author: CERCONE, President Judge Emeritus: CIRILLO, President Judge Emeritus,

text:
    678 A.2d 369
    COMMONWEALTH of Pennsylvania v. Kevin NEITZEL, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1996.
    Filed May 21, 1996.

      Matthew White, Philadelphia, for appellant.
    Jonathan Levy, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, J., and CIRILLO and CERCONE, President Judges Emeritus.
   CERCONE, President Judge Emeritus:

This is a direct appeal from the judgment of sentence entered following a trial de novo at which appellant was convicted of violating the Game and Wildlife Code. We affirm.

Appellant, Kevin Neitzel, was a taxidermist at the time of his arrest, with a business address at 4100 Robbins Avenue in the City of Philadelphia. On August 19, 1994, eleven armed officers from the Pennsylvania Game Commission and the United States Fish and Wildlife Service conducted a search of appellant’s taxidermy shop at approximately 1:30 p.m., during appellant’s regular business hours. See N.T. 3/8/95 at 14. The officers seized several items, including two frozen migratory game bird carcasses. The Commonwealth filed two Philadelphia Municipal Court citations on September 28, 1994 charging that appellant had not complied with game tag regulations promulgated under 34 Pa.C.S. § 2103, 16 U.S.C. §§ 703-712, and 50 C.F.R. §§ 20.26 and 20.37 with regard to his possession of a Merganser hen and a Wood Duck hen.

On November 17, 1994, appellant was found guilty as charged in Philadelphia Municipal Court. Appellant was not represented by counsel at the Municipal Court hearing. See N.T. 3/8/95 at 4 (averment of defense counsel at appellant’s trial de novo). However, appellant engaged the services of an attorney and timely appealed for a trial de novo in the Court of Common Pleas. On March 7, 1995, counsel filed an omnibus pre-trial motion on appellant’s behalf seeking suppression of evidence. The Honorable Jacqueline F. Allen denied the omnibus motion on March 8,1995 and the matter proceeded to trial. After the Commonwealth rested, appellant demurred. Judge Allen granted the demurrer as to the charge of possessing improperly tagged migratory game birds belonging to another person, but found that the Commonwealth had sustained its burden of proof that appellant had possessed improperly tagged birds belonging to himself. Appellant then testified on his own behalf. Ultimately, Judge Allen found appellant guilty on two counts of violating section 2103 by possessing an improperly tagged Wood Duck hen and Merganser hen. The trial court imposed a fine of one hundred dollars ($100) for each improperly tagged bird. Appellant filed no consolidated post-trial motion. See Pa. R.Crim.P., Rule 1410(D), 42 Pa.C.S.A. (there shall be no post-sentence motion in summary case appeals following a trial de novo in the Court of Common Pleas).

Appellant filed a timely notice of appeal, and the trial court directed appellant to supply a concise statement pursuant to Rule of Appellate Procedure 1925. See Pa. R.A.P., Rule 1925(b), 42 Pa.C.S.A. Appellant complied, and explained that he was improperly convicted of a crime not charged. The trial court addressed this claim in an extensive opinion, filed July 20, 1995, and concluded that appellant’s contentions were meritless. The instant timely appeal followed in which appellant raises two issues: (1) that the lower court erred in holding that appellant could be convicted of an offense for which he was never properly charged; and (2) that the trial court had no authority to amend, sua sponte, the charge against appellant at the time of trial to add a new charge not included on the original citation.

Appellant does not dispute the fact that the freezer at his taxidermy shop contained two migratory game birds which were not tagged in the manner required by the Code of Federal Regulations. He explained at trial that he hunted the birds himself, and stored them in his home freezer until his wife objected. He then transferred the carcasses to his shop freezer. Appellant also stated that he knew about the game tag requirements for migratory game birds. N.T. 3/8/95 at 19-22. Thus, appellant admitted not only that the migratory game bird carcasses seized by the federal and state agents belonged to him, he also conceded that they were not properly tagged as he knew they should be. However, appellant does not contest the sufficiency of the evidence; rather he argues that he was convicted of a crime not charged in the citation with which the Commonwealth commenced the case against him. In his first issue, appellant contends that he was only charged with possessing two improperly tagged migratory game birds belonging to another person, an offense under section 20;37 of the Code of Federal Regulations. He therefore urges us to find that he did not receive proper notice that the Commonwealth intended to prove that he was guilty of possessing improperly tagged migratory game birds belonging to himself, an offense under section 20.36 of the Code of Federal Regulations.

The information to be included on a citation is specified by Rule of Criminal Procedure 53. At the time of the events underlying the instant appeal, that Rule provided as follows:

(a) Every citation shall contain: ...
(6) a citation of the specific section and subsection of the statute or ordinance allegedly violated, together with a summary of the facts sufficient to advise the defendant of the nature of the offense charged;....

Pa. R.Crim.P., Rule 53(a)(6), 42 Pa.C.S.A. (substantially modified by amendments adopted July 35, 1994, effective January 1, 1995). The former version of the Rule did not require the Commonwealth to recite all possible facts connected to the statutory sections listed in a particular citation. Rather, a citation was deemed to provide proper notice under the prior version of Rule 53 when the statutory cites and the facts recited provided actual notice to a defendant as to the nature of the crimes charged. Commonwealth v. Cohen, 413 Pa.Super. 460, 463-64, 605 A.2d 814, 815-16 (1992).

The first citation filed in the instant case accused appellant of committing the following acts:

[Violating] 34 PA C.S. SECTION 2103, REF 16 USC 703-712, AND 50 CFR 2036 & 2037. DEFENDANT WAS IN CUSTODY UNLAWFULLY, OF MIGRATORY GAME BIRD (HEN, WOODDUCK), BELONGING TO ANOTHER, WITHOUT REQUIRED TAGS OR INFORMATION, PURSUANT TO 16 USC 703-712 AND 50 CFR 2036 AND 2037.

Philadelphia Municipal Court Citation, Complaint No. 70231. (The second citation lodged against appellant used virtually identical language, but charged that appellant violated section 2103 with regard to the carcass of a Merganser hen rather than a Wood Duck.) It is apparent on the face of the citations that the Commonwealth accused appellant of violating section 2103 of the Game and Wildlife Code, with reference to certain specifically identified federal laws and regulatory provisions.

The citation charges that appellant violated section 2103 of the Game and Wildlife Code. That statutory section contains the following language:

(a) General rule. — The provisions of the Federal Migratory Bird Treaty Act (16 U.S.C. § 703 et seq.) or Federal Duck Stamp Act (16 U.S.C. § 718 et seq.) are hereby made a part of this title. Federal regulations shall not apply if commission regulations or other provisions of this title prescribe stronger or more detailed restrictions for the taking of migratory birds, nongame birds or game or wildlife.

34 Pa.C.S.A. § 2103(a) (emphasis in original). In order to understand the meaning of section 2103, it is obviously necessary to consult the provisions of the United States Code. In this case, the relevant statute is section 703 of the Migratory Bird Treaty Act:

Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or in part, of any such bird or any part, nest, or egg thereof, included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds concluded August 16, 1916 (39 Stat. 1702), the United States and the United Mexican States for the protection of migratory birds and game mammals concluded February 7, 1936, the United States and the Government of Japan for the protection of migratory birds and birds in danger of extinction, and their environment concluded March 4, 1972 and the convention between the United States and the Union of Soviet Socialist Republics for the conservation of migratory birds and their environments concluded November 19,1976.

16 U.S.C. § 703 (emphasis added). The pertinent “regulations” referenced by section 703 concerning “possession” of migratory game birds (and/or game bird parts) have been set forth in the Code of Federal Regulations as follows:

No person shall put or leave any migratory game birds at any place (other than at his personal abode), or in the custody of another person for picking, cleaning, processing, shipping, transportation, or storage (including temporary storage), or for the purpose of having taxidermy services performed, unless such birds have a tag attached, signed by the hunter, stating his address, the total number and species of birds, and the date such birds were killed. Migratory game birds being transported in any vehicle as the personal baggage of the possessor shall not be considered as being in storage or temporary storage.

50 C.F.R. § 20.36 (1994).

No person shall receive or have in custody any migratory game birds belonging to another person unless such birds are tagged as required by § 20.36.

Id. § 20.37.

Federal courts have held that the Migratory Bird Treaty Act contains no scienter requirement, but rather provides for strict liability. United States v. Smith, 29 F.3d 270, 273 (7th Cir.1994) (citing United States v. Engler, 806 F.2d 425, 436 (3d Cir.1986), cert. denied, 481 U.S. 1019, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987); United States v. Manning, 787 F.2d 431 (8th Cir.1986); United States v. Catlett, 747 F.2d 1102, 1104-05 (6th Cir.1984), cert. denied, 471 U.S. 1074, 105 S.Ct. 2153, 85 L.Ed.2d 509 (1985); and United States v. Ireland, 493 F.2d 1208, 1209 (4th Cir.1973)). “It is not necessary to prove that a defendant violated the Migratory Bird Treaty Act with specific intent or guilty knowledge.” Smith, 29 F.3d at 273 (quoting Manning, 787 F.2d at 435 n. 4). The purpose of the tagging requirements promulgated pursuant to the Migratory Bird Treaty Act is to facilitate enforcement of the “taking and possession” limits on migratory game birds by obliging a hunter to tag his or her kill after each day’s hunt in order to distinguish it from game taken on another day or from game taken by a different hunter. United States v. Bookout, 788 F.Supp. 933, 938 (S.D.Texas 1992).

