author: CERCONE, Judge:

text:
    623 A.2d 336
    COMMONWEALTH of Pennsylvania v. John R. KUNKLE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1993.
    Filed April 13, 1993.

      David J. DeFazio, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge, and DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgment of sentence entered by the trial court on September 11, 1991. For the reasons set forth below, we affirm.

Following a bench trial, appellant was found guilty of involuntary deviate sexual intercourse, indecent assault, and corruption of a minor. Appellant timely filed post-verdict motions and supplemental post-verdict motions which the trial court denied. The trial court sentenced appellant to a term of imprisonment of not less than five (5) nor more than ten (10) years for his conviction of involuntary deviate sexual intercourse. The trial court suspended- sentence on the remaining charges. This timely appeal followed.

Appellant raises the following issues for our review:
I. Was the evidence in this case insufficient for a conviction and was the verdict against the weight of the evidence?
II. Did the trial court err in denying appellant Kunkle the opportunity to inquire into during crossexamination [sic] the alleged victim’s prior psychiatric therapy and the prior sexual assault on the victim by her natural father?
III. Did the trial court err when it denied defense counsel the opportunity to call Mr. Alan Collins in order to examine him as to his findings that the alleged victim fabricated charges against appellant Kunkle regarding sexual abuse and also to examine Mr. Collins as to any prior inconsistent statements made by the alleged victim during the time Mr. Collins was evaluating her complaint against appellant Kunkle?

We will address these issues in order.

Appellant first argues that the evidence is insufficient to sustain his convictions. It is well settled that when sufficiency of the evidence claims are raised, “an appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the record there is a sufficient basis to support the challenged conviction.” Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983) (citations omitted). The proper application of this test requires us to evaluate the entire trial record and all evidence actually received, in the aggregate and not as fragments isolated from the totality of the evidence. Commonwealth v. Harper, 485 Pa. 572, 576, 403 A.2d 536, 538 (1979). See also Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986) (explicating appropriate application of standard of review set forth in Harper, supra). This standard means that we must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine if the trier of fact could reasonably have concluded that all of the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 143, 555 A.2d 818, 823 (1989). We note that the trier of fact is free to believe all, part, or none of the evidence presented, Griscavage, 512 Pa. at 546, 517 A.2d at 1259, and that “the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.” Commonwealth v. Harper, 485 Pa. at 576, 403 A.2d at 538.

The Crimes Code defines the offense of involuntary deviate sexual intercourse, in relevant part, 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^]

18 Pa.C.S.A. § 3123(1)—(2). The Crimes Code also provides that uncorroborated testimony of the sex offense victim may be sufficient to establish the guilt of the accused. Id. § 3106.

In the instant case, the trial court concisely reviewed the testimony of the victim as follows:

The victim testified that the first incident occurred when she was in the seventh grade. (T.T. p. 12). Sometime during September, 1987 when she was home “ill from school” (T.T. p. 10-12), defendant slapped the victim across the face, held his hand on her head, and forced her to perform oral sex. (T.T. p. 11). Knowing the victim was more afraid of vaginal intercourse (T.T. p. 14), defendant threatened her with this if she refused to perform. (T.T. p. 13-14). The victim also testified that on December 4, 1987, two days before her birthday, defendant forced her to perform oral sex because he “deserved something back for him buying me [a] kitten” as a birthday present. (T.T. p. 37).
The victim testified that these attacks occurred almost every weekend from September, 1987 until July, 1988, at which time she showed her diary to her brother. (T.T. p. 15). Upon reading a diary entry in which the victim accused defendant of molesting her (T.T. p. 44), the victim’s brother showed the diary to his mother. (T.T. p. 68).

Trial Court Opinion filed July 14, 1992 at 3-4. This evidence, when reviewed under a light most favorable to the Commonwealth as verdict winner, is clearly sufficient to sustain appellant’s conviction of involuntary deviate sexual intercourse.

Appellant next contends that the verdict is against the weight of the evidence. Our scope of review for a claim that a verdict is against the weight of the evidence is very narrow. Commonwealth v. Hamilton, 376 Pa.Super. 404, 414, 546 A.2d 90, 95 (1988), allocatur denied, 521 Pa. 629, 558 A.2d 531 (1989). The determination of whether to grant a new trial because the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent abuse of discretion. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982); Commonwealth v. Hunter, 381 Pa.Super. 606, 618, 554 A.2d 550, 555 (1989). Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973); Commonwealth v. Hamilton, 376 Pa.Super. at 414, 546 A.2d at 95-96. The weight to be accorded conflicting evidence is exclusively for the fact finder, whose findings will not be disturbed on appeal if they are supported by the record. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972). A claim that the evidence presented at trial was contradictory and unable to support the verdict requires the grant of a new trial only when the verdict is so contrary to the evidence as to shock one’s sense of justice. Id.; Commonwealth v. Hunter, supra; Commonwealth v. Saksek, 361 Pa.Super. 173, 522 A.2d 70 (1987).

The trial court concisely reviewed the evidence presented in this case and determined that the verdict was not against the weight of the evidence. After reviewing the parties’ briefs and the certified record, we find the trial court’s analysis and conclusion to be clear and correct. Accordingly, we affirm on the basis of the trial court opinion filed July 14, 1992, with regard to this issue.

Next, appellant argues that the trial court improperly denied appellant the opportunity to question the victim about a prior instance of sexual assault by a person other than appellant, and about about her psychiatric treatment related thereto. The admissibility of evidence is a matter left to the sound discretion of the trial court, and an appellate court may reverse only upon a showing that the trial court abused its discretion. Commonwealth v. Wallace, 522 Pa. 297, 309 n. 15, 561 A.2d 719, 725 n. 15 (1989). Evidence is admissible if, and only if, it is relevant: the evidence must logically or reasonably tend to prove or disprove a material fact in issue, to make such a fact more or less probable, or afford a basis or support for a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. Ingram, 404 Pa.Super. 560, 576, 591 A.2d 734, 742 (1991), allocatur denied, 530 Pa. 631, 606 A.2d 901 (1992). Accord Commonwealth v. Stewart, 461 Pa. 274, 336 A.2d 282 (1975).

Testimony of prior sexual conduct involving the victim, whether consensual or the result of nonconsensual or assaultive behavior, is not admissible unless it has probative value which is exculpatory to the defendant. 18 Pa.C.S.A. § 3104(a) (“Rape Shield Law”); Commonwealth v. Smith, 410 Pa.Super. 363, 368, 599 A.2d 1340, 1342 (1991). Moreover, a defendant who proposes to offer evidence of the alleged victim’s past sexual conduct must file a written motion and make a specific offer of proof at the time of trial. 18 Pa.C.S.A. § 3104(b). In determining whether the application of the Rape Shield Law violates a defendant’s constitutional rights to confront and cross-examine witnesses against him, this court has recently held:

In Pennsylvania, we have come to resolve this question through a relatively elaborate procedure which is designed to ensure that no evidence of the victim’s sexual history is introduced unless and until it can be established that to exclude such evidence would lay victim to the very raison d’etre of the trial itself: the pursuit of truth. The process begins with the defendant submitting a specific proffer to the court of exactly what evidence he or she seeks to admit and precisely why it is relevant to the defense. See Commonwealth v. Smith, supra [410 Pa.Super. 363], 599 A.2d [1340] at 1342 [ (1991) ], Commonwealth v. Nieves, supra, [399 Pa.Super. 277,] 582 A.2d [341] at 347 [ (1990), allocatur denied, 529 Pa. 633, 600 A.2d 952 (1991) ]. This procedure forces the defendant to frame the precise issues and interests involved, and prevents him or her from embarking upon “fishing expedition style intrusions on Rape Shield Law protections.” Id., 582 A.2d at 349. Where the proffer is but vague and conjectural, evidence of the victim’s past sexual conduct will be excluded and no further inquiry need be entertained. Id.; Commonwealth v. Troy, 381 Pa.Super. 326, 335, 553 A.2d 992, 996-97 (1989) [, allocatur denied 525 Pa. 626, 578 A.2d 413 (1990) ] (plurality).

Commonwealth v. Wall, 413 Pa.Super. 599, 614-15, 606 A.2d 449, 457 (1992), allocatur denied, 532 Pa. 645, 614 A.2d 1142 (1992). Accord Commonwealth v. Berkowitz, 415 Pa.Super. 505, 525, 609 A.2d 1338, 1348-49 (1992), allocatur granted, 531 Pa. 650, 613 A.2d 556 (1992).

During cross-examination of the victim, the following exchange occurred:

Q. [Defense Counsel]: Is this the first person you have accused of this kind of crime?
MR. TORISKY [prosecutor]: Objection, Your Honor. Defense counsel knows that’s complete irrelevant to these proceedings.
THE COURT: I will sustain the objection.
MR. DeFAZIO [defense counsel]: I would argue it just goes to credibility, Your Honor, the ability to perceive and accurately perceive and communicate and recall. I think that any prior sexual assault on this victim would traumatize her to the extent that she would just come into court and make this up, not intentionally, perhaps, but—
THE COURT: I’m here trying this matter here, you know. I don’t know what you’re talking about, if it happened. Do you know?
MR. DeFAZIO: I have information I got in discovery. That’s why I am pursuing it.
MR. TORISKY: The Superior and Supreme Courts have disagreed, that is wholly irrelevant, and inadmissible in proceedings of this type.
MR. DeFAZIO: If you have a case, I will be happy to hear it.
MR. TORISKY: I provided cases the last time we argued this point.
THE COURT: I am going to sustain the objection on that point. I think the law is clear.

