text:
    625 A.2d 1252
    Steven V. EVERETT, Appellant v. Lori Yvonne ANGLEMEYER and Jeffrey Anglemeyer.
    Superior Court of Pennsylvania.
    Argued March 31, 1993.
    Filed May 28, 1993.

      Nicholas R. Sabatine, III, Wind Gap, for appellant.
    Before TAMILIA, POPOVICH and CERCONE, JJ.
   TAMILIA, Judge:

This is an appeal from the Order of August 18, 1992. Despite the muddled procedural and factual history of this case, the issues posed herein are capable of proper resolution by this Court.

On March 28, 1991, appellant, Steven V. Everett, filed a complaint in custody against appellees, Lori Yvonne Anglemeyer and Jeffrey Anglemeyer, seeking custody of the minor child, Dylan Victor Everett, born August 23,1990. On May 3, 1991, following a conference before a special Master, an Order was entered granting Steven partial custody of Dylan for purposes of visitation, without prejudice to the rights of Jeffrey. On June 25, 1991, Steven filed a petition for contempt, alleging that Lori had denied him visitation with Dylan. Lori filed a counter-petition to terminate the custody Order on July 3, 1991. On January 31, 1992, Steven filed a petition to establish paternity. A hearing was held on the matter on February 26, 1992, before the Honorable Robert E. Simpson, Jr. Although not raised before Judge Simpson, in Steven’s brief in support of his petition to establish paternity he argued it is necessary to order a blood test to determine whether he is the natural father of Dylan. The case was assigned to the Honorable James C. Hogan on April 27, 1992.

We adopt the following portion of the Opinion of the trial court:

The following are agreed facts recited from plaintiffs brief. On or about November 23, 1989, Plaintiff Everett and Defendant Lori Anglemeyer, (hereafter Lori) engaged in sexual intercourse which resulted in the conception of the minor child Dylan V. Everett. At that time, Lori was married to defendant Jeffrey Anglemeyer. On or about March 1, 1990, defendants separated, and Lori began cohabitating with plaintiff. On March 27, 1990, defendants, Lori and Jeffrey Anglemeyer, were divorced by order of this court. On August 23, 1990, the minor child was born. Plaintiff and Lori caused plaintiff to be identified as the biological father on the child’s birth certificate.
All parties agree that from the date of the child’s birth until on or about January 2,1991, Lori and the child resided with plaintiff, who financially supported both.
On or about November 13, 1990, while Lori acknowledges now that she was living with plaintiff Everett, and being supported by him, this court on record made in DR # 81686, per the Honorable President Judge Robert A. Freedberg, entered an order of support against Jeffrey Anglemeyer for support of Lori, Monica Lynn Anglemeyer, and Dylan V. Everett.
On or about November 20, 1990, Lori signed a statement objecting to the November 13, 1990 support order, and declared that plaintiff is the natural father of her child, Dylan. On or about January 10, 1991, Lori signed a statement retracting her signed statement of November 20,1990, and reclaimed Jeffrey Anglemeyer as the father of her natural child, Dylan. Also on January 10, 1991, this court accepted Jeffrey Anglemeyer’s “Acknowledgement of Paternity — Waiver of Trial”, in which he acknowledged paternity of the child Dylan V. Everett. This signed statement was made by Jeffrey Anglemeyer under oath, subject to the penalties of 18 Pa.C.S.A. 4904 relating to unsworn falsification to authorities. The parties have agreed and we take judicial notice of judgments and record proceedings in DR No. 81686. (See Conference with Judge Simpson, 2/26/92).

(Slip Op., Hogan, J., 8/18/92, pp. 2-3.)

By Order of the same date, the trial court entered an Order denying Steven’s petition to establish paternity, vacating the May 3, 1991 visitation Order, granting Lori’s petition to terminate visitation and dismissing Steven’s complaint for visitation rights. This appeal followed.

On appeal, Steven argues the trial court erred in: (1) finding Jeffrey the legal father of Dylan based on the Order of support entered against Jeffrey; (2) finding Steven is collaterally estopped from raising the issue of paternity in this proceeding; and (3) entering the Order of August 18, 1992, notwithstanding the prior Order of May 3, 1991 and the facts found by the court.

Appellant first argues that the trial court found, and all parties agree, that appellant is Dylan’s biological father. Although the trial court initially stated in its Opinion that Steven and Lori “engaged in sexual intercourse which resulted in the conception of the minor child Dylan V. Everett,” the trial court made no such identification at any other point in its decision, and in fact its decision was based on other factors. In addition, the trial court noted Lori had retracted her declaration that Steven was the natural father of Dylan and had signed a statement that Jeffrey was Dylan’s natural father. Further, the court took judicial notice of Jeffrey’s sworn acknowledgement of paternity, made pursuant to the penalties for perjury and unsworn falsification to authorities. 18 Pa.C.S. § 4904; Pa.R.C.P. 1910.28.

Irrespective of the disputed facts of this case, the inconsistencies in Lori’s statements, conduct and actions concerning the paternity of Dylan, and appellant’s arguments to the contrary on appeal, this Court finds its way illuminated by precedent and public policy. A child support Order was entered for Dylan and against Jeffrey on November 13, 1990. We have stated on several occasions that an Order for child support, from which no appeal is taken, necessarily determines the issue of paternity. B.O. v. C.O., 404 Pa.Super. 127, 590 A.2d 313 (1991); Gardner v. Gardner, 371 Pa.Super. 256, 538 A.2d 4 (1988); Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987); Shindel v. Leedom, 350 Pa.Super. 274, 504 A.2d 353 (1986). To this extent, we find no error by the trial court.

The trial court also found, based on Jeffrey’s failure to appeal the entry of the support Order, that the parties are now collaterally estopped from raising the issue of paternity. Gulla v. Fitzpatrick, 408 Pa.Super. 269, 596 A.2d 851 (1991). Steven argues, however, that the doctrine of collateral estoppel does not preclude him from litigating this issue since he was not a party to the support action.

It must be noted Steven and Lori were residing together at the time of the entry of the support Order against Jeffrey, yet Steven did not petition to intervene in the support action in order to assert his putative parental rights, despite presumptive notice that those rights were questioned. Pa.R.C.P. 2327(4). It further should be noted that in Gulla, supra, this Court found the parties equitably estopped, rather than collaterally estopped, from questioning paternity. Id. at 271-272, 596 A.2d at 852.

As applied in paternity actions, the doctrine [of collateral estoppel] provides that where a woman secures a child support order against a man, the entry of that order necessarily includes a judicial determination of paternity. Equitable estoppel, on the other hand, refers to estoppel created by a party’s conduct and has nothing to do with a prior judicial determination. Thus, while [the mother] may not be collaterally estopped by the existence of the support order, the fact that she sought and obtained the order and accepted payments under it is certainly one factor relevant to equitable estoppel.

Id. at 282, 596 A.2d at 857 n. 2. The Gulla Court went on to state that “principles of estoppel are peculiarly suited to cases where the child was conceived out of wedlock and no presumptions regarding paternity apply.” Id. at 283, 596 A.2d at 858; see also Scott v. Mershon, 394 Pa.Super. 411, 418-19, 576 A.2d, 67, 71 (1990).

If Dylan were born out of wedlock, as Steven argues, and no presumption existed regarding paternity, this case could be resolved on the basis of estoppel principles alone, for if Lori is equitably estopped from disputing Jeffrey’s paternity, and Jeffrey is collaterally estopped from disputing his paternity, what right is left to Steven? We need not reach our decision on that basis, however, inasmuch as Steven has not overcome the time-honored presumption in favor of legitimacy.

A host of recent decisions have maintained that the presumption that a child born to a married woman is a child of the marriage, and therefore of the woman’s husband, is one of the strongest presumptions known to the common law. John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), cert. den., 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990); Coco v. Vandergrift, 416 Pa.Super. 444, 611 A.2d 299 (1992); McCue v. McCue, 413 Pa.Super. 71, 604 A.2d 738 (1992); Donnelly v. Lindenmuth, 409 Pa.Super. 341, 597 A.2d 1234 (1991); Jones v. Trojak, 402 Pa.Super. 61, 586 A.2d 397 (1990), app. granted, 527 Pa. 673, 594 A.2d 658 (1991); Scott, supra. The presumption can be overcome only by clear and convincing evidence that a husband was incapable of procreation or had no access to his wife during the relevant period. McCue, supra, at 75, 604 A.2d at 740. Moreover, “the presumption of legitimacy is always the starting point in a contest involving the parentage of a child born during coverture.” Id.

