author: HESTER, Judge:

text:
    597 A.2d 106
    Stanley GODLEWSKI and Bertha Godlewski, his wife, Appellants, v. PARS MANUFACTURING COMPANY; Owens-Corning Fiberglas Corp.; Lehigh Valley Refractories, Inc.; Anchor Packing Company, Inc.; Celotex Corporation; C.E. Refractories, Division of Combustion Engineering, Inc.; Melrath Gasket, Inc. Robert B. MYERS and Kathryn Myers, his wife, Appellants, v. COMBUSTION ENGINEERING, INC.; Owens-Corning Fiberglas Corp.; Owens-Illinois, Inc.; Pars Manufacturing Co.; Lehigh Valley Refractories, Inc.; Garlock, Inc. Michael CYWINSKI and Olga Cywinski, his wife, Appellants, v. COMBUSTION ENGINEERING, INC.; Owens-Corning Fiberglas Corp.; Owens-Illinois, Inc.; Pars Manufacturing Co.; Garlock, Inc.; Flintkote Company. Mary MAROSEVITCH, Administratrix of the Estate of William Marosevitch, Deceased and in her own right, Appellant, v. COMBUSTION ENGINEERING, INC.; Owens-Corning Fiberglas Corp.; Owens-Illinois, Inc.; Pars Manufacturing Co.; Lehigh Valley Refractories, Inc. Alfred LINCAVAGE, Appellant, v. COMBUSTION ENGINEERING, INC.; Owens-Corning Fiberglas Corp.; Owens-Illinois, Inc.; Pars Manufacturing Co.; Lehigh Valley Refractories, Inc.; Celotex Corporation; Flintkote Company. Robert DELESCAVAGE and Mary Ann Delescavage, his wife, Appellants, v. OWENS-CORNING FIBERGLAS CORP.; Celotex Corporation; Owens-Illinois, Inc.; Pars Manufacturing Co.; Lehigh Valley Refractories, Inc.; Combustion Engineering, Inc.; Flintkote Company.

      Superior Court of Pennsylvania.
    Argued Oct. 25, 1990.
    Filed June 4, 1991.

      Martin Greitzer, Philadelphia, for appellants (at Nos. 3217, 3225, 3226, 3227, 3228 and 3229).
    Fredric E. Orlansky, Pittsburgh, for Owens-Corning Fiberglas, appellee (at Nos. 3217, 3225, 3226, 3227, 3228 and 3229).

      Thomas C. Herbertson, Pittsburgh, for C.E. Refractories, appellee (at Nos. 3217, 3225, 3226, 3227, 3228 and 3229).
    Diana L. Moro-Bishop, Philadelphia, for Pars Mfg., appellee (at Nos. 3217, 3225, 3226, 3227, 3228 and 3229).
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   HESTER, Judge:

This is a consolidated appeal from an order entered in the Court of Common Pleas of Luzerne County on November 8, 1989, which granted certain manufacturers and distributors of asbestos-containing products summary judgment. For the reasons set forth below, we reverse in part and remand for further proceedings.

The procedural history of this case may be summarized as follows. Between 1986 and 1988, Stanley Godlewski, Robert Delescavage, Michael Cywinski, Robert B. Myers, and Alfred Lincavage, former employees of the Foster-Wheeler Energy Corporation, instituted actions against several manufacturers and distributors of asbestos-containing materials in an effort to recover damages for injuries allegedly sustained as a result of their job-related exposure to those products. All but Lincavage were joined in the actions by their wives. Mary Marosevitch, in her own right and as administratrix of the estate of William Marosevitch, another Foster-Wheeler employee, initiated a similar suit. In each case, following the closure of both the pleadings and discovery, certain defendants, who asserted that appellants could not demonstrate any exposure to asbestos-containing products manufactured or distributed by them, moved for summary judgment. On November 8, 1989, the trial court, which considered the motions filed in the various cases together, concluded that there were no genuine issues of material fact for resolution and determined that the moving parties were entitled to judgment as a matter of law. Accordingly, it granted the requested relief. This timely appeal followed.

Appellants initially assert that the trial court erroneously failed to consider each of the individual actions prior to disposing of the various summary judgment motions. In support of this assertion, which we find is without merit, they contend that the court heard no argument on the motions and disposed of them jointly.

We first consider the oral argument aspect of appellant’s claim. It is clear in this Commonwealth that parties to a civil action generally have the right to orally argue motions. Pa.R.C.P. 211. However, pursuant to Rule 270(d) of the Local Rules of Luzerne County, which implements that general principle, a party seeking the opportunity to argue a motion must make a request for argument. In the present case, our review of the record reveals that appellants did not make the necessary request. Therefore, we conclude that they may not predicate error on the court’s failure to require oral argument prior to disposing of the motions for summary judgment.

We next turn to the question of the propriety of the trial court’s joint disposition of the summary judgment motions. Although our review of the record reveals that the trial court granted the motions in a single order and discussed those dispositions only generally in its opinion, we do not believe that these facts necessarily demonstrate that the trial court improperly failed to examine each individual case. Since all of the actions involved claims arising from exposure to asbestos-containing products and the contested motions challenged appellants’ ability to establish a connection between the injuries suffered and the materials of the manufacturers and distributors, one may conclude that the manner of the court’s disposition merely was a function of these similarities. Accordingly, appellants are not entitled to relief on this basis.

Appellants also challenge the appropriateness of the summary judgment grants. Preliminarily, we note that our standard for reviewing the propriety of a summary judgment grant is well established. In Banker v. Valley Forge Insurance Co., 401 Pa.Super. 367, 372, 585 A.2d 504, 507 (1991), we discussed that standard and, quoting Kaller’s, Inc. v. Spencer Roofing, 388 Pa.Super. 361, 565 A.2d 794 (1989), stated:

A motion for summary judgment may properly be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Hedlund Mfg. Co. v. Weiser, 517 Pa. 522, 539 A.2d 357 (1988); see also Gabovitz v. State Auto Ins. Ass’n., 362 Pa.Super. 17, 523 A.2d 403 (1987); Pa.R.Civ.P. 1035(b). Summary judgment may be entered only in cases that are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983). Additionally, the record must be examined in the light most favorable to the non-moving party, accepting as true all well-pleaded facts in its pleadings and giving that party the benefit of all reasonable inferences drawn therefrom. Hower v. Whitmak Assoc., 371 Pa.Super. 443, 445, 538 A.2d 524, 525 (1988); Ferguson v. King, 362 Pa.Super. 543, 524 A.2d 1372 (1987). Moreover in summary judgment proceedings, the court’s function is not to determine the facts, but only to determine if a material issue of fact exists. French v. United Parcel Service, 377 Pa.Super. 366, 372, 547 A.2d 411, 414 (1988). Thus an order granting a motion for summary judgment will not be reversed unless the court below has committed an error of law or clearly abused its discretion. Ackler v. Raymark Indus., Inc., 380 Pa.Super. 183, 185, 551 A.2d 291, 292 (1988); Jones v. Keystone Ins. Co., 364 Pa.Super. 318, 321, 528 A.2d 177, 179 (1987); Miller v. Federal Kemper Ins. Co., 352 Pa.Super. 581, 585-86, 508 A.2d 1222, 1225 (1987).

Keeping these principles in mind, we must determine whether the trial court correctly granted the contested summary judgment motions. As appellants’ claims concern the motions of only three of the defendants, Pars Manufacturing Company (“Pars”), Combustion Engineering, Inc. (“C.E.”), and Owens-Corning Fiberglas Corporation (“Owens-Corning”), our analysis will be categorized according to appellee.

Pars Manufacturing Company

We initially consider the appropriateness of the relief granted to Pars Manufacturing Company in both the Godlewski and Lincavage cases. In those actions, Pars moved for summary judgment contending that Godlewski and Lincavage could not establish a connection between their injuries and products distributed by Pars since it sold no asbestos-containing materials to Foster-Wheeler during either person’s term of employment. In support of this contention, which related to the ability of Godlewski and Lincavage to establish a fact necessary to support their recovery, see Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50 (1988), Pars relied exclusively upon an affidavit of its former chairman and chief executive officer.

It is clear that if a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicate that the plaintiff is unable to satisfy an element of his cause of action. See Eckenrod v. GAF Corp., supra (wherein, by approving grants of summary judgment on motions that were based upon the failure of the plaintiffs to satisfy an element necessary of their case, we impliedly utilized this principle); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (wherein the Supreme Court considered the language of F.R.C.P. 56(c), which is similar to that set forth in Pa.R.C.P. 1035(b) and explicitly indicated the same). However, it is equally clear that even an uncontradicted affidavit of the moving party or his witnesses will not support, due to the factual issue it raises concerning the credibility of its maker, a grant of summary judgment. See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989); Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 439 A.2d 652 (1981). In the present case, since Pars relied solely on an affidavit of a witness to demonstrate Lincavage’s and Godlewski’s inability to establish an element of their causes of action, the trial court erroneously entered judgment on its motions.

