author: WIEAND, Judge:

text:
    597 A.2d 1196
    COMMONWEALTH of Pennsylvania v. Phyllis J. MICKENS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 28, 1991.
    Filed Oct. 8, 1991.

      Patrick J. Connors, Media, for appellant.
    Vram Nedurian, Jr., Asst. Dist. Atty., Media, for Com., appellee.
    Before WIEAND, OLSZEWSKI and MONTGOMERY, JJ.
   WIEAND, Judge:

Phyllis J. Mickens was tried by jury and was found guilty of possession of phencyclidine (PCP), possession of PCP with intent to deliver and criminal conspiracy. Post-trial motions were denied following an evidentiary hearing, and Mickens was sentenced to pay fines in the total amount of fifty thousand ($50,000.00) dollars and serve concurrent terms of imprisonment for not less than five (5) years nor more than ten (10) years for possession with intent to deliver and conspiracy. On direct appeal, she argues that the trial court erred by refusing to suppress drugs seized by the police, by refusing to require that the Commonwealth disclose the identity of its confidential informants, and by incorrectly utilizing the mandatory sentencing provisions of 18 Pa.C.S. § 7508(a)(4). Appellant also argues that her trial counsel was ineffective because he failed to (1) call character witnesses; (2) object to an allegedly erroneous jury instruction pertaining to reasonable doubt; and (3) object to an instruction which allegedly confused appellant’s involvement with that of a co-conspirator. We find no merit in these arguments and, therefore, affirm the judgment of sentence.

Appellant first challenges the denial of her pre-trial motion to suppress PCP which had been seized by police from the vehicle owned by her co-conspirator, Diane McNamee. In reviewing the denial of a motion to suppress evidence, we must

‘determine whether the factual findings of the [suppression] court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).’

Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989), quoting Commonwealth v. Chamberlain, 332 Pa.Super. 108, 112, 480 A.2d 1209, 1211 (1984). See also: Commonwealth v. Kichline, 468 Pa. 265, 280-281, 361 A.2d 282, 290 (1976); Commonwealth v. Stark, 363 Pa.Super. 356, 365, 526 A.2d 383, 388 (1987).

The evidence presented at appellant’s suppression hearing was recited in the trial court’s post-trial opinion as follows:

In April of 1989, Detective Greenwalt of the Delaware County Criminal Investigation Division, received information from a confidential informant (hereinafter referred to [as] CI-1) regarding this Defendant. The information received was that Co-Defendant MacNamee on a biweekly basis, usually on Thursday nights, met with a black female known as Phyllis at a site along Township Line Road at which time MacNamee purchased a large quantity of Phencyclidine from[] [t]he black female known as Phyllis. CI-1 further related to Detective Greenwalt that the black female known as Phyllis could be described as heavy set, in her late forties and was the owner of a store in the City of Philadelphia. CI-1 [] further related to Detective Greenwalt that co-defendant MacNamee drives a tan Toyota and Defendant drives a maroon mid-sized vehicle. Detective Greenwalt testified that the information [supplied] in the past by CI-1 led to the arrest of at least two persons, and at all times, Detective Greenwalt found CI-1 to be truthful and reliable.
Detective Greenwalt during the course of this investigation received information from a second confidential informant (hereinafter referred to [as] CI-2). CI-2 corroborated the information the Detective received from CI-1 and further related that co-defendant MacNamee in meeting Phyllis generally obtained 15-30 bundles of PCP at each meeting. Also, CI-2 gave Diane MacNamee’s address and Pennsylvania registration of MacNamee’s tan Toyota.
After speaking with both confidential informants, Detective Greenwalt verified the information received as to the residence of MacNamee and MacNamee’s use and ownership of a tan Toyota. On June 22, 1989, Detective Greenwalt received further information from CI-2 that CI-2 [had] overheard a conversation in which it was inferred that Co-Defendant MacNamee would be leaving later that same day to obtain a large quantity of PCP.
As a result of the information provided by both confidential informants, Detective Greenwalt and Agent Cohen conducted a surveillance of Co-Defendant MacNamee’s residence during the afternoon hours of June 22, 1989. At approximately 6:40 p.m. on that day, Co-Defendants Diane MacNamee and Edward Mango, were followed to the Boat House Restaurant, Media, and then north on the Media Bypass to the Township Line Road area. There MacNamee dropped off Mango and proceeded to the Clover parking lot located on Township Line Road in Haverford Township, Delaware County, PA. Shortly thereafter, Detective Jack Azpell observed the Defendant (consistent with the description given by CI-1) meet with Co-Defendant MacNamee and deliver to Co-Defendant MacNamee items in a brown paper bag. After observing the contact between Co-Defendant MacNamee and Defendant, the officers followed MacNamee, who picked up Mango, to the area of Old State Road and Providence Road in Upper Providence, Delaware County. At that time, the officers stopped Co-Defendant MacNamee’s vehicle believing that they [had] observed the delivery of a large quantity of PCP at the Clover parking lot based upon the information provided by the confidential informants, the corroborative investigation and observations of the detectives.
As officers approached the vehicle, the very strong odor of PCP emanated from within the vehicle, both MacNamee and Mango were removed from the car and a brown paper bag was observed on the passenger side floor. Inside the bag was a large plastic zip lock bag containing 330 packets of PCP. Co-Defendants MacNamee and Mango were arrested at the scene, and an arrest warrant was issued for Defendant Phyllis Mickens [for her participation in the delivery of PCP on June 22, 1989].

Trial Court Opinion at pp. 1-4.

Appellant asserted in a pre-trial suppression motion that the police had acted unconstitutionally when, without a search warrant, they stopped, searched and seized from Diane McNamee’s tan Toyota automobile a package containing in excess of one hundred (100) grams of PCP. The trial court refused to suppress the seized PCP, holding that, by delivering the drugs to McNamee, appellant had abandoned possession thereof and, consequently, lacked standing to contest the search of McNamee’s vehicle. Appellant now argues that she had automatic standing pursuant to the Pennsylvania Supreme Court’s holding in Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), because she was charged with possessory offenses.

In Commonwealth v. Sell, supra, the Supreme Court of Pennsylvania, pursuant to Article I, section 8, of the Pennsylvania Constitution, retained the rule of automatic standing to contest a search where the defendant was charged with a possessory offense. In so holding, however, the Court elaborated that “personal possessions remain constitutionally protected under Article I, section 8 until their owner meaningfully abdicates Pier] control, ownership or possessory interest therein.” Commonwealth v. Sell, supra, 504 Pa. at 67, 470 A.2d at 469 (emphasis added). In the instant case, appellant did not have automatic standing to contest the search, for she had delivered possession of the PCP to another person. In Commonwealth v. Rodriquez, 385 Pa.Super. 1, 559 A.2d 947 (1989), the Superior Court held that after a defendant had abandoned property, the automatic standing rule of Sell was no longer applicable to such property. The Court reasoned:

It is well-established that “no one has [] standing to complain of a search and seizure of property that he has voluntarily abandoned.” Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976); Commonwealth v. Cihylik, 337 Pa.Super. 221, 226-28, 486 A.2d 987, 990 (1985). “The test for abandonment is whether the complaining party could retain a reasonable expectation of privacy in the property allegedly abandoned.” Commonwealth v. Sero, 478 Pa. 440, 452, 387 A.2d 63, 69 (1978); Cihylik, supra [337 Pa.Super.] at 226-28, 486 A.2d at 990.

Commonwealth v. Rodriquez, supra, 385 Pa.Superior Ct. at 4-5, 559 A.2d at 948-949.

Appellant argues that there was no evidence that she had intended to abandon her possessory interest in the PCP delivered to McNamee. The evidence at the suppression hearing established, however, that, upon delivering the drugs to McNamee, appellant and McNamee went their separate ways. Appellant was not present when police stopped, searched and seized from McNamee’s vehicle the PCP which appellant had earlier delivered to McNamee. It is abundantly clear, therefore, that appellant had abandoned both possession and control over the PCP and could no longer have any reasonable expectation of privacy with respect thereto. The trial court properly concluded from the evidence that appellant had abandoned the drugs and, therefore, lacked standing to contest the stop and search of McNamee’s vehicle. See: Commonwealth v. Bulling, 331 Pa.Super. 84, 101-104, 480 A.2d 254, 263-264 (1984) (defendant lacked standing to contest seizure by police of heroin which he had sold to another and credit cards which he had voluntarily discarded).

Appellant next challenges the denial of a pre-trial motion to discover the identity of the confidential informants who had provided information to police regarding her involvement in prior drug transactions with McNamee. She contends that she was misidentified by police as a participant in the June 22, 1989 drug transaction for which she was arrested and that, had the identity of the informants been disclosed, the confidential informants may have provided testimony that appellant was not the person referred to as Phyllis who, assertedly, had been a participant in drug transactions with McNamee. The trial court rejected appellant’s request for disclosure after concluding that appellant had failed to establish that the informants could provide information so essential as to outweigh the Commonwealth’s interest in protecting the flow of information from confidential sources.

