author: ROWLEY, Judge: SPAETH, President Judge,

text:
    488 A.2d 1144
    COMMONWEALTH of Pennsylvania v. Charles Harry McGUIRE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1984.
    Filed Feb. 22, 1985.

      Samuel J. Reich, Pittsburgh, for appellant.
    Melinda G. Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN, TAMILIA and JOHNSON, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is a direct appeal from the judgments of sentence entered after appellant was found guilty by a jury of multiple violations of the Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended 35 P.S. § 780-101, et seq. and criminal conspiracy, 18 Pa.Cons.Stat. § 903(a)(1). At Information No. CC8002095A, appellant was charged with two counts of violation of the CSDDCA, resulting from the possession and delivery of drugs to undercover police officers on January 14, 1980. Two counts of criminal conspiracy stemming from appellant’s activities on January 31, 1980 were also charged therein. At Information No. CC8001638A, appellant was charged with two CSDDCA violations, stemming from his delivery of illegal drugs to police officers on February 26, 1980. Consecutive sentences of 2lh to 5 years imprisonment were imposed at Information No. CC8001638A. Similarly, sentences of 2lk to 5 years imprisonment were entered on each of three counts of Information No. CC8002095A, to run concurrent with the sentences at Information No. CC8001638A.

Appellant presents three questions for our review: first, whether the trial court improperly denied his requested point for charge on the defense of entrapment with respect to the February 26, 1980 incident. Second, whether the trial judge unduly interfered with the presentation of his defense, denying him a fair and impartial trial, and third, whether the consecutive sentences imposed at Information No. CC8001638A are legal.

Although the record in this case is lengthy, the pertinent facts may be briefly stated as follows:

Pennsylvania State Troopers Weis and Galloway conducted an undercover narcotics investigation which first involved appellant’s co-defendants in October of 1979. The undercover agents became friendly with the co-defendants, and made several drug purchases from them. Appellant’s name was mentioned as a supplier of drugs and the officers prevailed on the co-defendants to introduce them to appellant. Appellant thereafter sold or delivered drugs to the officers on two separate occasions in 1980: January 14 and February 26. On February 26, appellant was arrested and charges were filed based on both transactions.

There is a dispute in the testimony concerning the circumstances of the final transaction on February 26. The undercover officers testified that the delivery of substantial amounts of cocaine and methaqualone, which were wrapped in a brown paper bag, was the fulfillment of a bargain they had with appellant for the purchase of these specific drugs. Appellant, on the other hand, testified that one of the undercover officers had requested that appellant, as a personal favor, pick up a plainly wrapped parcel for him from a source that had been arranged by the officers. Appellant then testified that he delivered the unopened parcel to the undercover officers, at all times unaware that it contained drugs.

I.

Appellant’s defense to the February 26 incident was based on two theories. First, appellant contended that since he was a mere courier, unaware of the illicit nature of the contents of the parcel, he lacked the requisite intent to support his conviction for delivery of the drugs on that occasion. Second, he contended that the undercover police activity amounted to entrapment. With respect to his entrapment defense, appellant requested a point for charge which tracked 18 Pa.Cons.Stat. § 313, the entrapment provision of the Crimes Code. The trial court refused this request.

On appeal, argument was scheduled before this court en banc, to review the trial court’s determination that appellant was required to admit all of the constituent elements of the crime charged, including knowledge of the package’s contents at the time he delivered it, before he was entitled to a charge on entrapment.

At the outset, we examine the present nature of the defense of entrapment in light of the defense as it formerly existed. Formerly, the defense consisted of two elements: there must have been (1) evidence that the government initiated the crime and (2) evidence negating the defendant’s propensity to commit the crime. See Commonwealth v. Conway, 196 Pa.Super. 97, 173 A.2d 776 (1961). Thus, the inquiry focused on whether the defendant was, prior to his or her contact with the police, predisposed to commit the crime charged. See e.g., Commonwealth v. Harrison, 228 Pa.Super. 42, 323 A.2d 848 (1974). In addition, the defendant was required to admit all elements of the crime charged before being permitted to raise the defense of entrapment.

By enacting 18 Pa.C.S.A. § 313, however, the Legislature has rejected the “subjective” standard that formerly comprised the entrapment defense. Section 313 provides,

(a) General rule. — A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it,
(b) Burden of proof. — Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment.
(c) Exception. — The defense afforded by this section is unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.

Noticeably absent from section 313 is any reference to reliance on a defendant’s own predisposition. Rather, the focus of inquiry has now shifted to the nature of the government’s conduct. As such, criminal defendants may legitimately contend, “Regardless of my criminal inclinations, I may not be held responsible for any crime, because the police have engaged in improper conduct intended to provoke the commission of a crime.” Thus, the entrapment defense is no longer a means of “justifying” wrongful actions, but is in the nature of a bar to punishment because of improper conduct on the part of the Government.

In its effort to deter governmental conduct which “induces or encourages” citizens to commit crimes, the Legislature has defined improper conduct in two ways. Should law enforcement agents misrepresent the nature of the conduct encouraged, such that civilians are induced to believe that the encouraged behavior is lawful, an entrapment will have been perpetrated for purposes of § 313(a)(1). Significantly, it is not even necessary here that the defendant actually be misled by the government’s representations; the statements need only be designed to induce the belief that the conduct is lawful. Thus, even if the defendant knows that his conduct could expose him to criminal liability, such grossly unwarranted conduct by law enforcement agents or those acting in cooperation with them compels, in itself, the conclusion that the defendant has been entrapped and must be acquitted.

Entrapment is also defined as the use of “methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.” § 313(a)(2). Again, a particular defendant’s attitude is not relevant; he need not prove that he was not “ready to commit” the crime. Rather, he must establish by a preponderance of the evidence that the methods of persuasion directed toward him, if utilized again, present a substantial risk that otherwise honest, law-abiding citizens may at some time be ensnared.

As the statutory definitions reveal, then, Pennsylvania’s entrapment statute addresses the concern over “unconventional” investigatory methods, and the potentialities inherent in these overreaching tactics. As such, the analysis only incidentally involves a particular defendant.

This view of § 313 finds support in the Comment to the Pennsylvania Standard Jury Instructions, Criminal Instructions Subcommittee Drafts, § 8.313 (1974).

The defense of entrapment is defined by Crimes Code § 313. With the exception of certain bodily injury crimes, every crime is subject to the defense, see Crimes Code § 313(c). Section 313 follows Model Penal Code, Proposed Official Draft, § 2.13 (1962) except that it eliminates a Model Penal Code requirement that the defense be tried by the court. Section 313 adopts a concept of entrapment new to Pennsylvania law. Pennsylvania courts had previously followed the approach of the majority in two United States Supreme Court cases, Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932) and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1938) (1958). The old Pennsylvania law required that the defendant be an otherwise innocent person until the police or their agent, through creative activity, planted the idea to commit a crime in his mind and induced him to do so, see Commonwealth v. Klein, 222 Pa.Super. 409, 294 A.2d 815 (1972); Commonwealth v. Conway, 196 Pa.Super. 97, 173 A.2d 776 (1961). Crimes Code § 313 and Model Penal Code § 2.13 follow the minority view of the United States Supreme Court as articulated by Justice Frankfurter in his concurring opinion to Sherman v. United States, supra [356 U.S.] at 378, 78 S.Ct. 823, 2 L.Ed.2d 854. This view conceives the entrapment defense as aimed at deterring police wrongdoing. The defense provides a sanction for overzealous and reprehensible police behavior comparable to the exclusionary rule. The focus of the defense is on what the police do and not on what kind of person the particular defendant is — whether he is innocent or predisposed to crime. The defense is available to any defendant, irrespective of his character, provided the government has created a risk that those who presently would obey the law might be drawn to crime, see Model Penal Code, Tentative Draft No. 9, 14-15, 19-20 (1959); Com monwealth v. Conway, supra [196 Pa.Super.] at 103, 173 A.2d 779 (1961).

(Emphasis added.)

We turn, then, to the pivotal issue here: is the common-law rule that a defendant must admit all elements of the offense charged sufficiently inconsistent with this new approach to entrapment to require its alteration or abolition?

Preliminarily, we note that neither the statute itself, nor any of the authoritative discussions of the defense of entrapment in Pennsylvania adequately address this question. Moreover, a split of authority exists among American jurisdictions on this precise issue. Compare People v. Arriaga, 92 Ill.App.3d 951, 48 Ill.Dec. 387, 416 N.E.2d 418 (1981) (Rejecting fifteen-year old precedent and re-adopting common-law rule, court held that, absent admission of statutorily-required mental state, entrapment defense was unavailable to criminal defendant) with Martinez v. State of New Mexico, 91 N.M. 747, 580 P.2d 968 (1978) (Where denial of some of the elements of an offense was not factually repugnant to entrapment defense, trial court must issue requested instruction on entrapment.)

Upon consideration of the analyses underlying these divergent positions, we conclude that continued adherence to the common-law rule would indeed circumvent the legislative direction embodied in § 313. As such, we adopt the view, articulated in Martinez v. State, supra, as the appropriate rule consistent with the basic change in the defense as wrought by the Pennsylvania Legislature.

Several factors warrant this change. First, preclusion of the defense where the accused denies criminal intent, as in the instant case, is neither explicitly required by the terms of the statute, nor compelled by the nature of the inquiry set forth within it. Although the Legislature did provide an exception to the applicability of the defense, § 313(c), no language directing that entrapment be raised, if at all, to the exclusion of all other defenses, or forbidding assertion of this defense when one or more of the elements of the offense are contested, was included. Moreover, while the requirement of admission of criminal culpability-may originally have been warranted, the Legislature’s elimination of the accused’s predisposition as the focal inquiry seriously calls into question the wisdom of continued adherence to the common-law rule. Entrapment is recognized as a defense because the Legislature refuses to permit officers of the law to consummate illegal or unjust schemes designed to foster, rather than to prevent or detect, crime. Thus, an entrapment rule that focuses almost exclusively on police misconduct should not properly be restricted by compelling a defendant to incriminate himself as a prerequisite to invocation of the rule, at the risk of not being able to meet his burden of proving entrapment. People v. Perez, 62 Cal.2d 769, 44 Cal.Rptr. 326, 401 P.2d 934 (1965). To place a defendant in this dilemma would frustrate the assertion of the defense itself, and would thus undermine its policy. As the Supreme Court of New Mexico noted,

While entrapment is not a defense of constitutional dimension, ... requiring the defendant to forego proof beyond [a] reasonable doubt to assert entrapment relieves the State of its constitutional burden and is tantamount to requiring him to plead guilty. Where the defenses are not mutually repugnant, this is asking too much.