Combustion Engineering, Inc.

Next, we consider the propriety of the relief granted to C.E. in the Myers, Marosevitch, and Cywinski cases. In those actions, C.E. moved for summary judgment on the basis that the three appellants would not be able to establish that the injuries in question were caused by its products, an element necessary to their right to recover, since there was no evidence of exposure to C.E.’s products. Unlike Pars in Lincavage and Godlewski, it relied upon the extensive discovery conducted by the appellants to support the motions. Consequently, we conclude that they properly were supported and address whether Myers, Marosevitch, and Cywinski could defeat C.E.’s claim.

In Eckenrod v. GAF Corp., supra, 375 Pa.Super. at 191, 544 A.2d at 52, we considered a similar issue and stated:

[I]n order for a plaintiff [in an asbestos action] to defeat a motion for summary judgment, [that] plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer’s product. Wible v. Keene Corporation, No. 86-4451 Slip op. (E.D.Pa. August 19, 1987) [available on WESTLAW, 1987 WL 15833]; Anastasi v. Pacor, Inc., No. 6251 (C.P. Phila. Co., March 8, 1983) affd 349 Pa.Super. 610, 503 A.2d 44 (1985). Therefore, a plaintiff must establish more than the mere presence of asbestos in the workplace, he must prove that he worked in the vicinity of the product’s use. Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126 (E.D.Pa.1985).

Utilizing these principles, we review the records in the three cases. We have determined that there is sufficient evidentiary materials from which one could conclude that Myers, Marosevitch, and Cywinski inhaled asbestos fibers shed by products manufactured by C.E. In answers to interrogatories relating to each case, C.E. admitted that it manufactured Stic-tite cement between 1963 and 1972 and that the cement contained asbestos. In addition, we note that each appellant produced an affidavit of Robert Delescavage. Those affidavits indicate that Delescavage worked at Foster-Wheeler between 1966 and 1984, that he worked with Stic-tite, that it was used to finish off walls in stress relief, around purge covers, and on furnaces, that it was mixed with water in a trough, that this activity created a large amount of dust, and that Myers, Cywinski, and Marosevitch had, at times, either worked with the Stic-tite or near where it was being used. As these evidentiary materials could lead one to conclude that the three appellants demonstrated the exposure necessary to defeat C.E.’s motion, we conclude that the trial court improperly entered the contested judgments in its favor.

Owens-Corning Fiberglas Corporation

Finally, we consider the propriety of the judgments entered by the trial court in favor of the Owens-Corning in the Delescavage, Cywinski, Marosevitch, Myers, and Lincavage cases. In those actions, Owens-Corning moved for summary judgment on the basis that the various appellants could not demonstrate a connection between the injuries suffered and its products. In support of these motions, which related to their ability to establish an element necessary to support a recovery, Owens-Corning relied upon the discovery conducted by appellants. Consequently, as was the case with C.E.’s motions, we conclude that Owens-Corning’s requests for relief properly were supported. Accordingly, we address whether the records in the five actions contained sufficient materials to defeat them.

Our review of the records in each of the cases reveals sufficient evidence to establish that Delescavage, Cywinski, Marosevitch, Myers, and Lincavage demonstrated the necessary exposure. In all five actions, the records contain affidavits of both Robert Slusser and John B. Swenski. In each document, the affiant indicated that he worked at Foster-Wheeler for a number of years, that he worked with a variety of materials including Kaylo blocks, that those blocks were used to build furnace walls, that they were cut by saws, that this activity produced dust, and that appellants or their decedents had worked, at times, either with that material or near where it was being used. In addition, we note that Burton Hildebrand, who also worked at Foster-Wheeler, testified at his deposition that the boxes containing the Kaylo blocks indicated that they were manufactured by Owens-Corning. N.T., 6/15/88, at 20, 49. Furthermore, Carl Brush, another Foster-Wheeler employee, testified at his deposition that those boxes also indicated that Kaylo contained asbestos. N.T., 6/24/87, at 50. This testimony was relied upon by each of appellants. As these evidentiary materials could lead one to conclude that Delescavage, Cywinski, Myers, Marosevitch, and Lincavage breathed in asbestos dust shed from Owens-Corning’s products, it is clear that the trial court erroneously entered judgment in Owens-Corning’s favor.

Order reversed and cases remanded for further proceedings. Jurisdiction relinquished.

CAVANAUGH, J., concurs in the result.

      . In all cases except Godlewski’s, Foster-Wheeler also was named as a defendant.

      . We note that Marosevitch, unlike the other actions, was filed in Philadelphia County and transferred to Luzerne County for disposition.

      . While this appeal was pending, the trial court, by separate orders entered on January 17, 1990, revoked the November 8, 1989 order and re-entered summary judgment in each action. Apparently, the court took this action to clarify its prior order. However, as our review of the record reveals that appellants did not move for reconsideration of the November 8, 1989 order prior to the expiration of the thirty day appeal period, it is clear that the trial court lacked the authority to revoke it. See Pa.R.A.P. 1701. Consequently, we find that the orders entered on January 17, 1990, do not impact on this appeal.

      . This request must be made at the time that briefs on the matter are filed.

      . We note that appellants also rely upon affidavits of Robert Slusser to support their positions. Although those affidavits were similar to the ones made by Delescavage, they are of little use. Our examination of Slusser’s deposition testimony indicates that his knowledge of the identity of Stic-tite as one of the products used at Foster-Wheeler was based upon out of court statements made by his co-workers. Notes of Testimony ("N.T.”), 12/4/87, at 49. Accordingly, Slusser’s assertions in the affidavits concerning product identification constituted inadmissible hearsay and may not be used in determining the propriety of the summary judgment grants. See Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398 (1989).

      . We note that our conclusion in connection with the Marosevitch and Lincavage cases is strengthened by the fact that Owens-Corning filed pre-trial statements in which it admitted that it manufactured Kaylo and that those blocks contained asbestos.


source: Caselaw Access Project

author: OPINION PER CURIAM: OLSZEWSKI, Justice, POPOVICH, Justice,

license: Public Domain

text:
    597 A.2d 111
    COMMONWEALTH of Pennsylvania v. Shawn C. MURRAY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1990.
    Filed Sept. 13, 1991.

      Michael J. Toms, Waynesboro, for appellant.
    David W. Rahauser, Asst. Dist. Atty., Chambersburg, for Comm., appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, WIEAND, OLSZEWSKI, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   OPINION PER CURIAM:

The issue in this case is whether we may review the decision of a trial court which has denied a motion for a new trial in a criminal case based on a challenge to the weight of the evidence.

We have traditionally reviewed the exercise of discretion by a trial court in matters involving challenges to the weight of the evidence. We stated in Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984):

Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion____ The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.

See also, Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984).

As recently as Commonwealth v. Purcell, 403 Pa.Super. 342, 589 A.2d 217 (1991) we held that our role in reviewing the weight of the evidence is limited and the determination whether to grant a new trial on the grounds that the verdict is against the weight of the evidence rests within the discretion of the trial court whose decision will not be disturbed in the absence of an abuse of discretion. We are cognizant that in many instances challenges to the weight of the evidence are in reality, attacks on the sufficiency of the evidence. Nevertheless, there is a clear distinction between the two.

Until recent years there appeared to have been no question as to our authority to review determinations by the trial court concerning weight of the evidence. However, in Commonwealth v. Nelson, 514 Pa. 262, 271, n. 3, 523 A.2d 728, 733, n. 3 (1987) the Supreme Court stated in a footnote:

It is a rule of this Commonwealth that an appellate tribunal should not entertain a challenge to the weight of the evidence since their examination is confined to the “cold record.”

This statement was reinforced by the Supreme Court in Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989) wherein the court stated: “A challenge to the weight of the evidence is not appealable,” citing Commonwealth v. Nelson, supra. Q

In Commonwealth v. Eddowes, 397 Pa.Super. 551, 580 A.2d 769 (1990), opinion by Olszewski, J., we held that a ruling on a challenge to the weight of the evidence is subject to appellate review, notwithstanding the Supreme Court’s statements in Commonwealth v. Nelson, supra, and Commonwealth v. Wallace, supra.

In this case, the appellant, Shawn C. Murray, was found guilty of homicide by motor vehicle while under the influence of alcohol. On March 11, 1988 appellant and three companions embarked on an evening of “bar hopping.” One member of the group purchased a prescription drug known as Zanax and a case of beer. The group visited several bars and at each, the appellant was not served, as he was under age. Nevertheless, he consumed at least three sixteen-ounce cans of beer and several Zanax pills.

