author: OLSZEWSKI, Judge:

text:
    485 A.2d 1128
    Anthony LEWIS, Dexter A. Groves, and Ronald Merith, Appellants, v. GENERAL ACCIDENT GROUP and Pennsylvania Assigned Claims Plan.
    Superior Court of Pennsylvania.
    Argued Aug. 21, 1984.
    Filed Dec. 5, 1984.
    Reargument Denied Jan. 28, 1985.
    Petition for Allowance of Appeal Granted Aug. 5, 1985.

      Allen L. Feingold, Philadelphia, for appellants.
    George S. Donze, Philadelphia, for appellees.
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This appeal follows an order granting defendant’s motion for judgment on the pleadings. The underlying action involves non-insureds’ claims for uninsured motorist benefits. The question before us is to whom these benefits inure.

Appellants sustained injuries in an automobile accident on February 20, 1976. Then uninsured, they notified the Pennsylvania Assigned Claims Bureau, by letter dated November 29, 1977, of claims for “medical bills and lost wages.” Appellee General Accident Group was assigned as servicing carrier for the claims.

On November 5, 1981, the Supreme Court rendered its decision in Tubner v. State Farm Mutual Ins. Co., 496 Pa. 215, 436 A.2d 621 (1981). The Court there held that an insurer designated to provide insurance coverage under the assigned claims plan of the No-Fault Motor Vehicle Insurance Act must pay not only basic loss benefits but also uninsured motorist benefits. Thirteen days after the Tubner decision, appellants notified General Accident Group of their uninsured motorist claims.

Appellee failed to honor those claims. On February 19, 1982, appellants filed a petition to appoint a neutral arbitrator. The Honorable Charles A. Lord, by order of March 29, 1982, denied appellants’ petition but granted leave to file a complaint. Appellants responded with a complaint in assumpsit on April 29, 1982.

General Accident’s preliminary objections were sustained in part and overruled in part. Appellee then filed an answer in which it raised the statute of limitations as an affirmative defense. Based on this defense, appellees filed a motion for judgment on the pleadings. The court, by order of April 5, 1983, granted the motion. This appeal follows.

Appellants assert a claim for uninsured motorist benefits under Tubner. The lower court assumed without deciding that Tubner did apply to this 1976 accident. It concluded, however, that passage of time had barred the instant action. The court never made clear which statute of limitations applied. Appellants argue that, whatever the statute of limitations, the lower court erred in granting judgment on the pleadings. For the reasons below, we disagree.

Justice Kauffman, for the Tubner majority, writes that “the right to uninsured motorist benefits under the assigned claims plan follows a fortiori from a straightforward reading of the statute____” Id., 496 Pa. at 219-220, 436 A.2d at 623. As a rule, a court’s interpretation of a statute is considered to have been law from the date of the statute’s enactment. See, e.g., Daniels v. State Farm Mutual Automobile Ins. Co., 283 Pa.Super. 336, 343, 423 A.2d 1284, 1288 (1980). Appellants’ claims, to be actionable, therefore, must fall within the statutory period.

The uninsured motorist claims arise from an incident in February of 1976. Appellee first received notice of these claims on Novémber 18, 1981 — some five years and nine months after the accident. As this Court held in its en banc decision in Warren v. Reliance Ins. Co.:

... [0]nce a claimant files a timely claim with the Assigned Claims Bureau, he is entitled to written notification of rejection by the assigned obligor and then at least sixty days in which to bring an action. A claimant must, however, bring the action within four years of the accident even if written notice has not yet been received.

318 Pa.Super. 1, 4, 464 A.2d 487, 488 (1983) (emphasis added); 40 P.S. § 1009.106(c)(1, 4). Warren involved a claim for basic loss benefits; appellants present claims for uninsured motorist benefits. The same reasoning, however, applies.

Section 108 of the No-Fault Act provides that assigned insurers are obligated precisely as if they had issued basic loss insurance policies. 40 P.S. § 1009.108. The Tubner court found the right to uninsured motorist benefits a corollary to the right to ■■basic Toss benefits. 496 Pa. at 219, 436 A.2d at 623. Consistent with the Tubner court’s reasoning, we find “basic loss and uninsured motorist benefits” wherever the statute reads “basic loss benefits.” Section 108, by reference to Section 106, provides the applicable statute of limitations. 40 P.S. §§ 1009.106, 1009.108. Warren, therefore, controls.

Following the lead of Warren, we must reject appellants’ claims and affirm the order below.

McEWEN, J., did not participate in the proceedings or decision of this case.

      . We note Chief Justice Nix's strong dissent in Tubner, id., 496 Pa. at 221-228, 436 A.2d at 624-627 (Nix and Roberts, JJ., dissenting). Judge Lord below explained that Tubner “revealed a substantive right existing in the No-Fault Act.” Weaver v. The Travelers, No. 1619, January Term 1982, slip opinion at 6 (Court of Common Pleas of Philadelphia County).

      . The Court in Warren repudiated the contractual analysis of Williams v. Keystone Insurance Co., 302 Pa.Super. 44, 448 A.2d 86 (1982).


source: Caselaw Access Project

license: Public Domain

text:
    485 A.2d 1130
    COMMONWEALTH of Pennsylvania v. Thomas Jefferson FLEMING. Appeal of INTERNATIONAL FIDELITY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Submitted Oct. 15, 1984.
    Filed Dec. 7, 1984.

