author: KELLY, Judge:

text:
    598 A.2d 568
    COMMONWEALTH of Pennsylvania, Appellant, v. Christine JACKSON, Appellee.
    Superior Court of Pennsylvania.
    Argued May 15, 1991.
    Decided Oct. 11, 1991.

      George S. Leone, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Joseph C. Santaguida, Philadelphia, for appellee.
    Before McEWEN, KELLY, and FORD ELLIOTT, JJ.
   KELLY, Judge:

In this Opinion we are called upon to determine the appealability of discovery orders and sanctions in criminal cases as well as the requisite offer of proof by the defense necessary for the Commonwealth to produce a confidential informant who was not an eyewitness but a tipster to the crimes charged to the defendant. We find that the Commonwealth is not obligated to file a permissive appeal from an order to produce a confidential informant in order to achieve appellate review of a subsequent discovery sanction. Furthermore, we find, in the instant case, the Commonwealth did not have to produce the confidential informant who was a tipster. For these reasons, we reverse and remand the order entered January 25, 1990, which discharged appellee, Christine Jackson.

The facts and procedural history may be summarized as follows. On December 16, 1988, at approximately 10:00 p.m., members of the Philadelphia Police executed a search warrant of the third floor apartment at 5647 Chester Avenue, Philadelphia, Pennsylvania. The apartment was a two bedroom apartment. Christine Jackson and her child were in the apartment during the execution of the search warrant. In the rear bedroom, a large plastic ice chest was discovered. The ice chest contained approximately forty-one (41) clear plastic bags, each of which contained forty (40) clear plastic vials filled with crack cocaine, as well as fourteen (14) clear bags, each of which contained approximately twenty (20) plastic packets filled with cocaine. The total number of vials was approximately 1,680, the total number of packets was 297, and the total weight of cocaine/crack was approximately 200 grams. The police also found various drug paraphernalia, including three scales, two heat sealers, and numerous empty plastic bags and vials in the rear bedroom and kitchen. A 12-gauge pump-action sawed-off shot gun, a .38 calibre handgun and a 9mm handgun were also discovered in the apartment. In addition to the weapons, the drugs and the drug paraphernalia, proof of residency, i.e., a telephone bill, an electric bill and a lease, all of which named appellee, Christine Jackson, were confiscated.

On September 6, 1989, the defense made an oral motion to suppress which focused on the entry and execution of the warrant and the sufficiency of the warrant. After a hearing during which two of the police officers who executed the warrant, Officer Gary Carpenter and Officer Philip Riehl, and appellee, Christine Jackson, testified, the motion to suppress was denied.

The defense, thereafter, made a discovery request pursuant to Pa.R.Crim.P. 305. Defense requested the name of the confidential informant who provided information for the search warrant. The search warrant, after listing four successful drug arrests upon information supplied by the confidential informant, stated the following:

On 12-15-88 the informant again provided information on a location 5647 Chester Ave 3rd floor apt. that they package and store drugs there mainly Cocaine he states that he knows this because he worked there for a couple of days and was paid $200.00 a day, he also stated that there is always drugs in the apt. He said he had worked for a b/m name John and 1 named Len.

Search Warrant, dated 12/16/88; reproduced record at 143a. Defense attorney argued to the trial court that the confidential informant must be produced for he or she could possibly provide exculpatory testimony.

Judge, they have a search warrant. In the body of the search warrant the informant says, “I go to this location, the people who sell drugs out of this location are A and B.” That’s not my client.
Why shouldn’t I have the names under Brady? That’s information that’s beneficial to the defendant. I should be able to know who those informants are so that I can bring them in and say, “Is this the girl who sold you the drugs, is this the girl who possessed the drugs in this house with the intent to distribute?”
“No, it’s not, Your Honor.” Why shouldn’t I have those names?

N.T. 12/12/89 at 4. The hearing on defense’s discovery motion was continued until the following day to permit the trial court time to reflect on the research presented by the defense and the Commonwealth.

On December 13, 1989, the defense argued that the confidential informant must be produced because he or she did not mention Christine Jackson to the police. The defense maintained that the confidential informant’s testimony was material in that the confidential informant stated that he or she worked for two black men, John and Len, but did not reference Christine Jackson. The Commonwealth countered that the confidential informant could not provide anything material to the defense. The trial court found in favor of the defense and ordered the Commonwealth to produce the confidential informant for an in camera meeting with the trial court alone without counsel present. The trial court with counsel scheduled a date, January 12, 1990, to determine whether the Commonwealth would take an appeal and, if not, to schedule an in camera meeting between the trial court and the confidential informant(s).

On January 25, 1990, the trial court met with both counsel. The Commonwealth argued that the confidential informant could not provide anything that would be admissible or relevant to the issue of “whether at the time the police officers executed the warrant the defendant constructively possessed the narcotics that were recovered.” N.T. 1/25/90 at 3. The Commonwealth decided not to produce the informant as directed, “because to do so would be to put him in great jeopardy for his safety in a circumstance where we [the Commonwealth] feel that we’re legally correct in that his appearance here is not required.” Id., at 3. The defense counsel made a motion to have the case dismissed. After discussing and dismissing the possibility of entering a less drastic sanction to the Commonwealth’s discovery violation, the trial court granted the motion and discharged Christine Jackson. On February 23, 1990, the Commonwealth filed this appeal. The Commonwealth raises the following two issues for our consideration.

1. Does this Court have jurisdiction to review the underlying merits of the lower court’s order discharging defendant as a sanction for an alleged discovery violation?
2. Is defendant entitled to condition trial on the disclosure of the identity of a confidential informant who was not an eyewitness to the crime, where defendant has not shown that the informant’s testimony would be exculpatory, necessary, or in the interest of justice?

Appellant-Commonwealth’s Brief at 3.

The Commonwealth first contends that the instant appeal is properly before this Court. The appellee, Christine Jackson, counters that the Commonwealth’s failure to take an interlocutory appeal pursuant to Pa.R.A.P. 1311 from the December 13, 1989 order, which granted her motion to produce the confidential informant pursuant to Pa.R.Crim.P. 305, results in a waiver of the Commonwealth’s appellate rights and the instant appeal must be quashed. The trial court, in its Pa.R.A.P. 1925(a) opinion, also espouses the appellee’s position that the Commonwealth’s failure to file a timely permissive appeal regarding the discovery order waived any appellate ruling. The trial court, the Commonwealth, the appellee, all cite Commonwealth v. Iannaccio, 505 Pa. 414, 480 A.2d 966 (1984) (plurality) cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985) and Commonwealth v. Redmond, 395 Pa.Super. 286, 577 A.2d 547 (1990) allocatur granted 526 Pa. 632, 584 A.2d 315 (1991) as supportive authority for their respective positions.

In Commonwealth v. Iannaccio, supra, the trial court entered an order directing the Commonwealth to produce the confidential informant for an in camera hearing. The Commonwealth appealed pursuant to Pa.R.A.P. 1311. This Court reversed and defendant filed an appeal to our Supreme Court which, being equally divided, affirmed this Court’s decision to reverse the trial court’s order. In its opinion, the Pennsylvania Supreme Court criticized this Court for characterizing the order as a suppression matter when it was more properly treated as a discovery proceeding pursuant to Pa.R.Crim.P. 305. See Commonwealth v. Redmond, supra, 577 A.2d at 550.

In Commonwealth v. Redmond, supra, the Commonwealth filed an appeal from two orders: a September 30, 1988 order directing the Commonwealth to produce the confidential informant and an October 25, 1988 order precluding the Commonwealth’s witness from testifying as a sanction for the Commonwealth’s failure to produce the confidential informant. This Court held that it had no jurisdiction to hear the appeal from the September 30, 1988 order because the Commonwealth failed to file a permissive appeal pursuant to Pa.R.A.P. 1311. Id. However, the appeal from the October 25, 1988 order was properly before this Court and, as a result, the merits underlying the September 30, 1988 order had to be considered in determining the propriéty of the October 25, 1988 order. Commonwealth v. Redmond, supra, 577 A.2d at 551.

Instantly, the trial court and the appellee, Christine Jackson, cite these two cases as support for the position that the Commonwealth waived appellate review of the merits underlying the January 25, 1990 order, discharging the appellee by its failure to file a permissive appeal from the December 13, 1989 order directing the Commonwealth to produce the confidential informant. We do not agree.

A careful reading of both Commonwealth v. Iannaccio, supra, and Commonwealth v. Redmond, supra, fails to support the position espoused by the trial court and appellee. Neither opinions set forth a hard and fast rule that a permissive appeal pursuant to Pa.R.A.P. 1311 must be taken from a discovery order so as to preserve the merits of a subsequent appeal from a final order. Both opinions discuss permissive appeals. In Commonwealth v. Iannaccio, supra, the Commonwealth appealed pursuant to Pa.R.A.P. 1311. The Supreme Court, while responding to the appeal, did not hold that a permissive appeal was the only correct procedure to gain review of a discovery order. In Commonwealth v. Redmond, supra, the Commonwealth filed an appeal from two orders, the September 30, 1988 order directing production of the confidential informant and the October 25, 1988 order entering the sanction. This Court found that September 30, 1988 order to be a discovery order (as characterized by our Supreme Court in Commonwealth v. Iannaccio, supra, pursuant to Pa. R.Crim.P. 305), and therefore interlocutory. Commonwealth v. Redmond, supra, 577 A.2d at 550. This Court then quashed the appeal from the September 30, 1988 discovery order.

