author: FORD ELLIOTT, Judge:

text:
    607 A.2d 285
    COMMONWEALTH of Pennsylvania v. Oscar Dale SLOAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1991.
    Filed April 22, 1992.

      Joseph E. Buckley, Jr., Brookville, for appellant.
    Christopher Shaw, Asst. Dist. Atty., Sykesville, for Com., appellee.
    Before CIRILLO, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge:

Oscar Dale Sloan appeals from the judgment of sentence entered following a conviction by a jury of violating 75 Pa.C.S.A. § 8731(a)(4) of the Vehicle Code (driving under the influence of alcohol). Appellant’s post-trial motions were denied, and he was sentenced to a term of 30 days to 1 year in the Jefferson County Jail and to pay a $510.00 fine. We reverse.

On May 27, 1989, Officer Perry Ames of the Brookville Police Department arrested appellant for driving under the influence of alcohol. Using the Intoxilyzer 4011 (AS), Officer Bickle performed a breath test on appellant to determine his blood alcohol level. At the trial, the Commonwealth presented a Certificate of Breath Testing Device Calibration dated December 21, 1988 and a Certificate of Breath Testing Device Accuracy dated May 4, 1989. Appellant’s test revealed a .158% blood alcohol level.

To counter the Commonwealth’s evidence on the accuracy of the blood alcohol reading, the defense presented expert testimony. Walter Frajola, Ph.D., testified that the Intoxilyzer is programmed to make several assumptions about the person being tested. The Intoxilyzer assumes that the person being tested is in the post-absorptive phase of alcohol metabolism because that is when the test is supposed to be administered. If the machine is not administered in the post-absorptive phase, the range of error will be anywhere from a low of thirty percent but as high as two hundred and thirty percent.

Dr. Frajola also testified that the Intoxilyzer was subject to at least fifty percent error when used to measure the blood alcohol level in the post-absorptive phase. Dr. Frajola opined to a reasonable degree of scientific certainty that appellant was in the pre-absorptive or absorptive stage of alcohol metabolism meaning that the range of error during his test was anywhere from thirty to two-hundred and thirty percent. According to the doctor, in the scientific community, the Intoxilyzer 4011 (AS) is not accurate in the pre-absorption phase. The Intoxilyzer’s programming assumes, for everyone, that there is twenty-one hundred times as much alcohol in your blood as there is in your breath; the machine measures the amount of alcohol in your breath and electronically converts it to what it believes would be a person’s blood alcohol by multiplying by twenty-one hundred. However, in the general population, the ratio of alcohol in the breath to alcohol in the blood can vary from a low of eleven hundred and forty-two to one to a high of thirty-four hundred and eighty seven to one.

The doctor further testified that the Intoxilyzer also assumes that everyone tested has a body temperature of 37 degrees Centigrade although variations of two degrees Centigrade are recognized for the human body. Where the machine assumes that the body is a certain temperature and there is a two degree Centigrade difference, the results produced by the machine would display an eighteen percent or more error. The machine also assumes that everyone tested has the same concentration of solids or particles in the blood. The percentage of particulates in a blood sample determines how fast the alcohol will leave the blood and go into the lungs. If a person has few solids and few cells, more liquid is present; therefore, the alcohol will be dissolved in a larger liquid and be more dilute when it is exposed to the air of the lungs and will go into the lungs slowly. If a person has a large number of red cells, a large number of hemoglobin and a high particulate, then the alcohol has less liquid to move around in; therefore, it will escape into the air of the lungs faster. This assumption accounts for approximately a minus two percent to a plus five percent error in the test results. Dr. Frajola stated that the same individuals with the same amount- of alcohol in their blood, but differing amounts of red cells will provide various blood alcohol results.

The following are the three issues raised in this appeal:

1. Whether the trial court denied appellant a fair trial by, in essence, directing a verdict of guilty because the trial court charged the jury to presume that the breath test result (.158) was accurate, in spite of defense counsel’s brief to the contrary and evidence to the contrary?
2. Whether the trial court denied appellant a fair trial by refusing to charge the jury that they did not need to presume that the test results were accurate?
3. Whether the determination of guilt or innocence in prosecutions for violations of 75 Pa.C.S.A. § 3731 should be effectively transferred from the jury to the intoxilyzer machine and intoxilyzer operator by virtue of an instruction to the jury that 75 Pa.C.S.A. § 1547(C)(1) Certificates of calibration and accuracy created a presumption of the accuracy of the blood alcohol level determination of the intoxilyzer without a cautionary instruction by the trial court of the jury’s right to determine that intoxilyzer findings in a particular instance are inaccurate consistent with the applicable case law, Article I, Section 6 of the Constitution of the Commonwealth of Pennsylvania and the Fourteenth Amendment to the Constitution of the United States?

The aforementioned issues raised by appellant are interrelated and shall be discussed simultaneously.

“In evaluating a jury charge for prejudicial and reversible error, the charge must be construed as a whole. ‘Error cannot be predicated on isolated excerpts of the charge. It is the general effect of the charge that controls.’ ” Commonwealth v. Hess, 349 Pa.Super. 440, 503 A.2d 448, 449 (1986).

Defense counsel objected to the following instruction given by the trial court:

I would further instruct you that in this case the Commonwealth has introduced into evidence a Certificate of Calibration, as to the Intoxilyzer equipment used in this case, and that the defendant’s blood — that tested the defendant’s blood alcohol content, and has also introduced into evidence Certificates of Accuracy as to the Intoxilyzer. These Certificates of Accuracy shall be presumed as presumptive evidence of the accuracy of the breath test results.

Trial transcript, 9/20/90 at 241.

Appellant argues that the trial court improperly instructed the jury that the certificate of calibration and the certificate of accuracy constituted presumptive evidence of the accuracy of the breath test results, and the court also refused to qualify this charge with respect to the Intoxilyzer results by explaining to the jury its right to make a finding of fact contrary to the Intoxilyzer results. Appellant maintains that the court in effect advised the jury that the introduction of the certificates of accuracy and calibration required the jury to accept as accurate the blood alcohol level measurement of the Intoxilyzer as a matter of law.

The Pennsylvania legislature has established by statute the requirements for the admissibility of chemical tests taken to determine blood alcohol content. The relevant section of the Vehicle Code provides:

(c) Test results admissible in evidence. — In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant’s blood, as shown by chemical testing of the person’s breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.
(1) Chemical tests of breath shall be performed on devices approved by the Department of Health using procedures prescribed jointly by regulations of the departments of Health and Transportation. Devices shall have been calibrated and tested for accuracy within a period of time and in a manner specified by regulations of the Departments of Health and Transportation. For purposes of breath testing, a qualified person means a person who has fulfilled the training requirement in the use of the equipment in a training program approved by the Departments of Health and Transportation. A certificate or log showing that a device was calibrated and tested for accuracy and that the device was accurate shall be presumptive evidence of those facts in every proceeding in which a violation of this title is charged.

75 Pa.C.S.A. § 1547(c)(1) (emphasis added). The above foundation was laid by the Commonwealth and the Intoxilyzer results were admitted into evidence.

We must determine whether, viewing the jury charge as a whole, the trial court’s instruction effectively precluded the jury from returning a verdict of not guilty. Relying upon Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), appellant contends that the judgment must be reversed due to the preemption by the trial court of the jury’s duty as a finder of fact by means of an instruction which could reasonably have been interpreted by the jury to accept as true the results of the Intoxilyzer tests.

In Sandstrom v. Montana, the defendant was charged with and found guilty of deliberate homicide in that he purposely or knowingly caused the death of another. The trial court instructed the jury that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts,” over the objection of the defendant that such instruction had the effect of shifting the burden of proof on the issue of purpose or knowledge. The Supreme Court stated that a reasonable jury could have interpreted the presumption as “conclusive,” not technically a presumption at all, but rather as an irrebuttable direction by the court to find intent once persuaded by the facts triggering the presumption. The jury also could have interpreted the charge as a direction to find intent upon proof of the defendant’s voluntary acts, unless the defendant proved the contrary by some quantum of proof which may have been considerably more than “some” evidence, thereby effectively shifting the burden of persuasion on the element of intent. The Court further stated:

As in Morissette [v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) ] and [United States v. ] United States Gypsum Co., [438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978) ], a conclusive presumption in this case would ‘conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime,’ and would ‘invade [the] factfinding function’ which in a criminal case the law assigns solely to the jury. The instruction announced to David Sandstrom’s jury may well have had exactly these consequences. Upon finding proof of one element of the crime (causing death), and of facts insufficient to establish the second (the voluntariness and ‘ordinary consequences’ of defendant’s action), Sandstrom’s jurors could reasonably have concluded that they were directed to find against defendant on the element of intent. The State was thus not forced to prove ‘beyond a reasonable doubt ... every fact necessary to constitute the crime ... charged/ 397 U.S. [358], at 364 [90 S.Ct. 1068, 1073, 25 L.Ed.2d 368], and defendant was deprived of his constitutional rights as explicated in Winship.
A presumption which, although not conclusive, had the effect of shifting the burden of persuasion to the defendant, would have suffered from similar infirmities. If Sandstrom’s jury interpreted the presumption in that manner, it could have concluded that upon proof by the State of the slaying, and of additional facts not themselves establishing the element of intent, the burden was shifted to the defendant to prove that he lacked the requisite mental state. Such a presumption was found deficient in Mullaney v. Wilbur, 421 U.S. 684 [, 95 S.Ct. 1881, 44 L.Ed.2d 508] (1975).