      Philip B. Friedman, Erie, for appellant.
    Michael J. Veshecco, District Attorney, Erie, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

This appeal follows denial of a surety’s petition to vacate forfeiture of bail bonds. Appellant, International Fidelity Insurance Company, posted bonds in sum of $15,000.00 for Thomas Jefferson Fleming. When Fleming failed to appear for a court date on September 11, 1980, the court declared the bonds forfeited. Fleming was subsequently apprehended by California authorities, June 16, 1981. On December 31, 1981, the court entered judgment by confession against appellant on the bonds. Appellant petitioned the court to vacate the forfeitures. The lower court denied the petition by order of September 14, 1982.

We note at the outset that appellant, to date, has not paid the forfeited bonds. The Commonwealth argues that the test for opening a confessed judgment governs where, as here, a confessed judgment has already been entered against the surety at the time it requests the forfeiture be set aside. See Commonwealth ex rel. County of Cumberland v. Johnson, 19 Pa.D. & C. 3rd 339 (1981). The lower court, in effect, disregarded the confessed judgment and treated the matter simply as a petition to vacate forfeiture under Pa.R.Crim.P. 4016(A)(1)(c), 42 Pa.C.S.A. We follow its lead. See Pa.R.Crim.P. 1504, 42 Pa.C.S.A.; Pa.R.Crim.P., Rule 1, 42 Pa.C.S.A.

Remission of forfeitures is a practice calculated to encourage bondsmen to seek actively the return of absent defendants. Commonwealth v. Reeher, 245 Pa.Super. 282, 369 A.2d 404 (1976). Allowance or denial of a remission lies within the sound discretion of the trial court. Commonwealth v. Jones, 268 Pa.Super. 507, 429 A.2d 436 (1981). The Honorable Richard Nygaard found that the surety’s efforts had no impact on the defendant’s actual detection. Lower court opinion at 2. It reasoned, “Mere participation in the search for the defendant is not enough. The apprehension or return of the defendant must either be effected by the efforts of the bondsman or [those efforts must] at least have a substantial impact on his apprehension and return.” Id. (emphasis added).

Appellant acknowledges that it did not directly apprehend the defendant. It contends, however, that it did make substantial efforts to locate him. The lower court ruled that appellant failed to meet its burden of proof to justify exoneration from payment of the bond. We cannot say the lower court abused its discretion in reaching this conclusion.

The order of the court below is affirmed.


author: JOHNSON, Judge:

text:
    485 A.2d 1131
    NEW LONDON OIL COMPANY, INC., Appellant, v. Bruce E. ZIEGLER and Annis H. Ziegler.
    Superior Court of Pennsylvania.
    Argued June 19, 1984.
    Filed Dec. 7, 1984.

      James C. Blackman, Oil City, for appellant.
    Jon P. Marti, Warren, for appellee.
    Before TAMILIA, JOHNSON and MONTGOMERY, JJ:
   JOHNSON, Judge:

New London Oil Company, Inc., appellant, appeals from the entry of judgment in favor of appellees Bruce E. and Annis H. Ziegler in this declaratory judgment action. Áppellant corporation is the successor to original plaintiff Ken Fowler & Co., which company was assigned the rights of Ernest Bencivenga, David Bencivenga, Charles Kaempffer and Kenneth Fowler, who entered into an oil and gas lease and two equipment purchase agreements as lessees/purchasers with appellees, owners of the real and personal property at issue. Appellant had sought a declaratory judgment regarding the rights and duties of the parties with respect to the lease and the two equipment purchase agreements.

We now vacate the April 12, 1982 entry of judgment, as well as the January 27, 1982 decree nisi.

Pursuant to negotiations between the parties in 1979, an oil and gas lease was executed, effective December 28, 1979, leasing a tract of land, as well as the oil and gas in and under that tract, to appellant’s predecessors in interest, Ernest Bene, renga, David Bencivenga, Charles Kaempffer and Kenneth Fowler. Appellant’s predecessors were given the exclusive drilling and operating rights for the production of oil and gas. Two equipment purchase agreements were also executed, regarding various equipment necessary to the drilling operation.

Following a series of conflicts involving use of a warehouse located on the leased tract and certain equipment contained within the warehouse and in a pipeyard on the tract, appellant filed a declaratory judgment action on November 24, 1980. The court requested a stipulation as to the issues to be determined and following the filing of the stipulation, entered judgment in favor of appellant, declaring, inter alia, that all equipment and materials located on the premises and previously utilized by appellees for the drilling operations at the time of the execution of the lease were subject to the agreements.

Appellees filed exceptions and a hearing was held where the parties orally stipulated that the purpose of the hearing was to hear all testimony regarding the intent of the parties in negotiating and entering into the lease agreement and equipment purchase agreements. Various documents were introduced and testimony of the parties taken. The trial court treated the action as one for reformation of the instruments, pursuant to the parties’ oral stipulation.' The trial court subsequently ruled in favor of appellees, declaring the warehouse and its contents and the pipeyard and its contents not part of the lease agreement. Appellant filed exceptions which were denied and judgment entered, prompting this appeal.

Seven issues are raised on appeal. However, because of our disposition of appellant’s first issue, we need not address the remaining issues.

Appellant initially argues that the trial court erred in transforming the declaratory judgment action into an equity action for reformation of the agreements. We agree.

The Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-7541, is broad in its scope and is to be. liberally construed, but is not without its limitations. Doe v. Johns-Manville Corp., 324 Pa.Super. 469, 471 A.2d 1252 (1984). The purpose of the Act is to settle and afford relief from uncertainty and insecurity with respect to rights, status and other relations. 42 Pa.C.S. § 7541(a); Fidelity Bank v. Pennsylvania Turnpike Commission, 498 Pa. 80, 444 A.2d 1154 (1982). The construction of documents, including written contracts and leases, may properly be the subject of an action for declaratory judgment. See 42 Pa.C.S. § 7533; Girard Trust Co. v. Tremblay Motor Co, 291 Pa. 507, 140 A. 506 (1928) (construction of lease).

