author: KELLY, Judge:

text:
    650 A.2d 94
    The AETNA CASUALTY AND SURETY COMPANY, Appellee v. Jane ROE and John Roe, Anonymous Minor No. 1, Anonymous Minor No. 2, Anonymous Minor No. 3, Pamela Poe, James Doe and Jane Doe, Individually and T/A Breezy Point Day School and Breezy Point Day School, Inc. Appeal of Jane ROE and John Roe, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1994.
    Filed Nov. 16, 1994.

      Stuart M. Wilder, Doylestown, for appellants.
    Brian P. Sullivan, Plymouth Meeting, for appellee.
    Before CAVANAUGH, KELLY and BROSKY, JJ.
   KELLY, Judge:

In this appeal we must determine whether the trial court properly granted summary judgment in favor of appellee insurance company, Aetna [Casualty and Surety Company], pursuant to its declaratory judgment action against appellant-insureds, identified as “Jane Roe and John Roe”. Specifically, we must decide whether Aetna had a duty to defend the appellants in civil actions brought by third parties asserting claims of sexual, physical, and mental abuse, plus requests for compensatory and punitive damages under appellants’ comprehensive homeowner’s insurance policy, in view of that policy’s provision excluding coverage for bodily injury or property damage which is expected or intended by the insured. For the following reasons, we hold that the trial court properly granted summary judgment in favor of Aetna. Accordingly, we affirm.

The relevant facts and procedural history are as follows. The underlying actions against appellants, instituted by parents on behalf of themselves and their three minor children, alleged sexual, physical, and mental abuse by appellants, a teacher at Breezy Point Day School, and her husband, as well as another individual identified as “Pamela Poe,” also a teacher at Breezy Point Day School. The owners and operators of Breezy Point Day School are identified in this action as “James Doe and Jane Doe”.

The first complaint against appellants was filed on December 13, 1989, and amended with appellants’ consent on January 25, 1990. The second complaint was filed on December 18,1989, and amended with appellants’ consent on January 25, 1990. The third complaint was filed on December 19, 1989. The three complaints are essentially the same. In each complaint, plaintiffs are identified as parents and guardians of a minor child; defendants are identified, among others, as appellants herein. The minor plaintiffs were four-year old female students at Breezy Point Day School for an indicated period of time; and appellant-defendant, Jane Roe, was the minors’ teacher. The complaints aver that appellants sexually, physically, and mentally abused the minors during the course of the minors’ attendance at the school, on “diverse occasions,” and subjected the minors to demonic rituals in an effort to frighten them so they would not reveal what had happened to them. With the proviso “inter alia,” the three complaints allege specific acts of sexual, physical and mental abuse, including averments that the children were: forced to endure digital penetration of the vagina; forced to view and touch appellant-defendant Jane Roe’s breasts and pubic area; forced to consume drugs of unknown origin; forced to participate in rituals involving the slaughter of animals; forced to eat human feces and drink urine; forced to remain in a locked cage; forced to remain in a locked room; forced to take part in irresponsible and life threatening activities such as setting fires; forced into a bed with other children who were partially clothed; forced to play games during which children took off various items of clothing; forced to engage in sexual acts with other children; forced away from school grounds to engage in sexual acts in a hotel. Plaintiffs accused appellants of threatening the minors, by use of a knife, that if they told their parents what was happening, the minors would suffer various consequences and anything the children said would be heard by their teacher regardless of where the minors happened to be. Plaintiffs averred physical beatings occurred on “diverse occasions.” Each complaint made additional averments as follows:

As the result of defendants’ conduct, as set forth above, minor-plaintiff[s] [have] suffered severe mental and physical injury.
As a result of the defendants’ conduct, as set forth above, plaintiffs have been obliged to expend various and divers sums of money for treatment of the injuries sustained by minor-plaintiff[s], and will be obliged to continue to expend such sums for an indefinite time.
The conduct of the defendants as set forth above was outrageous and in wanton and reckless disregard of the rights of minor-plaintiff[s] for which plaintiffs claim an. additional sum for punitive damages.

The events underlying the complaints allegedly occurred in 1988 and 1989 at various locations, including the Breezy Point Day School and appellants’ home. Therefore, appellants requested that Aetna provide a defense and coverage under their homeowners insurance policy which was in effect during the relevant time period. The pertinent portions of the general liability policy provide:

Section II — Exclusions
1. Coverage E — Personal Liability and Coverage F — Medical Payments to Others do not apply to bodily injury or property damage:
a. which is expected or intended by the insured;
f. personal injury
sfc * * * * #
(2) which is caused by a violation of a penal law or ordinance committed by or with the knowledge or consent of any insured.

On August 14, 1990, Aetna filed a declaratory judgment action seeking a determination of the extent of Aetna’s duty to defend or indemnify appellants in the three underlying actions pending in the Bucks County Court of Common Pleas. Pursuant to the Declaratory Judgments Act, 42 Pa.C.S.A. § 7540, Aetna joined all of the parties to the underlying actions as parties-defendant to its declaratory judgment action.

On April 19, 1991, Aetna filed a motion for summary judgment which the trial court denied by order entered on May 30, 1991. All three underlying actions eventually terminated in Bucks County. One party dropped the case against appellants and paid appellants an undisclosed sum of money to settle appellants’ counterclaims. Appellants were awarded summary judgment on the other two cases. Aetna renewed its motion for summary judgment on December 17, 1993. The Honorable Isaac S. Garb granted Aetna’s motion for summary judgment and entered the declaratory judgment on March 11, 1994. This timely appeal followed.

Appellants raise the following issue for our review:

IS AN INSURER OBLIGATED TO DEFEND INSUREDS SUED FOR COMMITTING TORTIOUS ACTS IN THEIR HOME WHERE THE COMPLAINTS UNDERLYING THE LAWSUITS REQUEST PUNITIVE DAMAGES BUT DO NOT EXCLUDE LIABILITY OF THE INSUREDS BEING PREMISED UPON CONDUCT THAT IS NOT CRIMINAL NOR UPON INJURIES WHICH THE INSUREDS DID NOT INTEND?

Appellants’ Brief at 4.

The well-settled scope of appellate review for a grant of summary judgment states that summary judgment is properly granted where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b); Stidham v. Millvale Sportsmen’s Club, 421 Pa.Super. 548, 558, 618 A.2d 945, 950 (1992), appeal denied, 536 Pa. 630, 637 A.2d 290 (1993); Harford Mutual Insurance Co. v. Moorhead, 396 Pa.Super. 234, 237, 578 A.2d 492, 494 (1990), appeal denied, 527 Pa. 617, 590 A.2d 757 (1991). The trial court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Stidham v. Millvale Sportsmen’s Club, supra. The moving party’s evidence must clearly exclude any genuine issue of material fact. Id. We will reverse the trial court’s grant of summary judgment only if there has been an error of law or a clear abuse of discretion. Britamco Underwriters, Inc. v. Weiner, 431 Pa.Super. 276, 279, 636 A.2d 649, 651 (1994); McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988) (citations omitted).

The issue in this case involves the proper construction of an insurance policy which is resolved as a matter of law in a declaratory judgment action. 42 Pa.C.S.A. § 7533; Fisher v. Harleysville Insurance Co., 423 Pa.Super. 362, 621 A.2d 158 (1993), appeal denied, 536 Pa. 624, 637 A.2d 285 (1993); Heffernan & Co. v. Hartford Insurance Co., 418 Pa.Super. 326, 614 A.2d 295 (1992); Harleysville Mutual Insurance Co. v. Madison, 415 Pa.Super. 361, 609 A.2d 564 (1992); Germantown Insurance Co. v. Martin, 407 Pa.Super. 326, 595 A.2d 1172 (1991), appeal denied, 531 Pa. 646, 612 A.2d 985 (1992); Harford Mutual Insurance Co. v. Moorhead, supra. Applying these standards, we turn to appellants’ assertions.

Appellants maintain that the trial court erred in granting summary judgment in favor of Aetna because Aetna had a duty to defend appellants against those portions of the complaints which might be covered by appellants’ homeowner’s insurance policy. The trial court erred, appellants assert, in finding that the exclusionary provision of the policy excluded “intentional conduct” rather than “intentional injury.” In addition, appellants contend, the allegations in the underlying complaints did not claim criminal conduct as the sole basis for appellants’ liability and prayers for punitive damages did not necessarily relieve Aetna of its obligation to defend against claims for compensatory damages.

Relying on Stidham v. Millvale Sportsmen’s Club, supra, appellants propose that Aetna assumed the role of spectator throughout the resolution of the pleadings and ensuing pretrial proceedings which resulted in favor of appellants. Aetna was bound, appellants submit, to remain in the action until any ambiguity which arose from the use of the proviso “inter alia ” in the complaints was resolved. Moreover, appellants reason, Aetna’s duty to defend arose, as well, from the failure of the underlying complaints to specify what, if any, injury appellants actually caused. Appellants conclude that Aetna had a continued duty to defend because the underlying actions were decided in appellants’ favor. Aetna’s continued duty to provide for their defense, appellants urge, exposes Aetna to all defense costs which appellants incurred as a result of appellants having to seek private counsel. We disagree.

An insurer’s duty to defend is a distinct obligation, different from and broader than its duty to indemnify. Britamco Underwriters v. Weiner, supra, 431 Pa.Super. at 280, 636 A.2d at 651 (citations omitted); D’Auria v. Zurich Insurance Co., 352 Pa.Super. 231, 233, 507 A.2d 857, 859 (1986) (citations omitted). An insured has purchased not only the insurer’s duty to indemnify successful claims which fall within the policy’s coverage, but also protection against those groundless, false, or fraudulent claims regardless of the insurer’s ultimate liability to pay. D’Auria v. Zurich Insurance Co., supra at 234, 507 A.2d at 859 (citing Zeitz v. Zurich General Accident & Liability Insurance Co., 165 Pa.Super. 295, 67 A.2d 742 (1949)). Not all claims asserted against an insured, however, activate the insurer’s duty to defend. Id.