Section 703 of the Migratory Bird Treaty Act cannot be understood without reference to the regulations referenced therein and promulgated thereunder. Likewise, the regulatory provision at subsection 20.37 of the C.F.R. is unclear unless it is read in conjunction with subsection 20.36. Indeed, subsection 20.37 makes explicit reference to subsection 20.36. Reading these two regulatory provisions together necessarily would have informed appellant that it was illegal for him to possess improperly tagged migratory game birds in the freezer of his taxidermy shop no matter who was the “true owner” of the birds. We therefore conclude that appellant was provided with fair notice as to the nature of the crimes charged in the instant case. The factual summaries on the citations stated that appellant was unlawfully in custody of migratory game birds “belonging to another” rather than “belonging to himself and/or another;” nevertheless, the citations clearly identified the gravamen of the complaint: the fact that appellant possessed untagged migratory game birds in violation of the Code of Federal Regulations, sections 20.36 (forbidding the possession of an untagged game bird belonging to oneself) and 20.37 (prohibiting possession of an untagged game bird belonging to another). See Commonwealth v. Frye, 357 Pa.Super. 395, 401-402, 516 A.2d 38, 43-44 (1986) (en banc) (citation is adequate if its factual summary alerts a defendant to the nature of the offense charged and notifies him of the pending prosecution). Appellant is simply wrong in claiming that the citations do not reference the statutory-subsection under which he was convicted.

In this context, appellant also argues that the citations provided inadequate notice to him of the specific crimes charged because they make no reference to the purpose for which he left the birds at the taxidermy shop. Federal courts have found this type of argument to be non-meritorious. See, e.g., United States v. Ray, 488 F.2d 15 (10th Cir.1973). The Code of Federal Regulations clearly prohibits leaving a game bird at any place other than the home without affixing the required tag. Id. at 18. Under 50 C.F.R. § 20.36, no specific purpose is necessary to charge an offense for leaving a game bird at any location other than the home. Id. We appreciate the fact that permitting a person to keep an untagged game bird in a home freezer, but not at his own taxidermy shop, is a fine point of law which may escape the notice of some reputable and well-intentioned hunters and taxidermists. Nevertheless, the Code of Federal Regulations is quite explicit and there is no doubt in this case that the state and federal agents found the game birds in a location other than appellant’s home. See also United States v. Mielke, 367 F.Supp. 518, 520 (W.D.Okla.1973), aff'd sub nom. United States v. Ray, 488 F.2d 15 (10th Cir.1973) (regulation making it a petty offense to leave migratory game birds at any place other than one’s abode unless properly tagged by the hunter is not unconstitutionally vague, overbroad or ambiguous). Thus, we cannot grant relief on the basis of this argument.

Moreover, even if we found the citations to be flawed on their face, we still could not rule in appellant’s favor under the circumstances of this case. When a citation contains defects, we must look to the Rules of Criminal Procedure for the consequences. Commonwealth v. Cohen, 413 Pa.Super. at 464, 605 A.2d at 816.

Defects in Form, Content, or Procedure-Summary Cases
A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the procedures of this Chapter, unless the defendant raised the defect before the conclusion of the summary trial and the defect is prejudicial to the rights of the defendant.

Pa. R.Crim.P., Rule 90, 42 Pa.C.SA,. Our discussion of appellant’s claim assumes that his demurrer sufficiently raised and preserved the defect at issue here. Nevertheless, appellant must still show that he was prejudiced, within the meaning of Pennsylvania law, by the alleged inadequacy in the citation. We cannot find the necessary prejudice if the content of a citation, taken as a whole, prevented surprise as to the nature of the summary offenses on which a defendant was found guilty at trial. Commonwealth v. Cohen, 413 Pa.Super. at 464, 605 A.2d at 816. As we have already explained, the citations filed in this case adequately apprised appellant that he was charged with violating the federal regulations set forth at 50 C.F.R. §§ 20.36 and 20.37 concerning required tagging of migratory game birds, no matter who was the owner of the birds. Thus, we conclude that appellant did not suffer prejudice within the meaning of Cohen.

Appellant next contends that Rule 90, swpra, cannot be read so broadly as to permit the trial court to sua sponte amend a citation at trial. However, the certified record shows that the trial court did not amend the citation in this case, either sua sponte or in response to a Commonwealth motion. The trial judge merely noted in her Rule 1925 opinion that she believes that the Rules of Criminal Procedure authorize a judge of the Court of Common Pleas to amend a citation in a proper case. See Trial Court Opinion filed July 20, 1995 at 8. The Superior Court does not render purely advisory opinions. Erie Insurance Exchange v. Claypoole, 449 Pa.Super. 142, 149-150, 673 A.2d 348, 352 (1996) (en banc). Because the trial court never amended the citation in the instant case, we decline to consider the merits of appellant’s second claim on an advisory basis.

Judgment of sentence affirmed.

CIRILLO, President Judge Emeritus, files a dissenting opinion.

CIRILLO, President Judge Emeritus,

dissenting.

Despite the majority’s comprehensive statutory history of state and federal wildlife statutes, I believe that the appellant’s conviction should have been dismissed, and therefore, I respectfully dissent.

Our court has held that “a citation must include a specific section of the statute violated.” Commonwealth v. Cohen, 413 Pa.Super. 460, 463, 605 A.2d 814, 816 (1992) (emphasis added); Commonwealth v. Stahl, 296 Pa.Super. 507, 442 A.2d 1166 (1982). The Pennsylvania Rules of Criminal Procedure also state:

(A) Every citation shall contain:
(6) a citation of the specific section and subsection of the statue or ordinance allegedly violated, together with a summary of the facts sufficient to advise the defendant of the nature of the offense charged.

Pa.R.Crim.P. 53 (emphasis added). Cf. Commonwealth v. Alston, 539 Pa. 202, 651 A.2d 1092 (1994) (an indictment or information is sufficient if it sets forth the elements of the offense intended to be charged).

The majority recounts that “[t]he Commonwealth filed two Philadelphia Municipal Court citations ... charging that appellant had not complied with game tag regulations required under 34 Pa.C.S. § 2103 with regard to his possession of a Merganser hen and a Wood Duck hen.”' Majority at p. 5. “The citations clearly identified the gravamen of the complaint, ie., the fact that appellant possessed untagged migratory game birds in violation of sections 20.36 and 20.37 of the Code of Federal Regulations.” Majority at p. 11. The important fact omitted from these statements, however, is that this citation only cited Neitzel for possessing another’s game birds. In actuality, however, Neitzel was convicted of possessing a game bird belonging to himself. As the trial court opinion notes, the category of the offender differs in regard to the statutory subsection cited in Neitzel’s citation and the subsection under which he was actually convicted. Unlike the majority, I cannot regard such an elemental distinction as minor.

Relying on this court’s proposition in Commonwealth v. Frye, 357 Pa.Super. 395, 401-02, 516 A.2d 38, 43-44 (1986) (en banc), that “a citation is adequate if its factual summary alerts a defendant to the nature of the offense charged and notifies him of the pending prosecution,” the majority finds that Neitzel was on notice of the charge for which he was convicted. A close reading of the Frye case, however, renders this proposition inapplicable to and improper under the facts of this case.

In Frye, the appellant alleged that his citation was defective because it failed to specify both an element of the cited offense as well as a factual detail of the events leading up to his arrest. The Frye court determined that the allegedly omitted element was not an essential element of the offense and affirmed appellant’s conviction. In the present case, Neitzel does not advance either of the arguments found in Frye. Rather, Neitzel complains of the citation’s omission of the specific subsection of the statute for which he was convicted.

Because Neitzel was not put on notice of an important element of the crimes for which he was convicted, specifically the category of the offender, I find that the present citation contained a substantial defect, one so prejudicial that the charges should have been dismissed against the appellant. Pa.R.Crim.P. 90. Cf. Frye, 357 Pa.Super. 395, 516 A.2d 38 (1986) (en banc) (allegation of a mere defect in the summary of the facts or description of the offense in a citation will not require that charges be dismissed or conviction reversed); Stahl, supra (same).

I would reverse the judgment of sentence.

      . Appellant has incorrectly characterized this appeal as stemming from an order. In a criminal case, a direct appeal following entry of the verdict and imposition of sentence is an appeal from the judgment of sentence. Commonwealth v. Chamberlain, 442 Pa.Super. 12, 16, 658 A.2d 395, 397 (1995). When, as in this case, the appeal follows a trial de novo from a summaty conviction, the judgment of sentence is immediately final and appealable at the conclusion of the trial conducted in the Court of Common Pleas. Pa. R.Crim.P., Rule 1410(D), 42 Pa.C.S.A.

      . The Commonwealth Court of Pennsylvania claims jurisdiction over appeals from criminal prosecutions brought pursuant to the Game and Wildlife Code. See Dickerson v. Commonwealth, 138 Pa. Commw. 141, 587 A.2d 379 (1991). However, neither party to the instant appeal has challenged the Superior Court’s jurisdiction in this case. In the interests of judicial economy, and because oral argument has already occurred, we shall retain jurisdiction over this appeal and consider the merits of the issues raised herein. See Pa. R.A.P., Rule 741(a), 42 Pa.C.S.A. (Waiver of Objections to Jurisdiction): Fengfish v. Dallmyer, 434 Pa.Super. 250, 253-54 n. 2 642 A.2d 1117, 1119 n. 2 (1994) (when appellee fails to object to filing of appeal with incorrect court, it is within Superior Court’s exercise of appellate jurisdiction to either transfer the matter to Commonwealth Court or to retain jurisdiction).

      . The certified record contains neither a transcript nor any other record of these proceedings.

      . We are cognizant of the Commonwealth’s argument that appellant has waived his challenge to the sufficiency of the charge in the original citation by failing to raise it at the Philadelphia Municipal Court hearing and at the trial de novo. As previously noted, appellant was unrepresented by counsel at the Municipal Court hearing and the certified record contains no transcript from that proceeding. Defense counsel arguably challenged the prosecution's approach to this case at the trial de novo by demurring at the close of the Commonwealth's case in chief. See N.T. 3/8/95 at 16. As already discussed, counsel could not file a post-sentence motion from appellant’s summary conviction. See Pa. R.Crim.P., Rule 1410(D), supra. However, appellant’s concise statement of issues identified on appeal apprised the trial court as to the nature of appellant's complaint. Because the trial judge has fully addressed appellant's issues, we decline to find technical waiver under the specific and highly unusual circumstances of this case. Compare Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988), appeal denied, 522 Pa. 583, 559 A.2d 526 (1989) (rejecting technical waiver argument premised upon defendant’s alleged post trial procedural default when trial judge fully addressed merits of claims raised on appeal).