Since a discovery order is interlocutory in nature, the proper procedure for appeal of the September 30, 1988 order would have been a petition for permission to appeal from an interlocutory order under Rule 1311. See Commonwealth v. Iannaccio, supra, 505 Pa. at 426, 480 A.2d at 972. The Commonwealth in the instant case failed to file a timely appeal in this manner of the September 30, 1988 order; therefore, this court is without jurisdiction to hear the appeal. See 42 Pa.C.S.A. § 742 (Superior Court has jurisdiction to hear appeals of final orders of the courts of common pleas); id. § 702(b) (permitting interlocutory appeal by permission); id., Pa.R.A.P., Rule 1311 (requiring petition for permission to appeal an interlocutory order); Commonwealth v. Pfender, 280 Pa.Super. 417, 421 A.2d 791 (1980) (Superior Court without jurisdiction to hear appeal where Commonwealth did not file petition for permission to appeal as required by Rule 1311).

Id. The Court turned to the October 28, 1988 sanction order and finding that it “possessed] the requisite degree of finality ... permitted] its immediate appeal.” Id. Howr ever, in examining the merits of that sanction order, this Court turned to the September 30, 1988 discovery order.

Our inquiry does not end there, however. We have previously determined that we are without jurisdiction to consider the Commonwealth’s appeal from the lower court’s order of September 30, 1988. Since we do not possess jurisdiction of the appeal of that order, it would appear that we are precluded from considering its merits. However, in determining the propriety of the lower court’s order of October 25, 1988, we find that the merits of the September 30, 1988 order inescapably require our review. That is because authority to issue a remedy under Rule 305 E, supra, is granted only if “a party has failed to comply with this rule.” Pa.R.Crim.P., Rule 305 E. 42 Pa.C.S.A., referring generally to Rule 305. The facts of the case indicate that the Commonwealth did not comply with the lower court’s order of September 30, 1988; therefore, we must examine the Commonwealth’s non-compliance with the disclosure order to determine if that non-compliance was equivalent to a non-compliance with Rule 305, thus permitting the lower court to act pursuant to the remedy provision of Rule 305 E. This inquiry will logically require us to examine the merits of the September 30, 1988 order. However, in doing so, we are not resurrecting the quashed appeal of that order; we are simply considering whether the October 25, 1988 order was proper considering the prior disclosure order. See Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989) (Superior Court erred in reviewing merits of quashed appeal; opinion was purely advisory).

Id., 577 A.2d at 551-552. Nowhere in this opinion did this Court hold that the seeking of a permissive appeal was required to achieve appellate review of a discovery sanction. Rather, this Court in Commonwealth v. Redmond, supra, stated that a permissive appeal is the only method by which to obtain immediate review of an interlocutory discovery order. In fact this Court’s holding in Commonwealth v. Redmond, supra, is supportive of the Commonwealth’s action in the case at bar, despite the trial court’s and appellee’s assertions to the contrary.

We find that a failure to seek a permissive interlocutory appeal should not waive a challenge to a disclosure order on an appeal from a final order imposing discovery sanctions for violation of the discovery order. To find waiver would create a “self-contradictory mandatory, permissive interlocutory appeal.” Id., 577 A.2d at 559 (Kelly, J., dissenting). As this Court properly declined to do so in Commonwealth v. Redmond, supra, we decline to do so here.

In conclusion, we find the instant appeal is properly before us for appellate review. The December 13, 1989 order, which directed the production of the confidential informant, must be examined in light of its relevance to the sanction entered January 25, 1990, which discharged appellee as a result of the Commonwealth’s violation of the December 13, 1989 discovery order. We turn now to the merits of this appeal.

The Commonwealth contends that the appellee, Christine Jackson, is not entitled to the disclosure of the identity of a confidential informant because (1) the confidential informant was not an eyewitness to the crimes charged to the appellee and (2) the appellee has failed to show that the confidential informant’s testimony would be exculpatory, necessary or in the interest of justice. The appellee, Christine Jackson, counters that the trial court properly ordered the Commonwealth to divulge the confidential informant’s identity because the confidential informant’s testimony would be material and exculpatory in that she/he would testify that someone other than the appellee exercised control over the contraband, thus providing a defense to the Commonwealth’s circumstantial evidence of constructive possession. As stated previously, the trial court, having found waiver, did not address the merits of this matter.

Christine Jackson, the appellee, was charged with possession of a controlled substance (approximately 200 grams of crack/cocaine) and possession with intent to deliver. The arresting officers are the “eyewitnesses” to these crimes of possession. Notwithstanding the fact that the confidential informant “tipped off” the police that the third floor apartment at 5647 Chester Avenue was used as a drug packaging and storage space, the Commonwealth had no need to call the confidential informant as an eyewitness at the trial of these charges. Pa.R.Crim.P. 305 B(2)(a) is therefore inapplicable as it relates solely to eyewitnesses. See Commonwealth v. Iannaccio, supra, 480 A.2d at 971; Commonwealth v. Bonasorte, 337 Pa.Super. 332, 349, 486 A.2d 1361, 1372 (1984); Commonwealth v. Ryan, 300 Pa.Super. 156, 165-166, 446 A.2d 277, 281-282 (1982); Commonwealth v. Moretti, 280 Pa.Super. 167, 174, 421 A.2d 458, 462 (1980); Commonwealth v. Garcia, 261 Pa.Super. 296, 300, 396 A.2d 406, 408 (1978); cf. Commonwealth v. Iannaccio, supra, 480 A.2d at 976 n. 8 (Opinion in Support of Reversal) (“... [Rule 305B] does not by its terms limit ‘eye witnesses’ and that, if a person observes a material fact or event relevant to an issue in the proceeding, that person could be considered an ‘eyewitness’ to that fact or event.”) Therefore, a request for production of a confidential informant who is not an eyewitness, but a tipster, is a discovery request under Pa.R.Crim.P. 305 B(2)(d). This subsection requires a further showing that production is “in the interest of justice.” Pa.R.Crim.P. 305 B(2)(d).

Appellee’s offer of proof is that the confidential informant would testify that two black men, John and Len, ran a drug operation out of appellee’s apartment, as is stated in the search warrant. Presumably, this testimony would exculpate appellee. The Commonwealth maintained that disclosure would greatly jeopardize the safety of the confidential informant, who had led the police to four previous drug arrests.

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), protection of the identity of a confidential informant was recognized as a vital public interest. Under Roviaro v. United States, supra, a defendant must demonstrate that disclosure is “essential to a fair determination.” 353 U.S. at 61, 77 S.Ct. at 628. The United States Supreme Court applied a balancing test.

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

353 U.S. at 62, 77 S.Ct. at 628-629 (footnotes omitted). The Roviaro balancing test has been accepted by our Pennsylvania Supreme Court in Commonwealth v. Carter, 427 Pa. 53, 58, 233 A.2d 284, 287 (1967) and has been applied in subsequent cases. See Commonwealth v. Bonasorte, supra, 486 A.2d at 1372.

In the case sub judice, we do not find that the defense has demonstrated a showing that the necessity of the disclosure of the identity of the confidential informant out-weighed the vital public interest in protecting the identity of the confidential informant. The confidential informant did not participate in the crimes with which the appellee was charged. The mere allegation that the confidential informant would, in the best of scenarios, state that the appellee had no knowledge as to the drug operation in her apartment is contradicted by the very fact that the appellee exercised control over the rear bedroom, in which the crack/cocaine was found, and that the drug paraphernalia was found in the rear bedroom and in the kitchen. The speculation that the appellee’s brother, not appellee, ran the drug operation does not justify the threat to a confidential informant who had previously tipped the police to four other successful drug arrests. Appellee was charged with the crime of possession of which the police were the eyewitnesses. Whether John or Len are also involved in the drug operation is not of consequence to the case at bar.

In conclusion, we find that the Commonwealth has not waived appellate review of the discovery order. The Commonwealth has properly appealed from a discovery sanction discharging the appellee. We find also that the trial court abused its discretion in ordering production of the confidential informant. Accordingly, we vacate the trial court order discharging the appellee, reverse the discovery order, and remand for proceedings consistent with this Opinion.

Jurisdiction Relinquished.

      . In denying the motion to suppress, the trial court stated the following:
      This Court finds on the motion to suppress the Commonwealth has demonstrated by a preponderance of the evidence that the entry and execution of the warrant was conducted in a lawful fashion, in compliance with Criminal Procedure Rule 2007 or on the criminal and all case law; further finds that the search and seizure warrant on its face contains adequate probable cause towards issuance, therefore denies the motion to suppress.
      N.T. 9/6/89 at 62.

      . Pa.R.Crim.P. 305, Pretrial Discovery and Inspection, provides in pertinent part:
      ******
      B. Disclosure by the Commonwealth.
      ******
      (2) Discretionary With the Court. In all’ court cases, except as otherwise provided in Rule 263 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
      (a) The names and addresses of eyewitnesses;
      (b) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial;
      (c) all written or recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co-conspirators, or accomplices, whether such individuals have been charged or not;
      (d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.
      Pa.R.Crim.P. 305.

      . On her bail interview sheet, Christine Jackson indicated that she lived with her brother John. Bail Interview at 2, dated 12/17/88.

      . Counsel representing the Commonwealth appeared before the trial court on January 12, 1990, and stated that no determination about an appeal from the trial court’s order to produce the confidential informant had been made. The defense counsel had not appeared; therefore, the trial court continued the matter until January 25, 1990.

      . Counsel representing the Commonwealth used the masculine pronoun in referring to the confidential informant. However, counsel stated that he did not personally know whether the confidential informant was male or female. N.T. 1/25/90 at 3.