The insurer’s obligation to defend is fixed solely by the allegations in the underlying complaints. Stidham v. Millvale Sportsmen’s Club, supra, 421 Pa.Super. at 564, 618 A.2d at 953; Germantown Insurance Co. v. Martin, supra, 407 Pa.Super. at 331, 595 A.2d at 1174; Harford Mutual Insurance Co. v. Moorhead, supra, 396 Pa.Super. at 238-39, 578 A.2d at 494-95; United Services Auto Assoc. v. Elitzky, 358 Pa.Super. 362, 368, 517 A.2d 982, 985 (1986), appeal denied, 515 Pa. 600, 528 A.2d 957 (1987). “It is not the actual details of the injury, but the nature of the claim which determines whether the insurer is required to defend.” D’Auria v. Zurich Insurance Co., supra, 352 Pa.Super. at 234, 507 A.2d at 859 (quoting Springfield Township, et al. v. Indemnity Insurance Co. of North America, 361 Pa. 461, 64 A.2d 761 (1949)). The duty to defend is limited to only those claims covered by the policy. Id. at 235, 507 A.2d at 859 (citations omitted). The insurer is obligated to defend if the factual allegations of the complaint on its face comprehend an injury which is actually or potentially within the scope of the policy. American States Insurance Co. v. Maryland Casualty Co., 427 Pa.Super. 170, 183, 628 A.2d 880, 887 (1993) (citing, inter alia, Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959); Wilson v. Maryland Casualty Co., 377 Pa. 588, 105 A.2d 304 (1954)); Stidham v. Millvale Sportsmen’s Club, supra, 421 Pa.Super. at 564, 618 A.2d at 953.

Thus, the insurer owes a duty to defend if the complaint against the insured alleges facts which would bring the claim within the policy’s coverage if they were true. It does not matter if in reality the facts are completely groundless, false, or fraudulent. It is the face of the complaint and not the truth of the facts alleged therein which determines whether there is a duty to defend.

D’Auria v. Zurich Insurance Co., supra, 352 Pa.Super. at 235, 507 A.2d at 859.

Where a claim is potentially within the scope of an insurance policy, the insurer who refuses to defend at the outset does so at its own peril. Stidham v. Millvale Sportsmen’s Club, supra (citing Cadwallader v. New Amsterdam Casualty Co., supra.). In Stidham, we stated that [a] declaratory judgment action, though not specifically required by law, might resolve at the outset the question of an insurer’s duty to defend. Id. at 565, 618 A.2d at 954. The purpose of a declaratory judgment procedure is to furnish an expeditious remedy for the settlement of claims which indicate imminent and inevitable litigation and to provide practical help in settling controversies which could be determined more advantageously if settled promptly rather than at some future time when they would require adjudication. Eureka Casualty Co. v. Henderson, 371 Pa. 587, 592, 92 A.2d 551, 553 (1952) (citing the predecessor to 42 Pa.C.S.A. §§ 7531-7541). See also Geisinger Clinic v. Di Cuccio, 414 Pa.Super. 85, 104, 606 A.2d 509, 519 (1992), appeal denied, 536 Pa. 625, 637 A.2d 285 (1993) (purpose of awarding declaratory relief is to settle finally and make certain the legal status or rights of the parties); Doe v. Johns-Manville Corp., 324 Pa.Super. 469, 473, 471 A.2d 1252, 1254 (1984) (declaratory judgments are judicial searchlights switched on at the behest of a litigant to illuminate an existing legal right, status or other relation). In addition, a declaratory judgment action provides a forum for all persons asserting claims on the issue of coverage between the insured and the insurer. Stidham v. Millvale Sportsmen’s Club, supra; 42 Pa.C.S.A. § 7540.

Appellants’ proposition, that Aetna’s duty to defend them in the underlying proceedings was established by the favorable outcome of those proceedings, is without merit for the following reasons. First, in an action for declaratory judgment, Aetna’s duty to defend is determined solely by the nature of the claim on the face of the underlying complaints. Therefore, the course and outcome of the underlying litigation is irrelevant in this context. Second, contrary to appellants’ assertion, Aetna did not choose the role of spectator in the instant case. Rather, Aetna sought a judicial determination of its duty to defend. Third, in Stidham v. Millvale Sportsmen’s Club, supra, upon which appellants rely for this proposition, the insurer refused to defend and.later argued intentional injury based upon the insured’s guilty plea to third degree murder. Plus, in Stidham, supra, the insurer did not pursue a declaratory judgment action; it simply refused to defend. Accordingly, appellants’ proposition fails.

In order to determine whether Aetna had a duty to defend appellants, therefore, we must compare the terms of the homeowner’s policy with the nature of the allegations of the underlying complaints against appellants. We must then determine whether, if the allegations were true, Aetna might be obligated to provide coverage. See Britamco Underwriters, Inc. v. Weiner, supra, 431 Pa.Super. at 280, 636 A.2d at 651.

Appellants purchased Aetna’s general liability homeowner’s policy which provides limited payment for damages due to bodily injury or property damage covered under the policy, as well as a defense at Aetna’s expense. This broad declaration of coverage is limited, however, by an exclusionary provision which states, in relevant part, that the policy does not apply to personal liability and medical payments to others for bodily injury or property damage “which is expected or intended by the insured.” This Court has construed insurance policy provisions excluding coverage for “expected or intended injuries” in other disputes and, after a thorough exegesis of the “expected or intended harm” clause, this Court has held that these clauses are ambiguous as a matter of law and must be construed against the insurer. Stidham v. Millvale Sportsmen’s Club, supra, 421 Pa.Super. at 563, 618 A.2d at 953 (citing United Services Auto Assoc. v. Elitzky, supra, 358 Pa.Super. at 375, 517 A.2d at 989). See also Germantown Insurance Co. v. Martin, supra, 407 Pa.Super. at 332, 595 A.2d at 1172; Donegal Mutual Insurance Co. v. Ferrara, 380 Pa.Super. 588, 594, 552 A.2d 699, 702 (1989). In addition, this Court has held that the words “expected” and “intended” are synonymous when interpreting insurance exclusionary clauses. Stidham v. Millvale Sportsmen’s Club, supra. “[A]n insured intends as injury if [he/she] desired to cause the consequences of [his/her] act or if [he/she] acted knowing that such consequences were substantially certain to result.” Id.

Appellants proffer that Aetna had a duty to defend against the portions of the underlying complaints which fell within the policy. Appellants point to a paragraph in each complaint that purportedly alleges negligence and reckless conduct. After careful review of the record, we note that the paragraph in the underlying complaints alleging outrageous conduct in wanton and reckless disregard of minor-plaintiffs’ rights seeks punitive damages. As punitive damage allegations, these too are excluded from coverage as a matter of law. In Creed v. Allstate Insurance Co., 365 Pa.Super. 136, 529 A.2d 10 (1987), appeal denied, 517 Pa. 616, 538 A.2d 499 (1988), this Court explained, “an insurer owes no duty to indemnify an insured on an award of punitive damages. There is no functional distinction or difference between punitive damages which arise from intentional conduct or reckless conduct. It is the conduct that is being punished, not the victim that is being compensated.” Id. at 141-42, 529 A.2d at 12 (citations omitted). See also Pennbank v. St. Paul Fire and Marine Insurance Co., 669 F.Supp. 122, 125 (W.D.Pa.1987) (“public policy does not permit a tortfeasor who is personally guilty of wanton misconduct to shift the burden of punitive damages to his insurer” (quoting Esmond v. Liscio, 209 Pa.Super. 200, 224 A.2d 793 (1966)). Because Aetna owes a duty to defend against only those allegations that it would have to cover under the policy, and punitive damages are not recoverable under the policy as a matter of law, Aetna has no duty to defend against punitive damage allegations.

The prayers for punitive damages, appellants then assert, did not relieve Aetna of its obligation to provide a defense against the portions of the complaint requesting compensatory damages. We refuse to follow appellants’ rationale. Instead, we look first at the injuries, then the damages. The request for compensatory damages in the underlying complaints is based on such bodily injuries that are excluded from coverage as expected or intended by the insured.

Appellants also maintain that insurers are obligated to defend insureds even when the underlying complaints allege solely intentional conduct. We cannot agree. In support of this contention, appellants present three Pennsylvania cases (in order of their appearance in their brief): United Services Auto Assoc. v. Elitzky, supra; Britamco Underwriters, Inc. v. Weiner, supra; and Bracciale v. Nationwide Mutual First Insurance Co. (E.D.Pa. No. 92-7190, 1993 WL 323594 Unpublished Memorandum, August 20, 1993). After careful study, we conclude that these cases are readily distinguishable from the instant case.

First, appellants insist, United Services Auto Assoc. v. Elitzky, supra, is controlling on the issue of whether Aetna has a duty to provide a defense. Appellants proffer that “in Elitzky the insurer was obligated to provide a defense to the insureds, even though the complaints charged them with defamation, because the emotional distress alleged by the complaint may not have been intended by the volitionally made statements. 358 Pa.Super. at 377, 517 A.2d at 992.” Appellants’ Brief at 13. While this contention is true, it is only part of the inquiry. The underlying complaint in Elitzky clearly alleged that the Elitzkys’ failure to determine the accuracy of their letters was in utter and reckless disregard of its truth or falsity. Id. at 366, 517 A.2d at 984. The Elitzky Court reasoned, therefore, that the underlying plaintiff could have recovered on a defamation claim even if the Elitzkys thought their statements were true, if that belief was in reckless disregard to the truth. Id. at 375, 517 A.2d at 989. Thus, the Court concluded, the insurer had a duty to defend because the underlying plaintiffs complaint stated a cause of action which may have been covered by the Elitzkys’ insurance policy.

Similarly, the underlying complaint in Britamco Underwriters, Inc. v. Weiner, supra, contained specific allegations of negligence in addition to allegations of intentional harm. Id. at 278, 686 A.2d at 650. In the instant case, the underlying plaintiffs made no allegations of negligent or reckless behavior on the part of appellants. Therefore, these cases do not support appellants’ claim because the instant underlying complaints sound solely in the intentional torts of assault and battery.

In Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959), the Pennsylvania Supreme Court explained the case of Wilson v. Maryland Casualty Co., 377 Pa. 588, 105 A.2d 304 (1954) which is analogous in its application of the law. Referring to Wilson, supra, the Supreme Court stated:

[i]n that case this Court held that the insurance company was justified in not defending an action brought against the insured taproom owner by a patron for personal injuries because ... the patron had unequivocally alleged assault and battery ... in the original complaint, an offense clearly excluded under the terms of the policy. The majority held that the complaint ... revealed that the cause of action was based upon facts which did not come within the scope of the policy. We said that under no theory of law could the insured prevail against the insurance company because it would not be possible for the injured patron to recover on a claim of negligence when the suit was founded on the theory of intentional tort. Just as the pleading in that case fixed the insurer’s right, since neither amendment nor variance in proof could possibly establish a cause of action which would be cognizable under the insurance contract, so does [underlying plaintiffs] pleading fix the insured’s right in this case. In the Wilson case, supra, the complaint of the injured party alleged only an injury which clearly was not within the coverage of the insurance policy.

Cadwallader v. New Amsterdam Casualty Co., supra, 396 Pa. at 590-91, 152 A.2d at 488-89. Thus, Aetna is not obligated to defend appellants because the underlying complaints alleged the intentional harms of assault and battery.

Recently, the Third Circuit Court of Appeals stated that in certain cases a court can infer an actor’s intent as a matter of law from the nature and character of his or her acts. Wiley v. State Farm Fire and Casualty Co., 995 F.2d 457 (3rd Cir.1993). In its thorough review of current Pennsylvania law on the question of intent as well as a survey of the analyses applied in other jurisdictions in child abuse cases, the Court in Wiley noted that the inferred intent to harm is an irrebuttable presumption. Id. at 460 (citation omitted). The criminalization of child abuse additionally serves to place the insured on notice of the societal understanding that the harm from such conduct is inseparable from its performance. Id. at 464 (quotation omitted). The court concluded that “harm to children in sexual molestation cases is inherent in the very act of sexual assault committed on a child, regardless of the motivation for or nature of such assault, and that the resulting injuries are, as a matter of law, intentional.... ” Id. We agree. Thus, we adopt the inferred intent rule, as utilized by the Third Circuit Court in Wiley v. State Farm Fire and Casualty Co., supra, for liability insurance cases involving the sexual abuse of a child by an insured adult.

Appellants complain that nothing from the records of these cases allows the conclusion that the underlying plaintiffs had no intention of going beyond the generically described acts to exclude negligent or reckless conduct. Aetna should have chosen to defend, appellants posit, reserving the right to withdraw its representation and refuse indemnification once it became clear that coverage was not required. Citing Connor v. Allegheny General Hospital, 501 Pa. 306, 311 n. 3, 461 A.2d 600, 602 n. 3 (1983), appellants argue that Aetna then could have filed preliminary objections to the more open-ended allegations in an attempt to force the plaintiffs to comprehensively detail the allegations of wrongdoing and to catalogue the plaintiffs’ injuries. If, however, as appellants contend, the underlying complaints were open-ended, they too could have filed a preliminary objection in the nature of a request for a more specific pleading or they could have moved to strike any ambiguous portions of the underlying plaintiffs’ complaint. See Connor v. Allegheny General Hospital, supra. A careful review of the record reveals that appellants consented to the amendment of two of the complaints in the underlying actions. Appellants’ need for a “facially all-inclusive catalogue” .that “purports to be. a comprehensive list of the tortious acts alleged” and “injuries set forth comprehensively and in particularity” is misguided in this context. In an action for declaratory judgment, the court’s role is to look at which is included in the underlying complaint, not at what is excluded.

Furthermore, while it is true that amendments to pleadings are liberally allowed in Pennsylvania, an amendment may not introduce a new cause of action after the statute of limitations has run because to do so would unfairly prejudice the opposing party. Connor v. Allegheny General Hospital, supra, 501 Pa. at 310, 461 A.2d at 602 (citations omitted); Heffernan & Co. v. Hartford Insurance Co., 418 Pa.Super. 326, 332, 614 A.2d 295, 298 (1992); Frey v. Pennsylvania Electric Co., 414 Pa.Super. 535, 538, 607 A.2d 796, 797 (1992) (citations omitted); Pa.R.Civ.P. 1033, 42 Pa.C.S.A.

In determining whether a wholly different cause of action is introduced by the amendment, technical considerations or ancient formulae are not controlling; nothing more is meant than that the defendant shall not be required to answer a wholly different legal liability or obligation from that original stated ... The test is whether an attempt is made to state facts which give rise to a wholly distinct and different legal obligation against the defendant.

Frey v. Pennsylvania Electric Co., supra at 538-39, 607 A.2d at 797-98 (quoting Hodgen v. Summers, 382 Pa.Super. 348, 350-51, 555 A.2d 214, 215 (1989)).

We have held that tests for determining when an amended complaint presents a different cause of action, which is therefore barred, are: whether a judgment would foreclose any action on either; whether the same measure of damages supports both; whether the same defenses are available in each; and whether the same measure of proof is required.

Id. at 540, 607 A.2d at 798 (citing Hodgen v. Summers, supra). A new cause of action arises if, for example, the amendment proposes a different theory or a different kind of negligence than the one previously raised or if the operative facts supporting the claim are changed. Willett v. Evergreen Homes, Inc., 407 Pa.Super. 141, 150, 595 A.2d 164, 169 (1991) (quoting Daley v. John Wanamaker, 317 Pa.Super. 348, [359,] 464 A.2d 355, 361 (1983)); Junk v. East End Fire Dept., 262 Pa.Super. 473, 490, 396 A.2d 1269, 1277 (1978).

By the time the trial court entered summary judgment in favor of Aetna, in the present case, on March 11, 1994, any amendment to the underlying complaints seeking to add a claim of negligent or reckless conduct would introduce a new cause of action for which the operative statute of limitations had expired. Thus, any amendments to the underlying complaints alleging negligent acts or injuries would be time-barred. Moreover, after a thorough search of Pennsylvania case law, we conclude that no precedent exists for recovery in negligence for injuries suffered as a result of the commission by a tortfeasor of the intentional torts of assault and battery. To characterize as negligence the children’s physical and mental injuries alleged as a result of sexual, physical, and mental abuse would be to create a legal oxymoron as an extension of tort law we are not inclined to create. Thus, appellants’ argument merits no relief.

Citing Vale Chemical Co. v. Hartford Accident and Indemnity Co., 340 Pa.Super. 510, 518, 490 A.2d 896, 900 (1985), appellants correctly contend that while an insurer’s obligation to defend is fixed solely by the allegations in the underlying action, so long as the underlying action comprehends a single injury which may be within the scope of the policy, the insurer must defend the insured until the insurer is able to confine the claim to a recovery that the policy does not cover. Instantly, the underlying complaints allege sexual, physical, and mental abuse of three four-year-old females. We conclude that on their face, these complaints state no factual allegations to which appellants’ insurance policy actually or potentially applies. Therefore, Aetna had no duty to defend appellants in the underlying actions, and the trial court appropriately entered summary judgment in Aetna’s favor.

For the foregoing reasons, we hold that the trial court properly granted summary judgment in favor of Aetna in its action for declaratory judgment. Accordingly, we affirm.

Order affirmed.

      . The identity of the parties involved in the underlying actions is masked to protect the identity of the minor children and the appellants.

      . In response to complaints of child sexual abuse received from the parents of the three children, the Bucks County Children and Youth Services began an investigation into Breezy Point Day School on April 28, 1989. The Bucks County District Attorney’s Office assumed the investigation on October 25, 1989. In his report dated March, 1990, the district attorney concluded that there was no basis whatsoever to file criminal charges. The district attorney reported that the evidence produced over an eleven-month period indicated that the allegations of abuse are unfounded, without merit; and no credible evidence existed to support the allegations. Bucks County District Attorney’s Office Report — Investigation into Breezy Point Day School, March, 1990 at 3-4.

      . The summary judgments in appellants' favor were affirmed by this Court. (See Nos. 2931 and 2963 Philadelphia 1993, filed 6/8/94).

      . In D’Auria v. Zurich Insurance Co., supra, this Court stated, "The major difference between indemnity and duty to defend cases is that in the latter, the complaint is the sole guide to the facts.” Id. at 236, 507 A.2d at 860.

      . In Stidham, we stated that the insurer’s cavalier approach to the legal proceedings, based on its independent decision not to participate, was risky because the insurer had the opportunity to litigate the issue of the insured's intent [in a declaratory judgment action], Stidham v. Millvale Sportsmen’s Club, supra, 421 Pa.Super. at 567-68, 618 A.2d at 955.

      . Moreover, in Stidham, supra, we stated that a guilty plea in criminal proceedings cannot substitute for a declaratory judgment action because all indispensable parties were not involved in that proceeding. Id. at 565, 618 A.2d at 954 (citations omitted). Instantly, Aetna properly joined all of the parties to the underlying actions as parties-defendant to its action for declaratory judgment.

      . The Elitzky Court also distinguished intent from recklessness. This Court stated in pertinent part, "It is possible that the Elitzkys'recklessly disregarded the truth and libeled [underlying plaintiff] yet did so with pure hearts.” Id. 358 Pa.Super. at 375, 517 A.2d at 989. “They could have made this decision because of a belief that their actions would aid society. Resolving one’s doubts in favor of helping society is not the equivalent of intentionally harming someone.” Id. at 377, 517 A.2d at 990. This argument is untenable in a case involving the sexual, physical and mental abuse of a child.

      . In Britamco Underwriters, Inc. v. Weiner, supra, the underlying plaintiff filed a suit against the owners of a bar alleging that one of the co-owners as well as an employee of the bar struck the plaintiff in the neck. Plaintiff's "[c]omplaint asserted alternative theories of liability sounding in assault and battery, intentional, reckless and/or negligent infliction of emotional distress, and claims of negligence, generally.” Id. 431 Pa.Super. at 278, 636 A.2d at 650.