A qualified privilege exists which “permits the Commonwealth ‘to refrain from disclosing the identity of an informer’ and ‘limits the prosecution’s duty to make available to the defense the names and whereabouts of all material eyewitnesses.’ ” Commonwealth v. Speaks, 351 Pa.Super. 149, 159, 505 A.2d 310, 315 (1986), quoting Commonwealth v. Carter, 427 Pa. 53, 55-56, 233 A.2d 284, 285 (1967). Regarding this privilege, it has been said that:

There is no fixed rule with respect to disclosure of an informant. “The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony and other relevant factors.” Commonwealth v. Carter, 427 Pa. 53, 59, 233 A.2d 284, 287 (1967), quoting Roviaro v. United States, 353 U.S. 53, 60-62, 77 S.Ct. 623, 627-628, 1 L.Ed.2d 639, 645-46 (1957). See also: Commonwealth v. Pritchett, 225 Pa.Super. 401, 406, 312 A.2d 434, 437 (1973). Before disclosure of an informant’s identity will be required, “... more is necessary than a mere assertion by the defendant that such disclosure might be helpful in establishing a particular defense____ Although the defendant plainly cannot be expected to show that such information will actually be helpful to his defense, the record should at least suggest a reasonable possibility that the information might be helpful, so that it would be unfair to withhold it.” Commonwealth v. Herron, 475 Pa. 461, 466-67, 380 A.2d 1228, 1230 (1977). See also: Commonwealth v. Pritchett, supra, 225 Pa.Super. at 407-08, 312 A.2d at 438.

Commonwealth v. Knox, 273 Pa.Super. 563, 568, 417 A.2d 1192, 1194 (1980). See also: Commonwealth v. Herron, 475 Pa. 461, 380 A.2d 1228 (1977); Commonwealth v. Garvin, 448 Pa. 258, 266-268, 293 A.2d 33, 38-39 (1972); Commonwealth v. Delligatti, 371 Pa.Super. 315, 325, 538 A.2d 34, 39 (1988).

In Commonwealth v. McGinn, 251 Pa.Super. 170, 380 A.2d 431 (1977), situations which might compel the disclosure of a confidential informant’s identity were described in the following manner:

Before the Commonwealth will be forced to reveal an informant’s identity, there must be some showing that revelation is necessary. For example, the informant’s identity may be necessary to the defense where the evidence against the defendant proceeds solely from the testimony of police officers, and the only relatively neutral eyewitness to the crime is the informant. See Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967). Other situations where the informant’s identity would be helpful are where the defendant alleges entrapment or where there is an identification issue. See Commonwealth v. Williams, [236 Pa.Super. 184, 345 A.2d 267 (1975)].

Id., 251 Pa.Superior Ct. at 173, 380 A.2d at 433. See: Commonwealth v. Washington, 463 Pa. 206, 344 A.2d 496 (1975); Commonwealth v. Lloyd, 427 Pa. 261, 234 A.2d 423 (1967). See also: Commonwealth v. Davis, 318 Pa.Super. 507, 514-515, 465 A.2d 669, 672 (1983); Commonwealth v. Fox, 267 Pa.Super. 341, 347, 406 A.2d 1072, 1075 (1979). Conversely, when an informant has not been an eyewitness to and has no firsthand knowledge of the criminal transaction at issue, the need for disclosure is greatly reduced. See: Commonwealth v. Redmond, 395 Pa.Super. 286, 314-315, 577 A.2d 547, 561 (1990) (Kelly, J. dissenting), alloc. granted, 526 Pa. 632, 584 A.2d 315 (1990). See and compare: Commonwealth v. Herron, supra 475 Pa. at 469 & n. 3, 380 A.2d at 1231-1232 & n. 3; Commonwealth v. Culberson, 467 Pa. 424, 429-430, 358 A.2d 416, 418 (1976); Commonwealth v. Garcia, 261 Pa.Super. 296, 300, 396 A.2d 406, 408 (1978). It has also been held that a defendant may not insist upon disclosure of the identity of a confidential informant where such disclosure would jeopardize the safety of the informant. See: Commonwealth v. Miller, 513 Pa. 118, 133, 518 A.2d 1187, 1195 (1986); Commonwealth v. Bruner, 388 Pa.Super. 82, 95, 564 A.2d 1277, 1283 (1989).

The record in the instant case is clear that the informants did not witness the June 22, 1989 drug transaction for which appellant was being prosecuted. Rather, the two informants had told police that someone named Phyllis had been involved in prior drug transactions with Diane McNamee. At appellant’s trial, the Commonwealth did not introduce evidence regarding information provided by the informants. In fact, there was no reference whatsoever to the existence of informants. The Commonwealth’s trial evidence was limited to the events of June 22, 1989. Appellant’s participation in the drug transaction on that day was established solely upon identification testimony by police officers who witnessed the transaction. There was also evidence that one of the vehicles involved in the transaction had been registered to appellant.

After careful review, we discern no error in the trial court’s refusal to order the disclosure of the identity of the two confidential informants. These informants did not witness the events for which appellant was being prosecuted and did not have direct knowledge as to whether appellant was, in fact, the person who had delivered PCP to co-conspirator McNamee on June 22, 1989. Any knowledge the informants had regarding prior drug transactions between someone named Phyllis and McNamee would have been of doubtful relevance and would have introduced collateral and potentially prejudicial issues into the trial. The trial court did not err by refusing to compel disclosure of the informants.

The standard to be employed in evaluating claims of ineffective assistance of counsel was stated by the Pennsylvania Supreme Court in Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989), as follows:

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Id., 522 Pa. at 4-5, 559 A.2d at 505. See also: Commonwealth v. Rollins, 525 Pa. 335, 344, 580 A.2d 744, 748 (1990); Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). To establish prejudice under this standard “requires [a] showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). See also: Commonwealth v. Pierce, 515 Pa. 153, 157-158, 527 A.2d 973, 974-975 (1987); Commonwealth v. Gainer, 397 Pa.Super. 348, 352, 580 A.2d 333, 335 (1990) (en banc). Additionally, “[bjecause the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant.” Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). See also: Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986).

Appellant contends that trial counsel was ineffective for failing to present character evidence on her behalf. In support of this claim, appellant called five witnesses at the post-trial evidentiary hearing, all of whom said that they would have been available to testify as to appellant’s good reputation in the community if they had been contacted by trial counsel to do so. Appellant testified herself at the post-trial hearing that counsel had not informed her of her right to call character witnesses and had failed to make any attempt to identify character witnesses. However, when trial counsel was given the opportunity to explain his failure to utilize character witnesses at appellant’s trial, he told a markedly different story. He testified as follows at the evidentiary hearing:

Q. Now, Mr. Chupein, from the time period of the suppression through the commencement of trial in this matter, at some point did you have occasion to discuss with the Defendant the potential use or definition of character witnesses?
A. I recall conversing with Phyllis — now this would have been in my office. It was a conference which took place in my office, asking her if she was a member of any particular churches or other house of worship, whether she was a member of any social groups because I was interested in ascertaining whether there were people who were aware of any reputation — good reputation she had in the community for being honest and morale [sic] and truthful and law-abiding. Phyllis, I think, was a person— from what I recall, the information I gathered, the impression I drew from it was Phyllis was a person who was well liked by a lot of people because of her position operating a small delicatessen type store. Had a lot of people coming in and out and react — interacted with them very well. But my impression was that there was no one who was not a family member who could be identified as a person who would be appropriate for character testimony. That is, someone not expressing their own personal opinion but rather their knowledge of her reputation in the community.
Q. And, sir, from that last answer, can we take it that you drew a dichotomy between family members and non-family members with regard to character witnesses?
A. Well the non-character witnesses, the alibi witnesses who were being presented who were family members, Rovella Davis and Tonette Jones, both were — I didn’t even think to use them as character witnesses frankly. They were being offered for the purpose of supporting the misidentification defense and that’s what I restricted my use of those witnesses to, that issue alone.
Q. And with regard to their possible use as character witnesses, what if any significance did you attach to the fact that they were family members and employees of this Defendant?
A. My recollection of the decision made with regard to character evidence is once I had determined that there was no person who did not have a relationship of blood relationship with the Defendant, that I abandoned the use of character evidence.
Q. Why is that, sir?
A. Well by way of practice, you know, you have a few guidelines you go by and one of them I’ve always ascribed to is that character evidence, the absence of anyone who is — has the appearance of being unbiased and unprejudiced and detached from the Defendant. I believe you need that kind of person in the case in order to give your character evidence any real credibility, any real viability. And the use of the family witnesses who were testifying not only — not only as to the misidentification defense but further as to the character, I did not think enhanced their utility as witnesses.

N.T. 10/8/90 at pp. 9-11.

A lawyer has a duty to “keep the accused fully informed of all options throughout the proceedings.” Commonwealth v. Saxton, 516 Pa. 196, 200, 532 A.2d 352, 354 (1987). Additionally, the failure by counsel “to investigate potentially meritorious defenses, and/or to interview witnesses whose testimony could prove beneficial and exculpatory to the defendant’s case, can constitute ineffective assistance of counsel if no reasonable basis otherwise exists for counsel's failure.” Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 214 (1983). Therefore, a lawyer who fails to use character evidence on a defendant’s behalf can indeed be deemed constitutionally ineffective if there is no reasonable basis for such failure. See, e.g.: Commonwealth v. Simler, 320 Pa.Super. 342, 467 A.2d 355 (1983); Commonwealth v. Luther, 317 Pa.Super. 41, 463 A.2d 1073 (1983). However, “[a] decision by counsel not to take a particular action does not constitute ineffective assistance if that decision was reasonably based, and was not the result of sloth or ignorance of available alternatives.” Commonwealth v. Collins, 519 Pa. 58, 65, 545 A.2d 882, 886 (1988). “The decision not to present a particular defense is a tactical one and will not be deemed ineffective stewardship if there is a reasonable basis for that position.” Commonwealth v. Blair, 491 Pa. 499, 506, 421 A.2d 656, 660 (1980).