Martinez v. State, 91 N.M. 747, 750, 580 P.2d 968, 971 (1978) (Citation omitted.)

The defenses raised in the instant case — lack of criminal intent and entrapment — are not mutually repugnant. Accordingly, the Commonwealth may not be relieved of establishing appellant’s criminal intent beyond a reasonable doubt.

As several courts have recognized, the common-law rule is predicated upon the belief that an individual cannot logically deny the commission of an offense and at the same time claim entrapment. See State v. Branam, 161 N.J.Super. 53, 390 A.2d 1186 (1978), aff'd 79 N.J. 301, 399 A.2d 299 (1979) and State v. McBride, 287 Or. 315, 599 P.2d 449 (1979). We are persuaded, however, that this alleged “logical” inconsistency is, in fact, illusory. As the McBride court observed, the apparent inconsistency stems merely from the fact that a finding of entrapment depends on an antecedent determination that the criminal act was indeed committed; a jury cannot ultimately conclude that the accused did not commit a crime and that he was entrapped into committing it. McBride, at 319-320, 599 P.2d at 451. On the other hand, an accused’s own testimony may be internally consistent and still create a reasonable doubt both as to the commission of a crime and the propriety of the police agent’s conduct. For example, a defendant charged with purchasing an illegal drug may claim that a police officer or agent tried to convince him to purchase the drug, but that he nevertheless resisted. Because the fact-finder is free to believe all, part, or none of the defendant’s testimony, the testimony could support an acquittal on either of two grounds: (1) the defendant did not purchase the drug, or (2) the defendant was entrapped into purchasing the drug.

Similarly, we perceive no inconsistency in the denial of the requisite mental state (as opposed to conduct) and an allegation of entrapment, given the shift in perspective effectuated by § 313. Inducement of the underlying activity is not necessarily inducement of a particular state of mind, because the activity may reflect any of several different motives. Moreover, the language of § 313 suggests that an accused’s lack of criminal intent is all but assumed. Section 313(a)(1) makes the defense available to an individual who is told by police agents that the conduct constituting the offense is not unlawful and who engages in that conduct in response to that information. Consequently, under this provision, there will be cases in which culpable intent will not exist. Why, then, should a defendant who explicitly contends that he did not possess the requisite intent be deprived of the benefit of the entrapment defense, merely because he expressed his lack of intent?

Furthermore, appellant’s testimony in the instant case, if believed, reveals no inconsistency between an assertion of innocence, and a claim of entrapment as it currently exists in Pennsylvania. Appellant testified that the undercover agents requested a favor of him, that he pick up a package and deliver it to them. The parcel was plainly wrapped; appellant testified he did not know what was in the package until the officers opened it.

As in the earlier example, appellant’s testimony is susceptible to several interpretations which would support an acquittal: (1) he did not possess the requisite legal intent, i.e., knowledge of the package’s contents, and (2) regardless of any knowledge appellant may have had concerning the package’s contents, the agents’ conduct was “designed to induce [his] belief” that delivery of the parcel to them was lawful. Whether he did or did not know, or whether he was entrapped into committing the crimes, are both reasonable conclusions based upon legitimate inferences supported by the testimony. Because both constructions may be valid, there is no logical reason to prefer one to the total exclusion of the other; the appellant is entitled to have the issue submitted to and decided by a jury.

We conclude, therefore, that a criminal defendant should no longer be required to admit to every element of the offense with which he is charged before he may contend that he was entrapped into the conduct which serves as the basis for that charge. Rather, as in Martinez v. State, supra, we hold that the entrapment defense will be available to defendants, such as appellant, who admit to at least some of the elements charged. Where that line will ultimately be drawn will depend on the facts and the legal elements of the crimes with respect to which the defense is asserted.

Official conduct designed to provoke criminal behavior, or which creates a substantial risk that unwitting citizens will be implicated in criminal schemes, should not be tolerated in Pennsylvania. We therefore hold that where the defendant has admitted some of the elements of an offense and denied others, and where the denial of those other elements is not factually repugnant to the defense of entrapment, the trial court must, upon request and when there is evidence from which a jury could find that an entrapment has occurred, give an instruction to the jury on the defense of entrapment. In the present case, all of these requirements have been met. Accordingly, we conclude that the trial court erred in failing to give the requested instruction with regard to the February 26 incident.

II.

Appellant also complains that the trial court through various interruptions of trial counsel and other interjections into the trial proceedings, prejudiced the jury against him and thus prevented a fair and impartial trial. It is important to note that appellant does not here question the trial court’s rulings on specific questions, but rather claims prejudice from the manner in which the court made these rulings, questions and other comments. Appellant points to several specific instances in the notes of testimony in support of his position.

The general rules regarding proper conduct of the trial judge are set forth in Commonwealth v. Myma, 278 Pa. 505, 123 A. 486 (1924). There our Supreme Court stated:

The practice of a judge entering the trial of a case as an advocate is emphatically disapproved. The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality.
sis sjs sfc jje sj« sfs
“... [However, the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses ... may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.”

Id., 278 Pa. at 508-509, 123 A. at 487 (quoting 9 Am.Bar Ass’n Jour. 450). See also Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977) and Commonwealth v. Nicholson, 308 Pa.Super. 370, 454 A.2d 581 (1982). With these general principles in mind, we may now turn to appellant’s specific allegations of undue interference.

Initially, appellant notes three separate instances in the course of counsel’s opening statement where he was interrupted by the trial court. In the first of these, the trial court warned counsel away from stating that one of appellant’s co-defendants did not know what “coke” was before she met the undercover police. The court indicated that this was argument and inappropriate in an opening statement. Second, the court requested that counsel simply outline his case and avoid detailed descriptions of police laboratory reports which he thought would be offered by the Commonwealth. Finally, the court prevented counsel from discussing the entrapment defense.

While the trial court should refrain from unnecessary interference with the conduct of the trial, and allow counsel reasonable latitude to develop their respective positions, the opening statement as an important stage in a criminal trial must be subject to the oversight of the trial court. Commonwealth v. Phillips, 183 Pa.Super. 377, 132 A.2d 733 (1957); Commonwealth v. Graham, 248 Pa.Super. 406, 375 A.2d 161 (1977). It is clear that the interruptions cited by appellant were only designed to expedite the trial of the case by confining the opening statement to an outline of the defense and eliminating overly detailed descriptions of potential evidence. We do not consider this the type of involvement which would prejudice appellant’s case, but rather a permissible exercise of judicial control to insure an orderly trial.

Appellant also complains of judicial interference during cross-examination of the undercover agent. At one point, after counsel had asked the witness whether he habitually used drugs, the trial judge sarcastically volunteered: “Do you, counselor?” Apparently in an attempt to put counsel’s question in perspective, the court went on to say that he (the judge) took aspirin daily, implying that he was not thereby an habitual drug user. Appellant also complains that the trial judge interrupted counsel’s questioning of the same witness as to his use of false names in connection with his duties as an undercover officer, and warned that counsel should not “castigate” the trooper with such questions.

Often in the course of a trial, the judge must address counsel. However, when the court does address counsel, it should be studious to avoid controversies which are apt to obscure the merits of the dispute between litigants and lead to its unjust disposition. “In addressing counsel, litigants, or witnesses, [the court] should avoid a controversial manner or tone.” Commonwealth v. Horvath, 446 Pa. 11, 18, 285 A.2d 185, 188 (1971) (quoting Canons of Judicial Ethics). See also Canon 3(A)(3) of the Pennsylvania Code of Judicial Conduct (effective Jan. 1, 1974).

The law recognizes that, while judges must be vigilant to maintain the highest standards of judicial restraint, “... not every unwise or irrelevant remark made in the course of a trial by a judge, a witness or counsel compels the granting of a new trial.” Commonwealth v. Humphreys, 267 Pa.Super. 318, 330-331, 406 A.2d 1060, 1066 (1979). “A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.” Commonwealth v. England, 474 Pa. 1, 16-17, 375 A.2d 1292, 1300 (1977) (quoting Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973). We are satisfied that these remarks, which were directed solely at counsel and not appellant, did not reach such a level where it could be concluded that appellant was denied a fair and impartial trial.

The judgments of sentence imposed on Information number CC8002095A are affirmed. The judgments of sentence imposed on Information number CC8001638A are reversed and the case is remanded for a new trial on Information number CC8001638A.

Jurisdiction is relinquished.

SPAETH, President Judge, files a concurring and dissenting opinion.

McEWEN, J., joins in the concurring and dissenting opinion of SPAETH, President Judge.

SPAETH, President Judge,

concurring and dissenting:

The principal issue on this appeal is whether the trial court erred in holding that the defense of entrapment is available only to a defendant who admits to all of the elements of the offense charged. I agree with the majority that the trial court did err, and I therefore concur in its order granting a new trial. However, I disagree with the majority’s conclusion that the defendant must “admit to at least some of the elements [of the offense] charged.” Majority op. at 1151. I believe the defense of entrapment should be available even if the defendant admits to none of the elements of the offense charged.

I agree with the majority that in 18 Pa.C.S. § 313, our legislature adopted the objective test for entrapment, and that this test, which focuses entirely upon the conduct of the police, makes evidence of a particular defendant’s “predisposition” to criminality irrelevant. See Majority op. at 1149; Sherman v. United States, 356 U.S. 369, 384, 78 S.Ct. 819, 826, 2 L.Ed.2d 848 (1958) (FRANKFURTER, J., concurring) (objective test “shifts attention from the record and predisposition of the particular defendant to the conduct of the police.”)