      . In Wiley v. State Farm Fire and Casualty Co., supra, the appellants, parents of the minor child, filed suit against Floyd Wiley, Jr. on behalf of their child following the entry of a guilty plea by Floyd to indecent assault and corrupting the morals of same minor child. The appellants sought to recover money damages for bodily harm resulting from their daughter’s molestation. The complaint also alleged negligent infliction of personal injury. Floyd sought defense of the civil action by State Farm under his homeowner's policy. State Farm agreed to defend subject to a reservation of rights to contest coverage on the ground that the insured’s conduct fell within the standard homeowner's policy coverage exclusion for bodily injury “intended or expected” by the insured. The parties stipulated to: Floyd’s culpability, the value of the appellants’ claim in the event that they should prevail, and the filing of a declaratory judgment action against State Farm to decide the applicability of the homeowner’s policy to the appellant's claim.
      Both State Farm and the appellants filed motions for summary judgment. The district court entered judgment in favor of State Farm. The appellants timely appealed.
      On review, the Third Circuit Court of Appeals concluded that the district court had properly entered summary judgment in favor of State Farm, reasoning that State Farm had established the existence of the intended harm exclusion in Floyd’s homeowner’s policy and his intent to harm the minor child as a matter of law through application of the inferred intent rule. Thus, the Court of Appeals affirmed the judgment of the district court.

      . But see Aetna Life and Casualty Co. v. Barthelemy, 33 F.3d 189 (M.D.Pa.1994) (declining to extend the inferred intent rule beyond the exceptional case of sexual child abuse by an insured adult).


source: Caselaw Access Project

author: CIRILLO, Judge: ROWLEY, Presiding Judge,

license: Public Domain

text:
    650 A.2d 104
    COMMONWEALTH of Pennsylvania v. Ricky A. TRIVITT, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1994.
    Filed Nov. 16, 1994.

      Samuel K. Gates, Hanover, for appellant.
    John W. Thompson, Jr., Asst. Dist. Atty., York, for Com., appellee.

      Before ROWLEY, P.J., and CIRILLO and DEL SOLE, JJ.
   CIRILLO, Judge:

Ricky A. Trivitt appeals from a judgment of sentence entered in the Court of Common Pleas of York County after his conviction of Driving Under the Influence of Alcohol (DUI), 75 Pa.C.S.A. § 3731(a)(4). We reverse.

On August 15, 1994 at 2:30 a.m., Trivitt’s vehicle was stopped at a sobriety checkpoint on Route 74 in York County. After conducting some routine questioning, Officer Joseph F. Bollinger asked Trivitt to step out of his car and perform three field sobriety tests. Trivitt failed all three tests. Trivitt subsequently consented to a blood alcohol test, which revealed a blood alcohol level of .15%. Consequently, Trivitt was charged with DUI.

Trivitt filed an omnibus pre-trial motion alleging that the roadblock conducted on August 14, 1992 through August 15, 1992 was unconstitutional and, therefore, any evidence obtained from the stop must be suppressed. Specifically, Trivitt questioned the constitutionality of the procedure by which the checkpoint was chosen. A hearing on Trivitt’s motion was held on March 24, 1993. The testimony at the hearing revealed the following. Corporal Mark Bentzel of the Northern York County Regional Police Department (NYCRP) was the supervisor of the DUI checkpoint in question. Corporal Bentzel was trained in sobriety checkpoints in 1991 and hád participated in two previous checkpoints.

Corporal Bentzel testified that Wayne Harper, Director of the Center for Highway Safety in York County, presented him with a few roadway locations from which to choose the site of the sobriety checkpoint. These areas, Corporal Bentzel stated, were chosen due to their high incidents of DUI accidents and DUI arrests. Corporal Bentzel found that the safest location in which to set up the checkpoint was the section of Route 74 between the city of York and Davidsburg Road. He opined that this area would reflect a higher incidence of DUI because of its “higher volume of traffic.” The location was approved by both the York County Center of Highway Safety and the NYCRP and, prior to August 14, 1992, the public was given general notice that a DUI checkpoint would be conducted at that site.

Mr. Harper, who also testified at the hearing, confirmed that he provided Corporal Bentzel with a sample of local roadways that were allegedly high in DUI incidents. Mr. Harper attested that the roadways he suggested were chosen based upon local DUI statistics available to him. Specifically, he indicated that his roadblock location suggestions were based on a five-year study conducted by the Bureau of Highway Safety and Traffic Engineering in the York County area. When asked whether the study served to narrow the areas of high DUI occurrences, Mr. Harper answered in the affirmative. He also indicated that the study revealed that the area in question was one of the fifteen highest in DUI incidents in York County.

On cross-examination, however, Mr. Harper was unable to answer the following questions: How many arrests were made on Route 74 in this area in 1991? How many DUI-related accidents occurred on this road in 1991? How may DUI arrests on this section of the road were made in 1992? How many accidents in 1992 were alcohol-related on this section of the road? Mr. Harper indicated that he did not have this information in front of him and, consequently, could not provide answers.

Based on the evidence adduced from the March 24, 1991 hearing, the trial court concluded that the sobriety checkpoint was constitutional. While no empirical evidence was submitted by the Commonwealth, the court nonetheless found that the decision regarding where to hold the DUI checkpoint was based on “local experience,” and, consequently, denied Trivitt’s pretrial motion. On May 17, 1993, Trivitt waived his right to a jury trial and stipulated to the Commonwealth’s evidence. The trial court subsequently found Trivitt guilty of DUI and sentenced him to serve thirty days to twenty-three months imprisonment, ordered him to pay a fíne of $500.00, and suspended his driver’s license for a period of one year. This appeal followed.

Trivitt raises two issues for our consideration:

(1) Whether the police checkpoint on August 14, 1992— August 15, 1992, based solely on the high traffic volume of the roadway, satisfies the objective requirement set forth in Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987)?
(2) Whether the Commonwealth is required to submit empirical data in order to sustain its burden of proof?

Trivitt does not dispute the fact that sobriety checkpoints, as long as they comply with certain guidelines, are permitted under the Pennsylvania Constitution. See Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987) (plurality); see also Commonwealth v. Blouse, 531 Pa. 167, 611 A.2d 1177 (1992). Here, Trivitt attacks the manner in which the roadblock location was chosen. In Tarbert, the Pennsylvania Supreme Court conducted a balancing test and concluded that the state’s interest in highway safety, based upon the high correlation between drunk driving and accidents, outweighed the inconvenience of a sobriety checkpoint stop. “In our view, a drunk-driver roadblock conducted substantially in compliance with the ... guidelines [set forth herein] would reduce the intrusiveness to a degree which, when balanced against the compelling public interest in apprehending such drivers, would not violate Article I, section 8 of the Pennsylvania Constitution.” Tarbert, 517 Pa. at 293, 535 A.2d at 1043 (emphasis added). See also Blouse, 531 Pa. at 171, 611 A.2d at 1179 (“The intrusion upon the individual is minimal where the roadblock is conducted in accordance with specific enumerated guidelines, eliminating the discretion that is problematic in random traffic stops.”).

As the language in Tarbert suggests, in order to sustain constitutional muster, a sobriety checkpoint must be conducted in substantial compliance with particular guidelines.

First, the very decision to hold a drunk-driver roadblock, as well as the decision as to its time and place, should be matters reserved for prior administrative approval, thus removing the determination of those matters from the discretion of police officers in the field. In this connection it is essential that the route selected for the roadblock be one which, based on local experience, is likely to be travelled by intoxicated drivers. The time of the roadblock should be governed by the same consideration. Additionally, the question of which vehicles to stop at the roadblock should not be left to the unfettered discretion of police officers at the scene, but instead should be in accordance with objective standards prefixed by administrative decision.

Id. (emphasis added). See Blouse, 531 Pa. at 173, 611 A.2d at 1180 (“We now adopt the guidelines set forth in Tarbert, because they achieve the goal of assuring that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field.”).

Trivitt asserts that the Commonwealth failed to present evidence of DUI occurrences or DUI-related accidents on Route 74 sufficient to meet the aforementioned guidelines. We must determine, therefore, whether the Commonwealth has met its burden in substantially complying with the constitutional guidelines established in Tarbert

In determining whether the roadblock in question was conducted in substantial compliance with the Tarbert directives, and thus, in a constitutionally acceptable manner under Article I, Section 8 of the Pennsylvania Constitution, it is necessary to consider the rather scant collection of case law applying these guidelines. In each of the following cases, Blouse, supra, Commonwealth v. Myrtetus, 397 Pa.Super. 299, 580 A.2d 42 (1990), and Commonwealth v. Fioretti; 371 Pa.Super. 535, 538 A.2d 570 (1988), it was determined that the roadblocks at issue met the constitutional requirements set forth in Tarbert. The primary focus of these cases was not, like here, on the manner in which the roadblock location was selected. In compliance with the requisite directives, however, all three decisions set forth a basis for how the checkpoint’s location was determined. See Blouse, 531 Pa. at 173, 611 A.2d at 1180 (“The decision where to place the roadblock was based on the large number of license, equipment and inspection violations which were detected during evening hours while carrying out other routine stops.”); Myrtetus, 397 Pa.Super. at 305, 580 A.2d at 45 (“The Chief testified that he had selected the particular location ... of the roadblock based upon a statistical review of prior DUI incidents and times and places of DUI occurrences.”);. Fioretti, 371 Pa.Super. at 535, 538 A.2d at 577 (“[T]he location of the roadblock was chosen based on a statistical analysis of which district had the highest number of driving under the influence arrests or accidents....”).

It appears clear from the case law that local statistical data may provide a sufficient basis for. the requirement that “the route selected ... [is] one which, based on local experience, is likely to be travelled by intoxicated drivers.” Tarbert, 517 Pa. at 293, 535 A.2d at 1043. What is not clear from the relevant case law, however, is the actual quantum/nature of testimony needed regarding the statistical figures/data in order to pass constitutional scrutiny. We have now been presented with the opportunity to clarify that portion of the guidelines relating to the selection of a roadblock location.

It was a balancing of interests approach that prompted the Pennsylvania Supreme Court to conclude that systematic, nondiscriminatory, non-arbitrary roadblocks are constitutional. Tarbert, supra. While we acknowledge the rationale that the compelling interest here (protecting our citizens from intoxicated drivers) outweighs the privacy interests of the individual, it is essential that the intrusion on the individual be minimal. In “reluctantly” recognizing the constitutionality of these systematic roadblocks, Justice Papadakos announced the following concerns:

My reluctance arises from a concern over the manner in which the police will comport themselves with the traveling public while conducting roadblocks. The traveling public may have to yield to this type of minimal intrusion in the balancing of interests approach. But the public has a right to be free from abusive intrusion.... I will closely watch the scene with the assurance that the police will conduct themselves in a courteous, professional manner as is usually their wont.... For the most part in these roadblocks, the police will be dealing with law-abiding citizens and not wanted felons.

