman’s Fund”), and Mrs. Zurbin with appellee, U.S. Fidelity and Guaranty Company (“USFG”).

Fireman’s Fund and USFG were unable to admit or deny the existence of these homeowner’s policies, due to the passage of time between the incident in 1971 and their notification in 1977. However, both companies agreed that their policies, if in effect, would have contained an exclusion for

bodily injury or property damage arising out of business pursuits of any insured except activities therein which are ordinarily incident to non-business activities.

Neither Mrs. Pariser nor Mrs. Zurbin had notified her homeowner’s insurance carrier of the accident, as both believed that these policies would not cover claims arising out of the partnership business.

On June 30, 1977, a jury verdict was entered in favor of Mr. and Mrs. Bullock and against the partnership in the amount of $5,432.28. Subsequently, a praecipe for writ of execution in attachment was filed against PIGA, USFG, and Fireman’s Fund. An arbitration was held on the garnishment action, and on November 28, 1978, an award was entered in favor of the Bullocks, and against PIGA only, in the amount of $3,851.52. An award was also entered in favor of Fireman’s Fund and USFG.

Mr. and Mrs. Bullock appealed from the award of the arbitrators, and a non-jury trial was held in the Court of Common Pleas of Philadelphia County, before the late Honorable G. Fred DiBona. The case was tried on a stipulated statement of facts, and on May 9, 1979, Judge DiBona entered an opinion and an order directing entry of judgment for the Bullocks and against PIGA in the amount of $6,478.34. Bullock v. Pariser, 11 Pa.D & C 3d 77 (1979). PIGA filed exceptions to this order. Following the death of Judge DiBona, the case was reassigned to the Honorable Joseph P. Braig, and on April 23, 1980, Judge Braig entered an order confirming the written opinion of Judge DiBona in all respects, except that PIGA was permitted a $100 deductible as provided in § 201 of the Pennsylvania Insurance Guaranty Association Act, 40 P.S. § 1701.101 et seq. This appeal was then taken by PIGA.

PIGA raises three issues on appeal. First, appellant contends that the trial court erred in finding that coverage for the dog bite incident was excluded under the “business pursuits” provisions of the homeowner’s policies, and maintains that recovery from PIGA is barred by the Act because of failure to exhaust coverage under these homeowner’s policies. Secondly, appellant argues that PIGA has a statutory right to a setoff for payments made to Mrs. Bullock by her own disability carrier, and that the court below erred in finding that PIGA had waived any such right when it failed to raise this issue at the initial jury trial. Finally, appellant maintains that PIGA was incorrectly charged $150.00 in costs which, under the Philadelphia Rules of Civil Procedure, Mr. and Mrs. Bullock were obliged to pay for appeal of the arbitration award.

With the exception of the final allegation of error as to the arbitrators’ fees, we disagree with appellant’s contentions and affirm.

PIGA’s first two arguments are based upon § 503(a) of the Act, which provides:

Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall first be required to exhaust his right under such a policy. Any amount payable on a covered claim under this act shall be reduced by the amount of any recovery under such insurance policy.

The trial court assumed that if their homeowner’s policies covered Mrs. Bullock’s accident, Mrs. Pariser and Mrs. Zurbin would have been required to first seek coverage under these policies. The court found, however, that

As the liability in this case arose from a strictly business related endeavor, neither the homeowner’s policy issued by [Fireman’s Fund], nor that written by [USFG] provided coverage for the incident involved in this case.

Bullock v. Pariser, 11 Pa.D & C 3d 77, 82-83 (1979). We agree.

Appellant maintains that the partnership’s keeping of a security dog on its business premises falls within the exception stated in the “business pursuits” exclusion, as an activity ordinarily incident to non-business pursuits. While this court has not previously been called upon to interpret such a “business pursuits” exclusion in a homeowner’s insurance policy, identically worded exclusions in similar policies have been subject to considerable discussion in the courts of other states and by commentators. Although the exception for activities ordinarily incident to non-business pursuits has resulted in rather close cases in some situations, the instant case is not a difficult one.

Appellant argues that

The employment of a guard dog arises out of the occupation and possession of property, whether or not it is business property. The fact that the existence of the dog on the premises may assist in preserving business property is legally irrelevant because the business can operate profitably with or without a guard dog. Thus, the purchase and maintenance of a guard dog is not, itself, a business pursuit.

Appellant’s Br. at 22. We find this argument to be entirely unconvincing. The fact that a business might continue to make a profit in the absence of any number of activities conducted in furtherance of its interests does not prevent such activities from being “business pursuits.” For example, a retail store may- make a profit while employing only one salesperson, yet the hiring of a second salesperson is clearly a “business pursuit.”

The facts of this case are quite similar to those of several cases decided in other jurisdictions involving the application of the “business pursuits” exclusion to various gunshot injuries occurring during business activities. These cases have resulted in a finding of no coverage where the ostensible purpose for the gun’s presence at the business establishment was security. See Neal v. Celina Mut. Ins. Co., Ky.App., 522 S.W.2d 179 (1975); Safeco Insurance Co. v. Leslie, 276 Or. 221, 554 P.2d 469 (1976); Kermans v. Pendleton, 62 Mich.App. 576, 233 N.W.2d 658 (1975).