The appellant was the driver of the vehicle in which the group travelled during the evening. Near the intersection of Route 75 and Fannettsburg Road, the vehicle left the roadway which was paved and 19V2 feet wide, crossed a 2 foot wide berm and went into a ditch, ultimately coming to rest against a concrete abutment.

One of the passengers, Timothy Smith, was wedged in the front of the vehicle and died as a result of “blunt trauma” to his skull. The appellant’s blood alcohol content as revealed by tests taken at Hershey Medical Center some three hours after the accident, was found to be .14 per cent.

Notwithstanding the dicta of the Supreme Court in Commonwealth v. Nelson, supra, and Commonwealth v. Wallace, supra, we conclude that we may review the trial court’s exercise of its discretion in denying a motion for a new trial based on a challenge to the weight of the evidence. The law in this Commonwealth has long been that a new trial may be ordered “on the ground that the verdict is against the weight of the evidence, when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice, and the award of a new trial is imperative so that right may be given another opportunity to prevail.” 10 Standard Pennsylvania Practice, New Trial, § 62:59. See also, Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986); and Commonwealth v. Datesman, 343 Pa.Super. 176, 494 A.2d 413 (1985). As Justice McDermott stated in Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985), the Supreme Court “has repeatedly emphasized that it is not only a trial court’s inherent fundamental and salutary power, but its duty to grant a new trial when it believes the verdict was against the weight of the evidence and resulted in a miscarriage of justice.”

We stated in Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984): “a motion for new trial on grounds that the verdict [was] contrary to the weight of the evidence concedes that there [was] sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict [was] against the weight of the evidence.” Whether a new trial should be granted on such grounds is addressed to the sound discretion of the trial court. Thompson v. City of Philadelphia, supra; Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972); Commonwealth v. Ruffin, 317 Pa.Super. 126, 463 A.2d 1117 (1983).

The exercise of discretion by the trial judge in denying a motion for a new trial based on a challenge to the weight of the evidence is not unfettered. The need for appellate review was acknowledged by the Supreme Court in Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240 (1991). In holding that a trial court could grant a new trial “in the interest of justice,” the. Court, per Nix, C.J., observed:

[wjhile the scope of a trial court’s discretionary powers to deal with the factual circumstances it confronts is broad, it is not unlimited. It necessarily follows that the requirement that appellate courts defer to that exercise of discretion is not without limitation either. The propriety of such an exercise of discretion may be assessed by the appellate process when it is apparent there was an abuse of that discretion.

527 Pa. at-, 590 A.2d at 1244.

The decisions in Commonwealth v. Wallace, supra, and Commonwealth v. Nelson, supra, did not refer to nor purport to overrule the line of cases in Pennsylvania in which appellate courts have reviewed the exercise of the lower court’s discretion in weighing the evidence. An appellate court has the duty to review the trial court’s denial of a defendant’s motion for a new trial on the grounds that the verdict was against the weight of the evidence. The purpose of that review is to determine whether the trial court abused its discretion and not to substitute this Court’s judgment for that of the trial court. Thompson v. City of Philadelphia, supra; Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969); and Commonwealth v. Taylor, supra.

In reviewing the trial court’s decision concerning the weight of the evidence, an appellate court is not passing on the credibility of witnesses. This is a function that is solely within the province of the finder of fact which is free to believe all, part of none of the evidence. Commonwealth v. Mayfield, 401 Pa.Super. 560, 585 A.2d 1069 (1991). In Commonwealth v. Coyle, 190 Pa.Super. 509, 154 A.2d 412 (1959), we found that the trial court abused its discretion in not finding that the verdict was against the weight of the evidence. In reaching this conclusion we did not reevaluate the credibility of witnesses. However, in examining the record we concluded that the jury wrongly ignored evidence of a blood grouping test which showed that the appellant could not have been the father of the prosecutrix’ child. This testimony was apparently disregarded by the jury even though the pathologist who offered it did not have his integrity or professional qualifications questioned and there was nothing in the evidence to indicate any error in the laboratory testing. If we had not reviewed the exercise of the trial court’s discretion, the appellant would have remained wrongly convicted. The Supreme Court pointed out in Commonwealth v. Powell, supra, 527 Pa. at-, 590 A.2d at 1244: “[W]hile the scope of a trial court’s discretionary powers to deal with the factual circumstances it confronts is broad,it is not unlimited.”

We conclude that we have the right and duty to review the trial court’s exercise of its discretion in refusing to grant a new trial on the basis that the verdict was against the weight of the evidence. Nevertheless, we find that appellant’s contention is without merit. The appellant had been drinking and using drugs shortly before the accident which resulted in the death of Timothy Smith. The appellant’s blood alcohol level was higher than the statutory requirements to establish legal intoxication. He was the operator of the vehicle in question, and a passenger testified that shortly before the vehicle went off the road and into the ditch before hitting a concrete abutment, “he was driving back and forth over the yellow line [and] if there would have been a car coming [in the opposite direction] we would have hit him right then.”

The trial court did not act capriciously in determining that the verdict was not against the weight of the evidence and the judgment of sentence must be affirmed.

Judgment of sentence affirmed.

OLSZEWSKI, J., files concurring and dissenting opinion.

POPOVICH, J., files a concurring and dissenting opinion in which CIRILLO and HUDOCK, JJ. join.

OLSZEWSKI, Justice,

concurring and dissenting.

I concur in the result reached by the majority in this case. I must dissent from the conclusion that challenges to the weight of the evidence are reviewable by appellate courts.

It is true that as recently as last year, I was of the opinion that the restrictions announced by our Supreme Court in Wallace and Nelson were dicta, and so, nonbinding on this Court. See, Commonwealth v. Eddowes, 397 Pa.Super. 551, 559-61, 580 A.2d 769, 774 (1990). It is still my belief that a direct challenge to the weight of the evidence was not presented to our Supreme Court in either Wallace or Nelson. Nonetheless, I am now persuaded that the view expressed in those opinions is a proper statement of the law.

The majority acknowledges that a true weight of the evidence challenge concedes that sufficient evidence exists to sustain the verdict. Majority opinion at 436-437, citing Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984). Once that point is recognized, it is beyond dispute that a true motion for a new trial on grounds that the verdict is contrary to the weight of the evidence challenges the credibility determination made by the fact-finder. If one admits that sufficient evidence exists, the question becomes which evidence is to be believed. It is also beyond dispute that the fact-finder is free to believe all, part, or none of the evidence presented. Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (1986); Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977); Commonwealth v. Sanders, 390 Pa. 379, 134 A.2d 890 (1957).

The majority’s citation of Commonwealth v. Coyle, 190 Pa.Super. 509, 154 A.2d 412 (1959), aptly illustrates the irreconcilable conflict that appellate review of challenges to the weight of the evidence creates with the traditional function of the fact-finder. After stating that the fact-finder is free to believe all, part or none of the evidence, the majority cites with approval a decision granting a new trial because the jury apparently disregarded expert testimony. Why is it apparent that the testimony was disregarded? Because the jury did not believe it even though it was unimpeached. The law is clear, however, that a jury may believe all, part or none of the evidence presented even where that evidence is uncorroborated or uncontradicted. Commonwealth ex rel. Green v. Rundle, 413 Pa. 401, 405, 196 A.2d 861, 864 (1964). According to the majority, a fact-finder is free to believe all, part or none of the uncontradicted evidence; however, an appellate court, after reviewing a cold record, may grant a new trial if it determines that the jury should have believed the evidence presented. Thus, the fact-finder is free to reach the same result the appellate court would have reached if presented with the same evidence. Despite protestations to the contrary, the appellate court becomes the final finder of fact in these cases.

Such a challenge to the credibility determinations may properly be addressed to the trial court “who has also observed the witnesses as they testify.” Commonwealth v. Farquharson, 467 Pa. 50, 59, 354 A.2d 545, 550 (1976). The trial court may exercise its sound discretion and grant a new trial where the verdict shocks the court’s conscience. Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981). Appellate courts, however, having had no opportunity to observe the evidence as it was presented, are uniquely unsuited to question the credibility determinations of the fact-finder. Farquharson, supra. A cold record produces thin ice on which to support a weight of the evidence claim.

Such pure credibility challenges must be distinguished from weight of the evidence claims which contend that the verdict is a product of speculation or conjecture. Those claims, however, are sufficiency of the evidence arguments miscast as weight of the evidence claims. In my view, if a reliable verdict is impossible to render, then sufficient evidence has not been presented. These types of claims remain subject to appellate review. Farquharson, supra.

Having examined the arguments on both sides of this question, I must “acknowledge the corn” and so, I respectfully dissent.

POPOVICH, Justice,

concurring and dissenting.

I cannot join in that portion of the Majority’s opinion which determines that a challenge to the verdict on a “weight of the evidence” ground preserves an issue for appellate review. I would find that it does not, and, accordingly, affirm the judgment of sentence (3 to 6 years imprisonment) for homicide by vehicle while under the influence of alcohol against the Defendant/Appellant, Shawn C. Murray, on a basis other than that proffered by the Majority.

