author: DEL SOLE, Judge:

text:
    622 A.2d 319
    Christopher R. ANDERSON & Melissa M. Anderson, Appellants, v. David M. HARPER, Wendy L. Harper & Associated Products Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1992.
    Filed March 8, 1993.

      John R. Moore, Selinsgrove, for appellants.
    John R. Zonarich, Harrisburg, for Harper, appellees.
    Lawrence J. Neary, Harrisburg, for Associated Products, appellee.
    Before DEL SOLE, POPOVICH and HUDOCK, JJ.
   DEL SOLE, Judge:

This is an appeal from a final order entered after a trial court sitting in equity issued an opinion and decree nisi denying Appellants’ claims for rescission of a real estate transaction and damages. Because we conclude that the trial court misapplied the law to the facts of this ease, we reverse the trial court’s order and remand this case for a determination of damages.

Appellants brought the underlying action after they encountered serious problems with the septic system of a home they had purchased from Appellees, The Harpers. Appellants also named Appellee, Associated Products Company, defendant based upon a septic system certification it issued in connection with the sale of the home.

The Harpers acquired the property in 1977 and at that time the septic system was already installed. During the ensuing years the Harpers noticed a wet area at the top of their septic field. A neighbor testified that on two occasions there were “blowouts” in which “black water” with an odor ran from the Harper’s lot onto his land. The neighbor characterized this “water” as “seepage from the septic system.” To correct the problem initially in 1977, Mr. Harper and his father-in-law, using a backhoe, expanded the area of the drain field by installing some tile and stone. Mr. Harper testified that these actions “had a positive effect” on the problem and reduced the wet spot so that its appearance was infrequent and small. He further testified that weather conditions impacted on the condition of the soggy spot and in dry conditions the problem appeared to abate. Later, in a further effort to control drainage and the flow of water near the septic system, Mr. Harper ran a pipe from the roof of the house to the street. He also put in French drains underground to divert the washing machine and water softener rinse water away from the septic system. In the spring of 1986 when listing the property for sale, Mr. Harper testified that he told the realtor that there was a soggy spot in the yard near the drain field. It was around this time when Mr. Harper did additional work to the drain field in an effort to further reduce the problem. Mr. Harper testified that he and his wife were “thrilled” with the result and believed that they had taken care of the problem. Mr. Harper admitted that he had not obtained permits for any of the work he performed.

Appellants were shown the property in May of 1986 and testified that they advised the realtor that they were interested but concerned about the fact that the property had a septic system and a private well. The realtor assured them that this would not be a problem because they would include as a condition of the sales agreement a certification that the septic system was in working order. The next day the agreement was signed by the parties. It included a special clause which stated “Septic System cleaned and certification that system is in properly [sic] working order.”

To facilitate compliance with this clause in the agreement the Harpers hired and paid Associated Products Company (Associated) to pump the septic tank and to inspect and certify it. An Associated employee went to the realty, pumped and inspected the tank. Part of the inspection included a determination that the absorption area was working properly. This was done by first opening the tank and checking the level inside, which in this case was appropriate and did not evidence any problems. Secondly the tank was emptied to determine if there was any “back flush.” None was found. Finally, the area was examined for wet spots. No wet spot was present on the date of the examination and a conclusion was reached that the absorption area was working. Accordingly, Associated drafted a letter noting that they had cleaned the septic tank and inspected the structure. It further stated:

“... in addition there was no back flush from the drain fields. The toilets were flushed and all the units flowed without obstruction to the tank. Our conclusion is the septic system appears to be in working order.”

At trial Associated introduced official weather records which showed a below average rainfall for the months of May, June, September and October of 1986.

A week prior to closing, Appellants visited the home and inquired of Mrs. Harper if she and her husband “ever had any problems with your septic system.” Appellants testified that Mrs. Harper made a negative response. Mrs. Harper testified that she responded:

[N]o, we have never had any problem with the septic itself.
I said, we have never had any backup in the house. The toilets flush. We have never had any problems with running as much water as we want. I said, but sometimes when it rains heavily it gets mushy outside.

Mrs. Harper further testified that she expected that Mr. Anderson would want to see the area or ask more questions, but that he just went on to another question.

Settlement was made on September 30,1986 and on the last weekend of October while mowing the law, Mr. Anderson noticed a wet spot on the surface of the ground at the low end of the septic system. Appellants sought advice from Associated, who surmising the problem was caused by trees and recommended three contractors. Appellants spoke with a contractor who indicated that work could not be performed in the seepage bed area without a permit. The sewage code enforcement officer informed Appellants that in order to obtain a permit it would first be necessary to do a soil analysis.

A soil scientist along with the enforcement officer visited the property and observed a discharge in the absorption area which had a strong sewage odor. A soil probe was done which revealed that the soil depth in the absorption area was not sufficient for a subsurface sewage system to function properly. The scientist testified that he advised Appellants that based on state regulations there was no means of repairing the original installation because it was not compatible with the soil conditions. He further stated that he was satisfied that his testing was accurate because it was consistent with his examination of other lots in the same subdivision. This expert opined that a wet spot on a drain filed which has a sewage odor would be an indication to a soil scientist as well as a lay person that the septic system is not operating properly. He said that such a condition could exist without a resulting sewage back flow into the tank or into the house.

This specialist testified that state statutes and DER regulation do not allow for repairs to a septic system including an addition to an absorption area, without first obtaining a permit. Regulations also require that all wastewater be discharged into the primary treatment facility and that alternate discharge of wastewater from a source such as a washing machine into a french drain are not permitted.

The township code administrator testified that he became aware of the problem and directed Appellants to formulate a plan to resolve it or he would seek an order or injunction forcing something to be done at the site. Ultimately Appellants had designed a entirely new sewage disposal system which required the construction of a new water well, revision to the water system, the abandonment and sealing of the old well and the construction of a elevated sand mound with a tank and pump. There was testimony before the court that the new elevated sand system created an unattractive “mountain” in the rear of the property and that this condition decreased the desirability of their property in the real estate market.

Appellant brought this action against the Harpers and Associated on grounds of fraudulent or material misrepresentation of the condition of the septic system and based upon claimed violation of the Unfair Trade Practices and Consumer Protection Law. A one day trial was held before a judge sitting without a jury. The trial judge entered an opinion and decree nisi in favor of Harpers and Associated. With respect to the defendant, Associated, the court found “not a shred of evidence which would make them liable” and ruled that the company was warranted in issuing its certificate. The court also found Harpers not to be responsible under any theory offered by Appellants. The court ruled that it found Mrs. Harper’s testimony that she had mentioned the wet spot, to be credible, therefore there was no intentional or fraudulent misrepresentations made. It further found no evidence of active concealment in this case, based upon its conclusion that the Harpers did not actively conceal facts nor prevent Appellant from investigating. The court concluded that recovery could not be had based upon the theory that a seller is responsible for serious and dangerous latent defects known to exist since here the Harpers had no reason to believe that their most recent repair had not solved the problem. Appellant’s exceptions were denied and a final order was entered. This appeal follows.

Appellants challenge each of the trial court’s conclusion, but it is with respect to this later analysis with which we find error, and conclude that where one makes repairs to a serious and dangerous latent condition on the land, absent proper permits and approval, such person cannot be found to have justifiably believed that the problem has been corrected. In such situation the buyers have a right to be told of the history of repairs and past problems from which they can investigate the condition of the property. Absent such disclosure the seller will remain liable for subsequent problems caused by the undisclosed defect.

Where evidence to support a finding that a seller had fraudulent intentions or intentionally concealed material information is lacking, liability may, nevertheless, arise. Such liability is premised on § 353 of the Restatement, Second, of Torts which provides that liability attaches to a seller of land who fails to disclose to an unsuspecting buyer or conceals from the buyer any known condition which involves an unreasonable risk to people on the land. Roberts v. Estate of Barbagallo, 366 Pa.Super. 559, 531 A.2d 1125 (1987). In Quashnock v. Frost, 299 Pa.Super. 9, 445 A.2d 121 (1982), the court referred to this theory based on nondisclosure as the “modern” view. Id. at 17, 445 A.2d at 125. The traditional view of caveat emptor holds that absent active concealment or material misrepresentation there is no duty to disclose defects. Id. “The modern view however, holds that where there is a serious and dangerous latent defect known to exist by the seller, then he must disclose such defect to the unknowing buyer or suffer liability for his failure to do so.” Id. The Quashnock court concluded that a termite infestation of a residential house which caused the weakening of a floor, was a manifestly serious and dangerous condition. Since its existence was not readily observable upon reasonable inspection, justice equity and fair dealing required the seller to speak out regardless of the buyer’s failure to inquire.