In providing that entrapment is a defense, however, the legislature imposed no requirement that the defendant admit to any element of the offense charged. Thus, any such requirement must be imposed by us, and must be justified as being consistent with the legislature’s purpose in enacting § 313. See State v. McBride, 287 Or. 315, 599 P.2d 449, 452 (1979) (court refuses to impose admission requirement where “statutory codification of the entrapment defense, contains nothing that would require the defendant to admit doing the proscribed act before being allowed the benefit of the defense, ... ”) In fact, an admission requirement is in consistent with the legislature’s purpose in enacting § 313. As Justice TRAYNOR explained in People v. Perez, 62 Cal.2d 769, 775, 44 Cal.Rptr. 326, 330, 401 P.2d 934, 938 (1965): “Entrapment is recognized as a defense ... to deter ... unlawful [police] conduct [and such a rule] cannot properly be restricted by compelling a defendant to incriminate himself as a condition to invoking the rule.” See also People v. D’Angelo, 401 Mich. 167, 178, 257 N.W.2d 655, 660 (1977) (“[s]ince our [objective] test for entrapment does not look to the defendant’s so-called predisposition to commit the crime charged but focuses instead upon the challenged governmental activity, the defendant will not be required to admit the criminal act in order to raise the entrapment issue.”)

The reasoning in support of an admission requirement is that it is supposedly illogical to allow a defendant to deny having committed an offense while at the same time claiming he was entrapped into committing it. See, e.g., United States v. Williamson, 482 F.2d 508, 515 (5th Cir.1973); State v. Bruno, 204 N.W.2d 879, 882 (Iowa 1973). This reasoning, however, is not persuasive.

In the first place, for all crimes containing an element of scienter, the defendant may admit doing the act, but, with no inconsistency, claim that he did not do so knowingly. See, e.g., United States v. Greenfield, 554 F.2d 179, 182-83 (5th Cir.1977), cert. denied 439 U.S. 860, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978), (where physician denies he knowingly misprescribed controlled substances and claims he was entrapped, court finds no impermissible inconsistency); State v. Branam, 161 N.J.Super. 53, 390 A.2d 1186, 1191, aff'd 79 N.J. 301, 399 A.2d 299 (1979) (“we fail to find any real inconsistency where, as here, defendant contends that she intended to commit no crime and that the acts which might give rise to an inference of intent were induced by an agent of the State.”)

In addition, where a defendant presents two mutually exclusive theories, the jury may believe that the evidence supports one, but not the other. In such a case, there is no inconsistency but simply alternative interpretations of the evidence; an inconsistency would occur only if the jury chose to adopt both alternatives. See Hansford v. United States, 303 F.2d 219-20 (D.C.Cir.1962) (where defendant denies knowingly selling heroin and also claims entrapment, court holds “the defenses were alternative but not inconsistent. It was consistent with defendant’s denial of the transaction to urge that if the jury believed it did occur, the government’s evidence as to how it occurred indicated entrapment.”)

Moreover, even if there is a necessary inconsistency, that is not a reason to preclude the defense of entrapment. Obviously, the defendant will greatly damage his own credibility by following such a strategy, see State v. Stone, 629 P.2d 442, 446 (Utah 1981) (by urging “inconsistent factual contentions, a defendant’s credibility would suffer immensely”), but entrapment should not be an exception to the well-established rule that a defendant may assert inconsistent defenses. See, e.g., United States v. Demma, 523 F.2d 981, 985 n. 6 (9th Cir.1975) (collecting cases); Groot, The Serpent Beguiled Me and I (Without Scienter) Did Eat— Denial of Crime and the Entrapment Defense, 1973 U.Ill. L.F. 254, 259 n. 27 (collecting cases). As the Ninth Circuit has said, “The rule in favor of inconsistent defenses reflects the belief of modern criminal jurisprudence that a criminal defendant should be accorded every reasonable protection in defending himself against governmental prosecution.” United States v. Demma, supra at 985. See also State v. McBride, supra, 287 Or. at 321, 599 P.2d at 452 (“[s]ince inconsistent defenses are allowed in criminal cases generally, there is no justification for prohibiting them in cases involving entrapment.”)

And finally, there are serious problems of fairness, which may approach constitutional dimension, with a rule that relieves the government of its burden of proving each element of a crime beyond a reasonable doubt. See United States v. Demma, supra at 986; Groot, supra at 269-75. As Justice TRAYNOR wrote in People v. Perez, supra 62 Cal.2d at 775, 44 Cal.Rptr. at 330, 401 P.2d at 938, “To compel a defendant to admit guilt as a condition to invoking the defense of entrapment would compel him to relieve the prosecution of its burden of proving his guilt beyond a reasonable doubt at the risk of not being able to meet his burden of proving entrapment.”

For all these reasons, I favor the adoption of the rule stated by the Supreme Court of Oregon in State v. McBride, supra 287 Or. at 317, 599 P.2d at 450: “A criminal defendant is entitled to the defense of entrapment without being required to concede that she committed the crime or any of the elements of the crime.”

Despite its reliance on People v. Perez, supra, and State v. McBride, supra, both of which adopt the “no elements” rule that I favor, the majority adopts the rule enunciated by the New Mexico Supreme Court in Martinez v. State, 91 N.M. 747, 580 P.2d 968 (1978), “that where the defendant has admitted some elements of an offense, although not all, and where the denial of all other elements is factually not repugnant to the defense of entrapment, the trial court must issue an instruction on entrapment.” Id. at 750, 580 P.2d at 971. However, the court in Martinez advanced no reasons to explain its choice of rule; I can think of none; and the majority suggests none.

It seems evident that in a state, like Pennsylvania, that follows the objective test, a requirement that the defendant make an admission is irrelevant. In addition, the requirement must prove inefficient. One of the advantages of the objective test is that it provides a fixed standard for evaluating police conduct, in contrast to the subjective test, which delves into the particular defendant’s “predisposition” to criminality. Under Martinez, however, the court must determine, on a case-by-case basis, whether the defendant’s denial is “factually ... repugnant to the defense of entrapment.” This appears to me to be an open invitation to litigation in support of no discernible policy objective.

      . Sentence was suspended on the remaining count.

      . Although at trial, counsel for appellant requested a charge to the jury on entrapment generally, on appeal appellant pursues this claim only with regard to the circumstances of February 26, 1980.

      . Appellant's co-defendants are not parties to this appeal.

      . The more recent entrapment cases have rejected the subjective theory in favor of the objective theory of entrapment. See, e.g., Commonwealth v. Taylor, 299 Pa.Super. 113, 445 A.2d 174 (1982); Commonwealth v. Danko, 281 Pa.Super. 97, 421 A.2d 1165 (1980).

      . See also, the cases collected at 5 A.L.R.4th 1128 (1981).

      . The mere fact that, as a matter of strategy, a given criminal defendant may choose not to pursue every means of defense available to him does not justify a requirement that he choose one from among several alternative defenses.

      . For example, as mentioned in Martinez, supra, alibi and entrapment are two defenses which will always be inconsistent. A defendant cannot be “elsewhere" and be entrapped by police agents that he was not near.

      . Because we have concluded that appellant’s first argument requires a new trial, we need not consider the issue raised with regard to the legality of the sentences imposed at Information number CC8001638A.

      . As evident from his opening statement, trial counsel limited assertion of the entrapment defense to the February 26, 1980 incident. Thus, our earlier analysis renders academic any discussion of the trial court’s instruction of counsel’s remarks concerning entrapment.

      . Because I believe that appellant's first argument, that he was improperly denied his requested point for charge on entrapment, requires a new trial, I should not reach either his second argument, that the trial judge unduly interfered with the presentation of his defense, or his third, that his sentence was illegal.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    488 A.2d 1155
    Russell N. BURR, Appellant, v. Jane E. MORGART, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1984.
    Filed Feb. 22, 1985.

      Scott L. Kelley, Hanover, for appellant.
    Neil Hurowitz, King of Prussia, for appellee.
    Before WICKERSHAM, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

This is an appeal from an order refusing to alter a prior agreed order awarding primary custody of a female child to her mother. The order appealed from was entered following hearing on the father’s petition alleging a “severe change of circumstances” within the two year period following entry of the agreed order. The hearing court found, however, that there had been no substantial change in circumstances and dismissed the petition. We affirm.

The custody proceedings had their inception when, on June 18, 1979, Jane E. Burr Morgart filed a petition seeking an order confirming custody of her daughter, Corinne Burr. The child, who was then three years of age, had been living with her mother following the mother’s divorce from Russell Burr in 1977. On October 24, 1979, an order was entered which granted rights of visitation to the father. On March 16, 1981, the father filed a petition seeking full custody of his daughter. No hearings were held, however, and on January 27, 1982 an agreed order was entered which provided that custody was to be “on a co-parenting basis with the primary custody in the mother, and the secondary custody in the father ...” The order also included a lengthy and detailed schedule of visitations and shared custody. On April 21, 1983, the father filed his petition alleging a change in circumstances and seeking sole custody of his daughter, then seven years of age. On October 25, 1983, the hearing court interviewed Corinne and found her to be a bright, precocious and articulate child. She asserted a preference to live with her father, his wife (her stepmother) and her stepbrother. On the following day a hearing was held to determine whether there had been a change in circumstances following the earlier, agreed order. At the conclusion of the hearing, the court found that there had been no substantial change in circumstances and dismissed the petition. The father appealed.