It is well settled, however, that courts are not authorized to reform instruments within the framework of a declaratory judgment action. Baskind v. National Surety Corp., 376 Pa. 13, 101 A.2d 645 (1954).

To reform would not be declaring a right, status, or other legal relation. It is only after reformation that rights of the parties could be declared in respect to the reformed contract. The Act contemplates a declaration of rights, status, or other legal relation of any person interested under an existing instrument, statute, or ordinance, contract, or franchise. Nowhere are the courts given the authority to reform an instrument in a declaratory judgment proceeding. Such a proceeding is limited to the adjudication of rights under existing documents or legislation as then written.

Baskind, 376 Pa. at 15, 101 A.2d at 646 (emphasis in original). See also McWilliams v. McCabe, 406 Pa. 644, 179 A.2d 222 (1962); 11 P.L.E. Declaratory Judgment § 18.

Appellees counter this argument by alleging that the parties had conferred with the trial judge in chambers and agreed that the case would be treated as if in equity for reformation. A stipulation was subsequently placed on the record and agreed to by the parties.

A reviewing court may not consider facts not of record set forth in a party’s brief. Commonwealth v. Stanton, 294 Pa.Super. 516, 440 A.2d 585 (1982). Hence, whatever occurred in chambers cannot be considered, as that discussion does not appear in the certified record. As to the stipulation, the hearing transcript sets forth:

MR. MARTI: [appellees’ counsel] Your Honor, it is my understanding that the intent of this hearing was to hear all testimony regarding the intent of the parties in negotiating and entering into the lease agreement and the two agreements of sale, and as to the purpose of this hearing both parties are willing to stipulate to the fact they may have all documents that are relevant submitted to the Court for its ruling on the issues before the Court as to the intent of the parties:
MR. ROSEN [appellant’s counsel]: I think that accurately reflects the understanding.
(N.T. 12/29/81 at 16)

This stipulation did not transform the declaratory judgment action to one for reformation of the agreements. It merely discussed the purpose of the hearing: to ascertain the intent of the parties. Appellant’s complaint requested construction of the agreements. The cardinal rule of contract construction is to ascertain the intent of the parties. United Vending Corp. v. Lacas, 410 Pa. 614, 190 A.2d 298 (1963). Hence, the stipulation merely set forth the purpose of the declaratory judgment action.

The record indicates that the trial court, on September 21, 1981, entered judgment for appellant in the declaratory judgment action, determining that the oil and gas lease demised the surface of all the premises for reasonable use by appellant to drill and operate oil and gas wells and to utilize the surface of the premises as is necessary for those purposes. That judgment also determined that all equipment and material located on the premises and utilized by appellee Bruce Ziegler for the operations of the wells at the time of the lease’s execution were subject to the agreements.

As set forth above, exceptions were filed to the opinion and order of September 21, 1981. Appellee specifically excepted to the trial court’s entry of its opinion and order before ruling on appellees’ preliminary objections and affording appellees an opportunity to answer appellant’s allegations as framed by the issues submitted to the court. Rather than respond directly to the exceptions arising from the order of September 21, 1981, the trial court, with the agreement of counsel for both parties, proceeded with the hearing in December at which the intent of the parties was explored.

The trial court’s judgment of April 12, 1982 in favor of appellees was based on the hearing for reformation of the agreements. Since we now hold that reformation is improper in a declaratory judgment action, we vacate both the decree nisi filed January 27, 1982 and the final judgment of April 12, 1982. The case is remanded for reconsideration of the original action, including the opinion and order filed September 21, 1981 and the exceptions filed thereto, on October 9, 1981 by appellees. Further proceedings shall be limited to matters properly arising in a declaratory judgment action.

Either party shall retain the right to appeal from any final order entered in this matter. Jurisdiction is relinquished.


author: HOFFMAN, Judge:

text:
    485 A.2d 1134
    COMMONWEALTH of Pennsylvania v. Carl MACOLINO, Appellant. COMMONWEALTH of Pennsylvania v. Gae Bernadette MACOLINO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 20, 1981.
    Filed Dec. 7, 1984.

      John R. Carroll, Philadelphia, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, Newton Square, for Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the affidavit employed in the instant case was insufficient to show probable cause for the issuance of the search warrant. We disagree and, accordingly, affirm the judgment of sentence.

On October 27, 1979, the Pennsylvania State Police, while executing a search warrant, discovered four bags of cocaine and related drug materials in appellants’ home at 432 Holmes Road, Morton, Pennsylvania. Appellants’ pre-trial motions to suppress the evidence seized during the search were denied and, following a non-jury trial, appellant Carl Macolino was found guilty of possession of a controlled substance with intent to deliver and criminal conspiracy,, while appellant Gae Macolino was found guilty only of criminal conspiracy. Post-trial motions were denied, and Carl Macolino was sentenced to a term of imprisonment of eleven-and-a-half-to-twenty-three months on the possession offense and a consecutive term of three years probation on the conspiracy charge. Gae Macolino was sentenced to two years probation. On appeal, this Court reversed the judgments of sentence and ordered appellants discharged on the ground that the evidence was insufficient to support their convictions. Commonwealth v. Macolino, 302 Pa.Superior Ct. 96, 448 A.2d 543 (1982). Upon the Commonwealth’s appeal of the reversal of Carl Macolino’s judgment of sentence for possession, the Supreme Court found the evidence sufficient, reversed our order and remanded for disposition of appellants’ remaining contentions. Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983). The case is presently before us on that remand.