To begin our analysis under this theory it is first necessary to conclude that there was a serious and dangerous defect. As stated, the Quashnock court found termite damage which weakened the floor to be a serious and dangerous condition. Such a condition was said not to exist, where a swimming pool in a newly purchased home required repairs which far exceeded the estimates provided by the sellers. Gozon v. Henderson-Dewey & Assoc., 312 Pa.Super. 242, 458 A.2d 605, 607 (1983). In this case, we are faced with a malfunctioning sewage disposal system which seeped black odorous sewage from the absorption area. The local inspector threatened injunctive action if Appellants did not remedy the problem. Ultimately, Appellants were required to install an entirely new system. In Shane v. Hoffmann, 221 Pa.Super. 176, 324 A.2d 532 (1974), the court found that a defective sewer, “which could inundate the residence with hazardous and odious waste material, was a factor which was material to the prospective purchase of land.” Id. at 182-83, 324 A.2d at 536. We likewise conclude that a malfunctioning sewage system which causes sewage to surface to the top of the residential lot is a serious and dangerous condition. Such untreated sewage can pollute the environment including water supplies and may create potential health and safety problems.

Because of the nature of a septic system, the defect can be readily characterized as latent. As stated in Woodward v. Dietrich, 378 Pa.Super. 11, 548 A.2d 301, 310-311 (1988):

Sewer connections are subterranean fixtures which materially affect the value of a home. They are expected to have an extended useful lifetime. Though they are important to any prospective home buyer, sewer connections are not by their nature open to inspection. Instead, prospective home buyers must ordinarily rely upon representations made by the sellers and any confirmatory documentation available.

More troubling, however, is the question of whether Mr. & Mrs. Harper can be held to have known of the existing problem. Our determination of this matter must remain in keeping with the trial court’s factual finding that the Harpers had “no reason to believe that the most recent repair had not solved the problem and where their only remaining concern was a wet spot in rainy weather.”

Accepting, as we must, this factual determination, we nevertheless conclude that the Harpers must be charged with knowing that a defect existed. The facts demonstrate that since they first occupied their home, the Harpers had problems with the absorption area of the septic system.

On two occasions the seepage flowed onto a neighbor’s land. In an effort to resolve these problems, which appeared to escalate in rainy weather, Mr. Harper enlarged the drain filed of the absorption bed and later installed a french drain so that the laundry drainage would not enter the treatment tank. When listing the home for sale Mr. Harper again did additional work to the drainage field. This last effort appeared to resolve the problem in the remaining few months before Appellants occupied the property, but weather reports indicated that unseasonably dry weather conditions existed at the time. Mr. Harper testified for the court that he had not obtained a permit for any of the work he performed.

It is not disputed that the law required Mr. Harper to obtain a permit before altering his individual sewage system, See 35 P.S. § 750.7(a), however, none was obtained and the work Mr. Harper did on the property was never inspected. In addition to their failure to obtain the necessary permits, the Harpers also violated § 73.11 of the Pa.Code. It provides that liquid wastes including laundry and water softener backwash must be discharged into a treatment tank, and that no untreated or partially treated sewage may be discharged to the surface of the ground. Id.

We conclude in view of the Harper’s failure to obtain the proper permits and their noncompliance with drainage requirements, that knowledge of a continuing problem must be imputed to them. The trial court noted that the Harpers remained concerned about a “wet spot in rainy weather.” They used a variety of means to correct the problem, which fluctuated in degree, but in so doing they neglected to get proper permits and did not follow existing regulations. The Harpers latest effort was undertaken at the same time they listed the home for sale, and appeared to correct the situation throughout the dry months of that summer. When the system was tested after this addition to the drainage field, no evidence of the absorption problem could be seen. However because the Harpers undertook to make repairs without proper approval and diverted drainage water outside the treatment tank, which could not be discover on inspection of the system, we conclude that they must be held to have “known” of a malfunction. Only the acquisition of proper repairs done with the required permits would allow for the conclusion that the Harpers had no knowledge of a latent defect.

Finally we also conclude that the Harpers did not disclose this known defect to Appellants. The trial court found Mrs. Harper’s recollection of her discussion with Appellants to be credible. Therein she testified that when Appellants asked if the Harpers had any problem with the septic system she advised them that they had not, but “sometimes when it rains heavily it gets mushy outside.” We cannot conclude that Mrs. Harper’s reference to mushy ground in rainy weather, was a disclosure of the condition of the septic system. Although her statement was accurate it cannot be said to put Appellants on notice of the problem.

The Harpers were aware that during their period of occupancy of their home, they were troubled by the recurring presence of wet spots in the absorption area of their septic system. On two occasions the area became so large that it drained onto neighboring land. Because of the smell and origination of the drainage, it was found that it was caused by the malfunction of the existing septic system. The Harpers attempts to alleviate this condition through their own efforts, was done without the necessary permits and did not follow existing laws and regulations. Had they performed this work with the proper approvals, notice of the failure of the system to work under the soil conditions present would likely have been discovered. Although the Harpers could not be charged with failing to disclose the exact problems of the system, we hold that their attempts to correct the problems without obtaining the required permits and inspections placed on them a duty to disclose the existence of the problems, the nature of their repairs, and the fact that they were done without permits or inspections. Appellants should have been advised that there was, in the past, an absorption problem and that the Harpers had attempted to correct this themselves. Armed with this knowledge Appellants would then have been responsible to detect the nature of the problem and the need for any further repairs. Because under these circumstances Appellee were not advised of this known serious latent defect, Appellants are entitled to recover damages from the Harpers. The amount of these damages will be a matter for the trial court to determine on remand.

We reverse the trial court order entering judgment in favor of the Appellees David and Wendy Harper. Judgment in favor of Appellee, Associated Products Company, is affirmed. This matter is remanded to the trial court for a determination of damages.

      . Because Appellants have resold the property to third parties during the pendancy of this appeal, their claims seeking rescission of the original sale are moot. Remaining for our review are issues of trial court error which were made based upon Appellants' claims for monetary damages.

      . We too find no evidence upon which to hold Associated liable. Appellants presented no testimony or documentary evidence which would establish that Associated’s tests were conducted in an unacceptable manner. While Appellants were, understandably, upset by Associated's inability to detect a problem, absent evidence that Associated deviated from reasonable standards when conducting its inspection, and absent evidence that Associated was aware of a wet spot in the absorption area, we find no error with the trial court’s ruling.


source: Caselaw Access Project

author: CAVANAUGH, Judge.

license: Public Domain

text:
    622 A.2d 325
    COMMONWEALTH of Pennsylvania v. Michael LUCAS, a Minor, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 19, 1993.
    Filed March 8, 1993.

      Jack M. Myers, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, JOHNSON and CERCONE, JJ.
   CAVANAUGH, Judge.

This is an appeal from a judgment of sentence of 2-4 years incarceration followed by 5 years probation following the appellant’s plea of guilty to voluntary manslaughter and criminal conspiracy. The appellant, sixteen years old at the time of trial, raises the following issue on appeal:

Whether the trial court’s sentencing of the [appellant], a juvenile, to an adult prison constitutes cruel and unusual punishment violative of the United States and Pennsylvania Constitutions.

Our review of the appellant’s position and the record indicates that the challenged treatment of the appellant is not of the extreme level of severity necessary to constitute “cruel and unusual” punishment. We affirm.

The lower court more than adequately summarized the facts of the incident underlying appellant’s conviction:

At approximately 8:40 p.m. on February 1, 1990, police responded to a shooting which occurred at 1109 “A” Parrish Street, in the city and county of Philadelphia. The police arrived on location and found Frederick Young (age 12) seated upright in a chair -with a gunshot wound to the chest. Later that evening, Frederick Young died at the hospital.
Prior to the shooting, at around 8:00 p.m., the decedent and Sharock Griffin (age 13) had gone to the apartment building where Rashaan Melton (age 13) lived so that Young could retrieve a Nintendo game cartridge he had lent to Melton. In the hallway, they met Melton, Michael Lucas and Teian Wells (age 10). Melton asked Griffin and the decedent if they wanted to see their club house. After opening the door to the club house, Melton pushed Griffin and Young inside. Michael Lucas closed the door and locked it. Lucas pulled out a rifle and guarded the front door. Melton proceeded to take out a handgun and remove all but one bullet from it.
Young and Griffin were then forced to pull down their pants and kiss the other three individuals’ sneakers. Then Melton pointed the gun at Griffin and pulled the trigger. However, the gun did not fire. Afterwards, Melton pointed the gun at Young’s chest as Wells said, “Say your last words”. Melton pulled the trigger. This time the gun discharged, and a bullet struck Young in the chest. Young died later that evening.

The appellant was subsequently arrested and charged with murder, criminal conspiracy and related offenses for his conduct. The appellant filed a motion to transfer his case to juvenile court on February 27, 1991. However, on June 5, 1991, this motion was abandoned when he plead guilty to voluntary manslaughter and criminal conspiracy in return for the Commonwealth not seeking to enforce a mandatory minimum of five years imprisonment. See note 1 supra. On August 13, 1991, the appellant was sentenced as mentioned supra. Sentence was to be served at the State Correctional Institute at Camp Hill. The appellant subsequently filed a motion to reconsider his sentence on August 19, 1991. This petition was denied following a hearing on October 8, 1991. This appeal followed.