In this case, conception of Dylan occurred on or about November 23, 1989, at a time when Lori and Jeffrey were married and living together. They separated on or about March 1, 1990, and were divorced on March 27, 1990. Dylan was born on August 23, 1990. Despite the fact Lori and Jeffrey were divorced before Dylan was born, we find the presumption still exists that Dylan is the child of the marriage. We view any semantic argument to the contrary an exercise in “heir-splitting.” Since Steven has failed to offer any evidence that Jeffrey was incapable of procreation or had no access to Lori at the time of conception, we find the trial court did not err in refusing to compel the parties to submit to blood tests to determine paternity. 23 Pa.C.S. § 5104.

Based on the record before us, we find the trial court correctly denied Steven’s petition to establish paternity. We recognize a visitation Order was entered by the trial court in favor of Steven on May 3, 1991, and that Steven is listed on Dylan’s birth certificate as the natural father. Nevertheless, this is not the only evidence in this case, and it is far from dispositive, especially where Lori “has frequently equivocated concerning identity of the natural father” (Slip Op. at 5), and her most recent averment is that Dylan was conceived during a period of reunification with Jeffrey. She also has averred she listed Steven as Dylan’s father solely because of his threats and intimidation. What is clear is that Jeffrey has never denied paternity of Dylan. “[E]ven in modern times— when ... the rigid protection of the marital family has in other respects been relaxed — the ability of a person [outside the marriage] to claim paternity has not been generally acknowledged.” Michael H. v. Gerald D., 491 U.S. 110, 125, 109 S.Ct. 2333, 2343, 105 L.Ed.2d 91, 107 (1989).

We also recognize this case does not present a situation wherein the parties’ marriage is continuing and the family unit is sought to be preserved. In those situations, our Supreme Court in John M., supra, “emphasized the fact that [the] Commonwealth’s interests in the stability of the intact family outweighed the interests of the alleged father in establishing his paternity.” Coco, supra, at 449-450, 611 A.2d at 301. Here, while married to Jeffrey, Lori engaged in an extramarital relationship with Steven. She also resided with Steven for a period of approximately ten months after she separated from, and subsequently divorced, Jeffrey. Although from the limited record before us, of which the last hearing took place more than a year ago, it does not appear Jeffrey and Lori have reconciled; it also does not appear Lori and Steven have reunited. As a consequence, we see no societal/family interest to preserve.

We are mindful still, however, of our paramount responsibility, which is to ensure Dylan’s best interests. Dylan only spent the first four months of his life living with his mother and Steven. Since that time, Lori has repudiated any parental interest of Steven’s, denied his paternity and voiced concerns over Steven’s threats, intimidation and reputation for violence. While we do not necessarily accept the veracity of these concerns, they evidence that Lori, Dylan’s dominant parental presence, desires no contact with Steven. Dylan’s best interests would not be served by forcing such contact, especially where Lori, Jeffrey and the law view Jeffrey as Dylan’s father.

For all of the foregoing reasons, we find no error by the trial court, and we affirm the Order of August 18, 1992.

Order affirmed.

      . Neither Lori nor Jeffrey has filed a brief for our review.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    625 A.2d 1256
    Irene H. BYKOWSKI and Chester A. Bykowski, Husband and Wife, v. CHESED, CO., the Boardwalk Group Limited, A New Jersey Limited Partnership, Allstate Management Corp. and Herbert Barness, Jack Katz, Isadore Katz and Marvin Katz, All Individually and as Co-Partners Trading as Valley Park Apartments the Boardwalk Group Limited, A New Jersey Limited Partnership, Allstate Management Corp. and Herbert Barness, Jack Katz, Isadore Katz and Marvin Katz, all Individually and as Co-Partners Trading as Valley Park Apartments, Appeal of Peter J. KAROLY, Esquire and Irene H. Bykowski and Chester A. Bykowski, Husband and Wife.
    Superior Court of Pennsylvania.
    Argued April 1, 1993.
    Filed May 28, 1998.

      Peter J. Karoly, Allentown, for Karoly and Bykowski, appellants.
    Edward M. Wild, Doylestown, for Chesed, Co., appellees.
    Before TAMILIA, POPOVICH and CERCONE, JJ.
   TAMILIA, Judge:

Irene H. and Chester A. Bykowski, as well as their counsel, Peter J. Karoly, appeal from the Order filed March 12, 1992, which granted appellees’ motion for judgment on the pleadings and dismissed them from the proceedings and .the Order filed March 16, 1992, which directed appellants to pay attorneys’ fees in the amount of $2,000.

Appellees Herbert Barness, Jack Katz, Isadore Katz and Marvin Katz, individually and trading as Valley Park Apartments (Valley Park), were sued by the Bykowskis, who averred they sustained injuries as a result of an alleged slip and fall on real estate owned by Chesed Company (Chesed). Appellants claimed appellees owned the improvements on the Chesed property. Valley Park filed an answer denying the allegations that they were the owners of the improvements in question. In fact, another defendant, the Boardwalk Group Limited (Boardwalk), in its pleadings, admitted ownership of the improvements in question. On that basis, on July 5, 1991, Valley Park filed a motion for judgment on the pleadings. The trial court scheduled argument on all outstanding motions for March 12, 1992. When the Bykowskis’ counsel, Mr. Karoly, did not appear, the trial court permitted appellees’ removal from the case for the following reasons:

Counsel for the defendants appeared for purposes of arguing his motion. Counsel for the plaintiff (appellant herein) was absent. Not surprisingly, counsel now lays blame for his absence on the court’s supposed failing to provide him with notice of the argument. While we are confident that he was notified of scheduled argument, we do not need to make a factual finding in this regard. Mr. Karoly had ample opportunity, from July 5, 1991, to March 12, 1992, to file a response to defendants’ motion, and failed to do so. Had he done so, his absence at the argument would not have prejudiced him or his client, as it is the court’s custom to consider the matter submitted on brief in the absence of counsel.
Just the same, the court heard argument on the merits. The defendants, who had not held title since 1973 to land or improvements where plaintiffs’ slip and fall allegedly occurred in October, 1988, sought removal from the case.
We concluded that the motion was supportable based on the argument of counsel.

(Slip Op.,- McGinley, J., 11/17/92, pp. 1-2.)

Appellants argue the trial court erred in making a factual determination that the Valley Park defendants were not the owners of the improvements since, in considering a motion for judgment on the pleadings, a trial court must accept the non-moving party’s pleadings as true and not consider the existence of facts not apparent on the face of the motion.

Standard Pennsylvania Practice 2d § 31:18 outlines the proper method for reaching a decision on a motion for judgment on the pleadings.

The motion for judgment on the pleadings is in effect a demurrer and, in considering the motion, the court should be guided by the same principles as would be applicable if it were disposing of a preliminary objection in the nature of a demurrer. All averments of fact properly pleaded in the adverse party’s pleadings must be taken as true, or as admitted, unless their falsity is apparent from the record. This rule also encompasses every reasonable inference that the court can draw from the facts as set out in the pleadings. Averments of fact which are material and relevant are accepted as true even though denied. Under Rule 1034, when a party moves for judgment on the pleadings, he admits, for the purposes of the motion, not only the truth of the allegations of his adversary, but also the untruth of his own allegations which have been denied by his adversary.

Standard Pa. Practice 2d, § 31:18 (footnotes omitted; emphasis added). “Judgment on the pleadings may only be granted where no material facts are in dispute and the case is free from doubt so that a trial would clearly be a fruitless exercise.” Toner v. Nationwide Insurance Co., 415 Pa.Super. 617, 620, 610 A.2d 53, 55 (1992).

After a careful review of the pleadings and facts of record, we find the court correctly determined that the real estate upon which the alleged injury occurred was owned by Chesed and the improvements were owned by Boardwalk. It is apparent from the record that appellants’ assertion that appellees were the owners of the property in question is false. We agree with the court appellees are entitled to judgment as a matter of law since there is no factual dispute which requires determination by a jury.

Next, appellants contend the court erred in its award of counsel fees to Valley Park in the amount of $2,000. “ ‘The reasonableness of an award of attorney’s fees, of course, is a matter which rests within the sound discretion of the trial judge and will be altered by an appellate court only when there is a clear abuse of discretion.’ ” Wrenfield Homeowners Association v. DeYoung, 410 Pa.Super. 621, 630, 600 A.2d 960, 964 (1991), quoting Shearer v. Moore, 277 Pa.Super. 70, 78, 419 A.2d 665, 669 (1980) (citations omitted). The trial court found authority for its award of counsel fees under 42 Pa.C.S. § 2503(9) since appellants’ conduct was vexatious during the pendency of the action. The court reasoned as follows:

As to the order for Mr. Karoly to pay counsel fees, the combination of circumstances are such that cry out for the imposition of counsel fees.
1. He improperly sued people having no connection with the incident that is the basis for suit.
2. He failed to agree to the removal of those parties when the error was repeatedly brought to his attention.
3. He failed to respond to the motion for judgment on the pleadings, thereby forcing the defendant to appear and argue his motion to extract defendants from a lawsuit they shouldn’t have been in in the first place.
This course of conduct is clearly vexatious and falls within the intent of 42 Pa.C.S. § 2503(9).