      . As discussed more fully infra, the Pennsylvania Game and Wildlife Code adopts by reference certain provisions of the United States Code and the Code of Federal Regulations.

      . As already discussed, appellant actually admitted at trial that he knew of the tagging requirements for migratory game birds. N.T. 3/8/95 at 19-22.

      . The dissent would limit this Court's en banc holding in Frye to only those situations in which an element allegedly omitted on the citation is not an essential element ol the offense charged. However, the language of the Frye decision itself does not support such a narrow construction:
      We must uphold the Commonwealth’s position that the summary requirement is meant to “accurately describe the gravamen” of the offense rather than lay out a blow-by-blow description of events. The Commonwealth v. Weed case, [3 Pa.D & C 3rd 151 (Cumberland Co. 1977)] made the following observation in reference to this:
      Although a citation must include a specific section of the statute violated, it need only show a summary of the facts sufficient to advise the defendant of the nature of the offense charged, notifying him of the

        pending prosecution and affording him a chance to defend himself ... This lenient description of the offense is all that is necessary because the defendant must be served upon the issuance of the citation, giving hint immediate notification of the alleged infraction when he is best able to observe and recall facts and circumstances surrounding the incident ... Thus, we conclude that the description of the offense on the citation is adequate so long as it advises the defendant of the nature of the charge.

        Commonwealth v. Frye, 357 Pa.Super. at 401-02, 516 A.2d at 43 (quoting Commonwealth v. Stahl, 296 Pa.Super. 507, 513, 442 A.2d 1166, 1169 (1982); emphasis and ellipses in original).

      . The Code of Federal Regulations has been renumbered since Ray was filed. At that time, the regulatory provision now set forth at 50 C.F.R. § 20.36 was enumerated as subsection 10.36. However, the language of the regulation has remained unchanged.

      . A comparable rule exists for proceedings which involve non-summary offenses:
      Defects in Form, Content, or Procedure — Court Cases
      A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, summons, or warrant, or a defect in the procedures of this chapter, unless the defendant raises the defect before the conclusion of the preliminary hearing and the defect is prejudicial to the rights of the defendant.
      Pa. R.Crim.P., Rule 150, 42 Pa.C.S.A.

        . The Commonwealth notes that appellant was free to request a continuance at trial if he believed he was being subjected to a "new” charge. See Pa. R.Crim.P., Rule 301(a) and (b), 42 Pa.C.S.A. (permitting a trial judge to grant a continuance to a defendant whenever the interests of justice so require). Although we have not reached our decision on this basis, we are nevertheless inclined to agree with the Commonwealth that appellant’s failure to seek a continuance during the trial is at least a minimal indication that appellant was under no misapprehension as to the nature of the offenses charged and that he was not in fact surprised by the prosecutor's approach to the case.


source: Caselaw Access Project

author: CIRILLO, President Judge Emeritus.

license: Public Domain

text:
    678 A.2d 376
    COMMONWEALTH of Pennsylvania v. Douglas Clark J. NAGLE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted April 30, 1996.
    Filed May 30, 1996.

      Paul E. Herbein, Kutztown, for appellant.

      Eric J. Fabrizio, Assistant District Attorney, Reading, for the Commonwealth, appellee.
    Before CIRILLO, President Judge Emeritus, and DEL SOLE, J., and CERCONE, President Judge Emeritus.
   CIRILLO, President Judge Emeritus.

Douglas Clark J. Nagle, Jr. appeals from a judgment of sentence entered in the Court of Common Pleas of Berks County finding him guilty of violating section 1543(b) of the Motor Vehicle Code. We reverse.

In the early morning hours of May 7, 1995, Officer Waligorski received a police radio report of a suspicious looking dark green pick-up truck that had been driving up and down a private neighborhood street in Berks County for over two hours. Residents of the neighborhood had called the local police station to report this suspicious vehicle. Within minutes of receiving the report, Officer Waligorski arrived on the scene where he witnessed a dark green truck fitting the report’s description. The truck, which was not involved in any apparent moving violations, was driven by appellant Douglas Nagle, Jr. The officer then stopped the truck and asked Nagle for his driver’s license. Nagle admitted that he did not have his license, due to the fact that it had been suspended for failure to submit to a chemical test during a DUI investigation. Officer Waligorski issued Nagle a citation for Driving While Operating Privileges were Under Suspension, pursuant to Pa.S.C.A. § 1543(b).

A trial was held before District Justice John F. Dougherty, at which Lime Nagle was found guilty of violating section 1543(b). Nagle then appealed to the Court of Common Pleas of Berks County requesting a trial de novo. After a de novo hearing, Nagle was found guilty of violating 75 Pa.C.S.A. § 1543(b), fined $1,000.00, and sentenced to a 90-day period of imprisonment. Prior to Nagle’s conviction under section 1543(b), the trial court denied a motion to suppress any information received during Officer Waligorski’s stop. Nagle now appeals, raising the following issue for our consideration: Did the trial court err in denying defendant’s motion for suppression of physical evidence and/or statements?

When we review an order denying a motion to suppress evidence, we must determine whether the factual findings of the trial court are supported by the evidence of record. Commonwealth v. Donahue, 428 Pa.Super. 259, 278, 630 A.2d 1238, 1247 (1993) (citations omitted). In making this determination, this court may only consider the evidence of the Commonwealth’s witnesses, and so much of the witnesses for the defendant, as fairly read in the context of the record as a whole, which remains uncontradicted. Id. If the evidence supports the findings of the trial court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are erroneous. Id.

Nagle contends it was error for the trial court to admit evidence which had been obtained from an illegal investigatory stop. Specifically, he claims that the trial court should have suppressed the evidence obtained by Officer Waligorski regarding his driving record, since Officer Waligorski did not have reasonable suspicion to stop his vehicle. We agree.

This court, in Commonwealth v. Knotts, 444 Pa.Super. 60, 663 A.2d 216 (1995), aptly summarized the law regarding legal stops of motor vehicles:

When police stop a vehicle in this Commonwealth for investigatory purposes, the vehicle and its occupants, are considered “seized” and this seizure is subject to constitutional constraints. Commonwealth v. Blouse, 531 Pa. 167, 611 A.2d 1177 (1992).

[A]n officer may make an investigatory stop where he observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot. Such an investigatory stop of an automobile must be based on objective facts creating a reasonable suspicion that the motorist is presently involved in criminal activity. The officer must be able to point to specific and articulable facts which[,] taken together with rational inferences from these facts[,] reasonably warrant the intrusion.

Commonwealth v. Valenzuela, 408 Pa.Super. 399, 408, 597 A.2d 93, 98 (1991) (citations omitted).

Id., 444 Pa.Super. at 64, 663 A.2d at 218-19.

In this case, we must determine whether the information available to Officer Waligorski at the time he pulled over Nagle’s truck created a reasonable suspicion that Nagle was “presently involved in criminal activity.” When Officer Waligorski stopped Nagle he had information from a police report that: (1) there was a suspicious vehicle travelling up and down Vista Road, in Berks County; (2) the vehicle would travel east and westbound on the road, then stop for several minutes, and then resume its back and forth journey up and down the road; (3) the vehicle had been engaged in such activity for approximately two hours; and (4) the vehicle was a large green pickup truck.

When we evaluate the evidence available to Officer Waligorski based upon the “totality of the circumstances” at the time he stopped Nagle, it is clear that the quantity of the information was extremely limited. First, there was a dearth of information regarding the allegedly suspicious activity of Nagle’s truck; the facts which were provided in the report were extremely unsuspecting and general in nature. Accordingly, the report provided Officer Waligorski with no objective facts creating a reasonable suspicion that Nagle was presently involved in criminal activity at the time of the investigatory stop. See Knotts, supra.

In addition, while this court recognizes that an officer may stop a vehicle which is believed to have committed a violation of the Motor Vehicle Code, Commonwealth v. Baer, 439 Pa.Super. 437, 654 A.2d 1058 (1994), allocatur denied in 543 Pa. 690, 670 A.2d 139 (1995), Officer Waligorski testified at the suppression hearing that “[tjhere were no Motor Vehicle Code violations” occurring at the time he observed Nagle’s vehicle. When the officer stopped Nagle, he did not have any facts or information which would have led him to believe that a violation of the Motor Vehicle Code had reasonably occurred. In view of these facts, we cannot conclude that Officer Waligorski had the requisite reasonable suspicion to stop Nagle.

In Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992), our supreme court held that troopers did not have reasonable suspicion of criminal conduct to justify the stop of an automobile which had been observed to be parked half on the berm of the road and half in a church parking lot, facing the other way of oncoming traffic. The automobile had its dome light on and its outside lights off and attempted to leave the parking lot when the officers arrived on the scene. Although police had previous notice from the church property’s owner of criminal behavior in the parking lot, because there was no evidence that the vehicle in question was engaged in criminal activity, the court suppressed all evidence seized as a result of the illegal stop.

Unlike the property owners in DeWitt, the residents of Vista Road had not given the police notice of any previous criminal activity in their neighborhood before Officer Waligorski’s “stop” of the appellant. Additionally, the Commonwealth failed to produce any witnesses who could provide specific or articulable facts showing that Nagle was presently involved in criminal activity when stopped by the officer. Accordingly, there were no independent circumstances justifying a person of reasonable caution to believe that Nagle had committed a crime. Knotts, supra. Because we find that the trial court’s legal conclusions are not supported by the evidence of record, Donahue, supra, we reverse the judgment of sentence. DeWitt, supra.