N.T. 7/16-17/91 at 38-39. Although counsel refers to a prior discussion on this point, there is no evidence that defense counsel filed a written motion pursuant to 18 Pa.C.S.A. § 3104(b), or evidence that a prior discussion on this matter took place before the trial court. Moreover, based upon the standards set forth above, the offer of proof presented at trial by defense counsel was wholly inadequate to meet the specific proffer required by Smith, Nieves and their progeny. Accordingly, we find no abuse of discretion by the trial court when it barred evidence pertaining to the prior sexual assault of the victim.

Finally, appellant contends that the trial court improperly denied appellant’s counsel the opportunity to call the victim’s sexual assault counselor as a defense witness. Specifically, appellant argues that although there is a statutory privilege applicable to sexual assault counselors, the counselor determined that the allegations were fabricated and therefore, the victim was not, in fact a “victim.” We disagree.

Initially, we note that there is some confusion as to whether this issue has been preserved for our review. In its opinion filed July 14,1992, the trial court did not address the merits of appellant’s argument because at trial, defense counsel never attempted to call the counselor to testify. However, our review of the record discloses the following exchange which took place during argument on appellant’s post-verdict motions:

MR. DeFAZIO [defense counsel]: I’d like to just note for the record that prior to trial I had wanted to subpoena this [sexual assault counselor], that the D.A. objected and you agreed with the D.A., being that the statute with regards to the testimony of a psychologist and/or mental health rape counselor/therapist prevented my calling the individual. THE COURT: Is that your memory Mr. Torisky.
MR. TORISKY [prosecutor]: Actually, Your Honor, it’s my recollection that prior to commencing with testimony, this Court made a point of putting that on the record. If it was not—
THE COURT: If we didn’t—
MR. TORISKY: If it was not, I certainly have no objection of re-opening—
THE COURT: That is my memory of what happened. I would like the record to reflect Mr. Torisky objected to Mr. DeFazio’s motion that the rape counselor — what was his name?
MR. DeFAZIO: Collins.
THE COURT: Collins is called and I agreed that the law did not permit him to call him without permission of the victim and there was no permission forthcoming and therefore I denied that motion. I’d like the record to reflect that so that’s preserved for appellate purposes.

N.T. 9/11/91 at 3-4. Based on these statements by the trial court, we conclude that defense counsel made some attempt to call the sexual assault counselor to testify. Accordingly, we will address the merits of appellant’s argument.

Generally, communications between the victim of a sexual assault and her sexual assault counselor are privileged:

A sexual assault counselor has a privilege not to be examined as a witness in any civil or criminal proceeding without the prior written consent of the victim being counseled by the counselor as to any confidential communication made by the victim to the counselor or as to any advice, report or working paper given or made in the course of the consultation.

42 Pa.C.S.A. § 5945.1(b). The term victim, as used in section 5945.1 is defined as:

A person who consults a sexual assault counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused or reasonably believed to be caused by a sexual assault.

42 Pa.C.S.A. § 5945.1(a). In Pennsylvania, it is well-settled that a court must construe the words of a statute according to their plain meaning. 1 Pa.C.S.A. § 1903(a); Commonwealth v. Stanley, 498 Pa. 326, 335, 446 A.2d 583, 587 (1982); Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983). When the words of a statute are unambiguous, they are not to be disregarded under the pretext of pursuing the spirit of the statute. 1 Pa.C.S.A. § 1921(a).

It is clear from the plain language of the statute that the complainant’s status as a “victim” is not dependent upon the sexual assault counselor’s evaluation of the situation. Moreover, based upon our review of the record, it is clear that the complainant consulted the sexual assault counselor “for the purpose of securing advice, counseling or assistance” concerning a condition related to the sexual assault. 42 Pa.C.S.A. § 5945.1(a). Therefore, pursuant to 42 Pa.C.S.A. § 5945.1(b), the sexual assault counselor could not testify without the prior written consent of the victim. Because there is no evidence that the victim gave written consent to the counselor, we cannot find the trial court’s preclusion of the counselor’s testimony to be an abuse of discretion.

Judgment of sentence affirmed.

DEL SOLE, J., concurs in the result.

      . 18 Pa.C.S.A. § 3123.

      . Id. § 3126.

      . Id. § 6301.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    623 A.2d 341
    COMMONWEALTH of Pennsylvania v. Earl R. GROFT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 14, 1992.
    Filed April 14, 1993.

      Julianne M. Keri, Somerset, for appellant.
    James M. Jacobs, Asst. Dist. Atty., Somerset, for Com., appellee.
    Before WIEAND, CIRILLO and CERCONE, JJ.
   WIEAND, Judge:

Earl R. Groft, a fifty-six (56) year old adult male, was tried by jury and was found guilty of defiant trespass, based upon his refusal to leave the home of his mother after she repeatedly told him to find another place to live. Following the denial of post-trial motions, Groft was sentenced to pay a fine of three hundred ($300.00) dollars, pay the costs of prosecution and undergo imprisonment for not less than eighty-one (81) days nor more than one (1) year. On direct appeal from the judgment of sentence, Groft contends that: (1) there was insufficient evidence to sustain his conviction; (2) the filing of a criminal charge was improperly employed as a substitute for a civil action in ejectment; (3) prosecution was barred by principles of double jeopardy and collateral estoppel; and (4) the trial court abused its discretion in imposing sentence.

“The crime of defiant trespass occurs when a person remains in a place where he is not privileged to remain after notice of trespass is given.” Commonwealth v. Conyers, 238 Pa.Super. 386, 389, 357 A.2d 569, 570 (1976) (footnote omitted). See also: Commonwealth v. Evans, 393 Pa.Super. 500, 507, 574 A.2d 1051, 1055 (1990); Commonwealth v. Sherlock, 326 Pa.Super. 103, 106 n. 1, 473 A.2d 629, 631 n. 1 (1984). The offense is defined by statute as follows:

(b) Defiant trespasser.—
(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
(i) actual communication to the actor; or
(ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(iii) fencing or other enclosure manifestly designed to exclude intruders.
(2) An offense under this subsection constitutes a misdemeanor of the third degree if the offender defies an order to leave personally communicated to him by the owner of the premises or other authorized person. Otherwise it is a summary offense.

18 Pa.C.S. § 3503(b).

In this case, appellant was charged with defiant trespass, pursuant to 18 Pa.C.S. § 3503(b)(1)(i), because he defied the orders of his mother, personally communicated to him, that he move out of her home. Appellant contends that the evidence at trial was insufficient to sustain his conviction because the Commonwealth failed to prove: (1) that he was not licensed or privileged to remain at his mother’s home; (2) that he possessed the required knowledge that he was not licensed or privileged to remain at his mother’s home; and (3) that he had been given notice against further trespass.

In evaluating a challenge to the sufficiency of the evidence, we view the evidence 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 is sufficient to permit a jury to determine that each and every element of the crime charged has been established beyond a reasonable doubt. See: Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Aulisio, 514 Pa. 84, 91, 522 A.2d 1075, 1079 (1987). It is the function of the jury to pass upon the credibility of the witnesses and to determine the weight to be accorded the evidence produced. The jury is free to believe all, part or none of the evidence introduced at trial. See: 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). Moreover, 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 jury 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).

The evidence at trial established that appellant had been living continuously in his mother’s home for twenty-five to thirty years. There was also evidence that he had contributed money towards the purchase of the land on which the house had been built and that he had helped his father and brother construct the house. However, the title to the home was vested in appellant’s mother. For a period of four to five years prior to trial, appellant and his mother had been unable to get along with each other; and the mother, as well as other family members, had told appellant on numerous occasions that he should move out of his mother’s home and find a place of his own. Appellant refused his mother’s demands that he vacate her home. He was tried non-jury and found guilty of defiant trespass in 1989 and thereafter continued his refusal to move from his mother’s home and establish a residence of his own.

When this evidence is viewed most favorably to the Commonwealth, it is clear that appellant had notice and was fully aware of the fact that he no longer was licensed or privileged to remain in his mother’s home. This had been communicated to appellant by his mother and by other family members over a period of five years. Indeed, even after being convicted the first time of defiant trespass, appellant continued in his refusal to move from his mother’s home, even though a condition of his probation required him to maintain a separate home. Under these circumstances, there can be no doubt that appellant had been told and knew that he was no longer permitted to live in his mother’s home.

There also was ample evidence to establish that, in fact, appellant was not licensed or privileged to remain in his mother’s home. Although he had contributed to purchasing the land and had worked in the construction of the home, appellant had no ownership interest therein. The home was owned by the mother, and appellant had no interest therein which would entitle him to remain there. Thus, his mother could properly determine that her fifty-six year old son should no longer be permitted to live in her home.

Appellant contends that his mother is abusing the criminal process by attempting to evict him by a criminal prosecution, thereby avoiding the payment of court costs and attorney’s fees which would have been incurred in a civil action. He argues that a dispute between a mother and son of the nature involved in this case should more properly be addressed in a civil action rather than in criminal court.

While it may be true, as appellant suggests, that a civil action could have been brought by his mother, this does not necessarily make inappropriate a criminal prosecution based upon the same events. The subject matter addressed in a civil lawsuit and a criminal prosecution do not have to be mutually exclusive. Rather, “it is elementary that a person may offend against the Commonwealth and also be liable for civil damages or other relief growing out of the same offense.” Pearl Assurance Co. v. National Insurance Agency, 151 Pa.Super. 146, 157, 30 A.2d 333, 338 (1943). See also: 1 Pa.C.S. § 1929. Because there was sufficient evidence that appellant did, in fact, commit the crime of defiant trespass, it cannot be said that the criminal process was abused by the instant prosecution.