The threshold question in any proceeding to modify a prior custody order is whether there has been a substantial change in circumstances following entry of the prior order so as to require reconsideration of the custody issue. Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 40, 446 A.2d 1323, 1324-1325 (1982). The burden of proving this substantial change is upon the party seeking to modify the custody order. English v. English, 322 Pa.Super. 234, 238-240, 469 A.2d 270, 272 (1983). “To permit a party to relitigate [the] relative fitness of parents to have custody of children by an inquiry into the same or other facts existing at the time of or prior to the former decree would lay a foundation for interminable and vexatious litigation.” Commonwealth ex rel. O’Hey v. McCurdy, 199 Pa.Super. 22, 24, 184 A.2d 290, 291 (1962) quoting Commonwealth ex rel. Crawford v. Crawford, 170 Pa.Super. 151, 154, 84 A.2d 237, 238 (1951). The reasons for the rule requiring a substantial change in circumstances are no less viable because the prior custody order was entered without hearing and pursuant^ to agreement of the parties.

Appellant contends that the changed circumstances in this case included (1) the appellee-mother’s alleged promiscuity; (2) the appellee-mother’s remarriage in November, 1982; and (3) Corinne’s unprompted, voluntary and spontaneous expression of a desire to live with her father.

The only testimony regarding the mother’s promiscuity came from Corinne and pertained to a single incident with a male friend of her mother. Appellee denied it. The custody court concluded that, in any event, it was not a factor requiring a reconsideration of the prior order, for it did not have any adverse effect upon the welfare of the child. This is supported evidentially by the record and is a correct application of the law. See: Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); Commonwealth ex rel. Grimes v. Grimes, 281 Pa.Super. 484, 422 A.2d 572 (1980).

Similarly, the hearing court could properly conclude that the mother’s remarriage was not a substantial factor requiring reconsideration of the prior custody order. Although the effect of the remarriage upon Corinne was disputed, the hearing court found that it did not affect the ability of the mother to nurture, care for, and maintain a stable environment for Corinne’s continued growth and development. Corinne had been with her mother continuously since birth, and the mother had always been the primary caretaker. This was an important consideration. See: Hartman v. Hartman, 328 Pa.Super. 154, 476 A.2d 938 (1984); Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d 152 (1983); Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 447 A.2d 630 (1982). The court could properly conclude that this relationship between mother and daughter had not been impaired by the mother’s remarriage. Similarly, there was no reason to believe that the relationship between Corinne and her father would not continue to prosper merely because of her natural mother’s remarriage.

The weight to be given a child’s preference is to be determined by the trial judge who sees and hears the child. Commonwealth ex rel. Grimes v. Grimes, supra, 281 Pa.Super. at 494, 422 A.2d at 577. Accord: In re Davis, 288 Pa.Super. 453, 466, 432 A.2d 600, 606-607 (1981). This depends to a great extent upon the age, maturity, and intelligence of the child. Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 327 n. 4, 421 A.2d 157, 160 n. 4 (1980). The determination must be made on a case by case basis. Although a child’s preference should be carefully considered, it is not controlling. Commonwealth ex rel. Bankert v. Children’s Services, 224 Pa.Super. 556, 562, 307 A.2d 411, 415 (1973).

Corinne’s preference for her father included a desire to be with her stepmother and four year old stepbrother, a desire to take ballet lessons provided by her father, her fondness for the garden and a pony which were available for her use at her father’s home, and a desire to attend school in Littlestown where her father resided. These are certainly factors important to a child, and we do not belittle their significance when we defer to the discretion of the trial judge who found that “it was not unnatural that she should make some expressions of preference based upon childlike reasonings; as, for example, having the availability of a pony.” There was no abuse of discretion in the court’s conclusion that Corinne’s expressed preference to live with her father did not alter or detract from the adequate care she was receiving under and according to the terms of the prior award of custody.

The order is affirmed.


author: PER CURIAM:

text:
    488 A. 2d 1158
    COMMONWEALTH of Pennsylvania v. James T. OSTERRITTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1983.
    Filed March 1, 1985.
    Shelley Stark, Assistant Public Defender, Pittsburgh, for appellant.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   PER CURIAM:

This is a direct appeal from the judgment of sentence imposed subsequent to appellant’s guilty plea to charges of criminal attempt (rape), indecent assault and terroristic threats. Appellant contends that: (1) his guilty.plea was defective and trial counsel was ineffective in failing to properly challenge it ; and (2) the sentence imposed was illegal. We do not address the merits of these issues, however, as we are compelled to remand for the appointment of new counsel.

On this appeal appellant is represented — as he was at trial — by an attorney from the Allegheny County Public Defender’s Office. “When an appellant raising ineffectiveness of trial counsel is represented by appointed counsel from the same office which represented him at trial, the proper procedure is to remand to allow appointment of new counsel not associated with trial counsel. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Sherard, 477 Pa. 429, 384 A.2d 234 (1977); Commonwealth v. Miller, 473 Pa. 398, 374 A.2d 1273 (1977).” Commonwealth v. Patrick, 477 Pa. 284, 286-87, 383 A.2d 935, 936 (1978); Commonwealth v. Serianni, 337 Pa.Super. 309, 486 A.2d 1349 (1984). Since our review has not revealed reversible error apparent on the record, we must remand for the appointment of new counsel not associated with the Allegheny County Public Defender’s Office, to represent appellant on the issue of trial counsel’s alleged ineffectiveness and any other issue not waived. Commonwealth v. Fox, supra; Commonwealth v. Serianni, supra.

The record is remanded for appointment of new counsel to represent appellant. Jurisdiction is relinquished.

         Appellant maintains that his trial counsel was ineffective in not raising the grounds advanced on this appeal in his presentence motion to withdraw the plea, Pa.R.Crim.P. 320; and in neglecting to challenge the denial of that motion pursuant to Pa.R.Crim.P. 321.


text:
    488 A.2d 1159
    COMMONWEALTH of Pennsylvania v. Granville WESSAW, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 17, 1985.
    Filed March 1, 1985.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.:
   PER CURIAM:

Appellant filed a Petition for Time Credit in the court of common pleas seeking credit for time spent in certain in-patient treatment programs against his sentence of two to twenty years in a state correctional institution. The common pleas court denied the petition, without a hearing, by notice sent to counsel on April 2, 1982. Appellant seeks to appeal to this Court from the denial of the petition for time credit.

Appellant does not contest the judgment of sentence (two to twenty years) entered September 22, 1981. He seemingly only desires to be credited with 478 days during which he was confined to Danville Hospital and Praxis House. Neither the Bureau of Corrections nor the Board of Probation and Parole has been made a party to this action.

Appellant has not utilized the writ of habeas corpus to attack his detention. See 42 Pa.C.S. §§ 6502, 6503. His disagreement is not with the trial court’s judgment of sentence but with the interpretation to be placed on his alleged right to credit for time served. The appeal is dismissed without prejudice to appellant’s right to pursue his contention by writ of habeas corpus in the sentencing court. Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287 (1983). See Cox v. Pennsylvania Board of Probation & Parole, 78 Pa.Commw. 183, 184 n. 1, 467 A.2d 90, 91 n. 1 (1983).

Appeal dismissed.


text:
    488 A.2d 1160
    COMMONWEALTH of Pennsylvania v. George H. SIRBAUGH, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1984.
    Filed March 8, 1985.
    Robert P. Petyak, Ebensburg, for appellant.
    Ralph F. Kraft, Asst. Dist. Atty., Johnstown, for Commonwealth, appellee.
    Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
   ORDER

PER CURIAM:

The instant appeal is remanded to the Court of Common Pleas of Cambria County for:

(1) Inclusion in the record of the complete and unedited statements of appellant and his co-defendants; and

(2) A statement, in the form of an opinion, setting forth the reasoning of the trial court with regard to the various rulings made thereby. See Pa.R.A.P. 1925(a). Robson v. State Farm Mutual Automobile Insurance Co., 335 Pa.Super. 365, 484 A.2d 177 (1984).

Jurisdiction is retained.


author: HOFFMAN, Judge:

text:
    489 A.2d 196
    Eleanor Hilda Goettel RESTIFO, Appellant, v. Joseph Vincent RESTIFO.
    Superior Court of Pennsylvania.
    Argued Aug. 21, 1984.
    Filed Jan. 25, 1985.
    Reargument Denied April 4, 1985.

      Albert C. Oehrle, Norristown, for appellant.
    Joseph Restifo, in propria persona.
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

The issue on appeal is whether a defendant-spouse is entitled to a hearing on his counterclaim in divorce alleging fault grounds where the plaintiff-spouse alleged no-fault grounds in her complaint and withdrew her alimony claims. We hold that both parties were entitled to present evidence on their claims and, accordingly, affirm the order below.

The parties were married on April 8, 1956. On November 18, 1980, the wife filed a complaint in divorce under § 201(d) of the 1980 Divorce Code, alleging that the parties had been separated for at least three years and that the marriage was irretrievably broken. See 23 P.S. § 201(d)(1). She also sought equitable property distribution, alimony pendente lite and counsel fees and costs. She filed her § 201(d) affidavit the next day; no counter affidavit was filed by the husband. The husband subsequently filed an answer, new matter and a counterclaim seeking a divorce on the grounds of desertion, adultery and indignities. The lower court appointed a Master in Divorce on February 17, 1981, and, at the Master’s hearing on April 6, 1981, testimony was taken concerning the wife’s “no-fault” grounds for divorce.

The husband then filed preliminary objections to the wife’s equitable distribution claims asserting that it was unconstitutional to apply the Divorce Code retroactively. The lower court denied these preliminary objections on February 22, 1982, and directed the Master to proceed forthwith with disposing of all matters outstanding in the case. Upon the husband’s appeal of the order, the Superior Court, in an August 20, 1982 per curiam order, quashed the appeal as interlocutory.

In a letter dated October 26, 1981, the wife’s counsel requested the Master to file his report. Instead of filing the report, the Master held further hearings on the husband’s counterclaim. On November 3, 1982, the wife filed a petition to compel the filing of a Master’s Report on her no-fault claims alone and for a stay of proceedings. After the husband answered this petition, the lower court entered an order on November 12, 1983 which granted the stay and entered a rule against the husband to show cause why the wife’s request should not be granted. Following a conference with the parties, the lower court entered the following order:

And now, January 7, 1983, after conference, Court enters following order.
1. Defendant has right to be heard on counterclaim.
2. Defendant has right to call plaintiff and any other witnesses on cross examination.
3. Master to proceed with hearing on defendants counterclaim.
4. All costs including Masters and further hearing costs to be paid by defendant.
Possible counter claim for Alimony Pendente Lite to be withdrawn.