Judgment reversed.

DEL SOLE, J., dissents.

      . Nagle was also issued a citation for an equipment violation. Apparently the steering wheel on Nagle's truck was smaller than the legal size required for a truck. Nagle has not appealed this citation.

      . Nagle also filed a motion for a writ of habeas corpus which the trial court denied.


author: BECK, Judge: CAVANAUGH, Judge: DEL SOLE, Judge: CIRILLO, President Judge Emeritus:

text:
    678 A.2d 379
    COMMONWEALTH of Pennsylvania v. William VERTICELLI, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 26, 1996.
    Filed May 31, 1996.

      Theodora Gaitas, Asst. Public Defender, Doylestown, for appellant.
    Stephen B. Harris, Asst. Dist. Atty., Warrington, for Commonwealth, appellee.
    Before McEWEN, President Judge, CAVANAUGH, J., CIRILLO, President Judge Emeritus, and DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON and HUDOCK, JJ.
   BECK, Judge:

The issue in this case is whether the Commonwealth satisfied the corpus delicti rule so as to permit the admission of appellant’s statements to police. In affirming the judgment of sentence, we consider the rule, its purpose and its impact.

In the late afternoon hours of March 26, 1994, Officer Robert Burkhardt of the New Britain Township police department responded to the radio call of a motorcycle accident. At the scene, Burkhardt observed a motorcycle lying partially on the road and partially on the lawn of a residence. Upon investigation, Burkhardt noticed that the motorcycle was dented and leaking gasoline from a punctured tank. In addition, the mailbox of the residence was knocked from its post to the ground and a nearby telephone pole was damaged. It was apparent that the operator of the motorcycle, who was not on the scene, had been traveling southbound, crossed the center line of the roadway and struck the mailbox post and the telephone pole on the northbound side of the road.

About thirty minutes later, and after speaking to witnesses at the scene, Burkhardt arrived at appellant’s home where he spoke to appellant and his father. In response to the officer’s questions, appellant stated that while driving the motorcycle to a bar, he “dumped” it.

While speaking to appellant, Burkhardt noticed that he had a strong odor of alcohol on his breath, slurred speech, bloodshot and glassy eyes and a staggered walk. The officer asked appellant to perform field sobriety coordination tests but appellant refused. Appellant was then arrested and transported to a local hospital where he was informed of the implied consent law and asked to submit to a blood test. This he also refused and, upon his refusal, he was transferred to police headquarters. At headquarters he was uncooperative, irrational and threatening. When appellant asked to meet with a crisis worker, Burkhardt returned him to the hospital where he met briefly with a crisis worker and later was released to the officer’s custody.

At appellant’s trial for driving under the influence (“DUI”), Officer Burkhardt testified to the events described above, including the admission by appellant that he had been operating the motorcycle at the time of the accident. Defense counsel objected to the admission of appellant’s statements on the grounds that the prosecution failed to establish the corpus delicti for DUI independent of appellant’s statements. The trial court overruled the objection. Appellant was found guilty and now raises the same issue on direct appeal.

In response to appellant’s claim, the Commonwealth argues that admission of the statements was proper for several reasons. First, appellant’s statement that he was the operator of the motorcycle was not a confession to the crime of DUI and, therefore, the corpus delicti rule is inapplicable since it relates only to a confession made by an accused. Second, assuming the rule applies, appellant’s statements were admissible under the “closely related crime” exception to the corpus delicti rule. Third, in the event we do not find that admission of the statements was proper under the exception, public policy requires that we carve out an additional exception to the rule in these types of cases. Our analysis begins with an historical review of the rule.

The corpus delicti rule is a rale of evidence relating to what must be proved by the prosecution at trial. The prosecution cannot make use of a criminal defendant’s confession/statement unless it has established that 1) a loss or injury has occurred and 2) such loss or injury is the result of someone’s criminality. Commonwealth v. May, 451 Pa. 31, 32, 301 A.2d 368 (1973). The corpus delicti, or body of the crime, is the Commonwealth’s proof, independent of the defendant’s statements, that a crime has in fact occurred.

The rale can be traced back to seventeenth century English law and was first applied in a murder case. The rule arose under the following circumstances. An individual was presumed dead because he or she had disappeared without a trace. Law enforcement personnel would secure a confession from someone who admitted killing the missing person. The confessor was then tried, found guilty and, in some instances, executed for the crime. Sometime later, the purported victim reappeared. Courts then began to question the propriety of a murder conviction based on a defendant’s confession obtained in the absence of a dead body. See generally Note, Proof of the Corpus Delicti Aliunde the Defendant’s Confession, 103 U. Pa. L.Rev. 638, 639 (1955) (hereinafter “Note”).

Adoption and expansion of the rule in American law appears to be based on a number of factors. One factor is a fear that circumstances such as those described above could occur. The notion that a person may be punished, perhaps even executed, where no crime has been committed, is obviously repulsive to our system of justice. Another factor is a general skepticism of confessions. Confessions can be coerced or made under duress; they can be misreported; they can be the result of a confessor’s misunderstanding of the facts or the law; they also can be false for “purely psychological reasons,” such as when the confessor suffers from a mental disorder. Id. at 640-44.

Independent proof of the commission of a crime has been perceived as the safest and most equitable route to a conviction. In 1842, Professor Greenleaf characterized the corpus delicti requirement as that which “best accords with the humanity of the criminal code and with the great degree of caution applied in receiving and weighing the evidence of confessions.” Greenleaf, Evidence § 217 (1842). In a frequently-quoted case in this Commonwealth, our supreme court stated the basis for the rule:

The grounds on which the rule rests are the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed.

Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401 (1940).

Other authors have been critical of the broad application of the rule in our system. Professor Wigmore writes:

The policy of any rule of the sort is questionable. No one doubts the warning which it conveys is a proper one, but it is a warning which can be given with equal efficacy by counsel or (in a jurisdiction preserving the orthodox function of judges) by the judge in his charge on the facts. Common intelligence and caution, in the jurors’ minds, will sufficiently appreciate it, without formulating it in a rule of law. Moreover, the danger which it is supposed to guard against is greatly exaggerated in common thought. That danger lies wholly in a false confession of guilt. Such confessions, however, so far as handed down to us in the annals of our courts, have been exceedingly rare. Such a rule, though not really needed, might be at least merely superfluous. But this rule, and all such rules, are today constantly resorted to by unscrupulous counsel as mere verbal formulas with which to entrap the trial judge into an error of words in his charge to the jury. These capabilities of abuse make it often a positive obstruction to the course of justice.

Wigmore, Evidence § 2070 (3d ed. 1940).

Legal reforms have granted criminal suspects some additional protections against false confessions made due to police brutality or threats. Miranda warnings inform a criminal suspect of his or her right to the assistance of counsel when in police custody; the six hour rule diminishes the likelihood of confessions given in response to exhaustive police interrogations. Similarly, the law’s increased sensitivity and understanding of mental illness, evident in the availability of affirmative defenses such as not guilty by reason of insanity, guilty but mentally ill and diminished capacity, decreases the risk that a false confession given due to mental illness will go unchallenged. Some would argue that these positive changes in the law militate against continued, strict adherence to the corpus delicti rule.

While criticism of the rule has been the subject of debate in the academic arena, the rule remains intact in the case law of this Commonwealth. It has been recognized in homicide cases since the nineteenth century. See Gray v. Commonwealth, 101 Pa. 380 (1882). Throughout its evolution, several issues have been raised, debated and resolved. See Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974) (where the independent corroborating evidence is equally consistent with accident or criminality, it is insufficient; however, the prosecution has no affirmative duty to exclude the possibility of accident or suicide); Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963) (the order of proof is within the trial court’s discretion and it may permit admission of the defendant’s statement subject to later proof of corpus delicti by prosecution); Commonwealth v. Nasuti, 385 Pa. 436, 123 A.2d 435 (1956) (corpus delicti can be proved by circumstantial evidence).

Despite the criticism associated with the rule and the suggestion that it has outlived its effectiveness, we are not, as an intermediate appellate court, in a position to eliminate it or alter its requirements. Our supreme court dictates the application and parameters of the rule; it is our task to follow the mandate of the supreme court. With that in mind, we turn to the arguments of counsel.

While the Commonwealth’s brief does not explicitly state such, it appears that the Commonwealth concedes the corpus delicti for the crime of DUI was not established independent of appellant’s statement. That fact is of no moment, argues the Commonwealth, because the type of statement made by appellant is not subject to the corpus delicti rule. Because the statement was not a confession to DUI, but merely an admission to being the operator of the motorcycle, the rule does not apply.

In support of its argument, the Commonwealth draws our attention to Commonwealth v. Palmer, 265 Pa.Super. 462, 402 A.2d 530 (1979). In Palmer, a police officer was called to the scene of an accident and observed two men sitting by the roadway. The officer asked who the operator of the vehicle was and the defendant indicated that he had been driving. Upon noticing that the defendant exhibited classic signs of intoxication, including a staggering gait, a strong smell of alcohol and difficulty speaking, the officer arrested him. On appeal the issue was whether the Commonwealth proved the corpus delicti of DUI independent of the defendant’s admission that he was the driver. A panel of this court held that the corpus delicti rule did not apply since “the statement made by defendant [that he was the operator of the vehicle] did not amount to a confession.” Id. at 465-66, 402 A.2d at 532.

Fourteen years later, in Commonwealth v. Buck, 426 Pa.Super. 26, 626 A.2d 176 (1993), we revisited the issue of whether all statements made by an accused were subject to the corpus delicti rule or whether the rule only governed “confessions.” In Buck, a state trooper was investigating a crime and interviewed Linda Buck as a possible witness. During the course of their conversation, Buck told the trooper that she had driven her car to Elimsport, Lycoming County the previous day. Later, the trooper learned that Buck’s license had been suspended and that her vehicle was neither registered nor insured. He issued citations for the violations and Buck was found guilty on all charges. She appealed to this court claiming that the prosecution failed to establish the corpus delicti.