Blouse, 531 Pa. at 174, 611 A.2d at 1181 (Justice Papadakos, concurring).

As recognized by Justice Papadakos, the issue here is of constitutional magnitude regarding the protection from unreasonable searches and seizures; this is more than an evidentiary issue. To ensure that the intrusion upon the traveling public remains minimal, we cannot accept the general testimony elicited at Trivitt’s hearing as proof of “substantial compliance” with the guidelines enunciated in Tarbert. At the very least, an individual testifying as to the likelihood of a roadblock location being travelled by drunk drivers must be equipped with information sufficient to specify the number of DUI-related arrests and/or accidents within the relevant time period. Mr. Harper was not able to testify as such; his baldfaced, general testimony will not suffice for the purpose of satisfying the Tarbert guidelines. Against the backdrop of the constitutional concerns, we deem it essential that any data, reports, or statistics relied upon in determining the location of a roadblock must be introduced into evidence and made part of the record. Otherwise, any testimony relying upon such information shall be deemed inadmissible hearsay.

It is well established that hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Commonwealth v. Bujanowski, 418 Pa.Super. 163, 166, 613 A.2d 1227 (1992); Commonwealth v. Darden, 311 Pa.Super. 170, 175, 457 A.2d 549, 551 (1983). A statement may be defined as an oral or written communication. See Commonwealth ex rel. Buchakjian v. Buchakjian, 301 Pa.Super. 213, 218, 447 A.2d 617, 620 (1982). Generally, hearsay is inadmissible as evidence because the competency and veracity of the original speaker (or writing) are not subject to examination. Commonwealth v. Underwood, 347 Pa.Super. 256, 259, 500 A.2d 820, 822 (1985). The underlying rationale for the hearsay rule is that hearsay is too untrustworthy to be considered by the trier of fact. Bujanowski, 418 Pa.Super. at 167, 613 A.2d at 1229. “The principle reason for excluding hearsay is the danger that the declarant’s credibility cannot be assessed.” Bujanowski 418 Pa.Super. at 166-68, 613 A.2d at 1229 (quoting Commonwealth v. Sanders, 260 Pa.Super. 358, 366, 394 A.2d 591, 595 (1978)). By analogy, consistent with the foregoing authority is the general rule that an expert may not state a conclusion which is based on evidence not in the record. Commonwealth v. Chambers, 528 Pa. 558, 576-78, 599 A.2d 630, 639 (1991); Commonwealth v. Thomas, 444 Pa. 436, 443-45, 282 A.2d 693, 698 (1971).

Mr. Harper’s testimony was clearly based upon an out-of-court statement offered to prove the truth of the matter asserted; the accuracy of his testimony could not be verified absent the statistical information being introduced into evidence. We, therefore, find such testimony to be inadmissible hearsay. Thus, the roadblock in question was not chosen in such a manner as to substantially comply with Tarbert.

Judgment of sentence reversed. Jurisdiction relinquished.

DEL SOLE, J., concurs in the result.

ROWLEY, P.J., files a dissenting statement.

ROWLEY, Presiding Judge,

dissenting.

I respectfully dissent. In my opinion, the record in this case discloses that, (1) the selection of the location of the sobriety checkpoint was made in substantial compliance with the guidelines set forth in Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987), (2) the location of the checkpoint was not unreasonable, (3) none of the concerns expressed by Mr. Justice Papadakos in Commonwealth v. Blouse, 531 Pa. 167, 611 A.2d 1177 (1992) are present, and (4) there is no evidence that remotely suggests that any intrusiveness to the traveling public at the location selected was anything other than minimal. For the foregoing reasons, I would affirm the judgment of sentence.

      . Appellant Trivitt mislabels his appeal as taken from the Order dated May 5, 1993, denying the suppression motion contained in his omnibus pre-trial motion. The notice of appeal indicates that this appeal is taken from the judgment of sentence imposed upon Trivitt on May 7, 1993. The record reflects, however, that the judgment of sentence was entered on May 17, 1993. We will consider this appeal, therefore, as taken from the May 17, 1993 judgment of sentence. See Pa.R.A.P. 905(a).

      . We point out that the trial court, in its opinion, concluded: "Although this Court finds that the Commonwealth did sustain [its] burden, it should be noted that the burden was sustained minimally." Trial court opinion at 6 (emphasis added).

      . Article I, section 8 of the Pennsylvania Constitution provides:
      § 8. Security from searches and seizures

        The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
      Pa. Const. Art. I, § 8.

      . In response to Trivitt’s first issue, Corporal Bentzel's testimony regarding the roadblock location's high traffic volume is certainly not, in and of itself, sufficient to meet the Tarbert guidelines, which require the selected location to "likely ... be travelled by intoxicated drivers.” Importantly, however, we must consider the hearing testimony in its entirety in determining whether the Commonwealth has met its burden under Tarbert. To this end, it is necessary to also examine and evaluate Mr. Harper’s testimony which, at least arguably, goes beyond the location’s high traffic volume.

      . While Mr. Harper was not qualified as an expert in the traditional sense, in Pennsylvania, a liberal standard for the qualification of an expert prevails. Generally, "if a witness has any reasonable pretension to specialized knowledge on the subject matter under investigation he may testify and the weight to be given to his evidence is for the [fact finder]." Commonwealth v. Gonzalez, 519 Pa. 116, 128, 546 A.2d 26, 31 (1988).


author: HOFFMAN, Judge:

text:
    650 A.2d 108
    COMMONWEALTH of Pennsylvania v. Wilda SOTO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 8, 1994.
    Filed Nov. 17, 1994.

      Ronnie L. Creazzo, Easton, for appellant.
    Martricia, McLaughlin, Asst. Dist. Atty., Easton, for the Com., appellee.
    Before HUDOCK, SAYLOR and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from judgment of sentence entered June 3, 1994, stemming from appellant’s conviction for falsely incriminating another. Appellant, Wilda Soto, presents the following issues for our review:

I. Whether the court erred in denying appellant’s demurrer at the close of the Commonwealth’s case in chief?
II. Whether the Court erred in granting the Commonwealth’s motion to amend the indictment in contravention to [Pa.R.Crim.P.] 220?
III. Whether the Court erred in denying appellant’s motion in limine to exclude evidence obtained in violation of the knock and announce rule?
IV. Whether the Court erred during the charge to the jury by failing to conform the charge to the elements of the crime and by failing to conform the charge to Pa. S.S.J.I.Crim. 15.4906A?
V. Whether the evidence was insufficient to sustain the verdict of the jury, whether the verdict is contrary to the law and weight of the evidence and as a matter of law was there reasonable doubt as to the appellant’s guilt when there was no evidence that the appellant gave false information with the intent to deceive law enforcement authorities to suspect someone else to have committed a criminal offence?

See Appellant’s Brief at 3. For the following reasons, we reverse.

The facts as set forth by the trial court are as follows:

This matter arose out of an attempt by the Northampton County Sheriffs Department to execute a bench warrant. On January 18, 1993,. two deputy Sheriffs went to an apartment ... in order to serve a bench warrant on Wilda Soto____ They subsequently encountered [appellant] who denied being Wilda Soto and claimed to be Marisol Rodriguez, the babysitter [sic]. It was later determined that [appellant] was, in fact, Wilda Soto.

Trial Court Opinion filed 6/3/94 at 1.

Appellant was subsequently arrested and charged with falsely incriminating another. On January 11, 1994, after a jury trial, appellant was found guilty of the one charge. On February 4, 1994, the trial court sentenced appellant to pay court costs, to undergo a probationary period of nine months, and to perform ten hours of community service. Appellant’s motion for judgment of acquittal and a new trial was denied on June 3, 1994. This timely appeal followed.

Appellant contends that the trial court erred in denying her demurrer at the close of the Commonwealth’s case in chief. As the Commonwealth failed to present evidence to establish the necessary elements of the crime charged, we agree.

When ruling on a defendant’s demurrer, the test is whether the Commonwealth’s evidence and all reasonable inferences arising therefrom are insufficient to support a finding that the defendant was guilty beyond a reasonable doubt. See Commonwealth v. Petrie, 277 Pa.Super. 239, 243, 419 A.2d 750, 753 (1980) (to avoid demurrer in criminal prosecution, Commonwealth must come forward with evidence which establishes beyond reasonable doubt each element of crime charged).

In the instant case, appellant was charged with falsely incriminating another. The four elements, which the Commonwealth must establish, to prove this crime are as follows: (1) the defendant must have made the statement to a law enforcement officer; (2) the defendant’s statement must be false; (3) the defendant must know the statement is false; and (4) the defendant must intend to implicate another. 18 Pa. C.S. § 4906(a).

Here, while the Commonwealth established the first three elements, they failed to present evidence which would establish the fourth element, intention to implicate another. The Commonwealth does not specifically allege that appellant led the officers to suspect Rodriguez had committed a crime. Nor do the facts or circumstances present in this case lead to a reasonable inference that appellant intended to implicate another. Falsely identifying oneself is not the same as intentionally implicating another individual. Cf. Commonwealth v. Long, 10 D & C 4th 252 (1989). Accordingly, for the above reasons, we reverse.

Reversed.

      . 18 Pa.C.S. § 4906(a).

      . Initially, appellant was also charged with flight to avoid apprehension, trial or punishment. 18 Pa.C.S. § 5126(a). This charge was subsequently discharged. ,

      . We note the 1993 Amendment to Pa.R.Crim.P. 1124 substitutes the term "motion for judgment of acquittal” for demurrer, but the comment to the amendment explains that the inadvertent use of the word "demurrer” is tolerated.

      . Because of our disposition of this issue, we need not address the remaining issues.


author: TAMILIA, Judge:

text:
    650 A.2d 110
    James Hal WHITE, v. Mary Dippolito WHITE, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1994.
    Filed Nov. 18, 1994.