(Slip Op. at 2-3.)

After reviewing the record, we agree with the court’s reasoning and find it did not abuse its discretion in awarding counsel fees to Valley Park. On seven different occasions, appellees wrote to appellants requesting their dismissal from the case. Appellants never responded to any of these requests. Conduct is considered vexatious if it is instituted without sufficient grounds and serves only to cause annoyance. In re Estate of Roos, 305 Pa.Super. 86, 451 A.2d 255 (1982). Clearly, in continuing to ignore the fact appellees did not own the relevant property, appellants’ conduct in not responding and in continuing the suit and this appeal against appellees was vexatious.

Orders affirmed.

      . Appellants argue the trial court was not allowed to consider information contained in the Lehigh County Recorder of Deeds Office when deciding a motion for judgment on the pleadings. Since this motion is the equivalent to a demurrer, in considering it, the court should be guided by the same principles applicable to disposing of a preliminary objection in the nature of a demurrer. As such, the court has the right to take judicial notice of public documents. See Reese v. Moshannon Coal Co., 8 Pa.D. & C.3rd 743 (1977), aff’d per curiam, 261 Pa.Super. 641, 396 A.2d 842 (1978).

      . Section 2503, Right of participants to receive counsel fees, states: The following participants shall be entitled to a reasonable counsel fee ...:
      (9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.


author: WIEAND, Judge:

text:
    625 A.2d 1259
    COMMONWEALTH of Pennsylvania v. William Anthony NICOTRA, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted March 15, 1993.
    Filed June 7, 1993.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Claire C. Capristo and James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge, and WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

William Anthony Nicotra, Sr. was tried non-jury and was found guilty of driving while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(1) and (a)(4); homicide by vehicle while driving under the influence of alcohol in violation of 75 Pa.C.S. § 3735; homicide by vehicle in violation of 75 Pa.C.S. § 3732; involuntary manslaughter in violation of 18 Pa.C.S. § 2504; aggravated assault in violation of 18 Pa.C.S. § 2702(a)(1); recklessly endangering another person in violation of 18 Pa.C.S. § 2705; and careless driving in violation of 75 Pa.C.S. § 3714. Post-trial motions were denied, and Nicotra was sentenced to serve consecutive terms of imprisonment for not less than three (3) years nor more than six (6) years for homicide by vehicle while driving under the influence of alcohol, not less than thirty (30) days nor more than sixty (60) days for drunk driving pursuant to 75 Pa.C.S. § 3731(a)(1) and not less than one (1) year nor more than two (2) years for aggravated assault. On direct appeal from the judgment of sentence, Nicotra argues that there was insufficient evidence to sustain his convictions for homicide by vehicle while driving under the influence of alcohol, homicide by vehicle, involuntary manslaughter or aggravated assault because the Commonwealth failed to prove beyond a reasonable doubt that his intoxication and reckless driving caused the traffic accident on which the charges were based. He also contends that his conviction for drunk driving should have merged for purposes of sentencing with his conviction for homicide by vehicle while driving under the influence of alcohol.

In evaluating a challenge to the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, which has won the verdict, and draw all reasonable inferences in its favor. We then determine whether the evidence was sufficient to have permitted the trier of fact to find that each and every element of the crimes charged was established beyond a reasonable doubt. See: Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). “[I]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.” Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). See also: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). In addition, the facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the [factfinder] unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

So viewed, the evidence at trial established that, on February 21, 1991, at or about 5:00 p.m., appellant was observed operating a white Chrysler automobile at a high rate of speed, driving through three stop signs without braking or reducing speed, and then making a hard left turn, with tires screeching, onto Ohio River Boulevard in Allegheny County. Once on Ohio River Boulevard, appellant moved in a southerly direction at speeds estimated to exceed the posted speed limit by approximately ten to twenty miles per hour. As appellant approached the intersection with Meade Avenue, he abruptly changed lanes, without signaling, to pass several cars that were waiting to make a left turn. At the same time, i.e., approximately 5:15 p.m., Lorainne Billie was operating a Chevrolet Nova automobile in a northerly direction on Ohio River Boulevard, with her friend Donna Hollis riding as a passenger. Billie proceeded to slow her vehicle and signaled to make a left turn into an Amoco gas station located a short distance south of the intersection of Ohio River Boulevard and Meade Avenue. Prior to starting her turn, Billie waited for oncoming traffic to pass and, when the way was clear, began making the turn. After Billie had started making the turn, her passenger, Donna Hollis, screamed. When Billie looked to her right, she observed appellant’s vehicle coming directly at her. Billie attempted to accelerate her vehicle to avoid a collision, but to no avail. Appellant’s vehicle struck the passenger side of Billie’s vehicle. At the time of impact, Billie had almost completed her turn, for the front end of her vehicle had already entered the ramp to the gas station. The force of the collision pushed Billie’s vehicle into a nearby utility pole.

At the scene of the accident, appellant was described by police and civilian witnesses as having an odor of alcohol on his breath, with glassy, bloodshot eyes, slurred speech, and an evident lack of coordination. There was also evidence that appellant had not been wearing eyeglasses at the time of the accident, despite a restriction on his driver’s license which required him to wear corrective lenses while operating a vehicle. After appellant had been placed under arrest for drunk driving, he was transported to the hospital for a blood test. This test was performed approximately one hour after the accident and disclosed that appellant’s blood alcohol con-' tent was .218%.

Both occupants of the Billie vehicle were taken to the hospital for medical treatment. Lorainne Billie suffered injuries, including permanent scarring of her right arm, which required hospitalization for a period of four days. Donna Hollis suffered severe traumatic injuries and died shortly after her arrival at the hospital.

The Commonwealth called Detective Gary Tallent as an expert witness on the reconstruction of traffic accidents. Tallent testified that there had been no adverse weather conditions on the day of the accident and no observable defects to the roadway, which could have contributed to the cause of the accident. He testified further that he was able to identify two successive sets of skid marks from appellant’s vehicle in the southbound lane of Ohio River Boulevard, adjacent to the curb. These tire marks were measured to be 85.7 feet in length and led up to the point of impact. Tallent said it appeared that appellant had initially braked his vehicle, after which he briefly took his foot off the brake pedal and then again applied the brakes. Regarding the circumstances surrounding the collision of appellant’s vehicle with the vehicle operated by Lorainne Billie, the witness opined as follows:

The front end damage to the Nicotra vehicle indicated that’s where his vehicle struck the Nova. The damage to the Nova was significantly along the right side and matched with the damage of the front end of the Nicotra vehicle, so I was able to say, obviously, that the front end of the Nicotra vehicle struck the right side of the Lorainne Billie car at nearly a right angle, or a broadside type situation. Along with those findings I found or located those scuff marks which were in the entrance ramp to the Amoco station. Those scuff marks indicated that the Nova was partially into the gas station at the time of the collision. The front end of that vehicle, the tires and approximately the first third of that vehicle, would have entered onto the ramp of the Amoco station at the time of the collision. What happened at that point was the Nicotra vehicle struck the right side of the Nova and drove the Nova sideways, which created those scuff marks. The Nova was driven basically in a northerly, slightly northwesterly direction. I’m sorry, southwesterly direction. The left rear tire of the Nova then hits a high curb and then proceeded to strike against the steel utility pole, which created additional damage along the left side of the car.

Based upon the position of the skid marks leading-to the point of impact and the gouge marks on the roadway at the point of impact, Detective Tallent was. able to opine further that at the time of collision, appellant’s vehicle had been moving at a high rate of speed.

The Commonwealth also presented the testimony of Dr. Wagdy Wahba, the manager of the Allegheny County Toxicology Laboratory, who testified regarding the effects of alcohol upon the central nervous system. He stated that alcohol acts as a depressant and has an adverse effect upon a person’s sensory functions, i.e., hearing and vision. It also affects his or her motor functions and his or her judgment. A person who is under the influence of alcohol, Dr. Wahba testified, would have a slowed reaction time, which would delay the time in which he or she could move his or her foot from the accelerator to the brake of an automobile. Also, Dr. Wahba said, alcohol would affect a person’s judgment by decreasing his or her inhibitions, thereby increasing the chances of risk taking. According to Dr. Wahba, a person with a blood alcohol content of .218% would not have the capability to operate a motor vehicle safely.

