author: CIRILLO, Judge: OLSZEWSKI, Judge,

text:
    654 A.2d 1136
    Ellen TAGNANI, Appellant, v. Sylvano TAGNANI.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1994.
    Filed Feb. 15, 1995.

      Elizabeth Forman, Philadelphia, for appellant.
    Matthew P. Kelly, Hazelton, for appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Luzerne County. We affirm.

The parties, appellant Ellen Tagnani (‘Wife”) and appellee, Sylvano Tagnani (“Husband”) were granted a bifurcated divorce on June 22,1989. Economic claims were heard before a Master. Husband filed exceptions to the Master’s report and Proposed Order. The trial court upheld the Master’s recommendations with the exception of the following: (1) the cash award to Wife in the amount of $50,793.23 was reversed; (2) the alimony award to Wife was reduced to $750.00 dollars per month, indefinitely; and (3) the award of $10,000.00 in counsel fees to Wife was reversed. Wife filed this appeal and raises the following issues for our review:

1. Did the trial court commit reversible error by failing to defer to the Master on the following issues of credibility:
a. finding that two Northeastern Bank accounts were not marital assets,
b. including in the marital estate $60,000.00 that Wife holds in trust for her daughter and granddaughter,
c. rejecting the Master’s finding that Wife borrowed $66,000.00 from Thomas Maher, and
d. rejecting the Master’s findings regarding Wife’s medical condition.
2. Did the trial court commit reversible error by modifying Wife’s alimony award to $750.00 per month?
3. Did the trial court commit reversible error by eliminating the $50,793.00 cash award to Wife?
4. Did the trial court commit reversible error by eliminating counsel fees and costs awarded to Wife?

Wife contends that the trial court erred in reversing some of the Master’s recommendations, where those recommendations were based on findings of credibility. Wife argues that where the credibility of the parties is in issue, the trial court is bound by the Master’s findings.

Notwithstanding the fact that the Master observes and hears the testimony of the witnesses, the trial court is not bound by the master’s recommendations. Murphy v. Murphy, 410 Pa.Super. 146, 153-54, 599 A.2d 647, 651 (1991), appeal denied, 530 Pa. 633, 606 A.2d 902, cert. den., — U.S. -, 113 S.Ct. 196, 121 L.Ed.2d 139 (1992). “In reviewing the trial court’s determination, we must keep in mind that the court was free to accept or reject the parties’ testimony.” Sergi v. Sergi, 351 Pa.Super. 588, 597, 506 A.2d 928, 933 (1986) (citation omitted). “Although the master’s report is entitled to great weight, that final responsibility for making the [equitable] distribution [of property] rests with the court. Our review is thus based on the court’s distribution of property.” Trembach v. Trembach, 419 Pa.Super. 80, 86, 615 A.2d 33, 36 (1992) (citing Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986)).

The determination of whether an asset is part of the marital estate is a matter within the sound discretion of the trial court. Perlberger v. Perlberger, 426 Pa.Super 245, 263-64, 626 A.2d 1186, 1196 (1993) (citing Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983)). An abuse of discretion is only found where the trial court does not follow legal procedure or misapplies the law. If supported by credible evidence, we will not reverse a trial court’s findings of fact. Perlberger, supra.

Wife contends that the Master erred: in finding two Northeastern Bank accounts were not marital assets; by including in the marital estate $60,000.00 that Wife holds in trust; by rejecting the claim that Wife received a $66,000.00 loan; and by eliminating the $50,793.00 cash award to Wife.

Wife testified as to the existence of a Northeastern Bank account, a Northeastern Bank certificate of deposit, and a trust fund for her daughter and granddaughter in the amount of $60,000.00. Wife further testified that she received a $66,000.00 loan. The trial court found no corroborating documentation in the certified record to support these contentions. Husband denied that the two bank accounts existed at the time of separation, that a trust fund existed, and that Wife received a $66,000.00 loan.