We are mindful that, as appellant notes, ambiguities in such insurance policies are to be resolved in favor of coverage. Frisch v. State Farm Fire and Casualty Co., 218 Pa.Superior Ct. 211, 275 A.2d 849 (1975). As to coverage for this incident, however, no ambiguity exists. The dog which attacked Mrs. Bullock was owned by the partnership and kept in the store for security purposes. Furthermore, the dog lived on the business premises at all times. Appellants advance no possible purpose for the presence of this dog other than the protection of the business property of the partnership. Therefore, the court below was clearly correct in holding that the “business pursuits” exclusion of the homeowner’s policies precluded coverage for Mrs. Bullock’s injuries.

In its second argument, PIGA contends that under § 503(a) of the Act, it is entitled to a setoff for the sum paid to Mrs. Bullock by her own disability insurer. The trial court held that if PIGA desired such a deduction it should have asserted this right at the jury trial so that a special verdict could have been returned by the jury. No motion was filed to mold the verdict, and, thus, it could not be determined what portion of the award, if any, was based on Mrs. Bullock’s disability. Therefore, the court found that PIGA had waived any right to setoff. Even if PIGA had not waived this issue, it would not be entitled to deduct the amount of this payment from the sum due to the Bullocks.

In Sands v. Pennsylvania Insurance Guaranty Association, 283 Pa.Superior Ct. 217, 423 A.2d 1224 (1980), this court addressed the question of when PIGA may be entitled to a setoff under § 503(a) of the Act. In that case, we noted that under the language of this section, an individual is not required to exhaust a claim unless it is “also a covered claim.” Referring to the definitional portion of the statute, we found that a “covered claim”

... means an unpaid claim, including a claim for unearned premiums, which arises under a property and casualty insurance policy of an insolvent insurer ...

40 P.S. § 1701.103(5)(a). (emphasis added). Sands, supra, 283 Pa.Superior at 224, 423 A.2d at 1227.

We determined that the second sentence of § 503(a), providing for the reduction of any amount payable under the Act “by the amount of any recovery under such insurance policy,” refers back to any recovery on a claim of the sort referred to in the first sentence of § 503(a), i.e. any “covered claim.” Sands, supra, 283 Pa.Superior at 225, 423 A.2d 1227-28. Mrs. Bullock’s recovery from her disability insurer was not a “covered claim”, because it did not result from the insolvency of any insurer. Therefore, § 503(a) does not apply.

This result is consonant with the purpose of the Act, which is, in relevant part, “... to avoid financial loss to claimants or policy holders as a result of the insolvency of an insurer.” 40 P.S. § 1701.102. The non-duplication of recovery provision of .§ 503 of the Act functions to prevent windfall judgments, such as might occur where, for example a tortfeasor’s insurance company becomes insolvent, and a claimant seeks recovery on his own uninsured motorist coverage, as well as from PIGA as successor to the insolvent insurer. In such a situation, absent the provisions of § 503, a claimant might obtain a much greater recovery than he would have received had the tortfeasor’s insurance company remained solvent. Such a double recovery would exceed the loss-prevention purposes of the Act. This is not the case here. Mrs. Bullock is in no better position than she would have been if Penn Mutual had remained solvent, and PIGA is not entitled to setoff.

Finally, Mr. and Mrs. Bullock concede that the judgment entered in their favor should be reduced by $150.00, which sum was incorrectly charged as a cost to PIGA for arbitrators’ fees in the garnishment proceeding. The inclusion of the $150.00 fee contravenes Phila.R.C.P. 180, Rule VII(A)(3), which states that such fees are not taxable as costs, and cannot be recovered by the appellants of an arbitration award (here, the Bullocks) in any proceeding.

The judgment for Mr. and Mrs. Bullock shall be reduced by the sum of $150.00 for arbitrators’ fees incorrectly taxed to appellant. The order is otherwise affirmed, and jurisdiction is not retained.

      . 40 P.S. § 1701.201(b)(1).

      . 40 P.S. 1701.503(a).

      . See generally 48 A.L.R.3d 1096; Frazier, The “Business Pursuits” Exclusion in Personal Liability Policies: What the Courts Have Done With It, 572 Ins.L.J. 519 (1970); Frazier, The Business Pursuits Exclusion Revisited, 649 Ins.L.J. 88 (1977).

      . Gunshot cases resulting in a finding of no-coverage name involved divergent fact patterns unrelated to the instant case. See, e.g. Jackson v. Lajaunie, La.App., 253 So.2d 540 (1971), affd. in part and revd. in part Jackson v. Lajaunie, La., 270 So.2d 859 (1972) (employee playing “practical joke” with gun, practical joke held not a “business pursuit”); Milwaukee Mutual Insurance Co. v. City of Minneapolis, 307 Minn. 301, 239 N.W.2d 472 (1976) (no coverage where policeman not yet on duty was showing service revolver to fellow officer when gun discharged; court implied result would have been different if officers were on duty at time of accident.)