Appellant concedes that the Commonwealth’s evidence established that he had been driving while intoxicated and in excess of the speed limit. He argues, however, that there was no evidence that his intoxication or his speeding had caused the accident in which Lorainne Billie was injured and Donna Hollis was killed. He suggests that the evidence at trial established that he had entered the intersection of Ohio River Boulevard and Meade Avenue with a green traffic light and had attempted to stop his vehicle upon observing Billie’s vehicle turn directly into his path. Absent evidence that the accident would not have occurred if he had not been intoxicated and/or speeding, appellant argues, his convictions for homicide by vehicle while driving under the influence of alcohol, homicide by vehicle, involuntary manslaughter and aggravated assault cannot be sustained. We disagree.

In Commonwealth v. Lenhart, 520 Pa. 189, 553 A.2d 909 (1989), the Pennsylvania Supreme Court observed that, in order to sustain a conviction for homicide by vehicle while driving under the influence of alcohol, the defendant’s act of driving under the influence of alcohol must be established, beyond a reasonable doubt, to be the cause of the victim’s death. Id. at 193, 553 A.2d at 911. Similarly, a conviction for homicide by vehicle requires the Commonwealth to establish that the defendant deviated from the standard of care established by the underlying traffic regulation which is alleged to have been violated and that the defendant’s violation of that traffic regulation was the cause of the victim’s death. Commonwealth v. Heck, 517 Pa. 192, 197, 535 A.2d 575, 578 (1987); Commonwealth v. Field, 490 Pa. 519, 525, 417 A.2d 160, 163 (1980). “The causal analysis in a homicide by vehicle case focuses on whether death was a probable consequence of the defendant’s actions.” In the Interest of Hyduke, 371 Pa.Super. 380, 388, 538 A.2d 66, 70 (1988). See also: Common wealth v. Uhrinek, 518 Pa. 532, 539, 544 A.2d 947, 950-951 (1988). However,

not every violation of the law or unlawful act committed while operating a motor vehicle will render the driver criminally liable for a death resulting from an accident in which the vehicle is involved. The driver’s conduct must be reckless, careless or wanton before he can be convicted of involuntary manslaughter by automobile. Commonwealth v. Clowser, 212 Pa.Super. 208, 239 A.2d 870 (1968). It is also necessary that it be shown that there existed a direct causal connection between the reckless conduct on the part of the operator and the ensuing death. Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961).' A violation of The Vehicle Code is only evidence tending to prove criminal negligence, but does not constitute manslaughter per se. See, Commonwealth v. Clowser, swpra.

Commonwealth v. Sisca, 245 Pa.Super. 125, 129-130, 369 A.2d 325, 327 (1976). See also: Commonwealth v. Heck, supra 517 Pa. at 200-201, 535 A.2d at 579-580; Commonwealth v. Kaulback, 256 Pa.Super. 13, 18, 389 A.2d 152, 154-155 (1978).

With respect to the issue of causation, the Superior Court has recently observed:

Causation is an essential element of a charge of criminal homicide, which the Commonwealth must prove beyond a reasonable doubt. Commonwealth v. Webb, 449 Pa. 490, 494, 296 A.2d 734, 737 (1972). See also: Commonwealth v. Kingsley, 480 Pa. 560, 569-570, 391 A.2d 1027, 1032 (1978); Commonwealth v. Cheatham, [419] Pa.Super. [603, 607] 615 A.2d 802, 805 (1992). The tort concept of proximate cause plays no role in a prosecution for criminal homicide. Rather, the Commonwealth must prove a more direct causal relationship between the defendant’s conduct and the victim’s death. Commonwealth v. Barnhart, 345 Pa.Super. 10, 28, 497 A.2d 616, 626 (1985), cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 34 (1988). See also: Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961); Commonwealth v. Lang, 285 Pa.Super. 34, 426 A.2d 691 (1981). However, it has never been the law of this Commonwealth that criminal responsibility must be confined to a sole or immediate cause of death. Commonwealth v. Stafford, 451 Pa. 95, 301 A.2d 600 (1973); Commonwealth v. Carn, 449 Pa. 228, 296 A.2d 753 (1972); Commonwealth v. Johnson, 445 Pa. 276, 284 A.2d 734 (1971); Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966); Commonwealth ex rel. Peters v. Maroney, 415 Pa. 553, 204 A.2d 459 (1964). Criminal responsibility is properly assessed against one whose conduct was a direct and substantial factor in producing the death even though other factors combined with that conduct to achieve the result. Commonwealth v. Stafford, supra.
Commonwealth v. Skufca, 457 Pa. 124, 132-133, 321 A.2d 889, 894 (1974), appeal dismissed, 419 U.S. 1028, 95 S.Ct. 510, 42 L.Ed.2d 304 (1974). See also: Commonwealth v. Rementer, 410 Pa.Super. 9,19-24, 598 A.2d 1300, 1305-1307 (1991); Commonwealth v. Youngkin, 285 Pa.Super. 417, 424-425, 427 A.2d 1356, 1359-1360 (1981); Commonwealth v. Howard, 265 Pa.Super. 535, 539-540, 402 A.2d 674, 676-677 (1979). Thus, “[a] defendant cannot escape the natural consequences of his act merely because of foreseeable complications.” Commonwealth v. Paquette, 451 Pa. 250, 254, 301 A.2d 837, 839 (1973). So long as the defendant’s conduct started the chain of causation which led to the victim’s death, criminal responsibility for the crime of homicide may properly be found. See: Commonwealth v. Hicks, 466 Pa. 499, 505, 353 A.2d 803, 805 (1976). See also: Commonwealth v. Massart, 469 Pa. 572, 577, 366 A.2d 1229, 1232 (1975); Commonwealth v. Stafford, 451 Pa. 95,100, 301 A.2d 600, 604 (1973); Commonwealth v. Cheeks, 423 Pa. 67, 73, 223 A.2d 291, 294 (1966).

Commonwealth v. Shoup, 423 Pa.Super. 12, 18-19, 620 A.2d 15, 18 (1993). See also: Commonwealth v. Long, 425 Pa.Super. 170, 174-178, 624 A.2d 200, 203-204 (1993); Commonwealth v. Johnson, 376 Pa.Super. 121, 129-130, 545 A.2d 349, 353 (1988); Commonwealth v. Kostra, 349 Pa.Super. 89, 93-94, 502 A.2d 1287, 1289 (1985).

After careful review, we are satisfied that the Commonwealth offered sufficient evidence to permit the trial court, as trier of the facts, to find that appellant’s conduct was a direct and substantial factor in bringing about the death of Donna Hollis and in causing Lorainne Billie to sustain serious bodily injury. Viewed in the light most favorable to the Commonwealth, the evidence disclosed that prior to turning onto Ohio River Boulevard, appellant had been driving his vehicle at a high rate of speed and had ignored several stop signs. Upon entering Ohio River Boulevard he was observed traveling at approximately sixty miles per hour, when the speed limit was posted at forty miles per hour. He was then weaving between lanes in order to pass other vehicles. Upon approaching the intersection of Ohio River Boulevard with Meade Avenue, appellant switched lanes abruptly into the curb side lane in order to pass several vehicles which were waiting to make a left turn. His blood alcohol level at the time was more than twice the legal limit; and, following the accident, he appeared to be visibly intoxicated. The factfinder could also infer from the evidence that appellant’s reflexes and judgment had been adversely affected by his intoxication. From the evidence, therefore, the trial court could properly find that appellant had acted recklessly, and in complete disregard for the safety of other persons on the road, by driving his vehicle in a reckless manner, while so intoxicated as to be incapable of driving safely. That appellant traveled through the intersection with a green traffic light and did make an attempt to stop his vehicle does not alter the fact that, by driving at excessive speeds and while intoxicated, his conduct started an unbroken chain of causation leading directly to the fatal accident.

The law is clear that a victim’s contributory negligence, if any, is not a defense to a charge of vehicular homicide if the defendant’s conduct was a direct and substantial factor in causing the accident. See: In the Interest of Hyduke, supra 371 Pa.Super. at 389 n. 6, 538 A.2d at 71 n. 6; Commonwealth v. Heck, 341 Pa.Super. 183, 213, 491 A.2d 212, 227 (1985), aff'd, 517 Pa. 192, 535 A.2d 575 (1987). See also: Commonwealth v. Long, supra 425 Pa.Super. at 176-178, 624 A.2d at 204 (contributory negligence of victim not a defense in a criminal action). That the defendant’s conduct was a direct cause, however, must be shown.