The evidence, viewed in a light most favorable to the verdict-winner, indicates that one Timothy Michael Smith and the Appellant embarked on an evening of “bar-hopping” and alcohol consumption at 6:00 p.m. on the 11th of March, 1988, They began their escapade by including Terry Shockey and Perry Hockenberry.

The first item of business was to have a prescription for Zanax filled. Then a case of 16-oz. Busch beer was purchased before traveling to Hockenberry’s residence. The four remained at this location for approximately an hour before deciding to drive to the Lakeview Inn to shoot pool and drink. When the Appellant and Mr. Smith were “carded” and found to be underage, neither was served and all four left. Undaunted, these four made their way to two other establishments: Pines Tavern and Burnt Cabin Bar. In each instance, the Appellant and Smith were refused service because of their age. However, at this stage of the evening, the Appellant had consumed at least three cans of 16-oz. Busch beer and several of the pills (Zanax) obtained by Mr. Smith from the pharmacist.

With the futile efforts of the Appellant and Smith to get served in any of the public bars, all concerned decided to bring the evening’s activities to a close.

As was the case all night, the Appellant was the driver of his father’s 1973 AMC Hornet stationwagon. Mr. Shockey was a passenger in the front of the vehicle, while Mr. Hockenberry sat behind the Appellant and Mr. Smith rested to the right of Hockenberry.

At the crossroads of Route 75 and Fannettsburg Road, a fifth rider (who had traveled with the group since Pines Tavern) exited the vehicle and the others pressed onward with the Appellant at the helm. The vehicle traveled approximately 4 to 5 hundred feet before running off the roadway into a 3-foot culvert and coming to rest after striking a cement abutment.

The force of the impact caused the front seat to dislodge and pressed the driver and passenger against the dashboard. Mr. Hockenberry was able to exit the rear door and secure help. Even with the arrival of the medical personnel within 15 to 30 minutes of the 12:00 a.m. accident, it was discovered that Mr. Smith had sustained a “blunt trauma” to his skull and died. Also, because of Mr. Smith’s size (about 6 ft. tall and 240 lbs.) and the position his body came to rest inside the vehicle (his head was wedged toward the front of the vehicle near the dash and his feet were toward the right, rear of the vehicle), the front seat had been pushed forward to the point of trapping the Appellant and Shockey where they sat, i.e., the Appellant was pinned behind the steering wheel while Shockey was “jammed” in the right, front corner of the automobile.

The position of Murray and Shockey was precarious in that the “jaws of life”, an hydraulic mechanism, had to be used to open the driver’s door and detach the front seat which had wedged itself against the dashboard such that there was no space between the dash, the victims trapped therein and the front seat.

Two medical personnel described the Appellant as being pinned behind the steering wheel precluding his extrication without the aid of the “jaws of life”. The second gentleman was in the front, passenger seat “jammed up in th[e] corner”.

Jane Kuhn, an emergency medical technician and medic, detected an “odor” of alcohol on the Appellant and found him to exhibit the characteristics of others (some 250 to 300 accident victims) she had found to be under the influence of alcohol.

With the Appellant’s removal from the vehicle, he was “life-flighted” by helicopter to the hospital and treated. Also, blood was drawn and found to contain .14% alcohol. Thereafter, the Appellant was charged with driving while under the influence, homicide by vehicle while under the influence of alcohol and homicide by vehicle, reckless driving. A trial by jury followed in which the Appellant was found guilty as charged. A sentence of 3 to 6 years imprisonment was imposed for homicide by vehicle while under the influence of alcohol. A “Motion In Arrest Of Judgment And For A New Trial” was filed by counsel for the Appellant in which, as is relevant herein, it was alleged at Points 7 and 8, respectively:

The verdicts were against the weight of the evidence in that only testimony from actual personal knowledge regarding the manner in which the subject vehicle was being driven at the time of the accident established that the vehicle was being driven in a normal and safe manner.
The verdicts were against the weight of the evidence in that the only evidence offered on the issue of who was driving the subject vehicle at the time of the accident was circumstantial and counter-balanced by other circumstantial evidence tending to dispute the conclusion that Defendant was the driver, providing that the testimony of Jayne Kuhne [sic] was improperly admitted because of the Commonwealth’s failure to provide full disclosure to Defendant.

In an opinion and accompanying order dated September 15, 1989, the trial court denied the Appellant’s motion for post-verdict relief, and, with regard to Points 7 and 8, found that the contentions were “nothing more than a rehash” of challenges assailing the sufficiency of the evidence found wanting by the trial court. An appeal in forma pauperis to this Court followed, pending which the Appellant was placed on $40,000.00 bail.

In a Pa.R.App.P. 1925(b) statement the Appellant reasserted, inter alia, his Point 7 “against the weight of the evidence” argument. As before, the trial court dismissed the claim as an “attack [on] the decisions of the finders of fact” addressed previously, and, thus, not meriting any additional discussion.

Five issues were argued before and heard by a panel of this Court docketed at No. 745 HBG 1989. With the concurrence of the entire Court, however, the case was certified for en banc consideration to assess whether appellate authority exists to “review challenges to the weight of the evidence”, one of the five issues posited for examination before the initial 3-judge panel.

I find it necessary to address only the “weight of the evidence” argument, and my inquiry begins with Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973), wherein a second degree murder conviction for the beating death of the Defendant’s 6V2-month-old stepdaughter was affirmed.

On appeal, the Defendant contended, inter alia, that the “verdict was against the weight of the evidence”. Before responding to this claim, the Paquette Court held that the evidence was sufficient to allow the finder-of-fact to conclude that the child’s head injury and resultant hematoma were a direct and substantial factor in her death.

Additionally, evidence of causation while in the Defendant’s custody and the presence of motive were deducible from the physical evidence (the attending physician’s testimony to the injuries sustained to vital portions of the victim’s body) to discount the Defendant’s sufficiency of the evidence argument.

In disposing of the “weight of the evidence” argument, the Supreme Court found that the Defendant’s two theories in support thereof (the baby fell from a couch and the genetic history of the infant allegedly indicated that death resulted from injuries during an epileptic seizure) were unsubstantiated by the record, and, therefore, did not require the trial judge to direct a verdict of acquittal. As such, the Court observed:

On appellate review of a criminal conviction, we will not weigh the evidence and thereby substitute our judgment for that of the finder of fact. To do so would require an assessment of the credibility of the testimony and that is clearly not our function.

451 Pa. at 257, 301 A.2d at 841 (Citations omitted).

The rationale in Paquette was re-affirmed in Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976), which dealt with the Defendant’s (a Dr. Lois Farquharson’s) conviction of conspiring with a Ms. Burnette to shoot a Dr. Weingrad.

Ms. Burnette was the sole witness for the Commonwealth to the events leading to the fatal wounding of Dr. Weingrad, a case predicated against the Defendant on vicarious liability as a consequence of shared criminal intent and the existence of a conspiracy between the Defendant and Ms. Burnette.

The Defendant contended that Ms. Burnette’s testimony was so unreliable and untrustworthy that the jury should have rejected it as not being credible. The jury’s reliance upon such testimony, as argued by the Defendant, justified the award of a new trial. In denying the requested relief, the Supreme Court remarked that:

Traditionally under our system of jurisprudence, issues of credibility are left to the trier of fact for resolution. While there may be some legitimacy for a trial court, who has also observed the witnesses as they testified, to consider the weight of the evidence and to that extent review the jury’s determination of credibility, there is surely no justification for an appellate court, relying solely upon a cold record, to exercise such a function.
“On appellate review of a criminal conviction, we will not weigh the evidence and thereby substitute our judgment for that of the finder of fact. To do so would require an assessment of the credibility of the testimony and that is clearly not our function.”
This concept, however, must be distinguished from an equally fundamental principle that a verdict of guilt may not be based upon surmise or conjecture. Following this principle, courts of this jurisdiction have recognized that were evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding.

467 Pa. at 59-60, 354 A.2d at 550 (Citations omitted).

The Court in Farquharson went on to highlight the difference between Commonwealth v. Bennett, 224 Pa.Super. 238, 303 A.2d 220 (1973), and the evidence confronting it. In Bennett, the testimony of a single individual was held to be so contradictory as to render it incapable of reasonable reconciliation, and, therefore, the verdict could not be sustained. In contrast, in Farquharson, the Defendant’s own version of the events surrounding the shooting, when viewed in conjunction with the admittedly biased account of Ms. Burnette (as the actual perpetrator and her plea of guilty to murder generally where sentence had not yet been imposed), “was sufficient to provide an indicium of trustworthiness to the testimony of ... Burnette on the critical issue sufficient to permit the question to be properly left to the trier of fact. * * * Restated, from the statements of [the Defendant] at trial and to the police upon her arrest, the jury was provided an independent basis for finding that the alleged ... conversation concerning the shooting ... did in fact take place. Thus, the only fact then to be resolved was the position taken by [the Defendant] in that conversation, a fact clearly appropriate for a jury to determine.” Id., 467 Pa. at 63 & n. 11, 354 A.2d at 551-52 & n. 11.