The Commonwealth relied on our holding in Palmer and argued that Buck’s admission that she drove her car was not a confession and therefore not subject to the corpus delicti rule. In arresting judgment due to the inadmissibility of Buck’s statement, we held that a supreme court ease decided subsequent to Palmer controlled:

[I]t is clear that Palmer is incorrect under controlling Pennsylvania Supreme Court precedent decided after Palmer. In Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982), our supreme court clearly held that the corpus delicti rule applies to any “statement” made by the accused. Furthermore, the rule routinely is applied to any statement which is inculpatory in nature, and the statement need not be an admission to each element of the charged crime to be subject to it. E.g., Commonwealth v. Hogans, 400 Pa.Super. 606, 584 A.2d 347 (1990) (where defendant admitted he drove a car but not that he was intoxicated, we analyzed whether the corpus delicti rule had been satisfied prior to admission of the statement).

Id. at 29-30, 626 A.2d at 177-78. The Smallwood case involved a defendant who, while at a hospital where her boyfriend was being treated for arson-related injuries, stated “It’s my fault, it’s my fault. I’m responsible for him being here.” After her conviction for murder and arson, Smallwood argued that the Commonwealth failed to establish the corpus delicti prior to admission of her statement. In setting out the standard in the case, the Smallwood court stated “It is well settled that ‘[u]ntil the corpus delicti is established, introduction of the accused’s statement is inadmissible.’ ” Smallwood, supra, at 484, 442 A.2d at 225 (emphasis supplied).

Here, the Commonwealth argues that the Buck court misapprehended Smallwood and, further, that Palmer remains controlling law on this issue. Our review of the case law reveals that the terms “confession” and “statement” have been used interchangeably and it is not entirely clear whether the Smallwood court drew a distinction between the two. However, other Pennsylvania Supreme Court cases lead us to conclude that the admission of any statement made by an accused, not just a confession, is subject to the corpus delicti rule. See e.g., Commonwealth v. Turza, supra at 134, 16 A.2d at 404 (“the grounds on which the rule rests are the hasty and unguarded character which is often attached to confessions and admissions ...” (emphasis supplied)); Commonwealth v. Ware, supra at 365, 329 A.2d at 274 (“a criminal conviction may not be based on the extra-judicial confession or admission of the defendant unless it is corroborated ...” (emphasis supplied)).

The United States Supreme Court considered this very issue over forty years ago and reasoned:

We think that an accused’s admissions of essential facts or elements of the crime, subsequent to the crime, are of the same character as confessions and that corroboration should be required.... The need for corroboration extends beyond complete and conscious admissions of guilt — a strict confession.... [Statements of the accused out of court that show essential elements of the crime ... necessary to supplement an otherwise inadequate basis for a verdict of conviction, stand differently. Such admissions have the same possibilities for error as confessions. They too must be corroborated.

Opper v. United States, 348 U.S. 84, 90-91, 75 S.Ct. 158, 163, 99 L.Ed. 101 (1954) (citations omitted). Based on the rationale in Opper, and what we perceive is agreement with Opper on the part of our supreme court, we hold today that all statements made by an accused that are material to the prosecution’s case are subject to the corpus delicti rule.

The Commonwealth relies on two other methods by which we can affirm the trial court’s admission of the statement, even in the absence of the corpus delicti. The first is the “closely related crime” exception to the rule. In Commonwealth v. Tessel, 347 Pa.Super. 37, 500 A.2d 144 (1985), the prosecution established the corpus delicti for theft in its case against the defendant but could not establish the corpus delicti for burglary. Nevertheless, the defendant’s confession to burglary was admitted because “where a defendant’s confession relates to two separate crimes with which he is charged, and where independent evidence establishes the corpus delicti of only one of those crimes, the confession may be admissible as evidence of the commission of the other crime.” Id. at 46, 500 A.2d at 148.

The exception applies only where the crimes arise out of a single transaction and “where the relationship between the two crimes is sufficiently close to ensure that the policies underlying the corpus delicti rule are not violated.” Id. at 47, 500 A.2d at 149. See also Commonwealth v. DiSabatino, 399 Pa.Super. 1, 581 A.2d 645 (1990) (independent evidence of possession of a controlled substance sufficient to allow admission of defendant’s confession to possession with intent to deliver), appeal denied, 527 Pa. 629, 592 A.2d 1297 (1991); Commonwealth v. Rieland, 324 Pa.Super. 115, 471 A.2d 490 (1984) (confession to burglary and conspiracy admitted where corpus delicti established for burglary only); Commonwealth v. Stokes, 225 Pa.Super. 411, 311 A.2d 714 (1973) (confession to attempted murder admissible where corpus delicti established for firearms offense). As stated by Professors Packel and Poulin in their treatise, “[i]f the crimes are closely related, the danger of innocent conviction is obviated once the corpus delicti of one offense is established.” Packel & Poulin, Pennsylvania Evidence § 424 (1987).

In this case, the Commonwealth argues that the corpus delicti for the crime of leaving the scene of an accident involving property damage (hereinafter “leaving the scene”) was established. Since leaving the scene is closely related to the crime of DUI, the Commonwealth argues that appellant’s statement is admissible. In response, appellant claims that, although the corpus delicti for leaving the scene was established, 1) leaving the scene is a summary offense and cannot be considered other “criminal” activity and 2) even if leaving the scene is considered a crime, the two offenses are not closely related. We reject both assertions.

While leaving the scene is merely a summary traffic violation, see 75 Pa.C.S.A. § 3743, it is an offense against the laws of this Commonwealth that is enforced by a criminal law enforcement agency, namely, the police. In light of our previous discussion regarding the potential for abuse of the corpus delicti rule as a “mere verbal formula to entrap” the court, we find that for purposes of determining whether the closely related crime exception applies, a summary offense is criminal activity. Further, we conclude that leaving the scene is closely related to DUI in this case, making the exception applicable and appellant’s statement admissible.

Clearly, both crimes arose out of a single transaction. Common sense tells us that the commission of one (DUI) can and often does lead to the commission of the other (leaving the scene). It would fly in the face of logic to conclude that there is no connection between an intoxicated driver, a motor vehicle accident and flight from the scene of the accident to escape detection by law enforcement. Indeed, the potential for automobile accidents involving damage to property and life is the very danger addressed by our drunk driving laws. While the application of the corpus delicti rule is mandatory, we are not required to . perform mental gymnastics in applying it, nor should we allow its use as a “positive obstruction to the course of justice.” See Wigmore, supra.

Appellant’s statement that he was the operator of the vehicle implicated him in both the DUI charge and the leaving the scene charge. Because the corpus delicti for leaving the scene was established independently of appellant’s statement, the statement is admissible against appellant for the DUI charge.

We need not address the Commonwealth’s final argument for affirmance, that is, its request for the creation of a public policy exception to the corpus delicti rule in accident investigation cases. Specifically, the Commonwealth suggests that we allow the introduction of a statement that is merely an admission to being the operator of a vehicle involved in an accident. However, it appears that in most instances, the closely related crime doctrine would suffice to allow admission of the statement, as it did in this case. Nevertheless, the use and misuse of the corpus delicti rule in these circumstances, as well as any exception thereto, is a task for our supreme court or the legislature.

Judgment of sentence affirmed.

Concurring Statements filed by CAVANAUGH and DEL SOLE, JJ.

Concurring and Dissenting Opinion filed by CIRILLO, President Judge Emeritus, which is joined by POPOVICH and JOHNSON, JJ.

Concurring Statement by

CAVANAUGH, Judge:

While I join in the result reached by the well-reasoned majority opinion, I respectfully disagree with the holding stated after the majority’s discussion of Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954). As the majority states elsewhere, these issues merit re-examination by our Supreme Court and, I believe the holding stated by the majority in the present matter is too broadly drawn and, may in the future, be the basis for more interpretive problems.

Concurring Statement by

DEL SOLE, Judge:

I agree that the judgment of sentence must be affirmed. Also, I agree with the analysis that the corpus delicti of leaving the scene of the accident would support admission of appellant’s “confession” on the DUI charge.

However, I do not agree that Appellant’s statement that he was driving is an admission which invokes the rule. I believe our court’s opinion in Commonwealth v. Palmer, 265 Pa.Super. 462, 402 A.2d 530 (1979) is the correct statement of the law. Further, I do not agree that Commonwealth v. Buck, 426 Pa.Super. 26, 626 A.2d 176 (1993), correctly analyzed the application of Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982) and as such, should be rejected.

Concurring and Dissenting Opinion by

CIRILLO, President Judge Emeritus:

I concur with the majority’s initial holding that all statements made by an accused that are material to the prosecution’s case are subject to the corpus delicti rule; the rule is not limited to confessions by an accused. I disagree, however, with the majority’s ultimate conclusion that appellant’s statement is admissible for the DUI charge by virtue of the independent establishment of corpus delicti for the summary offense of leaving the scene. I find that the “closely related crime” exception does not apply. Consequently, because there existed no independent evidence of DUI, which the Commonwealth implicitly concedes, the corpus delicti for such a crime has not been established and appellant’s statement is, therefore, inadmissible. Accordingly, I respectfully dissent.

As noted by the majority, Officer Burkhardt arrived at an accident scene to find a damaged motorcycle, which appeared to have collided with a mailbox and a telephone pole. The operator of the motorcycle was not at the scene. Approximately one half hour after his investigation, Officer Burkhardt, accompanied by Officer Michie, visited appellant’s residence. Responding to the officers’ questions, appellant indicated that he had been travelling to a bar on the motorcycle in question when the accident occurred. While talking with appellant, the officers observed that he exhibited signs of intoxication. Appellant declined to perform a field sobriety test, whereupon he was arrested for DUI and taken to an area hospital. There, appellant refused a blood test; he was then driven to police headquarters. Following a jury trial, appellant was convicted of DUI and two summary violations, namely, driving with a suspended license and leaving the scene of an accident involving property damage.

