author: HOFFMAN, Judge:

text:
    644 A.2d 167
    COMMONWEALTH of Pennsylvania v. Harry J. SEDGWICK, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 15, 1994.
    Filed May 16, 1994.
    Reargument Denied July 15, 1994.

      Kenneth C. Jones, Jenkintown, for appellant.
    Vram Nedurian, Jr., Asst. Dist. Atty., Newton Square, for Com., appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order entered August 27, 1993 finding appellant, Harry J. Sedgwick, guilty of driving while his operating privilege was suspended. Appellant presents the following question for our review:

1. Whether a police officer’s observation of a driver’s failure to wear a seat belt can serve as probable cause to carry out a lawful traffic stop wherein the officer, upon further investigation occasioned by that stop, issues the driver a citation for driving while under suspension?

Appellant’s Brief at 4. For the reasons set forth below, we reverse.

On July 28, 1991, at approximately 10:01 a.m., Officer William Shields was on duty in front of the Lenhardt Fire Company. Officer Shields’ car was stationed approximately six feet away from the passing cars. As appellant drove past Officer Shields, the officer noticed that appellant was not wearing his seat belt. Officer Shields stopped appellant and discovered that appellant’s license had been suspended for one year, on April 4, 1991, following conviction for driving under the influence. Appellant was cited for driving while his license had been suspended and issued a warning notice for failure to comply with the seat belt requirement.

On December 22, 1992, appellant was found guilty of driving under suspension. Appellant filed a motion in arrest of judgment which was subsequently dismissed on August 6, 1993. Appellant was sentenced to 90 days in prison and received a fine of $1,000.00. This timely appeal followed.

Appellant contends that violation of the seat belt law does not constitute probable cause for the charge of driving while under suspension. We agree.

A police officer may stop a motor vehicle if he reasonably believes that a provision of the motor vehicle code is being or has been violated. See 75 Pa.C.S. § 6308; Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992). Incident to this stop, an officer may check the vehicle’s registration, the driver’s license and obtain any information necessary to enforce provisions of the motor vehicle code. 75 Pa.C.S. § 6308.

Under 75 Pa.C.S. § 4581, a driver’s failure to wear a seat belt is a clear violation of the motor vehicle code. 75 Pa.C.S. § 4581. It would therefore appear that an officer has the authority to stop a vehicle for violation of the seat belt law, and check the licensing status of the driver. However, a proceeding for violation of the seat belt law may only be brought after conviction on another section of the motor vehicle code. 75 Pa.C.S. § 4581(a)(2), (b) & (f). Further, evidence of violation of the seat belt law may only be admitted in a proceeding under that section. 75 Pa.C.S. § 4581(f). Therefore, in the instant case, the Commonwealth should have been precluded from introducing evidence of appellant’s failure to wear a seat belt, in the proceedings for appellant’s charge of driving while under suspension. Moreover, there was no evidence that the officer had probable cause to believe that any section of the motor vehicle code, other than 75 Pa.C.S. § 4581, was being or had been violated at the time he checked appellant’s driving status. 75 Pa.C.S. § 4581(f) effectively prevents the Commonwealth from articulating the circumstances giving rise to probable cause to effect a lawful traffic stop. Consequently, the trial court erred in finding that probable cause, for charging appellant for driving without a license, had been established. Accordingly, the judgment of the trial court is reversed.

Reversed.

POPOVICH, J., concurs in the result.

      . 75 Pa.C.S. § 1543.

      . The statute provides limited exceptions to the seat belt requirement which are inapplicable here.


source: Caselaw Access Project

author: DEL SOLE, Judge: TAMILIA, Judge,

license: Public Domain

text:
    644 A.2d 168
    COMMONWEALTH of Pennsylvania v. Jeffrey JOHNSTON, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1993.
    Filed June 8, 1994.

      Elliot Jay Segel, Erie, for appellant.
    Joseph P. Conti, Asst. Dist. Atty., Erie, for the Com., appellee.
    Before DEL SOLE, TAMILIA and HESTER, JJ.
   DEL SOLE, Judge:

Jeffrey Johnston appeals from the judgment of sentence entered, by the Court of Common Pleas of Erie County, following guilty verdicts on the charges of criminal conspiracy (18 Pa.C.S.A. § 903), burglary (18 Pa.C.S.A. § 3502), theft by unlawful taking or disposition (18 Pa.C.S.A. § 3921), and criminal mischief (18 Pa.C.S.A. § 3304). A Motion for Arrest of Judgment was granted for lack of sufficient evidence on the conviction for criminal mischief. Post-verdict motions were filed and denied. Appellant received a sentence of two to five years with five years probation consecutive to incarceration on the burglary conviction, and ten years probation for criminal conspiracy to be served consecutive to the probation on the burglary. Appellant filed this timely appeal. We reverse.

The following are the issues as framed by appellant:

I. The Commonwealth’s concealment of material and exculpatory evidence, namely its plea bargained arrangement with appellant’s alleged co-defendant/accomplice; its failure at trial to correct said witness’ false and/or misleading denials of any such arrangement, and its participation in eliciting this misleading evidence through its direct examination of this witness; and its knowing exploitation of this misleading impression in closing argument all constituted prosecutorial misconduct and violated appellants state and federal constitutional rights to due process of law, a fair trial, and confrontation of adverse witnesses.
II. Appellant was denied his state and federal constitutional rights to the effective assistance of counsel.

Appellant met a man by the name of Robert Klingensmith while patronizing a bar called Rum Runners. Appellant and Klingensmith talked about a variety of issues and drank together for three or four hours. When they ran out of money, Klingensmith told appellant that he was formerly employed by McCormick Materials and there was a possibility that they could obtain money there. Klingensmith was referring to money in the petty cash fund used by the employees to buy soft drinks. Appellant expressed interest in tools and wanted to go with Klingensmith to McCormick Materials. They decided to meet later that night at a different bar called Haggerty’s. Appellant left his car at Haggerty’s and accompanied Klingensmith. The two men went to a supermarket where they bought rubber gloves and then proceeded to McCormick Materials.

Arriving at their destination, they went to the south end of the building where Klingensmith used a screwdriver to pry open the door and enter the building. In the lunchroom, Klingensmith took petty cash from the drawer. They continued to walk through the building taking items including weigh scales and looking for tools. They went to a garage and took ratchets, wrenches, sockets, hand tools and some power tools. They also took a service truck after loading it with an air compressor, a sump pump and mig welder. Appellant drove the truck and Klingensmith left in his own car. Appellant suggested that they go to a certain garage and unload and sell the materials. The garage was closed when they arrived, but they found the garage operators after unloading the truck. They left the garage and abandoned the vehicle behind a building about seven blocks away. Before leaving, they sprayed the truck with WD-40 to eliminate any fingerprints that might have been left. The Erie police found the truck the following day.

Before addressing the first issue, we will respond to the contention raised by appellee that appellant has waived his right to challenge the pre-trial and trial conduct of the prosecutor and/or the trial court due to the failure to include this elaim in the concise statement of the matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). “The purpose of the Pa.R.A.P. 1925(b) statement is to specify the particular issues which appellant intends to present on appeal in order to permit the trial court an opportunity to provide the appellate court with a focused and meaningful explanation for any challenged actions in its Pa.R.A.P. 1925(a) opinion.” Commonwealth v. Osteen, 381 Pa.Super. 120, 552 A.2d 1124 (1989).

Appellant asserts that the 1925(b) statement was filed by the newly-retained appellate counsel who was not aware of these issues, since the trial transcripts had not been timely prepared prior to the filing deadline for the 1925(b) statement. New counsel notes in the 1925(b) statement that he was not retained by appellant until after the April 15, 1993 sentencing hearing. Before appellate counsel was retained, he did not have knowledge of these proceedings and had limited time to communicate with his client who was transferred to a Correctional Institution in another county after sentencing. Counsel requested, in the 1925(b) statement, that it not be considered all inclusive. The trial transcripts were available for new-counsel’s review one day before the 1925(b) statement was due.

Appellees nonetheless argue that new-counsel should have filed a motion for an extension of time to review the transcripts, and since he did not, the issue should be waived. “Failure to raise a particular issue in the concise statement of matters complained of on appeal may result in waiver of that issue if that failure makes appellate review difficult.” Commonwealth v. Forest, 427 Pa.Super. 602, 629 A.2d 1032, 1035 (1993). In Osteen, supra, this court did not waive the issues on appeal even though they were not in the 1925(b) statement because dismissal of the appeal on the basis of procedural default would inappropriately put the burden of such default on the defendant rather than the offending counsel; additionally, with criminal appeals, dismissal would result in further delay and expense through collateral appeals raising the ineffectiveness of counsel. Since appellate counsel did not have sufficient time to review the trial transcripts and our review of the issue is not impaired by the failure to include it in a 1925(b) statement, we decline to exercise our discretion to consider the issue waived.