On appeal, the appellant claims that the requirement he serve his sentence in a State Correctional facility where adult inmates are also housed violates the proscriptions against cruel and unusual punishment in the United States Constitution’s Eighth Amendment and in Article I, section 13 of our Commonwealth’s Constitution. The appellant notes that at the time of the offense, he was fifteen (15) years old, while at the time he pled guilty, he was sixteen (16) years old. He asserts that his background shows amenability to treatment in the juvenile justice system. Although acknowledging that the trial court ordered that measures be taken to segregate him from the adult prison populace, he argues that the segregation, itself, is a violation of the cruel and unusual punishment principle. He queries why the appellant’s rehabilitation should be retarded by segregating him from older convicts where facilities exist for juvenile offenders. He cites the Juvenile Act for the general proposition that children should not be detained in a facility with adults. See 42 Pa.C.S.A. § 6327.

Preliminarily, we note that appellant has not made an effort to analyze how our Commonwealth’s constitutional proscription of cruel and unusual punishment in Article I, section 13 differs from the protection afforded in our federal Constitution’s Eighth Amendment. Consequently, as appellant has failed to argue that our Commonwealth’s Constitution provides greater protection in this regard, we decline to address a state constitutional analysis. See, e.g., Commonwealth v. Edwards, 526 Pa. 374, 391, 586 A.2d 887, 895 (1991) (setting forth general rule that litigants must brief certain factors when state constitution is implicated). In any event, our prior pronouncements afford the conclusion that “[t]he guarantee against cruel and unusual punishment contained in Pennsylvania Constitution’s Article I, section 13, provides no broader protections against cruel and unusual punishment than those extended under the United States Constitution.” Commonwealth v. Strunk, 400 Pa.Super. 25, 35 n. 11, 582 A.2d 1326, 1331 n. 11 (1990); accord Commonwealth v. Zettlemoyer, 500 Pa. 16, 72-74, 454 A.2d 937, 967 (1982), cert. den. sub nom Zettlemoyer v. Pennsylvania, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh’g. den., 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983).

Before analyzing appellant’s specific assertions, we address the general contention that it is cruel and unusual punishment per se to confine a sixteen year old in a state prison. In Commonwealth v. Williams, 514 Pa. 62, 522 A.2d 1058 (1987), our Supreme Court addressed whether the Juvenile Act violates substantive due process by creating an impermissible presumption that juveniles accused of murder should be treated as adults. The court responded to this issue as follows:

Firstly, we note there is no constitutional guarantee of special treatment for juvenile offenders. Secondly, murder has always been within the original jurisdiction of the criminal division and excluded from the jurisdiction of the juvenile courts. Commonwealth v. Pyle, 462 Pa. 613, 622, 342 A.2d 101, 106 (1975). Appellant has cited no authority, and we know of none, why the legislature should be constitutionally prevented from making the determination that persons accused of murder should be prosecuted in the criminal division of the court of common pleas. Murder is a heinous and serious crime, and the legislature’s assumption that one who commits murder is in need of adult discipline and restraint is a reasonable one. We see no reason to disturb the legislature’s judgment that one, even though a juvenile, who is charged with murder to be prosecuted “under the criminal law and procedures.” 42 Pa.C.S.A. Section 6355(e).

Id. 514 Pa. at 71-72, 522 A.2d 1058, 1063. See also Commonwealth v. Pyle, 462 Pa. 613, 622-23, 342 A.2d 101 (1975) (same). Accordingly, the tenor on the Court’s pronouncements, as applied to this case, would seem to indicate that the status of an individual as a juvenile does not necessarily implicate constitutional concerns. We note that the courts of this Commonwealth have also approved of confining the elderly and the handicapped in state prisons. E.g., Commonwealth v. Wildermuth, 347 Pa.Super. 640, 501 A.2d 258 (1985), appeal dism’d. en banc, 514 Pa. 374, 524 A.2d 490 (1987) (not cruel and unusual punishment to sentence eighty-one year old offender to prison); Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980) (imposition of prison sentence upon paraplegic offender did not constitute cruel and unusual punishment). Further, this issue has been considered and rejected by courts of other jurisdictions. See In re Welfare of R.L.W., 309 Minn. 489, 245 N.W.2d 204 (1976) (it is not per se cruel and unusual punishment to place a juvenile in an adult institution); see also, e.g., People v. Grisso, 104 Cal.App.3d 380, 163 Cal.Rptr. 547 (1980) (court rejected claim by seventeen-year-old defendant who had been convicted of first degree murder and robbery that placing him in adult prison where he could be “threatened with sexual attacks, and will not be rehabilitated” constituted cruel and unusual punishment). Accord Edwards v. Schmidt, 321 F.Supp. 68, 78-79 (W.D.Wis.1971) (it was not cruel and unusual punishment to transfer juveniles who had been adjudged delinquent to an adult correctional facility). Thus, on its face, the treatment of the accused does not violate the Eighth Amendment per se.

However, we do not rest our disposition on the aforementioned analysis. We believe that the specific allegations of an Eighth Amendment violation should be analyzed in light of the record. When answering whether the incarceration of a juvenile in an adult prison violates the Eighth Amendment, we must consider a myriad of factors, such as the juvenile’s age, the gravity of his or her offense, the institution in which the juvenile is incarcerated, and his treatment at the institution.

We first address appellant’s contention that his incarceration in a facility that primarily houses adults is “cruel and unusual.” Appellant has not indicated how the Commonwealth’s treatment of him in any way rises to the level of a violation of the Eighth Amendment. Appellant was sixteen years old at the time of sentencing. He is presently seventeen years old. Thus, appellant is by no means a “child” in the familiar sense of the word. Moreover, although he received a relatively light sentence, the crime he committed was a grave one. At Camp Hill, the appellant, to the extent possible, is segregated from the adult prisoners. He has testified that he shares a cell with another juvenile, that an adult prisoner has never been allowed in the same cell with him, that correctional officers keep a close watch on him, and that he has never been threatened by an adult prisoner. His claim in this regard rests decidedly uneasily with his claim that his segregation from the general prison populace is “cruel and unusual.” The appellant’s segregation from the adult prison population has been so successful that far from being mistreated by adult prisoners, he can complain of being isolated from them.

We address next appellant’s argument that his separation from the general prison populace is cruel and unusual. We are more concerned with this claim, as enforced isolation could be considered akin to solitary confinement. However, on this record, there is no evidence that appellant is totally isolated from human companionship or even social contact with other prisoners. In fact, appellant shares his cell with another juvenile and his cell block at Camp Hill contains ten other juveniles. The record reveals only that appellant has not been placed in a position where mistreatment may likely occur. While housing a sixteen or seventeen year old in an adult prison may not be the best penalogical practice, and appellant undoubtedly would prefer placement in a juvenile institution, he has not convinced us he is being treated in such a shocking manner that a constitutional violation has occurred.

In light of the foregoing, we find that the record provides no indication that appellant’s punishment is so greatly disproportionate to his offense to offend evolving standards of decency or a balanced sense of justice. We note, consistent with our belief expressed supra that whether certain conduct constitutes “cruel and unusual punishment” depends on the unique facts of each case, that a direct appeal from judgment of sentence may not be the procedurally proper method of raising this issue. A trial court sentencing a prisoner to a certain punishment has no knowledge how the sentence will actually be applied. As the more correct inquiry would seem to be what conditions the prisoner is living under at the present time, a writ of habeas corpus would appear to be the better device to bring before the court a prisoner’s claim. See Commonwealth ex rel. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971). Having this issue not properly before us, we mention it in passing, and leave it for another day.

Judgment of sentence affirmed.

      . The Commonwealth agreed in exchange for the plea to “demanderize” the offenses. A handgun was used in the commission of the charged offenses, and the trial court would have had otherwise to impose a mandatory minimum sentence of five years. See 42 Pa.C.S.A. § 9712. We note the word “demanderize”, which we take to mean release from obligatory sentencing requirements, is taken from the Commonwealth’s brief.


author: POPOVICH, Judge.

text:
    622 A.2d 329
    COMMONWEALTH of Pennsylvania, Appellant, v. Michael TAYLOR, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1992.
    Filed March 9, 1993.

      Ronald Eisenberg, Deputy Dist. Atty., Philadelphia, for Com., appellant.
    Burton Rose, Philadelphia, for appellee.
    Before CAVANAUGH, BECK and POPOVICH, JJ.
   POPOVICH, Judge.

This is an appeál from the order of the Court of Common Pleas of Philadelphia County,. which suppressed wiretap evidence and marked currency taken from appellee. The lower court concluded that the wiretap evidence was not lawfully gathered pursuant to “suspected criminal activity” within the language of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. § 5704(2)(ii) (hereinafter “the Act”), and, therefore, the fruits resulting from the wiretapping had to be suppressed.