      . Moreover, a review of the record supports the holding that the December 13, 1989 order directing the Commonwealth to produce the confidential informant may be examined instantly. During the December 13, 1989 hearing, the trial court, after ordering production of the confidential informant stated the following to the Commonwealth.
      THE COURT: Yes, why don’t we do that, you can have a status on appeal date, and then we can schedule when we’re going to have the in camera, and then if you decide to take the appeal, we’ll just cancel the in camera hearing, all right.
      So your thirty day appeal date — what’s thirty days from today? Today is what, the thirteenth?
      MR. GIBSON: January twelfth, I believe.
      THE COURT: So January twelfth is your thirty day status on appeal.
      N.T. 12/13/89 at 27. The trial court discussed with counsel for the defense and for the Commonwealth when an appropriate date could be scheduled for an in camera hearing with the confidential informant.

        THE COURT: All right. I'll tell you what, I'll make it easier on all three us. Why don’t we wait until the status date and see whether you want to take the appeal. If you decide to take an appeal, it's going to be moot.

        Id. at 28. At the January 25, 1990 hearing, after the Commonwealth informed the trial court that the confidential informant would not be produced, the trial court discharged the appellee and stated to the Commonwealth, "[a]nd you now have your appellate issue.” N.T. 1/25/90 at 5. The ambiguity of whether a permissive appeal would be permitted supports this Court’s holding that a mandatory permissive interlocutory appeal is self-contradictory and not required to preserve an examination of the underlying discovery order during a subsequent appeal from a discovery sanction which precludes prosecution.

      . Pa.R.Crim.P. 305 makes discoverable, at the discretion of the trial court, "upon a showing that they are material to the preparation of the defense and that the request is reasonable,
      a) the names and addresses of eyewitness; and ******

      d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interest of justice."

        Commonwealth v. Iannaccio, supra, 480 A.2d at 976; Pa.R.Crim.P. 305 B(2) (Emphasis added).

      . Contrary to defense counsel’s statements indicating absence of appellee’s control over the rear bedroom (where the 200 grams of crack/cocaine was found) appellee, herself, testified to her control and dominion over the rear bedroom. N.T. 9/6/89 at 45.

      . We note that under Pennsylvania law, intent to deliver may be inferred from possession of a large quantity of controlled substances and additional possession of drug paraphernalia consistent with the act of distribution. See Commonwealth v. Ariondo, 397 Pa.Super. 364, 383, 580 A.2d 341, 350-51 (1990) (collecting case); see also Commonwealth v. Brundidge, 404 Pa.Super. 106, 111 n. 3, 590 A.2d 302, 305 n. 3 (1991).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    598 A.2d 997
    SECOND FEDERAL SAVINGS AND LOAN ASSOCIATION, a Corporation, now known as Landmark Savings Association, a Corporation, Appellee, v. Raymond R. BRENNAN and Roberta L. Brennan, His Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued July 31, 1991.
    Filed Sept. 24, 1991.
    Reargument Denied Dec. 5, 1991.

      Frank W. Ittel, Jr., Pittsburgh, for appellants.
    Edward T. Harvey, Pittsburgh, for appellee.
    Before McEWEN, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the summary judgment entered in the Court of Common Pleas of Allegheny County for an action in mortgage foreclosure. Appellants claim that the trial court erred in granting the motion for summary judgment for two reasons: (1) the trial court misinterpreted the notice clause in the contract, and (2) the trial court did not address the question of whether notice was actually given. We find that although the trial court misinterpreted the notice clause, appellee did provide sufficient notice. Accordingly, we affirm the summary judgment.

The relevant facts of the case are: Appellee, Landmark Savings Association (hereinafter “Landmark”), loaned $51,-400.00 to appellant and his wife (hereinafter “appellants”). As security for the' debt, appellants gave Landmark a mortgage on land on which a residence was built. Upon appellants’ default, Landmark filed a complaint in mortgage foreclosure, alleging that appellants were sent notice of Landmark’s intent to foreclose. Following appellants’ answer to the complaint, Landmark filed a motion for summary judgment. Appellants’ reply to the motion for summary judgment challenged the sufficiency of Landmark’s notice of intention to foreclose. The Honorable Judge Leonard C. Staisey denied the motion for summary judgment following oral argument on February 18, 1987, and granted appellants the opportunity to cure the default on their mortgage. Landmark refiled a motion for summary judgment on April 24, 1987, following appellants’ failure to cure the default. Landmark again stated that it sent appellants notice of intention to foreclose. Judge Livingstone Johnson granted Landmark’s motion for partial summary judgment on the issue of liability, finding that Landmark was not required to send notice to appellants since appellants’ mortgage was not a residential mortgage as defined by 41 P.S. § 101, and scheduled the case for trial on the issue of damages. At trial, Judge Maurice Louik entered a verdict in Landmark’s favor in the amount of $74,379.22. Appellants filed post-verdict motions alleging the error of the partial summary judgment. Post-verdict motions were denied. This timely appeal followed.

Appellants assert that the trial court erred in granting partial summary judgment on the issue of liability. Appellants argue that Landmark had a contractual obligation to provide appellants with adequate notice of their intent to foreclose on the mortgage, and that the court should not have considered 41 P.S. § 101, et seq., in making the determination that Landmark did not have to provide notice.

When the Superior Court reviews an order granting summary judgment, our function is to determine whether issues of triable fact exist. Zackhery By and Through Young v. Crystal Cave Co., Inc., 391 Pa.Super. 471, 571 A.2d 464 (1990). This Court examines the record in the light most favorable to the non-moving party, and we will not disturb the trial court’s decision absent an abuse of discretion or an error of law. Mutual Ben. Ins. Co. v. Goschenhoppen Mut. Ins. Co., 392 Pa.Super. 363, 572 A.2d 1275 (1990). Appellants contend that the trial court erred in concluding that notice was not required and that no triable factual issues existed.

The dispute over Landmark’s duty to send notice arises from the interpretation of Clause 18 in the mortgage, which states:

Upon Borrower’s breach of any covenant or agreement of Borrower in this Mortgage, including the covenants to pay when due any sums secured by this Mortgage, Lender prior to acceleration shall mail notice to Borrower as provided by applicable law ...

(R.R. at 25a) (emphasis added). The trial court found that this clause did not require Landmark to provide notice since there was no applicable law under which notice was mandated. At the time that the contract was drafted, the only law requiring written notice by a mortgagee prior to foreclosure was the Act of January 30, 1974, P.L. 13, No. 6, Section 403 (Act No. 6). Act No. 6 mandates notification before foreclosure on residential mortgages. 41 P.S. § 101 defines residential mortgages as obligations of $50,000.00 or less. Landmark and the trial court state that since appellants’ mortgage was for a greater amount ($51,400.00), the law did not require Landmark to send notice before beginning foreclosure proceedings. The trial court, in granting summary judgment, emphasized that the contract called for notice “as provided by applicable law,” and that the parties were agreeing to be “dependant on the ongoing state of developing law” and to “incorporate legal protection which might become available during the life of the loan.” (Opinion at 9.) The court erred in making this determination.

A mortgage is a formal document of specific character and it should be strictly construed. Western Pa. National Bank v. People’s Union Bank and Trust Co., 439 Pa. 304, 306-307, 266 A.2d 773, 775 (1970). A mortgage agreement, as a contract, must be interpreted as a whole. Pines Plaza Bowling Inc. v. Rossview, Inc., 394 Pa. 124, 145 A.2d 672, 676 (1958). One part of a contract cannot be interpreted so as to annul another part of the contract. Shehadi v. Northeastern National Bank of PA, 474 Pa. 232, 378 A.2d 304 (1977). A contract must be construed, if at all possible, to give effect to all of its terms. Cerceo v. DeMarco, 391 Pa. 157, 161-162, 137 A.2d 296, 298 (1958) (citations omitted). Additionally, a contract’s terms, if ambiguous, are construed against the drafter. Central Transportation, Inc. v. Bd. of Assessment Appeals of Cambria County, 490 Pa. 486, 496-497, 417 A.2d 144, 149 (1980) (citations omitted).

Noting the above principles of contract construction, we find that the trial court erred in isolating the phrase “as provided by applicable law” when reaching its determination that notice was not mandated. The court’s construction nullifies Clause 18 and any other clauses relating to the debtor’s rights in a default proceeding. Appellants argue that the phrase “as provided by applicable law” relates to the manner and form of notice, not to whether notice is statutorily mandated. Appellants state:

The emphasized words describe the manner in which notice is to be mailed by the lender to the borrower; they do not limit the requirement of notice to only those cases where the same is independently mandated by statute. If the latter were true, the scrivener of the instrument would have made it clear that notice of acceleration and foreclosure were necessary only when required by applicable law.

(Appellants’ brief at 13.) Landmark, as the drafter of the agreement, raised the expectation that appellants would receive notice. If Landmark did not intend to provide notice except where mandated by law, the clause should not have appeared in the document. Landmark’s argument renders the clause superfluous. If a law required notice, the lender would be obligated to provide notice regardless of the contractual terms. We find it unlikely that the lender would insert a notice clause that had no effect if “applicable law” did not mandate notice, and which was superfluous if “applicable law” mandated notice.

Appellants’ argument is consistent with the entire document. In fact, Clause 14 states:

Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Borrower provided for in this Mortgages shall be given by mailing such notice by certified mail ...

(R.R. at 25a) (emphasis added). This clause can be read consistently with Clause 18. Clause 18 says that the lender shall mail notice to borrower as provided by applicable law. If any applicable law had stated that notice could be sent other than by certified mail, it would control. In the absence of an applicable law, clause 14 mandated notice by certified mail. This interpretation gives effect to the entire contract.