“The constitutional prohibition [against] double jeopardy has been held to consist of three separate guarantees: (a) protection against a second prosecution for the same offense after an acquittal; (b) protection against a second prosecution for the same offense after conviction; and (c) protection against multiple punishments for the same offense.” Commonwealth v. Tarver, 493 Pa. 320, 324-325, 426 A.2d 569, 571 (1981). See also: North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-665 (1969); Commonwealth v. Kemmerer, 526 Pa. 160, 163 n. 4, 584 A.2d 940, 942 n. 4 (1991). “The doctrine of collateral estoppel, which is part of the concept of double jeopardy, ‘requires that where an ultimate fact has been necessarily established in favor of a defendant in a former prosecution, the issue may not be re-litigated in any subsequent proceeding against the defendant.’ ” Commonwealth v. Wharton, 406 Pa.Super. 430, 432, 594 A.2d 696, 697 (1991), quoting Matter of Huff, 399 Pa.Super. 574, 578 n. 5, 582 A.2d 1093, 1095 n. 5 (1990) (en banc), aff'd, 529 Pa. 442, 604 A.2d 1026 (1992). See also: Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980).

Appellant contends that he has been prosecuted a second time for defiant trespass, based upon the very same conduct, i.e., his refusal to leave his mother’s home. In addressing this contention, we are guided by the United States Supreme Court’s seminal decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), where the Court explained that:

the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. This is not an “actual evidence” or “same evidence” test. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct. As we have held, the presentation of specific evidence in one trial does not forever prevent the government from introducing that same evidence in a subsequent proceeding. See Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). On the other hand, a State cannot avoid the dictates of the Double Jeopardy Clause merely by altering in successive prosecutions the evidence offered to prove the same conduct.

Id. at 521-522, 110 S.Ct. at 2093, 109 L.Ed.2d at 564-565 (footnotes omitted). Therefore, “[i]n order to constitute the ‘same offense’ for double jeopardy purposes, the ‘conduct’ used to establish an essential element of the subsequent charge, must be conduct for which the defendant was convicted in the first prosecution.” Commonwealth v. Yingling, 407 Pa.Super. 151, 155, 595 A.2d 169, 171 (1991).

After careful review, we are persuaded that there is no merit in appellant’s contention that he has been twice convicted for the same offense in violation of double jeopardy principles. Appellant’s claims of double jeopardy and collateral estoppel have been fully and adequately discussed in the post-trial opinion of the trial court, where the court reasoned as follows:

For Double Jeopardy to apply, not only must the offenses be the same, but the two charges must arise from the same criminal conduct and be based on the same facts. 18 Pa.C.S.A. § 109. The second trial addressed the continued residence of Defendant at his mother’s home, after the first conviction and sentencing which required that he leave. To determine whether the same facts provide the basis for the two prosecutions, the question becomes whether the two time periods at issue could be considered one criminal event.
The difficulty in applying the case law arises from the fact that Defendant’s crime was permitted to continue because he was not incarcerated after the first trial. Crimes such as murder or burglary are not continuous in nature so it is much easier to pinpoint in those scenarios whether multiple trials arise from the same set of facts. Some aid does come, however, from the cases that discuss § 110 of the Crimes Code, sometimes referred to as the Compulsory Joinder Rule. 18 Pa.C.S.A. § 110.
“Prosecution ... for a violation of a different provision of the statutes than a former prosecution ... is barred by such former prosecution [where] the subsequent prosecution is for ... the same conduct, unless ... the second offense was not consummated when the former trial began.” Id. This section addresses barring a subsequent different offense, but often the issue of a common fact basis is considered. “In determining whether incidents are part of a single criminal episode so as to bar their separate prosecutions, three factors must be considered: (1) the temporal sequence of events; (2) the logical relationship between the acts; and (3) whether they share common issues of law and fact.” Commonwealth v. Butler, 380 Pa. [Super.] 595, 599, 552 A.2d 702, 704 (1988).
Defendant’s] residence in his mother’s home has been continuous. He chose to remain there in violation of a condition of his probation. The two prosecutions share almost identical issues of law and fact, depending on how one views the similarity between a proof of notice by personal communication and general notice. However, at the time of the first trial, the Commonwealth was limited to prosecuting the crime up until the date of the Complaint. The second offense could be viewed as a separate criminal act, based on its own facts, simply because it had not yet consummated when the first trial began. The Compulsory Joinder rule will not bar subsequent offenses that had not yet come into being as of the first trial.

Defendant has also argued that the second trial violates the principles of collateral estoppel, which provides that “[w]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit” Commonwealth v. Cromwell, 329 Pa.Super. 329, 333, 478 A.2d 813, 815 (1984), quoting, Commonwealth v. Brown, 503 Pa. 514, 518, 469 A.2d 1371, 1373 (1983). The Commonwealth cites Cromwell for the proposition that the rule only applies when the first trial resulted in an acquittal. A more correct statement of the law would be that collateral estoppel arises when an ultimate fact has been necessarily established in favor of the defendant, thus prohibiting relitigation of that ultimate fact in a later proceeding against him. Commonwealth v. Wharton, 406 Pa.Super. 430, 432, 594 A.2d 696 (1991); Matter of Huff, 399 Pa.Super. 574, 578 n. 5, 582 A.2d 1093, 1095 n. 5 (1990). In the present case Defendant has not cited a particular issue that was resolved in his favor at the first trial that could not be relitigated in the subsequent one.

Because of this insightful analysis of the trial court, it is unnecessary for this Court to discuss further appellant’s alleged violations of double jeopardy and collateral estoppel.

Finally, in a concise statement of reasons relied upon for allowance of appeal from the discretionary aspects of sentencing, pursuant to Pa.R.A.P. 2119(f), appellant asserts that the trial court abused its discretion by (1) imposing an excessive sentence in light of the nature of the crime and his prior record; (2) ordering as a condition of parole that he seek a mental health evaluation, when this would hamper his ability to keep his pilot’s license; and (3) requiring him to pay court costs and the costs of supervision when he was not financially able to do so. In addressing these claims, we must first determine whether appellant has raised a substantial question as to whether his sentence was appropriate under the Sentencing Code. See: Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Although the existence of a substantial question must be determined on a case by case basis, the Superior Court will generally review the discretionary aspects of sentencing where a colorable argument is made that the actions of the sentencing court were either inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process. See: Commonwealth v. John, 408 Pa.Super. 234, 245, 596 A.2d 834, 839 (1991).

Here, we conclude that no substantial question has been raised. Appellant has failed to identify any specific provision of the Sentencing Code which was ignored by the sentencing court, and he has made no showing that the sentence which he received was contrary to the fundamental norms of the sentencing process. Rather, he has raised the type of challenge which simply asks the reviewing court to substitute its judgment for that of the sentencing court. This type of claim “does not present a substantial question that the sentence imposed was inappropriate under the Sentencing Code as a whole.” Commonwealth v. Rogers, 386 Pa.Super. 476, 481, 563 A.2d 165, 168 (1989); Commonwealth v. Billett, 370 Pa.Super. 125, 131, 535 A.2d 1182, 1185 (1988). Accordingly, we decline to conduct further review of the discretionary aspects of appellant’s sentence.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3503(b)(l)(i).

      . Groft was given credit for time served and immediately placed on parole upon the conditions that he obtain a mental health evaluation and maintain a separate residence.

      . Appellant filed a direct appeal in the Superior Court from the prior judgment of sentence, but, on September 17, 1991, the Court affirmed his conviction by an unpublished memorandum. On April 4, 1992, the Supreme Court denied appellant’s petition for allowance of appeal.


author: TAMILIA, Judge:

text:
    623 A.2d 347
    COMMONWEALTH of Pennsylvania v. Steven Victor DUNN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 8, 1993.
    Filed April 14, 1993.

      Albert J. Flora, Jr., Wilkes-Barre, for appellant.
    Peter P. Olszewski, Jr., Dist. Atty., Wilkes-Barre, for Com., appellee.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

Steven Dunn appeals from the September 3, 1992 life sentence imposed after he was found guilty, nonjury, of the first degree murder of 16-month old Bryan Erik Huntzinger. Appellant, who admits he brutally beat the victim and dragged him down the steps allowing his head to bounce from one step to the other, argues his right to a jury trial was not knowingly and intelligently waived because it was influenced by the Commonwealth’s determination to seek the death penalty. He also argues the evidence was insufficient to establish the specific intent needed to support a conviction of first degree murder.

A criminal defendant is entitled to waive his right to a jury trial and elect to be tried by a judge without a jury. Pa.R.Crim.P. 1101. In order for a waiver to be valid it must be an “intentional relinquishment or abandonment of a known right or privilege, and the accused must be aware of the ‘essential protections inherent in a jury trial as well as the consequences attendant upon a relinquishment of those safeguards.’ ” Commonwealth v. Hayes, 408 Pa.Super. 314, 317, 596 A.2d 874, 876 (1991), quoting Commonwealth v. Quarles, 310 Pa.Super. 74, 79, 456 A.2d 188, 191 (1983). All necessary requirements for a knowing and intelligent waiver of a jury trial are present if the trial court conducts an on-the-record colloquy, including the essential elements of a trial, and the defendant has signed a written waiver. Commonwealth v. Miguel, 409 Pa.Super. 429, 598 A.2d 71 (1991), alloc. den., 529 Pa. 668, 605 A.2d 333 (1992). The essential ingredients of a jury trial of which a defendant must be advised he is waiving include: the jury will be chosen from members of the community, the verdict must be unanimous and the accused will participate in the jury panel selection. Hayes, supra.

Our thorough review of the record indicates appellant was aware of the rights he had waived. Appellant’s signed, written waiver, which included a thorough explanation of rights he was waiving and the attendant consequences, was witnessed by his counsel and filed on June 4, 1991. The court also conducted a thorough colloquy to assure appellant was aware of and understood his rights (N.T., 6/3/91, pp. 62-66, 82-100). At the colloquy appellant testified he read, understood and signed the written waiver and further verbally averred in open court he was freely waiving his right to a trial by jury, upon the advice and consent of counsel (Id., pp. 62-63, 81-82). Nevertheless, appellant now argues his waiver was coerced by an allegedly erroneous pretrial ruling.