We, however, find that the Commonwealth acted in conformity to the language of the Act in its investigation of the appellee. Consequently, we hold that the lower court erred in its decision to suppress the wiretap evidence and marked currency. We reverse and remand for trial.

When passing on a challenge to the decision of the suppression court, we may consider only the evidence of defense witnesses and so much of the Commonwealth’s evidence that, read in the context of the record as a whole, remains uncontradicted. We are limited primarily to questions of law, and we are bound by the suppression court’s finding of fact, provided those findings are supported by the record. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986); Commonwealth v. Marconi, 408 Pa.Super. 601, 607, 597 A.2d 616, 619 (1991); Commonwealth v. Person, 385 Pa.Super. 197, 200, 560 A.2d 761, 762-63 (1989). Governed by the foregoing standard, our review of the record reveals the following facts.

Appellee, a former police captain, was arrested for accepting bribes from an owner of an illegal lottery operation who turned police informant. The Commonwealth contends and the lower court acknowledged that appellee may have accepted monthly protection payoffs from informant from early 1983 to about February 5, 1986. In June, 1986, informant agreed to cooperate with the investigation into appellee’s suspected activities by disclosing information on his dealings with appellee. Informant told police that he paid appellee $200 every month for two and one-half to three years, and that appellee had assigned a code number to refer to his meetings with appellee. Informant also identified appellee’s photograph as one of the officers to whom he paid the bribes.

Besides giving the police information on his dealings with the appellee, informant consented in writing to wear a body wire during two meetings with appellee which occurred on July 16 and on August 20, 1986, and to have two telephone conversations with appellee intercepted by coil recorder. Before the monitoring, however, an assistant attorney general interviewed the informant to verify that sufficient suspicion of criminal activity existed. (R. 786a) During these telephone conversations and meetings, appellee made incriminating statements with respect to his unlawful involvement with lottery operations. At both meetings, informant gave appellee $200, which appellee accepted. Immediately after the August 20 meeting, appellee was detained and taken to the Police Department Ethics Accountability Division where the marked currency was retrieved from appellee’s sportscoat.

In determining whether the lower court’s suppression of the evidence was warranted, we must interpret the meaning of “suspected criminal activity” as stated in the Act, 18 Pa.C.S.A. § 5704(2)(ii). The lower court found that this language was limited to merely current and ongoing criminal activity. It concluded that “the information amounting to probable cause sufficient to initially permit the wiretap and subsequent information derived therefrom regarding suspected criminal activity was inadequate to withstand the instant motion to suppress, and, even in the light most favorable to the Commonwealth, was at best stale.” Trial Court Opinion, p. 8. Thus, it suppressed the currency and the one-party consensual telephone, audio-and videotaped interceptions of the informant’s conversations with appellee.

In our analysis of the Act in Commonwealth v. Saccol, 384 Pa.Super. 161, 557 A.2d 1095 (1989), we were guided by our supreme court’s decision in Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979) which provided the proper approach to use when construing a statute:

In interpreting the statute before us, our goal is to ascertain and effectuate the intention of the legislature. In so doing we are called upon to use a common sense approach in which words and phrases are examined according to established rules of grammar and according to their common usage. We are guided by the presumptions that the legislature did not intend a result that is absurd, unreasonable or impossible of execution.

Saccol, 557 A.2d at 1099 (citations omitted) (quoting Bigelow, 399 A.2d at 394).

Applying this approach to our examination of § 5704(2)(ii), we hold that “suspected criminal activities” is not restricted to only current and ongoing criminal activities. Instead, we find that the legislature intended to give this phrase a more common meaning than as suggested by the lower court.

In Commonwealth v. Phillips, 373 Pa.Super. 193, 540 A.2d 933 (1988), we held that Section 5704 incorporates the reasonable grounds standard. In that case, the police received information that defendant was selling narcotics. Moreover, the police learned in their investigation that the defendant would only deal with familiar persons. The investigation officials thus directed the informant whom defendant knew to purchase the drugs directly. However, before equipping informant with a body recorder during a drug transaction between informant and defendant, an assistant attorney general conducted an interview with the informant to verify that reasonable ground existed for the monitoring. We concluded that the authorization was properly granted. Id., 540 A.2d at 937.

In the instant case, we are presented with facts that are analogous to those involved in Phillips. Here, the police received information that appellee was accepting bribes in exchange for providing protection to illegal lottery operations. The police learned in their investigation that appellee and the informant knew each other and had conducted illegal dealings for two and one-half to three years. Informant told the investigating officers that the appellee had assigned a code number to refer to his meetings with appellee. Informant also identified appellee’s photograph as one of the officers to whom he paid the bribes. Furthermore, prior to his consensual wearing of a body wire and recording of phone calls, an assistant district attorney interviewed the informant to determine that suspected criminal activity existed in the case. (R. 786a)

In Phillips, we set forth the standard that should be applied by courts when evaluating whether the facts in a given case warrant “suspected criminal activities.” 540 A.2d at 937.

Section 5704 permits consensual participant monitoring where a wire or oral communication involves suspected criminal activities. In granting approval for the monitoring, the Attorney General or the district attorney or their designees must review the facts. Thus, the police must be able to articulate reasonable grounds for the monitoring, then the Attorney General or district attorney must find that in fact those reasonable grounds do exist. Thus, the statute itself imposes a double check against unreasonable seizures of a person’s conversations.

Id. (citations omitted).

This Court has consistently found that the stringent requirements which are needed to satisfy probable cause are not applicable in consensual surveillance cases. Commonwealth v. Barone, 383 Pa.Super. 283, 556 A.2d 908 (1989); Commonwealth v. Rodriquez, 356 Pa.Super. 543, 549, 515 A.2d 27, 30 (1986), affirmed, 519 Pa. 415, 548 A.2d 1211 (1988), overruled on other grounds, 370 Pa.Super. 179, 536 A.2d 354 (1987) other grounds overruled sub silento 519 Pa. 450, 549 A.2d 81 (1988) (no requirement in consensual cases that the target be identified or that probable cause to intercept a particular communication exists); Commonwealth v. Checca, 341 Pa.Super. 480, 492, 491 A.2d 1358, 1364 (1985) (surveillance conducted with the consent of a party to the conversation is not subject to the exacting standards of authorization required for non-consensual surveillance under the Wiretap Act).

Applying the above-discussed principles to this case, we conclude that the lower court, erred in its analysis of § 5704(2)(ii), and thus the wiretap evidence and marked currency should not have been suppressed. Temporal restrictions, such as “ongoing,” “current,” and “contemporaneous,” are not suggested in the language of § 5704(2)(ii). We have not adopted this limitation. Instead, we require that the Commonwealth must have “reasonable grounds” for the monitoring. Phillips, 540 A.2d at 937; See also, Commonwealth v. Hassine, 340 Pa.Super. 318, 351-352, 490 A.2d 438, 456 (1985) (appellant’s, narrow interpretation of the term “suspected criminal activities” not accepted); Commonwealth v. Harvey, 348 Pa.Super. 544, 554, 502 A.2d 679, 684 (1985), overruled on other grounds, 370 Pa.Super. 179, 536 A.2d 354 (1987) other grounds overruled sub silento 519 Pa. 450, 549 A.2d 81 (1988) (reject defendant’s argument that § 5704(2)(ii) is invalid because it lacks restrictive guidelines).

Instantly, we find that “reasonable grounds” for the consensual wire-tap existed. The Commonwealth conducted its investigation of the appellee in accordance with the language of the Act. Prior to monitoring the telephone conversations and the meetings between appellee and informant, the informant provided the police with abundant information on his illegal dealings with appellee which existed for nearly three years. Moreover, an assistant attorney general interviewed the informant to verily that reasonable grounds for the monitoring existed. Therefore, the consensual telephone, audio-and videotaped interceptions of the informant’s eonversations with appellee and the marked currency which resulted from those lawful interceptions were improperly suppressed.

We reverse and remand for trial.

      . Herein, the Commonwealth has certified that the suppression order in question substantially handicaps their prosecution of this case. Therefore, this appeal is properly before us. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . This section provides as follows:
      § 5704 Exceptions to prohibition on interception and disclosure of communications.
      It shall not be unlawful under this chapter for:
      (2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire or oral communication involving suspected, criminal activities where:
      (ii) one of the parties to the communication had given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom.
      18 Pa.C.S.A. § 5704(2)(ii) (emphasis added).

      . The lower court determined that the information which informant disclosed to police in June, 1986 was too stale, since there was no contact between informant and appellee from February, 1986.
      In his motion to suppress, appellee failed to assert specifically the argument that the information was stale, and thus “suspected criminal activity” within the meaning of § 5704(2)(ii) had not been satisfied. The claim of staleness was raised by the lower court on its own initiative nine months after the close of evidence on the defense motion. In its brief, the Commonwealth contends that the lower court had no authority to award relief on an issue raised by trial judge sua sponte, and that the decision below must be reversed for that reason alone. It cites as authority, Commonwealth v. Murphy, 305 Pa.Super. 246, 451 A.2d 514 (1983), allocatur denied (this Court is authorized, indeed required, to vacate lower court order in Commonwealth appeal where trial judge granted relief on an issue raised by the judge sua sponte). Although we may find this a sufficient basis in itself to reverse the lower court’s decision, we will nevertheless address the question of whether the lower court misinterpreted “suspected criminal activity” within the meaning of § 5704(2)(ii).