Appellant’s first allegation of error is that the Commonwealth concealed the plea bargain agreement of its chief witness from the defense resulting in an unfair trial and a violation of appellant’s due process rights. By not divulging the information regarding the plea bargain or correcting the testimony of the chief witness, the prosecutor misled the jury and allowed it to believe that the chief witness did not receive favorable treatment from the Commonwealth. The chief prosecution witness in this case was Robert Klingensmith, appellant’s co-defendant. Klingensmith was sentenced by the Honorable Stephanie Domitrovich, the judge presiding in appellant’s case, prior to appellant’s trial.

Klingensmith pled guilty on January 6, 1993 and signed a document entitled “Defendant’s Statement of Understanding of Rights Prior to Guilty/No Contest Plea”. (RR. 405a). Question five of the document inquires regarding a plea bargain and the typed portion of the response says “none. The defendant will plead guilty to Counts 1, 2, 3 and Count 4 will be nolle prossed with costs on defendant. BHF:jac.” Immediately following this sentence in hand-writing it is noted that “[t]he Commonwealth will have no objection to a county sentence based upon a favorable pre-sentence and full cooperation against any co-defendants. BF.” (RR. 401). Furthermore, at co-defendant Klingensmith’s sentencing hearing, the Commonwealth’s attorney, Mr. Zak, commented:

Mr. Zak: If I may, if counsel has no objection, I’d like to ask the defendant a question. I don’t know what’s happened with Mr. Johnston’s case right now, your co-defendant. Are you still willing to testify in that case?
Mr. Klingensmith: Yes. Mr. Zak: As far as the Commonwealth is concerned, first of all, we have a fairly extensive presentence report, mainly the police report, which says something about ... defendant’s statement and cooperation....
We have no problem with going ahead with the sentencing at this point, given the defendant’s statements.

Sentencing transcript 2-16-93 at 10-11 (RR.417a-418a).

Judge Domitrovich then sentenced Klingensmith as follows: As to the sentence, the sentence is within the standard range. The Court has given the defendant a county incarceration sentence, since this was part of the plea bargain with the District Attorney’s Office. The Court has taken into consideration the defendant has agreed to provide truthful cooperation in regard to a co-defendant ...

Sentencing transcript 2-16-93 at 16. Klingensmith received a sentence of incarceration of eleven and one-half months to twenty-three and one-half months followed by eight years probation. The other sentences were concurrent. Six days later, Judge Domitrovich entered an order granting Klingensmith a sentence of partial confinement so that he could be placed in the Work-Release Program.

Prior to appellant obtaining representation by the Erie County Public Defender’s Office, appellant represented himself pro se. Appellant filed a pro se Motion for Pre-Trial Discovery on January 11,1993. In its response, the Commonwealth revealed some statements by Klingensmith implicating appellant in the crimes; however, the plea bargain arrangement was not disclosed. When a public defender was appointed to represent appellant, another discovery request was made and the plea bargain between the Commonwealth and appellant was not included in the information. These discovery requests were made after Klingensmith pleaded guilty and agreed to assist the Commonwealth.

Appellant argues that the plea bargain impacts on the credibility of Klingensmith, the only eyewitness to directly link appellant to the crime. Therefore, the agreement should have been disclosed at the trial. At the end of the prosecution’s direct-examination of Klingensmith, the prosecutor questioned him as follows:

Q. Okay. Now, sir, you’ve already told this jury that before you even got here, of course, that you were charged, that you’ve entered your pleas of guilty, and that you’ve been sentenced, correct?
A. Yes.
Q. All right. And that your case is all done now, correct? A. Except for paying for what I did.
Q. All right. Has anybody in any way promised you any leniency now that you’re serving your sentence, promised you any leniency, like a change in your sentence or any sort of help as a result of your testimony today?
A. No.
Q. Okay. In other words, nobody has told you that now that you’re testifying you’re now going to get some help? A. No.
Q. All right. Has anybody in any way forced you or pressured you in any way into saying things that you said today?
A. No.
Q. All right. Has anybody told you what to say today? Has anybody told you “I want you to get up” and gave you a script and told you what to say?
A. No,. I just was asked to tell what happened that night. Q. All right. Why is it then — all right. You’ve served your sentence—
A. Serving.
Q. Or you’re serving your sentence, and everything is done. Why are you testifying today then? Why are you taking the time today then to tell this jury what happened on September 16th and September 17th?
A. Because I think that the truth about that night should — should be told, the whole story, not just that — that I went and did this myself.

Trial transcript 3-9-93 at 186-187. On cross-examination, Klingensmith stated that he did not receive any inducement to testify at appellant’s trial. In'closing arguments, the prosecutor commented:

Ladies and gentlemen, the second thing that you have to deal with with respect to Robert Klingensmith is this: You can envision through common sense that there may be circumstances where the defendant, a co-defendant such as Robert Klingensmith, has taken the stand, pled guilty, but he’s waiting for his sentence to come. Maybe he’s going to be sentenced a month or two after the time of trial.
And you may ask yourself geez, under those circumstances maybe what he’s doing is he’s testifying so that he can get a sentence that he likes. The problem with that theory here is that Robert Klingensmith is sentenced. He’s done. It’s over with. And if he wants to look at me and tell me “I don’t have anything to say anymore, what are you gonna do about it,” he gets sentenced, he’s serving his time and it is over with. And for Mr. Grayer [defense counsel] to suggest that there’s some sort of special benefit that he’s going to get, there is absolutely no evidence of that. There’s nothing. As Mr. Klingensmith said, “Listen, I don’t get my sentence changed. I don’t get anything.”

Trial transcript 3-9-93 at 125-126.

Appellant believes that the Commonwealth’s failure to disclose the plea bargain with Klingensmith was a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which requires the prosecution to release to the defense all material evidence tending to absolve the defendant. Our supreme court in Commonwealth v. Moose, 529 Pa. 218, 602 A.2d 1265, 1272 (1992), stated:

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held “that suppression by the prosecutor of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. at 1196. Furthermore, “[w]hen the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule.” Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 768, 766, 31 L.Ed.2d 104 (1972), quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959).

Id. The defense made two discovery requests which would be considered “general request” for exculpatory evidence. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Even though Klingensmith had not been formally sentenced at the time that the Commonwealth responded to the discovery requests, the Commonwealth was aware that Klingensmith had pleaded guilty with the expectation of receiving a county sentence if he fully cooperated with the prosecution in its case against appellant, and this was clearly documented in writing in Klingensmith’s guilty plea form on January 6, 1993.

Appellant contends that the Brady rule would apply in this case for two reasons: the prosecution obtained a conviction through the use of materially false or perjured information, and the defense made no specific request for particular exculpatory evidence, but the prosecution knew, or had reason to believe, that the prosecutor possessed information or evidence that would tend to exculpate the defendant. See Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983).

We disagree with appellant that the first Brady situation would apply based upon the Commonwealth’s nondisclosure during trial that Klingensmith received a county sentence due to his assurance to the Commonwealth that he would fully cooperate in the prosecution against appellant. Although the information is very relevant because it affects credibility, it cannot be characterized as materially false or perjured. The prosecuting attorney did not state that Klingensmith had never received any benefits from his testimony, he made it clear that Klingensmith already was sentenced and was not promised any future leniency.

However, the second Brady situation mentioned by appellant would be applicable to his case. The defense made general discovery requests for exculpatory evidence. Similarly, in Moose, supra, the defendant’s discovery request sought any statements made by the defendant or witnesses — whether inculpatory or exculpatory — which would be characterized as a general request. We stated in Moose that:

Where the request is general, rather than specific ... evidence is material “if the omitted evidence creates a reasonable doubt that did not otherwise exist----” [Agurs ], 427 U.S. at 112, 96 S.Ct. at 2402. We believe that a witness’ apparent motivation is relevant. When that witness was a significant witness for the Commonwealth, who testified that Moose claimed he raped the victim and hit her with a rock, his motivation for testifying was crucial and hence, material. It “creates a reasonable doubt that did not otherwise exist.” Id.

Moose, 529 Pa. 218, 232-284, 602 A.2d 1265, 1272-1273.

We believe that Klingensmith’s plea bargain was material to appellant’s case because it would have shown that he had a motivation to testify against appellant and that he was not merely testifying so that the truth would be told. Although Klingensmith was already sentenced at the time of appellant’s trial and he would not receive a more lenient sentence after providing the testimony, he knew that the plea agreement, which recommended a county sentence, required him to fully cooperate and testify against appellant. This plea bargain gave Klingensmith incentive to testify against appellant and could create a reasonable doubt in the minds of the jurors that may not have otherwise existed. Thus, the prosecution’s nondisclosure of this information affecting the credibility of its most important witness constitutes a violation of Brady and requires a new trial.