Prior to the waiver of his right to a jury trial, the defendant contested, to no avail, the Commonwealth’s determination to proceed with this case as a capital case based on the aggravating circumstance the victim was under twelve years of age, 42 Pa.C.S. § 9711(d)(16).

42 Pa.C.S. § 9711 Sentencing procedure for murder of the first degree
(d) Aggravating circumstances. — Aggravating circumstances shall be limited to the following:
(16) The victim was a child under 12 years of age.

As amended 1986, July 7, P.L. 400, No. 87, § 1, effective in 60 days; 1989, Dec. 22, P.L. 727, No. 99, § 2, imd. effective. (Emphasis added.) Appellant had argued this amendment to the Sentencing Code was not enacted at the time of the incident or, in the alternative, if it was so enacted, “notice to the citizenry of the Commonwealth of the passage of this amendment was not given until its publication in the Pennsylvania Bulletin on January 13, 1990,” the day of Bryan’s death. (Appellant’s brief, pp. 9-10.) Appellant argues because he feared the wrath of an enraged jury he chose a nonjury trial. Appellant contends had the trial court made a proper pretrial determination the aggravating circumstance was inapplicable, he would not have waived his right to trial by jury (Id., p. 8).

Section 9711(d)(16) of the Sentencing Code was signed into law on December 22, 1989, twenty-two (22) days before young Bryan’s January 13, 1990 murder, and lists as an aggravating factor to be considered at the time of sentencing, “the victim was a child under 12 years of age.” Id. The court did not, as appellant avers, make a pretrial determination as to the capital or noncapital nature of the murder prosecution but, after entertaining argument on statutory construction, found section 9711(d)(16) of the Sentencing Code was effective immediately upon its December 22, 1989 signing and therefore applicable to 16-month old Bryan’s January 11, 1990 fatal beating (N.T., 4/19/91, p. 65). Moreover, the appellant received proper notice the Commonwealth intended to seek the death penalty in accordance with Pa.R.Crim.P. 352, Notice of aggravating circumstances. We find there has been no abuse of discretion or error of law committed. In fact, appellant achieved precisely that for which he bargained, the avoidance of the death penalty.

Next, appellant argues at the time he inflicted multiple blunt force trauma upon the victim he was unable to formulate a specific intent to kill due to his intoxication from drugs. In support of this averment appellant relies on the allegedly unrebutted testimony of his expert witness, a psychopharmacologist.

When reviewing a sufficiency of the evidence claim an appellate court must view all evidence in a light most favorable to the Commonwealth, as verdict winner, to see whether there is sufficient evidence to enable a fact-finder to find every element of the crime charged beyond a reasonable doubt. Commonwealth v. McNair, 529 Pa. 368, 603 A.2d 1014 (1992). It is exclusively within the province of the fact-finder to believe none, some or all of the evidence presented. Commonwealth v. Henry, 524 Pa. 135, 155, 569 A.2d 929, 939 (1990); Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984). A trial judge’s decision as to credibility of the witnesses presented and the weight of their testimony will not be reversed absent a clear abuse of discretion or error of law. Commonwealth v. Melvin, 392 Pa.Super. 224, 572 A.2d 773 (1990).

As evidenced by the Honorable Joseph M. Augello’s definitive and comprehensive 86-page Opinion, the finder of fact carefully reviewed and considered all evidence before arriving at the first degree murder conviction. We have found no basis upon which to challenge the trial court’s findings. We find the judge did not abuse his discretion or commit an error of law by finding appellant had formulated the specific intent necessary to be found guilty of first degree murder.

Having found appellant’s arguments devoid of merit, we affirm the judgment of life sentence imposed September 3, 1992.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 2502(a).

      . Although Bryan did not die until January 13, 1990, he was attacked on the evening of January 10-11, 1990.


text:
    623 A.2d 350
    COMMONWEALTH of Pennsylvania v. Harold K. HACKMAN, Appellant.
    Superior Court of Pennsylvania.'
    Submitted Jan. 19, 1993.
    Filed April 15, 1993.

      Vincent J. Quinn, Chief Public Defender, Lancaster, for appellant.
    Joseph C. Madenspacher, Asst. Dist. Atty., Lancaster, for Com., appellee.
    Before CAVANAUGH, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the order of the revocation court dated July 31, 1992. For the reasons that follow, we vacate that portion of the order which imposed, as a condition of appellant’s parole, a payment schedule for fines and costs in the amount of twenty-five dollars per week, and remand for an evidentiary hearing and findings of fact regarding appellant’s ability to meet this financial obligation.

The revocation court summarized the history of this case as follows:

On January 5, 1990, the Defendant was sentenced for driving under the influence, operating a motor vehicle under suspension^] and another vehicle code violation, and he received a sentence of 48 hours to 23 months for the DUI, fines totalling $725.00 for all offenses and costs. His parole expired on December 5, 1991, and, on December 6, 1991, a Notice of Parole Violation, alleging the Defendant’s failure to make any payments and an outstanding balance of $1167.50 on his fines and costs, was issued by the Lancaster County Bureau of Collections. On that same date, the Notice was approved by the Court, and it was entered and filed by the Lancaster County Clerk of Courts on December 10, 1991. On January 17, 1992, the Defendant was sent a summons, advising him that a Notice of Parole Violation had been approved and that he was to appear for a hearing on February 7, 1992. When he failed to appear, a bench warrant for his apprehension was directed, and it was issued on February 25, 1992. He was committed on March 20, 1992, and a hearing was held on April 27, 1992.
At that hearing, we found that the Defendant had violated his parole for failing to pay his fines and costs, and we revoked it. We deferred sentencing him, at his request, because he was incarcerated on other matters as well at that time. As soon as these other matters were adjudicated, his hearing was reconvened, on July 31, 1992, and he moved to dismiss the Notice of Parole Violation on the ground that there’ was no legal basis for it, since it was not issued until one day after his parole had expired. This Motion was denied, and we sentenced him to the unexpired balance of his term and made him eligible for parole immediately. He was directed to pay $25.00 per week on his fines and costs.

Trial Court Opinion dated 10/16/92 at 1-3.

Appellant appeals the revocation of his parole and raises the following issues for our review:

A. Whether the court erred in revoking the defendant’s parole when the record is insufficient to justify a conclusion that the defendant had the financial ability to pay his fines and costs?
B. Whether the court erred in revoking the defendant’s parole when the capias charging the violation of parole was not issued until after the term of his original sentence had expired.

We will address these issues in order.

Appellant first argues that the revocation court improperly imposed a new payment schedule for fines and costs without a prior determination as to whether appellant was indigent. In its opinion, the revocation court agreed with appellant and concluded that remand for an evidentiary hearing and findings of fact on this matter would be proper. Although generally, appellant’s claim could be considered waived for failure to raise it in a motion to modify his sentence, the revocation court addressed appellant’s claim. Moreover, we may consider a waived claim lest it return to the court in the form of an ineffective assistance of counsel claim. Commonwealth v. Byrd, 409 Pa.Super. 611, 613-16, 598 A.2d 1011, 1012-14 (1991).

After reviewing the parties briefs and record on appeal, we agree with the conclusion reached by the revocation court in its order dated July 31, 1992. Specifically, we agree that the revocation court improperly directed appellant to pay twenty-five dollars per week in fines and costs without a prior evidentiary hearing and a finding of fact regarding appellant’s ability to pay. Therefore, we vacate only that portion of the July 31, 1992 order which imposes the payment of fines and costs.

Next, appellant contends that the revocation court improperly revoked appellant’s parole when the parole violation was not issued until after appellant’s parole had expired. Appellant contends that this court should “strictly construe [appellant’s] period of parole and hold that where the Commonwealth is aware of an alleged parole violation for an extended period of time and takes no action, that a Violation Notice filed after the expiration of the parole period is untimely and should be dismissed. In the instant case, notice of the violation was filed just five days after appellant’s parole had expired. The revocation court, citing our holding in Commonwealth v. Dorsey, 328 Pa.Super. 241, 476 A.2d 1308 (1984), held that the action was not time-barred. We agree.

In Dorsey, the revocation court sentenced defendant to a term of imprisonment, and ordered defendant to pay a fine, costs, and restitution. Defendant was subsequently paroled. As a specific condition of his parole, the defendant was ordered to pay his fine, costs and restitution in the amount of fifteen dollars per month. When defendant failed to satisfy this financial obligation, the revocation court signed a notice of parole violation just five days prior to the expiration of defendant’s parole. However, this notice was not filed for almost sixty-days. On appeal, the defendant argued that the notice was invalid because it was filed after the expiration of his parole period. We disagreed holding that notice of an alleged parole violation need not be issued prior to the expiration of the parole period so long as the Commonwealth complied with all of the required provisions regarding notice of the charges and the subsequent parole revocation hearing. Id. at 245, 476 A.2d at 1310.

The facts in Dorsey are substantially similar to those in the present case. Both the defendant in Dorsey and the appellant herein, failed to meet the financial obligation imposed as a condition to their parole. In both Dorsey and the instant case, the notice was not issued until the end of the parole period. In both cases, the Commonwealth did not file a notice of parole violation until after expiration of the parole period, but complied with the required provisions regarding notice of the charges and the subsequent parole revocation hearing. Moreover, in Dorsey we determined that the delay caused the defendant no prejudice. Likewise, in the instant case, appellant does not argue, and we do not find, that appellant would be prejudiced by the delay. The only noteworthy distinction between the two cases is that in Dorsey the notice of parole violation was filed sixty days after the defendant’s parole had expired, whereas in the instant case, the notice was filed only five days after appellant’s parole had expired. Based on the foregoing, we conclude that our holding in Dorsey is applicable to the instant case. Accordingly, we hold that the issuance of the notice of appellant’s parole violation was proper.