To the same effect, see Commonwealth v. Holmes, 486 Pa. 415, 406 A.2d 510 (1979), wherein the Defendant challenged a victim’s testimony (a Jessie Wallace) as replete with contradictions and omissions, and at odds with other witnesses present during the occurrence leading to the shooting death of Bernard Pette and the wounding of Mr. Wallace by the Defendant.

The Holmes Court conceded that “unreliable and contradictory” evidence, rendering a verdict based thereon pure conjecture, would not be permitted to stand despite the axiom that credibility was entrusted to the fact-finder. Upon a review of the prosecution’s testimony in the case, the court held that “the weight to be given to the testimony of Wallace was properly left to the jury” since it was neither unreliable nor contradictory so as to convert the verdict into a product of conjecture.

Moreover, the Holmes Court found that the asserted contradictions were more fictional than substantive. And, “even accepting the presence of factual discrepancies in the Commonwealth’s evidence,” the Court pointed out that the result sought by the Defendant (a challenge to the sufficiency of the evidence seeking a discharge) was not mandated “since that fact reflected] upon the weight of the evidence not its admissibility.” Id., 486 Pa. at 420 n. 1, 406 A.2d at 512 n. 1, citing Commonwealth v. Kahley, 467 Pa. 272, 290, 356 A.2d 745, 754 (1976), cert. denied, 429 U.S. 1044, 97 S.Ct. 746, 50 L.Ed.2d 757 (1977).

The “weight” to be assigned to the testimony is for the finder-of-fact and not a matter of appellate scrutiny. Accordingly, the Defendant’s sufficiency claim, which interjected the unreliability of Wallace’s testimony as the Achillees’ heel of the case, was found to be meritless after a review of the testimony proved sufficient on its face to convict, and any contradictions went to the weight to be assigned the evidence and not its exclusion from the finder-of-fact’s consideration. Cf. Commonwealth v. Brantner, 486 Pa. 518, 522 n. 2, 406 A.2d 1011, 1013 n. 2 (1979) (A weight of the evidence argument questions the jury’s determination of the credibility of the witnesses; there is no justification for an appellate court to exercise such a function).

Consistency in the application of the weight of the evidence argument, as an assessment reserved to the finder-of-fact (which under Farquharson included a trial judge who had observed the witnesses while testifying) was acknowledged by Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982), a case in which an assault on a first degree murder conviction was made on sufficiency grounds (negative results of a paraffin test) construed as a motion for a new trial claim that the verdict was against the weight of the evidence, a matter committed to the sound discretion of the trial court.

As a prelude to the decision, Farquharson’s admonition against a weighing of the evidence (i.e., substituting an appellate court’s judgment for that of the finder-of-fact) as a credibility assessment in an appellate format was recounted and endorsed, with the caveat that a verdict premised upon surmise or conjecture was not to be tolerated.

The unanimous Court in Pronkoskie concluded that, even assuming conflicting evidence on the question of the negative paraffin test, the jury was free to accept one expert’s opinion (that the gun powder could have been rubbed off to cause the negative results) over that of another (that the powder could not have been removed) in finding the Defendant guilty. Likewise, the Court observed that the negative results of testing for glass or ceramic particles on the Defendant’s clothing went to the weight of the evidence, an argument the review of which was within the trial court’s discretion to evaluate in a post-verdict context.

In dictum, the Court added that such an argument (as to the negative glass and ceramic particles test) was unavailing to undermine evidence of the specific intent to kill. It would have been for the jury to weigh the probative effect of such evidence inasmuch as there was no evidence that the perpetrator would have been likely to come in contact with such particles.

Finally, with Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987), a case in which the Defendant appealed his death sentence for the strangulation of his wife, the Court reaffirmed its longstanding position that the appellate courts are not the finder of the truth, nor is it within their province to assess the credibility of the testimony. See Commonwealth v. Woodhouse, 401 Pa. 242, 261, 164 A.2d 98, 108 (1960).

At trial, the Defendant’s efforts to convince the jury that he acted either in the heat of passion or under a diminished capacity brought on by his consumption of alcohol on the night of the killing, discounting the deliberate and premeditated nature of the homicide, proved to be unpersuasive.

The Court in Nelson responded to the Defendant’s averment that the evidence was not legally sufficient to establish his specific intent to kill by looking to the act itself: When the victim’s life was not extinguished by the assault with a hammer and a chisel, the assailant secured an electric cord to complete the act.

As to the protest that the verdict was against the weight of the evidence, the Court wrote:

Unlike the challenge of legal sufficiency of the evidence, the complaint that the verdict was against the weight of the evidence requires an assessment of the credibility of the testimony offered by the Commonwealth. Commonwealth v. Brantner, 486 Pa. 518, 522 n. 2, 406 A.2d 1011, 1013 n. 2 (1979); Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976). It is a rule of this Commonwealth that an appellate tribunal should not entertain a challenge to the weight of the evidence since their examination is confined to the “cold record.” Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Farquharson, supra; Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). However, where the penalty of death is imposed we will consider such a complaint.

514 Pa. at 271 n. 3, 523 A.2d at 733 n. 3. Accord Commonwealth v. Wallace, 522 Pa. 297, 314-15, 561 A.2d 719, 728 (1989). Obligated by the imposition of death to address the Defendant’s “weight of the evidence” argument, the Court put into perspective the role of the fact-finder as one endowed with the authority to believe any, all or none of a party’s evidence, be it the prosecution or the defense.

True to such axiom, the Supreme Court refrained from interjecting itself into a credibility assessment mode, a function traditionally reserved to the arbiter-of-fact and “not [to] be disturbed unless the failure to do so would be tantamount to a miscarriage of justice ... [brought about] where the quality and/or quantity of the evidence clearly d[id] not support the verdict____” Id., 514 Pa. at 273, 523 A.2d at 734. Rather, the Court merely examined the allegations proffered (diminished capacity and heat of passion defenses) in a “weight of the evidence” form as a question of credibility rightfully left to the jury, and in a post-verdict forum for the trial judge to resolve. Id.

Absent any indication that the quantum or quality of the evidence was marred so as to convert the verdict to a miscarriage of justice, the judgment of sentence was left intact.

To the extent that this Court has taken it upon itself to respond to challenges on appeal assailing a verdict as being against the weight of the evidence, and looking beyond the admonition in Commonwealth v. Nelson, supra, to the contrary, I view such rulings to be deviations from established case law. See, e.g., Commonwealth v. Badman, 398 Pa.Super. 315, 325-27, 580 A.2d 1367, 1372-73 (1990); Commonwealth v. Pirela, 398 Pa.Super. 76, 83-84 & n. 7, 580 A.2d 848, 852 & n. 7 (1990); Commonwealth v. Jenkins, 396 Pa.Super. 395, 578 A.2d 960 (1990); Commonwealth v. McLean, 396 Pa.Super. 23, 578 A.2d 4 (1990).

It must be recalled that a pure challenge to the weight of the evidence calls into question the judgment of the finder-of-fact necessitating an assessment of the credibility of the witnesses, a function never intended to be performed by an appellate tribunal save in death penalty cases. See Wallace, supra; Nelson, supra; Pronkoskie, supra. But, this weight of the evidence/credibility analysis is to be distinguished from the basic precept that a verdict is not permitted to stand in the face of evidence which, in quality and/or quantity, falls short of the standard of proof necessary to justify a conviction. This determination was never intended by the Pennsylvania Supreme Court decisions to be excised from appellate inquiry. See Pronkoskie, supra; Farquharson, supra.

If the assault upon the verdict is framed as being against the weight of the evidence, the unequivocal language in Nelson, supra, cited with stark clarity in Wallace, supra, would require us to label the matter an “assessment of the credibility of the testimony” presented by the prosecution, an area which an appellate court should refrain from examining. The Majority appears to ignore such a pronouncement.

It is not for Superior Court to minimize a practice described by the Supreme Court as a “rule” which has been followed repeatedly from as early as the 1960 decision in Commonwealth v. Woodhouse, supra, and coming full circle in Wallace, supra.

The Majority’s argument that the Nelson/Wallace cases’ reference to the non-reviewability of a weight of the evidence claim is of no force or effect because it was dicta is untenable.

In Nelson/Wallace, the Supreme Court was not confronted with a weight of the evidence claim in the sense that it needed to be responded to under traditional preservation/reviewability grounds. Nonetheless, the Court took the occasion to reaffirm its long-standing objection to addressing “weight of the evidence” allegations in the context where challenges to credibility are made, a subject more appropriately reserved for the trier-of-fact.