Sandstrom v. Montana, 442 U.S. at 524, 99 S.Ct. at 2459.

Presently, the trial court explained that its charge merely informed the jury that the legislature has given “certain presumptive probative value to certificates of calibration and accuracy issued by a qualified person.” (Trial court opinion, 6/17/91 at 3). The trial court reasoned that such a presumption, a presumption of probative value, is referred to as a “presumption of fact” distinguishing it from a “presumption of law”. Elaborating upon the difference between a presumption of fact and a presumption of law, the trial court quoted our supreme court in Watkins v. Prudential, 315 Pa. 497, 173 A. 644. (1934):

A presumption is in its characteristic feature a rule of law laid down by a judge, and attaching to one evidentiary fact certain procedural consequences as to the duty of production of other evidence by the opponent. It is based, in policy, upon the probative strength, as a matter of reasoning and inference, of the evidentiary fact; but the presumption is not the fact itself, nor the inference itself, but the legal consequences attached to it____ A ‘presumption of fact/ in the loose sense, is merely an improper term for the rational potency, or probative value, of the evidentiary fact, regarded as not having this necessary legal consequence. ‘They are, in truth, but mere arguments,’ and ‘depend upon their own natural force and efficacy in generating belief or conviction in the mind.’ (Greenleaf, Evidence, sec. 44). They have no significance as far as affects the duty of one or the other party to produce evidence, because there is no rule of law attached to them, and the jury may give whatever force or weight it thinks best.

Watkins v. Prudential, 315 Pa. 497, 173 A. 644, 647.

Instantly, the trial court concluded that the “presumption of fact” created by Section 1547(c)(1) of the Vehicle Code should not be termed a “presumption” since presumptions are “declarations of ‘the rational potentency, [sic] or probative value, of the evidentiary fact.’ ” (Trial court opinion, 6/17/91 at 4).

In Watkins, supra, the supreme court further stated: So long as the law attaches no legal consequences in the way of a duty upon the opponent to come forward with contrary evidence, there is no propriety in applying the term ‘presumption’ to such facts, however great their probative significance. The employment here of the term ‘presumption’ is due simply to historical usage, by which ‘presumption’ was originally a term equivalent, in one sense, to ‘inference’. * * * There is in truth but one kind of presumption; and the term ‘presumption of fact’ should be discarded as useless and confusing.

Reiterating language utilized in Watkins, our supreme court in Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 229 A.2d 861 (1967), determined that, at most, a presumption of fact is a mere argument, and, by itself, the presumption does not contribute any evidence and has no probative value. When balancing the evidence, a presumption will not tip the scale since nothing tips the scale but evidence; and the presumption, being a legal rule or a legal conclusion, is not evidence. Allison, supra. Moreover, a presumption, not being evidence, cannot be weighed as evidence, since it gives way the instant that proof to the contrary is introduced. Id.

The Commonwealth contends that, reviewing the charge as a whole, it is apparent that the use of the term presumed merely refers to a permissible inference and that the jury was not bound to accept the results of the Intoxilyzer. The Commonwealth directs our attention to Commonwealth v. Hess, 349 Pa.Super. 440, 503 A.2d 448 (1986), and Commonwealth v. Crum, 362 Pa.Super. 110, 523 A.2d 799 (1987). Both of those cases involved a violation of section 3731(a)(1) of the Vehicle Code. In those cases, the same jury instruction was given by the same trial judge and this court affirmed the judgment in Hess but reversed the judgment in Crum.

In Hess, the defendant complained that the trial court improperly instructed the jury that if the jury found that the test results were accurate, then a conclusive presumption would be raised that defendant was not capable of driving. Defendant claimed that this conclusive presumption relieved the Commonwealth of its burden to prove every element of the offense of 75 Pa.C.S.A. § 3731(a)(1). On appeal, this court decided that the charge taken as a whole made clear that the test results raised a nonconclusive presumption which the jury was free to accept or reject, and the trial court also charged that the presumption was not conclusive and the testimony relating to the test result should be weighed with all the other evidence.

In Crum, the defendant was also convicted of violating section 3731(a)(1) of the Vehicle Code. The defendant argued that the trial court érred by instructing the jury that a test result of .10% or more required them to find that he was under the influence, when he was only charged with section 3731(a)(1) and not section 3731(a)(4). (See footnote 1). The trial court instructed the jury as follows:

Any person who has alcohol by weight in their blood of .10 or more, under those circumstances, the test result requires you to find that the defendant was under the influence of alcohol. What this means is that the test result, if accepted by you as accurate and reliable, is conclusive evidence that the defendant was under the influence of alcohol and requires you to so find.

However, where a defendant is only charged with section 3731(a)(1), a .10% test result is but one piece of evidence to be considered in deciding whether the person was under the influence. We concluded that the judge’s charge requiring the jury to find that a defendant with a .10% blood alcohol level was under the influence was erroneous and reversed the judgment.

The Commonwealth asserts that because the sentence was affirmed in one and vacated in the other, there is a distinction between the two cases. In Crum, it was noted that the same charge by the same judge was given in Hess, but the two cases were distinguished on the facts. In Crum, no other evidence was presented to establish intoxication besides the test results. On the other hand, in Hess, there was a finding of sufficient evidence beyond that of the blood alcohol level to establish that the defendant was intoxicated and incapable of safe driving. The Commonwealth, therefore, contends that the jury charge of the presumption was not improper but only became a problem as applied to the facts of the case.

In Crum, the more recent of the two cases, we stated that “the judge’s charge to the jury in the instant action was improper insofar as it required the jury to find that the defendant was under the influence of alcohol if his blood/alcohol was .10 percent or more.” Id. at 803. We also stated that “a charge pursuant to section 3731(a)(1) must speak of permissible inferences.” Id. Although the same jury charge was given in Crum and Hess, the judgment was affirmed in Hess since there was other evidence of intoxication. If a jury instruction included an improper presumption which required the jury to make a certain finding instead of employing a permissible inference, the instruction would be erroneous, regardless of the surrounding facts. The two cases are not easily reconciled; it seems that a harmless error type analysis may have been applied in the Hess case since other evidence was presented to prove the defendant’s intoxication. In Crum, however, such an analysis would not have been appropriate since no other evidence of intoxication was presented against the defendant in that case.

Hess and Crum both cite the Pennsylvania supreme court case Commonwealth v. Difrancesco, 458 Pa. 188, 329 A.2d 204 (1974), which is also relied upon by appellant. Difrancesco analyzes the the pre-1982 version of 75 Pa.C.S.A. § 1547 which contained presumptions. Although repealed, the supreme court’s analysis of the statute in that case will be helpful in our disposition of the issue in the case at bar. In Difrancesco, defendants were convicted of operating a vehicle while under the influence of alcohol and blood tests revealed alcohol percentages over .10%. The supreme court was asked to decide whether section 624.1 of the Vehicle Code infringed upon the constitutional rights of defendants because it provided that persons whose test results were .10% or more alcohol by weight in the blood “shall be presumed” to be under the influence of intoxicating liquor. The supreme court held that the convictions would stand and that the statute passed constitutional muster. The court also decided that “what is described in 624.1(c) of the Vehicle Code as a ‘presumption’ is really no more than an inference which the jury may accept or reject in the light of all the evidence in the case. If the statute is read as a part of the court’s charge, the noncompulsory nature of this inference must be brought home to the jury.” The court also pointed out that

More is required than just a bare recitation of the statute. The concept of a presumption has caused confusion among lawyers as well as laymen, and the unqualified use of this word in the charge of the court may mislead jurors into think [sic] they are bound to accept the incriminating inference. The jury should be instructed that the test results are evidence that the defendant was under the influence of intoxicating liquor, and permit a finding to that effect, but that such a finding is not mandatory; that the test results should be considered together with all the other evidence in the case; and that if there is a reasonable doubt in the minds of the jurors as to whether
the defendant was under the influence of intoxicating liquor, they should return a verdict of ‘not guilty’.

Difrancesco, 458 Pa. at 199-200, 329 A.2d at 211.

After thoroughly reviewing the jury instruction, the court concluded that the charge given in that case appeared to be adequate in that the trial court made it clear to the jury that the inference was not mandatory. Cf. Commonwealth v. Gearhart, 253 Pa.Super. 238, 384 A.2d 1321 (1978) (The defendant’s conviction was reversed in a prosecution for driving with a .10% or more blood alcohol content where the trial court instructed the jury that as long as the Commonwealth proved that defendant’s breathalyzer results were .11%, then the guilt of defendant was established. A later attempt to caution the jury that the presumption was not absolute failed when the trial court followed the cautionary instruction with a statement that it was a presumption that defendant was under the influence if the test showed results of .10% or more).

Whether under the old Vehicle Code or the amended Vehicle Code, it is clear to this court that a defendant will not be conclusively presumed under the influence of alcohol as a result of a .10% blood alcohol level. Although the statute previously stated that if the defendant registers a .10% test result, “it shall be presumed” that the person was under the influence, this language only referred to a standardized permissible inference. Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985).

[W]here the presumed fact comprises an element of the crime charged, the inference authorized by a presumption can never be compelled by the court. Id., 339 Pa.Superior Ct. at 48, 488 A.2d at 301, quoting Difrancesco, 458 Pa. 188, 193-194, 329 A.2d 204, 208, n. 3.

In Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986), this court held that a blood alcohol test result can, by itself, support a conviction for a violation of section 3731(a)(4), but the test results do not compel the fact finder to reach this conclusion where there is competent evidence challenging the results. The weight to be accorded the test results then properly rests with the finder of fact. Id.

In the case sub judice, Officer Bickle testified that he fulfilled the training requirement in the use of the Intoxilyzer equipment, and that the equipment was approved by the Departments of Health and Transportation. The officer also testified that the equipment had been calibrated and tested for accuracy within a period of time and in a manner specified by the regulations of the Departments of Health and Transportation. See 67 Pa.Code § 77.21 et seq. (Equipment and Training required for administering chemical tests). Once the accuracy inspection procedure and the calibration procedure are satisfactorily completed, the test records shall be recorded on certificates of a type approved by the Department of Transportation and shall be signed and dated. 67 Pa.Code § 77.25(c), § 77.26(d). The certificate of accuracy and the certificate of calibration may then be admitted into evidence. Section 1547(c)(1) expressly states that these certificates showing that a device was calibrated and tested for accuracy and that the device was accurate “shall be presumptive evidence of those facts” in any proceeding charging a person with driving under the influence. Clearly, the certificate of calibration, when offered into evidence with a certificate of accuracy, shall be presumptive evidence only of the completion of the proper testing for accuracy of the breath test equipment.

The term “accuracy” as used in § 1547(c)(1) has a very specific meaning under the statute. In Commonwealth v. Mongiovi, 360 Pa.Super. 590, 521 A.2d 429 (1987), the defendant was found guilty of driving a motor vehicle with a blood alcohol count of .10% or greater in violation of 75 Pa.C.S.A. § 3731(a)(4). On appeal, the defendant argued that because the accuracy range on the breathalyzer equipment was found to be .006%, introduction of the test results was in error because the jury would have to speculate as to the fact of his actual blood alcohol level. The trial court in Mongiovi had instructed the jury that the weight to be accorded the test results rested with them. In deciding that the jury properly considered the test results, this court discussed the meaning of the term “accurate” as it relates to the equipment used for testing,

It should be pointed out that the term ‘variance’ could imply a test result which would be to appellant’s detriment as well as his advantage. Because we lack a legal presumption as to how a variance should be considered, its weight must be left with the trier of fact. By virtue of the fact that the variance was called into question by a juror, it is clear that the jury had before it the fact of the variance of the breathalyzer equipment. The jury was then able to consider this element, along with the other evidence, in reaching its verdict.
Furthermore, under 67 Pa.Code § 77.25(a), with regard to inspections for accuracy of breathalyzer equipment, the regulations require an inspection within 30 days prior to using the breath test equipment. The record reveals that such a test was made only four days prior to the incident in question, on September 24, 1985, and again 23 days following the incident, on October 21, 1985. The machine was found to be accurate at those times, according to the testimony of the officer who conducted the test. It must be noted that ‘accurate’ is a relative term with respect to this type of equipment. The equipment is accurate if the average deviation does not exceed .005, 67 Pa.Code § 77.25(b)(2)(ii).
Both parties, as well as the trial court, make reference to a range of .006. The testimony reveals that the breath test equipment was tested for accuracy and the following five results were obtained: .095, .099, .099, .101 and .101. On the record, counsel for appellant calculates the .006 range by subtracting the lowest number from the highest. While we do not dispute counsel’s calculations, we cannot agree with that formula used by counsel for arriving at the average deviation.

360 Pa.Superior Ct. at 594-595, 521 A.2d at 431-432 (emphasis added). It is based on this analysis that the Mongiovi court found the reading of .102% a reliable test result for consideration by the jury.

The certificate of accuracy for a particular device simply means that the device was properly tested and that during testing it had delivered an accurate reading as determined by a set average deviation range. Therefore these certificates did not provide presumptive evidence to the jury on the accuracy of blood test results in question but rather were presumptive evidence only of the accuracy of the testing equipment. Where evidence is presented to show that the Intoxilyzer equipment has been properly tested for accuracy and has been calibrated, there is a permissible inference that the test results are reliable.

In this case, the trial court instructed the jury that the Defendant was presumed innocent, the Commonwealth had the burden of proving beyond a reasonable doubt every element of the crime charged and to weigh the credibility of witnesses. The court also informed the jury that the opinion of Dr. Frajola, appellant’s expert witness, regarding appellant’s blood alcohol content at the time that he was stopped was of low quality since it was not based upon the doctor’s own personal knowledge, but given in response to a hypothetical question. The rest of the doctor’s opinion was to be given the weight and credibility warranted by the jury. The trial court then explained to the jury that the certificates of calibration and accuracy “shall be presumed as presumptive evidence of the accuracy of the breath test results.” This charge goes beyond section 1547(c)(1) in that it instructs the jury to “presume” the accuracy of the test results, not the accuracy of the equipment. By instructing the jury to “presume” the accuracy of the test results, without any qualification, the trial court, in effect, utilized a pre-Difrancesco jury instruction which may have compelled the jury to find appellant guilty without considering the other evidence presented.

We must be very careful to examine jury instructions whenever the trial court decides to charge a presumption. Intoxilyzer results may always be attacked by the defendant. Defendant can present evidence supporting sobriety and the chemical testing procedures can be cross-examined for flaws. We believe that the jury should have been instructed that if they believed that the test results were reliable, they could draw reasonable inferences from the results of the Intoxilyzer test, but they should be cautioned that the test is only evidence of appellant’s intoxication and the test result does not require such a finding. Though the trial court further instructed that the Commonwealth has to establish every element of the crime beyond a reasonable doubt and that appellant is presumed innocent, this was not sufficient to cure the prejudice created by the presumption charge. The standard is what a reasonable juror could have understood the charge to mean, not what he was likely to understand. The instruction could have led a reasonable juror to believe that a finding that defendant was under the influence was mandatory. Therefore, we conclude that the trial court improperly instructed the jury with respect to the Certificates of Accuracy and Calibration.

Judgment of sentence vacated and case remanded for a new trial consistent with this decision.

      . Driving under the influence of alcohol or controlled substance (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
      (4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.
      75 Pa.C.S.A. § 3731(a)(4).

      . See generally Edmund M. Morgan, Presumptions, 12 WASH.L.REV. (1937).

      . § 3731. Driving under influence of alcohol or controlled substance (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while: (1) under the influence of alcohol to a degree which renders the person incapable of safe driving.
      75 Pa.C.S.A. § 3731(a)(1).

      . We note that the decision further stated that if a defendant is specifically charged under section 3731(a)(4) and evidences a blood alcohol content of .10%, it is conclusively proven that the person was driving under the influence, and the instruction would be proper. However, since section 3731(a)(4) was not at issue in Crum, this statement goes beyond the question presented and is obiter dictum lacking any binding force.

      . The amended statute applicable to the case at bar now reads: (d) Presumptions from amount of alcohol. — If chemical testing of a person’s breath, blood or urine shows:
      (1) That the amount of alcohol by weight in the blood of the person tested is 0.05% or less, it shall be presumed that the person tested was not under influence of alcohol and the person shall not be charged with any violation under section 3731(a)(1) or (4) (relating to driving under influence of alcohol or controlled substance), or if the person was so charged prior to the test, the charge shall be void ab initio. This fact shall not give rise to any presumption concerning a violation of section 3731(a)(2) or (3).
      (2) That the amount of alcohol by weight in the blood of the person tested is in excess of 0.05% but less than 0.10%, this fact shall not give rise to any presumption that the person tested was or was not under the influence of alcohol, but this fact may be considered with other competent evidence in determining whether the person was or was not under the influence of alcohol.
      (3) That the amount of alcohol by weight in the blood of the person tested is 0.10% or more, this fact may be introduced into evidence if the person is charged with violating section 3731.

        75 Pa.C.S.A. § 1547(d). It would appear that the legislature intended any presumptions, if presumptions there be, regarding the actual blood test results in evidence in any case, should work to the benefit of a defendant but not against him. Under subsection (3) there is no presumption which attaches to the admissibility of a particular test result of .10% or more. Rather, it is but one evidentiary fact to be considered by the jury.

      . See Commonwealth v. Modaffare, 526 Pa. 631, 601 A.2d 1233 (1992) (Cappy, J., and McDermott, J., dissenting) (Although defendant’s blood sample revealed a .108% blood alcohol level, his conviction of driving while blood alcohol is .10% or greater was reversed by our supreme court due to the lapse of one hour and fifty minutes between his accident and the taking of the blood sample because of the testimony provided by the physician that a person’s blood alcohol level fluctuates with time and, depending on when defendant stopped drinking, his blood alcohol level may have been below .10% at the time of the accident. The court held that the record left the jury free to speculate about the defendant’s blood alcohol level at the critical time, and the evidence did not establish beyond a reasonable doubt that defendant’s blood alcohol level exceeded the legal limit while driving. It is significant to note that the court referred to strong and weak inferences of guilt, not presumptions, as a result of blood alcohol tests in excess of .10%).

      . See generally, Lawrence Taylor, Drunk Driving Defense 34-48 (3rd ed.1991).


source: Caselaw Access Project

author: POPOVICH, Judge.

license: Public Domain

text:
    607 A.2d 294
    COMMONWEALTH of Pennsylvania, Appellee, v. David P. BRUCE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1992.
    Filed April 30, 1992.