Order vacated. The case remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.


author: DEL SOLE, Judge:

text:
    623 A.2d 355
    COMMONWEALTH of Pennsylvania v. Dennis D. LEWIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1992.
    Filed April 16, 1993.

      James F. Donohue, Butler, for appellant.
    Before ROWLEY, President Judge, and DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

This is an appeal from a judgment of sentence for retail theft. We find that the trial court erred in admitting certain testimony, and that such error was not harmless; therefore, we reverse and remand for a new trial.

At trial, the testimony of Officer Timothy Barclay established that Appellant, Dennis D. Lewis, was shopping at the Town Mall in New Castle, Pennsylvania on December 2, 1989, with Donald Lohnes, a co-worker. The two men entered the mall through an entrance to a Sears store, and stopped in the Sears electronics section. Appellant picked up several radio “walkmans” from the display case, and after examining them, returned them to the display case. Appellant then knelt, picked up another “walkman,” and handed it to Lohnes, who was standing in close proximity to him. Lohnes placed the “walkman” in his jacket, as Appellant glanced around the store. Appellant then proceeded to leave Sears and enter the mall, with Lohnes following him. Neither of the two made any attempt to pay for the merchandise before exiting Sears. As they entered the mall, Appellant and Lohnes were apprehended by Stephen Fee, a store security guard, who escorted them to Sears. Fee then contacted the local police, and Officer Timothy Barclay arrived and placed the two men under arrest. The actions of Appellant and Lohnes while they were in the electronics department had been recorded by a video camera in the Sears store. Officer Barclay had the opportunity to view the tape, which was subsequently stored in the basement of the Sears store.

The testimony of Officer Barclay was introduced at Appellant’s jury trial over defense counsel’s objections. Barclay testified regarding what he observed on the tape, although he had not had the opportunity to observe Appellant’s actions contemporaneously with the crime. Prior to Barclay’s testimony, security guard Stephen Fee had testified regarding his personal observations of Appellant and Lohnes and their respective actions in the store, which led to his apprehending them in the mall. Appellant was convicted of retail theft, and following the denial of his post-verdict motions, was sentenced to two to four years imprisonment. This appeal followed.

Appellant raises three issues for review:
1) Whether Officer Barclay’s testimony concerning Appellant’s actions is hearsay evidence; and if so, whether the admission of such evidence constitutes prejudicial error which would warrant a new trial?
2) Whether the Best Evidence Rule applies to the contents of the video tape; and if so, whether the admission of Barclay’s testimony violated the Rule?
3) Whether the evidence is sufficient to support Appellant’s conviction of retail theft?

Hearsay evidence is defined as in-court evidence of an out-of-court declaration, whether oral or written, which is offered to show the truth of the out-of-court assertion. Kemp v. Qualls, 326 Pa.Super. 319, 473 A.2d 1369 (1984). In the instant case, the alleged “declaration” is the conduct of Appellant as recorded on the video tape. Since Appellant’s actions do not fall within the. category of assertive conduct, i.e., conduct which is intended to convey a message, neither the hearsay rule or the hearsay exception of the admission of a party-opponent is applicable. Instead, the facts in the instant case warrant an analysis under the best evidence rule.

The best evidence rule, followed in Pennsylvania, is expressed in Warren v. Mosites Construction Company, 253 Pa.Super. 395, 385 A.2d 397 (1978):

The “best evidence” rule limits the method of proving the terifts of a writing to the presentation of the original writing, where the terms of the instrument are material to the issue at hand, unless the original is shown to be unavailable through no fault of the proponent. McCormick, Evidence 560 (2d ed. 1972). The Pennsylvania courts use the “best evidence” rule when the contents of documentary evidence are at issue. Ledford v. Pittsburgh & Lake Erie R.R. Co., 236 Pa.Super. 65, 345 A.2d 218 (1975) ... The best evidence rule is controlling only if the terms of a writing must be proved to make a case or provide a defense. McCormick, supra. Furthermore, where the testimony does not divulge the contents of the instrument, the best evidence rule does not apply. 2 Jones, Evidence § 7:5 (6th ed. 1972).

In the instant case, the issue is not simply whether the contents of a writing are in issue and would thus implicate the best evidence rule, but whether the same principles which warrant the application of the best evidence rule to documentary evidence are present in the instant case, which involves a videotape. Although the Federal Rules of Evidence apply the rule to writings, recordings and photographs, See F.R.E. 1002, Pennsylvania courts have been reluctant to extend the rule to provide similar application.

Although repeatedly declining to apply the best evidence rule to cases involving sound recordings, Pennsylvania courts have never expressly limited the application of the rule to documentary evidence alone. Furthermore, we find no case in which the term “writing” is specifically defined within the meaning of the best evidence rule. In Commonwealth v. Farrar, 271 Pa.Super. 434, 413 A.2d 1094 (1979), this court, faced with an issue involving the best evidence rule, stated, “The ‘best evidence rule’ applies only to the proof of writings. (What is meant by a ‘writing’ is a question not at issue here.)” Id. at 445-46, 413 A.2d at 1100.

Durkin v. Equine Clinics, Inc., 313 Pa.Super. 75, 459 A.2d 417 (1983), involved the application of the best evidence rule to a sound recording. In that case, the appellants argued that the trial court erred in refusing to permit a recorded interview to be played for the jury. Instead, the trial court had admitted a written transcript of the recording into evidence. The appellants argued that the introduction of the written transcript, rather than of the sound recording itself, violated the best evidence rule. We stated:

Even if we were to consider the tape recording to be a “writing,” the Best Evidence Rule would not apply in this case. The Best Evidence Rule is only applicable to the proof of the contents of the documents when the contents of those documents are material to, rather than mere evidence of, the issues at bar ... In this case, the contents of the interview were merely collateral to the issue of appellees’ negligence. Proof of its content was not necessary in order to make a case or provide a defense.

Id. at 79, 459 A.2d at 419.

Commonwealth v. Schauffler; 397 Pa.Super. 310, 580 A.2d 314 (1990) also concerned the application of the best evidence rule to a sound recording. The appellant in Schauffler argued that his trial counsel had been ineffective for not attempting to keep the trial court from hearing a taped conversation between the appellant and a police officer to whom he had offered a bribe. The Commonwealth did not prove the conversation by a transcript of the recorded conversation, but by introduction of the recorded conversation itself. Citing Durkin, we held that the tape recording was not excludable under the best evidence rule.

Anderson v. Commonwealth, 121 Pa.Cmwlth. 521, 550 A.2d 1049 (1988) is the only case involving the application of the best evidence rule to a videotape. In Anderson, the owner of a bookstore appealed the trial court’s finding that he had violated a township pornography ordinance. At trial, the township elicited the testimony of the Township Zoning Officer and an interested citizen concerning the allegedly pornographic contents of reading material and videotapes which were available at the bookstore. The township did not produce any of the material alleged to be pornographic. On appeal, the Commonwealth Court held that without the production of the alleged pornographic material, it was an error of law for the trial court to admit the testimony of the two witnesses. The court stated:

Clearly, the best evidence concerning the alleged pornographic material was the material itself ... Since the witnesses did not actually read the written material or view the film in its entirety the best evidence rule precludes their testimony to establish the contents.

Id. at 523, 550 A.2d at 1050.

The rationale for the best evidence rule was discussed in Hamill-Quinlan, Inc. v. Fisher, 404 Pa.Super. 482, 591 A.2d 309 (1991):

The rationale for the rule is readily apparent: in light of the added importance that the fact-finder may attach to the written word, it is better to have available the exact words of a writing, to prevent ‘the mistransmitting [of] critical facts which accompanies the use of written copies or recollection,’ and to prevent fraud. See L. Packel & A. Poulin, Pennsylvania Evidence, § 1001 at 694 (1987 & Suppl.1990), (quoting McCormick, Evidence, § 231 (3d ed. 1984)).

Hamill-Quinlan, Inc. at 489, 591 A.2d at 313.

We find that the facts in the instant case present the same type of circumstances which the best evidence rule was designed to guard against: a witness is attempting to testify regarding the contents of a videotape when the tape itself has not been admitted into evidence. The need to secure the original evidence itself, in order to insure that the contents of the evidence be given the proper weight, is apparent in this case. Thus, the best evidence rule should apply, in order to prevent any mistransmission of the facts surrounding Appellant’s acts in the Sears store which might mislead the jury.

Furthermore, the contents of the tape i.e., Appellant’s alleged act of retail theft, were very much at issue in the present case, since Appellant had been charged with retail theft. The interpretation of exactly what occurred between Appellant and his companion in the Sears store was crucial to a determination of whether Appellant had intended to remove the radio from the store without paying for it, and whether he had in fact known what his companion was doing when Lohnes exited the store with the radio in his jacket. Therefore, because Officer Barclay attempted to testify regarding the contents of the videotape, the best evidence rule bars the admission of his testimony. Unlike the witnesses in Anderson, Officer Barclay had viewed the tape; nevertheless, he did riot have first-hand knowledge of Appellant’s alleged act of theft; rather, whatever knowledge he possessed was gained from his viewing of the videotape. Thus, the original tape should have been produced. Security guard Stephen Fee testified at trial that he was unable to locate the videotape of Appellant’s actions, as such tapes were stored in the basement of the Sears store, and the system whereby they are classified for storage is imprecise. Because this explanation concerning the unavailability of the tape was unsatisfactory, application of the rule to the instant case renders the testimony of Officer Barclay inadmissible as secondary evidence. Therefore, the trial court erred in admitting Barclay’s testimony.