“[The issuing magistrate’s] determination of probable cause should be paid great deference by reviewing courts.” Commonwealth v. Frye, 242 Pa.Superior Ct. 144, 148, 363 A.2d 1201, 1203 (1976). “[P]robable cause exists when the facts and circumstances set forth in the affidavit are sufficient to warrant a man of reasonable caution in the belief that the contraband to be seized was in the specified place.” Id. “[0]nly the probability, and not a prima facie showing of criminal activity is the standard of probable cause”. Id. This Court has recently followed the United States Supreme Court in its abandonment of the “two-pronged test” for evaluating the sufficiency of search warrant affidavits established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and its decision to “reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations.” Commonwealth v. Price, 318 Pa.Superior Ct. 240, 245, 464 A.2d 1320, 1323 (1983), quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Under this totality of the circumstances test,

[t]he task of the issuing magistrate is simply to make a practical common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

464 A.2d at 1324, quoting Illinois v. Gates, supra.

In the instant case, the affidavit for the search warrant, which was prepared by Pennsylvania State Trooper Ralph Periandi, listed cocaine and related drug materials as the items to be searched for and seized; 432 Holmes Road, Morton, Pa. as the premises to be searched; and Carl Macolino, aka “Charlie” (appellant) as the owner/occupant of these premises. The affidavit averred that the probable cause belief was based on the following facts and circumstances:

(1) The affiant met with Detective Leo Matrangola of the Baltimore County Police Department, Narcotics Séction, which had been conducting an intensive investigation into interstate cocaine trafficking in the Baltimore area. The primary targets of the investigation were William Bozman of Baltimore, Md., Carl Scarimbolo of Baltimore, Md., and Carl Macolino (appellant) of Morton, Pa.

(2) On September 28, 1979, and October 19, 1979, a Maryland court authorized wiretaps for Bozman’s phone (Order # 1) and for Scarimbolo’s phone (Order # 2) at their respective Baltimore residences.

(3) On October 19, 1979, Maryland police intercepted a conversation on Bozman’s phone between Bozman and Scarimbolo for the distribution of cocaine to a third party known as Dennis. Dennis was brought into the conversation on a conference call and sought to obtain four ounces of cocaine with a street price of $1900. Scarimbolo told Dennis that he had to make a trip to get the cocaine and would meet Dennis late that night or early the next morning.

(4) On October 19, 1979, Maryland police intercepted a conversation on Scarimbolo’s phone. The call was made to a telephone number listed to John Macolino in Florida. Scarimbolo told Macolino that he had made several pickups of cocaine from “Charlie” and intended to pick up four ounces of cocaine from Charlie that night.

(5) On October 19, 1979, Maryland police intercepted another conversation on Scarimbolo’s phone between Scarimbolo and “Charlie”. The call was made to a telephone number listed to appellant at 432 Holmes Road, Morton, Pa. Scarimbolo arranged to meet with “Charlie” at 12 midnight.

(6) As a result of these phone conversations, Detective Matrangola set up surveillance at 432 Holmes Road, Morton, Pa. At about 30 minutes past midnight on October 20, 1979, Scarimbolo was observed to arrive at 432 Holmes Road and to leave at 1 a.m. Det. Matrangola later observed Scarimbolo to return to his Baltimore residence at 4 a.m. At 4:30 a.m., Scarimbolo was observed to leave his residence and go to a Baltimore shopping center, where he met with a subject operating a Chevrolet pick-up truck registered to Dennis Shifflett of Baltimore.

(7) Shifflett was known to Det. Matrangola as a cocaine distributor in the Baltimore area and was then a target of an investigation by the Drug Enforcement Administration (DEA). The DEA informed Det. Matrangola that a quantity of cocaine obtained through a reliable source from Shifflett had been analyzed and identified as high quality cocaine.

(8) Based on Det. Matrangola’s expertise in investigating narcotics violations, it was believed that Scarimbolo had obtained four ounces of cocaine from “Charlie” at 432 Holmes Road and made delivery to Shifflett in Baltimore, Md.

(9) On October 21, 1979, Maryland police intercepted a conversation on Scarimbolo’s phone between Scarimbolo and John Macolino in Florida. Scarimbolo stated that he was coming to Florida to pick up a quantity of cocaine from Macolino and wanted to know if he was also to pick up a quantity for “Charlie”. Macolino told him that “Charlie” had his supply of cocaine and that Scarimbolo was not expected to make any delivery to “Charlie”.

(10) As a result of that conversation, Baltimore police followed Scarimbolo to Miami, Florida, on October 21 and 22, 1979, and observed an apparent exchange between Scarimbolo and John Macolino in the Miami area. It was believed that Scarimbolo picked up a large quantity of cocaine.

(11) The above synopses of the four intercepted phone conversations were based on the expertise of Det. Matrangola in the drug investigations field: Det. Matrangola graduated from the police academy with special training in the field of narcotics investigation and had been a member of the Baltimore County Police Department since September 14, 1979. As a police cadet, he had been assigned to the narcotics section, working undercover purchasing drugs from Baltimore street dealers, and became familiar with prices, appearances of drugs, methods of concealment and distribution. He had made over 60 hand-to-hand purchases of controlled dangerous substances, participated in over 200 search and seizure warrants and in the arrest of over 400 violators of narcotics laws, as well as in investigations of narcotics violations, and had been an affiant on three wiretap applications involving drug violations. He had testified in Maryland courts and was recognized as an expert in the field of narcotics investigation.