The trial court’s interpretation that the contract provision anticipates future developments in law was in error. The Contracts Clause of both the United States and Pennsylvania Constitutions protects contracts freely arrived at by the contracting parties from subsequent legislative impairment or abridgment. First National Bank of PA v. Flanagan, 515 Pa. 263, 268-269, 528 A.2d 134, 137 (1987), citing Beaver County Building and Loan Association v. Winowich, 323 Pa. 483, 492-494, 187 A. 481, 485-486 (1936). A later law cannot abridge rights under a prior contract. Only the substantive laws that are in effect when the parties enter into a contract are implicitly incorporated into it. First National Bank of PA v. Flanagan, supra, 515 Pa. at 268-269, 528 A.2d at 137. Since the mortgage agreement is a standard form, different laws could be in effect when other parties enter into a mortgage agreement and use the form. The contract specifically accounts for these changes in law as they relate to each separate mortgage agreement. The law in effect at the time that the instant parties contracted, however, is the law which controls the contract. The contract creates the impression that notice will be given, and that the manner of giving notice will be by certified mail unless applicable law stipulates another manner. We find that a notice requirement was contractually agreed upon.

Even though we agree with appellants that notice was required, this issue does not merit relief. An appellate court can affirm a court order if it is correct for any reason, regardless of the reason relied upon by the lower court. Gwinn v. Kane, 465 Pa. 269, 348 A.2d 900 (1975). Accordingly, we now affirm the summary judgment due to Landmark’s compliance with the notice requirement. A thorough review of the record reveals that Landmark complied with the notice requirement and appellants repeatedly chose to ignore Landmark’s efforts. Appellants have not made mortgage payments since December 11, 1984. (Complaint at 2.) The record reveals that Landmark made an attempt to deliver notice to appellants by certified mail in a letter dated April 2, 1985, as required by the contract. Landmark also sent notice by regular mail. Landmark fully complied with the notice requirements when they sent notice to appellants’ known address by certified mail. Actual receipt is not an essential element to fulfill the notice requirement, especially when the facts indicate that appellants deliberately refused receipt. Since the facts presented in the pleadings, answers to interrogatories, and other evidence presented show that notice was required and that Landmark complied with the notice requirement, no genuine issue of material fact existed and summary judgment was proper. Garcia v. Savage, 402 Pa.Super. 324, 586 A.2d 1375 (1991). Accordingly, we affirm the summary judgment.

Judgment affirmed.

      . 41 P.S. § 403.


author: ROWLEY, President Judge:

text:
    598 A.2d 1000
    COMMONWEALTH of Pennsylvania v. Robert TAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Argued June 19, 1991.
    Filed Sept. 27, 1991.
    Reargument Denied Dec. 2, 1991.

      Jeffrey Shender, Asst. Public Defender, Philadelphia, for appellant.
    Anthony J. Baratta, Asst. Dist. Atty., Philadelphia, for Com.
    Before ROWLEY, President Judge, and CAVANAUGH and WIEAND, JJ.
   ROWLEY, President Judge:

Robert Taylor appeals from the order of the Court of Common Pleas of Philadelphia County denying the Writ of Certiorari which he filed after his conviction in the Municipal Court of Philadelphia County. He raises one issue in this appeal, namely, whether the charges against him should have been dismissed pursuant to Pa.R.Crim.P. 6013. After reviewing the record, we vacate the judgment of sentence and discharge appellant.

Appellant was arrested on October 23, 1988, after the police observed him discard a firearm which was later determined to be unlicensed. His preliminary arraignment was held on October 24, 1988. Therefore, the automatic run date for Rule 6013 was February 21, 1989. At the arraignment, the case was listed for status on November 15, 1988, pursuant to Municipal Court procedure. On November 15, the Commonwealth failed to provide mandatory discovery to defense counsel and the case was again listed for status on December 20, 1988. On December 20, the Commonwealth again failed to provide mandatory discovery and the case was listed for trial on February 9, 1989. On February 9, the Commonwealth provided defense counsel with the requested discovery. Defense counsel then requested a continuance in order to conduct an investigation based on the discovery materials given to her. The case was therefore continued to April 24, 1989, and the amended run date became May 6, 1989. On April 24, the case was again continued because the Commonwealth failed to subpoena a necessary police witness. The case was continued to June 12, 1989. On June 12, after appellant’s motion to dismiss pursuant to Rule 6013 and his motion to suppress were denied, trial was conducted. Appellant was convicted of firearms violations and sentenced to two concurrent terms of probation of one year each. Appellant then filed a petition for Writ of Certiorari in the Court of Common Pleas, which was denied. This timely appeal was then filed.

The principal issue in this case is whether the period from November 15, 1988, through February 9, 1989, should be considered excludable time or whether it should be charged to the Commonwealth. We agree with appellant that this period of time is chargeable to the Commonwealth.

Appellant contends that his trial was delayed due to the Commonwealth’s failure to provide mandatory discovery. In addressing this issue, the trial court determined that, under Commonwealth v. Woodell, 344 Pa.Super. 487, 496 A.2d 1210 (1985), “[a]n order dismissing prosecution with prejudice under the speedy trial Rule is an inappropriate penalty for tardy delivery of discovery by the Commonwealth.” Trial Court Opinion 2/25/91 at 6. However, the trial court’s reliance on Woodell is misplaced.

In Woodell, a panel of this Court reversed the trial court’s order dismissing charges against the defendant because of the Commonwealth’s failure to provide discovery. As the trial court in the present case stated, this Court held that dismissal of the charges was an inappropriate penalty in that case. However, Woodell involved only the failure on the part of the Commonwealth to provide discovery; there was no claim in Woodell that the Commonwealth’s failure to provide discovery caused a delay in the defendant’s trial beyond the applicable time period. The holding in Woodell does not stand for the proposition that, in the context of a Rule 6013 or Rule 1100 claim, dismissal of charges is inappropriate when the delay is caused by the failure of the Commonwealth to provide discovery material. It is unquestionable that dismissal is an appropriate action when the Commonwealth fails to bring a defendant to trial within the time period prescribed in Rule 6013. The appropriateness of that action does not change merely because the Commonwealth’s failure to provide mandatory discovery causes the delay.

Furthermore, our Supreme Court recently stated that where, as here, a defendant’s discovery request is not contested and the request is not made for purposes of trial strategy, a request for discovery does not toll the running of Rule 1100 (the Court of Common Pleas counterpart to Rule 6013). Commonwealth v. Edwards, _ Pa. _, 595 A.2d 52 (1991).

In addition, when the attorney for the Commonwealth was questioned at the hearing as to the cause of the delay, he stated, “On that date discovery was ordered, on 11/15/88, by our office from the Police Department. Discovery was then again ordered, but the 49 still had not come in. On the second listing, once again our office ordered the discovery, and that is all we can do, Judge.” N.T. 6/12/89 at 8. On the basis of this assertion, the court found no lack of due diligence. Id. at 9. In its brief, the Commonwealth argues that it “did all it could to provide defendant with the police investigation report except write the report itself. The Commonwealth requested the report from the police twice before receiving it....” Appellee’s Brief at 8. If we were to accept the Commonwealth’s assertion that two or three routine requests for the report during a period of more than three months “is all that [it] can do”, we would be following a course which the Supreme Court denounced in Commonwealth v. Browne, 526 Pa. 83, 584 A.2d 902 (1990). In Browne, the Court expressed a concern “that the Superior Court is more and more inclined to accept any and every excuse for failure to bring a criminal case to trial within the period prescribed by Rule [6013]....” Id., 526 Pa. at 89, 584 A.2d at 905. Surely, the Commonwealth could have done more in its attempt to secure the report from the police than merely requesting the report two or three times. Its failure to do so shows a lack of due diligence.

In further support of the conclusion that appellant is not entitled to relief, the Commonwealth and the trial court strongly relied on the procedure of the Municipal Court in which cases are listed for status before being listed for trial. The Commonwealth argues that, because appellant benefits from this procedure, the period should be excluded from the computation of time. See Appellee’s Brief at 5-6. Similarly, the trial court stated that the period in which trial was delayed because of this procedure was in effect a continuance agreed upon by appellant because defendants, as well as the Commonwealth and the court system, benefit from this procedure, and the Defender Association participates it in. See Trial Court Opinion at 5-6. We find this position to be untenable. This is not a situation where crowded court dockets have made it impossible for the Commonwealth to try a defendant within the applicable time period. The “listing for status” procedure is apparently a routine occurrence in the Municipal Court system and cannot be used to defeat a valid Rule 6013 claim.

Finally, we reject the Commonwealth’s assertion that appellant waived his Rule 6013 rights by saying nothing when the court announced a date beyond the run date. A defendant has no duty to object when his trial is scheduled beyond the Rule 6013 time period so long as he does not indicate that he approves of or accepts the delay. Commonwealth v. Garrison, 277 Pa.Super. 18, 419 A.2d 638 (1980). The Commonwealth does not contend that appellant indicated that he accepted the delay. The Commonwealth does argue that, because appellant had previously executed a waiver by requesting a continuance on February 9, 1989, his silence on April 24 constituted a waiver. See Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981). In Brown, the Court determined that the defendant’s silence constituted an informed and voluntary waiver because he had already expressly and validly waived those rights on a previous date. In the present case, on the other hand, the only evidence of a “waiver” which the Commonwealth offers is the continuance requested by defense counsel so that she could investigate the police report which the Commonwealth belatedly provided. There is no indication that this request for a continuance was a knowing and voluntary waiver of appellant’s rights.

For the above reasons, we conclude that the Municipal Court and the trial court erred in finding that appellant’s Rule 6013 rights were not violated. Therefore, we vacate the judgment of sentence and discharge appellant.

The judgment of sentence is vacated and appellant is discharged.