In the instant case, the critical issue is whether trial counsel had a reasonable basis for failing to present character witnesses at appellant’s trial. It has been said that “ ‘strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.’ ” Commonwealth v. Lee, 401 Pa.Super. 591, 600-601, 585 A.2d 1084, 1089 (1991), quoting Strickland v. Washington, supra, 466 U.S. at 690-691, 104 S.Ct. at 2068, 80 L.Ed.2d at 695. In order to hold that counsel was constitutionally ineffective “ ‘it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.' ” Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983), quoting Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233, 234 (1981). “The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record.” Commonwealth v. Dunbar, supra. When these principles are applied to the facts of this case, we are forced to conclude that trial counsel acted in a constitutionally effective manner. The post-trial testimony of trial counsel, which was found credible by the trial court, demonstrated that counsel had not been ignorant of the option of calling character witnesses, and, indeed, had discussed with appellant this option. It was only after learning from appellant that available character witnesses were relatives of the accused that counsel declined to present such witnesses because, according to his experience, family members generally lacked credibility as character witnesses due to their obvious bias in favor of the accused. Counsel also explored with appellant the possibility of presenting neighbors and patrons of her grocery store as character witnesses, but was discouraged from this course of action by appellant’s responses. These responses revealed that neighbors and patrons of the store were not familiar with appellant’s reputation in the community and were able to do no more than express their personal opinions regarding appellant. Because counsel’s decision not to present character witnesses was made after consultation with appellant and was based upon appellant’s responses to counsel’s inquiries and counsel’s experience as a trial lawyer, the trial court could properly conclude that counsel’s performance was reasonable. Appellant’s claim of ineffectiveness, therefore, must fail.

Appellant’s remaining arguments that trial counsel was ineffective are based upon counsel’s failure to object to allegedly erroneous portions of the trial court’s charge to the jury. The standard for evaluating a jury charge has been stated as follows:

“In reviewing jury instructions to determine whether reversible error has been committed by a trial court, we consider the charge as a whole. Error will not be predicated on isolated excerpts. Rather, it is the general effect of the charge that controls.” Commonwealth v. Myers, 376 Pa.Super. 41, 50, 545 A.2d 309, 314 (1988). See also: Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983), cert. denied, 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986); Commonwealth v. Riggins, 374 Pa.Super. 243, 253, 542 A.2d 1004, 1009 (1988). “Even if the court erred when it instructed the jury, we will reverse only if the error prejudiced the appellant.” Commonwealth v. Klinger, 369 Pa.Super. 526, 540, 535 A.2d 1060, 1066 (1987). See also: Commonwealth v. Riggins, supra. Moreover, “[t]he trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration.” Commonwealth v. Prosdocimo, [525] Pa. [147], [150], 578 A.2d 1273, 1274 (1990). See also: Commonwealth v. LaMassa, 367 Pa.Super. 54, 58, 532 A.2d 450, 452 (1987); Commonwealth v. Cimorose, 330 Pa.Super. 1, 10, 478 A.2d 1318, 1323 (1984).

Commonwealth v. Bowers, 400 Pa.Super. 377, 392, 583 A.2d 1165, 1172-1173 (1990).

The claim that the trial court, in its jury charge, confused appellant’s role in the conspiracy with that of McNamee is based solely upon an isolated misstatement in the charge in which the court apparently confused the type of vehicles owned by appellant and McNamee. The court said that appellant was “charged with having conspired with the occupant of that Pontiac.” In fact, appellant’s car was the Pontiac and McNamee owned a Toyota. Apparently realizing its misstatement, the trial judge thereafter said to the jury that “the overt act is delivering the package ... into this other automobile. I think it was a Toyota, but it’s what you think, not what I think.” On numerous other occasions throughout the charge, the court instructed that it was the jury’s recollection of the facts which was controlling and that it was solely for the jury to determine the facts. In all other respects the charge on conspiracy was error free, and, when viewed in its entirety, the isolated misstatement by the court can only be deemed insignificant. It did not so affect the charge that appellant was in any way prejudiced by the court’s misstatement regarding the cars. Under these circumstances, appellant is not entitled to a new trial.

Equally lacking in merit is appellant’s contention that the trial court’s charge on reasonable doubt unfairly negated the jury’s mercy dispensing power. The trial court’s instruction on reasonable doubt was a careful, thorough and correct discussion of the Commonwealth’s burden of proving guilt beyond a reasonable doubt. Appellant was not entitled to a charge suggesting that the jury could base its decision on mercy rather than fact. See: Commonwealth v. Grove, 363 Pa.Super. 328, 345, 526 A.2d 369, 378 (1987); Commonwealth v. Hathaway, 347 Pa.Super. 134, 147, 500 A.2d 443, 449-450 (1985). Counsel clearly was not ineffective for failing to object to the trial court’s explanation of the law pertaining to reasonable doubt.

The final issue raised by appellant concerns the imposition of a mandatory minimum sentence pursuant to 18 Pa.C.S. § 7508(a)(4)(iii), which, at the time of appellant’s sentencing, on December 3, 1990, provided as follows:

(a) General rule. — Notwithstanding any other provisions of this or any other act to the contrary, the following provision shall apply:
(4) A person who is convicted of violating section 13(a)(14) or (30) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is methamphetamine or is a salt, isomer or salt of an isomer of methamphetamine or is phencyclidine or is a mixture containing methamphetamine, containing a salt of methamphetamine, containing an isomer of methamphetamine, containing a salt of an isomer of methamphetamine or containing phencyclidine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
(iii) upon the first conviction when the amount of the substance involved is at least 100 grams: five years in prison and a fine of $50,000.00 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity and, upon conviction for another offense subject to sentencing under this section: eight years in prison and $50,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity.

18 Pa.C.S. § 7508(a)(4)(iii). Appellant contends that by specifying the weight of the “substance” for purposes of determining sentence, rather than the weight of the “mixture” or “compound” containing the “substance,” the legislature intended that only the weight of pure POP could be used for purposes of determining the applicability of the mandatory sentence provisions of § 7508(a)(4). We disagree. The same issue was decided by the Superior Court in Commonwealth v. Lisboy, 392 Pa.Super. 411, 573 A.2d 222 (1990), allocatur granted, 525 Pa. 655, 582 A.2d 322 (1990). It was there held that for purposes of determining the applicability of the mandatory minimum sentence required by 18 Pa.C.S. § 7508(a)(3) it was the weight of cocaine and mixing agent, and not merely the weight of pure cocaine, which was determinative. Subsequently, in Commonwealth v. Perez, 397 Pa.Super. 574, 580 A.2d 781 (1990), another panel of the Superior Court reaffirmed the rationale of Lisboy and held that the term “substance” in the mandatory minimum sentencing provisions of § 7508(a)(3) referred not only to pure cocaine, but included any mixture of cocaine or its derivatives with another product. The same rationale is applicable to the nearly identical language of § 7508(a)(4), which includes within its applicability the substance PCP. Despite the Supreme Court’s grant of allocatur in Lisboy and the subsequent amendment of the statutory language of § 7508(a) to specifically refer to “the aggregate weight of the compound or mixture containing the substance,” we continue to adhere to the reasoning in Lisboy and Perez. It follows that appellant was properly sentenced on the basis that the weight of the mixture containing PCP was 117.5 grams. The Commonwealth was not required to show that the pure PCP in the mixture weighed in excess of 100 grams.

The judgment of sentence is affirmed.

      . The conviction for simple possession of PCP was held to merge for purposes of sentencing.

      . Appellant was not arrested until October 17, 1989, almost four months after the commission of the alleged offenses and the arrest of her co-conspirators.

      . At the suppression hearing, the Commonwealth also offered the opinion of Detective Greenwalt that disclosure of the identity of the informants would have endangered the informants and impeded several ongoing investigations.

      . We observe that of the five character witnesses offered by appellant at the post-trial hearing three were close family members (appellant’s daughter, sister and niece), and the other two had not been identified pre-trial as possible character witnesses available to testify at trial.

      . The language of 18 Pa.C.S. § 7508(a) was amended by the legislature, effective December 19, 1990, just sixteen (16) days after appellant had been sentenced. The amended version of subsection (a)(4)(iii) now provides as follows:
      (a) General rule. — Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:
      (4) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is methamphetamine or phencyclidine or is a salt, isomer or salt of an isomer of methamphetamine or phencyclidine or is a mixture containing methamphetamine or phencyclidine, containing a salt of methamphetamine or phencyclidine, containing an isomer of methamphetamine or phencyclidine, containing a salt of an isomer of methamphetamine or phencyclidine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
      (iii) when the aggregate weight of the compound or mixture containing the substance involved is at least 100 grams; five years in prison and a fine of $50,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: eight years in prison and $50,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity.
      18 Pa.C.S. § 7508(a)(4)(iii), as amended, effective December 19, 1990.


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author: DEL SOLE, Judge:

license: Public Domain

text:
    597 A.2d 1206
    Richard S. FLEMING and Rita Fleming, Appellants, v. CNA INSURANCE COMPANIES, Appellee.
    Superior Court of Pennsylvania.
    Argued Aug. 29, 1991.
    Filed Oct. 9, 1991.