On January 27, 1983, the wife filed a praecipe to withdraw her claim for alimony pendente lite and alimony. On February 2, she filed a petition for reconsideration of the January 7, 1983 order affirming the husband’s right to a hearing on his counterclaim. On February 7, 1983, the lower court denied the petition for reconsideration but did certify the issue as involving a controlling question of law as to which there is a substantial ground for difference of opinion and one as to which an immediate appeal would materially advance the ultimate termination of the matter. See 42 Pa.C.S.A. § 702(b) (interlocutory appeals by permission). Upon the wife’s filing a petition for permission to appeal on February 8, the Superior Court, in a June 21, 1983 per curiam order, granted the petition, and the notice of appeal was docketed the same day. On September 23, 1983, the lower court filed an opinion, dated September 20, in support of its January 7 and February 7, 1983 orders.

Appellant-wife contends that, because her supporting affidavit and testimony at the first hearing were uncontested by appellee-husband, the lower court erred in refusing to direct the Master to file a report recommending a divorce on her no-fault grounds alone. She asserts that, in this case, the legislative intent behind the 1980 Divorce Code would be contravened by holding further hearings on appellee’s fault counterclaim and that marital misconduct may now only be considered in a petition for alimony and alimony pendente lite. See 23 P.S. § 501(b)(14).

The legislative intent behind the 1980 Divorce Code is expressly set forth in § 102 of the Code, and summarized as follows:

[T]he six subsections of § 102(a) [of the Pennsylvania Divorce Code] all express different aspects of a single consistent philosophy on marriage and the family, ...: The family is the basic unit in society and should be preserved and protected. However, when a marriage cannot be preserved, which is to say, when one or more of the grounds for divorce contained in § 201 exist, the dissolution should be accomplished in a manner that recognizes the prior existence of the family as both an economic and a social unit, and that emphasizes the future welfare of each member of the family, instead of in a manner that identifies and punishes guilty parties.

Gordon v. Gordon, 293 Pa.Superior Ct. 491, 510-11, 439 A.2d 683, 692-93 (1981), aff'd, 498 Pa. 570, 449 A.2d 1378 (1982). See also 23 P.S. § 102. Jakstys v. Jakstys, 326 Pa.Superior Ct. 367, 371-72, 474 A.2d 45, 47-48 (1984). Thus, appellant-wife argues, in effect, that, once a no-fault basis for divorce has been proven, the court should not consider the opposing spouse’s fault claims. We note, however, that the 1980 Divorce Code does not expressly provide for any such preferential treatment and sets forth fault and no-fault bases as alternative grounds for divorce. See 23 P.S, § 201(a), (c) and (d)(1).

Therefore, the legislature clearly intended to retain the traditional fault grounds for divorce when it added the no-fault grounds in 1980 and arguably intended to retain them on an equal footing with the no-fault grounds. In the absence of a legislative pronouncement excluding consideration of fault grounds when no-fault grounds are also alleged, we decline to adopt appellant’s argument.

Additionally, this Court has stated that “a party may now, in one action, not only defend against the grant of a divorce sought by his or her spouse, but also may accomplish affirmative action and secure a divorce[.]” Ford v. Ford, 291 Pa.Superior Ct. 381, 383, 435 A.2d 1278, 1279 (1981), citing Pa.R.Civ.P. 1130(b) (adopted 1947, amended 1961). Although Rule 1130(b) was rescinded in 1980, it was replaced by Rule 1920.15(a) which is substantially similar:

The defendant may set forth in an answer under the heading “Counterclaim” a cause of action for divorce or for annulment and, whether the defendant does so or not, may set forth any other matter which under the Divorce Code may be joined with an action for divorce.

Pa.R.Civ.P. 1920.15(a) (adopted June 27, 1980; effective July 1, 1980). Cf. Betz v. Betz, 103 Pa.Superior Ct. 306, 157 A. 359 (1931) (parties may file cross suits each seeking to secure divorce in his or her favor but on separate and distinct grounds). Thus, appellee-husband was entitled to seek a divorce on his own theory by filing a counterclaim to appellant’s complaint. Having filed the counterclaim, then, we see no reason for not allowing him to present evidence on his counterclaim so that the court can determine the proper grounds for granting the divorce.

We find the reasoning of the New Jersey Supreme Court in Chalmers v. Chalmers, 65 N.J. 186, 320 A.2d 478 (1974), persuasive. In that case, the wife’s complaint in divorce alleged no-fault grounds {i.e. 18 consecutive months separation) and the husband counter-claimed on adultery grounds. The New Jersey Supreme Court, in upholding the grant of a divorce to the husband on his counterclaim and the dismissal of the wife’s complaint, found that, although the wife had proved her case on separation grounds, the separation was the result of the wife’s admittedly adulterous conduct. Id. at 190-91, 320 A.2d at 480-81. Similarly, here, appelleehusband asserts that the three years separation was the result of appellant-wife’s desertion. (Brief for Appellee at 5). Under these circumstances, we hold that he was also entitled to present evidence in support of his fault claims so that the lower court would have within its discretion the option of granting the divorce to appellee on his counterclaim should it determine that the separation was caused by appellant’s misconduct.

Accordingly, we find no error in the January 7 and February 7, 1983, orders of the court below.

Affirmed.

      . The husband also filed a divorce action against the wife in the Philadelphia Court of Common Pleas alleging both fault and no-fault grounds. The lower court, however, granted the wife injunctive relief, temporarily enjoining the husband from pursuing the Philadelphia action in divorce.

      . 23 P.S. § 102 contains the legislative findings and intent, as follows:
      (a) The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:
      (1) Make the law for legal dissolution of marriage effective for dealing with the realities of matrimonial experience.
      (2) Encourage and effect reconciliation and settlement of differences between spouses, especially where children are involved.
      (3) Give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.
      (4) Mitigate the harm to the spouses and their children caused by the legal dissolution of the marriage.
      (5) Seek causes rather than symptoms of family disintegration and cooperate with and utilize the resources available to deal with family problems.
      (6) Effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.
      (b) The objectives set forth in subsection (a) shall be considered in construing provisions of this act and shall be regarded as expressing the legislative intent.

      . Section 201(a) sets forth the following fault grounds for divorce:
      (а) It shall be lawful for the court to grant a divorce to the innocent and injured spouse whenever it shall be judged that the other spouse shall have:
      (1) Committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years.
      (2) Committed adultery.
      (3) By cruel and barbarous treatment, endangered the life or health of the injured and innocent spouse.
      (4) Knowingly entered into a bigamous marriage while a former marriage still is subsisting.
      (5) Been sentenced to imprisonment for a term of two or more years upon conviction of having committed a crime.
      (б) Offered such indignities to the innocent and injured spouse as to render his or her condition intolerable and life burdensome.

        Section 201(c) and (d)(1) provides for two no-fault grounds:
      (c) It shall be lawful for the court to grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and 90 days have elapsed from the date of filing of the complaint and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.
      (d) (1) It shall be lawful for the court to grant a divorce where a party has filed a complaint and an affidavit alleging that the parties have lived separate and apart for a period of at least three years, and that the marriage is irretrievably broken, and:
      (i) the respondent does not deny the allegations set forth in the affidavit;
      or
      (ii) the respondent denies one or more of the allegations set forth in the affidavit, but after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least three years and that the marriage is irretrievably broken.

      . We limit our holding to the facts of this case.

        But cf. Barbara B.S. v. S. Allen S. (S. v. S.), Court of Common Pleas, Allegheny County, Family Div., Case No. 876 October Term 1977 (March 5, 1982) (court denied the husband’s petition to appoint a master to take testimony on the grounds of adultery and ordered that, upon completion of the three years living separate and apart, it would entertain a decree in divorce pursuant to § 201(d) of the Divorce Code).


author: OLSZEWSKI, Judge: SPAETH, President Judge,

text:
    489 A.2d 200
    COMMONWEALTH of Pennsylvania v. Jerome LIGHTMAN, Appellant. COMMONWEALTH of Pennsylvania v. LIGHTMAN DRUM COMPANY, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 23, 1984.
    Filed Jan. 30, 1985.
    Reargument Denied April 4, 1985.

      Herman Bloom, Philadelphia, for appellants.
    David F. Michelman, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

Appellants are a private, family-owned and run waste disposal company and its vice president (who owned 40% of its stock). At trial it was alleged that in 1972 Clarence Walker, a Streets Department bulldozer operator assigned to Philadelphia’s Fort Mifflin Landfill, entered into an agreement with Marvin Lightman (father of Jerome Light-man), president and principal stockholder of Lightman Drum Company. Under the agreement, Walker would permit Lightman trucks to enter the landfill to dump toxic wastes, in return for a fixed amount of money per barrel. From 1972 until 1975, Lightman trucks regularly entered the landfill to dump drums, paying to Walker and his co-worker, Curtis Carson, at least $12,000 by checks signed and issued by Marvin or Jerome Lightman. The landfill was intended to be a disposal site for sterile fly-ash residue from the city incinerator, brought here by city vehicles or privately owned vehicles under contract with the City.

The findings of fact by Judge Gafni, below, show that the Pennsylvania Department of Environmental Resources and the City’s Streets Department became aware of illegal dumping activity at the landfill in December 1975, when an unidentified truck was caught dumping at the site. However, the District Attorney’s Office first became aware of the bribery and conspiracy charged in this case on February 28, 1979. On that date Carson confessed to a police detective that he had received money as bribes from Jerome Lightman and several other chemical waste disposal companies. An investigation into Lightman’s complicity in the illegal dumping commenced at that time. The investigation was hampered by Jerome Lightman’s non-residency status and by Lightman Drum’s having no office in the Commonwealth from December, 1975 through March, 1980.