Appellant also raises several issues involving the effective assistance of trial counsel. However, since we have determined that appellant is entitled to a new trial, a review of these claims is unnecessary.

The judgment of sentence is reversed and the case remanded for a new trial.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting:

I respectfully dissent. The majority agrees that the Brady rule does not apply because the conviction was not procured through the use of materially false or perjured information in this case. The majority does apply the second prong of Brady in that the prosecution did not provide information in the form of the plea agreement, which might have been exculpatory to appellant. The Commonwealth responds that the plea agreement, already entered on the record with sentence imposed and being served, was fully available before appellant’s trial as a matter of public record. I agree with that position. Appellant had the information available at trial and pursued cross-examination of his co-defendant, Klingensmith, the primary witness against him, as to the plea bargain and whether it was an inducement for providing biased or false information against appellant. The bias motive was presented to the jury and could be argued by appellant to effect the credibility of the -witness. There was nothing about the plea bargain, the court’s understanding of it or Klingensmith’s understanding which could lead to the belief that he was required to do anything but testify honestly. When the Commonwealth was assured of that fact, it recommended the bargain to the court. Since sentence was imposed and entered into before the trial of appellant, the Commonwealth had relatively little coercive power over the witness.

Counsel for appellant has used a broad shotgun approach in attributing wrongdoing to the court and the Commonwealth in this case. My perception of this case is that this was a simple, routine plea agreement honestly conducted in which a co-defendant agreed to cooperate with the Commonwealth in return for fair and reasonable consideration for himself. The wheels of justice would stop at both the Federal and State levels if this process was denied. The claim of ineffectiveness of counsel and denial of exculpatory evidence because the Commonwealth did not submit to appellant’s request for discovery by acknowledging the plea agreement which was a public record at the time of trial rings hollow. The kind of plea agreement which requires disclosure is that in which the sentence is delayed pending testimony by the witness so that the Commonwealth may maintain coercive power over the witness and which thereby becomes an inducement to testify in a fashion to please the Commonwealth. Bias under those conditions becomes a critical issue. See Commonwealth v. Lipscomb, 269 Pa.Super. 219, 409 A.2d 857 (1979).

The cross-examination by defense counsel as well as questions by the Commonwealth’s attorney clearly focused on whether the witness received any leniency or would receive any future favored treatment. The same trial judge presided at both trials, and since the majority already has rejected the allegation of wrongdoing by the court, it must be presumed she maintained the integrity of the judicial process by assuring an appropriate consideration by the jury of the plea bargain as it might reflect bias. Nothing on the record discloses that his testimony manifested an agreement which would result in any benefit or favored treatment to the witness. I would affirm the judgment of sentence.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


author: WIEAND, Judge: CAVANAUGH, Judge,

text:
    644 A.2d 174
    COMMONWEALTH of Pennsylvania v. Horace BUTCHER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 31, 1994.
    Filed June 13, 1994.

      Warren E. Kamph, Asst. Public Defender, West Chester, for appellant.
    Nicholas J. Casenta, Jr., Asst. Dist. Atty., West Chester, for the Com., appellee.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

Horace E. Butcher was tried by jury and was found guilty of making a terroristic threat in violation of 18 Pa.C.S. § 2706. Post-trial motions were denied, and Butcher was sentenced to serve a term of imprisonment for not less than one and one-half (Vf¿) years nor more than five (5) years. On direct appeal from the judgment of sentence, Butcher contends that the evidence at trial was insufficient to sustain his conviction for making a terroristic threat. After careful review, we affirm.

The factual scenario underlying appellant’s conviction has been summarized in the post-trial opinion of the trial court in the following manner:

In the late evening hours of August 3, 1992, Leah Zaykowski had just finished her shift as an employee at the Guest Quarters Hotel in Wayne, Tredyffrin Township, Chester County, Pennsylvania. Her vehicle was parked in the employee parking lot. Ms. Zaykowski walked to her ear, entered it and closed the door. Suddenly, the driver’s side door was pulled open from the outside. Ms. Zaykowski then saw [appellant] standing between the car door and herself, she screamed and got out of the car. [Appellant] responded to Ms. Zaykowski’s scream by saying, “Oh now, come on baby”. [Appellant] then implored Ms. Zaykowski for a ride to Route 202. When Ms. Zaykowski refused, [appellant] then grabbed her left arm, pushed her up against the car and pressed his body up against hers and said, in a deep, forceful voice, “Don’t make me get physical”. At that point, another vehicle drove by which distracted [appellant] and Ms. Zaykowski was able to push him away from her, run back into the Hotel, and call the police.

In conducting appellate review of the sufficiency of the evidence, this Court will:

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 crimes charged has been established beyond a reasonable doubt. See: Commonwealth v. Aulisio, 514 Pa. 84, 91, 522 A.2d 1075, 1079 (1987). See also: Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). 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). See also: Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975); Commonwealth v. Verdekal, 351 Pa.Super. 412, 419-420, 506 A.2d 415, 419 (1986). 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). See also: Commonwealth v. Kravitz, 400 Pa. 198, 215, 161 A.2d 861, 869 (1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961).

Commonwealth v. Shoup, 423 Pa.Super. 12, 16-17, 620 A.2d 15, 16-17 (1993).

Appellant argues that his statement to the victim, “Don’t make me get physical,” was too vague to constitute a terroristic threat. He further contends that the circumstances surrounding his conduct evidenced on his part a lack of deliberation and intent to cause the victim terror. Finally, appellant urges that this Court establish boundaries to prevent the criminalization of relatively trivial behavior under the purview of the terroristic threats statute. He suggests that we require proof of: (1) physical force; (2) the presence of weapons; (3) specific language; and (4) deliberation, before a conviction for making a terroristic threat can be sustained.

The crime of making a terroristic threat is defined by statute as follows:

§ 2706. Terroristic threats
A person is guilty of a misdemeanor of the first degree if he threatens to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.

18 Pa.C.S. § 2706. In interpreting this section of the Crimes Code, the Superior Court has made the following observations:

“The purpose of [Section 2706] is to impose criminal liability on persons who make threats which seriously impair personal security or public convenience. It is not intended by this section to penalize mere spur-of-the-moment threats which result from anger.” 18 Pa.C.S. § 2706, Official Comment— 1972. See: Commonwealth v. Anneski, 362 Pa.Super. 580, 585, 525 A.2d 373, 376 (1987); Commonwealth v. Kidd, 296 Pa.Super. 393, 397, 442 A.2d 826, 827 (1982). “ ‘The offense does not require that the accused intend to carry out the threat; it does require an intent to terrorize. The harm sought to be prevented is the psychological distress which follows from an invasion of another’s sense of personal security.’ ” Commonwealth v. Speller, 311 Pa.Super. 569, 573, 458 A.2d 198, 200 (1983), quoting Commonwealth v. Hardwick, 299 Pa.Super. 362, 365-366, 445 A.2d 796, 797 (1982). Therefore, “[i]t is the making of the threat with intent to terrorize that constitutes the crime.” Commonwealth v. Anneski, supra [362 Pa.Super.] at 587, 525 A.2d at 376. See also: Commonwealth v. White, 232 Pa.Super. 176, 183-184, 335 A.2d 436, 439 (1975). per. 435, 443, 458 A.2d 1371, 1375 (1983). Moreover, “it is unnecessary for [the defendant] to specifically articulate the crime of violence which he or she intends to commit where the type of crime may be inferred from the nature of the statement and the context and circumstances surrounding the utterance of the statement.” Commonwealth v. Hudgens, 400 Pa.Super. 79, 90, 582 A.2d 1352, 1358 (1990).

To obtain a conviction for making a terroristic threat, the Commonwealth must prove that: (1) the defendant made a threat to commit a crime of violence; and (2) such threat was communicated with the intent of terrorizing or with reckless disregard for the risk of causing terror. See: Commonwealth v. Lumpkins, 324 Pa.Super. 8, 12, 471 A.2d 96, 98 (1984); Commonwealth v. Ferrer, 283 Pa.Super. 21, 23, 423 A.2d 423, 424 (1980). It has been observed that “ ‘even a single verbal threat might be made in such terms or circumstances as to support the inference that the actor intended to terrorize or coerce.’ ” Commonwealth v. Ashford, 268 Pa.Super. 225, 229, 407 A.2d 1328, 1329 (1979), quoting Model Penal Code, § 211.3, Tent.Draft No. 11 at p. 9 (1960). See also: Commonwealth v. Chance, 312 Pa.Su-

Commonwealth v. Campbell, 425 Pa.Super. 514, 521-522, 625 A.2d 1215, 1218-1219 (1993). See also: In re Maloney, 431 Pa.Super. 321, 329-330, 636 A.2d 671, 675-676 (1994).