Moreover, it is beyond cavil that the Nelson Court, but for the imposition of the sentence of death upon the Defendant seeking appellate review, would not have addressed the Defendant’s heat of passion and diminished capacity arguments under the “weight of the evidence” rubric. To the same effect see Wallace, supra, 522 Pa. at 315, 561 A.2d at 728.

Accordingly, I would hold that in those instances where an attack upon the verdict is couched in “weight of the evidence” terms, in contradistinction to a claim that the evidence is so inconsistent and contradictory so as to render the verdict the product of mere surmise or conjecture, no issue is preserved for review under the legend: “Weight of the evidence”. See Wallace, supra; Nelson, supra; Pronkoskie, supra; Commonwealth v. Bennett, 224 Pa.Super. 238, 303 A.2d 220 (1973); cf. Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) (en banc) (Boilerplate post-verdict motions challenging the sufficiency and/or weight of the evidence preserve no issue for review). To the extent that the Majority holds to the contrary, I disagree and I would find that, in compliance with the “rule” reaffirmed by the Nelson/WallaceCowct (proscribing review of “weight of the evidence” claims on appeal), the Appellant’s “weight of the evidence” argument succumbs to the Nelson/Wallace prohibition. It reads:

Were the verdicts against the weight of the evidence in that the only testimony from actual personal knowledge regarding the manner in which the subject vehicle was being driven at the time of the accident established that the vehicle was being driven in a normal and safe manner?

I would deem such a contention to be of the type proscribed appellate scrutiny by Nelson/Wallace and its predecessors as a credibility challenge to be resolved by the finder-of-fact and not an appellate tribunal.

I discern a common thread running through the Supreme Court cases touching upon the issue posed for our consideration, i.e., where testimonial or physical evidence exists which, if believed by the trier-of-fact, is sufficient to sustain a verdict, it is not for an appellate court to interpose itself into the weighing of the evidence. The exception exists where the quantity and/or quality of the evidence is such that the verdict is the product of surmise or conjecture. In those instances, an appellate court will not hesitate to involve itself to let justice prevail. See Pronkoskie, supra; Bennett, supra.

Unlike the Majority, I would refrain from doing so at bar because I do not find the preservation of a reviewable issue under the “weight of the evidence” appellation, the underlying allegations of which more appropriately equate with a challenge to the sufficiency of the evidence.

Because the Majority has endorsed the review of a “weight of the evidence” claim, which under the particular facts here I believe to be at odds with the Nelson/Wallace line of cases, I dissent.

CIRILLO and HUDOCK, JJ. join this concurring and dissenting opinion.

      . The appellant has raised four other issues on appeal which have been properly adjudicated by the court below in its opinion and supplemental opinion by Keller, PJ. We adopt those opinions in disposing of appellant’s issues one through four.

      . The Pennsylvania Supreme Court has long held that a new trial may be granted on the grounds that the verdict is against the weight of the evidence. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977). See also, Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972); Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983); Commonwealth v. McFadden, 402 Pa.Super. 517, n. 2, 587 A.2d 740, n. 2 (1991).

      . In the case sub judice, the court below found that the challenges to the weight of the evidence were in effect challenges to the sufficiency of the evidence.

      . In referring to Nelson and Wallace, supra, we stated in Commonwealth v. Eddowes, 397 Pa.Super. at 560-561, 580 A.2d at 774:
      Nevertheless, these cases do not expressly preclude us from addressing a weight of the evidence claim. Furthermore, neither of these cases involved a direct challenge to the weight of the evidence; therefore, this pronouncement is dictum rather than binding authority. This Court has traditionally reviewed weight of the evidence claims; accordingly, we will continue to address the merits of such claims until directed to the contrary by our Supreme Court. Commonwealth v. Jenkins, 396 Pa.Super. 395, 578 A.2d 960 (1990)
      also concluded that Nelson and Wallace do not prohibit us from considering weight of the evidence arguments. See also, Orsini v. State Farm Insurance Co., 399 Pa.Super. 144 n. 2, 581 A.2d 1378 n. 2 (1990), wherein we stated: "However, we do not believe that the court intended, by the passing statements made in these two cases [Nelson and Wallace], to abrogate all review for weight of the evidence.”

      . The majority also cites Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240 (1991) for the proposition that exercises of the trial court’s discretion when granting a new trial are reviewable by appellate courts. I believe Powell is clearly distinguishable. The trial court in Powell, sua sponte, granted a new trial in the interests of justice because it determined that the defendant had been coerced by the court to waive his right to a jury trial. A challenge to the weight of the evidence was not presented in Powell. Thus, though Powell stands for the proposition that the exercise of the trial court’s discretion in sua sponte granting a new trial in the interest of justice is reviewable, it does not follow that our Supreme Court meant to contradict its prior statements in Nelson and Wallace that the trial court’s exercise of discretion in disposing of a challenge to the weight of the evidence is not reviewable.

      . Congressman Charles A. Wickliffe of Kentucky, as quoted in: Funk, A Hog On Ice & Other Curious Expressions, Harper & Row, 1985.

      . Trial judge found the Appellant guilty of reckless driving.


author: CAVANAUGH, Judge. HUDOCK, Judge,

text:
    597 A.2d 122
    COMMONWEALTH of Pennsylvania, Appellee, v. R. David ENGLISH, Appellant.
    Superior Court of Pennsylvania.
    Argued April 9, 1991.
    Filed Sept. 20, 1991.
    Petition for Allowance of Appeal Denied Jan. 30, 1992.

      Douglas N. Engelman, Williamsport, for appellant.

      Robert W. Ferrell, Asst. Dist. Atty., Williamsport, for Com.
    Before ROWLEY, President Judge, and CAVANAUGH, CIRILLO, OLSZEWSKI, MONTEMURO, BECK, TAMILIA, POPOVICH and HUDOCK, JJ.
   CAVANAUGH, Judge.

Before us is an appeal from the judgment of sentence entered following a plea of guilty by appellant R. David English. Pursuant to a plea agreement, the charge of theft by deception was withdrawn and appellant was sentenced for theft by failure to make required disposition of funds. Appellant argues that his plea was not voluntary and knowing in that he was not aware of the elements of the offense to which he pleaded guilty. We find his guilty plea to be knowing and voluntary and we affirm.

Appellant was sentenced to a term of five to twenty-three months incarceration for his role in soliciting funds for a local business directory. “Information Please” was a corporation made up of appellant and his family. The corporation solicited advertisements for a local, Williamsport area, business directory to be published in January 1987. There were three payment plans utilized by Information Please. The first utilized an escrow account. Advertisers would deposit monies into the escrow account under agreement that they would be returned if the directory was not published by March 15, 1987. The second plan required a lump sum payment for which the customer received a ten per cent discount. The third plan required one third the price at the time the contract was signed, one third at the time proofs were presented, and one third upon publication. More than $56,000 was deposited in the corporate operating account of which, over $42,000 was paid to appellant and his family in salaries. As of March 14, 1987 the directory was not published and the bank informed appellant that it was returning the escrow monies pursuant to the agreement. At that time appellant consulted an attorney about filing for bankruptcy.

Appellant contends that the lower court erred in denying his motion to withdraw his guilty plea. The burden placed on a defendant in such a motion increases significantly after sentencing.

In order to permit the withdrawal of a guilty plea after sentence has been entered, there must be a showing of prejudice that results in a manifest injustice to the defendant. Commonwealth v. West, 336 Pa.Super. 180, 485 A.2d 490 (1984), Commonwealth v. Middleton, 504 Pa. 352, 473 A.2d 1358 (1984). A defendant who attempts to withdraw a guilty plea after sentencing must carry the substantial burden of showing manifest injustice which is imposed in recognition that a plea withdrawal can be used as a sentence testing device. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982).

Commonwealth v. Vance, 376 Pa.Super. 493, 499, 546 A.2d 632, 635 (1988). A demonstration of manifest injustice requires a showing that the plea was involuntary or was entered without knowledge of the charge. Commonwealth v. Warren, 307 Pa.Super. 221, 453 A.2d 5 (1982). When determining whether such a showing has been made, this court must look to the totality of the circumstances attendant on the entry of the plea. Commonwealth v. Shaffer, Supra.

The elements that make up the offense of theft by failure to make required disposition of funds are set out in 18 Pa.C.S.A. § 3927:

A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required disposition.

Appellant argues that he has established manifest injustice because he was not properly informed of the elements of the offense with which he was charged particularly the second element. We disagree. The record establishes that appellant knew the elements of the offense when he entered his guilty plea. During the colloquy the court stated that at trial the Commonwealth would have to prove “that you obtained this money upon agreement or subject to a known legal obligation to make specific payments or to make a specific disposition of it____” This is a correct statement of the second element as defined in 18 Pa.C.S.A. § 3927.