Furthermore, the admission of Officer Barclay’s testimony concerning the content of the video tape does not constitute harmless error. The general harmless error standard is set forth in Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982):

Under the test adopted by this court, evidence improperly admitted can be treated as harmless on any one of three grounds, namely, that the evidence of guilt, without regard to the tainted evidence, is so overwhelming that conviction would have followed beyond a reasonable doubt without regard to it, that the tainted evidence is merely cumulative of other proper persuasive evidence on the issue for which it is offered, or that it is so slight or tangential in its effect that its influence on the jury can be determined to have been de minimis.

Id. at 317, 446 A.2d at 250.

In the instant case, we find none of these grounds to be present. After careful examination of the record, we have determined that the properly admitted testimony of security guard Stephen Fee does not demonstrate that Appellant knew that his companion Lohnes placed the radio in his (Lohnes’) coat. Therefore, without Officer Barclay’s testimony, the remaining evidence is not so overwhelming to have resulted in a conviction absent Barclay’s testimony. Nor is Barclay’s testimony of a cumulative nature in regard to the other admissible evidence; rather, it is contradictory to Fee’s testimony, since Barclay’s testimony permits the inference that Appellant knew what his companion was doing. Finally, Barclay’s testimony does not concern a tangential matter, but instead involves a central issue, namely, the requisite mental state for the crime charged. Therefore, it cannot be said that the improper admission of Officer Barclay’s testimony was harmless. We reverse the trial court’s judgment of sentence and remand for a new trial.

Appellant’s final claim concerns the sufficiency of the evidence. In determining the sufficiency of evidence, the reviewing court considers the evidence actually received, whether the trial court rulings thereon were correct or not. Reichman v. Wallach, 306 Pa.Super. 177, 452 A.2d 501 (1982). The evidence received in the instant case includes the testimony of Officer Barclay, which, when viewed in the light most favorable to the Commonwealth as the verdict winner, would enable the trier of fact to find every element of retail theft proven beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989). Therefore, although Officer Barclay’s testimony was erroneously admitted, when we consider it as part of all of the evidence which was received at trial, Appellant’s claim regarding the sufficiency of the evidence fails. However, as we have discussed above, a new trial is warranted on the basis that the testimony of Officer Barclay was erroneously admitted, and such admission was not harmless.

Judgment reversed and case remanded for new trial. Jurisdiction relinquished.


author: JOHNSON, Judge.

text:
    623 A.2d 360
    COMMONWEALTH of Pennsylvania v. George Stephen STIPETICH, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1993.
    Filed April 19, 1993.

      Ellen M. Viakley, Pittsburgh, for appellant.
    Edward M. Clark, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge, and JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge.

George Stephen Stipetich appeals from an order which directed defense counsel to retain and preserve certain videotapes as evidence and which allowed the Commonwealth to retain originals or copies of those videotapes under seal. The order which triggered the appeal was entered two days following the entry of an order directing the District Attorney’s Office to deliver to defense counsel all items which had been earlier seized pursuant to a search warrant at Stipetich’s residence. We are asked to construe Pennsylvania Rule of Criminal Procedure 324 which provides for the return of seized property upon motion. We are unable to find an exception, as urged by the Commonwealth, where it is alleged that the property may represent potential evidence in future, separate criminal and civil proceedings. Accordingly, we reverse.

On August 7, 1991, a criminal complaint was signed against Stipetich, charging him with rape, involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, indecent exposure, corruption of minors, and criminal conspiracy. The same day, a search warrant was issued on application of two detectives employed by the Allegheny County Police. The search warrant was executed at the Stipetich residence on August 12, 1991, and resulted in the seizure of more than one hundred videotapes and other items as shown on the receipt/inventory. Among the items seized were the five videotapes which form the subject of this appeal.

According to the Brief for Appellant, and not disputed by the Commonwealth, four of the videotapes were homemade recordings depicting adult consensual sexual activity engaged in by Stipetich and his wife in the privacy of their bedroom. On two of those tapes a third party, an adult woman, is present and/or engaged in consensual sexual activity. The fifth videotape is a commercial recording of an adult movie entitled “The Story of 0”. Brief for Appellant, pp. 4-5.

Stipetich was the subject of charges made by a teenager who resided with her parents in Mt. Lebanon Township. The teenager had reported to authorities that her parents had regularly taken her to Stipetich’s home for the purpose of sexual abuse. Criminal charges were lodged against the parents and Stipetich. The alleged victim was examined by an independent psychiatrist selected by the Commonwealth, by a psychiatrist employed by the head of a local child sexual abuse program, and a third psychiatrist selected by the defense.

On April 21, 1992, at the conclusion of an evidentiary hearing wherein the testimony of one of the three psychiatrists was received, the Honorable Robert E. Dauer granted the Commonwealth’s application for nolle pros. All of the charges against Stipetich at CC9115656 were dismissed with prejudice. Excerpt of Trial Transcript, April 21, 1992, page 32.

The same day, the following Order of Court was entered by Judge Dauer:

ORDER OF COURT
AND NOW, to-wit, this 21st day of April, 1992, the Office of the District Attorney, the Allegheny County Police and any other persons or agencies on behalf of the District Attorney’s Office shall forthwith deliver to William F. Manifesto, Esquire, counsel for George S. Stipetich, any and all items seized from 1650 Hollow Tree Road, Pittsburgh, Pennsylvania 15241, on or about August 12, 1991, which shall include any an all copies made of the seized items.
Further, any videotapes seized and which were made part of exhibits pursuant to motions filed with the Clerk of Courts by the Commonwealth shall be immediately delivered to counsel for the defendant.
BY THE COURT:
s/ Robert E. Dauer, J.

The order provided for the return of all items seized from the Stipetich home, including all copies made of the seized items.

Two days later, the Commonwealth returned to court with a Motion to Modify Order for Return of Seized Property. The Motion averred that on April 21, 1992, the Commonwealth had appeared ex parte before the court and requested modification of the order returning property to Stipetich, to the extent that counsel for Stipetich be required to retain and preserve certain videotapes. The Motion went on to aver that the court had granted the ex parte motion in open court and the Commonwealth was seeking a written order to that effect.

The Trial Transcript for April 23, 1992, does not contain any testimony by any witnesses. There is no evidence in the record of that proceeding to support the averments in the Commonwealth’s Motion to Modify Order for Return of Seized Property.

We have been unable to unearth any executed copy of the order of April 23, 1992, from which this appeal is sought to be taken. The record certified to this court includes both an original and a copy of the Motion to Modify Order for Return of Seized Property, both under seal but neither one docketed. Each of the motions has attached to it an unsigned Order of Court in the following form:

ORDER OF COURT
AND NOW, to-wit, this 22nd day of April, 1992, William F. Manifesto, Esquire, counsel for defendant George S. Stipetich, shall retain and preserve certain videotapes, that is Commonwealth Exhibits 4, 5, 6, 7 and 8 submitted as part of the Commonwealth Motion in Limine, and that the Commonwealth be allowed to retain originals or copies of those exhibits under seal.
BY THE COURT:
-, J-

In its brief, the Commonwealth concedes that the lower court “orally granted the motion to modify.” The Trial Transcript included in the certified record contains the following, at the end thereof:

THE COURT: I am not going to tell the District Attorney how to run their office. They can make copies of these things, give the originals back and put them under seal. Keep them in your safe. The originals will be returned.
(Whereupon the proceedings were concluded.)

Trial Transcript, April 23, 1992, p. 5. In his Brief for Appellant, Stipetich sets out the Order in Question, at page 2, with the order bearing a date of April 23,1992, and asserts that the order was “filed under seal.” The parties are agreed that an order was entered. The distinguished trial judge in his Opinion filed pursuant to Pa.R.A.P.1925 on July 10, 1992, asserts that he entered an order on April 23, 1992 “granting the Commonwealth permission to retain copies of certain tapes, the originals of which the court ordered be returned to [Stipetich].” Under these circumstances, we will presume that the order has, in fact, been executed and filed under seal.

On a motion for return of property, the moving party has the burden of proving ownership or lawful possession of the items. Commonwealth v. Pomerantz, 393 Pa.Super. 186, 573 A.2d 1149 (1989). The burden then shifts to the Commonwealth to prove, by a preponderance of the evidence, that the property is contraband. Id. Rule 324 was interpreted at length by this court in Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985). Maglisco reaffirmed the principle that where criminal charges have been dismissed, seized property may be retained by the Commonwealth only if it comprises contraband per se or derivative contraband.

Contraband per se is property whose possession is unlawful; derivative contraband is property which is innocent in itself but which has been used in the perpetration of an unlawful act. One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); Commonwealth v. Fassnacht, 246 Pa.Super. 42, 369 A.2d 800 (1977), cert. denied 439 U.S. 911, 99 S.Ct. 280, 58 L.Ed.2d 257. Property is not derivative contraband, however, merely because it is owned or used by someone who has been engaged in criminal conduct. Commonwealth v. One 1985 Dark Blue Mercedes, 391 Pa.Super. 507, 571 A.2d 482 (1990), alloc. denied 526 Pa. 654, 586 A.2d 922 (1990). Rather, the Commonwealth must establish a specific nexus between the property and the alleged criminal activity. Id.; Petition of Maglisco, supra (although actual gun used in crime is derivative contraband, rifles not used in commission of crime must be returned).

In the case now before us, the Commonwealth conceded Stipetich’s entitlement to lawful possession of the property. The initial order filed April 21, 1992, and directing return of the property was entered with the concurrence of the prosecutor. Since the videotapes (1) depicted Stipetich, (2) were made by him and (3) were seized from his home, his burden of proving ownership would not have been difficult. The burden was on the Commonwealth, therefore, to prove that the videotapes were contraband.