Although appellant did not identify any specific crime of violence as the object of his threat, when his words and conduct are viewed in context, appellant’s statement to the victim, “Don’t make me get physical,” could reasonably be interpreted as a threat to assault the victim if she did not give appellant a ride as he had demanded. Appellant had approached a young woman, who was alone in a parking lot, late in the evening, opened her car door, and repeatedly demanded that she give him a ride. When the victim refused, appellant forcibly grabbed her arm, pushed his body up against hers, and told her not to make him get physical. Such menacing words and conduct on appellant’s part, the jury could find, were intended to terrorize the victim and did, in fact, terrorize her. She testified that she was afraid that she “was going to be killed or raped.” At the very least, appellant acted in reckless disregard of terrorizing his victim. His conduct, therefore, was within the statutory proscription against the making of terroristic threats.

We reject appellant’s attempt to trivialize his conduct and also his invitation to rewrite the statute defining the crime of making a terroristic threat. Appellant’s conduct was not merely offensive, or lacking in social grace. His aggressive and menacing conduct directed at the victim was such that she was placed in fear of being raped or injured by appellant. When viewed in the context in which appellant’s conduct occurred, it cannot be said that the victim’s fears were irrational or unfounded. Thus, contrary to appellant’s suggestion, his conduct on the evening of August 3,1992, was precisely the type of conduct which 18 Pa.C.S. § 2706 was intended to criminalize. The verdict of the jury will not be disturbed.

The judgment of sentence is affirmed.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent from the result reached by the majority because I do not believe the Commonwealth sustained its burden of presenting sufficient evidence to prove that appellant made terroristic threats. While the evidence does make out the commission of criminal activity by appellant, I would find that the provisions of 18 Pa.C.S.A. § 2706 have not been proven by the Commonwealth. See, Commonwealth v. Anneski, 362 Pa.Super. 580, 525 A.2d 373 (1987); Commonwealth v. Sullivan, 269 Pa.Super. 279, 409 A.2d 888 (1979). The Commonwealth did not prove that appellant intended to cause extreme fear by the use of violence or threats. For this reason, I would vacate the judgment of sentence.

      . Butcher was also found guilty by the trial court of the summary offenses of disorderly conduct and harassment.


author: WIEAND, Judge:

text:
    644 A.2d 177
    COMMONWEALTH of Pennsylvania v. Germaine B. JONES, Appellant.
    Superior Court of Pennsylvania.
    Argued March 29, 1994.
    Filed June 14, 1994.

      Ronald J. Sharper, Philadelphia, for appellant.
    Sheilann P. Hewitt, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

Germaine Jones was tried non-jury and was found guilty of first degree murder, possession of an instrument of crime and recklessly endangering another person. Post-trial motions were denied, and Jones was sentenced to imprisonment for life on his conviction for first degree murder and to concurrent terms of imprisonment for not less than one (1) year nor more than two (2) years on his convictions for possessing an instrument of crime and recklessly endangering another person. On direct appeal from the judgment of sentence, Jones’s principal argument is that the trial court erred by allowing the Commonwealth to introduce as substantive evidence the prior inconsistent statement of one of its witnesses, Jamal Williams. Jones also contends that the Commonwealth’s evidence was so unreliable and contradictory that his convictions should not be allowed to stand. After careful review, we affirm the judgment of sentence.

The evidence presented by the Commonwealth established that, on the evening of October 15, 1992, appellant and the victim, Lorenzo Brison, had an argument over a girl. The argument culminated when appellant “sucker punched” Brison and then ran away. On the following day, at or about 6:00 p.m., Brison was driving in a southerly direction on 15th Street in Philadelphia in his blue Chevy Blazer jeep, with his seven year old nephew riding as a passenger. When Brison passed the intersection of 15th and Dickinson Streets, appellant approached the jeep, pulled out a gun and fired several shots at Brison. One of the bullets fired by appellant struck Brison in the head, fatally wounding him. Brison’s young nephew escaped without injury.

At trial, the Commonwealth called Jamal Williams, who testified that he had( been present on the corner of 15th and Dickinson Streets at the time of the shooting and had heard the gunshots. Williams, however, denied that he had observed the person who had fired the shots. This was inconsistent with a prior statement which Williams had given to police on October 28, 1992, twelve days after the shooting, in which he had told police that he had observed appellant firing the shots at Brison. This statement had been reduced to writing and had been signed by Williams, using the name Jamal Cannon. When confronted with his prior statement, Williams said that he had given police a false name and address because he did not want to get involved. He also testified that his prior statement to police was false and that he had implicated appellant because he was angry with appellant and did not like him. Williams conceded, however, that the prior statement with which he was confronted at trial accurately reflected what he had told police on October 28, 1992. Williams also admitted that, after he had made the statement to police, he had read it and made corrections before signing the same.

Appellant objected to the admission of Williams’s prior statement on grounds that it had been made under unreliable circumstances, i.e., because Williams had given police a false name and address. He also asserted that the statement was inadmissible because the witness did not adopt it as being the truth at the time of trial, but, in fact, said that the prior statement had been false. In response to these objections, the trial court ruled as follows:

THE COURT: Okay. I’m satisfied that the statement meets the test of Brady. It’s a signed statement given to the police under circumstances in which he was not forced or pressured. He says that it indicates that which he told them at that time. The weight of it is a question that you may argue, but the use of it by the Commonwealth to question the witness is appropriate under the circumstances here. Your exception is noted.

In Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), the Pennsylvania Supreme Court rejected the longstanding rule that prior inconsistent statements of a non-party witness could only be used for purposes of impeaching the credibility of the witness. The Court held “that otherwise admissible prior inconsistent statements of a declarant who is a witness in a judicial proceeding and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein.” Id. at 131, 507 A.2d at 70. In adopting this new rule, the Supreme Court reasoned as follows:

The simple fact is that “the usual dangers of hearsay are largely nonexistent where the witness testifies at trial.” California v. Green, supra at 399 U.S. [149 at 155, 90 S.Ct. [1930] at 1933 [26 L.Ed.2d 489 (1970) ]. By hypothesis in these situations, the out-of-court declarant is now a witness in-court where he or she is placed under oath, subject to cross-examination and under observation by the finder of fact. See Commonwealth v. Thirkield, supra at 502 Pa. 542, 467 A.2d 323 [ (1983) ] (McDermott, J. dissenting: “the fact that [the oath and cross-examination requirements] are supplied in the current trial defuses hearsay concerns and provides the fact-finder with ample opportunity to determine truth.”). Indeed, the cross-examination to which a recanting witness is subjected will likely be meaningful and vigorous since the witness is already “on the spot” in having to explain the discrepancies between earlier statements and direct testimony, or deny that the earlier statements were made at all.
The availability of cross-examination at trial also assures a meaningful opportunity for the trier of fact to observe the declarant who has been called upon and sworn as a witness and questioned as to the discrepancy between the prior statement and the direct testimony. The trier of fact may bring to bear his or her sensory observations, experience, common sense and logic upon the witness to assess credibility and to determine the truth and accuracy of both the out-of-court declarations and the in-court testimony. In one of the earlier opinions rejecting the orthodox position, Judge Learned Hand made this classic statement: “If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court.” DiCarlo v. United States, 6 F.2d 364, 368 (2d Cir.1925).
Moreover, the prior statement can be viewed as possessing superior indicia of reliability as it was rendered at a point in time closer to the event described — usually much closer — when memory will presumably be fresher and opportunity for fabrication lessened. McCormick, supra at § 251; Graham, supra at 1571. Indeed, this is the rationale behind the past recollection refreshed exception to the hearsay rule. McCormick, supra at § 301.

Commonwealth v. Brady, supra 510 Pa. at 128-130, 507 A.2d at 69.

Six years later the Supreme Court revisited its decision in Brady, and, in Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), clarified the Brady holding as follows:

[T]he important components of the Brady rule are that otherwise admissible prior inconsistent statements be given under highly reliable circumstances and the non-party declarant be subject to cross-examination in the proceeding where the prior statement is to be admitted.
Although the statement of the holding in Brady was that “otherwise admissible prior inconsistent statements of a declarant who is a witness in a judicial proceeding and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein,” 510 Pa. at 131, 507 A.2d at 70, we noted that Ms. Traxler’s tape recorded statement was rendered under highly reliable circumstances assuring that it was voluntary, knowing and understanding. Those highly reliable circumstances included Ms. Traxler’s attorney and her mother being present when Ms. Traxler gave her statement to police. In addition, Ms. Traxler’s attorney questioned both Ms. Traxler and her mother to assure that the statement was being given knowingly, voluntarily and with understanding of her rights and options. Furthermore, her statement was recorded verbatim contemporaneously with its making. Commonwealth v. Brady, 510 Pa. at 131-32, 507 A.2d at 70.
In an effort to ensure that only those hearsay declarations that are demonstrably reliable and trustworthy are considered as substantive evidence, we now hold that a prior inconsistent statement may be used as substantive evidence only when the statement is given under oath at a formal legal proceeding; or the statement had been reduced to a writing signed and adopted by the witness; or a statement that is a contemporaneous verbatim recording of the witness’s statements. See Note, Substantive Admissibility of a Non-Party Witness’ Prior Inconsistent Statements: Pennsylvania Adopts the Modern View, 32 Vill.L.Rev. 471 (1987).