      Bernard V. Digiacomo, Conshohocken, for appellants.
    John J. Donnelly, Law Offices of Paul R. Scholl, Philadelphia, for appellee.
    Before DEL SOLE, TAMILIA and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order granting Appellee, CNA Insurance Company’s, Motion to Compel a Medical Examination and directing Appellants, Richard and Rita Fleming, to submit to independent medical examinations by a physician of CNA’s choosing. Appellants challenge this appealable order, State Farm Ins. Cos. v. Hunt, 390 Pa.Super. 620, 569 A.2d 365 (1990), by asserting that the court wrongly compelled a medical exam although CNA failed to show good cause as specified under Section 1796 of the Motor Vehicle Financial Responsibility Law (MVFRL). 75 Pa.C.S.A. § 1796.

Appellant’s were insured under a policy of insurance issued to them by CNA at a time when they were involved in a motor vehicle accident. Following the accident Appellants sought treatment for their injuries and submitted to CNA claims for medical bills and lost wages. Approximately a year later, when Appellants were informed that no further benefits would be paid, they instituted an action to recover basic medical and income loss benefits from CNA. An initial motion to Compel Medical Examination filed by CNA was denied without prejudice. A second motion was later filed which alleged that pursuant to Pennsylvania Rule of Civil Procedure 4010, Section 1796 of the MVFRL and the policy of insurance issued to Appellants, they were each obliged to submit to a medical exam. A timely response was filed and following oral argument the court granted CNA’s motion. This appeal followed.

Appellants make three arguments in support of their position that the court acted either wrongly or prematurely in requiring them to undergo an independent medical exam. They assert that CNA failed to show good cause, that the record before the court was insufficiently developed to justify the order and that the reports of a medical doctor should not have been considered to the extent that they critique the treatment rendered by a chiropractor.

We initially note that this court, en banc, most recently in State Farm Insurance Companies v. Swanter, (No. 01773 Pgh 1989, filed July 3, 1991) considered the standards to be applied by a trial court in determining whether “good cause” has been shown for a court to order an independent medical exam under 75 Pa.C.S.A. § 1796. It is the “good cause” requirement of § 1796 which the trial court found that CNA met and which Appellants dispute. Although the trial court issued its order on the basis that CNA met the “good cause” requirement of § 1796, and directed Appellants to submit to a medical exam accordingly, we affirm the court’s decision on another basis.

In its Motion to Compel, CNA sought the independent medical exams not only based upon the provisions of section 1796 of the MVFRL and section 4010 of the Rules of Civil procedure, which each require a showing of “good cause,” but also based upon the provisions of policy number US105887050 which it issued to Appellants through Continental Casualty. Attached to CNA’s motion as Exhibit A is a copy of the policy provision which requires the insured to submit to a physical exam without making any mention of a “good faith” requirement. The policy language list various duties of an injured person. It states in relevant part: Duties of an Injured Person. The injured person shall:

a. Give us written proof of claim, under oath if we request;
b. Authorize us to obtain medical information;
c. Submit to physical examination by a physician of our choice;
d. Not construe payment of medical claims as an admission of liability.

(Emphasis added.)

This contract provision entered into between the parties clearly requires Appellants’ submission to a medical exam to be performed by a doctor chosen by CNA. There is no prerequisite showing of “good cause” necessary.

In Horne v. Sentry Ins. Co., 403 Pa.Super. 194, 588 A.2d 546 (1991) this court was again called upon to consider whether an insurance company had shown sufficient “good cause” for a medical examination under §. 1796. In footnote 4 the court stated:

We note that the record contains no copy of the parties’ insurance policy. Thus, we do not address the possibility of appellee’s entitlement, under the policy, to conduct an independent medical examination of its insured.

403 Pa.Super. at 196 ftn. 4, 588 A.2d at 548 ftn. 4.

Unlike, Home, the record here does contain a copy of the insurance policy. This policy, which contains specific provisions for the submission to an independent medical exam, was relied upon by CNA in its motion as a basis for the relief it requested and was attached as an exhibit to the motion. Appellants did not challenge this policy provision as being void as against public policy or void as unconscionable in their Answer in the lower court or on appeal. Although the trial court did not grant CNA’s motion and direct Appellants to submit to the exams based upon these policy provisions, an appellate court may affirm the decision of a trial court if the result is correct on any ground without regard to the grounds relied on by the trial court. See Mazer v. Williams Bros. Co., 461 Pa. 587, 337 A.2d 559 (1975).

Because the policy provisions require Appellants to submit to a medical exam, we affirm the trial court’s order without discussion of whether CNA has met the “good cause” requirements of § 1796.

Order affirmed.


author: POPOVICH, Judge:

text:
    597 A.2d 1208
    Robert N. WAGNER, Appellee, v. HART CHEMICAL COMPANY, Joseph Hart, Lawrence M. Hart and Paul Hart, Appellants.
    Superior Court of Pennsylvania.
    Argued June 18, 1991.
    Filed Oct. 4, 1991.
    Reargument Denied Dec. 17, 1991.

      Wayne A. Kablack, Indiana, for appellants.
    Blair F. Green, Kittanning, for appellee.
    Before POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
   POPOVICH, Judge:

Appeal is taken from the order of December 7, 1990, affirming the August 23, 1990, decree nisi entered in favor of appellee Robert N. Wagner. Appellant, Hart Chemical Company, Joseph Hart, Lawrence Hart and Paul Hart (“Hart Co.”; collectively referred to as “appellant”) appeal from the denial of their Motion for Post-Trial Relief filed below.

In this appeal we are asked to review the order of the Court of Common Pleas, Indiana County, insofar as it defines the relative rights and obligations existing between appellee shareholder and both his transferor and appellant corporation, its officers and directors, as of May 31, 1988. In particular, we address for the first time in this jurisdiction the “delivery” requirement under sections 8301 and 8313 of Pennsylvania’s Uniform Commercial Code — Investment Securities, 13 Pa.C.S.A. § 8101 et seq. A thorough understanding of the factual and procedural history has aided in our resolution of the appeal.

I

On April 26,1988, appellant received notice from all then-existing common shareholders approving a plan for the prospective issuance (there was no formal authorization at this time) of 15,000 shares of new common stock. Thereafter, on May 12, 1988, Paul Hart, President of Hart Co., sent the following letter to all common shareholders:

The Hart Chemical Company is currently considering bids for the sale of 15,000 shares of Hart Chemical common stock. The Company is notifying all current stockholders that bids must be submitted in writing to the Company before May 31, 1988. The bid should be sent to Hart Chemical Company, PO box 232, Creekside, PA 15732.

Plaintiff’s exhibit 4 (emphasis added). Lawrence M. Hart offered a bid of $6,000 for the 15,000 shares. His bid was received by Hart Co. on May 12, 1988. H.T. June 29, 1990, at 64.

On May 16, 1988, Ronald L. Tonkin and appellee met at the Marion Center Bank to execute an agreement for the sale/purchase of Mr. Tonkin’s 500 shares of Hart Co. common stock (supra note 3) at a price of $25,000. Plaintiffs exhibit 5. The agreement was notarized, id, and, on the same day, Mr. Tonkin accepted and cashed a check drawn by Mr. Wagner in the amount of $25,000. Plaintiffs exhibit 3. Later that day, May 16, 1988, both Mr. Wagner and his accountant, Mary Ella Swinehart, travelled to the Hart Co. plant. With the sales agreement and notarization in hand (but without the share certificate which remained at the Marion Center Bank, H.T. 30-32), they approached Paul Hart, presented the documentation, and notified him of Mr. Wagner’s purchase of Mr. Tonkin’s shares. H.T. at 25-26, 32, 37. At this point, Paul Hart examined the documentation, but, as he testified: “I didn’t choose to think anything at that point in time.” Id. at 67. Mr. Wagner recalls that “[t]hey wouldn’t have anything to do with us. He [Paul] just went back into the plant.” Id. at 27, 37.

The stock certificate, for reasons unexplained in the record, was held by the Marion Center Bank until August 18, 1989, at which time it was specifically endorsed over to Mr. Wagner and withdrawn from the bank shortly thereafter. H.T. at 30-32. A new certificate for 500 shares of Hart Co. common stock bearing appellee’s name was issued on October 5, 1989. Id. at 28.

Mr. Wagner testified that, as of May 16, 1988, he was without knowledge of the proposed new offering of 15,000 shares of Hart Co. common stock. H.T at 29. Thereafter, but sometime before May 25, 1988, Mary Ella Swinehart received notice from Mr. Tonkin of the proposed offering. Id. at 37. In response, Mr. Wagner, by certified letter dated May 25, 1988, (prepared and mailed on Saturday, May 28, 1988, by Ms. Swinehart acting as Mr. Wagner’s attorney-in-fact), offered $50,000 under protest as a bid for the 15,000 shares of Hart Co. common stock. H.T. at 40. The bid offer was received by Paul Hart on Tüesday, May 31, 1988 (the day after Memorial Day).