      Barbara J. Shah, Bethel Park, for appellant.
    Richard J. Catalano, Pittsburgh, for appellee.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

Mary -Dippolito White appeals from the December 10, 1993 Order denying her petition to relocate, along with minor son Brandon, to the state of California.

The parties were married in 1982, Brandon was born in 1985 and the parties separated in 1990 when appellant and son moved from the Allegheny County marital residence to Irwin, Westmoreland County. In the summer of 1991, after appellee rebuffed her attempt to reconcile, appellant informed appellee of her desire to move to California so as to be closer to her family and improve her quality of life. Father opposed relocation and, in July, 1991, obtained a restraining Order prohibiting the move. After a hearing during which the court entertained testimony from both parties, their respective families and the court-appointed psychologist Dr. Stephen Sehachner, the court denied mother’s petition and directed, inter alia, should mother relocate, temporary custody would be granted to father pending resolution of his suit for primary custody. The Order also directed both parties to obtain counseling for parenting skills and appellee to seek counseling for substance abuse.

Mother raises four issues for this Court’s consideration, beginning with the argument the court erred by refusing to allow testimony about father’s non-payment of support. Appellant contends this testimony was relevant in that it impacted upon father’s fitness as a custodial parent and precipitated mother’s planned move to California.

A trial judge has broad powers concerning the conduct of a trial and particularly with regard to the admission or exclusion of evidence. Smith v. Brooks, 394 Pa.Super. 327, 575 A.2d 926 (1990). In reviewing a trial court’s decision to admit or exclude proffered testimony, this Court will reverse only if there has been an abuse of discretion or an error of law. Id.

Mother argued father’s alleged failure to pay child support immediately following the 1990 separation was one of the reasons she chose to move to California and therefore was relevant to the relocation proceedings. The court, however, refused to allow the testimony reasoning a parent’s ability to care for a child must be determined at the time of the hearing, in this case December, 1993, and a parent’s prior negative behavior should be considered only if there is an on-going negative effect on the child. See Hall v. Mason, 316 Pa.Super. 160, 462 A.2d 843 (1983); see also Bresnock v. Bresnock, 346 Pa.Super. 563, 500 A.2d 91 (1984). We agree with the trial court and find appellant has failed to meet her burden of establishing the proffered testimony was relevant to the issue at hand. The trial court properly stated the petition before it was one requesting relocation, and not one addressing support. Moreover, we note, nowhere in the record is there a copy of the support Order or documentation from the family division support section of the monthly amount paid or the accumulation of alleged arrearages. Further, we view this allegation with suspicion, in light of appellee’s alleged arrearages, since no contempt Order had been sought. Because there is no support for appellant’s argument father flouted the legal system by being delinquent in his support payments, appellant’s boilerplate charge, premised on Bresnock, supra, does not permit the unsubstantiated allegation to be admissible as evidence. Also, contrary to appellant’s present averment her move was financially motivated in an effort to secure otherwise unavailable free day-care, necessitated by father’s failure to remain current in support, appellant readily admitted gratis day-care by Brandon’s paternal extended family existed from the time the child was an infant. Finally, the court noted appellant, who holds a 1989 business/psychology degree from the University of Pittsburgh, made the economic decision not to attempt to secure local employment in her field, but rather to leave an assistant manager position with Firestone in order to waitress six days a week at a local restaurant. It is arguable any financial duress endured by appellant is self-imposed. The court’s decision to disallow testimony regarding alleged support arrearages was proper.

Next, appellant argues the court abused its discretion by over-emphasizing Brandon’s relationship with appellee’s family, while down-playing or ignoring father’s “tangential role” in Brandon’s life. This argument is part and parcel of appellant’s general contention the court’s decision to deny mother’s request for relocation was not in Brandon’s best interests.

In Pennsylvania, custody and visitation matters are decided on the basis of the “best interests of the child” standard, considering all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Lee v. Fontine, 406 Pa.Super. 487, 594 A.2d 724 (1991). In every relocation dispute it is necessary for the court to consider the following interests and make the appropriate accommodations:

the custodial parent’s desire to exercise autonomy over the basic decisions that will directly affect his or her life and that of the children; a child’s strong interest in maintaining and developing a meaningful relationship with the noncustodial parent; the interest of the non-custodial parent in sharing in the love and rearing of his or her children; and, finally, the state’s interest in protecting the best interests of the children.

Kaneski v. Kaneski, 413 Pa.Super. 173, 604 A.2d 1075 (1992), quoting Gruber v. Gruber, 400 Pa.Super. 174, 184, 583 A.2d 434, 438-439 (1990). The factors which are to be considered by a trial court when deciding whether a custodial parent and child may relocate at a geographical distance from the noncustodial parent are:

1. The potential advantages of the proposed move, economic or otherwise, and the likelihood the move would improve substantially the quality of life for the custodial parent and the children and is not the result of a monetary whim on the part of the custodial parent;
2. The integrity of the motives of both the custodial and noncustodial parent in either seeking the move or seeking to prevent it; and
3. The availability of realistic, substitute visitation arrangements which will foster adequately an ongoing relationship between the child and the noncustodial parent.

Id., quoting Gruber, supra at 184-185, 583 A.2d at 439.

In making its decision, the court relied heavily on the testimony of Dr. Schachner, the court-appointed psychologist who interviewed all parties concerned. It was Schachner’s opinion appellant had not carefully thought-out or planned her move to California, and had too little concern for the disruptive effect the move would have on Brandon’s young life, a large portion of which had been spent in the care of appellee and his extended family. Schachner believed although it would be beneficial for Brandon to spend time with appellant’s family in California, those benefits would be outweighed by then 8íé year old Brandon’s angst regarding abandonment and loss of contact with appellee. The court found Schachner’s testimony thorough and persuasive. The court also found, based on mother’s testimony, she had not adequately demonstrated her and Brandon’s quality of life would improve by relocating to California.

There appears to be no definitive reason for the mother’s intention to remove the child to California, save to be in the company of her mother or sibs. There are no health nor career reasons to separate this child from his current family life. Brandon is thriving, and enjoying, to the best of his ability, the time spent with all his family. Any interruption of »this plan should have as a basis some reason that is more compelling than mother’s personal desire to live in California.

(Psychological Evaluation, Stephen P. Schachner, Ph.D., 2/15/93, p. 7.) The court noted mother had not secured employment in California and had failed to aggressively pursue employment commensurate with her education in the Pittsburgh area. As to appellee’s relationship with Brandon, Schachner found, as did the trial court, father and son enjoyed “a meaningful relationship that would suffer greatly” should mother relocate. (Slip Op., Baldwin, J., 4/21/94, p. 9.) Brandon’s positive, on-going relationship with father’s parents, grandparents and sister, as well as his relationship with his maternal grandmother, aunt and uncle, each of whom, since 1989, have resided in California, weighed in the court’s decision but were not paramount. Father’s motive in opposing relocation was not found to be retaliatory or spiteful. To the contrary, the record established father’s objection to the move stemmed from his concern for Brandon and their relationship. Based on our review of the record, we find the trial court neither abused its discretion nor committed an error of law by deciding it was in Brandon’s best interests to refuse mother’s request to relocate.

Lastly, appellant argues that portion of the court’s Order awarding temporary custody of Brandon to appellee should appellant decide to relocate was not in Brandon’s best interests. We address this issue bearing in mind the aforestated standard of review with regard to custody and visitation.

While considering as a factor Schachner’s concern over awarding primary custody to father, the court likewise weighed all evidence and testimony of record, found it to be in Brandon’s best interests to remain in Pittsburgh, and tailored an Order to achieve this end while taking care to address those weaknesses found in each party. The complete Order reads:

AND NOW, to wit, this 10th day of December 1993, it is hereby ORDERED that Mother’s Petition to Relocate is denied. If Mother chooses to relocate, temporary custody of the child is granted to Father with suitable partial custody arrangements made for Mother pending the outcome of the custody proceeding. If Mother does not relocate, the temporary custody order of September 18, 1991, is to remain in effect. Father is to immediately register for and participate in counseling for both substance abuse and parenting skills, Father is to continue attending AA meetings. Mother is also to participate in counseling for parenting skills.

We can only find, without supporting argument to the contrary, the court properly exercised its discretion in fashioning this Order.

Order affirmed.


text:
    650 A.2d 444
    COMMONWEALTH of Pennsylvania, v. James Earl KLINGENSMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 28, 1994.
    Filed Oct. 26, 1994.

      Mark LeSchack, Indiana, for appellant.
    Michael Handler, Dist. Atty., Indiana, for Com., appellee.
    Before POPOVICH, SAYLOR and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the April 12, 1993 judgment of sentence for driving under the influence of alcohol, driving with suspended operating privileges and driving without a registration plate. Appellant, James Earl Klingensmith, presents three issues for our review:

I. Was appellant arrested for the offense of driving while under the influence of alcohol without probable cause?
II. Should the intoxilizer results be suppressed because appellant was not given his Miranda rights or his implied consent obligation under Pennsylvania law?
III. Was defendant subject to an illegal sentence of one year, one hundred and eighty days to two years for the offenses of driving under the influence and driving while under suspension [sic]?

Appellant’s Brief at 1. For the following reasons, we affirm.

On September 20, 1992, police stopped appellant’s vehicle because it did not have a registration plate. After observing that appellant had blood-shot, glassy eyes and detecting a strong alcoholic odor on his breath, police gave appellant two field sobriety tests. When appellant failed the tests, he was placed under arrest for driving under the influence and taken to the Pennsylvania State Police Barracks for an intoxilizer test. This test indicated that appellant’s blood alcohol level was 0.21. On the following day, appellant was charged with driving under the influence, driving with a suspended license and operating a vehicle without a registration plate.

On February 22, 1993, a jury convicted appellant of driving under the influence of alcohol. Post-trial motions were filed and subsequently denied. On April 12, 1993, appellant was sentenced to one (1) to two (2) years imprisonment and fined three hundred dollars for driving under the influence of alcohol and sentenced to ninety days and fined one thousand dollars for driving with a suspended license. The sentences were to run consecutively. This timely appeal followed.