Commonwealth v. Lively, supra, 530 Pa. at 469-471, 610 A.2d at 9-10. See also: Commonwealth v. Burgos, 530 Pa. 473, 478-479, 610 A.2d 11, 14-15 (1992).

After careful review, we hold that the prior inconsistent statement of Jamal Williams was properly allowed as substantive evidence in the instant case. The statement had been given by Williams twelve days after the shooting of Brison, at a time when the events had been fresh in the witness’s mind and when it had been less likely that the witness had any motive for falsification. The statement had also been given under highly reliable circumstances. Williams voluntarily had gone with police to police headquarters to make the statement at a time when he had not been a suspect, had not been restrained by police in any way, and, by his own account, had been treated well by police. After the interview, moreover, the police had dropped Williams off at a location of his request. The statement which had been made by Williams had also been reviewed by him, and changes had been made before the statement had been signed. Indeed, even at trial, Williams conceded that the statement was an accurate narrative of the events which he had recited for police on October 28, 1992.

Contrary to appellant’s suggestion, there is no requirement that a witness, at the time of trial, adopt his or her prior statement as being truthful in order for the statement to be admissible under Commonwealth v. Lively supra. If this were so, the statement would not be inconsistent with the witness’s trial testimony and there would be no need to introduce the prior statement. The requirement of Lively is that a prior inconsistent statement, which has been reduced to writing, will be admissible as substantive evidence if the statement, at the time when it was made, was signed and adopted by the witness. This requirement is to ensure that the witness’s prior statement be accurately memorialized, as where prior testimony has been transcribed or where a prior statement has been recorded verbatim. In the instant case, the prior statement was signed and adopted by Williams at the time the statement was made. At trial, Williams also testified that the prior statement had been an accurate account of what he had earlier told to police. Under these circumstances, we hold that the requirements of Lively were met. Therefore, the prior inconsistent statement of Jamal Williams was properly received as substantive evidence.

We reject appellant’s additional contention that the prior inconsistent statement of Jamal Williams was rendered unreliable because, at the time the statement had been made to police, the juvenile witness had not been accompanied by an interested adult. As we have already observed, Williams had not been a suspect in the shooting of Brison, and the circumstances surrounding his making of the statement indicate that it had been voluntarily given. Under these circumstances, the absence of an interested adult did not render Williams’ prior statement unreliable. Cf. Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984) (absence of consultation with an interested adult will not render juvenile’s waiver of his Miranda rights per se incompetent where totality of the circumstances indicate that a knowing, intelligent and voluntary waiver was made).

The change in the trial testimony of Jamal Williams did not render his identification of appellant as the killer so contradictory and unreliable as to prevent a conviction. In Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976), the Supreme Court observed that a guilty verdict should be set aside when the evidence in support thereof is so unreliable and/or contradictory as to render speculative any verdict based thereon. Since that decision, however, the Supreme Court has made clear its reasoning in Farquharson “only applies in such cases where the patent unreliability of the testimony is such as to render a verdict of guilt based thereupon as no more than pure conjecture.” Commonwealth v. Whack, 482 Pa. 137, 140, 393 A.2d 417, 419 (1978). See also: Commonwealth v. Hudson, 489 Pa. 620, 627, 414 A.2d 1381, 1385 (1980). The present case is not such a case.

At appellant’s trial, James Wearen also testified that he had witnessed the shooting of Lorenzo Brison, and he identified appellant as the one who had shot Brison. Wearen’s eyewitness testimony was corroborated by the prior statement which had been given to police by Jamal Williams. In that statement, Williams also had identified appellant as Brison’s killer. This evidence was sufficient to sustain the trial court’s finding that appellant was the killer and that he was guilty of first degree murder, possession of an instrument of crime and recklessly endangering another person. Although both witnesses made statements prior to trial which were inconsistent with their in-court testimony, they were questioned extensively regarding their prior statements, and the trier of fact could properly determine on which occasions the witnesses had been truthful. The existence of these prior inconsistent statements did not render the testimony of the Commonwealth’s witnesses so unreliable as to make the trial court’s verdicts mere conjecture.

Because the evidence, when viewed in the light most favorable to the Commonwealth, was sufficient to prove appellant’s guilt beyond a reasonable doubt, the finding of the trial court will not be disturbed.

The judgment of sentence is affirmed.

      . On cross-examination, Wearen was confronted with a prior inconsistent statement which he had made to appellant's prior counsel and a defense investigator, in which he had recanted his preliminary hearing testimony and had said that he did not see appellant at the time of the shooting, but that he had seen a gun in Brison’s jeep and had believed that appellant had acted in self-defense.


text:
    644 A.2d 181
    COMMONWEALTH of Pennsylvania v. Jermaine HORTON, a/k/a Edward Jermaine Horton, Appellant.
    Superior Court of Pennsylvania.
    Argued March 16, 1994.
    Filed June 16, 1994.

      Joseph D. Silvaggio, Pittsburgh, for appellant.
    Maria V. Copetas, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before WIEAND, DEL SOLE and HUDOCK, JJ.
   WIEAND, Judge:

Jermaine Horton was tried by jury and was found guilty of robbery, but not guilty of criminal conspiracy. Post-trial motions were denied, and Horton was sentenced to serve a term of imprisonment for not less than five (5) years nor more than fifteen (15) years. On direct appeal from the judgment of sentence, Horton argues that his conviction for robbery was contrary to the weight of the evidence. He contends also that his trial counsel was ineffective (1) for failing to develop adequately the defense of duress; and (2) for failing to request a jury instruction which defined recklessness.

The evidence at appellant’s trial was that on the evening of April 25, 1992, Gregory Holder had driven into the Broadhead Manor section of Pittsburgh to purchase crack cocaine. A group of four men, which included Jermaine Horton (the appellant), Rufus Carter and Gladius Lawrence, approached Holder’s car. According to Emma Campbell, an eyewitness, Gladius Lawrence handed a gun to Rufus Carter following a brief conversation among the four men and Holder. Then the entire group, except for Carter, backed away from Holder’s car. Carter, while brandishing the gun, said to Holder, “give me the money.” When Holder responded by attempting to back up his vehicle and drive away, Carter fired several shots at Holder, striking him in the head and chest and causing his death. According to Emma Campbell, Carter then pointed the gun in the direction of his companions and directed: “Get the money or I’ll shoot.” Upon hearing Carter issue this command, Horton, the appellant, approached Holder’s car and searched Holder’s shirt pocket. He found no money, however, and so informed Cartel. The four men then fled from the scene. Appellant, however, later returned to the scene of the crime, where he was confronted by police. Upon being transported to police headquarters and being informed of his constitutional rights, appellant gave a statement in which he admitted being present when Carter shot the victim. He also told police that he had searched the victim’s pocket for money at Carter’s direction following the shooting. Appellant did not then say to police that he had been threatened by Carter. At trial, however, appellant testified that he had searched the victim’s pocket for money because he was afraid he would be shot if he did not do as Carter had instructed.

In reviewing appellant’s challenge to the weight of the evidence, we apply the following principles:

“A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence.” Commonwealth v. Taylor, supra 324 Pa.Super. [420] at 425, 471 A.2d [1228] at 1230 [ (1984) ]. The decision whether to grant a new trial on this basis rests within the discretion of the trial court. Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989). “A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and [make] the award of a new trial [ ] imperative so that right may be given another opportunity to prevail.” Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155-1156 (1986). “The role of an appellate court in reviewing the weight of the evidence is very limited.” Commonwealth v. Sanders, 426 Pa.Super. 362, 367, 627 A.2d 183,185 (1993). “The purpose of that review is to determine whether the trial court abused its discretion and not to substitute [the reviewing] Court’s judgment for that of the trial court.” Commonwealth v. Murray, 408 Pa.Super. 435, 440, 597 A.2d 111, 114 (1991) (en banc). Accordingly, “[w]here the evidence is conflicting, the credibility of the witnesses is solely for the jury, and if its finding is supported by the record, the trial court’s denial of a motion for new trial will not be disturbed.” Commonwealth v. Larew, 289 Pa.Super. 34, 37, 432 A.2d 1037, 1038 (1981).

Commonwealth v. Manchas, 430 Pa.Super. 63, 71, 633 A.2d 618, 622-623 (1993).