Appellant argues that since he was unaware of a legal obligation to make certain disbursements, mens rea is lacking. This is not the law. The statute requires the appellant to have received the money under agreement or subject to a known legal obligation. In Commonwealth v. Crafton, 240 Pa.Super. 12, 367 A.2d 1092 (1976), a travel agent took funds as payment for a chartered trip, commingled those funds with working funds, and failed to maintain enough to pay the carrier airline for the trip. With respect to the second element of the offense this court stated:

The testimony at trial showed that the participants in the trip did not expect appellant to provide services herself, but, rather, expected her to make arrangements with others although they did not know whom. Appellant’s counsel brought this out several times on cross-examination. Appellant argues that this proves that appellant did not prove appellant took the money subject to a duty to disburse. We think the evidence shows the opposite, that appellant took the money knowing that she would have to disburse the funds to others. Appellant conceded at trial that the element was present and we so find.

Id., 240 Pa.Superior Ct. at 17, 367 A.2d at 1095. We see no distinction between what was established in Crafton, and what was established here. Appellant solicited funds from various businesses for the publication of a directory. Appellant had received funds under agreement to publish the directory and was to pay a third party to print this directory. When it came time to publish the directory, the funds solicited had been paid to appellant and members of his family in salaries. All the elements required by statute were established in appellant’s written and oral guilty plea colloquies.

It is understandable that some confusion prevails due to the reporting of prior cases dealing with this offense. Although Commonwealth v. Crafton, 240 Pa.Super. 12, 367 A.2d 1092 (1976) correctly states and applies the law in the official Superior Court Reports, the Atlantic Reporter version of the opinion incorrectly states the first two elements of the offense as:

1) The obtaining of property of another;
2) Subject to an agreement of known legal obligation upon recipient to make specified payments or other disposition thereof.

The statutory provision defines the first two elements using the words:

[a] person who obtains property upon agreement, or subject to a known legal obligation____

By substituting “of” for “or” an entirely new meaning is given the statute. Had the statute required the property to be obtained under agreement of known legal obligation, perhaps there would be some merit to this appeal. However the statute requires only that property be received under agreement or known legal obligation. It is understandable that some confusion has resulted due to the misstatement of law contained in the Atlantic Reporter, but this court is constrained to apply the statute as it appears at 18 Pa.C.S.A. § 3927.

The fact that appellant was not sentenced to probation, as he had expected, does not establish the manifest injustice that is required before this court can allow his guilty plea to be withdrawn after sentencing. We cannot say that the guilty plea was involuntary or entered without knowledge of the charge. Commonwealth v. Warren, 307 Pa.Super. 221, 453 A.2d 5 (1982). During the plea colloquy, appellant had the benefit of present counsel, the court correctly stated the law, and appellant indicated that he understood the charges. Appellant appears not so much dissatisfied with his guilty plea as he is disappointed with his sentence. The post sentence withdrawal of a guilty plea was never intended as a sentence testing device. Commonwealth v. Shaffer, Supra. No manifest injustice is shown simply because appellant did not receive the sentence he expected.

Judgment of sentence affirmed.

Dissenting opinion filed by HUDOCK, J., joined by MONTEMURO, BECK and POPOVICH, JJ.

HUDOCK, Judge,

dissenting:

I respectfully dissent. The majority mischaracterizes Appellant’s complaint on appeal. The issue is not, as stated by the majority, whether “[Appellant] was not properly informed of the elements for which he was charged particularly the second element.” Majority Opinion at p. 460. Such a characterization of the issue focuses on the words and conduct of the trial court and the Commonwealth in informing Appellant of the nature of the charge brought against him. It does not focus, as it should, on Appellant’s understanding and acknowledgement of the charge as expressed by him on the record.

The elements of the crime of Theft By Failure to Make Required Disposition of Funds Received are as follows:

1. The obtaining of the property of another;
2. Subject to an agreement or known legal obligation upon the receipt to make specified payments or other disposition thereof;
3. Intentional dealing with the property obtained as the defendant’s own; and
4. Failure of the defendant to make the required disposition of the property.

Commonwealth v. Ohle, 503 Pa. 566, 581, 470 A.2d 61, 69 (1983) quoting Commonwealth v. Crafton, 240 Pa.Super. 12, 16, 367 A.2d 1092, 1094-95 (1976); 18 Pa.C.S.A. § 3927.

As stated by Appellant, the issue on appeal is whether Appellant failed to “acknowledge that he had 'an agreement or known legal obligation’ to dispose of the money in a particular fashion.” (Appellant’s Brief at p. 9). So phrased, this claim necessarily calls into question whether a factual basis for the plea was established on the record. Such an inquiry is mandatory. Commonwealth v. Reno, 303 Pa.Super. 166, 449 A.2d 630 (1982). To establish a factual basis for the plea, the trial court is required to determine whether the facts acknowledged by the defendant constitute the prohibited offense. Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984). As stated by Mr. Justice McDermott in Anthony:

This salutary requirement is to prevent a plea where in fact the legal requirements have not been met; and, name and define the offense, supported by the acts, so the defendant will know the legal nature of the guilt to which he wishes to plead.

Id., 504 Pa. at 559, 475 A.2d at 1307.

A careful review of the record reveals that the only facts acknowledged by Appellant were that he had collected the monies, with the intent of publishing a directory, and had used some of these funds, excluding the funds held in escrow, to prepare the directory. As a necessary part of undertaking the task of publishing, Appellant acknowledged that he paid salaries to his employees who also happened to be members of his immediate family. These acknowledged facts do not, in my view, constitute the prohibited offense. Thus, the trial court erred in accepting the plea since Appellant did not knowingly enter it. Appellant has, therefore, established “manifest injustice” and should be allowed to withdraw his plea.

This case does not present a similar factual scenario as that presented in Commonwealth v. Crafton, 240 Pa.Super. 12, 367 A.2d 1092 (1976), where a travel agent took funds as payment for a trip, commingled them with working funds, and subsequently failed to maintain enough funds to pay the airline carrier, or the facts presented in Commonwealth v. Turrell, 526 Pa. 42, 584 A.2d 882 (1990), where an attorney commingled funds and thus failed to keep client’s funds, entrusted to escrow, inviolate. There is no indication in the present case that Appellant commingled any funds held in escrow. Unlike Crafton and Turrell, an additional obligation rested upon Appellant after collecting the funds for the directory; rather than holding money to buy airline tickets or in escrow until making the directed payment, Appellant had to create and produce the product for which he solicited the funds. How can any reasonable business man or woman accomplish such a feat without spending any money earmarked for the venture?

The difficulty in finding that the facts acknowledged by Appellant constitute the prohibited offense is the fact that Appellant allegedly solicited the funds to “print” a directory but, of necessity, needed to use some of these same funds to “publish” the directory. While the participants in the colloquy sometimes use the terms “print” and “publish” interchangeably, in common parlance “publish” has a broader meaning than “print”. To “publish” a work involves many production functions such as advertising, sales, and administration as well as the actual printing of it. A careful reading of the plea transcript demonstrates this inherent difficulty:

[Defense Counsel]: Your Honor, just to comment in regard to what [the A.D.A.] has indicated, first, I would indicate that at the preliminary hearing only four people would have indicated that there was an escrow that they were promised that their monies would be put into an escrow account and it wasn’t — I think we should state on the record [Appellant] specifically denies that fact and, in fact, we have contracts signed by at least some of those four which would indicate to the contrary that they had actually agreed to the one third, one third, one third plan, we’re not going to acknowledge or admit today that there was any intentional deception in terms of telling a particular client that monies were going to go into an escrow account and that he failed to put them into that escrow account, that’s not what we’re admitting to, what were admitting to isn’t what the Court can find.
THE COURT: Is using the money that was not agreed to put into the escrow account for his own personal purposes rather than for publishing a directory.
[Defense Counsel]: Yes, Your Honor, I think it should be stated for the purpose of sentencing although I’m fully aware that ignorance of the law is no excuse and he’s still responsible for those actions, we are not in this guilty plea colloquy admitting or acknowledging that this was intentional that he intentionally took the money and at the time he took the money had no intention to publish the directory, what we are saying is that he failed to use the money for that particular purpose, I think it’s important to note that.
THE COURT: Then I think you just talked yourself right out of the guilty plea, one of the requirements is that [Appellant] intentionally is his conscious object and purpose dealt with the property of his own and failed to make the required disposition and if there was no intention on his part I cannot accept the plea.
[Defense Counsel]: Where the intention comes in, Your Honor, he took the money and used the money and did not specifically use the money for its intended purpose.
THE COURT: But now you’re saying this is intention and there either was or was not intention on his part to use this money as his own and failed to make the required disposition that intention was either there or it was not there. If you’re stating for him and he agrees to your statements that it was not there from the recitation of the facts you gave me I could certainly find that that intention was there from the statement that there was no intention coupled with his statement that there was no— couple of his statements that his problem began when he realized that the escrow account had been mailed back and then no longer had the money, your statement there was no intention to deceive anybody or to use the property as his own he intended to do this all along the required intent is not there for this kind and I cannot accept the plea.
[A.D.A.]: Your Honor, if I could—
[Defense Counsel]: If I could speak to that I opened up this discussion, let me explain it. He’s not charged with Theft by Deception that at the time he took the money he deceived these individuals.
THE COURT: No, it’s—
[Defense Counsel]: What he’s charged with is Theft by Failure to Make Required Disposition.
THE COURT: One of the elements of that charge is that [Appellant] intentionally dealt with the property obtained as his own and failed to make the required disposition. [Defense Counsel]: And according to the statement that he took the money and used it, paid the money out in salaries and used the money on behalf of the English family during that time without using the money for the publication of the directory is the crime.
THE COURT: I would agree with that, but I thought you were saying that there was no intention to do that. [Defense Counsel]: He intentionally used the money from the time he began to collect it through March 15th of 1987, he used the money and paid that money out throughout the course of that time to his family.
THE COURT: And failed to make the required disposition by failing to print or produce the directory.
[Defense Counsel]: Yes. What I’m saying, Your Honer, is he intended throughout the course as he was using this money he still felt that he could financially publish.
THE COURT: That’s a matter for argument at sentencing.
[Defense Counsel]: I just thought it was appropriate to bring it up at this time for the guilty plea because that is our primary argument at the sentencing.
THE COURT: I understand what your argument will be at sentencing, you had me thoroughly confused. [A.D.A.], do you have any questions?
[A.D.A.]: Your Honor, I would just state that the reason the Commonwealth was willing to take the plea to the Theft By Failure to Make Required Disposition is that, I think that there may be some validity to the Defense argument that in the initial instance when he first began to collect money his intentions may have been honest, but as time went along and it did not financially fly, he began to use the money for his own purpose.

(N.T. 3/22/89 at pp. 21-25).

Had Appellant already composed the directory and had it ready for printing, I would find that the subsequent collection of funds, and improper use of them, would constitute the prohibited offense. So, too, if he had used the funds for purposes other than publishing the directory, such as luxurious vacations, cars, or investments in the stock market. The final statement above, made by the Assistant District Attorney, totally mischaracterizes the facts acknowledged by Appellant. There never was an acknowledgment of Appellant that he used the funds other than for legitimate production costs such as salaries.

As stated above, the facts in this case are not such that the Appellant was given funds to hold inviolate, commingled them, and then later failed to disburse them in a manner agreed to by the other party. I find the facts acknowledged by Appellant to be similar to those presented to this Court in Commonwealth v. Austin, 258 Pa.Super. 461, 393 A.2d 36 (1978). In Austin, a contractor received advance money for the purchase of materials on a construction contract. The defendant performed for two months when he realized that he had underestimated the job. Having run out of money, the defendant stopped work on the project. Although some of the advance money was not spent on materials, the evidence showed that all of the money was spent in a manner which could be construed to have been necessary for the completion of the job.

Initially, in Austin, this Court, per the Honorable William F. Cercone, found that the first above-enumerated element was not met as it was not believed that the acceptance of advance money on a construction contract constituted the property of another. Citing to Commonwealth v. Bartello, 225 Pa.Super. 277, 301 A.2d 885 (1973), this Court stated that “the title as well as the ownership of the money passed to the defendant.” Commonwealth v. Austin, 258 Pa.Super. at 467, 393 A.2d at 39. The funds solicited in the present case are also properly characterized as advance money for a service which is to be provided in the future, 1. e., to prepare, produce and print a telephone directory. As the funds at issue were not placed in escrow, I would find that these funds did not constitute “property of another.” § 3927.

■ The Austin court next found that there was insufficient evidence as to the second element enumerated above, i.e., subject to an agreement or known legal obligation upon receipt to make specified payments or other disposition. In Austin, the Commonwealth argued that the defendant violated the criminal statute by failing to use the entire sum of money to purchase materials. Upon reviewing the documentary evidence, this Court found that while the defendant was certainly obligated to ultimately purchase the materials necessary to complete the work, the evidence failed to establish, beyond a reasonable doubt, that the defendant was legally obligated to utilize the advance payment solely for the purchase of construction materials. This discussion gets to the real issue in the present case. The evidence of the contracts or agreements, either verbal or written, are scarce in the present record. As stated above, it is my view, upon review of the entire guilty plea colloquy, that the funds that were solicited and not placed in escrow were not given for the specific purpose of printing the directory, but rather, constitute contributions to the general production costs of the directory, or “publishing” costs.

As to the third element, the intentional dealing with the property as the defendant’s own, the Austin court again found that the evidence was once again insufficient since the expenditures made by the defendant could have been construed to have been necessary for the ongoing operation of his sole proprietorship and his completion of the project. Once again, in the case sub judice, the monies paid out in salaries by Appellant were obviously part of the production costs of the directory. Thus, I would find that it was not knowingly acknowledged at the plea colloquy that Appellant used these funds for his own purposes.

In discussing the final element, the failure to make the required disposition of funds received, the Austin court held that the cumulative effect of the lack of evidence as to the three prior elements was highly probative of the defendant’s lack of criminal intent. The court reiterated its earlier statement that while the defendant “may have to answer for his actions in a civil forum, [the defendant’s] conduct does not constitute a criminal offense.” Commonwealth v. Austin, 258 Pa.Superior Ct. at 471, 393 A.2d at 41. The earlier statement made by the court is as follows: “[H]is duty was to perform the services under the contract and failure to perform was a breach of that contract with its proper remedy in a civil forum.” Id., 258 Pa.Superior Ct. at 467, 393 A.2d at 39. In the present case, Appellant clearly acknowledged his continuing intention to publish the directory had he been financially able to do so. He also acknowledged, via his attorney, that he had performed some work on the project, including the submission of proofs to several of his clients. These acknowledged facts do not constitute the crime to which he pleaded guilty.

The effect of the majority opinion is to make criminal the use of funds for general operating purposes of a business when those funds are received in exchange for a product to be produced and delivered in the future. In effect, the recipient of any such funds becomes a guarantor of the success of his business.

I would reverse the order of the trial court and remand to allow Appellant to withdraw his guilty plea.

MONTEMURO, BECK and POPOVICH, JJ. join this dissenting opinion.

      . In Commonwealth v. Ohle, 291 Pa.Super. 110, 435 A.2d 592 (1981), this court quoted the incorrect, Atlantic Reporter, version of the Crafton, opinion. Ohle, 291 Pa.Superior Ct. at 121, 435 A.2d at 597 (citing Commonwealth v. Austin, 258 Pa.Super 461, 393 A.2d 36 (1981)). The Supreme court in Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983) correctly cites Crafton and the statute.

      . From the transcript of the guilty plea it appears that appellant expected a sentence of probation. The plea agreement provided that the commonwealth would not argue against such a sentence.

      . Appellant also challenges discretionary aspects of sentencing. Since he failed to include in his brief a concise statement setting out a substantial question as to the appropriateness of the sentence under the sentencing code and the Commonwealth raised an objection to this failure, we cannot address this issue. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

      . While I also agree that Crafton, as reported in the Atlantic Reporter, misquotes the criminal statute at issue, and may have caused confusion below, I believe that this confusion on the part of the trial court and defense counsel only bolsters a finding that the plea was unknowingly made.

      . The Austin court also distinguished the facts with which it was presented from those of Commonwealth v. Crafton, supra:

      In Commonwealth v. Crafton, [supra ], a travel agent received money which she was required to turn over to a travel wholesaler as payment for a scheduled tour. This procedure made the travel agent exactly what her title says — an agent of the plaintiffs in turning their money over to a third person. This is an entirely different situation from the one before us where appellant received advance money on a construction contract.

        Commonwealth v. Austin, 258 Pa.Super. at 467, 393 A.2d at 39.

      . I find the Commonwealth’s argument that the above quoted excerpt from the colloquy came after the plea was entered and therefore to be of no effect, to be without merit. As noted by the majority, when determining whether a showing of manifest injustice has been made, this Court must look to the totality of the circumstances attendant upon the entry of the plea. Majority Opinion at p. 124, citing Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). It is my belief that the subsequent exchange between the trial court and defense counsel demonstrated that the earlier perfunctory exchange between the trial court and Appellant was not truly representative of the facts acknowledged by Appellant. The fact that Appellant truly intended on publishing the directory at all times, was not as characterized by the trial court and defense counsel, a matter for sentencing, but was the pivotal issue in determining whether the acts acknowledged by Appellant constituted the crime charged.