Here, there was ample evidence from which the factfinder could conclude that appellant’s conduct was a direct and substantial factor in causing the accident which resulted in the death of Donna Hollis and the infliction of serious bodily injury to Lorainne Billie. Billie’s operation of her vehicle, the trial court could find, was not a legal cause of the accident and did not relieve appellant from criminal responsibility for his own criminal conduct. Billie could lawfully make a turn into the gas station so long as she could do so safely. Her testimony was, and the trial court could find, that she had had a clear view of approaching traffic and that the curb lane had been clear when she began to make a left turn into the service station. Therefore, the trial court could find that appellant was criminally liable for causing the accident.

There is merit, however, to appellant’s contention that for sentencing purposes his conviction for driving while under the influence of alcohol merged with his conviction for homicide by vehicle. See: Commonwealth v. Welshans, 397 Pa.Super. 439, 580 A.2d 379 (1990), aff'd, 529 Pa. 571, 605 A.2d 1222 (1992); Commonwealth v. Voshall, 387 Pa.Super. 47, 563 A.2d 936 (1989), aff'd, 529 Pa. 571, 605 A.2d 1222 (1992). The Commonwealth', with commendable candor, concedes that the separate sentence imposed upon appellant for driving while under the influence of alcohol was improper and should be vacated.

The sentence imposed for driving while under the influence of alcohol is vacated. In all other respects, the judgment of sentence is affirmed.

      . No further penalty was imposed on the remaining convictions.

      . Because the issue of the sufficiency of the evidence was raised in post-trial motions and addressed by the trial court, we find no merit in appellant's further contention that his trial counsel was ineffective for failing to adequately preserve the issue for appellate review. The issue was, in fact, preserved for review and, therefore, is properly before this Court for consideration on its merits.


author: PER CURIAM:

text:
    625 A.2d 1265
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert D. ECKLES.
    Superior Court of Pennsylvania.
    Argued April 28, 1993.
    Filed June 9, 1993.
    John F. DiSalle, Asst. Dist. Atty., Washington, for Com., appellant.
    George B. Stegenga, Washington, for appellee.
    Before ROWLEY, President Judge, and TAMILIA and BROSKY, JJ.
   PER CURIAM:

The Commonwealth appeals from an order imposed following the dismissal of its petition to modify appellee’s sentence and the grant of appellee’s petition to modify his sentence. Appellee was sentenced to three to six years imprisonment for one count of homicide by vehicle while driving under the influence of alcohol, and three to six years imprisonment for a second count of the same offense. These sentences are to be served concurrently.

The Commonwealth complains on appeal that the trial judge was without discretion to mandate a concurrent service of the two sentences, and that the judge was required to make the sentences consecutive. This argument does not reflect the law and therefore, we affirm the order of the trial court.

The Commonwealth cites the language of 75 Pa.C.S.A. § 3735, homicide by vehicle while driving under the influence, as requiring separate, consecutive sentences for each conviction under the statute. The statute reads in part:

Any person who unintentionally causes the death of another as the direct result of a violation of section 3731 [relating to DUI] and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.

75 Pa.C.S.A. § 3735(a). We find no fault with the sentences imposed by the trial judge, as he followed the mandate of the statute and ordered a minimum of three years imprisonment for each conviction. The statute, however, does not require that the sentences be served consecutively.

The Commonwealth concedes that our Court, in Commonwealth v. Dungan, 372 Pa.Super. 323, 539 A.2d 817 (1988), allocatur denied, 522 Pa. 573, 559 A.2d 34 (1989), “suggested] that imposition of consecutive or concurrent mandatory sentences was within the sentencing court’s discretion.” In Dungan, the Court affirmed, as within the trial judge’s discretion, a sentence resulting from five homicides while under the influence. The sentence included “two concurrent three-year terms” imprisonment. The fact that our Court affirmed the sentence as within the trial court’s discretion, corroborates our opinion that the decision whether to impose a sentence consecutively or concurrently is a discretionary matter for the trial court. See also Commonwealth v. Voshall, 387 Pa.Super. 47, 563 A.2d 936 (1989), aff'd, 529 Pa. 571, 605 A.2d 1222 (1992) (for two homicides while under the influence, Court considered harshness of consecutive sentences as a discretionary aspect of sentencing).

Because it is now clear that the Commonwealth is appealing a discretionary aspect of sentencing, we agree with appellee that the Commonwealth was required to set forth a Rule 2119(f) statement in its brief as a requisite to our consideration. We understand that the Commonwealth did not provide such a statement because the purpose of its appeal was to contest the discretionary nature of the imposition of a consecutive or concurrent sentence. Even so, we are precluded from considering the leniency or the harshness of the sentence for the lack of a 2119(f) statement.

Order affirmed.

      . 42 Pa.C.S.A. § 9721(a.l) makes subsection (a) of that section inappli-. cable “where a mandatory minimum sentence” is provided by law. Subsection (a) states in part that a court may impose sentences consecutively or concurrently. The Commonwealth argues that a trial judge loses his discretion to impose sentences consecutively or concurrently when subsection (a) does not apply to the offense, i.e., "where a mandatory minimum sentence" is provided by law. We agree with appellee that this argument is misguided.

        "Section 9721 [a. 1 has the effect of] preclud[ing], when a mandatory minimum sentence is involved, the Court from considering the alternatives [in subsection (a) ] such as probation, fines or intermediate punishment." Brief of Appellee at 9. In some cases, the legislature has determined that a mandatory minimum sentence is the only proper sentence for a particular crime. Subsection (a.l) does not also affect the trial court’s authority to make the sentence concurrent or consecutive.


author: BROSKY, Judge.

text:
    625 A.2d 1266
    COMMONWEALTH of Pennsylvania, v. Rayford ALLEN, Appellant.
    Superior Court of Pennsylvania.
    Argued April 29, 1993.
    Filed June 10, 1993.

      Mark J. Shire, Monessen, for appellant.
    Allen P. Powanda, Asst. Dist. Atty., Greensburg, for Com., appellee.
    Before ROWLEY, Presiding Judge, and TAMILIA and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the judgment of sentence following appellant’s conviction by a jury of possession of a controlled substance (cocaine) (35 P.S. § 780-113(a)(16)), possession with intent to deliver (cocaine) (35 P.S. § 780-113(a)(30)), delivery of a controlled substance (cocaine) (35 P.S. § 780-113(a)(30)) and criminal conspiracy (18 Pa.C.S.A. 903(a)(1)).

Appellant challenges the sufficiency of the evidence to support his conviction for possession and possession with intent to deliver on the theory of accomplice liability and contests the sufficiency of the evidence to sustain his conviction for criminal conspiracy. Appellant also claims that his sentence was based upon erroneous factors. We affirm.

Since appellant challenges the sufficiency of the evidence relating to his convictions for possession, possession with intent to deliver and criminal conspiracy, it is necessary to set forth the factual scenario giving rise to the instánt charges as delineated by the trial court in its opinion written in support of its denial of post-verdict motions:

Following a jury trial held February 4 and 5, 1992, [appellant] was found guilty on charges of possession of controlled substance, possession with intent to deliver a controlled substance, delivery of controlled substance, [sic] and criminal conspiracy. The theory pursued by the Commonwealth with regard to the first three (3) charges was accomplice liability on the part of [appellant].
In this case, detectives Anthony Marcocci and Terrance Kuhns, of the Westmoreland County Detectives Bureau, were working in an undercover capacity in the area of Bar 20 in the City of Monessen. On July 14, 1989, the evidence shows that [appellant] approached the automobile occupied by detectives Marcocci and Kuhns. At this time, the detectives were speaking with Donald Payne. Mr. Payne and the detectives had been discussing the possibility of a purchase of cocaine. The detectives were discussing with Mr. Payne the amount of cocaine that would be purchased as well as the price to be paid therefore [sic]. As this conversation was occurring[, appellant] initiated his involvement in this conversation and informed the detectives that he and Mr. Payne had the same supplier, that the cocaine was good and was worth the price of $150. At that point, Detective Marcocci told Mr. Payne to check with his supplier and see if [he] could come down on the price because he was unwilling to pay $150 for the purchase. At that time, Mr. Payne then left the area of the vehicle and walked back towards the area of the front door of Bar 20. Mr. Payne then returned to the vehicle, displayed the cocaine, received $130 from Detective Marcocci, and Mr.' Payne provided the cocaine to him. Mr. Payne asked for and received $10 from Detective Marcocci for his role in the transaction. [Appellant] then asked the detectives to take him for a ride, and during this ride[, appellant] asked for some of the cocaine or money for ‘setting up the transaction’....[]

Trial Court Opn., p. 2.