In the instant case, appellant was charged with robbery in violation of 18 Pa.C.S. § 3701(a)(l)(i) and (ii), which provide as follows:

(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another; [or]
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury....

At trial, the Commonwealth posited that appellant had been guilty because he had been part of a conspiracy to rob the victim, or, at least, that he had acted as an accomplice by searching the victim’s pockets for money at the direction of Carter. Appellant argues on appeal that, by acquitting him of the conspiracy charge, the jury found that he was not acting in concert with the others and did not possess a shared criminal intent with Rufus Carter and others to rob the victim. Therefore, appellant’s argument continues, the jury disregarded the weight of the evidence by finding that he was guilty of robbery under an accomplice liability theory. There was no evidence, he argues, that he inflicted serious bodily injury upon the victim or threatened the victim with such injury, and the Commonwealth’s own eyewitness indicated that he had been acting under duress when he searched the victim’s pocket for money after being threatened at gunpoint by Rufus Carter. Under these circumstances, appellant urges, his conviction should be set aside as being contrary to the weight of the evidence.

It is well settled that “the law does not require consistency in criminal verdicts so long as the evidence is sufficient to support the guilty verdict rendered.” Commonwealth v. Troy, 381 Pa.Super. 326, 333, 553 A.2d 992, 996 (1989), allocatur denied, 525 Pa. 626, 578 A.2d 413 (1990). See also: Commonwealth v. Trill, 374 Pa.Super. 549, 560, 543 A.2d 1106, 1111 (1988), allocatur denied, 522 Pa. 603, 562 A.2d 826 (1989); Commonwealth v. Maute, 336 Pa.Super. 394, 407, 485 A.2d 1138, 1145 (1984). In this regard, the Superior Court has observed:

‘The fault with appellant’s argument is that “[a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence.” Commonwealth v. Carter, 444 Pa. 405, 408, 282 A.2d 375, 376 (1971), quoting Commonwealth v. Parrotto, 189 Pa.Super. 415, 422, 150 A.2d 396, 399 (1959). When an acquittal on one count in an indictment is inconsistent with a conviction on a second count, “the court looks upon [the] acquittal as no more than the jury’s assumption of a power which they had no right to exercise, but to which they were disposed through lenity.” Id. Accord: Commonwealth v. Strand, 464 Pa. 544, 547, 347 A.2d 675, 676 (1975). Thus, consistency in a jury’s verdicts in a criminal case is unnecessary, provided there is sufficient evidence to support the convictions the jury has returned, Commonwealth v. Stegmaier, 247 Pa.Super. 159, 371 A.2d 1376 (1977); Commonwealth v. Dolny, 235 Pa.Super. 241, 342 A.2d 399 (1975); Commonwealth v. Jackson, 230 Pa.Super. 386, 326 A.2d 623 (1974), and inconsistency in verdicts affords an accused no cause for relief, even though it may be difficult to reconcile the verdicts, Commonwealth v. Kwatkoski, 267 Pa.Super. 401, 406 A.2d 1102 (1979).’

Commonwealth v. Purcell, 403 Pa.Super. 342, 349-350, 589 A.2d 217, 221 (1991), allocatur denied, 529 Pa. 657, 604 A.2d 248 (1992), quoting Commonwealth v. Shaffer, 279 Pa.Super. 18, 21-22, 420 A.2d 722, 724 (1980). See also: Commonwealth v. Boyles, 407 Pa.Super. 343, 349-350, 595 A.2d 1180, 1183—1184 (1991), allocatur denied, 531 Pa. 651, 613 A.2d 556 (1992); Commonwealth v. Anderson, 379 Pa.Super. 589, 592-594, 550 A.2d 807, 809 (1988) (en banc).

The evidence introduced at trial was legally sufficient to support appellant’s conviction for robbery. Appellant was part of a group of four men which approached the victim’s car. After a brief conversation, one member of this group, Rufus Carter, demanded money from the victim at gunpoint. When the victim did not comply with Carter’s directive, he was shot by Carter. Following the shooting, appellant, at Carter’s direction, searched through the victim’s pocket for money. From these facts, the jury could infer that appellant had been acting as Carter’s accomplice in the robbery of Gregory Holder.

That the jury rejected appellant’s defense of duress was not shocking to the trial court’s sense of justice, and our review of the record discloses no basis for determining that the trial court committed an abuse of discretion in this regard. The defense of duress is defined by statute as follows:

(a) General rule. — It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
(b) Exception. — The defense provided by subsection (a) of this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress....

18 Pa.C.S. § 309. “The three elements which must be shown to establish a duress defense are: (1) an immediate or imminent threat of death or serious bodily injury; (2) a well grounded or reasonable fear that the threat will be carried out; and (3) no reasonable opportunity to escape the threatened harm except by committing the criminal act.” Commonwealth v. Morningwake, 407 Pa.Super. 129, 140, 595 A.2d 158, 164 (1991), allocatur denied, 529 Pa. 618, 600 A.2d 535 (1991). The evidence in the instant case was such that the jury could reasonably conclude that appellant had recklessly placed himself in a position in which he would be subjected to duress, or, that he had failed to withdraw from the situation despite having had one or more opportunities to do so prior to the commission of the crime. Our review of the record, therefore, provides no support for appellant’s contention that the jury’s verdict finding him guilty of robbery was contrary to the weight of the evidence.

“Because 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). The standard used to evaluate claims of ineffective assistance of counsel has been stated by the Pennsylvania Supreme Court in the following manner:

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).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). In order to demonstrate prejudice under this standard, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). See: Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Appellant argues that his trial counsel was ineffective for failing to develop fully his defense of duress by calling witnesses who would have bolstered that defense. In order to prevail upon a claim that counsel was ineffective for failing to call witnesses on his behalf, appellant is required to establish that: (1) the witnesses existed; (2) such witnesses were available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witnesses; (4) the witnesses were willing to testify for the defense; and (5) the absence of the testimony of such witnesses was so prejudicial as to have denied him a fair trial. See: Commonwealth v. Petras, 368 Pa.Süper. 372, 377, 534 A.2d 483, 485 (1987). See also: Commonwealth v. Stanley, 534 Pa. 297, 299-300, 632 A.2d 871, 872 (1993); Commonwealth v. Gillespie, 423 Pa.Super. 128, 132, 620 A.2d 1143, 1145 (1993).

Here, appellant has alleged only that witnesses were available to testify for the defense. He has not identified these alleged witnesses, nor has he set forth the substance of the testimony the witnesses would have given and how it would have aided his defense. It is well settled that a defendant asserting a claim of ineffective assistance of counsel must make an offer of proof “alleging sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective.” Commonwealth v. Durst, supra, 522 Pa. at 5, 559 A.2d at 505. See also: Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981). Here, appellant has not met this requirement. The omission is fatal to his claim that counsel was ineffective for failing to call additional witnesses at his trial. See: Commonwealth v. Thomas, 372 Pa.Super. 349, 364, 539 A.2d 829, 837 (1988), allocatur denied, 520 Pa. 604, 553 A.2d 967 (1988); Commonwealth v. Stinnett, 356 Pa.Super. 83, 88, 514 A.2d 154, 157 (1986). “Counsel will not be found ineffective in a vacuum, and [an appellate court] will not consider claims of ineffectiveness without some showing of a factual predicate upon which counsel’s assistance may be evaluated.” Commonwealth v. Thomas, supra.

Appellant’s remaining claim of ineffectiveness of trial counsel is not so easily dismissed. It is appellant’s contention that counsel was constitutionally ineffective for failing to request and/or object to the absence of a definition of recklessness in the trial court’s jury instruction on duress. The provisions of 18 Pa.C.S. § 309(b) make the defense of duress unavailable if a defendant has recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The Commonwealth concedes that there is arguable merit in appellant’s contention that recklessness should have been defined for the jury but argues nonetheless that the outcome of appellant’s trial would have been the same even if the jury had been properly instructed as to the legal definition of “recklessly.”

The Superior Court previously addressed an almost identical claim of ineffective assistance of counsel in Commonwealth v. Knight, 416 Pa.Super. 586, 611 A.2d 1199 (1992), allocatur denied, 533 Pa. 657, 625 A.2d 1192 (1993). There, the Court held that when the defense of duress has been raised by the defendant, the jury should be instructed as to the legal definition of the term “recklessly” as set forth at 18 Pa.C.S. § 302. Such an instruction, the Court observed, is essential for the jury to understand and apply the exception to the defense of duress at 18 Pa.C.S. § 309(b), and to make clear that recklessness is not synonymous with mere negligence on the defendant’s part in placing himself in a position where he would be subjected to duress. In this regard, the Knight Court observed that in a jury instruction on the defense of duress, the absence of the definition of “recklessly”:

leaves the jury adrift on the seas of uncertainty, depriving them of a rudder which will inform their decision instead of their own potentially idiosyncratic conception of the word. A trial court instruction is especially important given the context of when a jury must often decide whether a defendant “recklessly” placed himself in a situation where duress was probable. As both the Model Penal Code Commentary and Reporter Toll note, the jury will have to consider whether subsection (b) applies where a defendant is connected with some type of criminal activity. Left to their own devices, there is the potential that the jury will assume that any criminal activity constitutes recklessness needed to obviate the defense, despite the fact that it is clear that more than negligence is needed in the case sub judice. It is incumbent on a trial court in a jury instruction of duress to make clear that a criminal defendant has to consciously create the risk of becoming subject to duress. We conclude that it is incumbent on a trial court to define “recklessly” when instructing a jury as to the exception to the duress defense.