Paul Hart, the only testifying party-defendant, explained to the court that sometime in June, 1989, the Board of Directors accepted Lawrence M. Hart’s bid of $6,000 and authorized the new issue of 15,000 shares of common stock. H.T. at 71-79. The corporate minutes, however, do not speak to this action of the Board. In fact, the only reason offered for rejecting Mr. Wagner’s much larger bid of $50,000 was that “[t]hey [the Board] didn’t consider him a legal stockholder at the time.” Id. at 76. It also would seem that this explains, in part, the delayed issuance of Mr. Wagner’s new share certificate (the delay being that period of time from May 16, 1988, to October 5, 1989). Ms. Swinehart testified to the efforts on her part to obtain a new share certificate subsequent to May 16, 1988, and recalled the reason offered for non-issuance: “they said that it wasn’t issued because they were in some disagreement over whether Ron Tonkin owned 500 shares of stock.” Id. at 42. Apparently, the corporation’s concern was over proper documentation of ownership, which “concern” was relieved when appellee’s attorney presented a “copy of the letter from Ronald Tonkin to Larry Hart which said that he was in default on this [the escrow] agreement with Marion Center Bank[.]” Id. at 53, 77. In addition, Paul Hart testified that he was not authorized to issue a new share certificate until the old certificate was returned to the corporation, and that the corporation “could not recognize Robert Wagner as a shareholder until the certificate was transferred on the books.” Id. at 77, 79-80. Paul Hart also stated that appellee’s first formal request to have the certificate transferred on the corporate books, and for a new certificate to be issued, was sometime in 1989, id. at 80, and, as noted supra at 4, the old certificate was not presented until August 18, 1989, or soon thereafter.

II

Appellee filed a Complaint in equity seeking both the appointment of a master or custodian of Hart Co., and a preliminary restraining order against defendants to cease and desist operations of the Hart Co.

Various statutory violations were alleged with relief sought under sections 1726(c), 1767, 1791, 1792 and 1793 of the Pennsylvania Associations Code, 15 Pa.C.S.A. § 101 et seq. (Purdon's App.1991). The parties agreed at hearing to limit the issues to two, and we paraphrase: (1) was appellee a shareholder before May 31, 1988 with the right to bid on the proposed offering of 15,000 shares of Hart Co. new common stock; and (2), if so, was appellee’s bid of $50,000 timely made in accordance with the terms of the bid solicitation when sent on May 28, 1988, and received on May 31, 1988? H.T. at 81.

After briefing, the Chancellor found in favor of appellee on both issues. As to the first, and we need only reach the first issue for purposes of this appeal, the court cited as controlling the Pennsylvania Uniform Commercial Code— Investment Securities, first adopted by Pennsylvania in 1953, later amended in 1963, and presently found at 13 Pa.C.S.A. § 8101 et seq. Specifically, the court relied on section 8301(a) (UCC § 8-301(1)), which states, in pertinent part:

Rights acquired by purchaser. — Upon delivery of a security the purchaser acquires the rights in the security which his transferor had or had actual authority to convey....

Unable to find actual “physical” delivéry before August, 1989, the Chancellor, nonetheless, found sufficient evidence of Mr. Tonkin’s intent to transfer ownership on May 16, 1988, to support a finding of “constructive” delivery:

The facts of this case indicate that on or about May 18, 1988, Ronald Tonkin voluntarily [emphasis in original] entered into a sales agreement in which he agreed to sell his [emphasis in original] 500 shares of corporate stock to Robert N. Wagner in consideration of $25,000, which was paid by check at the time of the purchase. The sale was completed when Mr. Tonkin endorsed his share certificate over to Mr. Wagner, thus formally evidencing the transfer. However, due to various difficulties, the actual “physical” transfer of the stock did not occur until August of 1989, and only subsequently were they transferred on the corporate books. As was stated above, in order to effectuate a transfer of securities, delivery is the primary requirement accompanied with the intent to change ownership. This Court is of the opinion that although “actual” delivery failed to occur until over a year elapsed from the time of the agreement, “constructive” delivery occurred on or about May 18 [sic, 16?], 1988, when in fact, the written sales agreement was entered into and signed by the parties and was supported by sufficient consideration. Additionally, the endorsement of the share certificate by Mr. Tonkin over to Mr. Wagner, and Mr. Tonkin’s acceptance of the $25,000 check sufficiently evidenced his formal intent to transfer his 500 shares of stock. For these reasons, this Court reaffirms its original determination that Mr. Wagner received good title from Mr. Tonkin and that pursuant to 13 Pa.C.S.A. § 8301(a). Mr. Wagner was a recognized shareholder acquiring all the rights of a corporate shareholder and indeed eligible to take advantage of the new share issue opportunity.

Chancellor’s Opinion, filed December 10, 1990, at 3 (emphasis added).

Ill

Our scope of review from a decree in equity is fairly limited and demands that we defer to the Chancellor’s findings of fact, which have the weight of jury verdict, unless accompanied by an abuse of discretion, insubstantial evidentiary support of record, or a capricious disbelief of the evidence presented. See, e.g., Presbytery of Beaver-Butler v. Middlesex, 507 Pa. 255, 266-67, 489 A.2d 1317, 1323 (1985), cert. denied, 474 U.S. 887, 106 S.Ct. 198, 88 L.Ed.2d 167 (1985); Pierce v. Penman, 357 Pa.Super. 225, 232-33, 515 A.2d 948, 951-52 (1986); Hengst v. Hengst, 269 Pa.Super. 110, 112-13, 409 A.2d 88, 89 (1979). On the other hand, “conclusions of law or fact, being derived from nothing more than the chancellor’s reasoning from underlying facts and not involving a determination of credibility of witnesses, are reviewable.” Gey v. Beck, 390 Pa.Super. 317, 323, 568 A.2d 672, 675 (1990); Village Beer & Bev. v. Vernon D. Cox & Co., 327 Pa.Super. 99, 102, 475 A.2d 117, 118 (1984).

We find the above-quoted excerpt from the Opinion of December 10, 1990, illustrative of both factual and legal misapprehensions held by the court below. Factually, after scrupulous review of the hearing transcript, exhibits and the parties’ briefs, we find the record supports only one conclusion — endorsement and transfer of possession of the share certificate did not occur until August 18, 1989, or soon thereafter. See supra at 1210. Legally, satisfaction of the delivery requirement establishes only the legal rights and obligations existing between the transferor and the transferee, not between the transferee and the corporation. See Wagner v. Wagner, 466 Pa. 532, 540 n. 9, 353 A.2d 819, 823 n. 9 (1976) (“the name in which securities are registered is not necessarily determinative of ownership as between a transferor ... and a transferee”); see also Green v. McKee, 361 Pa. 95, 98, 63 A.2d 3, 4 (1949) (transfer of legal ownership may be accomplished absent registration on the corporate books). In support of this proposition, the Pennsylvania Uniform Commercial Code has been read to provide the corporation with a defense whereby it may choose not to recognize the transferee as a shareholder until “due presentment for registration ... of a security in registered form.” 13 Pa.C.S.A. § 8207(a); see In re Estate of Donsavage, 420 Pa. 587, 593, 218 A.2d 112, 117 n. 6 (1966); cf. Wanland v. C.E. Thompson Co., 64 Ill.App.3d 46, 48-49, 20 Ill.Dec. 803, 804-05, 380 N.E.2d 1012, 1013-14 (1978) (absent physical possession of a security, transferee held unable to comply with “due presentment” requirements of 8-207 and 8-401 (right to registration on corporate books upon “due presentment”) of the Delaware Uniform Commercial Code). Thus, both transfer of ownership (delivery with intent to transfer rights) and “due presentment for registration” serve as statutory conditions precedent to a transferees’ acquiring legal rights against a corporation. With these refinements, we will address the propriety of the lower court’s first conclusion.

The initial question we must ask is whether, as of May 31, 1988, “delivery” was accomplished consistent with 13 Pa.C.S.A. §§ 8301(a), supra, and 8313(a), infra, sufficient to transfer legal title between transferor (Tonkin) and transferee (Wagner) where: (1) the parties execute a notarized contract for the sale/purchase of stock; (2) the seller accepts and cashes a check offered by the purchaser in the purchase amount; but (3) the stock certificate remains unendorsed and possessed by a bank under an escrow agreement not for the benefit of the transferee. If a transfer of legal title through proper “delivery” is found wanting, then despite what might be equitable title in the transferee sufficient to create an implied promise against the transferor compelling the transfer of legal title, there will be insufficient ownership rights in the security to constitute legal authority in the transferee to exercise the rights of a shareholder (to bid in a private offering of new stock made to existing common shareholders). See generally 8 Anderson, Uniform Commercial Code § 8-301:6 (3d ed. 1985) (prior to delivery, transferee “is not a ‘purchaser’ but is merely a contracting party entitled to pre-Code remedies to enforce the contract”) (footnotes omitted); Note, Defective Transfer of Shares of Stock, 23 U.Pitt.L.Rev. 969, 970-974 & n. 18 (1962) (discussing “delivery” requirements under the Uniform Stock Transfer Act). Moreover, where a transferee is unable to establish legal rights in a security because of an absence of proof of delivery, we need not reach the second step of the analysis as to whether the transferee has rights against the corporation to have a bid considered/accepted. See 13 Pa.C.S.A. §§ 8207 (supra note 10) and 8401 (transferee’s right to registration).

As set forth above, “[u]pon delivery of a security the purchaser acquires the rights in the security which his transferor had....” 13 Pa.C.S.A. § 8301(a). Appellant does not cite, nor have we been able to uncover through independent research, an appellate court decision in this jurisdiction defining the “delivery” requirement of the Pennsylvania Uniform Commercial Code — Investment Securities. Nevertheless, Division 8’s “delivery” requirement, viewed as a prerequisite to a change of title/ownership, has been fully discoursed in the courts of our sister states and in the federal courts. See generally Anderson, supra § 8-301:6 (“Delivery is essential to a transfer of rights in a security.”) (footnotes omitted) (collecting cases); 15A Am. Jur.2d, Commercial Code § 104 (1976) (delivery recognized as “final or definitive act which completes the transfer or negotiation of a security”) (collecting cases); 2A Uniform Commercial Code (U.L.A.) § 8-313 (Master Ed.1977) (collecting cases).