The well established corpus delicti rule provides that a criminal conviction will not be permitted to stand merely on the out-of-court confession of an accused, and thus a case may not go to the fact finder where independent evidence does not suggest that a crime has occurred. Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980); Commonwealth v. Persichini, 444 Pa.Super. 110, 117-18, 663 A.2d 699, 702 (1995). The rule is rooted in the hesitancy to convict a person of a crime solely on the basis of that person’s statements. Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (1940). The two elements of corpus delicti include: (1) the occurrence of a loss or injury, and (2) some person’s criminal conduct as the source of that loss or injury. Commonwealth v. Ware, 459 Pa. 334, 365, 329 A.2d 258, 274 (1974); Persichini, 444 Pa.Super. at 117-18, 663 A.2d at 702.

The Commonwealth implicitly concedes, as it should, that the corpus delicti for the crime of DUI was not established independent of appellant’s statement. “[T]wo elements combine to establish the corpus delicti of driving under the influence. They are: (1) someone must be in control of a vehicle, and (2) that same person must be under the influence of alcohol at the time. 75 Pa.C.S.A. § 3731.” Commonwealth v. Hogans, 400 Pa.Super. 606, 609, 584 A.2d 347, 349 (1990) (footnote omitted); see also Commonwealth v. Kasunic, 423 Pa.Super. 112, 620 A.2d 525 (1993). Absent appellant’s statements revealing that he was driving the motorcycle at the time of the accident, no evidence was adduced establishing the corpus delicti for DUI. The Commonwealth introduced no independent evidence indicating that appellant drove the motorcycle or that he did so while under the influence of alcohol.

In Commonwealth v. Buck, 426 Pa.Super. 26, 626 A.2d 176 (1993), an analogous case, the appellant was found guilty of driving with a suspended license and without registration or insurance. Appellant was interviewed as a possible witness by a police officer, who was investigating another incident. When asked how she had arrived in the area, appellant responded that she had driven there. The officer thereafter realized that the appellant’s driving privileges had been revoked. In appealing her conviction, the appellant claimed that she had been convicted solely on the basis of her own statements and that the Commonwealth failed to establish the corpus delicti of the crimes at issue. This court agreed, and reversed appellant’s judgment of sentence. In support of this conclusion we stated:

In the present case, there was no independent evidence presented to suggest that the crimes were committed. Appellant was not standing close to her car; it was parked in a different location. No witness was presented who observed appellant driving. She was convicted solely on the basis of her statement, made during the course of a criminal investígation of a different incident, that she drove to the area the day prior to the incident.

Id. at 29, 626 A.2d at 177. Similarly, in the instant case, the Commonwealth presented evidence of a motorcycle accident and evidence of appellant’s intoxication. The Commonwealth did not establish the corpus delicti, however, because it failed to present independent evidence that appellant had driven the motorcycle or that he did so while under the influence of alcohol.

The majority properly rejected the Commonwealth’s first argument, i.e., that the type of statement made by appellant is not subject to the corpus delicti rule because such statement was not a confession to DUI, but merely an admission to being the operator of the motorcycle. The majority, however, chose to affirm appellant’s judgment of sentence based upon the Commonwealth’s alternative argument, specifically, the “closely related crime” exception to the corpus delicti rule. The majority concludes that because the corpus delicti for “leaving the scene,” see 75 Pa.C.S.A. § 3745 (Accidents involving damage to unattended vehicle or property), was established independently of appellant’s statement that he was the operator of the motorcycle, the statement is admissible against appellant for the DUI charge. While I do not disagree with the cases in which this exception has been applied, I believe that its application to the instant case is unjust.

Where a defendant’s confession relates to two separate crimes with which he is charged, and where independent evidence establishes the corpus delicti of only one of those crimes, the confession may be admissible as evidence of the commission of the other crime. This will be the case only where the relationship between the two crimes is sufficiently close to ensure that the policies underlying the corpus delicti rule are not violated.

Commonwealth v. Tessel, 347 Pa.Super. 37, 46, 500 A.2d 144, 148-49 (1985) (emphasis added). In Tessel, the relationship between the charged theft and burglary was sufficiently close to allow the court, upon proof of the corpus delicti of the theft, to admit appellant’s confession as evidence that appellant had committed not only the theft but also the burglary. Id. at 46-48, 500 A.2d at 149. As pointed out in Tessel, this court first discussed the circumstances surrounding when a confession of one crime is admissible as evidence of another crime in Commonwealth v. Stokes, 225 Pa.Super. 411, 311 A.2d 714 (1973). There, the defendant was charged with playfully or wantonly pointing a firearm and attempting to discharge a loaded firearm with intent to commit murder. We held that, on the basis of the evidence presented, the Commonwealth had established the corpus delicti of the crime of pointing a firearm, and it was therefore appropriate to admit appellant’s confession of that crime. The confession, however, was the only evidence of intent necessary to prove the commission of the crime of “attempting to discharge.” We nonetheless held the confession admissible to establish that crime as well, reasoning that the two crimes were closely related in that they “arose from a single transaction” and had an element “in common.” Stokes, 225 Pa.Super. at 414-15, 311 A.2d at 715; accord Tessel, 347 Pa.Super. at 46-48, 500 A.2d at 149. “We cautioned, however, that ‘[plerhaps if the two crimes were distinct, in time or nature or both, the case would be different.’ ” Tessel, 347 Pa.Super. at 47, 500 A.2d at 149 (quoting Stokes, 225 Pa.Super. at 415, 311 A.2d at 715 (emphasis added)).

Here, it is perhaps arguable that the crimes of DUI and leaving the scene arose from the same transaction; however, these two crimes are certainly distinct in nature. Stokes, supra; Tessel, supra. The distinct nature of the two offenses is clear not only from an examination of the elements of each offense, but also in the more general purposes behind the laws governing each crime. The purpose of drunk driving laws is to keep intoxicated drivers off of the road and protect the public at large. Commonwealth v. Byers, 437 Pa.Super. 502, 508-09, 650 A.2d 468, 471 (1994). In contrast, the summary offense of leaving the scene seeks to ensure that violators do not evade their responsibilities with regard to damaged vehicles or property. See 75 Pa.C.S.A. § 3745; see also Commonwealth v. Buechele, 298 Pa.Super. 418, 424-25, 444 A.2d 1246, 1249 (1982) (a charge pursuant to 75 Pa.C.S.A. § 3745 does not require proof of the same facts as drunk driving; the two statutes are aimed at different perils).

The majority’s attempt to bootstrap the DUI offense via the summary offense of leaving the scene is tenuous at best. Admittedly, there exists independent evidence of leaving the scene to establish the corpus delicti of that offense. Upon arriving at the accident scene, the officers found property damage and the absence of the motorcycle operator. See 42 Pa.C.S.A. § 3745. To conclude, however, that appellant’s admission that he left the scene of the accident implicates him in both the leaving the scene charge and the DUI charge defies reason, is purely circumstantial, and is unsupported by existing case law. The majority bases the connection between these two offenses on “common sense” and “logic.” This reasoning is insufficient, especially when viewed in light of the cases that have applied the exception at issue. Notably, none of these cases invoked the exception by using independent evidence of a summary offense to admit a statement for a more serious crime. See Tessel, supra; Stokes, supra; see also Commonwealth v. Donton, 439 Pa.Super. 406, 654 A.2d 580 (1995) (where appellant was convicted for attempted murder and aggravated assault, the Commonwealth’s establishment of a corpus delicti for the crime of carrying a loaded weapon was closely related to appellant’s plan to kill his wife and arose out of the same transaction); Commonwealth v. DiSabatino, 399 Pa.Super. 1, 581 A.2d 645 (1990) (crimes of possession of a controlled substance and possession with intent to deliver were determined to be closely related, shared the common element of possession, and arose out of the same incident); Commonwealth v. Rieland, 324 Pa.Super. 115, 471 A.2d 490 (1984) (crimes of burglary and conspiracy arose from a common transaction; it did not defeat the purpose of the corpus delicti rule where the Commonwealth established the corpus delicti of burglary, thereby admitting appellant’s statement that he was involved in a criminal conspiracy to commit burglary).

The relationship between DUI and leaving the scene is not “sufficiently close to ensure that the policies underlying the corpus delicti rule are not violated.” Tessel, 347 Pa.Super. at 46, 500 A.2d at 148-49. Again, the policy behind the corpus delicti rule is grounded in a reluctancy to convict a person of a crime solely on the basis of that person’s statements. Turza, supra. In my view, a violation of such a policy exists where, as here, an admission relevant to a summary offense relating to property damage is utilized as a tool to convict a person for a distinctly unrelated second-degree misdemeanor DUI offense, where no independent evidence exists for the DUI crime. I find that a potentially dangerous precedent has been set where an absence of corpus delicti for one crime (DUI) is so easily disregarded by the finding of independent evidence for a separate, unrelated crime (leaving the scene); such a determination places the future of the corpus delicti doctrine at risk.

I would not, therefore, apply the “closely related crimes” exception and, because no corpus delicti was established for DUI, I would reverse appellant’s judgment of sentence.

      . Appellant also attempted to have his statements suppressed prior to trial, but was unsuccessful.

      . These changes were noted in a highly-regarded article published in the University of Pennsylvania Law Review in 1955. The author of the Note, who is not named, reasoned that the fear of confessions based on third degree tactics by police or the mental derangement of the suspect, while significant, are not necessarily lessened by the requirements of the corpus delicti rule:
      [I]t would seem that the greatest danger that the police will use third degree methods or that the defendant will succumb to the suggestive influence of long hours of questioning by the police exists where there is some independent evidence that a crime was committed, which has led the police to undertake an investigation. Likewise, the danger of a pathological confession would be as great where the question is who committed a crime as where the question is whether a crime is committed.
      Note, supra, at 648.