First, appellant claims that the police did not have probable cause to arrest him for driving under the influence. We disagree.

The Motor Vehicle Code provides in pertinent part:

Whenever a police officer is engaged in a systematic program of checking motor vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle____

75 Pa.C.S. § 6308. Here, the police validly stopped appellant when the police observed that he was driving a car -without a registration plate. See 75 Pa.C.S. § 1332(a) (“Every registration plate shall, at all times, be securely fastened to the vehicle' to which it is assigned”); 75 Pa.C.S. § 6308. During this stop, police observed that appellant’s eyes were blood shot and that he smelled of alcohol. As the police suspected that appellant had been driving under the influence, the police performed field sobriety tests. Appellant’s subsequent failure of these tests gave the police probable cause to arrest appellant for driving under the influence of alcohol. See Commonwealth v. McElroy, 428 Pa.Super. 69, 81, 630 A.2d 35, 41-42 (1993) (en banc) (upholding arrest of defendant for driving under the influence when he failed field sobriety test). Therefore, appellant’s argument is meritless.

Appellant next contends that the intoxilizer results should have been suppressed because appellant had not received his Miranda warnings. We disagree.

In Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993), alloc. denied, 537 Pa. 638, 644 A.2d 161 (1994), this Court held that persons arrested for operating motor vehicles while under the influence of alcohol need not be given Miranda warnings before being asked to submit to testing for blood alcohol content. Bowser, 425 Pa.Super. at 35, 624 A.2d at 131. Therefore, appellant was not entitled to receive Miranda warnings.

Appellant also contends that the intoxilizer results should have been suppressed because appellant had not received an implied consent warning. We disagree.

When police arrest an individual for driving under the influence of alcohol and request the person to submit to a chemical test for alcoholic content in the blood, the implied consent provision of the Motor Vehicle Code (“MVC”) requires police to instruct the arrestee that if he refuses to take this test, his operating privilege will be suspended. Commonwealth v. Eisenhmt, 531 Pa. 103, 107, 611 A.2d 681, 683 (1992). In the instant case, the arresting police officer testified that he tried to inform appellant of the MVC’s implied consent provision, but appellant stopped him. Appellant told the officer that he had been arrested five times for DUI, that he knew the implied consent warning and that he consented to the test. In addition, the record is bereft of any evidence that appellant refused to take the intoxilizer test at the time it was administered. See Eisenhmt, 531 Pa. at 107, 611 A.2d at 683 (results of intoxilizer test are allowed, if valid implied or express consent is given, unless affirmative showing of defendant’s refusal to consent to test at time it was administered). Therefore, the record supports the trial court’s decision to allow into evidence the intoxilizer test results. See Commonwealth v. Swinson, 426 Pa.Super. 167, 174, 626 A.2d 627, 630 (1993) (“It is ... exclusively the province of the suppression court to determine the credibility of witnesses and the weight to be accorded to their testimony.”) (quoting Commonwealth v. Brinkley, 423 Pa.Super. 289, 291, 620 A.2d 1226, 1227 (1993), alloc. denied, 631 A.2d 1003 (1993)).

Finally, appellant challenges the legality of his sentence.

Appellant first argues that his sentence was illegal as he received a minimum sentence of one year imprisonment for driving under the influence of alcohol. We disagree.

Section 3731(e) of the Motor Vehicle Code provides:

Any person violating any of the provisions of [the Driving under influence of alcohol section] is guilty of a misdemean- or of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(iv) Not less than one year if the person has three times previously been convicted of ... an offense under this section ... within the previous seven years.

75 Pa.C.S. § 3731(e) (emphasis added).

In the instant case, appellant was arrested for driving under the influence of alcohol on September 20, 1992. He had previously been convicted of driving under the influence of alcohol on September 4, 1990; September 5, 1990; and June 23, 1992. These three convictions were within seven years of the date of the present offense, and thus, the trial court properly sentenced appellant to a minimum term of one year imprisonment on the instant charge.

Appellant next claims that his sentence was illegal as his minimum sentence was in excess of 50% of his maximum sentence. We disagree.

Section 9756(b) of the Sentencing Code provides:

[A] court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.

42 Pa.C.S. § 9756(b). Here, appellant received consecutive sentences of one to two years imprisonment for driving under the influence of alcohol and ninety days imprisonment for driving with a suspended license. Appellant argues that he therefore received an aggregated sentence of one year and ninety-days to two years and ninety-days. See Commonwealth v. Ford-Bey, 404 Pa.Super. 281, 285, 590 A.2d 782, 784 (1991) (mandating automatic aggregation of sentences when trial court imposes consecutive prison sentences). The Commonwealth, however, asserts that Section 1543(b) of the Motor Vehicle Code implicitly creates an exception to 42 Pa.C.S. § 9756(b) by permitting a sentencing court to impose a ninety day mandatory sentence for the charge of driving with a suspended license.

Where two statutory sections arguably cover the same matter and appear to be inconsistent, the specific provision will prevail over the general provision. 1 Pa.C.S. § 1933; Olshansky v. Montgomery County Election Bd., 488 Pa. 365, 370, 412 A.2d 552, 554 (1980). Statutes designed to establish proper procedures for sentencing all defendants who commit crimes are general provisions. Commonwealth v. Smith, 375 Pa.Super. 419, 428, 544 A.2d 991, 995 (1988).

As 42 Pa.C.S. § 9756(b) applies to the sentencing of all crimes, it is a general provision. In contrast, 75 Pa.C.S. § 1543(b) implicitly creates an exception to 42 Pa.C.S. § 9756(b) by specifically authorizing a trial court to impose a flat minimum mandatory sentence of ninety days for driving with a suspended license when the license was suspended as a result of a prior DUI conviction. Cf. Pennsylvania v. Bell, 537 Pa. 558, 645 A.2d 211 (1994) (sentencing defendant under 18 Pa.C.S. § 7508 fell within exception to 42 Pa.C.S. § 9756(b) maximum-minimum rule). Therefore, as appellant was convicted of this offense, the trial court was entitled to impose a flat ninety day sentence. See Commonwealth v. Hill, 379 Pa.Super. 34, 45, 549 A.2d 583, 588 (1988) (upholding constitutionality of ninety day sentence given under 75 Pa. § 1543(b)), alloc. denied, 521 Pa. 618, 557 A.2d 721 (1989); Commonwealth v. Hoover, 343 Pa.Super. 372, 494 A.2d 1131 (1985) (upholding constitutionality of mandatory minimum sentence under 75 Pa. § 1543(b)). Moreover, 42 Pa.C.S. § 9721 provides:

In determining the sentence to be imposed the court shall ... consider and select one or more of the following alternatives, and may impose them consecutively or concurrently:
(4) Total confinement....

42 Pa.C.S. § 9721. Therefore, the trial court had discretion to impose consecutive sentences for these charges. See Com monwealth v. Levine, 366 Pa.Super. 467, 471, 531 A.2d 513, 514-15 (1987) (within discretion of trial court to impose consecutive sentences). Accordingly, we affirm appellant’s sentence.

Affirmed.

      . 75 Pa.C.S. § 3731.

      . 75 Pa.C.S. § 1543(b).

      . 75 Pa.C.S. § 1332.

      . In addition, the trial court found appellant guilty of the latter summary offenses.

      . Appellant was also fined twenty five dollars for driving a vehicle without displaying a registration plate.

      . We note that after appellant filed this appeal, he filed a petition for post conviction relief on the driving under the influence charge. The trial court correctly dismissed this petition as premature.

      . This section states as follows:
      (b) Certain offenses. — Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced ... to undergo imprisonment for a period of not less than 90 days.
      75 Pa.C.S. § 1543(b).

      . We note that the legislature clearly intended that 75 Pa.C.S. § 1543(b) would invoke harsher penalties for repeat driving offenders, and would be frustrated if the trial court was required to impose concurrent sentences in this case. See Commonwealth v. Harner, 533 Pa. 14, 20, 617 A.2d 702, 705 (1992) ("When language of a statute is clear and unambiguous, it must be given effect in accordance with its plain and common meaning.”)


author: OLSZEWSKI, Judge:

text:
    650 A.2d 448
    COMMONWEALTH of Pennsylvania v. Danny DANCY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 29, 1994.
    Filed Nov. 15, 1994.

      Joseph P. Burt, Erie, for appellant.
    Anna Firestone, Asst. Dist. Atty., Erie, for the Com., appellee.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   OLSZEWSKI, Judge:

This matter comes before us on appeal from judgment of sentence for Delivery of a Non-Controlled Substance, Possession of Drug Paraphernalia, Theft by Deception, Criminal Conspiracy to Deliver a Non-Controlled Substance, and Loitering in Aid of Drug Offenses. Appellant, Danny Dancy, was convicted in a jury trial following his arrest for participating in the sale of “crack” cocaine to undercover police agents. Dancy’s motion for a new trial and/or arrest of judgment was denied by the trial court, and Dancy filed a timely appeal to this Court.

City of Erie Police Officer Lester Fetterman is a member of the Erie County Mobile Drug Task Force. On April 20, 1993, Officer Fetterman, driving in an unmarked vehicle, personally observed what appeared to be a number of narcotics transactions in the 17th and German Street area. One such suspected transaction involved Dancy and another man, Willie Jones, waving at passing cars and approaching the vehicles as they pulled over.

Using this information, Officer Fetterman planned a “buy bust” operation, where he and another task force member, Officer Greene, would drive an unmarked van into the 17th and German Street area. A contingent of uniformed police officers would be concealed in the back of the van. If the van was “flagged down” by a street dealer, the undercover officers would attempt to negotiate a purchase of crack cocaine.

Shortly after 2:00 A.M., the van reached the 17th and German Street area and Officer Fetterman noticed Dancy and Willie Jones waving at him. Officer Fetterman pulled over to the curb and was approached by Dancy. According to the testimony given by Officer Fetterman, Dancy asked the officers, “What do you need?” Officer Fetterman responded, “I’m looking for a rock. Can you get me one for $20.00?” Officer Fetterman then testified that Dancy responded, “Yeah,” and called Jones over to the van.