Commonwealth v. Knight, supra at 598-599, 611 A.2d at 1206. Therefore, the Court found arguable merit in the defendant’s contention that his trial counsel had been ineffective for failing to object to the deficiency in the trial court’s jury instructions. We agree with both appellant and the Commonwealth that the reasoning in Knight is applicable in the instant case and that appellant, therefore, has presented a claim of ineffectiveness which contains arguable merit.

Despite finding arguable merit in the defendant’s claim, the Court in Knight ultimately concluded that there had been no prejudice to the defendant as a result of the absence of the definition of recklessness from the trial court’s jury charge. The Superior Court held that there was no reasonable probability that the verdict would have been different if the jury had been correctly instructed. The Knight Court observed that the defendant’s testimony in support of a duress defense had been contradictory and had “the appearance of being contrived.” Commonwealth v. Knight, supra at 600, 611 A.2d at 1206. The Court further observed that the defendant’s claim that he acted under duress had been largely uncorroborated by any other evidence.

In the instant case, however, the defense does not appear contrived but was supported by testimony given by the Commonwealth’s eyewitness. She observed that Rufus Carter had pointed his gun in appellant’s direction while issuing a command to get the money from the victim. Except for testimony that appellant had searched the victim’s pocket for money at Carter’s direction, there was no direct evidence that he had participated in any way in the robbery of Gregory Holder. Under these circumstances, it was crucial that the jury be fully and adequately instructed on the defense of duress. This required a definition of recklessness, so that the jury could properly determine whether appellant had recklessly placed himself in a position where it was probable that he would be subjected to duress by Rufus Carter. Under the circumstances presented in the instant case, therefore, we cannot conclude, as did the Court in Knight, that there is no reasonable probability that the result of appellant’s trial would have been different had the jury been properly instructed on the defense of duress.

Having determined that appellant has presented an arguably meritorious claim of ineffectiveness, our normal course would be to remand for an evidentiary hearing so that a determination could be made as to whether there was any reasonable basis for trial counsel’s act or omission. See: Commonwealth v. Edmiston, 535 Pa. 210, 239, 634 A.2d 1078, 1092 (1993); Commonwealth v. Petras, supra. The Supreme Court has declared, however, that “[w]here the record on appeal clearly shows that there could have been no reasonable basis for a damaging decision or omission by trial counsel, then of course the judgment must be vacated and appropriate relief, such as ... the ordering of a new trial, granted.” Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976) (footnote omitted). See also: Commonwealth v. Manhart, 349 Pa.Super. 552, 558, 503 A.2d 986, 989 (1986), allocatur denied, 515 Pa. 567, 526 A.2d 1189 (1987); Commonwealth v. Nauman, 345 Pa.Super. 457, 464, 498 A.2d 913, 916 (1985).

Instantly, we can perceive no reasonable basis for trial counsel’s failure to request, or object to the absence of, a full and adequate jury instruction on the defense of duress. This, as the Court in Knight held, included the definition of “recklessly” as it pertained to the exception to the defense of duress set forth at 18 Pa.C.S. § 309(b). Having raised the defense of duress on appellant’s behalf, it was counsel’s duty to ensure that the jury was correctly instructed thereon. “To fail in this respect was so unreasonable that it must be equated with constitutionally ineffective assistance.” Commonwealth v. Brunner, 341 Pa.Super. 64, 70, 491 A.2d 150, 153 (1985). See also: Commonwealth v. Gainer, 397 Pa.Super. 348, 355-356, 580 A.2d 333, 336-337 (1990) (en banc), allocatur denied, 529 Pa. 645, 602 A.2d 856 (1992); Commonwealth v. Nauman, supra, 345 Pa.Super. at 463-64, 498 A.2d at 916. Therefore, a new trial is necessary.

The judgment of sentence is reversed, and the case is remanded for a new trial.

      . The Commonwealth presented no evidence identifying the fourth member of this group.

      . Appellant’s testimony was that he had been dropped off by friends after a game of cards. A man named Doug Craighead had called him over to where the victim's car had been parked. Rufus Carter and Gladius Lawrence had been arguing with the victim. When Carter shot the victim, appellant said, Craighead and Lawrence ran away. He, however, had been frozen with fear. Then, according to appellant, Carter had pointed the gun at him and said, "Get the money." It was because he had been afraid of Carter, appellant said, that he had searched the victim's body for money.

      . “Recklessly” is defined in the Crimes Code in the following manner:
      (3) A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.
      18 Pa.C.S. § 302(b)(3).

      . After retiring to deliberate, the jury requested further explanation regarding “the law on robbery in reference to duress.” In response to this inquiry, the trial court repeated the same instructions it had given during its general charge but again failed to define the element of recklessness.


author: WIEAND, Judge: DEL SOLE, Judge,

text:
    644 A.2d 188
    AL HAMILTON CONTRACTING COMPANY, Appellant v. Evelyn COWDER and Seth Cowder, Appellees.
    Superior Court of Pennsylvania.
    Argued March 15, 1994.
    Filed June 20, 1994.

      William C. Kriner, Clearfield, for appellant.
    Blaine A. Lucas, Pittsburgh, for appellees.
    Dennis A. Whitaker, Harrisburg, for participating party.

      Before WIEAND, DEL SOLE and FORD ELLIOTT, JJ.
   WIEAND, Judge:

Are private citizens who request state agencies and elected officials to investigate potential violations of the state’s environmental laws subject to tort liability in an action filed by a suspected violator? The trial court answered this question in the negative and sustained preliminary objections in the nature of a demurrer to a complaint filed by A1 Hamilton Contracting Company against Seth Cowder and Evelyn Cowder. After careful review of the complaint, we have determined that the plaintiff failed to state a cause of action upon which relief can be granted. Therefore, we affirm the order of the trial court.

Preliminary objections should be sustained “only where it appears, with certainty, that the law permits no recovery under the allegations pleaded.” Gallagher v. City of Philadelphia, 142 Pa.Commw. 487, 491, 597 A.2d 747, 748 (1991). When reviewing an order sustaining preliminary objections in the nature of a demurrer, we accept as true the well pleaded facts contained in the complaint together with every reasonable inference which may be drawn therefrom. Preiser v. Rosenzweig, 418 Pa.Super. 341, 346, 614 A.2d 303, 305 (1992), allocatur granted, 535 Pa. 637, 631 A.2d 1009 (1993); Wojciechowski v. Murray, 345 Pa.Super. 138, 140, 497 A.2d 1342, 1343 (1985). We then determine whether those facts can possibly state a cause of action permitting recovery. Van Mastrigt v. Delta Tau Delta, 393 Pa.Super. 142, 147-148, 573 A.2d 1128, 1130 (1990).

Evelyn Cowder and her son, Seth Cowder, own adjacent tracts of real estate in Bradford Township, Clearfield County. In 1985, the Cowders began to experience problems with acid mine drainage which contaminated their well water and damaged their respective properties. In 1991, they registered complaints with the Pennsylvania Department of Environmental Resources (DER) and also complained to their state representative, Camille George. Allegedly, there were several potential sources for the drainage; however, the DER focused its investigation on A1 Hamilton Contracting Co., an enterprise which in 1991 was conducting strip mining activities not far from the Cowders’ properties. Although Hamilton was not cited for any specific violations, the DER issued a “Ground Water Study Order” which required Hamilton, inter alia, to conduct monitoring activities relating to acid mine drainage. Hamilton appealed the order to' the Environmental Hearing Board, where the matter is still pending.

Instead of achieving a resolution to their problems, the Cowders found themselves defendants in a lawsuit filed by Hamilton alleging tortious interference with business relations and malicious abuse of process. Seth Cowder, who held a position as a Bradford County Supervisor, was also charged -with abuse of office. On January 15, 1993, the Cowders filed preliminary objections in the nature of a demurrer. After briefing and argument, the trial court held that the Cowders’ petitions to government officials were not actionable and dismissed the complaint. This appeal followed.