(12) The affiant concluded that “Charlie” at 432 Holmes Road was a cocaine supplier using the premises to conduct illegal distribution and to store quantities of controlled •dangérous substances and related materials.

(13) On October 27, 1979, Sgt. Joseph Cross of the Baltimore County Police Department reported to Det. Matrangola and Trooper Perandi (affiant) that he arrested Scarimbolo on October 26, 1979 in the Baltimore area and seized from Scarimbolo’s person V2 lb. of cocaine and a paper containing the name “Charlie” and a Pennsylvania telephone number listed to appellant at 432 Holmes Road.

We find that Trooper Periandi’s affidavit clearly demonstrated probable cause for the issuance of the warrant because it stated facts and circumstances sufficient to support a reasonable belief that the specified contraband was present on the premises to be searched.

Appellants argue, however, that the affiant merely quoted Det. Matrangola’s interpretation of the wiretapped conversations, which were not understandable themselves, and the the transcripts of the actual conversations should have been submitted to the magistrate. We note initially that information obtained pursuant to a wiretap authorized by the court of another state can be used to support a search warrant in Pennsylvania. Commonwealth v. Bennett, 245 Pa.Superior Ct. 457, 369 A.2d 493 (1976). Although the transcripts of the actual, intercepted phone conversations do not contain express references to cocaine, understandable to a layman, we believe that the magistrate did not err in relying on Det. Matrangola’s synopses, which were based upon his substantial experience and training in drug investigations and his familiarity with code words for drugs, prices and amounts used in the field. Moreover, the conversations were corroborated by the police officer’s independent, personal observations of Scarimbolo’s visit to appellant’s house, Scarimbolo’s meetings with Shifflett and with John Macolino, and by the evidence seized from Scarimbolo’s person incident to his arrest. Under these circumstances, we see no reason to disturb the issuing magistrate’s determination of probable cause.

Affirmed.

      . The Superior Court’s reversal of appellants’ conspiracy convictions was not appealed by the Commonwealth.

      . Appellant also contends that the affidavit only showed possible drug trafficking activity by the occupant of 432 Holmes Road on October 20, 1979, a week before the application for the warrant. Probable cause for the issuance of a search warrant must be established at the time the warrant is issued; therefore, evidence of criminal activity at some prior time will not support a finding of probable cause on the date the warrant issues unless it is also shown that the criminal activity continued up to or about that time. Commonwealth v. Hagen, 240 Pa.Superior Ct. 444, 449-50, 368 A.2d 318, 321-22 (1976). Here, we find that there were sufficient indications of continuing illegal activity. John Macolino had informed Scarimbolo over the phone that appellant had an adequate supply of cocaine. When Scarimbolo was arrested on October 27, 1979, with Vt lb. of cocaine, he had on his person a piece of paper with appellant’s code name and telephone number on it. In light of the facts contained in the affidavit, we may reasonably conclude that appellant was involved in an ongoing drug network stretching from Pennsylvania to Maryland to Florida.
      Appellant’s reliance upon Commonwealth v. Kline, 234 Pa.Superior Ct. 12, 335 A.2d 361 (1975), is misplaced because that case merely held that probable cause to believe a man has committed a crime on the street does not necessarily give rise to probable cause to search his home. Here, the affidavit showed probable cause of illegal activity in appellant’s home.


text:
    485 A.2d 1138
    COMMONWEALTH of Pennsylvania v. William MAUTE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 10, 1984.
    Filed Dec. 7, 1984.
    Petition for Allowance of Appeal Denied April 24, 1985.

      Lawrence A. Ruth, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that (1) his speedy trial rights were violated, (2) the trial judge made numerous errors, and (3) his trial counsel was ineffective. We find these contentions meritless and, accordingly, affirm.

On February 26, 1980, appellant was arrested on charges of rape, involuntary deviate sexual intercourse, indecent assault and corruption of a minor. He was arraigned on March 3, 1980, and a preliminary hearing was scheduled for ten days later. On March 13, 1980, a snowstorm closed the district court, and the preliminary hearing was rescheduled for March 21, 1980. On that date, appellant failed to appear. He was arrested in Wyoming two and one-half months later and returned to the Commonwealth on June 5, 1980. His preliminary hearing was held on June 11, 1980 and continued to June 18. Following an October 20-23, 1980 jury trial, appellant was found guilty of all charges except the rape charge. Post-verdict motions were denied on May 18, 1982, and on July 20, appellant was sentenced to a term of imprisonment of eight-to-twenty years. This appeal followed.

Appellant first contends that he .was denied a speedy disposition of the charges filed against him. He alleges that his preliminary hearing was not .timely and that he did not receive notice of it. Pa.R.Crim.P. 140(d) provides that a preliminary hearing shall be scheduled “not less than three nor more than ten days after preliminary arraignment unless extended for good cause shown,” and that the defendant shall have notice of the time arid place- of the hearing. Here, we find that the snowstorm was good cause for rescheduling the preliminary hearing for March 21, 1980, beyond the ten day limitation. We also find appellant’s claim that he was not given notice of the hearing to be without merit. Detective Raymond Bechtel testified that, on March 13, 1980, the district judge advised appellant by phone of the date and time of the rescheduled hearing. (N.T., Rule 1100 Hearing, October 20, 1980 at 25).