      . The court then held that since the order of proof was a discretionary matter left to the trial judge, the fact that the Commonwealth ultimately established the corpus delicti was sufficient for admission of the statement.

      . In addition to his DUI charge, appellant was found guilty of two summaiy violations, driving with a suspended license and leaving the scene.

      . Appellant raised two additional issues in his initial brief to the panel. First, he alleged error on the part of the trial court in admitting hearsay statements made to Officer Burkhardt by witnesses on the scene. Our review of the record reveals that Officer Burkhardt was not permitted to testify to anything he was told by those present at the scene of the accident. Second, appellant argues that the evidence was insufficient to support his conviction for DUI. Again, the record belies this claim and we find it meritless.

      . There are two distinct holdings in this case, both of which are made with a majority of members of the court. The first holding, that all statements made by an accused that are material to the prosecution's case are subject to the corpus delicti rule, is joined by seven judges of this court: McEwen, P.J., Cirillo, P.J.E., and Beck, Tamilia, Popovich, Johnson and Hudock, JJ. The second holding, that the closely related crime exception to the corpus delicti rule is applicable in this case, is joined by six judges of this court: McEwen, P.J., Cavanaugh, Del Sole, Beck, Tamilia, and Hudock, JJ.

      . The evidence was as follows:
      When two police officers entered an apartment at the request of the tenant, they observed appellant in the bedroom pointing a rifle at them. As the officers retreated from the apartment, one officer fired a shot. Venturing back in, the officer saw appellant "raising his rifle again.” Appellant closed the bedroom door. The officers called for reinforcement, and when these arrived, appellant threw out his rifle and surrendered.

        Stokes, 225 Pa.Super. at 413, 311 A.2d at 715; accord: Tessel, 347 Pa.Super. at 46-48, 500 A.2d at 149.

      . The pertinent elements of the offenses at issue provide:
      § 3731. Driving under the influence of alcohol or controlled substance
      (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle:
      (1) while under the influence of alcohol to a degree which renders the person incapable of safe driving[.]
      § 3745. Accidents involving damage to unattended vehicle or property
      (a) General rule. — The driver of any vehicle which collides with or is involved in an accident with any vehicle or other property which is unattended resulting in any damage to the other vehicle or property shall immediately stop the vehicle at the scene of the accident or as close thereto as possible and shall then and there either locate and notify the operator or owner of the damaged vehicle or other property of his name, address, information relating to financial responsibility and the registration number of the vehicle being driven or shall attach securely in a conspicuous place in or on the damaged vehicle or other property a written notice giving his name, address, information relating to financial responsibility and the registration number of the vehicle being driven and shall without unnecessary delay notify the nearest office of a duly authorized police department. Every stop shall be made without obstructing traffic more than is necessary.


author: MONTEMURO, Justice:

text:
    678 A.2d 389
    COMMONWEALTH of Pennsylvania, Appellee, v. Joseph CATERINO, Appellant.
    Superior Court of Pennsylvania.
    Argued April 25, 1996.
    Filed May 31, 1996.

      Stuart Levy, Philadelphia, for appellant.
    Jonathan Levy, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before: McEWEN, President Judge, SAYLOR and MONTEMURO , JJ.

       Retired Justice assigned to the Superior Court.

   MONTEMURO, Justice:

This is an appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County which sentenced Appellant to four (4) to eight (8) years imprisonment for aggravated assault. For the following reasons, we affirm.

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

From approximately 11:00 p.m. on September 15, 1994, until 1:30 a.m. the next morning, William Ward (Complainant) was in his home taking music lessons. When the lessons finished, his teacher departed. The Complainant also left his home and got into his pickup truck with the intention of going to a WAWA food store to purchase cigarettes for himself and his neighbor (Dee McCoy), and milk and bread for his family.
On the way to WAWA, the Complainant stopped at Ms. McCoy’s home to get her cigarette money. As he double-parked the vehicle in front of the house, he saw Ms. McCoy sitting on her steps and the [Appellant] standing near her. All of a sudden, the [Appellant] yelled to someone across the street, and ran toward the Complainant. When he reached the driver’s side of the truck, the [Appellant] yelled at the Complainant seated in his truck “Are you spotting me?”, or words to that effect. As the Complainant responded that he did not know what he [Appellant] was talking about, the [Appellant] reached through the open driver’s side window and punched the Complainant in the face. The Complainant’s eyeglasses broke cutting his nose. The Complainant fell to his right side. When he rose, he looked at the [Appellant] who hit him again in the face, this time with a beer bottle. The Complainant again fell to his right side[,] and as he rose, he saw the [Appellant] coming at him. The Complainant grabbed a hammer from the floor of his truck, threw it at the [Appellant], put the truck in gear, and drove back to his home. When he arrived at his home, the Complainant called the police. As he waited for the police to arrive, he woke his wife, who gave him a clean towel for his nose injury and got the children ready to go with them to the hospital. The Complainant called the police a second time and when the police arrived, he told the officer what had transpired. The officer did not arrest anyone that morning.
After the Complainant made his report to the officer, his wife drove him to the Medical College of Pennsylvania Hospital, where he received stitches on his nose and was released with instructions to return for follow up treatment.
From the hospital, the Complainant and his family went to the Northeast Detective Division and filed a formal complaint. A few days later, the Complainant identified the [Appellant] from a photo line-up. Subsequently, a warrant was sworn out[,] and the [Appellant] was arrested.

On appeal, Appellant argues that the evidence is insufficient to sustain a conviction for aggravated assault, and that counsel was ineffective for failing to object to the offense gravity score used by the sentencing court in determining his sentence.

To obtain a conviction for aggravated assault, the Commonwealth must show that the defendant “attempted] to cause serious bodily injury to another, or cause[d] such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” 18 Pa.C.S. § 2702(a)(1). Serious bodily injury is defined as any “[bjodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S. § 2301.

The test for sufficiency of the evidence is whether the evidence accepted as true, as well as all reasonable and permissible inferences, is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Fahy, 512 Pa. 298, 302, 516 A.2d 689, 691 (1986).

As the trial court found that Appellant intended to cause serious bodily injury, we must determine whether the Commonwealth presented sufficient evidence to show that the defendant intentionally caused, or attempted to cause, serious bodily injury, manifesting extreme indifference to the value of human life. 18 Pa.C.S. § 2702(a)(1). The intent to cause serious bodily harm may be shown by circumstances surrounding the incident. Commonwealth v. Alexander, 477 Pa. 190, 194, 383 A.2d 887, 889 (1978); Commonwealth v. Elrod, 392 Pa.Super. 274, 277, 572 A.2d 1229, 1231 (1990), allocatur denied, 527 Pa. 629, 592 A.2d 1297 (1990). Furthermore, the conduct giving rise to the inference that the defendant intended to inflict serious bodily harm need not in itself be life threatening. Id. at 277, 572 A.2d at 1231.

In this case, Appellant punched Complainant in the face, knocking him down and cutting his face. Then, as the Complainant sat up, Appellant proceeded to slam a beer bottle down on his already injured and bloodied face. Apparently, this was not sufficient for Appellant, as he prepared to strike the Complainant again. Fortunately, Complainant was able to avoid further attack by throwing a hammer at Appellant and driving away. Based on these facts and circumstances, we agree with the trial court that Appellant intended to inflict serious bodily harm. Whether or not the Complainant actually suffered serious bodily harm is irrelevant at this stage, as an attempt to inflict serious harm is as punishable as if the attempt succeeds. 18 Pa.C.S. § 2702(a)(1). Accordingly, Appellant’s conviction for aggravated assault must stand.

Next, Appellant contends that counsel was ineffective for failing to object to the offense gravity score used by the sentencing court. Generally, a claim for ineffective assistance of counsel must be raised at the first appropriate opportunity where the defendant is represented by new counsel. Commonwealth v. Griffin, 537 Pa. 447, 454, 644 A.2d 1167, 1170 (1994). In this case, Appellant was represented by the Défender Association in the filing of the Statement of Matters Complained of on Appeal. As counsel failed to raise this issue at that time, the claim normally would be deemed waived. However, the Defender Association, still representing Appellant, not only asserted that trial counsel was ineffective, but also asserted that it was ineffective for failing to raise the. claim in the Statement of Matters Complained of on Appeal. Our Supreme Court has found that

[w]hen appellate counsel asserts a claim of his or her own ineffectiveness, the ease should be remanded so that new counsel may be appointed except (1) where it is clear from the record that counsel was ineffective or (2) where it is clear from the record that the ineffectiveness claim is meritless.

Commonwealth v. Ciptak, 542 Pa. 112, 113, 665 A.2d 1161, 1162 (1995). Accordingly, we are not automatically precluded from reviewing this claim.

If, as Appellant asserts, the sentencing court erroneously applied an offense gravity score of “11” rather than “9”, then his claim of ineffective assistance of counsel would have arguable merit. See Commonwealth v. Dickison, 334 Pa.Super. 549, 553, 483 A.2d 874, 876 (1984). For the court to properly apply an offense gravity score of “11”, it must find that the defendant’s conduct actually resulted in serious bodily injury. 42 Pa.C.S. § 9721. Absent such a finding, the court must apply an offense gravity score of “9”. Id. Therefore, Appellant’s claim depends upon the determination of whether Complainant actually suffered serious bodily injury. Unfortunately, the trial court did not expressly make such a finding.

Moreover, a review of prior case law did not uncover a case where a victim suffered substantially similar injuries and the court made a finding that the injuries did, in fact, constitute serious bodily injury. In many cases, the court simply found that the evidence was sufficient to prove intent to cause serious bodily injury. See Commonwealth v. Aycock, 323 Pa.Super. 62, 67, 470 A.2d 130, 132 (1983) (evidence showing that defendant used an eighteen inch piece of channel steel to strike the victim on the head and back, causing lacerations on his head that required twenty-seven sutures, was sufficient to support an inference that defendant attempted to cause serious bodily injury); Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 545, 420 A.2d 674, 675 (1980) (while “[i]t may be granted that appellant did not cause ‘serious bodily injury’ to Harris[,]” evidence that defendant repeatedly struck the victim with a tire iron, that he was much larger than the victim, and that he told the victim that next time he would kill him, was sufficient to support an inference that he attempted to cause serious bodily injury).