      . Rule 6013 provides that "[t]rial in a Municipal Court case ... shall commence no later than one hundred twenty (120) days from the date on which the preliminary arraignment is held.”

      . Appellant concedes seventy-four days of excludable time between February 9, 1989, and April 24, 1989, because the continuance was pursuant to a defense request. We do note, however, that the request for a continuance was prompted by a need to investigate the reports which the Commonwealth failed to provide until February 9. In addition, the period from April 24, 1989, and June 12, 1989, is chargeable to the Commonwealth as the delay was caused by the Commonwealth’s unexplained failure to subpoena a necessary witness who was otherwise available to testify. See Notes of Testimony (N.T.) 6/12/89 at 5, 6-7.

      . The Commonwealth also contends that appellant requested that the listing of December 20 be for status only. Appellant strongly refutes this assertion and we find nothing in the record to support it. Furthermore, the Commonwealth still had not complied with its discovery obligations by December 20. Therefore, even if the case had been listed for trial on that date, trial could not have proceeded.


author: HOFFMAN, Judge:

text:
    598 A.2d 1003
    COMMONWEALTH of Pennsylvania v. Johnnie J. MICKELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 1, 1991.
    Filed Oct. 24, 1991.

      Anne L. Saunders, Williamsport, for appellant.
    Daniel E. Holmes, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before MONTEMURO, KELLY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for possession with intent to deliver cocaine, possession of cocaine, possession with intent to deliver marijuana, possession of marijuana and possession of drug paraphernalia. Appellant presents four issues on appeal:

I. WHETHER THE SENTENCING COURT ERRED IN DENYING APPELLANT’S MOTION TO RECUSE WHERE THE COURT HAD, PRIOR TO SENTENCING, REVIEWED A LETTER ALLEGEDLY WRITTEN BY APPELLANT ALLEGING MORAL MISCONDUCT BY THE COURT.
II. WHETHER THE COURT ABUSED ITS DISCRETION AND ERRED IN IMPOSING A MANIFESTLY EXCESSIVE SENTENCE WHERE THE COURT CONSIDERED UNRELATED EVIDENCE ALLEGING APPELLANT’S INVOLVEMENT IN THE DRUG COMMUNITY, WHERE THE COURT HAD PREVIOUSLY REVIEWED A LETTER ALLEGEDLY WRITTEN BY APPELLANT ALLEGING MORAL MISCONDUCT AND WHERE THE COURT PLACED TOO MUCH EMPHASIS ON THE NATURE OF THE OFFENSE.
III. WHETHER THE MOTIONS COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS EVIDENCE WHERE THE SEARCH OF THE VEHICLE AND THE BAG INSIDE EXCEEDED THE BOUNDS OF THE WARRANT AND WHERE THERE WAS NEITHER PROBABLE CAUSE NOR EXIGENT CIRCUMSTANCES TO JUSTIFY THE SEARCH.
IV. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S RENEWED MOTION TO SUPPRESS WITHOUT HEARING WHERE EVIDENCE AT TRIAL PROVED THE AFFIDAVIT IN SUPPORT OF PROBABLE CAUSE CONTAINED MATERIAL MISSTATEMENTS OF FACT.

For the reasons that follow, we affirm the judgment of sentence.

Appellant was arrested following the execution of a search warrant at his residence on August 19, 1989. He was charged with multiple counts of controlled substance violations. Prior to trial, appellant moved to suppress the evidence seized at his home, asserting that the search warrant was issued without a showing of probable cause and that the officers executing the search did not sufficiently attempt to locate appellant prior to searching the unoccupied apartment. In the same motion, appellant also sought to suppress admission of a bag containing cocaine that was seized from appellant’s car when he returned to the residence while the search was still underway. The Honorable Thomas C. Raup denied the motion to suppress, and appellant was found guilty at a nonjury trial conducted before the Honorable Clinton W. Smith on June 26, 1990. Appellant was convicted of five of the six counts with which he was charged. Thereafter, Judge Smith recused himself, after receiving a letter allegedly written by appellant. Judge Raup replaced Judge Smith and fined appellant a total of $30,000, and sentenced him to consecutive terms of incarceration of five-to-ten years for possession with intent to deliver cocaine, two-to-four years for possession with intent to deliver marijuana, and six-months-to-one year for possession of drug paraphernalia. A concurrent term of incarceration of one-to-three years was imposed for possession of cocaine and possession of marijuana. Appellant’s timely post-verdict and post-sentencing motions were denied, and this timely appeal followed.

I.

Appellant first contends that the sentencing judge should have recused himself after reading a letter allegedly written by appellant. The court’s post-sentencing opinion [hereinafter Opinion, February 20, 1991, Raup, P.J.], which denied appellant’s motion for reconsideration, provided a thorough description of the events leading up to this contention:

After trial and before sentencing, the defendant addressed a scandalous letter to the trial judge, the purport of which was that unless a lenient sentence were imposed the defendant would release certain outrageous allegations of immoral conduct on the part of members of the County Court system, principally the trial judge. The trial judge immediately provided the letter to the district attorney and new criminal charges were brought against the defendant. Since the trial judge was now a potential witness against the defendant in the new case, the judge recused himself for sentencing purposes. The letter in question attributed illegal conduct to a nonexistent son of the undersigned judge. The request was made that this Judge therefore also recuse himself for sentencing purposes.

Opinion, February 20, 1991, Raup, P.J., at 2.

Our Supreme Court has noted that “[r]ecusal is required whenever there is a substantial doubt as to a jurist’s ability to preside impartially.” Commonwealth v. Boyle, 498 Pa. 486, 490, 447 A.2d 250, 252 (1982) (footnote and citations omitted). The party moving for recusal bears the burden of producing evidence that establishes bias, prejudice or unfairness necessitating recusal. Commonwealth v. Stanton, 294 Pa.Super. 516, 522, 440 A.2d 585, 588 (1982) (citations omitted). Furthermore, a judge’s decision not to recuse himself will not be disturbed absent an abuse of discretion. Commonwealth v. Darush, 501 Pa. 15, 21, 459 A.2d 727, 732 (1983).

In the instant case, appellant argues that his sentence, “one within the aggravated range of the Sentencing Guidelines, proves a substantial likelihood of unfairness by the sentencing court.” Appellant’s Brief at 12. Appellant also argues that because the letter contained a personal attack upon all Lycoming County judges, none of those judges, including Judge Raup, could have sentenced appellant with impartiality. However, appellant produces no evidence that Judge Raup was biased or unfair in imposing an aggregate sentence of seven-and-one-half-to-fifteen years. First, Judge Raup stated at the sentencing hearing, “[t]hat letter will play no part in our sentencing here today.” N.T., November 14, 1990, at 8. Thus, Judge Raup expressed a belief that he could sentence appellant without being prejudiced by the letter. See Commonwealth v. Goodman, 454 Pa. 358, 361, 311 A.2d 652, 654 (1973) (trial judge should recuse himself when he has doubt as to his ability to preside impartially). Moreover, Judge Raup repeatedly refused to hear the Commonwealth’s proffered evidence with respect to the letter, concluding it was not appropriate to consider it at the sentencing hearing. N.T., November 14, 1990, at 23-25. Additionally, Judge Raup sufficiently explained his reasons for imposing a sentence in the aggravated range:

It is my judgment that this is a case where there are aggravating circumstances. First of all you have recently been on parole, you were only out for a short period of time when this occurred. The fact that you were on parole and the fact that you were so quickly involved with such serious criminal activity is indicative to the extent you are a danger to the community and extent you have a likelihood to go on with a way of criminal life.
Secondly, as an aggravating circumstance this was a business for you. The evidence presented at trial was overwhelming, that you were delivering this, delivering various drugs, you were doing it for profit____
Third, the type of drug includes crack cocaine which is in and of itself an aggravating circumstance____
Fourth, I see no evidence of remorse on your part and all that does is to offer a likelihood to us that the same thing is going to continue in the future, and to a lessor [sic] degree you have not been a good inmate as far as the security staff is concerned at the prison____

N.T., November 14, 1990, at 26-27. Finally, appellant had an extensive criminal record, resulting in a prior record score of 6. Hence, the sentencing judge did not abuse his discretion by refusing to recuse himself, as there is no evidence that he was biased in imposing a sentence in the aggravated range.

II.

Appellant next contends that the sentencing court abused its discretion by imposing an aggregate sentence of seven- and-one-half-to-fifteen years. As a preliminary matter, we note that appellant’s brief contains a statement of reasons relied upon for allowance of appeal, and thus it complies with Pa. R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Therefore, we may proceed to a determination of whether, in our discretion, appellant’s claims present a substantial question for our review.

A.

Appellant first argues that the sentencing court considered irrelevant evidence when sentencing appellant. We note that appellant raises a substantial question here, because “[i]t is sufficient to render a sentence invalid, if it reasonably appears from the record that the trial court relied in whole or in part on an impermissible factor.” Commonwealth v. Dugan, 335 Pa.Super. 82, 87, 483 A.2d 965, 968 (1984) (reliance on fact that defendant was naturalized citizen impermissible) (citations omitted). However, after reviewing this claim, we conclude that it is without merit.

Specifically, appellant objects to references made at the sentencing hearing to two individuals — Ms. Harris and Mr. Richard Wilson. Appellant claims that the district attorney was referring to drug transactions for which appellant was not charged. However, the district attorney’s references to Ms. Harris and Mr. Wilson pertained to their testimony at appellant’s trial. N.T., November 14, 1990, at 18-19. We fail to see how these references indicate that the court considered impermissible evidence, as the district attorney only referred to evidence admitted at appellant’s trial.