Appellant also argues that his right to a speedy trial under Pa.R.Crim.P. 1100 was violated. Rule 1100(a)(2) provides that trial in a court case must commence within 180 days from the date on which the criminal complaint is filed. In making that computation, however, any periods of time in which the defendant was unavailable are excluded. Pa.R.Crim.P. 1100(d)(3)(i). Here, we find that appellant was unavailable from the time he failed to appear for the March 21, 1980 hearing until his June 5, extradition from Wyoming, a period of seventy-six days. Excluding that period, the Rule 1100 run date is extended to November 4, 1980, 256 days from the date the complaint was filed. Because the trial commenced on October 20, 1980, we hold that Rule 1100 was not violated.

Appellant next contends that the eleven month delay between the argument of his post-verdict motions and the order denying them was excessive. Pa.R.Crim.P. 1122 provides that post-verdict motions must be decided within thirty days after argument, “except under unusual circumstances.” Here, appellant’s post-verdict motions were argued on May 18, 1981. Because of the nature of these motions, two evidentiary hearings were held on July 14, 1981 and May 13, 1982. The delay in holding the second hearing was occasioned by the unavailability of a necessary witness who was in the Navy. The trial court then decided the motions five days after the second hearing. Under these circumstances, we hold that the delay was not improper.

Appellant also complains of the two month delay before his sentencing and the lapse of thirteen months between the filing of his notice of appeal and the issuance of the lower court’s opinion. While unreasonable delay by the courts is not to be encouraged, the constitutional and statutory rules guaranteeing speedy trials do not apply to post-trial proceedings, particularly in the absence of a showing of prejudice. Commonwealth v. Hill, 267 Pa.Superior Ct. 264, 268, 406 A.2d 796, 798 (1978). Here, because appellant has not made such a showing, we find his claim meritless.

Appellant next claims that remarks made by a Commonwealth witness raised an inference of previous criminal conduct on appellant’s part sufficient to warrant a mistrial. In response to cross-examination by defense counsel, the witness testified that she had known appellant “since he came home from jail.” (N.T. October 20-23, 1980 at 79). Ordinarily, admission of testimony which describes, or from which the jury may infer, past criminal conduct by a defendant constitutes reversible error. Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979); Commonwealth v. Colon, 264 Pa.Superior Ct. 314, 321, 399 A.2d 1068, 1071 (1979). However, not all such references warrant reversal. An isolated passing reference to prior criminal activity will not warrant reversal unless the record indicates that prejudice resulted from the remark. Commonwealth v. Nichols, supra; Commonwealth v. Bowermaster, 297 Pa.Superior Ct. 444, 451, 444 A.2d 115, 118 (1982). There is no per se rule which requires a new trial for every passing reference to prior criminal conduct. Commonwealth v. Richardson, 496 Pa. 521, 526, 437 A.2d 1162, 1165 (1981); Commonwealth v. Bowermaster, supra. Additionally, the possible prejudicial effect of a witness’ reference to prior criminal conduct by the defendant may, under certain circumstances, be removed by a cautionary instruction. Commonwealth v. Richardson, supra. In Richardson, our Supreme Court held that the trial court properly refused to grant a mistrial when a defense witness testified on cross-examination to prior unrelated criminal conduct by the defendant. In so holding, the Court focused on the nature of the remark, the fact that the remark was not deliberately introduced or exploited by the Commonwealth, and the prompt curative instruction given by the trial court. In the instant case, equally strong factors compel the same result. Appellant’s own counsel accidentally elicited the objectionable testimony. The remark was isolated and was not repeated or otherwise emphasized. Moreover, unlike the remark in Richardson, the instant comment did not refer to specific criminal conduct. Accordingly, any prejudice which may have resulted could have been remedied by a curative instruction. Defense counsel, however, refused the trial court’s offer to strike the testimony and caution the jury to disregard it, because he believed that such a course of action would draw unnecessary attention to the remark. (N.T. October 20-23, 1980 at 79-81). Therefore, we find that the trial court’s refusal to declare a mistrial on this basis was not reversible error. See Commonwealth v. Whiting, 278 Pa.Superior Ct. 519, 524, 420 A.2d 662, 664 (1980) (where cautionary instruction which would have cured prejudice is waived, refusal to declare a mistrial is proper).

Appellant also argues that he is entitled to a new trial because the jury foreman took notes when the trial court, upon jury request, repeated the elements of the crimes charged. Under Pennsylvania law, it is improper for a juror to take notes during a trial and to use those notes in the jury room. Pa.R.Crim.P. 1113; Commonwealth v. Pierce, 453 Pa. 319, 322, 309 A.2d 371, 372 (1973). If a defendant can establish prejudice from such conduct, he is entitled to a new trial. Id. In the instant case, appellant has not introduced any evidence regarding the juror’s note-taking or established any prejudice. We therefore find this argument meritless.

Appellant next contends that it was error for the trial court to refuse to instruct the jury with the maxim “falsus in uno, falsus in omnibus,” i.e., if a witness willfully and corruptly swears falsely to any material fact in a case, the jury may disregard all of that witness’ testimony. See Commonwealth v. Parente, 184 Pa.Superior Ct. 125, 131, 133 A.2d 561, 564 (1957). Before the maxim is applicable, however, the falsehood must be “wilful and corrupt” rather than mere contradiction or self-contradiction. Id. Because this maxim has been criticized as superfluous and likely to create misunderstanding, the propriety and necessity of charging the jury with it has been questioned. Commonwealth v. Levenson, 282 Pa.Superior Ct. 406, 415-16, 422 A.2d 1355, 1360-61 (1980). In the instant case, the trial court found that the instruction was inapplicable because “there was no indication of deliberate falsehood by any Commonwealth witness.” (Lower Court Opinion at 8). Furthermore, the court felt that such an instruction was likely to confuse the jury. (N.T. October 20-23, 1980 at 326). When evaluating the correctness of an instruction to a jury, the charge must be read and considered as a whole. Commonwealth v. Rodgers, 459 Pa. 129, 139, 327 A.2d 118, 120 (1974). Having reviewed the jury charge, we find that the trial court did not err in refusing to give appellant’s instruction, and adequately instructed the jury with regard to witness credibility.