In Wayda v. Wayda, 395 Pa.Super. 94, 104-05, 576 A.2d 1060, 1065 (1990), the court declined to accept the undocumented testimony of wife that she had an agreement with her father to do work around the house in exchange for a reduction in a debt owed to him. In the absence of written evidence, the trial court is “free to assign whatever weight it chose to this testimony.” Wayda, 395 Pa.Super. at 106-07, 576 A.2d at 1066. See also Sergi v. Sergi 351 Pa.Super. 588, 597-98, 506 A.2d 928, 933 (1986) (where husband and wife disagreed as to the amount of premarital cash contributed by wife to their joint account, the trial court was free to accept or reject either parties’ testimony).

In the instant case, as in Wayda, the trial court chose not to acknowledge the existence of the bank accounts, the trust fund, or the loan in the absence of other written documentation. “In the absence of an error of law or an abuse of discretion, this court is bound by the findings of fact of the lower court.” Wayda, 395 Pa.Super. at 106-07, 576 at 1066 (citation omitted). After a careful review of the record, we find no abuse of discretion. Wayda, swpra.

Wife next contends that the trial court erred by eliminating the $50,793.00 cash award to her. The trial court found that this cash award, in addition to the assets retained at the time of separation as well as the amount of money and assets received from the distribution of property, was not equitable. “Absent an abuse of discretion on the part of the trial court, we will not reverse an award of equitable distribution.” Murphy, 410 Pa.Super. at 158-59, 599 A.2d at 653. After a careful review of the record, we find no abuse of discretion. Murphy, supra.

Wife further asserts that the trial court erred in rejecting the Master’s findings regarding her medical disability. The issue of physical impairment and the ability to earn money is a factual one. O’Callaghan v. O’Callaghan, 530 Pa. 176, 180-81, 607 A.2d 735, 737 (1992). Evidence was presented that Wife had worked as a private duty nurse, earning $140.00 per day. Wife was also a licensed real estate agent.

Wife offered no medical testimony regarding her alleged medical disability. Wife’s condition “did not concern matters with which a lay person would be familiar,” nor was the identity of Wife’s physician(s) known to Husband so that her testimony could have been refuted. Verdile v. Verdile, 370 Pa.Super 475, 482-83, 536 A.2d 1364, 1368 (1988). Additionally, there was no evidence of the receipt of Social Security disability. Remick v. Remick, 310 Pa.Super. 23, 30-32, 456 A.2d 163, 167 (1983).

Further, Wife admitted her physician never instructed her not to work. Therefore, we find no abuse of discretion in the trial court’s finding that Wife was not suffering from a medical disability. Perlberger, supra, 426 Pa.Super. 245, 626 A.2d 1186.

Next, Wife argues that the court erred in modifying her alimony award to $750.00 per month. Our standard of review of an award of alimony is limited to a determination of whether the trial court abused its discretion. Nemoto v. Nemoto, 423 Pa.Super. 269, 273-75, 620 A.2d 1216, 1218 (1993) (citations omitted). There must be clear and convincing evidence of an abuse of discretion. Id. at 275-77, 620 A.2d at 1219. An abuse of discretion exists where the law is “overridden or misapplied, or if the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record.” Id.

Indefinite alimony in the amount of $2000.00 per month was awarded to Wife by the Master. The trial court determined that the Master erred in calculating Wife’s net monthly income to be $647.00. The Master had failed to take into account the monthly dividend and interest income received, by Wife as evidenced by her Income Tax Returns for the years 1984 through 1990.

Further, considering Wife’s skills as a private duty nurse, licensed real estate agent, and the sizable equitable distribution award, the trial court determined the amount of alimony required to effectuate economic justice would be $750.00 per month. The- trial court did not abuse its discretion in this determination. Nemoto, supra.

Finally, Wife argues that the court erred in eliminating her award of counsel fees. Wife stated that her counsel fees and expenses, including expert witnesses, totaled $55,694.12. In reviewing an award of counsel fees, “this court is limited to a determination of whether the trial court abused its discretion.” Verdile, 370 Pa.Super. at 482-83, 536 A.2d at 1368-1369. The court must consider “the payor’s ability to pay, the requesting party’s financial resources, the value of the services rendered, and the property received in equitable distribution.” Perlberger, 426 Pa.Super. at 284, 626 A.2d at 1207. Where the distribution of property is sufficient, both parties may be required to pay their own legal fees. Adelstein v. Adelstein, 381 Pa.Super. 221, 224, 553 A.2d 436, 437 (1989).