      M. Dan Mason, Asst. Public Defender, Meadville, for appellant.
    Narcy L. Hughes, Asst. Dist. Atty., Meadville, for Com., appellee.
    Before CAVANAUGH, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Crawford County, following appellant’s conviction on one count of theft by deception. Appellant was sentenced to a term of imprisonment of thirty (30) months to sixty (60) months and ordered to make restitution in the amount of $47,340. The sole issue raised on appeal is whether the evidence was sufficient to sustain the verdict. Having reviewed the record, we conclude that the evidence was not sufficient to prove beyond a reasonable doubt that appellant committed the offense of theft by deception. Accordingly, we reverse and discharge appellant.

“The test of the sufficiency of the evidence in a criminal case is whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt.” Commonwealth v. Carter, 329 Pa.Super. 490, 495-96, 478 A.2d 1286, 1288 (1984); Commonwealth v. Peduzzi, 338 Pa.Super. 551, 553-57, 488 A.2d 29, 31-32 (1985).

Applying the aforementioned standard, we glean from the record the following facts: Appellant, David Bruce, a resident of Huntsville, Tennessee, worked as a broker/wholesaler of lumber, operating under the name D & R Lumber. Appellant would find and purchase lumber from various sawmills, locate buyers for the lumber and deliver the lumber to the buyers. The complaining witness, Steven Ongley, was the owner of Ongley Hardwoods, a sawmill located in Crawford County, Pennsylvania. In June of 1988, appellant approached Ongley about purchasing lumber. Appellant informed Ongley that he had purchase orders from reputable companies. One of those buyers was James Beard of Korn Industries who asked appellant to supply him with cherry lumber.

In general, appellant and Ongley agreed that appellant would pick up a load of lumber from Ongley and deliver it to the buyer. Appellant would charge the buyer for the lumber based on market prices plus a delivery fee. After appellant was paid by the buyer, he would pay Ongley. Appellant would receive a five percent wholesale discount from Ongley for each load of lumber he brokered and a seven percent discount for each load he actually paid for within ten days of his receipt of the load.

On June 27,1988, appellant took possession of three loads of lumber from Ongley with an approximate total value of $10,242. Shortly thereafter, appellant paid Ongley $6,785, the value of two of the loads. From July 22, 1988 through August 10, 1988, Ongley provided appellant with five more loads of lumber with an approximate total value of $19,981. Appellant then requested additional lumber. However, Ongley would not provide appellant with any more lumber until he paid for the outstanding six shipments. Appellant then proposed an agreement whereby he would give Ongley his interest in a sawmill in exchange for three additional loads of cherry lumber valued at $21,490 and credit against his outstanding balance. At the time of this exchange, Ongley valued the sawmill at $50,000. On August 28, 1988, Ongley provided appellant with another load of lumber valued at $5,230. Therefore, by September 1, 1988, appellant and Ongley were essentially even in their business dealings.

After the sawmill exchange, Ongley testified that he would no longer provide appellant with lumber without being paid for the lumber in advance. On September 2, 1988, appellant presented Ongley a check for $29,653.10, in payment for three loads of . cherry lumber. From September 6, 1988, until October 10, 1988, Ongley provided appellant with thirteen additional loads of lumber with an approximate total value of $70,000, without advance payment from appellant. On October 4, 1988, appellant’s check for $29,653.10 was returned due to insufficient funds. Ongley contacted appellant at his home in Tennessee concerning the rejected check and the outstanding balance due. By October 13, 1988, appellant had satisfied the check, but had not paid for any of the additional loads.

After the last lumber shipment on October 10, 1988, Ongley would not provide appellant with any more lumber. Ongley and appellant began to negotiate how to satisfy appellant’s debt. Appellant’s debt to Ongley was reduced by a payment of $6,973.68. Also, appellant gave Ongley a sawmill “edger” worth $3,500, and appellant permitted Ongley to sell the lumber owned by appellant which had been stored at Ongley’s lumber yard. The final outstanding indebtedness was found by the court to be $47,340. Ongley testified that he spoke to appellant almost daily concerning payment. Eventually, appellant and Ongley employed attorneys in an attempt to resolve the matter. It appears negotiations continued up until the time when Ongley filed a private criminal complaint against appellant on June 28, 1989.

Throughout the duration of their business relationship, appellant repeatedly told Ongley that he had not yet been paid for the lumber by the buyers, but as soon as he was paid he would pay Ongley. However, testimony revealed that appellant received timely payment from his various buyers, and, yet, appellant did not make timely payments to Ongley. In fact, approximately 90% of Ongley’s lumber was shipped to Korn Industries who always paid appellant for the lumber within several days of its receipt.

At trial, appellant testified that he always intended to pay Ongley for the lumber. Appellant admitted that during the period in question, he was busy farming his land in Tennessee and was not sufficiently attentive to his lumber business. Appellant also admitted that he used the payments from Korn Industries to pay creditors, other that Ongley. He testified that often, due to market forces, he did not receive as much for the lumber as he had anticipated, and appellant noted that one of his clients had gone bankrupt and had not paid him for some of the lumber.

At trial, the Commonwealth argued that appellant was guilty of theft by deception because he deceived Ongley into delivering lumber to him by giving him a worthless check and promising to pay for lumber in a timely manner which appellant never intended to do. The Commonwealth also noted that appellant often promised to pay Ongley more money than appellant actually received for the lumber.

The crime of theft by deception is defined as follows: (a) Offense defined. — A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
(2) prevents another from acquiring information which would affect his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.
(b) Exception. — The term “deceive” does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed.

Therefore, to be guilty of theft by deception, it was essential that appellant obtained the lumber by deception, intending not to pay Ongley for it. Cf., Peduzzi, 338 Pa.Superior Ct. at 557, 488 A.2d at 32; Commonwealth v. Gallo, 473 Pa. 186, 373 A.2d 1109 (1977); Commonwealth v. Layaou, 266 Pa.Super. 411, 405 A.2d 500 (1979); Commonwealth v. Bentley, 302 Pa.Super. 264, 448 A.2d 628 (1982); Commonwealth v. Atwood, 411 Pa.Super. 137, 601 A.2d 277 (1991). Appellant’s intention not to pay for the lumber at the time he received it cannot be inferred from the fact alone that he did not pay for all the lumber. 18 Pa.C.S.A. § 3922(a)(1).

Upon review, we find that the evidence was insufficient to sustain his conviction. A thorough review of appellant’s and Ongley’s entire business relationship reveals that appellant did pay Ongley for all of the wood he received prior to September 6, 1988, and appellant paid for some of the loads supplied after that date. The record also reveals that the parties entered into extensive negotiations to settle the balance due on the lumber shipments delivered after September 6, 1988, and only after the negotiations failed to bear fruit did Ongley file a private criminal complaint. At no time during their relationship did appellant conceal his whereabouts or true identity from Ongley.

The record amply demonstrates that appellant is not an adept businessman and did lie to Ongley about his receipt of payments from Korn Industries. However, there is no evidence that, at the time of the transaction, appellant did not intend to pay for the lumber. To paraphrase the comment of the Honorable Judge Donald Wieand in a similar situation, if appellant was a liar, it does not necessarily follow that he was also a thief. Peduzzi, 338 Pa.Superior Ct. at 558, 488 A.2d at 33. Clearly, this case represents nothing more than a failed business relationship and is properly the subject of a civil suit, not criminal action. Accordingly, we reverse appellant’s conviction for theft by deception.

Judgment of sentence is reversed, and appellant is discharged.

      . 18 Pa.C.S.A. § 3922.

      . See Pa.R.Crim.P. 133, regarding the filing of a criminal complaint by a private citizen.


text:
    607 A.2d 297
    David PTAK v. MASONTOWN MEN’S SOFTBALL LEAGUE, Appellant, v. Steven BURCHIANTI, Vince Zapatosky, (Joseph Volansy and Norman Davis, Dismissed), Appellees.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1992.
    Filed April 30, 1992.

      James J. Nesser, Uniontown, for appellant.
    Thomas W. Smith, Greensburg, for appellee Burchianti.
    Gary A. Falatovich, Greensburg, for appellee Zapatosky.
    Before CAVANAUGH, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge.

This is an appeal from the order of the Court of Common Pleas of Fayette County which denied appellant’s motion to remove a non-suit entered in favor of defendant Vince Zapotosky. Herein, appellant raises the following questions:

I. Whether the learned trial judge erred in granting the non-suit in favor of the defendant, Vincent Zapotosky, contrary to the provisions of Pennsylvania Rule of Civil Procedure 224?
II. Whether the learned trial judge erred in granting the defendant, Vincent Zapotosky, a compulsory non-suit at the close of the plaintiff’s case as to the liability, contrary to the provisions of Pennsylvania Rule of Civil Procedure 230.1?
III. Whether the learned trial judge erred in granting the defendant, Vincent Zapotosky’s request for a compulsory non-suit, contrary to the provisions of Pennsylvania Rule of Civil Procedure 2232(d)?
IV. Whether the learned trial judge erred in granting the defendant, Vincent Zapotosky, a compulsory non-suit, because there did exist sufficient evidence demonstrating the defendant’s introduction of the baseball donut, contrary to league rules, onto the softball field on August 8, 1984, which was a substantial factor in causing the plaintiff’s injuries, thus creating a factual issue for the jury’s consideration?

Having determined that the lower court properly granted a non-suit in Zapotosky’s favor, we affirm.