Furthermore, appellant patches together selective quotes from the sentencing hearing to argue that the court considered unrelated prior allegations. However, the court specifically stated, with regard to those prior allegations, “[y]ou are not charged in those cases, those are not before me in sentencing, you are not sentenced on those____” Thus, the sentencing court recognized that appellant’s name had been mentioned in connection with other cases, but, rather than consider this information, the court explicitly stated that it was not considering it. Hence, we cannot agree with appellant that the judge considered impermissible factors in imposing his sentence.

B.

Appellant also argues that the sentence was manifestly excessive and “based solely on the nature of the offense.” Appellant’s Brief at 14. Specifically, appellant maintains that his sentence was based solely on the seriousness of the crime. Again, we recognize that a substantial question is presented, since a sentencing court may not base its sentence upon seriousness of the crime alone. Commonwealth v. Ruffo, 360 Pa.Super. 180, 188-89, 520 A.2d 43, 48 (1987). However, after reviewing his claim, we conclude that it is unsupported by the record.

It is well established that sentencing is within the sound discretion of the trial court, and a sentence will not be disturbed by an appellate court unless it is so clearly excessive as to constitute an abuse of discretion. Id. at 185, 520 A.2d at 46 (citations omitted). The record indicates that the sentencing court carefully considered not only the presentence report, but also, appellant’s previous convictions and prior record score. N.T., November 14, 1990, at 4-7. Moreover, the court detailed its reasons for sentencing appellant in the aggravated range, noting that the instant crimes were committed while appellant was on parole for only a short period of time, that appellant was engaged in a drug-selling business for profit, rather than to support a substance abuse problem, and that appellant showed no indication of remorse. N.T., November 14, 1990, at 26-27. All of these factors, and not just the nature of appellant’s crime, were considered in the court’s determination that an aggravated sentence was warranted. Thus, the court did not abuse its discretion by sentencing appellant in the aggravated range.

III.

Appellant next contends that the the court erred in denying his pre-trial motion to suppress the bag that was seized from his car. Specifically, appellant argues that (1) the warrantless search of the vehicle was illegal; and (2) even if the search of the vehicle was valid, the officers should have obtained a warrant before searching the bag that was seized.

Our standard of review of a court’s denial of a motion to suppress evidence that allegedly was obtained in violation of the Fourth Amendment is well-settled:

[O]ur function as an appellate court reviewing a denial of a motion to suppress is to determine:
[WJhether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Vinson, 361 Pa.Super. 526, 530, 522 A.2d 1155, 1157 (1987). The relevant facts are as follows. On August 19, 1989, a search warrant was executed at appellant’s residence. The search yielded records detailing drug transactions, scales, vials, baggies, “owe sheets,” marijuana seeds, and cash. Appellant was not home, but returned while the search was in progress. The trial court, in its opinion denying appellant’s motion to suppress, further elaborated:

The officers went down to the car. The defendant was in the front passenger seat of the vehicle and another black male was in the driver’s seat. With guns drawn, the officers ordered the two individuals to get out of the vehicle. The defendant was subjected to an immediate pat down. A “waist pack” revealed the presence of a large quantity of money and vials containing the suspected cocaine. While the defendant and his companion were at the rear of the car being frisked, one of the officers noticed on the front seat of the vehicle a green bag about one foot by eight inches by two inches in size. The contents of that bag were not visible to the officer.

Trial Court Opinion, April 11, 1990, Raup, P.J., at 7. The officers then seized the bag, and upon searching it, discovered controlled substances.

Appellant argues that the seizure of the bag was unlawful because the search warrant did not specifically provide for the search of the car, there was no independent probable cause that the vehicle contained evidence of a crime, and there were no exigent circumstances present to validate the warrantless search of his automobile. Although appellant is correct in his observations, we do not agree that the search was unlawful, since the bag was taken from the car incident to a lawful arrest.

“When a policeman has made a lawful arrest of the occupant of an automobile ... he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Commonwealth v. Jones, 396 Pa.Super. 304, 307, 578 A.2d 527, 529 (1990) (quoting New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)), alloc. denied, 526 Pa. 647, 585 A.2d 467 (1991). Moreover, the officer may also examine the contents of any containers found within the passenger compartment. Commonwealth v. Henry, 358 Pa.Super. 306, 311, 517 A.2d 559, 564 (1986). In short, “a search incident to the arrest requires no additional justification.” Id., 517 A.2d at 564 (citing United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)). In the instant case, there is no dispute that appellant’s arrest was lawful. Appellant was arrested after the police executed the search warrant in his residence and discovered drugs and drug-related paraphernalia. Moreover, appellant’s person was searched, also pursuant to the search warrant, and officers discovered more cash and drugs. Finally, appellant was arrested immediately after stepping out of his car; he was still standing next to the car at the time the bag was removed. Thus, the bag was removed incident to a lawful arrest, and the record supports the trial court’s conclusion that the officers lawfully searched the contents of the bag.

IV.

Finally, appellant contends that the trial court erred in denying his renewed motion to suppress evidence based on information that came to light at trial. Specifically, appellant argues that the affidavit in support of the search warrant contained a misstatement of fact. We disagree.

The portion of the affidavit to which appellant objects provides:

On Aug. 17, 1989 Trooper Ken Hill of the Pa. State Police did relate to your affiant that he Trooper Hill did have a confidential informant (Cl) who was working with Tpr. Hill, who did make one controlled purchases [sic] of controlled substances in the last two weeks. Purchases were made at the Mickell residence on Market St., City.

Search Warrant and Affidavit, August 19, 1991. Appellant argues that Trooper Hill testified at trial that he did not make a controlled purchase at the Mickell residence. Rather, he merely observed another individual enter and exit appellant’s residence. Appellant further argues that Trooper Hill testified that he never told the affiant that he executed a controlled purchase. Appellant therefore concludes that the affiant made a misstatement of fact in the affidavit, a conclusion that calls into question the affiant’s veracity. Hence, appellant contends that all evidence resulting from the search warrant should be suppressed.

We cannot agree with appellant’s characterization of Trooper Hill’s testimony at trial, nor do we agree that Trooper Hill testified that he never related to the affiant the events as stated in the affidavit. Although appellant is technically correct that Trooper Hill testified that he did not make a “controlled purchase” from the Mickell residence, Trooper Hill’s testimony goes far beyond stating that he merely “observed” an individual entering and exiting the Mickell residence. First, appellant’s counsel cross-examined Trooper Hill as to the statement in the affidavit that is quoted above. After reading that portion of the affidavit to Trooper Hill, counsel asked Trooper Hill, “[d]id you tell Mr. Reed [affiant] that?” Trooper Hill responded, “[t]hat sounds pretty much like what I told Agent Reed.” N.T., June 26, 1990, at 87. Thus, appellant is incorrect that Trooper Hill testified that he did not relate to affiant what is printed in the affidavit.

Secondly, while it is true that Trooper Hill did not execute a controlled purchase at the Mickell residence, as the affidavit stated, this misstatement is not fatal. Misstatements of fact in a search warrant affidavit will invalidate a search and require suppression only if they are deliberate and material. Commonwealth v. Bonasorte, 337 Pa.Super. 332, 347, 486 A.2d 1361, 1369 (1984) (citing Commonwealth v. Tucker, 252 Pa.Super. 594, 599, 384 A.2d 938, 944 (1978)). See also Commonwealth v. Zimmerman, 282 Pa.Super. 286, 296, 422 A.2d 1119, 1124 (1980) (“appellant must establish that the police (1) made a misstatement, which is both (2) deliberate and (3) material”). A material fact is defined as “one without which probable cause to search would not exist.” Commonwealth v. Jones, 229 Pa.Super. 224, 230, 323 A.2d 879, 881 (1974), alloc. denied, 229 Pa.Super. xxxv. See Commonwealth v. Gullett, 459 Pa. 431, 435, 329 A.2d 513, 515 (1974) (court should omit misstatement to determine whether affidavit supports probable cause); see also Commonwealth v. Yucknevage, 257 Pa.Super. 19, 24, 390 A.2d 225, 227 (1978) (whether misstatement in affidavit is material determined by whether statement was essential to search warrant application).

Although the statement in the affidavit is technically incorrect, with respect to where the controlled purchase was executed, it is otherwise an accurate representation of Trooper Hill’s use of a confidential informant. Trooper Hill testified at appellant’s trial that the informant with whom he was working was attempting to make a controlled purchase from two other suspects, that the informant was searched and provided with marked money prior to making the purchase, that surveillance was maintained on the suspects’ residence, and that an individual who left the suspects’ residence was followed to the Mickell residence, which he entered and exited within a few minutes. He then returned to the suspects’ residence. Trooper Hill’s informant emerged shortly thereafter, turned over four plastic packets containing cocaine and related that it had been obtained by the individual who temporarily left the suspects’ residence and went to appellant’s residence. N.T., June 26, 1990, at 83-92. Therefore, the disputed portion of the affidavit can hardly be deemed a material misstatement.

Furthermore, appellant offers no evidence that the affiant deliberately mischaracterized the events related to him by Trooper Hill. In Commonwealth v. Jones, 229 Pa.Super. 224, 323 A.2d 879 (1974), we noted that it is desirable to distinguish between deliberate, material misstatements and those not intentionally made because “warrants are ordinarily drafted in haste from sketchy notes, and minor discrepancies are virtually unavoidable.” Id., 229 Pa.Superior Ct. at 230, 323 A.2d at 881. Appellant does not argue, nor is there any evidence, that the instant affiant intentionally misrepresented the facts as related to him by Trooper Hill.