Appellant’s next argument is that the trial court erroneously refused to grant a continuance in the middle of the trial. Appellant claims that a continuance was necessary to serve a bench warrant on a missing witness. “The denial of a continuance by the trial judge constitutes reversible error only if there has been an abuse of discretion.” Commonwealth v. Howard, 466 Pa. 445, 447, 353 A.2d 438, 438 (1976); Commonwealth v. Bellacchio, 296 Pa.Superior Ct. 468, 475-76, 442 A.2d 1147, 1150 (1982). The considerations which underlie the exercise of a trial judge’s discretion to grant or refuse a continuance based on the absence of a material witness include whether the witness is essential to the defense or necessary to strengthen the defense, the diligence exercised to procure the witness’ presence at trial, the facts to which the witness could testify, and the likelihood that the witness could be procured at the next term of court. Commonwealth v. Howard, supra 466 Pa. at 448, 353 A.2d at 439. Appellant presented no evidence to satisfy any of these conditions. Accordingly, we find that the trial court did not abuse its discretion by refusing to grant a continuance.

Appellant next contends that the Commonwealth’s evidence was so contradictory that it could not form the basis for a guilty verdict. Where evidence offered to support a verdict of guilty is so unreliable or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding. Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976); Commonwealth v. Bennett, 224 Pa.Superior Ct. 238, 240, 303 A.2d 220, 221 (1973). Mere evidence of a conflict in the prosecution’s evidence is not fatal to its case, however, because the Commonwealth is not bound by everything its witnesses say, and the jury can believe all, part, or none of the testimony. Commonwealth v. Duncan, 473 Pa. 62, 68, 373 A.2d 1051, 1053 (1977). The applicable standard is whether the evidence, taken as a whole, would support a verdict. Commonwealth v. Farquharson, supra. Here, minor inconsistencies in testimony pointed out by appellant do not create such contradictions as to make the jury verdict mere conjecture. After reviewing the record, we hold that the evidence was sufficient to support the verdicts. See Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825-26 (1975) (standard for evaluating sufficiency of evidence).

Appellant also claims that the verdicts were inconsistent, thus warranting an arrest of judgment. He argues that his acquittal on the rape charge was inconsistent with his conviction on the charge of involuntary deviate sexual intercourse. Consistency in criminal verdicts is not necessary, and logical inconsistencies will not serve as grounds for reversal. Commonwealth v. Williams, 294 Pa.Superior Ct. 93, 97-98, 439 A.2d 765, 768 (1982). Inconsistent verdicts are proper so long as the evidence is sufficient to support the convictions the jury has returned. Commonwealth v. Shaffer, 279 Pa.Superior Ct. 18, 22, 420 A.2d 722, 724 (1980). Because we have held that the evidence in the instant case supports the jury verdict on the involuntary deviate sexual intercourse charge, we find appellant’s claim meritless.

Appellant’s next contention is that the trial court erred in relying upon sentencing guidelines which were not then in effect. During sentencing, the trial court stated that, although the new guidelines were not due to become effective for two days, he had found them useful. (N.T. July 20, 1982 at 9).

The imposition of sentence is a matter vested in the sound discretion of the sentencing judge, whose determination will not be disturbed on appeal absent a manifest abuse of discretion. If the sentence is within statutory limits there is no abuse of discretion unless the sentence is so manifestly excessive as to inflict too severe a punishment.

Commonwealth v. Russell, 313 Pa.Superior Ct. 534, 545, 460 A.2d 316, 322 (1983) (citations omitted). In the instant case, appellant was sentenced within the statutory máximums. Furthermore, the trial court noted that if it had not applied the new guidelines, appellant’s sentence might have been more severe. (N.T. July 20, 1982 at 9). After reviewing the record, we hold that the sentence was not manifestly excessive, and that the trial court did not abuse its sentencing discretion.

Appellant’s next argument is that the statutory prohibition against involuntary deviate sexual intercourse is an unconstitutional denial of equal protection. As a general rule, issues not raised in the lower court are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). Waiver may not be avoided by alleging that the issue is of constitutional dimension. Commonwealth ex rel. Bulson v. Bulson, 278 Pa.Superior Ct. 6, 8-9, 419 A.2d 1327, 1328-29 (1980). Because appellant did not raise this issue below, we find it waived.

Appellant further contends, however, that his trial counsel was ineffective for failing to raise the unconstitutionality of the prohibition against involuntary deviate sexual intercourse. When confronted with a claim of ineffectiveness, we must first determine whether the issues underlying the claim are of arguable merit. If the underlying issues are found to have arguable merit, then we determine whether the strategy chosen by trial counsel had some reasonable basis designed to effectuate the client’s interests. Commonwealth v. Evans, 489 Pa. 85, 91, 413 A.2d 1025, 1028 (1980); Commonwealth v. Kaufman, 307 Pa.Superior Ct. 63, 73, 452 A.2d 1039, 1049 (1982). Counsel will not be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Penn, 497 Pa. 232, 247, 439 A.2d 1154, 1160, cert. denied sub nom., Penn v. Pennsylvania, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982).