The record reveals the following facts: Appellant filed this personal injury action against several defendants, including Steven Burchianti and appellee, Vince Zapotosky. Prior to trial, upon the motion of appellee, the ease was bifurcated with respect to the issues of liability and damages.

During the liability phase of the trial, testimony revealed that on August 8, 1984, appellee inadvertently brought a baseball batting ring or “doughnut” to the soft ball game. Appellee did not intend for anyone to use the batting ring nor did he authorize anyone to use it. Unbeknownst to appellee, Steven Burchianti took the doughnut from the dugout. While Burchianti was warming-up with the ring on his softball bat, the doughnut flew off the bat and struck appellant in the face, severely injuring him.

Appellant alleged there was a league rule prohibiting the use of batting doughnuts. However, in his deposition, league president Joseph Volansky stated that he did discuss prohibiting the use of batting doughnuts with the league’s managers but no formal rule was ever adopted. He stated that he had not personally spoken with appellee regarding the use of batting doughnuts, and he was not aware whether his discussions with team managers was disseminated to the players in the league. He also noted that some American Softball Association leagues permit the use of batting doughnuts, while others do not.

After appellant finished his proof concerning liability, appellee moved for and was granted a compulsory non-suit. Appellant then filed a motion to remove the non-suit which was denied. This appeal followed.

Appellant first challenges the lower court’s decision to bifurcate the trial on the issues of liability and damages. The court’s decision to bifurcate a trial will not be disturbed absent an abuse of discretion. Coleman v. Philadelphia Newspapers, 391 Pa.Super. 140, 145-146, 570 A.2d 552, 555 (1990); Sacco v. City of Scranton, 115 Pa.Cmwlth. 512, 517, 540 A.2d 1370, 1372 (1988). Pursuant to Pa.R.C.P. 213(b), the court may order bifurcation of trial issues in furtherance of convenience or to avoid prejudice. Coleman, 391 Pa.Superior Ct. at 145, 570 A.2d at 555 (collecting cases); see also Pa.R.C.P. 224, Regulation of Order of Proof. Before ordering bifurcation, the court should carefully consider the issues raised and the evidence to be presented to determine whether the liability and damages issues are interwoven, as is often the case in personal injury litigation. Stevenson v. General Motors, 513 Pa. 411, 422-423, 521 A.2d 413, 419 (1987); Coleman, 391 Pa.Superior Ct. 146, 570 A.2d at 555.

Instantly, bifurcation was not an abuse of discretion. Appellant argues that the testimony of several physicians concerning appellant’s injuries to be presented during the damages phase of the trial would have corroborated the causation issue regarding the use of the batting doughnut, and, thus, bifurcation was not proper. However, it was undisputed that appellant’s injuries were sustained when he was hit in the face by the batting ring. Accordingly, corroboration by the physicians was unnecessary to establish causation. Moreover, bifurcation insured that the jury’s decision as to liability would not be tainted by sympathy for appellant, occasioned by the severity of his injuries. Undoubtedly, the lower court’s decision facilitated the orderly presentation of evidence and avoided prejudice. Accordingly, we find no error.

Second, appellant argues that the lower court was not authorized by Pa.R.C.P. 230.1 to grant a compulsory non-suit to one of two “jointly and severally liable” defendants. Although appellant is correct that the lower court was not authorized to grant a compulsory non-suit by Pa.R.C.P. 230.1, which pertains to trials involving only one defendant, the trial court was clearly permitted pursuant to Pa.R.C.P. 2232(d) to enter a non-suit in an action involving multiple defendants in favor of any defendant shown not to be liable either jointly, severally or separately. Frank v. W.S. Losier & Co., 361 Pa. 272, 64 A.2d 829 (1949); Capan v. Divine Providence Hospital, 270 Pa.Super. 127, 410 A.2d 1282 (1979).

Third, appellant contends the court erred in granting the non-suit in favor of appellee before all additional defendants had an opportunity to present their evidence of liability. Appellant is legally correct that it is improper to grant a non-suit in favor of one defendant before the other defendants have an opportunity to present their cases. Pushnik v. Winky’s Drive-In Restaurants, Inc., 242 Pa.Super. 323, 363 A.2d 1291 (1976). However, a non-suit may be granted in favor of one defendant at the close of plaintiff’s case when it is clear that the other defendants cannot or will not tortiously implicate the dismissed defendant; Mazza v. Mattiace, 284 Pa.Super. 273, 278, 425 A.2d 809, 812 (1981). Instantly, at the time appellant moved for a compulsory non-suit, defendant Steve Burchianti joined in the motion. Thus, it is clear that neither defendant intended to present testimony with respect to liability following the close of plaintiffs case. Further, counsel for both defendants entered a stipulation indicating that they did not intend to present further testimony as to liability. Therefore, we find no error in granting a compulsory non-suit in appellee’s favor since no one was denied the opportunity to present evidence prior to entry of the non-suit.

Finally, appellant argues that the lower court erred in granting the compulsory non-suit because there was sufficient evidence presented to send to the jury the questions of whether appellee was negligent and whether his negligence was a substantial factor in causing appellant’s injuries. A non-suit may not be granted unless the jury, viewing all the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established. Ford v. Jefferies, 474 Pa. 588, 379 A.2d 111 (1977); Mazza, 284 Pa.Superior Ct. at 279, 425 A.2d at 811-812.

Upon review of the record, the facts warranted the granting of a compulsory non-suit in appellee’s favor. Appellee inadvertently brought the baseball batting ring to the softball game. He left the batting ring on his baseball bat in the dugout and did not intend for anyone to use it. Defendant Burchianti used the ring without appellee’s permission or knowledge. Contrary to appellant’s contention, there was not a league rule against the use of batting ring. Further, there was no evidence that appellee knew of or should have known of any restriction on the use of batting rings. Even if there was a league rule restricting the use of doughnuts, the mere possession of a batting doughnut was not prohibited. Finally, it is abundantly clear that a batting doughnut is not an inherently dangerous instrumentality capable of causing harm on its own. It is capable of causing harm only if defective (which was not alleged) or used improperly, and there is no evidence suggesting appellee used the doughnut or authorized its use at the time of appellant’s injury.

In sum, the record is devoid of any evidence which suggests that appellee was negligent simply because he brought a batting ring to the softball field. As such, we find that the lower court acted properly in granting a compulsory non-suit in appellee’s favor.

Order affirmed.

      . Prior to attending the softball game, appellee was at baseball practice. His mother picked him up from baseball practice and dropped him off at the softball field. Appellee had his baseball equipment with him and placed that equipment in the corner of the dugout. The weighted ring was on his baseball bat which he had used earlier at baseball practice.

      . In fact, appellant’s argument is directly contradicted by Frank, supra, wherein our Supreme Court noted that Pa.R.C.P. 2232(d) was enacted in order to abrogate the strict common-law rule that, where joint liability was pleaded, plaintiff was obligated to recover against all or none.

      . In fact, the only remaining witnesses as to liability who could have been called to testify by either defendant were the defendants themselves. We note that both defendants testified extensively during plaintiffs case-in-chief.


author: WIEAND, Judge:

text:
    607 A.2d 745
    Bruce B. BURKHOLDER, t/a Burkholder Associates v. William M. CHERRY and Deborah L. Cherry, husband and wife v. Esther BURKHOLDER. Appeal of William M. CHERRY and Deborah L. Cherry.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1991.
    Filed March 27, 1992.
    Reargument Denied June 5, 1992.

      Kenneth A. Wise, Harrisburg, for appellants.
    Robert L. McQuaide, Gettysburg, for appellees.
    Before WIEAND, MONTEMURO and KELLY, JJ.
   WIEAND, Judge:

In this action to recover moneys due under a residential construction contract, the jury returned a verdict in favor of the contractor, Bruce B. Burkholder, and against the homeowners, William and Deborah Cherry, for eighteen thousand ($18,000) dollars. The trial court then molded the verdict to add interest in the sum of five thousand, one hundred fifty-four and 14/100 ($5,154.14) dollars. Post-trial motions were denied, and judgment was entered on the molded verdict. On appeal, the homeowners allege several errors, the most significant of which pertains to the trial court’s award of interest.

The contract price alleged in the contractor’s complaint was sixty-four thousand, one hundred eighty-five ($64,185) dollars. The contractor also claimed an additional three thousand, five hundred eighty-nine and 19/100 ($3,589.19) dollars for extras allegedly ordered by the Cherrys. Of the total amount due, the contractor gave credit for the sum of thirty-five thousand, three hundred one and 75/100 ($35,-301.75) dollars already paid by the homeowners, leaving an alleged contract balance of thirty-two thousand, four hundred seventy-two and 44/100 ($32,472.44) dollars. By subsequent amendment to the complaint, the contractor added an alternate count in quantum meruit, in which he asserted a claim for benefits bestowed upon the Cherrys in the amount of nineteen thousand, six hundred eighteen and 95/100 ($19,618.95) dollars. Alleging work that was both incomplete and defective, the Cherrys filed a counterclaim for damages. They also joined Esther Burkholder, the contractor’s wife, on the theory that she was a partner with or agent for her husband. The jury, as we have observed, returned a verdict in the amount of eighteen thousand ($18,000) dollars in favor of the contractor.

In Kessler v. Old Guard Mutual Insurance Company, 391 Pa.Super. 175, 570 A.2d 569 (1990), the Superior Court made the following observations regarding the payment of interest.