Finally, even if we were to excise the entire portion of the affidavit referring to Trooper Hill’s controlled purchase, there would still be probable cause to support issuance of the search warrant. “Probable cause exists when the magistrate is presented with evidence which would cause a reasonable man to believe that a crime is being, or is about to be committed.” Commonwealth v. Baker, 513 Pa. 23, 28, 518 A.2d 802, 805 (1986). The affidavit states that the affiant also used a confidential informant to make a controlled purchase of cocaine from appellant. It details how the confidential informant was searched prior to the purchase, given marked money, and watched entering and exiting appellant’s residence. Immediately thereafter, the confidential informant turned over a quantity of cocaine. These facts provide adequate probable cause to support the issuance of a search warrant. Accordingly, the trial court did not err in denying appellant’s motion to suppress the evidence obtained by the search warrant.

For the foregoing reasons, we affirm the judgment of sentence. Judgment of sentence affirmed.

      . We note that appellant's statement of claims is comprised of thirty-one lines, in violation of Pa.R.A.P. 2116. Although we strongly disapprove of such disregard for appellate rules, in the interest of justice, we will nevertheless address all of appellant’s claims.

      . Appellant was found guilty of possession of cocaine, possession of cocaine with intent to deliver, possession of marijuana, possession of marijuana with intent to deliver and possession of drug paraphernalia. He was found not guilty of criminal attempt (delivery of a controlled substance).

      . With respect to appellant's argument that all the Lycoming County judges should have recused themselves because they had knowledge of the letter, we find this claim to be without merit and take note of the sentencing court’s observation that, "[t]he request was made that this Judge therefore also recuse himself for sentencing purposes. That motion was denied because the attribution was so patently frivolous, and because it is our conviction that a defendant should not, as a matter of policy, be permitted to obtain recusal of all the judges in a county by the device of threatening to accuse them or their families of illegal or immoral behavior.” Opinion, February 20, 1991, Raup, P.J., at 2.

      . We have defined substantial question as “a colorable argument that the trial judge’s actions were: 1) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to the fundamental norms which underlie the sentencing process.” Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987).

      . The passage to which appellant objects provides:

        I had indicated preliminarily that your name had come up in two other cases. I feel that as the sentencing judge, I should disclose that in any case to you, I mention that. Those are examples of being involved in drug deliveries. You are not charged in those cases, those are not before me in sentencing, you are not sentenced on those, and they are — they really fit into the pattern of testimony that was presented at trial as to the type of deliveries you are making.
      N.T., November 14, 1990, at 29 (emphasis added). The portion that we have emphasized was deleted by means of an ellipses from appellant's quote in his brief.

      . Appellant also asserts that his case should be remanded for resentencing because the sentencing judge should have recused himself. We have disposed of this argument in part I of this memorandum.

      . We should note that in Commonwealth v. Timko, 491 Pa. 32, 417 A.2d 620 (1980) our Supreme Court held that a warrantless search of luggage removed from a vehicle was invalid, where the defendant was handcuffed, and the luggage was in the exclusive control of the police at the time it was searched. This case has never expressly been overruled. However, as we noted in Commonwealth v. Henry, 358 Pa.Super. 306, 517 A.2d 559 (1986), Timko was based on the United States Supreme Court case of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). A year after our Supreme Court decided Timko, the United States Supreme Court substantially limited the holding of Chadwick, in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Based on this turn of events, we opted to follow Belton, rather than Timko in Commonwealth v. Henry, supra, and there held that a warrantless search of the passenger compartment of a vehicle, and the contents of containers therein, was valid when it was incident to a lawful arrest. We again recognized this principle in Commonwealth v. Jones, 396 Pa.Super. 304, 307, 578 A.2d 527, 529 (1990). Although our Supreme Court has not directly addressed this issue since Belton was decided, choosing instead to deny allocatur in Jones, we note that our decision in the instant case is based on our cases since Timko, which reflect the recent trend in the law on this issue.


author: JOHNSON, Judge.

text:
    598 A.2d 1011
    COMMONWEALTH of Pennsylvania v. Haddrick BYRD, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1991.
    Filed Oct. 30, 1991.

      Joseph J. Hylan, Asst. Public Defender, Norristown, for appellant.
    J. Allen Daringer, Asst. Dist. Atty., Royersford, for Com., appellee.

      Before JOHNSON, FORD ELLIOTT and HESTER, JJ.
   JOHNSON, Judge.

In February, 1990, a jury convicted Haddrick Byrd of kidnapping, assault, recklessly endangering another person, and possessing instruments of crime. Following denial of post-verdict motions, the Honorable Lawrence A. Brown sentenced Byrd to aggregate terms of five and one-half to eleven years’ imprisonment, to be served concurrently with a pre-existing, unrelated life sentence.

Byrd, while an inmate at Graterford State Correctional Institution, took Irwin M. Schmuckler, principal of the Graterford School, as hostage, holding him for seven and one-half hours before releasing him unharmed. This prompted the filing of the charges underlying the judgments of sentence here on review.

On appeal, Byrd alleges error by the trial court in (a) refusing Byrd’s request to play a videotape of the entire hostage situation to the jury; (b) denying a mistrial motion based upon alleged prosecutorial misconduct during the closing argument to the jury; and (c) submitting written definitions of the crimes charged to the jury, for their deliberation.

We find the first two issues to be without merit. However, inasmuch as the submission of written instructions to the jury is not consistent with our Supreme Court’s mandate in Commonwealth v. Oleynik, 524 Pa. 41, 568 A.2d 1238 (1990), we are constrained to reverse judgment of sentence and remand for a new trial.

The most distinguished trial court, Judge Brown, declined to rule upon Byrd’s third issue, regarding the submission of written instructions to the jury, on the basis that the issue had been waived. Judge Brown correctly points out that, normally, a party must specifically object to a charge when given at trial in order to preserve any claim of error for appellate review. Pa.R.A.P. 302(b), Rogers v. Johnson & Johnson Products, Inc., 401 Pa.Super. 430, 585 A.2d 1004 (1990).

On the unique facts of this case, we believe the interest of justice compels the consideration of this claim. On February 26, 1990, the trial commenced before Judge Brown, with Byrd proceeding pro se. The Montgomery County Public Defender’s Office was directed by the trial judge to assist Byrd in his defense. The trial lasted two days. Byrd did not make an opening statement, did not testify, and did not make a closing argument.

During the charge of the court, Judge Brown made the following statements, inter alia:

I might say to you that when defendants are charged with multiple crimes requiring definitions, it’s my practice to give you written explanations so that you don’t have to recall to mind everything I’ve told you. And I will do that shortly after your — shortly after you begin to deliberate.
Now, as I told you a few moments ago, I’m going to give you copies of the definitions of these crimes and, in addition, the definition in the Code of serious bodily injury which, of course, will be much more lengthy than appears here, and it will be in substantially the same as the ones I’ve just instructed you on. These references in the charge of unlawful restraint, for example, exposing a person to risk of serious bodily injury, are simply a means of telling you precisely which crime I’m referring to. That, I think, will be perfectly clear and you will be able to tie that into these definitions which I’m going to give you in writing.

Notes of Testimony, February 26-27, 1990, pages 145, 151a. The jury retired to commence its deliberations at 2:15 p.m. Id. at page 153. At 3:58 p.m., proceedings were reconvened with the Court, the trial assistant district attorney, Karen A. Coletta, and the stand-by assistant public defender, Joseph Hylan, being present. At that time, the following ensued:

THE COURT: Let the record show that I have a question from the forelady of the jury which reads as follows: Is the definition of “knowingly” in 1488.3-89 and “consciously” in 1488.1-89 the same? We are having difficulty with the term “consciously.” If they are not considered the same, could we have a definition of “consciously”? The last name is Anastasi. What’s the first?
MS. COLETTA: Anne.
THE COURT: Anne Anastasi. And it’s finished off with a question mark.
And I have consulted with counsel, Mr. Hylan has consulted with his client — agent, whatever—
MR. HYLAN: Principal.
THE COURT: Principal.
MR. HYLAN: My principal.
THE COURT: Principal, and all approve my sending out Page 177 which contains a definition of the word conscious in Webster’s Seventh New Collegiate Dictionary. Okay, with that, we can take it from there. All right.

Id. at pages 154-55. Attached to the original Transcript of Notes of Testimony, February 26 and 27, 1990, filed April 20, 1990, are the original handwritten question from Anne Anastasi, set forth above, and the xerox copy of page 177 of the Webster’s Dictionary upon which page the definition of the word, “conscious”, is included.

Commonwealth v. Oleynik, supra, had been decided on January 31, 1990, approximately one month before Byrd’s trial before Judge Brown. Deputy Public Defender Hylan points out in the Brief for Appellant, at page 15, that the Oleynik decision was published in the March 9, 1990 advance sheets, after the filing of Byrd’s post-verdict motions on February 28, 1990. Hylan promptly wrote to the trial court, on March 26, 1990, bringing the Oleynik decision to the court’s attention “in further support of Mr. Byrd’s request for a new trial.” This was well before the trial court, on April 19, 1990 set argument on the motion for new trial to be held on May 17, 1990. Order, Brown, J., filed April 23, 1990.

Since the Oleynik decision was filed on January 31, 1990, and would have been available in slip opinion form immediately thereafter, we cannot say that this is a case where counsel would not have been expected to anticipate changes in the law. On the contrary, the Oleynik decision, holding “that the possible prejudice to a defendant from written instructions to a jury outweighs any benefit such instructions might provide,” Oleynik, 524 Pa. at 46, 568 A.2d at 1241, was clearly the law when the Byrd trial occurred.

Where our Supreme Court has declared that the prejudice from written instructions outweighs any benefit such instructions might provide, we must conclude that Deputy Public Defender Hylan correctly brought this issue to the attention of the trial court through his post-verdict communication. Further, we believe the trial judge, pursuant to Pa.R.Crim.P. 1123(a) should have considered this ground, “upon cause shown.”