Section 8313(a) offers an exclusive list of when delivery to a purchaser may occur:

Delivery to a purchaser occurs when:

(1) he or a person designated by him acquires possession of a security;
(2) his broker acquires possession of a security specially indorsed to or issued in the name of the purchaser;
(3) his broker sends him confirmation of the purchase and also by book entry or otherwise identifies a specific security in the possession of the broker as belonging to the purchaser;
(4) with respect to an identified security to be delivered while still in the possession of a third person when that person acknowledges that he holds for the purchaser; or
(5) appropriate entries on the books of a clearing corporation are made under section 8320 (relating to transfer or pledge within a central depository system).

The transaction between Mr. Tonkin and appellee is not one involving a broker (8313(a)(2), (3)), or clearing corporation (8313(a)(5)), nor is there evidence of record indicating that the Marion Center Bank acknowledged itself as escrow agent holding the certificate for the benefit of appellee (8313(a)(4)), which, with such an acknowledgment, might have lent support to the Chancellor’s Opinion had the security been endorsed over to appellee before May 31, 1988. Thus we are left to ask whether appellee received “possession” of the security under section 8313(a)(1) and thereby acquired the rights of his transferor under section 8301(a). And we emphasize that when we speak of “possession” under section 8313(a)(1) we speak of “physical” possession of the security itself. See In re Paragon Securities Co., 599 F.2d 551, 555 (3d Cir.1979); see also Kaufman v. Diversified Industries, Inc., 460 F.2d 1331, 1334 (2d Cir. 1972), cert. denied, 409 U.S. 1038, 93 S.Ct. 517, 34 L.Ed.2d 487 (1972); Matthysse v. Securities Processing Serv., Inc., 444 F.Supp. 1009, 1017 (S.D.N.Y.1977); see generally Anderson, supra, § 8-301:6 (“In order for delivery of security to occur under UCC § 8-301(a), either the purchaser or the designee of the purchaser must obtain actual physical possession of the security.”) (footnote omitted).

Appellee did not receive actual physical possession until sometime in August, 1989, at which time the stock certificate was endorsed over to him and withdrawn from the Marion Center Bank shortly thereafter. As noted previously, we find no evidence of record to support a finding that the certificate was held by the Bank for appellee’s benefit (a form of statutory constructive delivery under 8313(a)(4)). Nor have we been able to find any recorded indication that the certificate was endorsed over to appellee at a date prior to August 18, 1989. See supra note 9. Thus the clear inference from the record is that at no point in time before August 18, 1989, did Mr. Tonkin part with legal possession of the share certificate; for it remained at the Bank, unendorsed, in the name of Mr. Tonkin until this date. We have not ignored the notarized agreement of sale/purchase, and the cancelled check for $25,000 paid to Mr. Tonkin and possessed by appellee on May 16, 1988, but simply are unable to equate this with physical possession of the share certificate. See Kaufman, supra, 460 F.2d at 1334 (preparation for physical delivery held insufficient to transfer ownership); cf. Morris v. Kaiser, 292 Ala. 650, 299 So.2d 252, 254 (1974) (bill of sale of securities held insufficient to constitute delivery of “security” under UCC 8-302). As such, we cannot agree with the Chancellor’s finding of constructive delivery under section 8301(a). Without physical delivery of the share certificate until August 18, 1989, it follows that appellee could have had no legal rights as a shareholder against the corporation to bid on the proposed new offering before May 31, 1988.

The Chancellor’s factual finding of endorsement on or about May 16, 1988, is unsupported by the record. The legal conclusion of constructive “delivery” reasoned from this factual finding is erroneous.

Order reversed.

      . The Chancellor filed an ''opinion" accompanying the August 23, 1990, "decree nisi.” For purposes of review to this Court, we shall consider the “opinion” of August 23, 1990, an “adjudication.” See Holt’s Cigar Co. v. 222 Liberty Assoc., 404 Pa.Super. 578, 584 n. 3, 591 A.2d 743, 746 n. 3 (1991) ("opinion” considered misnomer for "adjudication”); see also Houston-Starr v. Virginia Mansions Apartments, Inc., 295 Pa.Super. 480, 481, 441 A.2d 1334, 1335 (1982) (same). We also shall consider the “opinion and order” of December 7, 1990, a "final decree” for purposes of this appeal. See Holt’s Cigar, 404 Pa.Super. at 584, 591 A.2d at 746 n. 3 (“order” considered misnomer for “decree”); see also Miller v. Miller, 359 Pa.Super. 183, 186 n. 2, 518 A.2d 841, 842 n. 2 (1986) (same).

      . Appellant filed for post-trial relief on September 11, 1990, in technical violation of Pa.R.C.P. 227.1 (“(c) Post-trial motions shall be filed within ten days after (2) ... filing of the decision or adjudication in the case of a trial without as jury or equity trial.”); see also supra note 1. Nonetheless, as the motion was considered on the merits by the Chancellor below, we shall review the issues raised herein, and argued below, as if they were preserved in accordance with the Rule. See Pomposini v. T. W. Phillips Gas & Co., 397 Pa.Super. 564, 568 n. 3, 580 A.2d 776, 778 n. 3 (1990).

      . Upon incorporation February 17, 1984, 1000 shares of common stock were authorized and issued in equal proportion to Lawrence M. Hart and Ronald L. Tonkin. On May 12, 1988, four common shareholders held the following interests in Hart Co.: Ronald L. Tonkin (500/1000 shares); Lawrence M. Hart (460/1000 shares); Joseph Hart (20/1000 shares); Gladys Hart (20/1000 shares).

      . The meeting was scheduled to be held at the Marion Center Bank as it was holder, in escrow, of Mr. Tonkin’s share certificate pursuant to an agreement of sale entered into between Mr. Tonkin and Lawrence M. Hart and for which Mr. Hart was in breach (breach is conceded by appellant). H.T. June 29, 1990, at 9. Accordingly, Mr. Tonkin was free from the escrow agreement to transfer his shares to Mr. Wagner.

      . The sale/purchase agreement reads:
      I, Ronald Tonkin, hereby agree to sell to Robert N. Wagner 500 shares of Common stock in Hart Chemical, Inc. for a sum of $25,000.00.
      /s/ Ronald A. Tonkin
      /s/ Robert N. Wagner
      The notarization reads:
      On this 16th day of May 1988, before me a notary public the undersigned officer, personally appeared Ronald A. Tonkin and Robert N. Wagner satisfactorily proven to be the persons whose name is [sic] subscribed to the within instrument and acknowledge that they executed the same for the purpose therein contained.

      . As detailed infra, on review of the record we find insubstantial support for the Chancellor’s contrary finding of endorsement on May 18 [sic, 16?], 1988, only with physical possession delayed until August, 1989.

      . The letter reads as follows:
      Dear Mr. Hart:
      According to your letter of May 12, 1988, you are considering bids for 15,000 shares of Hart Chemical Co. common stock. Your letter was to Ron Tonkin, common stock holder at the time. Since Mr. Tonkin sold his shares of Hart chemical Company to Mr. Robert N. Wagner, and since Mr. Wagner is not a common shareholder Mr. Robert N. Wagner hereby offers the sum of $50,000.00 as per your letter of May 12, 1988 for the entire 15,000 shares of Hart Chemical Company common stock. This letter is to notify you of that bid.
      Let it be understood Mr. Robert N. Wagner is making this bid under protest, since proper procedures were not followed under Hart Chemical Company by-laws and since Mr. Tonkin revoked his consent to sell the 15,000 common shares of Hart Chemical Company by letter of May 24, 1988.
      Plaintiffs exhibit 7.

      . Division 8 applies to "securities," defined in section 8102 as follows:
      (1) A "security" is an instrument which:
      (i) is issued in bearer or registered form;
      (ii) is of a type commonly dealt in upon exchanges or market or commonly recognized in any area in which it is issued or dealt in as a medium for investment;
      (iii) is either one of a class or series or by its terms is divisible into a class or series of instruments; and
      (iv) evidences a share, participation or other interest in property or in an enterprise of evidences an obligation of the issuer.
      13 Pa.C.S.A. § 8102.
      The parties do not contest application of the Code provisions to the shares of Hart Co. common stock. We concur in that common stock of a closely-held corporation falls within the compass of Division 8.

      . Curiously, a copy of the share certificate was not made part of the record; Mr. Wagner, however, testified as follows:
      Q. When did you actually get your stock certificate from Mr. Tonkin?
      A. It was a short time after the 5th of October of ’89.
      Q. Okay. Are you saying from Hart Chemical or Mr. Tonkin?
      A. From Hart Chemical. I never got anything from Mr. Tonkin.
      Q. Okay. We have certificate number four, 500 shares to Mr. Tonkin. On the back of that it shows transfer over to you, Robert N. Wagner and it’s dated 8/18/89. Do you know anything about this?
      A. No, I know nothing about it.
      Q. [When visiting the Hart Co. plant,] [d]id you also give him [Paul] the stock certificate that Mr. Tonkin executed in your favor?
      A. I don’t know. I didn't have the stock certificate. I never saw the stock certificate, period.
      Q. Okay. So, even August of 1989 you had still not seen that stock certificate?
      A. I hadn’t seen that, no.
      H.T. at 30-32 (emphasis added).