      . In its opinion, the lower court cites as authority, Commonwealth v. Doty, 345 Pa.Super. 374, 498 A.2d 870 (1985) and Commonwealth v. Hashem, 526 Pa. 199, 584 A.2d 1378 (1991), and concludes that the facts in this case did not satisfy the requirements of the Act. Trial Court Opinion, pp. 8-11. However, both Doty and Hashem involved non-consensual surveillance of the defendant. Non-consensual surveillance requirements are addressed by the Act under sections outside the scope of § 5704. Hence, our analysis in both Doty and Hashem is inapplicable to this case, since, here, we are presented with consensual surveillance. Under the Act, the requirements for the authorization of non-consensual monitoring are much more stringent than for consensual. Our supreme court has ruled "[w]here a section of a statute 'contains a given provision, the omission of such provision from a similar [section] is significant to show a different intention existed.’ ” Commonwealth v. Bigelow, 484 Pa. 476, 484, 399 A.2d 392, 395 (quoting Richerson v. Jones, 551 F.2d 918, 928 (3rd Cir.1977)). Guided by this principle, we find that our legislature intended “suspected criminal activities” under § 5704(2)(ii) to be evaluated by a reasonableness standard rather than probable cause.


author: HUDOCK, Judge:

text:
    622 A.2d 333
    COMMONWEALTH of Pennsylvania, Appellee, v. Roy STOCKER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1992.
    Filed March 11, 1993.

      James C. Dalton, Doylestown, for appellant.
    Mary Benefield Seiverling, Deputy Atty. Gen., Harrisburg, for Com., appellee.
    Before McEWEN, DEL SOLE and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed on Appellant following his conviction of two counts of corrupt organizations, and conspiracy to commit corrupt organizations. Appellant was sentenced to a term of ten (10) to twenty (20) years in prison on one of the corrupt organization convictions, and ten (10) to twenty (20) years in prison on the conspiracy conviction, to run consecutively. Post-trial motions were filed and denied and this appeal followed. We affirm.

The pertinent facts as summarized by the trial court are as follows:

In June, 1989, the Sixth Statewide Investigating Grand Jury issued presentment No. 17, in which it recommended the filing of charges of corrupt organizations and burglary against various defendants, including Roy Stocker. The presentment alleged that between 1981 and 1987 defendant Stocker and over a dozen other individuals conspired to conduct the affairs of an enterprise through a pattern of racketeering activity, engaging primarily in the manufacture and distribution of a controlled substance, methamphetamine.

Trial Court Opinion at p. 1-2.

Appellant raises seven (7) issues for our consideration in his appeal. They are:

1. Was the defendant denied a fair trial by the admission of references to the “death” and “murder” of Frank Russo, an alleged co-conspirator of defendant?
2. Did the court err in failing to grant the defendant’s pretrial motion to quash paragraphs 19 through 24 of counts I and II of the criminal information?
3. Did the court err in failing to grant the defendant’s motion for severance from the cases of defendants Schwartz, Kallaur and Saltzburg?
4. Did the court commit reversible error when it refused to instruct the jury to make a finding of guilt or acquittal as to each predicate act alleged?
5. Was the defendant denied a fair trial by the court’s admission of various statements made by certain co-conspirators which pertained to the defendant but were not made in his presence?
6. Is defendant entitled to dismissal and/or a new trial based upon after-discovered evidence regarding the testimony of Charles Hitchens, a Commonwealth witness?
7. Whether the court’s imposition of a consecutive sentence of 10 to .20 years incarceration upon count III, conspiracy to commit corrupt organizations is illegal and improper, in that count III merged with count I for sentencing purposes, where the two counts alleged the same criminal acts and conduct?
Appellant’s Brief at p. 3. We will address each issue in the order presented by Appellant.

First, Appellant claims he was denied a fair trial because certain statements were made in the presence of the jury which Appellant contends prejudiced him. The first statement Appellant complains of is as follows:

[Commonwealth’s Attorney]: How long — for how long a period of time did you obtain methamphetamine from Mr. Russo?
[Witness Linda Orlando]: For about a year, up until he was murdered.

N.T. 6/18/90 at p. 44. Appellant claims that the jury could infer from this statement that Appellant was somehow responsible for the death of Frank Russo, even though Appellant was not charged with the predicate offense of murder. Appellant claims that this statement refers to other criminal activity which is inadmissible. While we agree that evidence of prior criminal activity is generally inadmissible to show defendant was likely to have committed the current offense, Commonwealth v. Bonace, 391 Pa.Super. 602, 571 A.2d 1079 (1990), alloc. den., 526 Pa. 647, 585 A.2d 466, mere passing references to prior criminal activity do not necessarily result in a mistrial.

“Whether to declare a mistrial is a decision which rests -within the sound discretion of the trial court, whose exercise thereof will not be reversed absent an abuse of such discretion.” Id. 391 Pa.Super. at 608, 571 A.2d at 1082. “The nature of the reference and whether the remark was intentionally elicited by the Commonwealth are additional factors to be considered in determining whether a mistrial is necessary.” Id. We note that the trial court recognized an objection by stating: “Objection noted. Until his death. Go ahead.” N.T. 6/18/90 at p. 44. We hold that the trial court did not abuse its discretion when it admitted the testimony as corrected because this was a mere passing reference and was not expanded upon by the Commonwealth.

Next, Appellant asserts that the following statement prejudiced him:

[Appellant’s Counsel]: Have you been charged with anything by the Federal Government?
[Witness Stephen Fenton]: No.
Q: Have you been interviewed by any of their agents?

A: I was first interviewed right after Frank’s murder. N.T. 6/15/90 at p. 982. Appellant concedes, “[a]lthough various counsel objected and moved for a mistrial, the trial court denied the motions and cautioned the jury to disregard the reference to murder. N.T. 6/15/90, p. 983.” Appellant’s Brief at 13. We note that this line of questioning was pursued by Appellant’s own counsel. We also note that the trial court sustained defense objections stating: “The objection is sustained because it’s not really responsive to the question. Motions for mistrial are denied. And the answer is stricken.” N.T. 6/15/90 at pp. 982-983. We find that this statement was not elicited by the Commonwealth and the court struck the answer from the jury’s consideration. Therefore, the trial court did not abuse its discretion in admitting this testimony. Appellant’s claim as to his first issue is without merit.

Next, Appellant claims the trial court erred in failing to quash paragraphs 19 through 24 of Count I of the criminal information. Appellant claims that those paragraphs pertain to the events involving the burglary and theft of approximately fourteen (14) gallons of P2P. Appellant claims that the original charges against him included the substantive offense of burglary. That charge was dismissed at the preliminary hearing, and Appellant sought to delete those paragraphs from the criminal information. Paragraphs 19 through 24 read as follows:

19. On or about September 29, 1986, as a co-conspirator with Frank RUSSO, possessed with intent to manufacturer [sic] methamphetamine, five (5) gallons of phenylacetone, also known as P2P or phenyl-2-propanone in violation of § 13 of the Act of April 14, 1972, (P.L. 233, No. 64).
20. On or about September 29, 1986, as a co-conspirator with Frank RUSSO, unlawfully take or exercise control over five (5) gallons of phenylacetone, also known as P2P or phenyl-2-propanone, the property of George WETTON, in violation of 18 Pa.C.S. § 3921.
21. On or about September 29, 1986, conspire with Frank RUSSO that they or one or more of them will commit racketeering acts 19 and 20 and did an overt act in pursuance thereof, to wit: Frank RUSSO obtained possession of five (5) gallons of phenylacetone, also known as P2P or phenyl-2-propanone, the property of George WETTON, in violation of 18 Pa.C.S. § 903.
22. On or about September 29, 1986, as a co-conspirator with Kenneth SCHWARTZ and/or Robert KALLAUR and/or Barry SALTZBURG and/or others, possessed between ten (10) and fourteen (14) gallons of phenylacetone, also know as P2P or phenyl-2-propanone, with the intent to manufacture methamphetamine and/or to deliver phenylacetone, in violation of § 13 of the Act of April 14, 1972, (P.L. 233, No. 64).
23. On or about September 29, 1986, as a co-conspirator with Kenneth SCHWARTZ and/or Robert KALLAUR and/or Barry SALTZBURG and/or others, unlawfully take or exercise control over fourteen (14) gallons of phenylacetone, also known as P2P or phenyl-2-propanone, the property of George WETTON, in violation of 18 Pa.C.S. § 3921.
24. On or about September 29, 1986, conspire with Kenneth SCHWARTZ and/or Robert KALLAUR and/or Barry SALTZBURG and/or others to commit racketeering acts 22 and 23 and did an overt act in pursuance thereof, to wit: Frank RUSSO obtained possession of between ten (10) and fourteen (14) gallons of phenylacetone, also known as P2P or phenyl-2-propanone, in violation of 18 Pa.C.S. § 903.