In its Motion to Modify Order for Return of Seized Property, the only averments material to the issue now before us are contained in the last three paragraphs of that motion:

3. On April 21, 1991, the Commonwealth appeared before this Honorable Court and requested that the court modify the order returning defendant’s property to the following extent: that counsel for defendant, William F. Manifesto, Esquire, retain and preserve certain videotapes, that is Commonwealth Exhibits 4, 5, 6, 7 and 8 filed in conjunction with the Commonwealth’s Motion in Limine;
4. This Honorable Court granted said motion in open court and the Commonwealth presently seeks a written order to that effect.
5. Further, that the Commonwealth be allowed to retain and preserve the originals or copies of the above listed exhibits under seal.

Nowhere in the Motion presented to Judge Dauer does the Commonwealth aver that the videotapes were contraband. In reviewing the hearing on the motion, we find the following unsworn statement by the assistant district attorney, in response to defense counsel’s assertion that the videotapes did not depict any illegal conduct and were not inherently illegal:

MS. CAPRISTO [A.D.A.]: Your Honor, there is one tape that does depict something that could certainly represent criminal activity, which may or may not become relevant, depending on the outcome of the appeal pending before Superior Court, involving the drug charges against Mr. Stipetich. In addition to that, Your Honor—
THE COURT: Why do you want the other tape?
MS. CAPRISTO: Since defense counsel in this case has made numerous statements that they intend to sue everyone involved in this case, these tapes were an integral part of the theory of our prosecution, and to deprive us of the ability to maintain copies of them, would deprive us of the ability to defend ourselves in the event we become unwilling litigants in these pursuits.

Trial Transcript, April 23, 1992, p. 3 (emphasis added).

In its Brief to this court, the Commonwealth argues that a “liberal construction” of Rule 324 “supports the provisional limitations on appellant’s right to exclusive possession of the videotapes.” The Commonwealth goes on to argue, in its Brief, that:

The videotapes represent potential evidence in future criminal and civil proceedings, and the Commonwealth’s request temporarily to retain duplicates for those contingencies was a compelling interest which outweighs appellant’s immediate, exclusive possessory interests. The lower court’s order was a measured, flexible response to a set of factual variables which Rule 324 does not specifically contemplate; that exercise of discretion should be accorded great deference by this Court.

Brief for Appellee, filed October 16, 1992, Summary of the Argument, p. 4.

The Commonwealth essentially is arguing that since there is a possibility that it, or its agents, máy become “unwilling litigants” in some future civil litigation, it should have the right to hold on to Stipetich’s property even after it asked the trial court to dismiss the criminal charges and the court, in response to the Commonwealth’s motion, did just that. Also, the Commonwealth argues that there is another case, about which they are not specific on this record, in which the videotapes here under dispute “may or may not become relevant.”

Not surprisingly, the Commonwealth advances no authority either in statute, rule or case law for its contention that it has a right, without any showing that the property is derivative contraband, to retain copies of videotapes owned by a party against whom a criminal case has been dismissed. In Commonwealth v. Myers, 298 Pa.Super. 272, 444 A.2d 1170 (1982), we refused to affirm a trial court finding of derivative contraband where the trial court had placed no burden of proof whatsoever on the Commonwealth but, instead, inferred that money must have been derived from an illegal sale — and therefore contraband — based merely on the fact that it was in the possession of one who was also in possession of marijuana. In Myers, there was no evidence presented of any sale of marijuana or of anything else, and no attempt was made by the Commonwealth to show any specific transaction.

In the case now before us, no evidence whatsoever was presented by the Commonwealth on the record, nor did the assertions of the assistant district attorney rise to a level to even permit an inference of derivative contraband. To contend that items of property “may or may not become relevant” depending on the outcome, sometime in the future, of an unrelated appeal falls far short of a showing that any of the videotapes had been used in the perpetration of an unlawful act.

The Commonwealth argues that the videotapes at issue were not the subject of a forfeiture action, not even indirectly, and hence Stipetich’s focusing on the fact that the videotapes are not contraband “is a distraction which obscures the real issue in this case.” We reject this contention. Rule 324 is not limited to forfeiture actions. The rule is quite clear that any person aggrieved by a search and seizure may move for the return of property on the ground that that person is entitled to lawful possession. Commonwealth v. Fassnacht, supra, wherein we discussed Rule 324 and the concepts surrounding contraband, involved the defendant’s petition for return of property following a finding of not guilty. In Commonwealth v. Myers, supra, we reviewed the contraband issue where the owner had filed motions for return of the property both pretrial and post-trial. We continue to believe that whether property is contraband is a burden properly placed upon the Commonwealth in any case arising under Rule 324 where the moving party has established ownership or the right to lawful possession.

The Commonwealth has not argued that the videotapes were contraband. No proof was presented that they were used in the commission of any crime. The Commonwealth has not identified any statute authorizing their forfeiture. On the record before this court, the plain language of Rule 324 mandates return of the videotapes to Stipetich.

We will not rule on the alleged right to privacy asserted by Stipetich on behalf of himself and the other persons depicted on the four, homemade videotapes. We need not reach that issue to resolve this appeal. We have no difficulty in concluding, nonetheless, that the Commonwealth has fallen far short of establishing any justification whatsoever for retaining either the original videotapes removed from Stipetich’s home or copies made therefrom. On the record before us, Stipetich is entitled to immediate return of the videotapes.

The order entered April 23, 1992, which granted the Commonwealth permission to retain copies of certain videotapes and which directed counsel for defendant to retain and preserve certain videotapes is reversed. The order of April 21, 1992 which directed that any and all items seized from Stipetich’s home on August 12, 1991, including all copies made of the seized items, is hereby reinstated.

Order of April 23,1992, is REVERSED. Order of April 21, 1992, is hereby REINSTATED. Jurisdiction RELINQUISHED.


text:
    623 A.2d 816
    Michael DANSBY and Margery Dansby, Appellants, v. THOMAS JEFFERSON UNIVERSITY HOSPITAL, Susan Cowchock, M.D., Laird G. Jackson, M.D. and Ellis, Michaelson, McDonald & Associates, P.C., Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1992.
    Filed March 19, 1993.
    Reargument Denied May 17, 1993.

      Leslie A. Mitnick, Doylestown, for appellants.
    Glenn M. Campbell, Philadelphia, for Thomas Jefferson University Hosp., Cowchock, M.D. & Jackson, M.D., appellees.
    Denise Lamay, Plymouth Meeting, for Ellis, Michaelson, McDonald & Associates, P.C., appellees.
    Before WIEAND, FORD ELLIOTT and HOFFMAN, JJ.
   WIEAND, Judge:

In this action for the wrongful birth of a child, the trial court held that the action was barred by Pennsylvania’s wrongful birth statute, 42 Pa.C.S. § 8305(a), and sustained preliminary objections in the nature of a demurrer to the complaint. On appeal, the plaintiff husband and wife argue, as they did in the trial court, that the statutory ban on actions for wrongful birth is unconstitutional. After careful review, we affirm the order entered by the trial court.

Margery Dansby became pregnant at the age of 40. Her obstetricians, Ellis, Michaelson, McDonald & Associates, P.C., recommended amniocentesis testing to determine whether there were any fetal defects. The test was performed at Thomas Jefferson University Hospital on August 1, 1988. Susan Cowchock, M.D., was the attending physician. Laird G. Jackson, M.D., was head of the Department of Genetics.

Margery Dansby and her husband, Michael, were informed that the test showed that she was carrying a normal fetus. This test result, however, was based on amniotic fluid analyzed and reported erroneously as belonging to Mrs. Dansby. Despite the fact that blood samples taken during early and late August indicated the presence of grossly abnormal alpha fetal protein levels, her obstetricians recommended that she continue her pregnancy. On January 2, 1989, Mrs. Dansby delivered a female child who was severely retarded and who suffers from spina bifida.

She and her husband then commenced an action against her medical providers for failing to perform a proper amniocentesis test and for failing to inform her of birth defects which should have been anticipated. They imply that if they had been properly informed, the fetus would have been aborted. They seek to recover economic losses as well as emotional and psychological injuries which they allegedly sustained. The defendants filed preliminary objections in the nature of a demurrer in which they asserted that an action for wrongful birth is precluded by the provisions of 42 Pa.C.S. § 8305(a). Plaintiffs responded with allegations that the Pennsylvania wrongful birth statute is in violation of the United States and Pennsylvania Constitutions. More specifically, they alleged that the statute violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States and both Article I, section 1, and Article III, section 32, of the Pennsylvania Constitution. The trial court held that the statute did not violate constitutional safeguards and dismissed the complaint. Plaintiffs appealed.

Lawfully enacted legislation enjoys a presumption of constitutionality. All doubts relating to the constitutionality of a challenged enactment must be resolved in its favor. Edmonds v. Western Pennsylvania Hospital Radiology Associates, 414 Pa.Super. 567, 574, 607 A.2d 1083, 1087 (1992). A party raising a constitutional challenge bears the burden of rebutting the presumption of constitutionality by a “clear, palpable, and plain demonstration that the statute violates a constitutional provision.” James v. Southeastern Pennsylvania Transportation Authority, 505 Pa. 137, 142, 477 A.2d 1302, 1304 (1984). See also: Singer v. Sheppard, 464 Pa. 387, 393, 346 A.2d 897, 900 (1975).