      . Section 8207(a) provides:
      General rule. — Prior to due presentment for registration or transfer of a security in registered form the issuer or indenture trustee may treat the registered owner as the person exclusively entitled to vote, to receive notifications and otherwise exercise all the rights and powers of an owner.

      . Research did uncover a relevant trial court opinion. See Morrison v. Liberty Discount & Savings Bank, 61 Lack.Jur. 37, 41 (1960). In Morrison, the Court of Common Pleas held that delivery had taken place where endorsement in blank was accompanied by physical possession of the share certificate by the transferee. See 12A P.S. § 8-313.

      . Our appellate courts have, however, addressed the "delivery” of investment securities incident to transfer absent specific citation to, or reliance on, sections 8301 and 8313 of the Pennsylvania Uniform Commercial Code — Investment Securities.
      For instance, in Wagner v. Wagner, 466 Pa. 532, 537-41, 353 A.2d 819, 821-23 (1976), our supreme court defined an inter vivos gift of corporate stock around the "delivery” necessary to effectuate a valid gift, i.e., relinquishment by the donor of dominion and control of the subject matter of the gift. The Wagner court held that “delivery" of stock was complete where a donor instructed his secretary to record on the corporate books the issuance of shares to his children for an initial issuance of stock, even where the "physical” share certificates remained in the corporate office thereafter. The court felt that the donor "had done all that was possible to put the [shares] beyond his control.” Id. 466 Pa. at 540, 353 A.2d at 823. And in support, the court cited McClements v. McClements, 411 Pa. 257, 191 A.2d 814 (1963), as “recent authority re-affirming that, at least in some circumstances, a mere change in registered ownership is effective delivery of a gift of corporate stock." Id.; see also Robert’s Appeal, 85 Pa. 84 (1877) (transfer on corporate books held sufficient to constitute “delivery” of shares despite donor’s retention of actual physical possession of newly-issued certificates).
      Significantly, Division 8 of the Pennsylvania Uniform Commercial Code applies to transactions involving the "gift” of investment securities. See 13 Pa.C.S.A. § 1201 (purchase defined as including “taking by ... gift or any other voluntary transaction creating a property interest). Perplexing, therefore, is the absence of citation to the relevant Code provisions in either the Wagner or McClements decisions. See Ashley v. Ashley, 482 Pa. 228, 235, 393 A.2d 637, 640 (1978) (observing that the supreme court previously has eschewed discussion of whether a “transfer complied with the provisions of ... the Uniform Commercial Code" — citing Brightbill v. Boeshore, 385 Pa. 69, 122 A.2d 38 (1959)).
      We also note another line of cases holding against “delivery” to an alleged joint owner of stock due to a lack of actual possession of the security by the claimant/alleged joint owner. See, e.g., In re Martella’s Estate, 390 Pa. 255, 135 A.2d 372 (1957) (court finding "no evidence to prove that decedent ever actually delivered the stock certificate to [claimant] or that [claimant] ever had actual possession of the stock certificate”) (emphasis in original); In re Grossman's Estate, 386 Pa. 647, 126 A.2d 468 (1956) (same). Again, the Code was not cited.
      In sum, the most that can be gleaned from the above-referenced cases is that registration on a corporation’s books may constitute “delivery” absent actual physical possession of the share certificate. Marietta and Grossman are not to the contrary. In Grossman the donor was the exclusive registered owner; in Marietta the court failed to mention this fact. Instantly, the cases offer little assistance for several reasons: (1) conspicuously absent in each is any reference to the pertinent Code provisions; (2) appellee’s stock was registered with appellant corporation subsequent to the relevant time period — May 31, 1988; and (3) we feel that the issue involved in this appeal is governed specifically by the provisions of Division 8. See 13 Pa.C.S.A. § 1103 ("Unless displaced by the particular provisions of this title, the principles of law and equity ... shall supplement its provisions.").

      . One commentator makes the following helpful analogy:
      While delivery is defined by UCC § 1-201(14) [13 Pa.C.S.A. § 1201] as a voluntary transfer of possession, it is given a more specific definition by UCC § 8-313(1)(a) [13 Pa.C.S.A. § 8313(a)(1) ], which with respect to securities provides that delivery occurs when a person acquires possession of a security.
      Anderson, supra, § 8-313:5.

      . We do not reach the question of whether the corporation might have rejected appellee’s bid pursuant to section 8207 (supra note 10) had delivery been proper. We note, however, one state court’s comment on the scope of UCC 8-207 in this regard:
      Taken on its face and standing by itself, the language [of UCC 8-207] would appear to go beyond the result reached in the cases which were decided under common law, in the sense that it would permit an issuer or its transfer agent to ignore a known adverse claimant until such time as he actually presents securities in proper form for registration of transfer.

        New England Merchants National Bank of Boston v. Old Colony Trust Co., 11 Mass.App. 539, 417 N.E.2d 471, 474 & n. 11 (1981).
      Nor need we reach the issue of timely endorsement without delivery under section 8309 ("An endorsement of a security whether special or in blank does not constitute a transfer until delivery of the security on which it appears____”).


author: KELLY, Judge: CAVANAUGH, Judge,

text:
    597 A.2d 1216
    COMMONWEALTH of Pennsylvania v. Jeffrey PATTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 17, 1990.
    Filed Oct. 10, 1991.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Claire C. Capristo, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

      Before CAVANAUGH, KELLY and FORD ELLIOTT, JJ.
   KELLY, Judge:

In this appeal we are called upon to determine whether a prisoner’s escape from a hospital to which he had been temporarily transferred for medical treatment, is an escape from a “treatment center” under the Sentencing Code. 204 Pa.Code §§ 303 et seq. We conclude that it is not and affirm judgment of sentence.

The relevant facts stipulated to at appellant’s bench trial are as follows. Appellant, who was incarcerated awaiting trial on unrelated charges of robbery and kidnapping, was temporarily transported in shackles from county jail by a corrections officer to a hospital for x-rays. Appellant’s shackles were removed to allow him to use the bathroom. When the corrections officer moved to make a phone call requesting transportation for himself and appellant back to the county jail, appellant fled the hospital grounds. A hospital security guard chased appellant, capturing him some five blocks from the hospital.

Following a recitation of these facts, the court convicted appellant of escape and scheduled sentencing. Appellant was sentenced to forty (40) to eighty (80) months imprisonment, consecutive to any sentence he was then serving. Appellant filed a timely motion to modify sentence on April 9, 1990. Notice of appeal was then timely filed May 1, 1990.

On January 17, 1991, appellant filed a pro se supplemental brief with this Court. Pursuant to Commonwealth v. Ellis, 398 Pa.Super. 538, 581 A.2d 595 (1990) (en banc) this Court thereafter directed the prothonotary to forward to appellant’s counsel a copy of appellant’s pro se amendment to his counselled appeal. Since the supplemental brief raised no allegations of ineffectiveness or exhibited a desire to proceed pro se, counsel was ordered to examine it, determine if any of appellant’s issues have merit, and, if necessary, file a supplemental brief within 14 days. See Commonwealth v. Ellis, supra, 398 Pa.Super. at 550, 581 A.2d at 600. As no further brief was filed, we will address only the brief filed by counsel.

Counsel for appellant raises the following issue on appeal:

I. WAS COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO THE INCORRECT OFFENSE GRAVITY SCORE OR RAISE THIS ISSUE IN A MOTION TO RECONSIDER SENTENCE?

Appellant’s Brief at 3.

Initially, we note that appellant’s underlying claim that the trial court used the incorrect gravity score is a challenge to the discretionary aspects of sentence. Commonwealth v. Minott, 395 Pa.Super. 552, 577 A.2d 928 (1990). He has complied with the procedural requirements of Pa.R.A.P. 2119(f). In determining whether to grant allowance of appeal, however, we must also determine whether appellant has presented for our consideration a substantial question as to whether the trial court’s imposition of sentence compromised the sentencing code as a whole. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Commonwealth v. Felix, 372 Pa.Super. 145, 152, 539 A.2d 371, 374 (1988); Commonwealth v. Darden, 366 Pa.Super. 597, 603, 531 A.2d 1144, 1147 (1987); 42 Pa.C.S.A. 9781(b).

Instantly, appellant argues that the sentencing court assigned an incorrect offense gravity score of 7 to his crime when determining his sentence. Appellant argues that his escape from a hospital should have been considered, under the guidelines, as an escape from a “treatment center.” Since escapes from “treatment centers” receive a gravity score of only 6 under the guidelines, he concludes that the trial court abused its discretion. In support of this contention, appellant offers no case law or authority other than the superficial plausibility of the contention that for these purposes, the terms “treatment center” and “hospital” may be equated. Nonetheless, in view of the fact that the precise construction of the sentencing code has not been previously addressed in this context, we find that a substantial question has been presented and grant allowance of appeal.

In Pennsylvania, escapes while under arrest for, or detained on, a charge of a felony or following conviction of a crime are third degree felonies. 18 Pa.C.S.A. § 5121(d)(1). The Sentencing Code provides that an escape “from a halfway house, pre-release center, treatment center, work-release center, work-release, or by failing to return from an authorized leave or furlough” should be given an offense gravity score of 6. See 204 Pa.Code § 303.8 (emphasis added). All other escapes receive a gravity score of 7. Id.