Criminal Information at pp. 4-5. Appellant claims that because the substantive charge was dismissed, so too should the paragraphs which relate to those events. We disagree.

We agree with the trial court’s analysis of this issue and therefore adopt that portion of its opinion as follows:

The bill of information filed against Roy Stocker, included, at paragraphs 19 through 24, the offense of burglary as a predicate offense for the charge of corrupt organizations. Defense counsel filed a motion to quash these subparagraphs of the information, based upon the lack of evidence linking defendant Stocker to these crimes and the resulting dismissal of the charges at the preliminary hearing. This Court denied defendant’s motion to quash and permitted the introduction of testimony regarding the burglary against defendant Stocker as it related to the predicate act alleged in his information.
Defense counsel alleges that this ruling was an abuse of discretion and deprived the defendant of a fair trial. Further, defense counsel submits that where the Commonwealth charges a particular predicate act as a substantive offense, and where that charge is dismissed at a preliminary hearing, that the Trial Court must consider this dismissal as dispositive on the issue of whether the predicate act may be included under the corrupt organizations charge. Defense counsel provides, however, no case law in support of this conclusion.
The Pennsylvania Corrupt Organizations Act, 18 Pa.C.S. § 911, does not require that a defendant be convicted of the predicate crimes which constitute a pattern of racketeering activity. Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744, 749 (1984). The act requires only that the Commonwealth prove the elements of two or more predicate acts beyond a reasonable doubt. Accordingly, the Commonwealth may at its discretion elect to charge a defendant solely with corrupt organizations, specifying the predicate acts which it will attempt to prove. Under such circumstances, there is no assurance that each and every predicate act alleged will be proved beyond a reasonable doubt, and there is no requirement that such be the case. Rather, the Commonwealth must prove only a course of conduct consisting of at least two of the predicate acts which the Commonwealth alleged. As was previously stated, this must be accomplished by proving each element of at least two of the predicate acts beyond a reasonable doubt.

Defense counsel argues that the courts should carve out a limited exception, whereby the fact-finder should be precluded from considering a particular predicate act solely because a district justice decides at a preliminary hearing that the evidence presented at that time is insufficient to support a substantive charge with respect to that offense. The Court can find no basis in law or policy to support such a conclusion. The predicate acts complained of in this instance comply with the requirements of Pa.R.Cr.P. Rule 225(b)(5) in that they are cognate to the offense alleged, and notice of the burglary-related acts was provided to the defendant. Further, the defendant was not charged separately with the burglary or theft charges and was not convicted of having committed them as separate offenses for which he may be sentenced.

Trial Court Opinion at 13-15. We note, additionally, that the substantive charge of burglary is different than the predicate offenses of theft alleged in the information. The crime of burglary as defined by 18 Pa.C.S. § 3502(a) is:

A person is guilty of burglary if he enters a budding or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.

The crime of theft by unlawful taking is defined in 18 Pa.C.S. § 3921(a) as:

A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.

Therefore, while the charge of burglary was dismissed, it is not necessarily the case that the predicate offenses of theft by unlawful taking (as described in paragraphs 20 and 23 of the criminal information) must be eliminated because the proof required is of a different nature. We therefore agree with the trial court and find no abuse of discretion in refusing to quash paragraphs 19 through 24 of the criminal information.

Appellant’s third issue concerns the denial of his pre-trial motion for severance from co-defendants Schwartz, Kallaur and Saltzburg. Essentially, Appellant claims that these defendants were the participants in the burglary alleged as part of paragraphs 19 through 24 above. We note that “the decision of whether to sever trials of co-defendants is one within the sound discretion of the trial judge and will not be disturbed on appeal absent a manifest abuse of discretion.” Commonwealth v. Patterson, 519 Pa. 190, 197, 546 A.2d 596, 599 (1988). As with the previous issue, we agree with the trial court’s analysis of this issue and adopt that portion of the trial court opinion as follows:

Prior to trial, defendant Stocker, through his counsel, filed a motion to sever his case from those of defendants Schwartz, Kallaur and Saltzburg. The basis for this motion was that the latter defendants "would be shown to have a direct involvement in the burglary of 9732 Clark Street, and the resulting theft of P2P belonging to George Wetton from that property.” (Defendant’s Brief). Only defendants Schwartz and Kallaur, however, were charged with the substantive offense of burglary and conspiracy to commit burglary. Defendant Saltzburg was charged only with corrupt organizations. Defense counsel also argues that the Commonwealth’s failure to establish a prima facia case on the substantive burglary offense is “indicative of the remote connection established between defendant Stocker and the burglary conspirators,” and that “in light of this weak connection, the prejudicial impact of the burglary evidence and references to the ultimate murder of Frank Russo were overwhelmingly prejudicial to (defendant) Stocker.”

Criminal defendants may be joined if they are alleged to have participated in the same act or transaction, or the same series of acts or transactions. Pa.R.Cr.P. Rule 1127A(2). A court, at its discretion may, however, order separate trials of defendants, if it appears that any party may be prejudiced by the defendants being tried together. Pa.R.Cr.P. Rule 1128. In determining whether to sever certain defendants, the court must balance the need to minimize the prejudice that may be caused by consolidation, against the general policy of encouraging judicial economy. See Commonwealth v. Patterson, 519 Pa. 190, 546 A.2d 596 (1988). Generally, a defendant’s case should be severed if not doing so would result in substantial injustice. Commonwealth v. Katsafanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983). As the Katsafanas Court noted, a better chance of acquittal from a separate trial does not meet this burden. Rather, the defenses presented by the various defendants must be “irreconcilable and exclusive” and “conflict at the core” before the substantial prejudice burden is met. Commonwealth v. Bennie, 352 Pa.Super. [558], 508 A.2d 1211 (1986).

Evidence was presented at trial linking defendant Stocker to the burglary of 9732 Clark Street and to defendants Schwartz, Kallaur and Saltzburg. Each defendant was alleged to have participated in some manner in the Clark Street burglary, and defendants Kallaur and Saltzburg were alleged to have been part of a corrupt organization controlled by Roy Stocker. Evidence was received to establish burglary as a predicate offense to the charge of corrupt organizations against defendants Kallaur and Saltzburg, and to establish burglary and conspiracy to commit burglary against defendants Schwartz and Kallaur. It is clear that the defendants are alleged to have participated in the same act or transaction, or the same series of acts or transactions as required for joinder pursuant to Pa.R.Cr.P. Rule 1127A(2).

It is also clear that severing defendants Schwartz, Kallaur and Saltzburg would not have eliminated all burglary-related testimony against defendant Stocker. This lessens any prejudicial effect with respect to the defendant. Further, and more importantly, the Court’s frequent and repeated instructions to the jury, as well as the Commonwealth’s well-ordered presentation of the case allowed the jury to compartmentalize the evidence as it related to the separate defendants.

A review of the charge to the jury indicates that we carefully reiterated the importance of separating the evidence as to each defendant. In particular, we stated as follows:

These are separate cases. They are being tried together because it makes efficient sense to try them together, but they are separate cases. Some of the evidence with respect to some of the defendants may only be applied to that particular defendant or set of defendants and we’ve been through that before. When you deliberate you will be making determinations, guilty or not guilty, with respect to separate persons, separately considered.
Each of the defendants is entitled to that separate consideration. (N.T. Vol. XVII-117).

The substantial injustice standard necessary to mandate severance has not been met.

Trial Court Opinion at 15-18. Consequently, we find that the trial court did not abuse its discretion and that Appellant’s claim with regard to this issue is without merit.

Appellant’s fourth issue involves a challenge to the jury instruction given with regard to the predicate offenses charged. Appellant contends that it was error for the trial court to fail to instruct that the jury must find the defendant guilty or not guilty as to each predicate act alleged. Appellant argues that because he was not charged with substantive offenses, and the jury returned a general verdict, that this Court should review the record as a whole to determine whether there was sufficient evidence to prove each predicate act. Specifically, Appellant claims there was insufficient evidence as a matter of law to establish the predicate acts contained in paragraphs 19 through 24 of the information and, therefore, the jury could have relied on those acts in its guilty verdict under the corrupt organizations charge. Both parties, as well as the trial court, recognize that this issue is one of first impression in Pennsylvania.

Initially, we note that the challenged predicate acts in paragraphs 19 through 24 of the information were worded in such a way as to cause Appellant to be liable, not necessarily as the one who committed the acts themselves, but rather as a co-conspirator. Therefore, we note the basic principle of conspirator liability, that once there is evidence of the presence of a conspiracy, the conspirators are liable for the acts of co-conspirators committed in furtherance of the conspiracy. See Commonwealth v. Thomas, 410 Pa. 160, 189 A.2d 255 (1963).