As a general rule, the right to pre-judgment interest on money owing upon contract is a legal right. Fernandez v. Levin, 519 Pa. 375, 379, 548 A.2d 1191, 1193 (1988). If the breach of contract consists of a failure to pay a definite sum in money, interest is recoverable from the time of performance on the amount due. Restatement (Second) of Contracts § 354(1). Where recoverable, prejudgment interest may be added to a jury’s verdict by the trial court. See: Commonwealth to the Use of Walters Tire Service, Inc. v. National Union Fire Insurance Co., 434 Pa. 235, 242, 252 A.2d 593, 596 (1969); Verner v. Shaffer, 347 Pa.Super. 206, 211, 500 A.2d 479, 480 (1985).

Id. 391 Pa.Super. at 181-182, 570 A.2d at 573.

In support of their contention that the contractor was not entitled to recover interest, the Cherrys make two arguments. First, they argue that interest is not recoverable on a claim for quantum meruit, and in this case it is impossible to determine whether the recovery allowed by the jury was for quantum meruit or based on the price established by the contract. Secondly, they argue, the jury may have allowed some or all of their counterclaim and, if so, the amount of the claim was unascertainable. These are novel and interesting arguments. Ultimately, however, we conclude that they are without merit.

The justification for an award of interest, as stated in Frank B. Bozzo, Inc. v. Electric Weld Division, 345 Pa.Super. 423, 498 A.2d 895 (1985), is that

because the defendant knew or at least could have learned the amount of his debt, he should have tendered that amount to the plaintiff. Since he did not, and by failing to do so caused the delay of litigation, he has deprived the plaintiff of the use of that amount from thé date of the breach to the date of the satisfaction of the judgment. Or to state it conversely, the defendant has for that period had the use of money now known to have been the plaintiffs. See generally, 5 Corbin on Contracts, §§ 1047, 1048 (1964), Restatement Second Contracts § 354, Comment d.

Id., 345 Pa.Superior Ct. at 430, 498 A.2d at 898.

The law is stated in the Restatement (Second) of Contracts, at section 354, as follows:

§ 354. Interest as Damages
(1) If the breach consists of a failure to pay a definite sum in money or to render a performance with fixed or ascertainable monetary value, interest is recoverable from the time for performance on the amount due less all deductions to which the party in breach is entitled.
(2) In any other case, such interest may be allowed as justice requires on the amount that would have been just compensation had it been paid when performance was due.

The rule is explained in comment (c) as follows:

c. Where amount due is sufficiently definite. Under the rule stated in Subsection (1), a party is not chargeable with interest on a sum unless its amount is fixed by the contract or he could have determined its amount with reasonable certainty so that he could have made a proper tender. Unless otherwise agreed, interest is always recoverable for the non-payment of money once payment has become due and there has been a breach. This rule applies to debts due for money lent, goods sold or services performed, including installments due on a construction contract. The fact that the breach has spared some expense that is uncertain in amount does not prevent the recovery of interest. The sum due is sufficiently definite if it is ascertainable from the terms of the contract, as where the contract fixes a price per unit of performance, even though the number of units performed must be proved and is subject to dispute. The same is true, even if the contract does not of itself create a money debt, if it fixes a money equivalent of the performance. It is also true, even if the contract does not fix a money equivalent of the performance, if such an equivalent can be determined from established market prices. The fact that the extent of the performance rendered and the existence of the market price must be proved by evidence extrinsic to the contract does not prevent the application of these rules.

Appellant has failed to cite any authority, and our own research has revealed none, that would prevent prejudgment interest from being awarded where a recovery is had for the value of work done or services rendered on a quantum meruit basis. The basis for the contractor’s recovery in the instant case was the construction contract which he had with the owners. Whether the damages were based on the terms of the contract or on quantum meruit, it is clear that the owners have had the use of the contractor’s money since the date on which it was due. The amount owed, moreover, was sufficiently ascertainable so that a tender could have been made. We hold, therefore, that where, as here, the claim is for work done and services rendered, the claimant is entitled to recover pre-judgment interest.

The Restatement rule is also clear that interest is to be calculated “on the amount due less all deductions to which the party in breach is entitled.” Thus, the amount of the claim is not rendered unascertainable, for purposes of determining whether pre-judgment interest is recoverable, merely because the breaching party has asserted a counterclaim. Otherwise, a breaching party could always defeat a claim for pre-judgment interest by filing a counterclaim. This is not the law. Although the precise issue has not previously been before the appellate courts of this Commonwealth, most courts which have considered the issue have held that the ascertainable amount of a claim is not rendered unascertainable by a breaching party’s counterclaim. See: Davis v. Carpenter, 155 Ga.App. 301, 270 S.E.2d 810, 812 (1980), rev’d on other grounds, 247 Ga. 156, 274 S.E.2d 567 (1981) (“[T]he fact that the jury returned a verdict ... in an amount less than the figure prayed for ... in no way necessarily converted the claim for an otherwise liquidated amount into a claim for an uncertain and, therefore, unliquidated amount.”); Homes & Son Construction, Inc. v. Bolo Corporation, 22 Ariz.App. 303, 526 P.2d 1258, 1261-1262 (1974) (“It appears to be the well-recognized rule that if the amount due under a contract is ascertainable, but is reduced by the existence of an unliquidated set-off or counterclaim, attributable to the contract, [pre-judgment] interest is properly allowable on the balance found due from the due date.”); Herbert & Brooner Construction Co. v. Golden, 499 S.W.2d 541, 553 (Mo.App.1973) (“[W]here ... the plaintiff’s demand is liquidated, the interposition of an unliquidated counterclaim, set-off or recoupment does not convert the liquidated demand into an unliquidated one or preclude the plaintiffs recovery of prejudgment interest ... or prevent the recovery of interest on the balance of the demand found due from the time it became due.”); Mitchell v. Flandro, 95 Idaho 228, 506 P.2d 455, 462 (1972) (the fact that the defendant alleged that the plaintiff had not properly performed under the contract “does not militate against [plaintiffs] claim for interest.”); Beck v. Lawler, 422 S.W.2d 816, 819-820 (Tex.1967) (plaintiff entitled to recover pre-judgment interest on amount awarded at trial subject to the defendant’s set-off or counterclaims; otherwise, prejudgment interest never recoverable in case where amount sought to be recovered was placed in doubt by a counterclaim).

In this case, the trial court did not err when it calculated pre-judgment interest on the amount found due and payable by the jury and molded the jury’s verdict to include such interest.

Appellants’ remaining assignments of error are readily determined. The trial court did not err when it dismissed without submitting to the jury appellants’ complaint against Esther Burkholder, the additional defendant. Although appellants rely upon J.R. Christ Construction Co. v. Olevsky, 426 Pa. 343, 232 A.2d 196 (1967), their reliance is misplaced. There, the court did hold that the status of husband and wife gave rise to a “presumption in the law that either party has the power to act for both without specific authorization so long as the benefits of such action are contemplated to insure both spouses.” However, the Court was there concerned with authority to contract for improvements to real estate owned by husband and wife as tenants by the entireties. That decision, therefore, has no application here, where it was appellants’ contention that Esther Burkholder had been a business partner of her husband.

In the instant case, the only evidence offered by the Cherrys was that Burkholder had used an entireties bank account for business purposes and that his wife had been seen at the job site. This was insufficient to establish a husband and wife business partnership. A business partnership does not, without more, arise merely by reason of marital status. Moreover and in any event, the jury’s verdict has rendered moot any claim which appellants might have had against Mrs. Burkholder.

The trial court also did not err when it ruled that, as a matter of law, the Cherrys had failed to produce evidence that the contractor had violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law of November 24, 1976, P.L. 1166, No. 260, 73 P.S. § 201-1 et seq. This law is to be liberally construed to effectuate its intent, but we must remember that its intent is to prevent fraud. Chatham Racquet Club v. Comm. of Penna., 127 Pa.Commw. 209, 219, 561 A.2d 354, 359 (1989), alloc. denied, 527 Pa. 604, 589 A.2d 694 (1991). Here, there was no evidence of fraud. Even William Cherry conceded that Burkholder had made no representations pertaining to any special skills as a builder, and it is not enough to establish a violation of the statute that Burkholder failed to fulfill the Cherrys’ expectations regarding the quality of his work. Moreover, appellants were unable to prove a loss. The jury determined that the dwelling had been constructed in a good and workmanlike manner and that Burkholder was entitled to be paid for his. work. Under these circumstances, the Cherrys did not sustain any loss that was compensable under the provisions of the Unfair Trade Practices and Consumer Protection Law.

Burkholder testified at trial that the Cherrys had made requests for certain additions and changes to the standard home. The defendants cross-examined him about a document which appeared to be a change order. This change order contained what purported to be the following: “Approved: W.M. Cherry.” When Burkholder was asked about it on cross-examination, he said that it was a carbon copy on which Cherry’s signature had not been clear and that, therefore, Cherry had clarified the same by retracing his signature over the carbon imprint. When Cherry testified on direct examination, he denied ever seeing the document prior to the commencement of Burkholder’s suit.

Late that afternoon, Cherry sought to call out of order Irene Setlack, a handwriting analyst, on the representation that she would not be available on the following day. When she was called, an offer of proof was made that she would testify that the Cherry signature was “a tracing with a slow hand.” She conceded, however, that she could not say, and had no opinion, as to who had done the tracing. When the trial court pressed counsel for further information, counsel could offer nothing further. The trial court, therefore, held Setlack’s opinion inadmissible. Later, counsel again offered to call the witness to show, not a tracing, but a copy of Cherry’s signature. The trial court again refused to allow the testimony.