It is true, as appellant suggests, that a hospital is in some sense a “center” for “treatment.” Whether this broad definition of the term “treatment center” as used in the sentencing code is appropriate, however, is a different matter.

Viewing the term “treatment center” in the context in which it is used in the sentencing code lends light on the question. Under the sentencing code, the forms of confinement from which an individual may escape and receive a gravity score of 6, other than “treatment centers,” are: half-way houses, pre-release centers, work-release centers, work-releases, and authorized leaves and furloughs. 204 Pa.Code § 303.8. These forms of confinement are low-level or partial confinement sentences imposed by the court at sentencing. Each are essentially rehabilitative in nature and each may be imposed only after the court has first had the opportunity to balance the rehabilitative needs of the offender against, inter alia, the incapacitative needs of society. 42 Pa.C.S.A. 9721(b) (confinement must be consistent with, inter alia, the protection of the public); see also generally 42 Pa.C.S.A. § 9755 (1991) (regulating the sentence of partial confinement). Where the court determines the rehabilitative needs are high and the risk to the public posed by the offender at large is sufficiently low, such low-level or partial confinement settings may be appropriate. Where, however, the offender is deemed likely to be dangerous, total confinement in a setting where the focus is on incapacitation for a given term will be deemed necessary.

That the sentencing code has enumerated as grade 6 escape locations essentially rehabilitative low-level confinement settings which are unavailable to offenders who the court has not determined are sufficiently safe to the public is significant. It is this court’s opinion that the purpose of distinguishing between escapes in the sentencing code was to suggest a lesser sentence only to escapees who have been determined, by a sentencing court, to be less dangerous to the public. This common sense distinction simply reflects recognition of the fact that society has degrees of need to incapacitate a criminal depending on the degree of danger to the public the criminal poses. In this case, the sentencing code has distinguished two such degrees which are based upon the type and location of confinement under which the sentencing court has ordered the offender undergo.

Applying this conclusion instantly, it is clear that appellant’s interpretation of the sentencing guidelines is flawed. Before his escape, appellant had been incarcerated in jail awaiting trial for robbery and kidnapping. Upon learning that appellant needed x-rays, prison officials shackled appellant and transported him to the hospital. The shackles were removed at the hospital for the sole purpose of facilitating the diagnosis. The reduced level of confinement was thus bom of only medical necessity. It was entirely unrelated to any court determination as to the danger appellant posed to the public. Whatever the situs of the escape, the type and location of the confinement order which appellant was undergoing at the time of the escape remained that which had bound him into custody awaiting trial originally. This was an order of total confinement, unlike any type of confinement enumerated in the grade 6 offenses in the sentencing code. Thus, we conclude that where, as here, an offender escapes from a hospital to which he had only been temporarily transferred for medical treatment, the hospital may not be considered a “treatment center” under the sentencing code.

Accordingly, we hold that the trial court did not err in its interpretation of the guidelines. Appellant’s escape from a hospital herein was properly assigned a gravity score of 7, and counsel cannot be faulted for failing to object to the appropriate grading. See Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989). Hence, appellant’s claim on appeal must fail.

Judgment of sentence AFFIRMED.

CAVANAUGH, J., files a concurring opinion.

FORD ELLIOTT, J., concurs in the result of the majority opinion.

CAVANAUGH, Judge,

concurring:

I concur in the analysis and result reached by Judge Kelly’s opinion.

I note that appellant has filed a pro se amendment to the appeal. Because I believe that the supreme court mandates that this court consider issues raised in pro se filings in cases in which a counseled brief is filed, see Commonwealth v. Gaerttner, 518 Pa. 452, 543 A.2d 1091 (1988), I have examined the merits raised in the pro se filing and find them to be without merit.

For the above reasons, I concur in the affirmance of the judgment of sentence.

      . 18 Pa.C.S.A. § 5121.

      . We note, however, that cursory review of the claims appellant raises reveals them to be wholly without merit.

      . See e.g. Commonwealth v. Melnyk, 378 Pa.Super. 42, 53-54, 548 A.2d 266, 272 (1988) (Accelerated rehabilitative disposition program is appropriate for welfare fraud perpetrator).

      . See e.g. Commonwealth v. House, 371 Pa.Super. 23, 31, 537 A.2d 361, 365 (1988) (incarceration appropriate in view of inter alia, assault and robbery offender’s "propensity for violence’’); Commonwealth v. Mattis, 352 Pa.Super. 144, 153-54, 507 A.2d 423, 428 (1986) (sentence below guidelines which called for total confinement inappropriate in view of unreasonable violent nature of the offense, i.e. aggravated assault); Commonwealth v. McCall, 320 Pa.Super. 473, 482, 467 A.2d 631, (1983) (total confinement appropriate where offender “has committed violent offenses [rape, robbery, and burglary] and he will continue to do so and that when he is at liberty, the public is at hazard, in danger.’’); Commonwealth v. Franklin, 301 Pa.Super. 17, 30-31, 446 A.2d 1313, 1320 (1982) (sentence of total confinement appropriate for crime of aggravated assault); see also generally 42 Pa.C.S.A. § 9756 (regulating sentence of total confinement); Project, A Description of Pre-release in Pennsylvania, 20 Villanova L.Rev. 967, 993 (1974-1975) ("residents who represent any sort of security risk are not considered for any form of release”); cf. 42 Pa.C.S.A. § 9722(1), (2) (1991) (non-violent attributes of offender should be weighed in determining whether to grant parole).

      . Review of the commentary to the 1988 version of the guidelines supports this conclusion:
      The commission changed the scores applicable to felony III escape [18 Pa.C.S. § 5121] effective January 2, 1986. This amendment subcategorizes escape based on the type of custody from which the defendant absconded. Generally, non-violent felony escapes from "low level” custody, such as work release, furlough, etc., receive a score of 6, while escapes with violence, or from secure facilities continue to get the score of 7. Previously, all felony III escapes received a score of 7. Analysis of guideline sentence forms for this crime showed that judges frequently departed from the guidelines when the defendant simply “walked-off’.
      204 Pa.Code § 303.8, Commentary.

      . The authority for so transferring appellant for medical treatment may be found in 61 Pa.S.A. § 81 which provides in relevant part:
      Whenever any convict or person is confined in any jail, workhouse, reformatory, or reform or industrial school, penitentiary, prison, house of correction or any other penal institution, under conviction or sentence of a court, or is so confined while awaiting trial or confined for any other reason or purpose and it is shown to a court of record by due proof that such convict or person is seriously ill, and that it is necessary that he or she be removed from such penal institution, the court shall have power to modify its sentence, impose a suitable sentence, or modify the order of confinement for trial, as the case may be, and provide for the confinement or care of such convict or person in some other suitable institution where proper treatment may be administered.
      (Emphasis added). This statute simply authorizes the transfer of an accused or a prisoner to another facility to provide necessary treatment where such treatment is not available at the facility in which the prisoner is officially confined. As the statute expressly provides, however, “upon the recovery of such person, the court shall recommit him or her to the institution from which he or she was removed. ” Id.

      . We note that 35 Pa.S.A. § 780-118 provides in relevant part:
      (a) If a person charged with a nonviolent crime claims to be drug dependent or a drug abuser and prior to trial he requests appropriate treatment, including but not limited to, admission or commitment under the Mental Health and Mental Retardation Act of 1966 in lieu of criminal prosecution, a physician experienced or trained in the field of drug dependency or drug abuse shall be appointed by the court to examine, if necessary, and to review the accused’s record and advise the government attorney, the accused and the court in writing setting forth that for the treatment and rehabilitation of the accused it would be preferable for the criminal charges to be held in abeyance or withdrawn in order to institute treatment for drug dependence or for the criminal charges to be prosecuted. The government attorney shall exercise his discretion whether or not to accept the physician’s recommendation.
      ******
      (f) If, after conviction, the defendant requests probation with treatment or civil commitment for treatment in lieu of criminal punishment the court may appoint a qualified physician to advise the court in writing whether it would be preferable for the purposes of treatment and rehabilitation for him to receive a suspended sentence and probation on the condition that he undergo education and treatment for drug abuse and drug dependency, or to be committed pursuant to the Mental Health and Mental Retardation Act of 1966 for treatment in lieu of criminal punishment, or to receive criminal incarceration. A copy of the physician’s report shall be furnished to the court, the defendant and the government attorney. The court shall exercise its discretion whether to accept the physician’s advice.
      35 Pa.S.A. § 780-118(a)(f). This statute describes an example of a “treatment center" we believe the sentencing code drafters intended to include within the enumerated grade 6 locations of confinement. This statute authorizes a form of low-level or partial confinement which may be imposed “in lieu of criminal punishment.” Id; see also Commonwealth v. Kubiac, 379 Pa.Super. 402, 413, 550 A.2d 219, 225 (1988); Commonwealth v. Waters, 361 Pa.Super. 154, 157, 522 A.2d 60, 63 (1987). See also Commonwealth v. Conahan, 527 Pa. 199, 589 A.2d 1107 (1991); Mental Health and Retardation Act, 50 Pa.S.A. 4401(c). Moreover, the nature of the offender determines the availability of such treatment. Only those non-violent offenders who may be appropriately so confined may reap the benefits of such rehabilitative confinement. 35 Pa.S.A. § 780-118(a). Presumably, at least, such offenders pose less risk to the public and thus the severity of the escape from such a facility is considered less accordingly.