We first address appellant’s sufficiency claim relating to his conviction for criminal conspiracy. “The intent required for criminal conspiracy is identical to that required for accomplice liability. In both crimes, a defendant must act with the ‘intent of promoting or facilitating the commission of the offense.’ ” Commonwealth v. Davenport, 307 Pa.Super. 102, 110, 452 A.2d 1058, 1062 (1982). Proof of a conspiracy requires a showing that the defendant reached an agreement with a co-conspirator to commit a crime. No such showing is necessary to find accomplice liability, as mere rendition of aid is sufficient. Commonwealth v. Graves, 316 Pa.Super. 484, 463 A.2d 467 (1983). Therefore, if we find sufficient evidence to sustain appellant’s conviction for criminal conspiracy, a fortiori, appellant’s challenge to the sufficiency of the evidence relating to possession and possession with intent to deliver on the theory of accomplice liability necessarily fails. Proof of conspiracy may be based upon circumstantial evidence since the nature of the crime is susceptible of proof usually only circumstantially. Commonwealth v. Davenport, supra. Where the evidence, together with reasonable inferences, is sufficient to prove guilt beyond a reasonable doubt, the fact that the evidence shows a defendant’s participation in an unlawful act circumstantially does not preclude conviction. Id. A conspiracy may be found to exist by consideration of the conduct and circumstances of the parties and the overt acts of the co-conspirators. Id. In order to prove a conspiracy, the Commonwealth must show an agreement existing between or among the co-conspirators. Mere association is insufficient as is mere presence at the scene of the crime unless the defendant had prior knowledge of the conspirator’s(s’) criminal intent. However, mere knowledge of a proposed unlawful act is insufficient without a showing that the defendant was an active participant in the criminal enterprise and that he had knowledge of the agreement. Id., citing Commonwealth v. Lynch, 270 Pa.Super. 554, 411 A.2d 1224 (1979).

In Davenport, an undercover police officer and his informant were standing on a street corner when a vehicle approached and then parked when the informant stated something to the driver. Neither the driver nor his passenger stepped out of the automobile. A discussion took place with the undercover officer and the informant standing outside on the passenger side of the vehicle. The appellant, Davenport, was the passenger and was observed by the undercover officer. In the course of the discussion, the driver stated that he only had a “boy”, which is street jargon for a fifty dollar package of heroin. The undercover officer asked if he could have three packages for one hundred twenty dollars. The driver and the undercover officer negotiated the price at one hundred twenty-five dollars. The undercover officer handed the appellant one hundred thirty dollars. The money was then passed to the driver who, in turn, gave the packages to the appellant who gave them to the undercover officer. The appellant asked the driver for change so that he could return five dollars to the undercover officer. When the driver replied that he had no change, the appellant left the automobile to obtain change at a local tavern. Upon his return, he gave the change to the undercover officer.

The Davenport court distinguished its earlier decision in Commonwealth v. Stephens, 231 Pa.Super. 481, 331 A.2d 719 (1974), where the third person to a drug transaction, a store proprietor, was held not to have been a co-conspirator to a drug transaction between an employee and an undercover state police officer because the proprietor took no part in the sale, did not assist the employee in any way and received no money from him. The store proprietor did overhear a conversation between the employee and the undercover officer concerning the drug transaction, but the Stephens court held that although this was an inference of knowledge of what was transpiring, it did not give rise to a further inference of an agreement between the proprietor and the employee. The Davenport court pointed out that the appellant there overheard the discussion between the driver and the undercover officer to purchase the heroin and was cognizant of the meaning of the term “boy”. The court stated that this gave rise to the inference of knowledge by Davenport that a drug transaction was taking place. Acknowledging that mere presence and knowledge without more are insufficient, the Davenport court noted that it was necessary to determine whether the evidence could support the establishment of a conspiratorial agreement and the necessary intent, both of which were capable of circumstantial proof.

The Davenport court found it significant that the appellant there was cognizant of the quantity (i.e., the jargon used) and the price of the heroin, that he handled the money and the heroin during the transaction and that he asked the undercover officer if the latter had the correct amount to consummate the purchase. He also, of his own volition, alighted from the automobile to secure the correct change from a tavern. The court concluded from this that active participation in a conspiracy could be inferred.

The case at bar is similar to Davenport. Appellant was a witness to the discussion of the purchase of the cocaine, first having stood near the detectives’ vehicle and then having invited himself into the back seat. Apparently, the two detectives, appellant and Donald Payne were acquainted with each other, and it could be inferred from the testimony adduced at trial that their common bond was drug trafficking. Moreover, when the detectives expressed doubt about the price of the cocaine relative to the amount involved, appellant was quick to assure the detectives that the cocaine was worth the price because he and Donald Payne were dealing with a common supplier. It is also not without significance that after Donald Payne had given the detectives the cocaine and had departed from the scene, appellant remained in the detectives’ vehicle and asked them for a share of the cocaine for his role in “setting up the transaction”. After having been refused, appellant again asked the detectives for money for his role in “setting up the transaction”. When the detectives once again refused, appellant stepped from the automobile to seek out Donald Payne at the Bar 20 for this purpose.

We deem this to be more than just an inference of knowledge of the transaction taking place. Instead, we would consider this conduct tantamount to active participation in a conspiratorial agreement between appellant and Donald Payne to possess and sell cocaine on the basis of Commonwealth v. Davenport, supra.

Since we have determined that the evidence is sufficient to sustain appellant’s conviction for criminal conspiracy, a fortiori, we also deem the evidence adduced for the offenses of possession and possession with intent to deliver to be similarly sufficient. Commonwealth v. Davenport, supra; Commonwealth v. Graves, supra. See discussion at p. 617-619 of 425 Pa.Super., at p. 1268 of 625 A.2d, supra.

Appellant also claims that at the sentencing hearing of July 21, 1992, the trial court made two factual errors upon which it based appellant’s sentence for delivery of a controlled substance. Appellant received a sentence of four to eight years’ incarceration on this count to run concurrently with the sentence earlier imposed on two counts of possession of a controlled substance, one count of delivery of a controlled substance and one count of criminal conspiracy. Since this issue bears upon the trial court’s discretion in imposing sentence, appellant is obliged to comply with the requirements of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and Pa.R.App.P. 2119(f). Appellant has failed to comply with the requirements of both Tuladziecki and Rule 2119(f), and the Commonwealth has objected to this non-compliance. However, the Commonwealth has, alternatively, argued the merits of this issue. Since the discretionary claim which appellant raises on appeal is belied by the record and is, consequently, meritless, we will address the merits of this issue.

Appellant first maintains that the sentencing court based the sentence upon a misunderstanding that appellant’s drug involvement continued until almost the time of his arrest. Appellant points to an excerpt from the testimony taken at the sentencing hearing on counts five through eight. The court there stated that appellant had been involved in drug activity in the State of Maryland, which activity had continued almost up to the time of his arrest on the instant charges. Appellant contends that he was not involved in drug trafficking since 1990 and that although the instant crime occurred in 1989, he was not arrested until 1991. Evidence was introduced at the hearing that appellant was unsuccessfully discharged from a drug/alcohol program in 1990, that he had had several convictions in Maryland and that his arrest on the instant charges did not occur until 1991 because he was incarcerated in Maryland and had to be extradited.

The second alleged misrepresentation of which appellant complains, which is similar to the first, is the court’s statement that appellant’s efforts at rehabilitation have not been fruitful. This statement is borne out by the record made at the sentencing hearing of July 21, 1992, on counts five through eight wherein evidence was introduced of appellant’s unsuccessful discharge from a drug/alcohol halfway house. In fact, in his Brief to this court, appellant concedes his unsuccessful discharge from the halfway house. Moreover, it was the result of drug activity which brought appellant to the Bar of the trial court. Appellant admitted this much at the sentencing hearing of April 23, 1992, on counts one through four, which he had . entered into evidence at the sentencing hearing of July 21, 1992, to-wit:

THE COURT: Well, then, why would you need a drug program?
MR. ALLEN: Well, that’s what — drugs is what brought me here, what put me where I am at today, and I feel that I need the educational learning of drug use.

N.T., 4/23/92, 30. Hence, appellant’s sentencing claim is meritless in any event.

Judgment of sentence affirmed..

      . Appellant challenges the sufficiency of the evidence relating only to the possession aspect of this offense. He concedes that the evidence was sufficient as to delivery.

      . Shortly after the discussion between the detectives and Donald Payne had begun, appellant arrived and entered into the conversation about the purchase of drugs. Not long after his arrival, appellant invited himself into the back seat of the detectives' vehicle. After the completion of the sale of the cocaine, appellant, who remained in the detectives' vehicle, asked for a share of the cocaine for "setting up the transaction”. When the detectives refused, appellant then requested money. When the detectives again refused, appellant departed from the vehicle to attempt to obtain a portion of the money which the detectives had given to Donald Payne for his part in "setting up the transaction”. N.T. 2/5 & 6/92, 57-59; 108-09.


author: FORD ELLIOTT, Judge:

text:
    626 A.2d 163
    COMMONWEALTH of Pennsylvania v. Dexter A. PERILLO, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1993.
    Filed June 2, 1993.