There is no dispute that the trial court did, in fact, utilize written instructions not only in his basic charge to the jury but also in response to an inquiry from the jury concerning the meaning of the words “knowingly” and “consciously”. The only response to this by the Commonwealth and by the Court, on this appeal, is that the issue is waived. Since we do not agree that this issue was waived, on the unique facts in this case, we are constrained to find merit in Byrd’s contention. Moreover, were this specific issue on these precise facts to return to this court within a framework of ineffective assistance of counsel, the fact that the claim has merit and that the defendant has been prejudiced has already been decided by our Supreme Court in Oleynik. In the interest of judicial economy, therefore, and finding the claim to have merit, we reverse judgment of sentence and remand for a new trial. Oleynik, 524 Pa. at 46-47, 568 A.2d at 1241.

We treat the first and second issues, (a) and (b), above, since this matter must be returned for retrial. Also, in light of our status as an intermediate appellate court, we cannot predict the future course of this litigation, which may include further appellate review. Consideration of these two issues is, accordingly, in order. Commonwealth v. Tippens, 409 Pa.Super. 536, 598 A.2d 553 (1991).

As his first issue, Byrd contends that a videotape of the hostage situation which had been made by corrections officers, and which ran approximately seven and one-half hours in length, should have been shown to the jury. We disagree. During an in camera conference on this issue, mid-trial, the distinguished trial judge entertained the Commonwealth’s motion to show a thirty-five minute condensation of the videotape, Exhibit 6, as well as Byrd’s following motion to show the entire videotape. Notes of Testimony, February 26 and 27, 1990, pages 94-106.

We start our analysis with the general principles set forth in Commonwealth v. Conway, 368 Pa.Super. 488, 534 A.2d 541 (1987). There, in reviewing the suppression of the audio portion of a videotape of a driver performing sobriety tests, we set forth the general principles relating to the admission of evidence. A trial court has broad discretion as to the manner in which a trial is to be conducted, particularly with regard to the admission or exclusion of evidence. Id. Not all relevant evidence is admissible, and a trial court may exercise its discretion to exclude relevant evidence that may confuse, mislead or prejudice the jury. Id.

Moreover, where materials have been adequately covered in previous testimony, and the introduction of further evidence on the same point would serve only to distract the jury from the relevant issues, denial of cumulative evidence is proper. Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929, 936 (1990), cert. denied _ U.S. _, 111 S.Ct. 1338, 113 L.Ed.2d 269 (1991).

During the in camera conference to determine whether the videotape, or any portion of it, would be admitted, the trial assistant district attorney admitted that there was nothing that the jury would learn from the tape that they did not already know from the Commonwealth’s evidence already introduced. Notes of Testimony, February 26-27, 1990, page 95. The defendant, Byrd, sought juror viewing of the tapes — according to the record — to introduce testimony of one Mr.. Gaines, a crisis team member and prison counselor. Gaines was being offered to testify to what he perceived to be unfair procedures in connection with Byrd’s earlier murder trial. Id. at pages 97-100. At the time of trial, Byrd argued to the court that the evidence was necessary to prove duress. The trial court properly ruled that Byrd’s perception of prior unfair behavior by those who prosecuted him for murder would not constitute duress as a defense on the kidnapping and related charges, since there was no suggestion of the use of, or threat to use, unlawful force against Byrd amounting to legal coercion. 18 Pa.C.S. § 309(a).

Thus, the use to which Byrd wished to put the videotape was irrelevant to the charges then before the court, and the request to introduce the entire seven and one-half hours of videotape was properly denied. On appeal, Byrd has converted his argument to a present contention that “if the jury were to view the video tape, it might have concluded that the defendant, as a matter of fact and as a matter of law, lacked the requisite criminal intent.” Brief for Appellant, Argument, page 6. Since this argument was not raised at trial, and even is at variance to the grounds set forth in the Motion for New Trial (“video tape was relevant, material and the ‘best evidence’ of the incident”), we conclude that this issue as presented has been waived. Pa.R.Crim.P. 1123(a). Pa.R.A.P. 302(a). Finally, with regard to this issue, we find the analysis set forth by Judge Brown in his Opinion filed March 27, 1991, pursuant to Pa.R.A.P. 1925 to be correct and complete, and is adopted by this court for purposes of further review.

As to the second issue, Byrd argues that the use of the word “uncontroverted” by the assistant district attorney during her closing argument constituted an impermissible comment on Byrd’s decision to present neither evidence nor argument. Near the close of Coletta’s relatively brief closing argument, she said:

Lastly, the defendant is charged with possession of an instrument of crime. Ladies and gentlemen, you heard from Sergeant Sobolewski uncontroverted testimony, ladies and gentlemen, that this came from the defendant’s hands on February 28, 1989. C-l is an instrument with intent to employ criminally. Don’t get caught up, ladies and gentlemen, thinking that there should be something else. We submit to you that we have proven through clear, convincing and credible witnesses and evidence that on February 28, 1989 this defendant held Mr. Schmuckler a hostage.

Notes of Testimony, February 26-27, 1990, page 136. Immediately thereafter, Hylan, the standby assistant public defender, brought to the court’s attention that Byrd desired to make a motion. Byrd moved for a mistrial, claiming that Coletta’s reference to “uncontroverted testimony”, improperly reflected on his constitutional right not to testify.

In support of his contention, Byrd strongly relies upon Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715 (1973). He argues that Davis “presents a factual situation remarkably similar to the case at bar, even with regard to the words uttered by the prosecutor.” Brief for Appellant, Argument, page 12. We cannot agree. In Davis, our Supreme Court was called upon to review the impact of persistent references, over objection, to the evidence being “uncontroverted.” Justice Roberts, throughout the opinion, characterizes the remarks as “repeated use of the words,” and “persistent references.” In evaluating whether the prosecutor’s comments could be saved on a harmless error analysis, Justice Roberts stated:

The prosecutor also repeatedly used the terms “uncontroverted” or “uncontroverted facts” at least three other times in reference to portions of the Commonwealth’s evidence. This argument was obviously calculated to move the jury towards conviction; “Indeed, the very persistence of the government in making these remarks is proof that it attached much importance to them.” We must conclude that there is a reasonable possibility that the prosecutor’s unconstitutional argument “might have contributed to the conviction.”

Davis, 452 Pa. at 179-180, 305 A.2d at 720, (citations omitted). A complete reading of Davis leads to the conclusion that, there, the Supreme Court was reviewing an egregious circumstance of repeated, improper references to matters being “uncontroverted.”

More recently, our Supreme Court has had occasion to review the prosecutor’s reference to testimony being “uncontradicted” and has found no constitutional violation. Commonwealth v. Duffey, 519 Pa. 348, 372, 548 A.2d 1178, 1184 (1988). In that case, the prosecutor had, during closing remarks, referred to certain testimony regarding the condition of an alleged rape victim’s clothing and stated that the evidence on the point was “uncontradicted.” In refusing to find reversible error, our Supreme Court said, in pertinent part:

We recognize that a prosecutor is not permitted to comment adversely upon a defendant’s refusal to testify on the merits of the charge against him. Such comment by the prosecution violates the constitutionally based proscriptions against adverse comment on the refusal of the accused to take the stand. However, we are also mindful that a prosecutor’s remarks fall within the ambit of fair comment if they are supported by evidence and they contain inferences which are reasonably derived from that evidence. Our review of the record indicates that the prosecutor’s remarks did not refer to appellant’s refusal to take the stand in his defense; the prosecutor’s statement was supported by the evidence; and it did not require appellant to rebut it.

Duffey, 519 Pa. at 361, 548 A.2d at 1184, (citations omitted). Compare Commonwealth v. Crawley, 514 Pa. 539, 558, 526 A.2d 334, 344 (1987).

The trial court correctly observed, in this case, that any possible prejudicial impact stemming from the prosecutor’s closing remarks must be evaluated in the context in which they occurred. Commonwealth v. D’Amato, 514 Pa. 471, 489, 526 A.2d 300, 309 (1987). The phrase “uncontroverted testimony” does not automatically trigger .a mistrial, but must be shown to have referred to the accused’s refusal to take the stand. Whether the standard has been violated by the language of the prosecutor is not in the first instance the decision for the reviewing court, but is the duty of the trial judge; we are limited in our review to whether the trial court abused its discretion in refusing to grant a mistrial. Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968) cited in Commonwealth v. D'Amato, 514 Pa. at 491, 526 A.2d at 310.

Comments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. Commonwealth v. D'Amato, 514 Pa. at 490, 526 A.2d at 309. In our review of the record before us, we cannot conclude that the prosecutor’s single reference to the “uncontroverted testimony” during her analysis of the evidence on the charge of possessing an instrument of crime could be reasonably understood to refer to Byrd’s refusal to take the stand in his defense. Her statement was, in fact, supported by the evidence. Commonwealth v. Barren, 501 Pa. 493, 462 A.2d 233 (1983).

While references to “uncontroverted evidence” and “uncontradicted testimony” might better be kept out of the closing remarks of the prosecutor in those cases where the accused has elected not to testify, we cannot say that Judge Brown abused his discretion in denying the motion for mistrial in this case, based upon the complete record before us.

Although we find no merit in the contentions relating to the exclusion of the videotape from juror view and the isolated reference to “uncontroverted testimony” during the prosecutor’s closing remarks, we must nevertheless reverse the judgment of sentence and remand for a new trial, based upon the improper use of written instructions during the charge to the jury.

Judgment of sentence reversed. Case remanded for new trial. Jurisdiction relinquished.