The order of a trial court may be affirmed on appeal if it is correct on any legal ground or theory, regardless of the reason or theory adopted by the trial court. See: In Re Benson, 419 Pa.Super. 582, 589-590, 615 A.2d 792, 795-796 (1992); Elder v. Nationwide Ins. Co., 410 Pa.Super. 290, 296, 599 A.2d 996, 999 (1991). Where a trial court has reached the correct result, its order will be sustained if it can be sustained for any reason. Turnway Corp. v. Soffer, 461 Pa. 447, 462, 336 A.2d 871, 878 (1975).

After careful review, we agree with the trial court that appellant has failed to state a valid cause of action. Appellees were authorized by regulations promulgated by the Department of Environmental Resources to “request an inspection of a coal mining activity by submitting to the Department a signed, written statement ... giving the Department reason to believe that a violation of the acts or regulations promulgated thereunder exists.” 25 Pa.Code § 86.215(a). When such a request is made, it then becomes the duty of the Department to conduct an inspection. 52 Pa.S. § 1396.18c(b) (renumbered from 52 Pa.S. § 1396.21 in 1993). Orders thereafter issued are a consequence of investigations conducted and decisions made by the Department. Such orders are not the acts of the complaining citizen. For orders issued by the Department, there is no liability on the part of the complaining citizen.

Moreover and in any event, appellant’s complaint fails to aver facts which constitute a cause of action for intentional interference with business relations or for malicious abuse of process. To sustain a cause of action for intentional interference with business relations, it must be alleged that: (1) there is an existing contractual relationship between the plaintiff and a third party; (2) the defendant interfered with the performance of that contract by inducing a breach or otherwise causing the third party not to perform; (3) the defendant was not privileged to act in this manner; and (4) the plaintiff suffered pecuniary loss as a result of the breach of contract. See: Triffin v. Janssen, 426 Pa.Super. 57, 63, 626 A.2d 571, 574 (1993). See also: Neish v. Beaver Newspapers, Inc., 398 Pa.Super. 588, 599, 581 A.2d 619, 625 (1990), allocatur denied, 527 Pa. 648, 593 A.2d 421 (1991); Restatement (Second) Torts § 766A. A critical element of the tort is a current contractual relationship between the plaintiff and another. B.T.Z., Inc. v. Grove, 803 F.Supp. 1019, 1024 (M.D.Pa.1992). Therefore, a cause of action will not stand unless there has been some act by the defendant which served to deprive the plaintiff of some benefit to which he was entitled by contract. Keifer v. Cramer, 356 Pa. 96, 99, 51 A.2d 694, 695 (1947). “[T]he gravamen of this tort is the lost pecuniary benefits following from the [lost] contract....” Pelagatti v. Cohen, 370 Pa.Super. 422, 436, 536 A.2d 1337, 1343 (1987), allocatur denied, 519 Pa. 667, 548 A.2d 256 (1988).

Appellant has not alleged that any third parties to which it was contractually related have refused to perform, or were precluded from partially or completely performing, contractual duties because of appellees’ actions. Appellant also has not alleged that it was prevented from meeting its contractual responsibilities to others. In the absence thereof, appellant is unable to state a cause of action.

Appellant argues that the defendant-appellees are at least liable under the facts alleged in its complaint on a theory of abuse of process. The basis for this liability, appellant argues, is appellees’ complaint without probable cause that their acid water problem was being caused by appellant’s mining operation rather than by other, abandoned surface mines. It is not completely clear whether appellant’s claim is for malicious use of process or for abuse of process.

Often the two torts are confused. In fact, however, they are distinct. McGee v. Feege, 517 Pa. 247, 253, 535 A.2d 1020, 1023 (1987). Wrongful use of process, which is now defined by statute at 42 Pa.C.S. § 8351, involves the initiation of process without probable cause. To prevail in an action for wrongful use of process, the plaintiff must show that the defendant maliciously instituted proceedings, that the defendant lacked probable cause to institute the proceedings and that the proceedings terminated in favor of the plaintiff. Meiksin v. Howard Hanna Co., Inc., 404 Pa.Super. 417, 420, 590 A.2d 1303, 1304 (1991), allocatur denied, 528 Pa. 644, 600 A.2d 196 (1992); Shaffer v. Stewart, 326 Pa.Super. 135, 140, 473 A.2d 1017, 1019-1020 (1984); Weiss v. Equibank, 313 Pa.Super. 446, 456, 460 A.2d 271, 276 (1983). Appellant in the instant case cannot recover for wrongful use of process, for it is eminently clear that the environmental proceedings have not been terminated. Moreover, as we have already observed, it was the Department and not appellees who initiated legal proceedings against appellant.

The common law tort of abuse of process involves the perversion of legal process after it has begun in order to achieve a result for which the process was not intended. Shaffer v. Stewart, supra, 326 Pa.Super. at 138, 473 A.2d at 1019. Abuse of process has been described by the Supreme Court as the “use of legal process as a tactical weapon to coerce a desired result that is not the legitimate object of the process.” McGee v. Feege, supra, 517 Pa. at 259, 535 A.2d at 1026. In order to state a cause of action for abuse of process it must be alleged that the defendant used a legal process to accomplish a purpose for which the process was not designed. Rosen v. American Bank of Rolla, 426 Pa.Super. 376, 381, 627 A.2d 190, 192 (1993); Rosen v. Tesoro Petroleum Corp., 399 Pa.Super. 226, 237, 582 A.2d 27, 32 (1990), allocatur denied, 527 Pa. 636, 592 A.2d 1303 (1991). “The classic example is the initiation of a civil proceeding to coerce the payment of a claim completely unrelated to the cause of action sued upon.” Triester v. 191 Tenants Ass’n, 272 Pa.Super. 271, 279, 415 A.2d 698, 712 (1979). It is not enough that the defendant had bad or malicious intentions or that the defendant acted from spite or with an ulterior motive. Rosen v. Tesoro Petroleum Corp., supra, 399 Pa.Super. at 237, 582 A.2d at 32-33. Rather, there must be an act or threat not authorized by the process, or the process must be used for an illegitimate aim such as extortion, blackmail, or to coerce or compel the plaintiff to take some collateral action. Id. See also: Junod v. Bader, 312 Pa.Super. 92, 96, 458 A.2d 251, 253 (1983). “[T]here is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.” Shaffer v. Stewart, supra, 326 Pa.Super. at 139, 473 A.2d at 1019, citing Di Sante v. Russ Financial Co., 251 Pa.Super. 184, 189, 380 A.2d 439, 441 (1977). See also: Rosen v. American Bank of Rolla, supra, 426 Pa.Super. at 381-382, 627 A.2d at 193; Cameron v. Graphic Management Assoc., Inc., 817 F.Supp. 19, 21 (E.D.Pa.1992); Jordan v. Berman, 758 F.Supp. 269, 281 (E.D.Pa.1991).

We have reviewed carefully the allegations contained in appellant’s complaint. Appellant concedes that acid mine drainage plagued appellees for some time and that appellees initiated contact with the Department to resolve their problems. Thereafter, according to the allegations of the complaint, appellees proceeded energetically to pursue their complaint in the manner prescribed by regulations of the Department. Appellant claims that appellees made “repeated complaints” and engaged the office of Representative Camille George to pressure the Department and that appellees acted maliciously. Their conduct, however, was not in derogation of the Department’s regulatory scheme and was not puráued .to bring about an illegitimate result, such as blackmail or extortion. It was not alleged that the process was used to coerce or compel appellant into undertaking collateral actions to which the process did not apply. Appellant’s pleading offers only that appellees vigorously pursued permissible legal avenues to achieve the remedies which were available. See: Morphy v. Shipley, 351 Pa. 425, 429-430, 41 A.2d 671, 674 (1945). This is insufficient to state a cause of action for abuse of process.

Finally, appellant cannot maintain an action against Seth Cowder for abuse of office, for no such common law action is recognized in Pennsylvania. Actions for damages against government officials are generally only permitted where the officials have exercised their official powers in an unlawful manner which violates a plaintiffs constitutional rights. See generally: Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Here, appellant has not averred that appellee Seth Cowder acted in a manner unauthorized by law or that his actions in any way violated appellant’s constitutional rights. No viable action exists because of Cowder’s efforts to have the Department intervene to protect his private property.

The' order of the trial court is affirmed.

DEL SOLE, J., files a concurring statement.

DEL SOLE, Judge,

concurring:

I join the decision of the Majority as authored by my colleague, Judge Wieand. However, given the lack of any legal basis for appellant to have filed this law suit or appeal, and viewing its actions as a tactical attempt to discourage complaints to officials of possibly prohibited conduct, I would remand to the trial court to establish the amount which would reimburse appellees for the fees and costs associated with this appeal. See Pa.R.A.P. 2744.

      . The Department of Environmental Resources (DER) is participating as amicus curiae.