      William L. McLaughlin, Paoli, for appellant.
    William R. Toal, III, Asst. Dist. Atty., Media, for appellee.
    Before OLSZEWSKI, TAMILIA and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the order of the Court of Common Pleas of Delaware County denying appellant’s motion to dismiss pursuant to 18 Pa.C.S.A. § 110 and the double jeopardy clause of the Fifth Amendment of the Constitution. We affirm.

Appellant and Ms. Janice Eddy were engaged to be married in 1990, but Ms. Eddy broke off the engagement in October of 1990. On January 4, 1991, appellant confronted his former fiance in her apartment complex parking lot and threatened to kill her and her nieces. Appellant was charged with terroristic threats and harassment on Docket Number 109-91. Pursuant to a negotiated plea agreement, appellant was placed on ARD probation on the 109-91 charges'for two years with the condition that he have no contact with Ms. Eddy.

Seven months after the first altercation, on August 13, 1991, appellant allegedly accosted Ms. Eddy as she was leaving for work. According to Ms. Eddy, he blocked her exit from the apartment building; threw her against the mailboxes in the vestibule; followed her to her car; spit in her face; and threatened to rape her “by the end of the week.” See Affidavit of Probable Cause and Notes of testimony, 08/29/91 at 6, 8, 13-19. These charges were filed at Docket Number 4186-91 and appellant was subsequently arraigned on the charges of Simple Assault, Terroristic Threats, Harassment, Retaliation Against Witness or Victim, and Violation of an Order.

At the removal hearing on the first set of charges, appellant pleaded nolo contendere to one count of terroristic threats on an open plea, and harassment was non prossed. Defense counsel informally requested the Commonwealth to join the later prosecution, but the Commonwealth would not agree. The trial court sentenced appellant to a period of probation, fine, and costs. Neither appellant nor the Commonwealth moved to consolidate before a plea was accepted.

The current prosecution on the second set of charges filed at Docket Number 4186-91 proceeded toward trial, and appellant raised a pretrial double jeopardy claim and a claim pursuant to 18 Pa.C.S.A. § 110. The Honorable Frank T. Hazel denied the motion in an order dated January 23, 1991, and a Commonwealth v. Bolden appeal was taken to this court. This appeal followed. The matter is now before us for disposition.

Appellant raises numerous issues on appeal. However, the issues as phrased in appellant’s brief are confusing. Hence, we have consolidated and summarized them as follows:

I. Does 18 Pa.C.S.A. § 110 require the joinder of charges involving the same victim and appellant where separate incidents of criminal conduct occurred seven months apart and appellant entered a negotiated plea in the first incident but contested the charges in the second incident?
II. Does the double jeopardy clause preclude the Commonwealth from prosecuting appellant where he previously entered a plea to terrorizing the same victim eight months prior to the incident in which he is presently charged and appellant alleges that the conduct and evidence from the prior case is required to establish his guilt on the current charges?

Appellant’s first claim lacks merit. The relevant statute provides in pertinent part:

§ 110. When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction ... and the subsequent prosecution is for:
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; ...

18 Pa.C.S.A. § 110 (emphasis added).

The parties in this case have assumed the applicability of § 110(l)(ii) and have focused their discussion primarily on the issue of whether the “subsequent prosecution” was for an offense which arose from the same criminal episode as that of the “former prosecution.” However, the first step in our analysis must be to determine whether the charges filed to Docket Number 109-91 resulted in either an acquittal or a conviction pursuant to § 110(1). Section 110(1) provides the threshold requirement; and unless it is satisfied, § 110 is inapplicable regardless of the nature of the underlying criminal offenses. Commonwealth v. Smith, 391 Pa.Super. 154, 570 A.2d 559 (1990).

Pursuant to the negotiated plea agreement, appellant pleaded nolo contendere to one count of terroristic threats and the harassment charge was non prossed. A non pros is neither an acquittal nor a conviction; and as a result, neither § 110 nor the double jeopardy clause apply to the harassment charge. Since appellant was never subjected to the risk of conviction, there simply was no former prosecution to trigger the application of § 110 or the double jeopardy policies which underlie it. See Smith, supra (non pros of criminal charges is not an acquittal for the purposes of § 110).

Howeyer, a plea of nolo contendere is treated the same as a guilty plea in terms of its effect upon a particular case. Commonwealth v. Catanch, 398 Pa.Super. 466, 581 A.2d 226 (1990). In addition, a guilty plea constitutes a conviction for the purposes of precluding further prosecution pursuant to 18 Pa.C.S.A. § 110. Commonwealth v. Caden, 326 Pa.Super. 192, 473 A.2d 1047 (1984). As a result, we must address the § 110 issue as related to the terroristic threats charge only.

Section 110 of the Crimes Code requires the Commonwealth to consolidate in a single proceeding all known charges based on the same conduct or arising from the same criminal episode unless the court orders separate trials. This rule of compulsory joinder is intended to protect the accused from governmental harassment and also, as a matter of judicial administration and economy, to ensure finality without unduly burdening the judicial process by repetitious litigation. Commonwealth v. Starr, 416 Pa.Super. 250, 610 A.2d 1066 (1992), appeal granted, 533 Pa. 633, 621 A.2d 580 (1993), quoting Commonwealth v. Walton, 405 Pa.Super. 281, 285, 592 A.2d 335, 337 (1991).

Whether the incidents are part of a single criminal episode depends on the facts of each case. The court must consider: (1) the temporal sequence of events; (2) the logical relationship between the acts; and (3) whether they share common issues of law and fact. Two separate offenses may constitute the same criminal episode if one offense is a necessary step toward the accomplishment of a given criminal objective or if additional offenses occur because of an attempt to secure the benefit of a previous offense or conceal its commission. Id., 416 Pa.Super. at 256, 610 A.2d at 1068.

The terroristic threats and the later incident filed to Docket Number 4186 were not temporally close or contiguous. They occurred seven months apart and were not part of a continuing series of occurrences. See, e.g., Commonwealth v. Flenory, 351 Pa.Super. 27, 504 A.2d 1341 (1986) (bribery of a witness which occurred ten months after original criminal episode did not require a separate trial); Commonwealth v. Purnell, 358 Pa.Super. 105, 516 A.2d 1203 (1986) (charge of disorderly conduct and a subsequent assault which occurred within minutes following arrest constituted separate incidents). Although the temporal factor is important, it is not dispositive and we must analyze the other two factors.

We concede that there was some relationship between the terroristic threats and the second incident because the second incident was a retaliatory act by appellant upon the same victim. However, the similarity ends there. The first criminal episode occurred on January 4, 1991, when appellant accosted the victim in the parking lot. He was charged with terroristic threats and harassment. The terroristic threats charge is the only charge that is relevant because it was the subject of the nolo plea.

The second criminal incident occurred seven months later. Appellant allegedly blocked Ms. Eddy’s exit from the apartment building; threw her against mailboxes; followed her to her car; spit in her face; and threatened to rape her by the end of the week. These acts resulted in charges including assault, harassment, terroristic threats, retaliation against a witness, and violation of an order. Four of the crimes— assault, retaliation against a witness, harassment, and violation of an order — were completely different from the terroristic threats which were alleged in the initial complaint. They involve different legal and factual issues, and the relationship between the two. crimes is remote.

Moreover, it is critical to recognize that neither of the parties moved to consolidate the charges before a plea was accepted on the charges filed to Docket Number 109-91. As the Commonwealth correctly points out, there is no concern here with repetitious trials or governmental harassment by successive litigation because there was a consensual negotiated plea agreement with respect to the first set of charges. The matter was resolved expeditiously, and appellant denied only the charges filed to Docket Number., 4186-91.

Appellant’s attempts to distinguish the Flenory case are, unpersuasive. Indeed, we cannot agree with appellant’s bold assertion that Flenory was “wrongly decided.” In Flenory" the defendant was charged with criminal homicide, aggravated assault and criminal conspiracy in connection with the death of one person'and the injury of another. Before the trial, a criminal information was filed alleging that defendant had threatened and attempted to bribe the surviving victim, a prosecution witness. However, the later charges were not consolidated, and the defendant was tried on the original charges. The trial court dismissed the charges against the defendant stemming from the bribery incident pursuant to § 110 on the grounds that they arose from the same criminal episode as the earlier charges for which defendant had already been tried.