Jerome Lightman was arrested, and criminal complaints were filed against Lightman Drum and Jerome Lightman on March 28, 1980. After trial by jury, Jerome Lightman was convicted of 31 counts of bribery and also conspiracy. 18 Pa.C.S.A. § 4701; 18 Pa.C.S.A. § 903. Lightman Drum Company was convicted of 34 counts of bribery and also conspiracy. Jerome Lightman was sentenced to IV2 to 4 years imprisonment plus a fine of $3,000.00 on each bill, with each sentence to run concurrently. Lightman Drum Company received a suspended sentence.

The costs for clean-up of the Fort Mifflin Landfill are anticipated to run into the millions of dollars. No evidence has been presented concerning the impact of the toxic wastes on the environment or public health. This appeal follows the denial of timely motions in arrest of judgment and for a new trial.

Appellants raise four issues for review. First, appellants argue that the lower court erred in not finding the prosecution of these cases barred by the statute of limitations. We agree with the lower court that prosecution of these cases was not barred.

Appellants argue that insofar as the last act of illegal dumping occurred in 1975, the statute of limitations on these charges ran out in 1977. The applicable statute of limitations, 18 Pa.C.S. § 108, provides under subsection (f)(1) that the limitations period, normally two years, is tolled “during any time when the accused is continuously absent from this Commonwealth or has no reasonably ascertainable place of abode or work within this Commonwealth____” This standard was applied in Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980), in a case remarkably similar to the case at bar. Our Supreme Court held that the statute of limitations was tolled after a thorough search revealed that defendant had no legal residence or office within the Commonwealth. Although we stop short of creating a per se rule, in the instant case appellant’s absence from the Commonwealth from 1975 to 1980 certainly foiled all efforts to ascertain his whereabouts. Appellant’s fleeting contacts with the Commonwealth such as hospital visits, visits with unspecified relatives, or driving a company truck to unspecified locations in eastern Pennsylvania do not comport with notions of a “reasonably ascertainable” place of abode or work.

Appellants also argue that 18 Pa.C.S. § 108(f)(1) violates the requirements of the Equal Protection and Privileges and Immunities Clauses of the United States Constitution. As to the Equal Protection Clause, appellants assert that the statute discriminates between residents of the Commonwealth and non-residents by creating two classes of people: residents, for whom a definite period of limitation is always applicable; and residents who are continuously absent from the Commonwealth and non-residents, for whom the period of limitation is extended. We disagree.

The right to travel freely has been guaranteed constitutional protection by the Supreme Courts of the United States and Pennsylvania. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Stottlemyer v. Stottlemyer, 458 Pa. 503, 329 A.2d 892 (1974). Nevertheless, the right to travel is subject to qualification when it runs afoul of legitimate state interests. In Jones v. Helms, 452 U.S. 412, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981), the United States Supreme Court upheld a Georgia child support statute which made it a misdemeanor to abandon a dependent child, but provided that it was a felony offense for a parent to abandon a dependent child and to leave the state. The Court reaffirmed that the right to travel is a fundamental interest protected by the Constitution and that ... “a State may neither tax nor penalize a citizen for exercising his right to leave one State and enter another.” Id. at 419, 101 S.Ct. at 2440. Nevertheless, the Court recognized that there are situations in which the service of State interests permit the rationally related qualification of a citizen’s right to travel, including the situation where a person commits a crime in a State, then leaves before arrest or conviction. Id. at 421-422, 101 S.Ct. at 2441-2442.

[TJhere is clearly a distinction between one who ... leaves the state after committing a crime, resulting in the tolling of the statute of limitations during his absence, and one who has committed no crime but is deprived of a government benefit merely because he exercises his right to travel to another state. In the former circumstance, the state has an interest in assuring that the defendant is available locally not only to enhance the possibility of detection but also to avoid the burdens of extradition proceedings, should he be charged, his whereabouts become known, and he refuses to return voluntarily.

Id. at 421, fn. 18, 101 S.Ct. at 2441, fn. 18, quoting Scherling v. Superior Court of Santa Clara County, 22 Cal.3d 493, 501, 149 Cal.Rptr. 597, 601-602, 585 P.2d 219, 223-224 (1978).

The tolling provision of the statute of limitations, 18 Pa.C.S. § 108(f)(1), is rationally related to the Commonwealth’s interest in enhancing the possibility of identification of criminals and in avoiding the burdens of extradition proceedings. We find a further valid legislative purpose in the statute in that it enhances the possibility of the detection of crime, where, as here, the evidence of the crime may be well hidden.

We reject appellant’s argument that the tolling provision of 18 Pa.C.S. § 108 violates the Equal Protection Clause. That Clause establishes the fundamental principle that a State must govern impartially. See Helms, 452 U.S. at 423, 101 S.Ct. at 2442. Section 108(f)(1) applies equally to all criminal activity within the Commonwealth; nothing in appellants’ argument or in the record suggests that the statute has been enforced against appellants any differently than it would be enforced against anyone else who engaged in the same conduct. Id. at 424, 101 S.Ct. at 2443.

Although not binding upon us, we find most persuasive the rationale of Scherling v. Superior Court of Santa Clara County, 22 Cal.3d 493, 149 Cal.Rptr. 597, 585 P.2d 219 (1978). Addressing the same challenge to its statute of limitations tolling provision, that court held that the rational relationship test was applicable, since the statute did not violate the defendant’s right to travel and did not deprive the defendant of a fundamental interest in liberty. Id. 149 Cal.Rptr. at 602-603, 585 P.2d at 224-225. The tolling of Section 108 does not impose a penalty greater than that imposed upon criminals who remain in the state, but rather subjects those who choose to absent themselves to responsibility for a longer period of time. See Scherling, 22 Cal.3d at 503, 149 Cal.Rptr. at 603, 585 P.2d at 225.

We therefore measure appellants’ equal protection claim by the less rigorous rational relationship standard applicable to rights which are not deemed to be fundamental. We have shown above that the Legislature could have determined that the detection of the crime, identification of the criminal and avoidance of extradition are more likely if the criminal remains in the state than if he departs. This assumption justifies tolling the statute of limitations for the period during which appellants may have avoided detection by leaving the jurisdiction.

As to appellants’ argument under the Privileges and Immunities Clause, it is settled that the Clause is to be narrowly construed and does not require that a State must always apply all of its laws or provide all of its services equally to residents and non-residents who may request it to do so. Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978); Baldwin v. Montana Fish and Game Commission, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978). The Supreme Court has limited the Clause’s applicability to privileges and immunities “bearing on the vitality of the Nation as a single entity.” 436 U.S. at 383, 98 S.Ct. at 1860. Here, protection from prosecution for a crime for a specified period of time cannot be said to impact on the vitality of the Nation.

Appellants next argue that the lower court erred in finding no violation of due process resulting from the lapse of time between the criminal act and the indictment. We agree with the court below that appellants have been provided with the full protection of due process.

Appellants assert that during the time between the last illegal dumping, in 1975, and the filing of the indictment, in 1980, Marvin Lightman, Jerome Lightman’s father, a material witness, passed away. It is settled that pre-arrest delay does not violate fundamental conceptions of justice except where the delay caused actual and substantial prejudice to the defendant and the government intentionally delayed prosecution solely to gain a tactical advantage over the defendant. Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978), quoting United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Daniels elaborated:

The Court, however, rejected ... [the] ... claim “that due process bars prosecution whenever a defendant suffers prejudice as a result of pre-indictment delay.” Instead, it held that an inquiry into the prosecutions reasons for the delay is not required until a claim of prejudice to the accused is made out. “\Marion \ establishes only that proof of actual prejudice makes a due process claim concrete and ripe for adjudication, not that it makes the claim automatically valid____ Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim____”

Daniels, 480 Pa. at 354, 390 A.2d at 179, quoting United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977) (citation omitted).

We find that appellants have failed in their initial burden of showing that the delay worked a material prejudice to his defense. Even where a potential witness has died, as did Marvin Lightman, or otherwise become unavailable, actual prejudice will not be found unless a defendant clearly establishes the subject matter and actual content of the witness’ testimony and shows that it would have been exculpatory. United States v. Mays, 549 F.2d 670 (9th Cir.1977). Indeed, in Lovasco no prejudice was found despite the fact that two witnesses assertedly material to the defense had died during a pre-indictment delay.

In the instant case, appellants have produced no evidence that Marvin Lightman’s testimony would have been exculpatory where the Commonwealth has only alleged that \ Jerome Lightman joined the conspiracy by participation. We are unwilling to speculate as to the content of Marvin Lightman’s testimony. Appellants’ unsupported claim that Marvin Lightman alone might have explained the circumstances surrounding the bribery and dumping activities is insufficient to show the substantial content of that explanation. Therefore, absent a threshold showing of the content of that testimony, we need not consider whether the delay was intentionally caused by the Commonwealth.

Appellants next assert that the lower court erred in admitting evidence of the nature of the material illegally dumped within the context of a trial for bribery. We hold that the evidence was relevant and properly admitted. The admission or exclusion of evidence is a matter for the trial judge’s discretion and will not be reversed absent an abuse of that discretion. Commonwealth v. Hart, 479 Pa. 84, 387 A.2d 845 (1978). Here, the evidence was probative and relevant since it shed light on the principal facts necessary to establish essential elements of the crimes of bribery and conspiracy involving the agreement to exercise discretion or violate a legal duty. See Commonwealth v. Bellacchio, 296 Pa.Super. 468, 442 A.2d 1147 (1982); Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Finally, appellants assert that the lower court erred in charging the jury that they must find that the City of Philadelphia owned the Fort Mifflin Landfill and that the Hawthorne Company was licensed to dump at the site. We hold that the lower court correctly delegated these questions of fact to the jury’s consideration.