The statutory provision challenged in this appeal, 42 Pa.C.S. § 8305(a), provides as follows:

(a) Wrongful birth. — There shall be no cause of action or award of damages on behalf of any person based on a claim that, but for an act or omission of the defendant, a person once conceived would not or should not have been born. Nothing contained in this subsection shall be construed to prohibit any cause of action or award of damages for the wrongful death of a woman, or on account of physical injury suffered by a woman or child, as a result of an attempted abortion. Nothing contained in this subsection shall be construed to provide a defense against any proceeding charging a health care practitioner with intentional misrepresentation under the act of October 5, 1978 (P.L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P.L. 457, No. 112), known as the Medical Practice Act of 1985, or any other act regulating the professional practices of health care practitioners.

Appellants first contend on appeal that the statute limits the exercise of a woman’s fundamental right to choose an abortion over childbirth and therefore violates the Equal Protection Clause of the Federal Constitution. We disagree. The doctrine of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) “protects the woman from unduly burdensome interferences with her freedom to decide whether to terminate her pregnancy.” Maher v. Roe, 432 U.S. 464, 473-474, 97 S.Ct. 2376, 2382, 53 L.Ed.2d 484, 494 (1977). In order for a state to be in violation of Roe v. Wade, supra, the state must directly affect or impose a significant burden on the woman’s right to an abortion. Legislation which does not place a government obstacle in the path of a woman who chooses to terminate her pregnancy will not be deemed unconstitutional. Harris v. McRae, 448 U.S. 297, 315, 100 S.Ct. 2671, 2687, 65 L.Ed.2d 784, 803 (1980).

. Thus, the courts have upheld government regulations which withheld public funds for nontherapeutic abortions while allowing the use of public funds to pay for the medical costs of childbirth. They have reasoned that a government decision to favor childbirth over abortion by the allocation of public funds does not violate the doctrine of Roe v. Wade, supra. See: Webster v. Reproductive Health Services, 492 U.S. 490, 508-509, 109 S.Ct. 3040, 3050, 106 L.Ed.2d 410, 429 (1989); Harris v. McRae, supra 448 U.S. at 316-318, 100 S.Ct. at 2688, 65 L.Ed.2d at 804-805; Maher v. Roe, supra 432 U.S. at 478-480, 97 S.Ct. at 2385-2386, 53 L.Ed.2d at 497-498.

For similar reasons, the Pennsylvania wrongful birth statute does not violate a woman’s constitutional rights under Roe v. Wade, supra. It does not impose a restriction upon or authorize action which impedes a woman’s right to an abortion, nor does it impose procedures which unduly burden the exercise of that right. In Edmonds v. Western Pennsylvania Hospital Radiology Associates, supra, a similar constitutional challenge was made to the statute and rejected by the Superi- or Court, which said:

[0]ur review of the clear language contained within that provision reveals that it neither regulates nor directly affects such rights. Instead, that language merely extinguishes all causes of action arising from a claim that but for the improper conduct of a medical provider, a child would have been aborted prior to birth.

Id. 414 Pa.Super. at 575-576, 607 A.2d at 1087. See: Webster v. Reproductive Health Services, supra 492 U.S. at 509, 109 S.Ct. at 3052, 106 L.Ed.2d at 430.

We conclude, therefore, that the legislative decision to preclude a cause of action for wrongful birth does not place a government obstacle in the path of a woman’s right to choose to abort a fetus which she is carrying for whatever reason. Her freedom to decide is not impaired by a statute which denies her the right to bring an action against the physician who has negligently failed to advise her correctly regarding the health of the fetus. “[Although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation.” Harris v. McRae, supra 448 U.S. at 316, 100 S.Ct. at 2688, 65 L.Ed.2d at 804.

Moreover, to succeed on an equal protection challenge, the plaintiff “must show that the allegedly offensive categorization insidiously discriminates against [a] disfavored group.” Kranson v. Valley Crest Nursing Home, 755 F.2d 46, 52 (3rd Cir.1985), quoting Price v. Cohen, 715 F.2d 87, 91 (3rd Cir.1983). When the group affected is not a suspect class and the right infringed is not deemed fundamental, the challenged statute must be sustained if it bears a rational relationship to a legitimate state interest. Id. at 52-53. See also: Edelstein v. Wilentz, 812 F.2d 128, 131-132 (3rd Cir.1987).

Pennsylvania’s wrongful birth statute is rationally designed to meet a legitimate state interest. Not only does it reflect the state’s view that a handicapped child should not be deemed better off dead and of less value than a “normal” child, but it also reflects a refusal to dictate to the medical profession how to practice in the field of obstetrics. Finally, the statute rejects causes of action which will frequently produce verdicts based on sheer speculation, with ever increasing malpractice insurance rates and a resulting loss of adequate medical care in this vital area. See: Edmonds v. Western Pennsylvania Hospital Radiology Associates, supra 414 Pa.Super. at 578, 607 A.2d at 1088-1089 (Concurring Opinion by Wieand, J.).

The legislature, by statute, has freed physicians from liability for birth defects or handicaps for which the physician was not responsible. The physician’s alleged negligence in failing to perform carefully an amniocentesis test cannot be said to be the proximate cause of the child’s handicapped life. In this case, the child’s disorders existed from the time of conception and were not the result of any negligence on the part of Mrs. Dansby’s physicians. The “refusal to create new tort liability does not constitute governmental interference with the constitutionally protected access to abortion. The right to seek an abortion is neither predicated upon the existence of a negligence cause of action, nor is it deterred by the absence of such a cause of action.” Speck v. Finegold, 497 Pa. 77, 97, 439 A.2d 110, 120-121 (1981) (Opinion by Nix, J.). Appellant’s claims under the Equal Protection Clause of the U.S. Constitution must fail.

Appellants next contend that 42 Pa.C.S. § 8305(a) is in violation of Article I, section 1, and Article III, section 32, of the Pennsylvania Constitution because of its unequal treatment of medical malpractice victims. Although we are free to interpret our Constitution in a more generous manner than the federal constitution, Fischer v. Department of Public Welfare, 509 Pa. 293, 305, 502 A.2d 114, 121 (1985), “[i]n the equal protection area ... we have chosen to be guided by the standards and analysis employed by the Supreme Court and have adopted those standards and analysis ...” in interpreting our Constitution. Commonwealth v. Parker White Metal Co., 512 Pa. 74, 83, 515 A.2d 1358, 1362 (1986). See: Fischer v. Department of Public Welfare, supra 509 Pa. at 310, 502 A.2d at 121-123; Kroger v. O’Hara Township, 481 Pa. 101, 117, 392 A.2d 266, 274 (1978).

Appellants argue that the Pennsylvania wrongful birth statute arbitrarily distinguishes between victims of pre-conception negligence and victims of post-conception negligence. However, principles of equal protection do not absolutely prohibit a state from classifying persons differently and treating the classes in different ways. James v. Southeastern Pennsylvania Transportation Authority, supra 505 Pa. at 144, 477 A.2d at 1305. Equal protection requires that uniform treatment be given similarly situated parties. If distinctions are drawn, then the challenged policy must be reasonably justified. The level of justification required will depend upon the type of classification drawn and the governmental interest in promulgating the classification, and the relationship between that interest and the classification itself. Smith v. City of Philadelphia, 512 Pa. 129, 137-138, 516 A.2d 306, 310-311 (1986). The equal protection analytical framework is as follows:

The types of classifications are: (1) classifications which implicate a “suspect” class or a fundamental right; (2) classifications implicating an “important” though not fundamental right or a “sensitive” classification; and (3) classifications which involve none of these. Id. Should the statutory classification in question fall into the first category, the statute is strictly construed in light of a “compelling” governmental purpose; if the classification falls into the second category, a heightened standard of scrutiny is applied to an “important” governmental purpose; and if the statutory scheme falls into the third category, the statute is upheld if there is any rational basis for the classification.

Id. at 138, 516 A.2d at 311.

The entitlement to monetary damages because of another’s negligence has never been held to be a fundamental right. Kranson v. Valley Crest Nursing Home, 755 F.2d 46, 52 (3rd Cir.1985). Appellants contend, however, that the right to recover damages for personal injuries is an “important” right rendering the statute subject to an intermediate standard of review. In this they are supported by the Supreme Court decision in James v. Southeastern Pennsylvania Transportation Authority, supra. There, the Court held that a citizen had an important interest in access to the courts, making any restriction thereon subject to an intermediate standard of review. Id. 505 Pa. at 146-147, 477 A.2d at 1306. The Court held, nevertheless, that a statute which required notice of a claim to á transportation authority within six (6) months of the injury passed constitutional muster.

Here, too, we conclude that the Pennsylvania wrongful birth statute passes constitutional muster. The protection of fetal life has been recognized to be an important state interest. The legislature’s expressed concern is to prevent lawsuits leading to eugenic abortions of deformed of unwanted children. Hatter v. Landsberg, 386 Pa.Super. 438, 443, 445, 563 A.2d 146, 149-150 (1989), allocatur denied, 525 Pa. 626, 578 A.2d 414 (1990). Moreover, the cost of health care is a matter of national concern. Therefore, the state also has a valid interest in reducing the number of medical malpractice actions, as well as the cost of medical malpractice insurance. For these reasons, the Commonwealth may validly ban actions for defects or handicaps to children for which the physician is not responsible and which could have been avoided only by an abortion destroying the fetus.

Appellants also contend that the Pennsylvania statute violates Article I, section 11, of the Pennsylvania Constitution because it deprives citizens of a remedy for an injury suffered. This issue, however, was not raised in the trial court; and, therefore, we decline to consider it on appeal. See: Baum v. Baum, 395 Pa.Super. 182, 183 n. 1, 576 A.2d 1104 n. 1 (1990); Pa.R.A.P., Rules 302(a) and 1925(b). See also: Gilmore by Gilmore v. Dondero, 399 Pa.Super. 599, 604, 582 A.2d 1106, 1108 (1990).

Order affirmed.

      . Plaintiffs have not argued in this appeal that the statute violates the due process clause of the Fourteenth Amendment.