However, this court reversed the lower court and held that the two incidents did not have the type of logical relationship that would bar the subsequent prosecution. Despite the fact that the bribery was undeniably tied to the original charges, the court held that “the relationship [was] too far removed from the initial offense.” Flenory, 351 Pa.Super. at 31, 504 A.2d at 1343. The Flenory court also stated that the offenses were unrelated in kind — one was an assault on a person, the other a possessory offense and an obstruction of justice charge. Factually, they were separated by time and distance.

In this case as in Flenory, the second group of offenses was separated by time and distance from the first offense. The charges of assault, harassment, violation of an order, and retaliation against a witness were unrelated in kind to the terroristic threats. Indeed, they involved more serious crimes and penalties. The simple fact that the incidents involved the same victim and the same accused does not mandate joinder pursuant to § 110.

Appellant nonetheless urges this court to ignore the Flenory decision in light of the holdings of three cases: Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988); Commonwealth v. Meyers, 516 Pa. 392, 532 A.2d 789 (1987); and Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983). However, a careful reading of these three decisions leads us to conclude that Flenory was more than a mere aberration. For example, the Lark case did not even deal directly with a § 110 issue. In Lark the supreme court held that there was no abuse of discretion in denying an application for severance of charges of murder, terroristic threats, and kidnapping arising from separate incidents. In that case, the defendant had allegedly murdered a robbery victim to prevent his prosecution; threatened an assistant district attorney who had successfully prosecuted him for the robbery; and kidnapped hostages to prevent his apprehension for prior offenses. The court considered the issue pursuant to Rules 219, 1127, and 1128 of the Pennsylvania Rules of Criminal Procedure (never considering 18 Pa.C.S.A. § 110) and determined that the jury could differentiate between the distinct offenses and that the value of consolidation outweighed any danger of prejudice or confusion.

The supreme court never engaged in an analysis as to whether § 110 would have precluded certain charges had they not been originally consolidated. These facts were not before the court in Lark, and we refuse to extend this holding into an area of mere conjecture. In Lark, three criminal episodes were inextricably tied to a single murder. The appellate court merely concluded that the trial court acted within its discretion in consolidating these charges. The Lark decision does not suggest that the inverse of that proposition is true with regard to the facts of the instant case, and we refuse to extend the holding and apply it to a § 110 analysis.

The Meyers case is also inapposite. In Meyers police officers were in the process of executing a search warrant when they observed the defendant leaving the residence in a vehicle. The officers believed that defendant had picked up illegal narcotics at the residence under surveillance, and a high-speed chase ensued. When they finally caught the defendant, they found illegal drugs in his possession. Despite the discovery of the drugs, the defendant was charged only with aggravated assault, resisting arrest, recklessly endangering other persons, and various violations of the vehicle code. The defendant entered a guilty plea on these charges.

It was not until a year later that he was charged with the drug-related offenses. As a result, the supreme court properly held that § 110 precluded the trial of defendant for the possession of drugs because those charges arose from the same criminal episode leading to defendant’s arrest for traffic charges. The instant case is quite different from the scenario in Meyers because in the former, seven months separated the two criminal incidents; whereas in Meyers, all of the charges arose out of a high-speed chase which occurred on one day. The connection between the crimes in Meyers was obvious, whereas the nexus in the case at bar is more tenuous. Moreover, the Meyers court justified its conclusion and emphasized a concern for the preservation of judicial resources. The instant action does not present the problem of piecemeal litigation, however, because the charges filed at Docket Number 109-91 were resolved through a consensual negotiated plea agreement.

Finally, any analogy to the situation in Commonwealth v. Hude, supra, is misplaced. In Hude the defendant was arrested and charged with twenty counts of possession and delivery of marijuana and one count of corruption of a minor. The charges arose out of a series of sales to the same individual which were alleged to have occurred on twenty separate days within a two and one-half month time period. Nine of the possession and delivery charges were dismissed prior to trial. The Commonwealth brought the defendant to trial on three of the remaining eleven possessions and delivery charges and on the corruption charge. He was acquitted of these charges. Subsequent to the acquittal of the above charges, the Commonwealth brought appellant to trial on the remaining eight possession and delivery charges.

The supreme court held that the drug charges brought against the defendant after his initial acquittal arose from the same criminal episode since they were so logically interrelated that they essentially involved the same issues of law and fact. As a result, the court concluded that § 110 was violated by the second drug trial and the defendant was therefore entitled to relief.

This case is distinguished from Hude for two reasons. First, the time span between the incidents in the instant case was seven months, whereas Hude involved drug activity of a continuous nature over a two and one-half month time period. Moreover, in the instant action, four of the crimes charged in the second information — harassment, assault, violation of an order and retaliation against a witness — do not involve a substantial duplication of factual and/or legal issues. These are offenses that are very different from the terroristic threat charge. The Hude case involved twenty possession and delivery charges, and all of the buys were made to the same witness. Hude presents a very different factual scenario.

Appellant also contends that the double jeopardy clause precludes the second prosecution where appellant previously entered a plea to terrorizing the same victim and the conduct and evidence from the prior case is required to establish appellant’s guilt on the current charges. We will address the double jeopardy issue since a liberal reading of the omnibus pretrial motion suggests that it was raised before the trial court.

We conclude that appellant’s double jeopardy argument is specious, and reliance upon the United States Supreme Court case, Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), is misplaced. The Grady case involved a DUI-homicide. The defendant initially pleaded guilty to the charges of driving while intoxicated and driving on the wrong side of the road. However, he was subsequently prosecuted for the offense of DUI-homicide where both sets of charges arose from the same accident. The Supreme Court held that the second prosecution was barred by double jeopardy where, by its own pleadings, the State admitted that it would prove the entirety of the conduct for which defendant was previously convicted.

The Court explained that the double jeopardy clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove the entirety of the conduct that constitutes an offense for which the defendant has already been prosecuted. The critical inquiry in determining whether the government will prove conduct in the subsequent prosecution that constitutes an offense for which the defendant has already been prosecuted is what conduct the State will prove, not the evidence the State will use to prove it. Thus, the test is not an “actual evidence” or “same evidence” test. While the presentation of specific evidence in one trial does not forever prevent the government from introducing the same evidence in a subsequent proceeding, a State cannot avoid the Clause merely by altering in successive prosecutions the evidence offered to prove the same conduct. Id. at 521, 110 S.Ct. at 2093-2094.

In this case we are not dealing with reproof of the same conduct. Rather, this case involves two different incidents separated by time and distance. On January 4, 1991, appellant harassed and threatened Ms. Eddy. Then, seven months later he retaliated against her for her involvement in the previous prosecution. He also assaulted her, harassed her, and threatened to rape her. We agree with the Commonwealth that it can prove the elements of the offenses from the second incident without reproving the entirety of the conduct from the first incident. The facts of Grady are distinguished because in Grady the Commonwealth admitted that it needed to rely upon the conduct of driving while intoxicated and driving on the wrong side of the road in order to establish the elements of a DUI-homicide. The occurrences in Grady arose from the same event, whereas in this case there were two separate and distinct criminal transactions.

Although we recognize that the evidence of the prior history of the parties may be relevant during the trial on the charges filed at Docket Number 4186-91, this does not present a double jeopardy problem. The Grady Court stated that “presentation of specific evidence in one trial does not forever prevent the state from introducing that same evidence in a subsequent proceeding.” Id. Indeed the retaliation charge, 18 Pa.C.S.A. § 4953, contemplates that there was a previous proceeding and that the accused is retaliating against a victim or witness for her involvement in the prosecution of the original charge. Surely, the principles of double jeopardy are not implicated in every action pursuant to § 4953 simply because the evidence of prior history is relevant.

Hence, we have concluded that neither § 110 nor the principles of double jeopardy bar the prosecution of charges filed to Docket Number 4186-91.

Accordingly, the order of the lower court is affirmed. Jurisdiction relinquished.

      . 18 Pa.C.S.A. § 2701

      . 18 Pa.C.S.A. § 2706

      . 18 Pa.C.S.A. § 2709

      . 18 Pa.C.S.A. § 4953

      . 18 Pa.C.S.A. § 4955

      . We note, however, that appellant misstates the law in claiming that double jeopardy cannot be waived and may be raised at any time, even after trial and verdict. See appellant's brief at 19. In Commonwealth v. Gilman, 485 Pa. 145, 401 A.2d 335 (1979), the supreme court held that a defendant waived his claim that retrial amounted to double jeopardy because he did not move to dismiss prior to retrial on a felony murder charge. See also Commonwealth v. Peters, 473 Pa. 72, 373 A.2d 1055 (1977) (defendant waived double jeopardy claim by failure to raise it prior to second trial). Contrary to appellant’s assertions, Commonwealth v. Beck, 502 Pa. 78, 464 A.2d 316 (1983), stands for the limited proposition that the doctrine of waiver has no application where the defendant was acquitted of the charge in the previous trial.