We must consider appellants’ argument in light of the general effect of the charge as a whole. Commonwealth v. Irwin, 494 Pa. 277, 431 A.2d 257 (1981). Here, the trial court, in its charge, continually emphasized that the determination of facts was left exclusively to the jury. (N.T. 815, 816, 819, 820, 825, 827-828). The question of municipal ownership of the site, supported by testimony, was specifically left to the jury. (N.T. 815). The question of the existence of the Hawthorne Company’s “license” was immaterial, presented solely for the purpose of comparison of Lightman Drum Company’s activity at the landfill. (N.T. 827-828). See Irwin, supra; Commonwealth v. Douglas, 461 Pa. 749, 337 A.2d 860 (1975).

The judgments of sentence are affirmed.

SPAETH, President Judge, files a concurring opinion.

BECK, J., joins OLSZEWSKI, J., except as to the equal protection analysis, and on that point she joins SPAETH, President Judge.

SPAETH, President Judge,

concurring:

I concur in the result reached by the majority and with much of what the majority says. I write separately only to state the equal protection analysis that I believe should be applied.

Appellant argues that 18 Pa.C.S. § 108(f), as applied to him, violates the equal protection clause in that the statute creates two classes to whom disparate treatment is afforded, residents and non-residents. Brief for Appellant at 12. Thus, he argues, the statute violates the fundamental mandate of the equal protection clause that the government may not treat similarly-situated citizens differently.

When an equal protection claim is made, the initial inquiry must be to determine the applicable standard of constitutional review. Appellant asserts that Pa.C.S. § 108(f)(1) infringes upon his right to travel. Brief for Appellant at 13. The Supreme Court of the United States and the Supreme Court of Pennsylvania have both held that the right to travel freely throughout the United States is “fundamental”, and that statutes that impose durational residency requirements on the receipt of state benefits violate the right. See Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Stottlemyer v. Stottlemyer, 458 Pa. 503, 329 A.2d 892 (1974). In determining the constitutionality of governmental action that infringes a fundamental right, a court must inquire whether the action is necessary to promote a “compelling” governmental interest. See Shapiro v. Thompson, supra 394 U.S. at 634, 89 S.Ct. at 1331. In practice, governmental activity will rarely withstand this strict scrutiny.

Here, however, we need not subject Pa.C.S. § 108(f) to strict scrutiny, for it does not violate the fundamental right to travel. In Scherling v. Superior Court of Santa Clara County, 22 Cal.3d 493, 585 P.2d 219, 149 Cal.Rptr. 597, the Supreme Court of California faced a similar equal protection challenge to a tolling statute. It held that the appellant’s right to travel was not infringed because he was not deprived of a benefit or subjected to greater penalty for leaving the state; rather, “he [was] faced with a tolled statutory period of limitations.” Id., 22 Cal.3d at 502, 585 P.2d at 224, 149 Cal.Rptr. at 602.

There is a further reason for finding that an elevated standard of constitutional review is not required here. The cases in which the Supreme Court has strictly scrutinized infringements of the fundamental right to travel all occurred in a civil context. See e.g. Dunn v. Blumstein, supra (durational residency requirements deprive new residents of medical benefits); Shapiro v. Thompson, supra (durational residency requirements deprive new residents of welfare benefits). As the Court noted in Jones v. Helms, 452 U.S. 412, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981), there was a distinction between these cases and the case before it, which was a challenge to a Georgia criminal statute that graded offenses according to whether or not a defendant remained in the state. In the civil cases, the Court noted, the challenged statutes “imposed ... burden[s] on the exercise of the right to travel by citizens whose right to travel had not been qualified in any way.” By way of contrast, the Court found, “appellee’s criminal conduct within the State of Georgia necessarily qualified his right thereafter freely to travel interstate.” 452 U.S. at 421, 101 S.Ct. at 2441. Similarly, here, appellant’s right to travel was qualified, if at all, not by an arbitrary distinction drawn by the government, but by his own criminal conduct, for which he must be amenable to prosecution by the Commonwealth for a fixed period of time.

Since appellant’s fundamental right to travel was not infringed by governmental action, we should review the constitutionality of Pa.C.S. § 108(f) by applying the “rational relationship” test. This test requires a court to inquire whether it can conceive of a way in which the legislature might have deemed the challenged action to have been rationally related to the accomplishment of a legitimate government end. See McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Applying this test, I find thht the purpose served by 18 Pa.C.S. § 108(f) is clearly legitimate: it is to aid the Commonwealth’s exercise of its traditional police powers of crime prevention, detection and prosecution by extending the period during which a suspected criminal is subject to a state’s power to prosecute. Similarly, I have no trouble in concluding that the legislature could rationally have conceived that the statutory classification made by the tolling provision (residents and non-residents) would further this purpose. As the Supreme Court of California noted when analyzing a similar statute, “the Legislature could have determined that the detection of the crime and identification of the criminal are more likely if the criminal remains in the state than if he departs.” Scherling v. Superior Court of Santa Clara County, supra 22 Cal.3d at 503, 585 P.2d at 225, 149 Cal.Rptr. at 603. For these reasons, I agree with the majority’s conclusion that appellant’s equal protection challenge must be rejected.

BECK, J., joins as to the equal protection analysis.

      . 18 Pa.C.S. § 108(f)(1) has been repealed and replaced by 42 Pa.C.S. § 5554 (1976). The language of section 5554 is identical to its predecessor, therefore the result we reach today is valid under either legislation.

      . We note that appellants’ claim is not directed toward a denial of his Sixth Amendment right to a speedy trial after arrest. See e.g., Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972); see also Pa.R. Crim.P., Rule 1100, 42 Pa.C.S.


text:
    489 A.2d 207
    COMMONWEALTH of Pennsylvania, Appellee, v. Brian SANDERS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 10, 1984.
    Filed Feb. 15, 1985.

      Larry J. Folmar, Assistant Public Defender, Norristown, for appellant.
    J. William Ditter, III, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

Brian Sanders, a juvenile, having been certified for trial as an adult, was tried without jury and found guilty of rape, indecent assault, indecent exposure, unlawful restraint, recklessly endangering another person, simple assault, aggravated assault, and escape. Post-verdict motions were denied. At sentencing, the court concluded that the assault convictions and the conviction for indecent exposure had merged into the conviction for rape. Consecutive sentences of imprisonment totalling 17 to 34 years were imposed for rape, unlawful restraint, recklessly endangering another person and escape. On appeal, Sanders argues (1) that the evidence was insufficient to sustain the conviction for recklessly endangering another person; (2) that several evidentiary rulings by the trial court were erroneous; (3) that the sentence was excessive; and (4) that reckless endangerment merged with aggravated assault and rape for sentencing purposes. He also argues that the Juvenile Court failed to properly certify him for trial as an adult.

In determining whether evidence is sufficient to sustain a conviction, we view the evidence in a light most favorable to the Commonwealth and, drawing therefrom all proper inferences which could reasonably have been drawn, determine whether the evidence was sufficient to prove all elements of the crime beyond a reasonable doubt. Commonwealth v. Miller, 327 Pa.Super. 154, 156-57, 475 A.2d 145, 146 (1984); Commonwealth v. Leatherbury, 322 Pa.Super. 222, 225, 469 A.2d 263, 265 (1983).

The evidence in this case showed that appellant, at age 15, had been involuntarily committed to Norristown State Hospital in Montgomery County. On the evening of September 30, 1981, he was escorted to a laundry facility by Polly Holland, a psychiatric security aide trainee. Upon their return, appellant managed to grab Holland around the neck. He then dragged her backwards into a bathroom and later forced her into a day room in a remote part of the hospital. He held her neck so tightly that she was unable to breathe, and she sustained injury which required physical therapy for two months and the wearing of a neck brace for six months. Appellant took Holland’s keys from her, locked the doors to the day room, and ordered Holland to undress. With his hand on her neck, appellant threatened to break Holland’s neck if she didn’t follow his instructions. He then forced her to the floor and engaged in sexual intercourse with her. Thereafter, he locked his victim in the room and left. Appellant escaped from the hospital by using a picnic table to assist him in climbing over the wall. Ms. Holland was able to use a pay phone in the day room to call for assistance, but she was too late to prevent appellant’s escape. He was apprehended in Philadelphia on November 20, 1981.

A person commits the misdemeanor of recklessly endangering another person “if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. This section is, in effect, an ad hoc reckless conduct statute. Toll, Pennsylvania Crimes Code Annotated § 2705 (1974). A sine qua non to a conviction is a conscious disregard of a known risk of death or great bodily harm to another person. Commonwealth v. Henck, 329 Pa.Super. 275, 279, 478 A.2d 465, 468 (1984). In this case, the trial court could properly find from the manner in which appellant grabbed Polly Holland around the neck and pulled her backwards into a room that he consciously disregarded a known risk of serious bodily harm to her person.

While the victim was testifying on direct examination, she was asked, “Did you engage in this act of sexual intercourse willingly?” (N.T. 44). A general objection was made to the question and overruled by the trial court. Appellant contends that this was error. Since the objection was general, the court’s ruling will be upheld if the evidence was competent for any purpose. Woldow v. Dever, 374 Pa. 370, 377, 97 A.2d 777, 781 (1953); Commonwealth v. Marshall, 287 Pa. 512, 521, 135 A. 301, 304 (1926). The question asked in the instant case was intended to ascertain from the witness whether she had consented to have intercourse with appellant and had willingly engaged therein without forcible compulsion. This evidence was relevant and was properly received.

Appellant argues also that the trial court erred when it overruled a specific objection on the grounds of repetitiveness to a question asked of the victim to determine the duration of vaginal intercourse. In both instances, the witness answered that she did not know. Whether to exclude repetitive testimony is a matter within the discretion of the trial court. Commonwealth v. Simmons, 482 Pa. 496, 510, 394 A.2d 431, 438 (1978). The trial judge in this instance committed no abuse of discretion. Moreover, appellant was not prejudiced thereby in any way.

The Commonwealth offered into evidence a photograph of a picnic table leaning against the wall of the hospital over which appellant allegedly had escaped. There was testimony that the photograph depicted the table as it had appeared on the night of the escape. The evidence also disclosed, however, that the photograph had been taken three weeks before trial and almost ten months after the alleged escape.