In the folio-wing cases, the court made specific findings as to the extent of the victims’ injuries and, therefore, provide some guidance. Commonwealth v. Alexander, 477 Pa. 190, 194, 383 A.2d 887, 889 (1978) (broken nose, two black eyes and facial lacerations not considered serious bodily injury); Commonwealth v. Rife, 454 Pa. 506, 511, 312 A.2d 406, 409 (1973) (skull fracture and concussion, resulting in loss of memory, is clearly grievous bodily injury); Commonwealth v. Adams, 333 Pa.Super. 312, 319, 482 A.2d 583, 587 (1984) (evidence that victim was struck on the head by a door, knocking her to the floor, but not unconscious, was insufficient to prove serious bodily injury); Commonwealth v. Phillips, 269 Pa.Super. 537, 542, 410 A.2d 832, 834 (1979) (gunshot wound to leg, requiring two week stay in hospital and resulting in inability to walk for one month, considered serious bodily injury); Commonwealth v. Benaglio, 254 Pa.Super. 100, 104, 385 A.2d 544, 546 (1978) (bump on the head does not constitute serious bodily injury).

Two other cases, cited by the Appellant, are of questionable assistance. In Commonwealth v. Rightley, 421 Pa.Super. 270, 282-83, 617 A.2d 1289, 1295-96 (1992), the Superior Court panel clearly rejected the trial court’s finding that there was insufficient evidence to establish intent to cause serious bodily injury. But, it is unclear whether the panel rejected the trial court’s finding that a ruptured eardrum and a minor concussion, requiring a three day stay in the hospital and resulting in a hearing impairment, was not serious bodily injury. In Commonwealth v. Dohner, 295 Pa.Super. 342, 355, 441 A.2d 1263, 1270 (1982), the Court did not hold that evidence of a fracture of the eye socket, requiring surgery to repair, was or was not sufficient to establish serious bodily injury if inflicted by one person, as case involved action of three aggressors.

In this case, Appellant punched Complainant in the nose, breaking his glasses and cutting his face. He then proceeded to slam a beer bottle into Complainant’s already bloodied face. As a result, Complainant sustained a broken nose and required more than three hours of emergency care to stop the bleeding of a torn artery. At the time of trial, Complainant was still suffering some effects of the attack, as his nose hurt whenever he wore his glasses, and he occasionally coughed up blood.

Clearly, had Complainant’s injuries been limited to a broken nose and minor facial lacerations, Alexander would preclude the finding of serious bodily injury. 477 Pa. at 194, 383 A.2d at 889. However, the fact that Complainant also suffered a severed artery, requiring over three hours of emergency medical attention, takes us beyond the holding in Alexander. Without medical intervention for the arterial wound, it is conceivable that Complainant could have bled to death. Therefore, we find that when viewed as a whole, the evidence of Complainant’s injuries was sufficient to establish serious bodily injury. As such, the application of an offense gravity score of “11” was appropriate. As counsel cannot be deemed ineffective for failing to raise a meritless issue, Appellant’s claim for ineffective assistance of counsel is clearly meritless.

Accordingly, there is no need to remand to appoint new counsel. The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 2702.

      . With an offense gravity score of "11 ” and a prior record score of "2", Appellant was subject to a sentence of forty-eight (48) to sixty-six (66) months, plus or minus twelve (12) months.

      . If an offense gravity score of "9" were used, Appellant would have been subject to a sentence of fifteen (15) to thirty (30) months, plus or minus six (6) months.

      . The trial court states in its opinion that “it can be argued that the Complainant may not have received a serious bodily injury.”

      . Both Complainant and his wife testified that they were told that an artery was torn and that is why it was so difficult to stop the bleeding. The Commonwealth did not present any medical testimony to confirm their testimony. However, it appears that the trial court found their testimony to be otherwise credible, as it accepted their version of the incident over that of the Appellant.


author: TAMILIA, Judge.

text:
    678 A.2d 393
    Maria OLIVIERI, Appellant, v. Frank P. OLIVIERI and Ritamarie Olivieri. Maria OLIVIERI, v. Frank OLIVIERI, Appellant.
    Superior Court of Pennsylvania.
    Argued March 27, 1996.
    Filed May 31, 1996.

      David Abernethy, Philadelphia, for Maria Olivieri.
    Scott M. Pollock, Jenkintown, (submitted), for Frank Olivieri.
    Before CAVANAUGH, TAMILIA and MONTEMURO , JJ.

      Retired Justice assigned to the Superior Court.

   TAMILIA, Judge.

Frank and Maria Olivieri present cross-appeals from the June 28, 1995 Order dismissing, for lack of jurisdiction, their petitions filed pursuant to the Protection From Abuse Act (PFA), 23 Pa.C.S. § 6101 et seq.

Briefly stated, the facts of this case indicate that the parties, Maria and Frank Olivieri, sister and brother, have engaged in a longstanding dispute over operation of a jointly-owned business. The parties do not reside together and have no non-business contact. On May 22 and 24, 1995, respectively, Mr. and Ms. Olivieri received temporary restraining Orders against each other.

After both parties obtained these Orders, Ms. Olivieri’s hearing, originally scheduled for May 31, 1995, was continued and consolidated with Mr. Olivieri’s hearing scheduled for June 1, 1995. Thereafter, a continuance was granted at the request of Mr. Olivieri’s counsel, and the case returned to court on June 19, 1995. At hearings held on June 19 and 20, 1995, both parties presented argument as to the allegations of abuse and the jurisdictional issue. The court then entered temporary abuse Orders and counsel for Ms. Olivieri requested that the court reconsider its ruling. The court did so and, on June 28, 1995, vacated its prior temporary restraining Orders and dismissed the petitions based on a lack of jurisdiction. On appeal, both parties claim the court had jurisdiction to consider their PFA petitions.

The trial court dismissed the petitions on the following basis:

While it is true that Maria and Frank Olivieri are brother and sister, they are not family members that should be covered under the Protection From Abuse Act. The law is actually designed to protect those living under the same roof or who have access to the same residence from harming each other, and to preserve domestic tranquility. The legislature formulated the Protection From Abuse Act to focus upon the protection of families, not to settle business disputes. While Frank and Maria Olivieri are related by biological parenthood, in reality they are simply feuding business partners who are fighting about the way the business is run. The Olivieris have no connection with one another outside of the business. Through counsel, both parties admitted to the Court that they do not live in the same home, they do no socialize at all, and in fact cannot stand to be in the same room together. Thus, Frank and Maria Olivieri have abandoned in every sense the notion of brotherhood and sisterhood. They are simply business partners who happen to have the same parents.
The Olivieris filed suit in the Civil Division to settle their business dispute. However, Maria and Frank Olivieri attempted to utilize the equity function of the Philadelphia Family Courts to bring about an early solution to their dispute. By filing the abuse petitions as vehicles to bring the fight immediately before the court, Maria and Frank Olivieri hoped to have the business dispute settled as the underlying cause of the alleged abuse. Thus, as the real issue in this case is the accounting methods used when ringing out the cash register, this Court did not have the authority to decide this case. The Family Court lacks jurisdiction to hear the pure law questions surrounding the jointly owned business. Thus, Maria and Frank Olivieri must wait and resolve their dispute in the Civil Division.

(Slip Op. at 3-5; citations omitted.)

We agree with the trial court that the Protection From Abuse Act simply does not apply to the dispute between Maria and Frank Olivieri. We have stated that “the Protection From Abuse Act is a vanguard measure dealing with the problems of wife and child abuse. It is designed to protect against abuse ... between family or household members who reside together [and] also between unmarried persons living together.” Cipolla v. Cipolla, 264 Pa. Super. 53, 55 n. 1, 398 A.2d 1053, 1054 n. 1 (1979). As found by the trial court, neither the Family Division nor the Protection From Abuse Act are intended to resolve a dispute between business partners who do not reside in the same household, whether or not the partners happen to share biological parents. The proper forum for the Olivieris’ claims is the civil courts and we will not allow the Protection From Abuse Act to serve as a weapon in purely business disputes.

Finally, Maria Olivieri claims that “if jurisdiction existed in the court below to hear [her] petition, [she was] entitled under [section 6107 of the PFA] to an evidentiary hearing within ten days after the temporary ex parte Orders were entered[.]” (Appellant’s brief at 2; emphasis in original.) As noted, supra, Ms. Olivieri filed her petition on May 19, 1995 and, on May 22, 1995, she received a temporary restraining Order. Also on May 22nd, a hearing was scheduled for May 31, 1995. Thus, an evidentiary hearing was scheduled “within ten days after the temporary ex parte Orders were entered” and the mandate of section 6107 was satisfied. Further, prior to the May 31, 1995 hearing, Ms. Olivieri consented to a continuance until June 19, 1995. At that hearing, and one held the next day, it was determined that the court lacked jurisdiction over the parties’ dispute. Hence, since jurisdiction was lacking, the court was without power to adjudicate the case and neither party was entitled to any further hearing. Lastly, as the express language of Ms. Olivieri’s issue indicates, her right to an evidentiary hearing arose only “if jurisdiction existed[.]” Our determination that the trial court properly dismissed the parties’ petitions for lack of jurisdiction therefore compels the conclusion that Ms. Olivieri was not entitled to an evidentiary hearing. Thus, her second claim fails.

Based on the foregoing, we affirm the June 28, 1995 Order dismissing the parties’ PFA petitions for lack of jurisdiction.

Order affirmed.