A close examination of the document discloses that the word “Approved” is a carbon imprint. There is also a carbon imprint of the signature purporting to be that of W.M. Cherry. Over this carbon imprint, however, is a tracing or copying of the signature in ink. This is readily apparent to the naked eye; and the witness could testify to nothing more. She could not say and was not offered to prove that the carbon imprint underlying the traced or copied overlay was anything but a precise imprint of Cherry’s authentic signature. Under these circumstances, the witness had nothing to impart that was not already both evident and conceded by the plaintiff. The trial court, therefore, did not abuse its discretion when it disallowed the expert’s testimony.

For all of these reasons, it is abundantly clear that the judgment in favor of appellee must be, as it is,

AFFIRMED.


author:
OLSZEWSKI, Judge:
      McEWEN, Judge,

text:
    607 A.2d 750
    COMMONWEALTH of Pennsylvania, Appellant, v. Frank SCULLIN, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 8, 1991.
    Filed April 3, 1992.
    Reargument Denied June 2, 1992.

      Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.
    F. Emmett Fitzpatrick, Jr., Philadelphia, for appellee.
    Before CAVANAUGH, McEWEN, and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal by the Commonwealth challenging the discretionary aspects of the sentence imposed upon appellee Frank Scullin by the Court of Common Pleas of Philadelphia County. Upon evidence received at a non-jury trial, appellee was convicted of involuntary manslaughter and sentenced to five years of probation. The Commonwealth filed a timely motion for reconsideration of sentence and it was denied. This appeal of sentence followed. Because we believe that the sentencing court erred in not applying the deadly weapons enhancement of the Sentencing Code and in not providing a contemporaneous statement of reasons for deviating from the sentencing guidelines, we vacate the judgment of sentence and remand for resentencing.

Although various narratives of the events of the night of July 4, 1989 were offered at trial, the facts of the case, as determined by the fact finder, are as follows. On that night, appellee and a companion chased and confronted fifteen-year-old Steven Crespo and a cousin of Crespo. Appellee believed that the boys were attempting to steal a car. Appellee tried to grab Crespo and punched him. Crespo ran into the street and threw a tire iron at appellee. The tire iron did not strike appellee, but he picked it up, threw it at Crespo, and struck him in the back of his head. Crespo fell to the ground and subsequently died. The cause of the victim’s death was a blunt force injury to the back of his head. Trial court opinion at 2-3.

After a non-jury trial, appellee was found guilty of involuntary manslaughter and subsequently sentenced to five (5) years of strict reporting probation.

On appeal, the Commonwealth asks us to examine what is essentially one issue: whether the sentencing court abused its discretion under the Sentencing Code when it imposed a sentence of five years’ probation upon appellee. This question challenges the discretionary aspects of the sentence rather than its legality. Objections to the legality of a sentence charge that the sentence is defective in itself — for instance, where offenses have not been merged for sentencing, or where the sentence exceeds the permissible maximum. Commonwealth v. Mathis, 317 Pa.Super. 362, 371, 464 A.2d 362, 367 (1983). Claims like the Commonwealth’s, however, which charge that a sentence is too lenient under the Sentencing Code, have been treated as discretionary challenges. See e.g., Commonwealth v. Cleveland, 364 Pa.Super. 402, 528 A.2d 219 (1987); Commonwealth v. Cornish, 403 Pa.Super. 492, 589 A.2d 718 (1991). The discretionary sentencing issue can further be broken into the following three sub-issues:

(1) Whether the sentencing court should have applied the deadly weapon enhancement of the sentencing code.
(2) Whether the sentencing court erred by not placing its reasons for not applying the deadly weapon enhancement on the record.
(3) Whether the sentencing court should have considered appellant’s threats to New Jersey police officers who arrested him for a subsequent, unrelated offense when the court imposed the sentence.

In order to preserve an appeal from the discretionary aspects of a sentence, certain procedures must be followed. First, the sentencing issues must be properly preserved in a timely motion for reconsideration of sentence. Pa.R.Crim.P. 1410. Commonwealth v. Penrod, 396 Pa.Super. 221, 229, 578 A.2d 486, 490 (1990). As stated above, appellant filed a timely petition for reconsideration of sentence and it properly preserved the issues. Next, as part of its brief, appellant must set forth any discretionary sentencing issues in its statement of questions presented. Pa.R.A.P. 2116(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 512, 522 A.2d 17, 19 (1987). Appellant must also provide a Pa.R.A.P. 2119(f) statement which includes a concise prefatory statement of reasons for allowance of appeal. Id., 513 Pa. at 512, 522 A.2d at 19. The Commonwealth’s brief meets both of these procedural requirements.

Next, we must determine whether the 2119(f) statement demonstrates a substantial question that the sentencing court imposed a sentence that was inappropriate under the Sentencing Code. Id. We note that in deciding whether a substantial question exists, we may not look beyond the statement of questions presented and the concise prefatory 2119(f) statement. Commonwealth v. Felix, 372 Pa.Super. 145, 155, 539 A.2d 371, 376 (1988), allocatur denied 525 Pa. 642, 581 A.2d 568 (1990). A substantial question exists where “appellant advances a colorable argument that the trial judge’s actions were either inconsistent with the specific provisions of the Sentencing Code, or contrary to the norms which underlie the sentencing process.” Commonwealth v. Zelinski, 392 Pa.Super. 489, 499, 573 A.2d 569, 574 (1990). Appellant does not have an appeal as of right from the discretionary aspects of a sentence. Id. It is only where a party sets forth reasons why a particular sentence has compromised the sentencing scheme as a whole that the appellate court will review the manner in which the trial court exercised its discretion. Tuladziecki, 513 Pa. at 516, 522 A.2d at 21. As a result, the Rule 2119(f) statement must enable the reviewing court to decide whether the case should be reviewed without considering appellant’s argument on the merits. Zelinski, 392 Pa.Super. at 499, 573 A.2d at 574.

We find that the Commonwealth’s assertion that the sentencing court erroneously refused to apply the deadly weapon enhancement raises a substantial question for review. See Commonwealth v. Pokorny, 360 Pa.Super. 384, 386, 520 A.2d 511, 512 (1987); Cornish, 403 Pa.Superior Ct. at 494, 589 A.2d at 720 (allegation that sentencing court refused to apply deadly weapon enhancement provision of Sentencing Code is a substantial question).

Once it is determined that a substantial question exists, the merits are assessed using abuse of discretion as the standard of review. Commonwealth v. Minott, 395 Pa.Super. 552, 577 A.2d 928 (1990). We now move to the merits of this claim to determine whether an abuse can be found.

The Commonwealth charges that the trial court erred when it imposed a sentence within the mitigated range of the guidelines rather than a sentence within the enhanced guidelines. The Commonwealth concedes that the sentence imposed under the mitigated range would have been a proper sentence for involuntary manslaughter if the deadly weapon enhancement was not required. Brief for appellant at 6, n. 3. The Commonwealth believes, however, that an enhanced guideline sentence was required because appellee used a lug wrench to strike the victim. We must, therefore, decide whether the tire iron, as it was used in the circumstances of this case, constituted a deadly weapon. We believe that it did.

The Pennsylvania legislature has provided the courts with a statutory definition of “deadly weapon.” It provides, in pertinent part,

“Deadly weapon.” Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.

18 Pa.C.S.A. § 2301 (emphasis added).

Although deadly weapons are commonly items which one would traditionally think of as dangerous {e.g., guns, knives, etc.), there are instances when items which normally are not considered to be weapons can take on deadly status. See e.g., Commonwealth v. Prenni, 357 Pa. 572, 55 A.2d 532 (1947) (broom handle); Commonwealth v. Cornish, 403 Pa.Super. 492, 589 A.2d 718 (1991) (fireplace poker); Commonwealth v. Brown, 402 Pa.Super. 369, 587 A.2d 6 (1991) (dry-wall saw). The definition of deadly weapon does not demand that the person in control of the object intended to injure or kill the victim. Instead, it gives objects deadly weapon status on the basis of their use under the circumstances. See Commonwealth v. Burns, 390 Pa.Super. 426, 429, 568 A.2d 974, 976 (1990), allocator denied 525 Pa. 616, 577 A.2d 888 (1990). It does not matter, for the purpose of determining the status of the tire iron, whether or not appellee intended for it to trip the victim or to do more serious injury. Thus, we fail to see why it matters, as it does to the trial court, that the tire iron belonged to the victim or that appellee may have believed he was justified in throwing it at Crespo after Crespo threw it at him.

Although a tire iron is not traditionally deemed a deadly weapon, it is an instrument which is likely to produce death or serious bodily injury if used in a manner such as that used by appellee against Steven Crespo. If one throws a tire iron, a heavy object made of a heavy metal, at another person, there is a high probability that the victim will be seriously hurt or killed. Thus, the tire iron used by appellee to strike the victim became a deadly weapon at the moment appellee threw it in the direction of the ultimate victim.