Furthermore, we note that Appellant’s challenge to paragraphs 19 through 24 is related to his previous challenge concerning the dismissal at the preliminary hearing of the substantive charge of burglary. As we have stated, the predicate acts in paragraphs 19 through 24 concern the elements of theft by deception, not burglary, and the trial court properly allowed these paragraphs to remain in the criminal information. Therefore, his argument must fail that there was necessarily insufficient evidence to support those predicate acts merely because the substantive charge of burglary was dismissed at the preliminary hearing stage of the proceedings. Proof at trial is not the same thing as proof at the preliminary hearing. Moreover, Appellant has failed to state in what way the evidence presented at trial is insufficient. 18 Pa.C.S. §911 does not require that Appellant be convicted of the predicate crimes which constitute a pattern of racketeering. Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744 (1984).

We acknowledge that the trial court instructed the jury that the Commonwealth must prove beyond a reasonable doubt all the elements of at least two predicate acts. The trial court rejected a request for an instruction which would require the jury to specify which predicate acts it relied upon in returning its verdict. Although this issue has not been previously decided concerning the Pennsylvania corrupt organizations law, we agree with the analysis of the trial court concerning the use of criminal conspiracy law as the basis for denying Appellant’s request for specificity on the part of the jury, and therefore adopt the following portions of the trial court’s opinion:

Obviously our law requires that the reviewing court be satisfied that evidence exists which would lead a rational jury, following an appropriate jury instruction to find that each element essential for a corrupt organizations conviction has been established beyond a reasonable doubt. This would include a finding that all of the elements of at least two predicate acts alleged were proved beyond a reasonable doubt. It would not require, however, a finding of sufficient evidence for each and every predicate act alleged.
We find support for our conclusion in Pennsylvania criminal conspiracy case law. It is well settled that an overt act in furtherance of a conspiracy is a necessary element of criminal conspiracy. Commonwealth v. Finn, 344 Pa.Super. 571, 496 A.2d 1254 [1985]; Commonwealth v. Craft, 304 Pa.Super. 494, 450 A.2d 1021 (1982); In interest of Gonzales, 255 Pa.Super. 217, 386 A.2d 586 (1978); Commonwealth v. Holguin, 254 Pa.Super. 295, 385 A.2d 1346 (1978). There is no requirement in Pennsylvania, however, that in situations where more than one overt act is alleged that the jury specify which of those acts is relied on in reaching a guilty verdict. If the reasoning behind this rule is extended to the context of corrupt organizations, it requires finding at least two predicate acts beyond a reasonable doubt, but does not require a specific finding as to each predicate act alleged.
An example of the above analysis in the context of criminal conspiracy is set forth in Commonwealth v. Ackerman, 239 Pa.Super. 187, 361 A.2d 746 (1976). In Ackerman, the defendant was indicted for criminal conspiracy. The overt acts alleged in the conspiracy indictment were kidnapping and aggravated assault. The evidence presented at trial was sufficient to prove only the overt act of aggravated assault. Although the Ackerman court could not be completely certain that the jury based its guilty verdict on the aggravated assault overt act, the Court affirmed the conspiracy conviction, nonetheless.
Although we have determined that Pennsylvania law does not require proof beyond a reasonable doubt as to each predicate act alleged, the second aspect of [this] final issue presented by the defendant still merits discussion. To reiterate, the defendant alleges that insufficient evidence was presented at trial to support an affirmative finding as to burglary-related predictate] acts nineteen through twenty-four. We disagree with the defendant as to the sufficiency of the evidence.
# H? % #
The uncontradicted testimony, especially that of co-conspirators Michael Kallaur and Steven Fenton, establishes a course of conduct during the summer of 1986 whereby Roy Stocker, Kenneth Schwartz, Frank Russo, Robert Kallaur, Michael Kallaur and Steven Fenton, agreed to burglarize from ten to fourteen gallons of P2P belonging to George Wetton from a private residence at 9732 Clark Street, Philadelphia. In particular, co-conspirator Steven Fenton testified that Roy Stocker was to share in any proceeds derived from the conspiracy. (N.T. Vol. XIII-911). These proceeds were to come from profits obtained after the P2P was converted to methamphetamine, and the methamphetamine was distributed to various third parties. (N.T. Vol. XIII-911). Testimony further establishes that on September 29, 1986, Michael Kallaur, John Kallaur and Frank Russo executed the burglary by entering the residence, and removing from ten to fourteen gallons of P2P from the residence’s garage to the trunk of Michael Kallaur’s automobile. These facts, as testified to at trial, prove burglary-related predicate acts nineteen through twenty-four beyond a reasonable doubt.

Trial Court Opinion at pp. 35-36, 37-38. We therefore find that the trial court properly instructed the jury with regard to this issue and Appellant’s claim is without merit.

Appellant’s fifth issue concerns certain statements admitted into evidence which he contends were improper. We agree with the analysis of the trial court and therefore adopt the following portion of the trial court’s opinion:

During the testimony of Philip Leonetti, he was asked, “What did Nick Scarfo tell you of the relationship of Roy Stocker and Philip Testa at that time?” A defense objection to this question was initially sustained, but the witness, Leonetti, was later allowed to answer. Leonetti testified, “My uncle (Nick Scarfo) asked Roy Stocker if he could work along with Reds Pontani up in the northeast, shaking people down, you know.” (N.T. Vol. IV-336). With regard to this statement, the defendant specifically objects that the statement lacked a proper foundation to come within the co-conspirator exception to the hearsay rule. In support of this, the defendant argues that there was no evidence of a conspiracy between Philip Leonetti and Roy Stocker and/or Nicodemo Scarfo, and that there was no testimony of any particular overt act by the defendant in furtherance of such conspiracy.
We admitted the statement in question as a verbal event and not for the truth thereof. (N.T. Vol. IV-347). Such words are not hearsay, Commonwealth v. Sampson, 454 Pa. 215, 311 A.2d 624 (1973), and accordingly, no exception to the hearsay rule need be considered. In fact, words are often evidence of a conspiracy.
The defendant next objects to Philip Leonetti’s testimony concerning the fact that Albert Pontani obtained a transcript through Roy Stocker which was ultimately provided to Nicodemo Scarfo. (N.T. Vol. IV-358). The defendant, again, argues that the statement does not fall within the co-conspirator exception to the hearsay rule, due to an insufficient foundation. The defendant does not argue, however, that one must be indicted as a co-conspirator, in order to come within the exception.
The co-conspirator exception applies to hearsay statements made during the course of, and in furtherance of a conspiracy. Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981). The foundation required is proof, by a fair preponderance of the evidence, that a conspiracy existed, Commonwealth v. Moyers, 391 Pa.Super. 262, 570 A.2d 1323 (1990), as well as the additional requirement that the proffered statement contain certain “indicia of reliability” including personal knowledge of the assertions made in the statements, the absence of an apparent reason for the declarant to lie, spontaneity, and findings that the statement was against the declarant’s penal interest. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981).
With regard to the first prong of the test it is appropriate for the witness testifying to the out-of-court statements to establish the existence of the conspiracy. Commonwealth v. Hirsch, 225 Pa.Super. 494, 311 A.2d 679 (1973). There is no requirement, however, that the conspiracy be established before the statement is testified to by the defendant. The order of proof is within the discretion of the court. Hirsch, supra. A conspiracy for the purposes of the co-conspirator exception to the hearsay rule, may be inferentially established by showing the relation, conduct or circumstances of thé parties. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976).
In the case at bar, Philip Leonetti’s testimony is based on his personal knowledge as the underboss of the Philadelphia La Cosa Nostra. As the underboss, Leonetti was privy to virtually every aspect of that crime family’s activities, and his testimony establishes, by a fair preponderance of the evidence, that a conspiracy existed between himself, Albert Pontani, Nicodemo Scarfo and Roy Stocker. (N.T. Vol. IV-306-368). That the statement referred to above, was made in the course of and in furtherance of the conspiracy, is self-evident. Therefore, the first prong of the co-conspirator exception has been met. Mr. Leonetti’s personal knowledge of the assertions made in his statements, the absence of an apparent reason for him to lie, and the fact that the statement was against his penal interest, together establish the “indicia of reliability” necessary to meet the co-conspirator exception’s final prong.
Next, defendant Stocker objects to Charles Hitch-ens’ testimony to the effect that Frank Rosetti informed him that the only person who could “straighten out” the contract on Mr. Hitchens’ life was Roy Stocker. (N.T. Vol. VII-140). As the Court instructed at the time this statement was made, these words are verbal assertions which are not offered for the truth thereof, but merely to form a basis for Mr. Hitchens meeting with Roy Stocker. Mr. Hitchens may have believed that the words were true but it matters not to the trial of this defendant. See Commonwealth v. Sampson, 454 Pa. 215, 311 A.2d 624 (1973), and Commonwealth v. Darden, 311 Pa.Super. 170, 457 A.2d 549 (1983). As the Commonwealth asserts in its brief, whether or not defendant Stocker was the only person who could help Mr. Hitchens avoid a contract on his life is of no moment in establishing any of the predicate acts charged. The fact merely explains the reason for Mr. Hitchens introduction to the defendant.
The defendant next objections to John Spadaccino’s testimony that Roy Stocker told him that Anthony Gentile had taken a seven thousand dollar loan from a man known as Muncie. (N.T. Vol. VII-75). While the defendant concedes that the testimony was offered merely as a verbal event and not for its truth, the defendant submits that the relevance of this verbal act is outweighed by its substantial prejudice. The defendant, however, fails to assert the precise nature of the prejudice alleged, and after reviewing the transcript, the Court finds no substantial prejudice.
The defendant also objects to the testimony of Steven Fenton regarding the relationship which existed between Roy Stocker and Frank Russo. In particular, the defendant objects to Steven Fenton’s testimony that Frank Russo said, “Whatever he (Frank Russo) did he (Roy Stocker) got a piece of it,” (N.T. Vol. XII-883, 885), and to Fenton’s statement that Frank Russo told him, “Mr. Stocker was his boss, that’s who he answered to.” (N.T. Vol. XIII-967). The defendant asserts that these statements are hearsay and as such should have been excluded.
Again, we note, the co-conspirator exception applies to hearsay statements made during the course of, and in furtherance of a conspiracy. Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981). The foundation required is proof, by a fair preponderance of the evidence, that a conspiracy existed, Commonwealth v. Moyers, 391 Pa.Super. 262, 570 A.2d 1323 (1990), as well as the additional requirement that the proffered statement contain certain “indicia of reliability” including personal knowledge of the assertions made in the statements, the absence of an apparent reason for the declarant to lie, spontaneity, and findings that the statement was against the declarant’s penal interest. Commonwealth v. Coccioletti 493 Pa. 103, 425 A.2d 387 (1981). A conspiracy for the purposes of the co-conspirator exception to the hearsay rule, may be inferentially established by showing the relation, conduct, or circumstances of the parties. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976).
That there was a conspiracy between Roy Stocker and Frank Russo, at the time that the words objected to were uttered, is clear from the testimony. Not only Steven Fenton, but also John Spadaccino, Joseph Inadi, Charles Hitchens, Gerry Crouse and Frank Russo’s brother, Anthony Russo, provided evidence as to the length and nature of the relationship. The testimony established by a fair preponderance of the evidence that Frank Russo became involved with Roy Stocker through his association with Big John’s Chicken and Ribs Restaurant. Testimony also established that John Spadaccino was the conduit through which Frank Russo’s relationship with Roy Stocker initially developed, and that following Frank Russo’s association with “Big John’s” restaurant, Roy Stocker was entitled to a part of every illegal dollar that Frank Russo received, until Russo’s death in 1987. Certainly, these facts establish the appropriate foundation by a fair preponderance of the evidence, and contain the necessary “indicia of reliability” to satisfy the co-conspirator exception to the hearsay rule.
Frank Russo’s statements to Steven Fenton “furthered” the conspiracy, in that they informed one member of the conspiracy, Steven Fenton, of the conspiracy’s scope, and thereby served to solidify the conspiracy’s vertical structure. Whether or not this was Frank Russo’s intent is immaterial. [S]ee Commonwealth v. Dreibelbis, 493 Pa. 466, 475, 426 A.2d 1111, 1115 (1981); Commonwealth v. Coccioletti, 493 Pa. 103, 111, 425 A.2d 387, 391 (1981); Commonwealth v. Moyers, 391 Pa.Super. 262, 570 A.2d 1323, 1326 (1990); Commonwealth v. Robinson, 298 Pa.Super. 447, 451, 444 A.2d 1260, 1262 (1982).
The defendant reiterates his hearsay argument, with respect to Anthony Russo’s testimony concerning the fact that his brother, Frank Russo, had stated that Frank’s illegal activities were supervised by Roy Stocker. (N.T. Vol. XIV-193). It is clear from the record that Anthony Russo’s testimony is within the co-conspirator exception.

Trial Court Opinion at 21-27. We agree with the trial court that these statements were properly admitted into evidence and that Appellant’s claims on this issue are without merit.

Appellant’s sixth issue concerns both after-discovered evidence and the disclosure of exculpatory evidence. The trial court indicated that the motion concerning after-discovered evidence came in while it was preparing the trial court opinion. Consequently, the court did not address this issue at any length although it denied Appellant’s motion for a new trial. Appellant claims that Charles Hitchens testified pursuant to a plea agreement in which he stated he participated in obtaining and distributing two drums, 50 gallons each, of P2P from “Reds” in Trenton. Appellant contends that on cross-examination, Hitchens stated that the facts in his plea agreement were essentially accurate. Appellant contends that after his trial Hitchens testified in a federal prosecution on related charges, and in that federal case testified to having participated in only one deal involving one drum of P2P. Appellant asserts that Hitchens denied participating in a second deal.

After-discovered evidence is a basis for a new trial if it

(1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted.

Commonwealth v. Buehl, 510 Pa. 363, 393, 508 A.2d 1167, 1182 (1986) citing Commonwealth v. Colson, 507 Pa. 440, 469, 490 A.2d 811, 826 (1985). The decision to grant a new trial is within the discretion of the trial court and absent a clear abuse of that discretion we will not reverse the trial court’s decision on appeal. Commonwealth v. Nocero, 399 Pa.Super. 346, 582 A.2d 376 (1990), alloc. den., 527 Pa. 643, 593 A.2d 416 (1991). We note initially that the official record does not contain the notes of testimony to which Appellant refers as Hitchens’ recanted testimony at the federal trial. Our review of this issue is not hampered, however, as a result of this defect.

Both Appellant and the Commonwealth concede that Hitchens’ testimony at the federal trial took place after Appellant’s state trial. Therefore, the first prong of the test enumerated in Buehl, supra, has been met. This testimony, however, does not survive either the third or fourth prongs. As the Commonwealth points out, the “deal” to procure either one or two 50-gallon drums of P2P was not alleged as a predicate offense in the criminal information filed against Appellant. Therefore, proof of the existence of the transactions would not cause a different verdict, as the act is not necessary to the proof of the crime of corrupt organizations as charged. Likewise, we find that to confront Hitchens with a changed version of his testimony serves only to impeach his credibility, despite Appellant’s argument to the contrary. Consequently, we find that the trial court did not abuse its discretion when it refused Appellant’s motion for a new trial on this issue.

Because we find that Appellant was not entitled to a new trial on a theory of after-discovered evidence, we also find that Appellant was not entitled to disclosure of the statement made by Hitchens. Appellant contends that the joint state and federal prosecution teams were aware in 1989 that Hitchens’ testimony, which formed the basis for his plea agreement, was not accurate. He claims that this evidence should have been turned over to the defense under Pa.

R. Crim.P. 305(B)(1)(a). This rule reads as follows:

B. Disclosure by the Commonwealth.

(1) Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
(a) Any evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the attorney for the Commonwealth.

Pa.R.Crim.P. 305(B)(1)(a) 42 Pa.C.S. We note that under this rule, as well as relevant case law, failure to disclose material and exculpatory evidence violates a defendant’s due process rights. Commonwealth v. Lochman, 265 Pa.Super. 429, 402 A.2d 513 (1979); see also Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215. The important words, however, are material and exculpatory. Appellant has failed to establish that this evidence is either material or exculpatory given the fact that the predicate acts listed in the criminal information do not concern these transactions. Likewise, Appellant has failed to demonstrate that there was anything for the Commonwealth to disclose. The fact that the Commonwealth may have been aware of the inaccuracy of Hitchens’ plea agreement testimony is not enough in itself. Appellant concedes that Hitchens did not actually testify differently until after the completion of Appellant’s trial. Appellant does not point to any record which existed prior to his trial. Therefore, there was nothing for the Commonwealth to disclose, and he is not entitled to a new trial as a result of the absence of this information.

Lastly, Appellant claims that the trial court improperly sentenced him for conspiracy to commit corrupt organizations, and corrupt organizations as the underlying offense, imposing a consecutive sentencing scheme. He claims that this is an illegal sentence because the two convictions should have merged for sentencing purposes. It is a fundamental principle of law that the crimes of conspiracy and the completed underlying offense do not merge. Commonwealth v. Fuller, 396 Pa.Super. 605, 579 A.2d 879 (1990), alloc. den., 527 Pa. 585, 588 A.2d 508 (1991). Therefore, the sentence was not illegal, and, therefore, Appellant’s claim must fail. Appellant does not, however, claim that the trial court abused its discretion in sentencing him to consecutive sentences, and we therefore do not address that aspect of his sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 911(b)(2).

      . 18 Pa.C.S. § 911(b)(4).

      . No sentence was imposed on the second corrupt organizations conviction. clarified in light of the the additional expenses which must now be included to calculate the cost of Jeison’s education.