According to testimony from all of the officers involved, both Dancy and Jones proceeded to negotiate with Officer Fetterman and Officer Greene as to the quantity and price of the “rocks” to be purchased. The negotiations concluded with the undercover officers agreeing to purchase two “rocks” for $20.00. When Jones handed the “rocks” to Officer Fetterman, the uniformed officers jumped from the back of the van and arrested Dancy and Jones.

The two men were searched pursuant to the arrest. A pill vial with three more “rocks” in it was found on Jones, and a tool for smoking crack cocaine called a “crack pipe” was found on Dancy. Later tests revealed that while actual cocaine residue was found on the crack pipe, the “rocks” contained no evidence of cocaine, nor of any other controlled substance. Dancy was charged, inter alia, with delivery of a non-controlled substance.

Dancy’s first argument is that the evidence put forth by the Commonwealth is insufficient to prove him guilty of delivery of a non-controlled substance. The test for reviewing sufficiency of the evidence on appeal from conviction is “whether viewing the evidence in the light most favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt.” Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 538-539 (1979). The crime of delivery of a non-controlled substance involves passing off a counterfeit substance as a controlled substance. See 35 P.S. § 780-113(a)(35)(ii). Dancy asserts that the evidence is insufficient to prove that crack cocaine is a controlled substance within the meaning of the statute and that the substance he delivered is similar enough to crack cocaine to be a counterfeit.

There is no merit to Dancy’s first contention that crack cocaine is not a controlled substance within the meaning of the statute. A controlled substance is defined in section 780-102(b) as any substance listed in Schedules I-V of the statute. 35 P.S. § 780-102(b). Schedule II lists “[c]oea leaves and any' salt, compound, derivative, or preparation of coca leaves ...” 35 P.S. § 780-104(2)(i)(4). Cocaine is a natural derivative of coca leaves, so it comes within this provision of Schedule II. See, e.g., Commonwealth v. Slyman, 334 Pa.Super. 415, 423, 483 A.2d 519, 523 (1984).

While crack cocaine is not specifically listed and is not naturally derived from coca leaves, it is a synthetic form of cocaine and within the scope of Schedule II. In Commonwealth v. Slyman, this Court held that Schedule II is not to be read narrowly so as to only include naturally derived products of coca leaves. 334 Pa.Super. at 424, 483 A.2d at 524. The primary basis for the decision was the language of Schedule II, which states that all of the listed substances are prohibited “whether produced directly or indirectly, by extraction from substances of vegetable origin or independently by means of chemical synthesis.... ” 35 P.S. § 780-104(2)(i). Therefore, the sweep of the statute is sufficiently broad to include synthetically produced forms of cocaine.

Crack cocaine is essentially a solidified form of natural powder cocaine. It is a mixture of cocaine in its powdered form, baking soda, and water which is cooked up into a hard substance. N.T., 11/9/93, p. 12. The mixture of the powder with baking soda and water to enable it to solidify does not alter its basic ingredient: cocaine. As a synthetic form of cocaine, it is classified under Schedule II. Therefore, the testimony on the chemical composition of crack cocaine was sufficient to establish that it is a specific controlled substance within the meaning of the statute.

Dancy next asserts that the evidence is insufficient to prove the substance sold to Officer Fetterman is substantially similar enough to crack cocaine to be a counterfeit. The statute sets out five factors to be considered in evaluating whether a substance is a counterfeit substance:

A) Whether the noncontrolled substance in its overall finished dosage appearance is substantially similar in size, shape, color, and markings or lack thereof to a specific controlled substance.
B) Whether the noncontrolled substance in its finished dosage form is packaged in a container which, or the labeling of which, bears markings or printed material substantially similar to that accompanying or containing a specific controlled substance.
C) Whether the noncontrolled substance is packaged in a manner ordinarily used for the illegal delivery of a controlled substance.
D) Whether the consideration tendered in exchange for the noncontrolled substance substantially exceeds the reasonable value of the substance, considering the actual chemical composition of the substance and, where applicable, the price at which the over-the-counter substances of like chemical composition sell.
E) Whether the consideration tendered in exchange for the noncontrolled substance approximates or exceeds the price at which the substance would sell upon illegal delivery were it actually the specific controlled substance that it physically resembles.

35 P.S. § 780-113(35)(ii)(A-E).

The first factor addresses the appearance of the counterfeit substance. It must be substantially similar in size, shape, color, and marking to a controlled substance. In the present case, Officer Fetterman testified that his experience with the drug task force has made him familiar with the size, shape, form, general color, and overall appearance of crack cocaine. He further testified that the “rocks” that he purchased from Dancy and Jones looked “exactly like crack cocaine.” He specifically stated that the size, shape, and form of the substance was just like that of crack cocaine.

The next two factors deal with the packaging of the counterfeit substance. These factors basically ask whether the counterfeit substance was in a container similar to the kind used to carry the controlled substance. Officer Fetterman testified that the “rocks” he purchased were carried in a pill vial. While stating that crack cocaine is not packaged consistently in any one kind of container, Officer Fetterman did note that it is often carried in pill vials, Tic Tac containers, and Lifesaver hole containers. Therefore, the Commonwealth has introduced sufficient evidence to prove that the substance in this case was packaged in a manner consistent with the custom for the controlled substance.

The last two factors address the price of the counterfeit substance. These factors examine whether the selling price of the counterfeit substance exceeds its own true value and approximates the value of the look-alike controlled substance. Officer Fetterman testified that he and Officer Greene paid $20.00 for the 575 milligrams of white substance in the shape of the two “rocks”. Based on his experience, Officer Fetter-man stated that this price is consistent with the prevailing market price of crack cocaine. It is also likely that the price exceeds the true value of the counterfeit substance, which in cases of crack cocaine is usually small chips of wax, soap, aspirin, or baking soda and water.

Dancy’s argument that crack cocaine is not sufficiently generic to be counterfeited is without merit. It is irrelevant that crack cocaine comes in a variety of shapes, colors, and sizes. Many illicit drugs come in such variety as an unavoidable consequence of their being produced and sold illegally. The only relevant question is whether the counterfeit substance is in a shape, color, and size that is similar enough to the controlled substance so that it can effectively be passed off as the controlled substance. This question has been answered in the affirmative in this case by the testimony of the officers. Therefore, sufficient evidence has been produced to support the verdict on the count of delivery of a non-controlled substance.

Dancy’s next claim is that the evidence is insufficient to convict him of criminal conspiracy to deliver a non-controlled substance. In order to prove the existence of a conspiracy, the Commonwealth must show an agreement or common design to commit an unlawful act. Commonwealth v. Carter, 329 Pa.Super. 490, 498, 478 A.2d 1286, 1290 (1984); Commonwealth v. Olds, 322 Pa.Super. 442, 447, 469 A.2d 1072, 1075 (1983); 18 Pa.C.S.A. § 903. This agreement can be proven by either direct evidence or by circumstantial evidence, such as the conduct of the parties. Carter, 329 Pa.Super. at 498, 478 A.2d at 1290; Commonwealth v. Kennedy, 499 Pa. 389, 395, 453 A.2d 927, 930 (1982); Commonwealth v. Davis, 312 Pa.Super. 85, 89, 458 A.2d 248, 250 (1983); Commonwealth v. Davenport, 307 Pa.Super. 102, 107, 452 A.2d 1058, 1061 (1982). Mere presence at the scene of the crime, however, is not enough. Id. The Commonwealth must show that the accused was an active participant in the criminal enterprise. Id.

Dancy contends that he was merely present during the “buy bust” and did not actively participate in any part of the deal. In Commonwealth v. Stephens, the Court reversed the conspiracy conviction of a man accused of conspiracy to sell marijuana. 231 Pa.Super. 481, 331 A.2d 719 (1974). The accused was standing near his alleged co-conspirator when the sale was made to undercover agents. The accused sat mute and unresponsive throughout the deal and did not assist or aid the seller in any way. On these facts, this Court held that no reasonable inference could be drawn that the accused conspired to sell marijuana. Id. at 489, 331 A.2d at 723.

Dancy was not such a passive bystander. Officer Fetterman’s testimony at trial shows that appellant was the first to approach the van, that he signaled for Willie Jones after hearing that the officers were looking for “rocks” (which he admitted that he understood to be crack cocaine), that he actively participated in the representations of the “rocks” as crack, and that he actively participated in the negotiations over quantity and price. Dancy did not stand by mute and unresponsive, as was the case in Stephens. This testimony was presented to the jury and is sufficient to support the verdict for conspiracy to deliver a non-controlled substance.

Dancy’s final argument is that both the delivery and the conspiracy convictions were against the weight of the evidence. The scope of appellate review in this area is very narrow. E.g., Commonwealth v. Hlatky, 426 Pa.Super. 66, 75, 626 A.2d 575, 580 (1993). If we are to find that a verdict is against the weight of the evidence, it must be clear from the trial court record that the verdict shocks our sense of justice. Id. If the fact finder is presented with conflicting evidence, he or she is free to believe all, part of, or none of the evidence presented. Id.

In the present case, Dancy’s trial testimony differed markedly from the testimony of Officer Fetterman and the other officers involved in the operation. The finder of fact chose to believe the testimony of the officers, which has already been discussed. This credibility judgment is fully within the province of the fact finder. While Dancy is correct that a verdict may never be based on surmise or conjecture, the mere existence of conflicting evidence does not mean that the fact finder resorted to speculation. Id. Here, there is ample testimony from the officers to find Dancy guilty. The fact finder believed that testimony and it is not for us to disturb that judgment.

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(35)(ii).

      . 35 P.S. § 780-113(a)(32).

      . 18 Pa.C.S.A. § 3922.

      . 18 Pa.C.S.A. § 903.

      . City of Erie, Ordinance 737.

      . In this case, the counterfeit substance was never specifically identified. N.T., 11/9/93 at 30. The lab report only specified that it did not contain any controlled substance. N.T., 11/9/93 at 16.

      . In Commonwealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111 (1991), this Court affirmed its right and duty to review a trial court’s refusal to grant a new trial on the basis that the verdict is against the weight of the evidence. Contra, Murray, concurring and dissenting opinion by Olszewski, J. (appellate review of weight of the evidence challenges is at variance with the fact finding province of the jury and not properly the subject of appellate review).