This Court has decided that in the context of calculating the recommended guidelines’ sentence, a sentencing court has no discretion to refuse to apply 204 Pa.Code § 303.4, the deadly weapons enhancement. Cornish, 403 Pa.Super. at 494, 589 A.2d at 720; Commonwealth v. Septak, 359 Pa.Super. 375, 380, 518 A.2d 1284, 1286 (1986); Commonwealth v. Drumgoole, 341 Pa.Super. 468, 474, 491 A.2d 1352, 1355 (1985). Thus, by refusing to consider the deadly weapons enhancement in calculating the appropriate range under the guidelines, the sentencing court in this case abused its discretion.

Although a sentencing court has the discretion to impose a sentence which it deems appropriate, Cornish, 403 Pa.Super. at 494, 589 A.2d at 720, there is a procedure which it must follow in utilizing its discretion. The procedure mandates that the court consider the sentencing guidelines and, should it choose to deviate from the guidelines, it must provide a contemporaneous written statement of its reason for such deviation. 42 Pa.C.S.A. § 9721(b). The Sentencing Code clearly provides that failure to comply with its requirements is grounds for vacating the sentence and resentencing the defendant. Id. Thus, the Commonwealth’s assertion that the sentencing court erred in not stating its reasons for not applying the deadly weapons enhancement presents a substantial question because it raises an inconsistency with a specific provision of the Sentencing Code.

The Commonwealth alleges that the trial court began its sentencing with reference to an incorrect framework by refusing to apply the deadly weapon enhancement. We reiterate, the sentencing court had no discretion to refuse to apply the deadly weapon enhancement. Cornish, 403 Pa.Superior Ct. at 494, 589 A.2d at 720; Commonwealth v. Septak, 359 Pa.Super. 375, 380, 518 A.2d 1284, 1286 (1986); Commonwealth v. Drumgoole, 341 Pa.Super. 468, 474, 491 A.2d 1352, 1355 (1985). In cases where the trial court erroneously calculates the starting point under the guidelines, this Court will vacate the sentence and remand for reconsideration of sentence. See Cornish, 403 Pa.Super. at 494, 589 A.2d at 720; Commonwealth v. Brown, 402 Pa.Super. 369, 375, 587 A.2d 6, 9 (1991).

We find, in conformity with existing case law, that although a sentencing court is vested with the right, if it properly exercises its discretion, to sentence outside of the guidelines, it must begin from the correct starting point. See Id. Under the sentencing guidelines, the offense gravity score for appellee’s involuntary manslaughter conviction is five (5) and the prior record score is zero (0). 204 Pa.Code § 303.8. The minimum sentencing ranges under the guidelines are non-confinement in the mitigated range, zero (0) to twelve (12) months in the standard range, and twelve (12) to eighteen (18) months in the aggravated range. 204 Pa.Code § 303.9. If the sentencing court had begun with the deadly weapon enhancement, as we have found it was required to do, the sentencing ranges are twelve (12) to twenty-four (24) months in the mitigated range, twelve (12) to thirty-six (36) months in the standard range, and twenty-four (24) to forty-two (42) months in the aggravated range. 204 Pa.Code § 303.9. Thus, with the application of the deadly weapon enhancement, appellee’s probation sentence is outside of the guidelines. The sentence must be vacated and the case remanded for resentencing after the sentencing court takes account of the deadly weapons enhancement. If the sentencing court then finds it appropriate to sentence appellee outside of the guidelines, it may do so provided it places adequate reasons for the deviation on the record.

We find that the Commonwealth’s assertion that the sentencing court’s failure to consider death threats which appellee allegedly made to police officers who arrested him for a subsequent, unrelated offense does not raise a substantial question for our review. The Commonwealth’s 2119(f) statement fails to state how this alleged error has compromised the sentencing scheme as a whole. Accordingly, we will not reach the merits of appellant’s argument on this issue.

For the foregoing reasons, the judgment of sentence is vacated and the case is remanded for resentencing in accordance with the provisions of this decision. Jurisdiction is relinquished.

Dissenting opinion by McEWEN, J.

McEWEN, Judge,

dissenting:

Since the author of the majority opinion has provided so insightful an analysis and thoughtful an expression of view, I hasten to express at the outset that I agree (1) that a sentencing court must consider the deadly weapons enhancement in calculating the applicable ranges under the guidelines, and (2) that, whatever the guideline ranges of that calculation, the court may proceed to impose a sentence outside the guidelines, including a sentence of probation for involuntary manslaughter.

I am compelled, nonetheless, to this dissent because I am of a mind that, under the facts of this case, the tire iron, as it was used in this case, did not meet the definition of a “deadly weapon”, and that, therefore, the trial court properly concluded that the deadly weapon enhancement provision of the sentencing guidelines was inapplicable.

This appeal focuses, of course, upon the section of the Sentencing Code known as the deadly weapon enhancement requirement which declares:

When the court determines that the defendant possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301 (relating to definitions), during the commission of the current offense, at least 12 months and up to 24 months shall be added to the guidelines sentence range which would otherwise have been applicable, (emphasis supplied).

204 Pa.Code § 303.4. Thus, the sentencing court is required to add a period of between twelve months and twenty-four months in its calculation of the three guideline ranges, whenever two conditions precedent coalesce, namely, the facts of the offense include (1) the possession by the defendant of (2) a deadly weapon. The distinguished Judge Lisa A. Richette did not here consider the deadly weapon enhancement in calculating the applicable ranges under the guidelines because, in her words:

[T]he deadly weapon enhancement does not, in this court’s experience, apply to a tire iron thrown by the victim and thrown back by the defendant who is not in clear possession of it.

The very first phrase of the enhancement provision itself confers upon the trial court the prerogative of determining whether a device is a deadly weapon. Moreover, this court has established as clear and certain that the determination of whether a particular weapon is within the embrace of the statute can only be made by the trial court measuring the specificity of the statute against the actual facts of the occurrence and conduct of the party challenging the applicability of the statute. Commonwealth v. McKeithan, 350 Pa.Super. 160, 504 A.2d 294 (1986). Since there is a sound basis for the ruling of the trial court, I am unwilling to intrude upon the statutorily conferred prerogative of the trial court by substituting our judgment upon the issue.

An analysis of the issue summons to focus the statutory definition of the term deadly weapon:

Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death, or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.

18 Pa.C.S. § 2301. Clearly, firearms and knives, which, by virtue of their design and construction, may be used to kill, maim, or inflict serious bodily injury, are to be regarded as deadly per se. Other instrumentalities, which are not weapons by primary function because they are designed to serve some positive purpose, are not deadly per se, and only become a deadly weapon when wielded or used by its possessor for the purpose of causing death or inflicting bodily harm. See, e.g., Anno., Walking Cane as Deadly Weapon, 8 ALR 4th 842 (1981); Cummings v. State, 270 Ind. 251, 384 N.E.2d 605 (1979) (stapler qualified as deadly weapon when used during robbery to bludgeon victim); Evans v. State, 516 N.E.2d 86 (Ind.1987) (fan belt used to choke robbery victim constituted deadly weapon).

Truly, a tire iron can be a deadly weapon, and when it is routinely carried by a driver under his seat, and not in the trunk, it is kept as a deadly weapon. And, of course, when a tire iron is wielded as a weapon by its possessor or used by its possessor to inflict blows, it becomes unquestionably a deadly weapon. Here, however, appellee did not grab the tire iron from beneath his vehicle seat, appellee did not wield the tire iron as a weapon, and appellee did not use it to strike blows.

Moreover, appellee did not arm himself with the tire iron as he embarked upon a criminal mission. It is so implicit as to be explicit that the enhancement provision is directed at the actor who arms himself so that the device or instrumentality serves as complement to a formed intent to enter upon a criminal foray. Such an intent is not a necessary ingredient for guilt of unlawfully carrying a firearm. 18 Pa.C.S. § 6106. However, the intent to engage in other criminal activity is, by definition, a prerequisite to application of an enhancement statute since the enhancement provision refers to underlying criminal conduct which results in an initial sentence which the weapon provision is to enhance. Thus it is that I would refrain from reversing the ruling of the trial court that the deadly weapon enhancement statute was not applicable, and would instead affirm the judgment of sentence.

      . The specific provision of the Sentencing Code challenged by this issue mandates, in pertinent part,
      When the court determines that the defendant possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301 (relating to definitions), during the commission of the current offense, at least 12 months and up to 24 months shall be added to the guidelines sentence range which would otherwise have been applicable.
      204 Pa.Code § 303.4 (emphasis added).

      . The trial court stated, “The deadly weapon enhancement provision does not, in this court’s experience, apply to a tire iron thrown by the victim and thrown back by the defendant who was not in clear possession of it. Clearly this court did not abuse its discretion in fashioning a sentence within the mitigated range of the sentencing guidelines and in not applying the deadly weapon enhancement.” Trial court opinion at 5.
      However, 42 Pa.C.S.A. § 2154 provides, as applicable to this case, that the sentencing guidelines "shall be considered by the sentencing court" and that "‘possessed’ means on the defendant’s person or within his immediate physical control.” Therefore, the trial court was obligated to find that appellee possessed a deadly weapon because when he picked up the tire iron, it came within his immediate physical control.

      . The pertinent part of 42 Pa.C.S.A. § 9721(b) provides
      In every case where the court imposes a sentence outside the sentencing guidelines ... the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.
      (Emphasis added.)

      . We note that such reasoning may be subject to later review by this Court.

      . The sentencing court must, of course, provide a contemporaneous written statement of the reasons for the departure from the guidelines. 42 Pa.C.S. § 9721(b).