Appellant bases his constitutional claim upon the successful equal protection argument made in Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980). In Bonadio, our Supreme Court held that the statutory prohibition against voluntary deviate sexual intercourse violated equal protection because the statutory definition of deviate sexual intercourse impermissibly discriminated against unmarried persons. The Supreme Court rejected the Commonwealth’s argument that the married-unmarried classification was justified by the legislature’s intent to forbid voluntary deviate sexual intercourse in general, while creating an exception to further the state interest in promoting marital privacy. Id., 490 Pa. at 99, 415 A.2d at 51. It found that such a regulation of the private conduct of consenting adults exceeded the proper bounds of the Commonwealth’s police power, and, therefore, the classification did not have a rational relationship to a valid legislative objective. Id. However, the Bonadio Court distinguished cases involving involuntary deviate sexual intercourse by noting that the Commonwealth does have a strong interest in preventing people from being forced against their will to submit to sexual conduct. Id., 490 Pa. at 95, 415 A.2d at 49. In such cases, the Court stated that the legislative protection of marital privacy bears a rational relationship to a legitimate governmental interest. Here, we concur in our Supreme Court’s reasoning and find that the prohibition against involuntary deviate sexual intercourse does not violate equal protection. Accordingly, appellant’s counsel was not ineffective for failing to raise a meritless claim.

Appellant also contends that counsel was ineffective for advising him not to testify at trial. “The choice of whether to testify rests on the accused, it being counsel’s function to advise fully of the consequences.” Commonwealth v. Lincoln, 270 Pa.Superior Ct. 489, 494, 411 A.2d 824, 827 (1979). In the instant case, trial counsel advised appellant fully of the consequences of testifying. Although counsel emphasized the compelling reasons why appellant should refrain from testifying, including the fact that appellant would thereby be subject to impeachment with his preliminary hearing testimony, N.T. July 14, 1981 at 40-50, he also advised appellant that if he should testify his prior record could not be used against him. (N.T. October 20-23, 1980 at 291). Because appellant and his counsel had some differences of opinion during the trial, appellant’s agreement to follow counsel’s advice that he not testify was placed on the record. (N.T. October 20-23, 1980 at 289-92). Finding counsel’s advice to be reasonably designed to effectuate appellant’s interests, we hold that there was no ineffectiveness.

Appellant’s last contention is that counsel was ineffective for failing to call certain witnesses. Trial counsel need not call to the witness stand every witness mentioned by a defendant when counsel has a reasonable basis to believe that such witness would not be helpful to the client’s defense. Commonwealth v. Banks, 267 Pa.Superior Ct. 10, 13, 405 A.2d 1277, 1279 (1979). Here, counsel testified as to the reasons he felt the witnesses suggested by appellant would not be helpful. See N.T. October 20-23, 1980 at 289; N.T. July 14, 1981 at 18-29. Aftér' reviewing these reasons, we hold that trial counsel was not ineffective for failing to call these witnesses.

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

Affirmed.

      . Before appellant was brought to trial, the Commonwealth petitioned for Rule 1100 extensions on two occasions. Because we have found that appellant’s trial was timely, even without those extensions, we need not address whether those petitions were properly granted.

      . Appellant also asserts that a mistrial was warranted by the fact that a juror may have seen him in handcuffs. Ordinarily, we will not consider any issue which is not set forth in the statement of questions section of the appellate brief. Pa.R.A.P. 2116; Kerr v. O'Donovan, 389 Pa. 614, 630, 134 A.2d 213, 220-221 (1957). Because appellant has neither presented the issue for review in his statement of questions, nor cited any relevant authority in his argument, we decline to consider the issue. Even if the issue had been properly presented to us, however, we note that appellant has failed to present any evidence to support his contention that a juror saw him in handcuffs.

      . Appellant also fails to point to any testimony which would warrant the instruction under this standard.

      . Appellant also claims that the trial court failed to place on the record the relevant factors in imposing sentence. In light of appellant’s concession in his appellate brief that the trial court did place its reasons for imposing the sentence in the record, we find this claim patently frivolous. See Brief for Appellant at 34.

      . 18 Pa.C.S.A. § 3123 defines involuntary deviate sexual intercourse' as follows:
      A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
      (1) by forcible compulsion;
      (2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
      (3) who is unconscious;
      (4) who is so mentally deranged that such a person is incapable of consent; or
      (5) who is less than 16 years of age.

      . 18 Pa.C.S.A. § 3124 defines voluntary deviate sexual intercourse as follows:
      A person who engages in deviate sexual intercourse under circumstances not covered by section 3123 of this title (related to involuntary deviate sexual intercourse) is guilty of a misdemeanor of the second degree.

      . 18 Pa.C.S.A. § 3101 defines deviate sexual intercourse as follows:
      Sexual intercourse per os or per anus between human beings who are not husband and wife, and any form of sexual intercourse with an animal.

      . Except where an invidious discrimination against a suspected class is at issue or a fundamental right is burdened, "a legislative classification must be sustained unless it is ‘patently arbitrary’ and bears no rational relationship to a legitimate governmental interest.”

        Singer v. Sheppard, 464 Pa. 387, 402, 346 A.2d 897, 905 (1975), quoting Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768, 36 L.Ed.2d 583 (1973).

      . Appellant specifically alleges that the testimony of Gerald Moore, whom trial counsel was unable to locate, would have contradicted that of the Commonwealth’s witnesses. However, Moore’s testimony at the second evidentiary hearing on the post-verdict motions only contradicted that of Commonwealth witnesses on collateral matters. Because "[e]xtrinsic evidence is improperly admitted in rebuttal if it is relevant only to a collateral matter,” Commonwealth v. Wright, 308 Pa.Superior Ct. 263, 267, 454 A.2d 122, 124 (1982), we find that counsel was not ineffective for failing to call Moore.