The admission of photographs is a matter largely within the discretion of the trial judge. Commonwealth v. Fields, 317 Pa.Super. 387, 402, 464 A.2d 375, 383 (1983). “A photograph must be verified either by the testimony of the person who took it or by another person with sufficient knowledge to state that it fairly and accurately represents the object or place reproduced as it existed at the time of the [event], or if there is a difference or change, the difference or change is specifically pointed out and is readily capable of being clearly understood and appreciated by the [factfinder].” Tolbert v. Gillette, 438 Pa. 63, 66, 260 A.2d 463, 465 (1970) (emphasis deleted), quoting Semet v. Andorra Nurseries, Inc., 421 Pa. 484, 488-489, 219 A.2d 357, 360 (1966). See also: Commonwealth v. Braithwaite, 253 Pa.Super. 447, 452-453, 385 A.2d 423, 426 (1978). The trial judge, who was also the trier of facts, was aware that the photograph had been staged three weeks prior to trial in order to show the manner in which the picnic table had been used to gain access to the top of the wall. The court did not abuse its discretion in receiving this evidence. It was relevant to explain how appellant was able to escape over the wall of the hospital.

The imposition of a proper sentence is a matter which is vested in the sound discretion of the trial court. Commonwealth v. Muller, 334 Pa.Super. 228, 236, 482 A.2d 1307, 1311 (1984). “ ‘[UJnless the sentence exceeds the statutory maximum or is so excessive as to constitute a manifest abuse of discretion, the trial court’s determination will not be disturbed.’ ” Commonwealth v. Ignatavich, 333 Pa.Super. 617, 625, 482 A.2d 1044, 1048 (1984), quoting Commonwealth v. Scarborough, 313 Pa.Super. 521, 533, 460 A.2d 310, 316 (1983). A sentencing court must examine the circumstance of the crime and the individual background of the defendant and in so doing is entitled to consider intervening criminal activities and convictions of the defendant. Commonwealth v. Johnson, 333 Pa.Super. 42, 45, 481 A.2d 1212, 1214 (1984).

The sentences imposed upon appellant were within the permissible ranges established by the legislature. The sentencing court carefully considered appellant’s personal history, which included a lengthy juvenile record of delinquency adjudications, many of them involving assaultive, sex-related offenses. See: N.T. December 14, 1982, pgs. 19-22. On June 23, 1982, appellant was also convicted in Philadelphia of attempted rape and involuntary deviate sexual intercourse. Rehabilitation in mental institutions had been tried unsuccessfully, a fact evidenced by the instant offenses. The sentence imposed by the court was not manifestly excessive or an abuse of discretion in view of appellant’s history.

Appellant contends, however, that for sentencing purposes the offense of recklessly endangering merged in the crime of rape. We are constrained to agree. “Analysis of duplicitous sentence questions has traditionally revolved around the concept of injury to the sovereign, in this case the Commonwealth.” Commonwealth v. Walker, 468 Pa. 323, 331, 362 A.2d 227, 231 (1976). For crimes to merge, one must “necessarily involve” the other. Commonwealth v. Miranda, 296 Pa.Super. 441, 461, 442 A.2d 1133, 1143 (1982). In Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941), the Supreme Court said:

The true test of whether one criminal offense has merged in another ... is whether one crime necessarily involves another, as, for example, rape involves fornication, and robbery involves both assault and larceny. The ‘same transaction’ test is valid only when the ‘transaction’ means a single act. When the ‘transaction’ consists of two or more criminal acts, the fact that the two acts are “successive” does not require the conclusion that they have merged. Two crimes may be successive steps in one crime and therefore merge, ... or they may be two distinct crimes which do not merge.

Id., 343 Pa. at 104-105, 21 A.2d at 921 (emphasis in original). “Following this test, it has been noted that for two crimes to merge ‘they must be part of the same act.” Commonwealth v. Miranda, supra 296 Pa.Super. at 461, 442 A.2d at 1143. See also: Commonwealth v. Wojciechowski, 285 Pa.Super. 1, 8, 426 A.2d 674, 677 (1981). They must also constitute the “same offense” as contemplated by the legislature. Commonwealth v. Frisbie, 506 Pa. 461, 465-466, 485 A.2d 1098, 1100 (1984).

The trial court in this case found that the aggravated assault committed by appellant had been a necessary part of the crime of rape and, therefore, that it had merged in the more serious offense. As we have seen, however, the crime of recklessly endangering the victim was merely a part of the crime of aggravated assault which, the court found, constituted the evidence of forcible compulsion necessary to prove the crime of rape. Under these circumstances, it must follow that the crime of reckless endangerment also merged in the crime of rape for sentencing purposes, for rape, aggravated assault and reckless endangerment were all part of the “same offense.”

We reject the suggestion that a separate offense of recklessly endangering another person occurred when Polly Holland, a claustrophobic, was locked in a room while appellant made his escape. The evidence was insufficient to show that a second offense of reckless endangerment occurred at this point in time. There was no evidence that she had been endangered in any way while locked in the day room. The room was not a small room; it had several doors and a telephone; and even Polly Holland expressed no fear with respect to this room. The only fear which she expressed during the trial was a fear of being locked in the bathroom. This did not occur.

In view of the findings of the trial court, therefore, we are constrained to hold that for sentencing purposes the offense of reckless endangerment merged in the conviction for rape.

Finally, appellant argues that the Juvenile Court erred in certifying the charges against him for trial in adult court. He relies on the rule which holds that a criminal court is without authority to try and sentence a juvenile unless the juvenile has been certified for trial as an adult in compliance with the Juvenile Act of July 9, 1976, 42 Pa.C.S. § 6301 et seq. See: Commonwealth v. Greiner, 479 Pa. 364, 372, 388 A.2d 698, 702 (1978); Commonwealth v. Deppeller, 314 Pa.Super. 368, 375, 460 A.2d 1184, 1188 (1983). This issue of certification is jurisdictional and therefore not waivable. Commonwealth v. Moyer, 497 Pa. 643, 646, 444 A.2d 101, 102 (1982).

In order to comply with the Juvenile Act, a certification court need not make a formal statement or conventional findings of fact, but the statement must be sufficient to demonstrate that the question of certification has received the careful consideration of the juvenile court. “[I]t must set forth the basis for the order with sufficient specificity to permit meaningful review.” Commonwealth v. Broome, 317 Pa.Super. 1, 3, 463 A.2d 1053, 1053 (1983), quoting Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84, 97 (1966) and Commonwealth v. Harrod, 260 Pa.Super. 312, 316, 394 A.2d 567, 570 (1978). See also: Commonwealth v. Deppeller, supra 314 Pa.Super. at 374, 460 A.2d at 1187; Commonwealth v. Stokes, 279 Pa.Super. 361, 367, 421 A.2d 240, 243 (1980).

In this case, the certification order of the Juvenile Court contained no reasons for certification. At the conclusion of the certification hearing, the court stated:

This 25th day of February 1982, this Court having previously determined that a prima facia [sic] case had been established, this Court now determines, based upon the reports and testimony presented, that the requirements for Certification required under the Juvenile Act have been amply fulfilled and therefore determines that this young man be transferred to the criminal division of the Court of Common Pleas of Montgomery for the prosecution of this offense.

N.T. February 25, 1982 at 44. No additional reasons or findings were stated by the court. This was insufficient under the decided cases to permit meaningful appellate review.

In Commonwealth v. Deppeller, supra, the certification court stated on the record that “[t]here are reasons to believe that the child is not amenable to treatment, supervision, or rehabilitation as a juvenile through available facilities; that the child is not committable to an institution for the mentally ill, or mentally retarded; that the interests of the community require that the child be placed under legal restraint or discipline____” Id., 314 Pa.Super. at 372, 460 A.2d at 1186. This statement, our Court held, did not constitute adequate “reasons” for certification; and, therefore, a new certification hearing was ordered. Id., 314 Pa.Superior Ct. at 374, 460 A.2d at 1187. Incorporations by reference to juvenile files and other documentary evidence are insufficient to constitute an adequate statement of reasons for certification. Commonwealth v. Broome, supra 317 Pa.Super. at 3, 463 A.2d at 1054. The order in the instant case was more sparse and conclusory than in either Deppeller or Broome.

Therefore, we vacate the judgment of sentence and remand for further consideration by the Juvenile Court. If appellant is again certified to adult criminal court, a judgment of sentence may be reimposed consistently with the foregoing opinion. If appellant is not certified to criminal court, the case shall remain in the Juvenile Court for disposition. Jurisdiction is not retained.

      . 18 Pa.C.S. § 3121.

      . 18 Pa.C.S. § 3126.

      . 18 Pa.C.S. § 3127.

      . 18 Pa.C.S. § 2903.

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 2701.

      . 18 Pa.C.S. § 2702.

      . 18 Pa.C.S. § 5121.

      . Appellant argued on appeal that he was improperly denied a Pa.R. Crim.P. 305 discovery motion prior to the December 11 hearing. However, the rules of criminal procedure do not apply to proceedings in Juvenile Court (Pa.R.Crim.P. 1(a) ). Moreover, pre-trial discovery is generally not available to an accused at the preliminary hearing stage of criminal proceedings. Commonwealth v. Nacrelli, 280 Pa.Super. 338, 342-343, 421 A.2d 752, 754 (1980). In any event, since there is no longer any question that a prima facie case existed against appellant, it cannot be said that he was prejudiced by a denial of discovery prior to the certification hearing.

      . The certification proceedings in this case were bifurcated by the Juvenile Court. On December 11, 1981, the court concluded, after hearing, that a prima facie case existed against appellant, a prerequisite to certification. See: 42 Pa.C.S. § 6355(a)(4)(i). The accuracy of this conclusion has been confirmed by the finding of guilt by the criminal court. On remand, the Juvenile Court need not redetermine whether a prima facie case exists but may proceed directly to consider whether or not appellant should be tried as an adult. See: 42 Pa.C.S. § 6355(a)(4)(iii).