The trial court evaluated the financial situation of the parties. Based on the amount of money Wife will receive by way of equitable distribution and alimony, the court determined Wife had the capacity to pay her own legal fees. We find no abuse of discretion. Verdile, supra, 370 Pa.Super. 475, 536 A.2d 1364.

Order affirmed.

OLSZEWSKI, J., files a concurring and dissenting opinion.

OLSZEWSKI, Judge,

concurring and dissenting:

I concur with the well-reasoned majority disposition on all of the issues raised by appellant regarding the Master’s credibility determinations, the alimony award, and counsel fees. I must respectfully dissent, however, on the issue of the $50,793 cash award.

Appellant first claims that the trial court erred in not accepting the Master’s credibility determinations on four specific issues: two Northeastern Bank accounts, a $60,000 trust, a $66,000 loan, and Wife’s physical disability. I agree with the majority that the trial court did not abuse its discretion in making its own findings on these four issues.

Regarding the alleged bank accounts, trust, and loan, the Master found Wife’s testimony credible and determined that each of these items indeed existed, despite Husband’s denials. While a Master’s report is entitled to the fullest consideration on issues of credibility, a trial court need not blindly accept credibility determinations when there is no supporting evidence. See Herwig v. Herwig, 279 Pa.Super. 65, 69-70, 420 A.2d 746, 748 (1980). Since Wife is asserting the existence of certain financial arrangements (bank accounts, trusts, and loans), she ought to be required to produce some sort of documentary evidence to support their existence. Unlike a claim of marital infidelity, where supporting evidence is unlikely and the case boils down to a “swearing match,” Hargrove v. Hargrove, 252 Pa.Super. 120, 156-57, 381 A.2d 143, 146-47 (1977) (en banc), a claim regarding the existence of a bank account, a trust, or a loan is normally evidenced by written documents. It is not unreasonable to require the party asserting the existence of such financial arrangements to produce the supporting documentation. Since Wife’s testimony was not supported by any documentation, the trial court did not abuse its discretion by refusing to accept the Master’s findings in favor of Wife.

Similarly, where one party is claiming a physical disability that cannot be easily viewed or verified by a lay person, it is not unreasonable to require supporting evidence beyond the claimant’s own self-serving testimony. Cf. Verdile v. Verdile, 370 Pa.Super. 475, 482-84, 536 A.2d 1364, 1368 (1988) (finding claimant’s testimony enough when it concerned problems with which a lay person would be familiar); Remick v. Remick, 310 Pa.Super. 23, 30-32, 456 A.2d 163, 167 (1983) (en banc) (finding claimant’s testimony, along with evidence of Social Security disability benefits, sufficient to support claim of physical disability). In the instant case, the only evidence that Wife presented concerning her alleged disability was her own testimony. Since Wife’s alleged disability concerned physical ailments which could not be viewed or verified by a lay person, the trial court did not err in finding that the Master’s credibility determination in favor of Wife was not supported by sufficient evidence.

I also concur with the majority on the issues regarding the alimony and counsel fees. The trial court acted properly in reviewing the relevant factors, and did not abuse its discretion in adjusting the awards.

I disagree, however, with the majority’s treatment of the $50,793 cash award. The Master awarded Wife $368,224 in marital assets, plus a cash award of $50,793. This $50,793 cash award was comprised of the value of Philadelphia Electric stock shares, one-half of the proceeds from the sale of certain real estate, and one-half of the rental payments from Husband’s business. It appears that the trial court eliminated the $50,793 cash award in the erroneous belief that it was in addition to the stock, the real estate proceeds, and the rental proceeds. The trial court wrote:

Husband’s next exception relates to the Master erring in his award of an excessive amount of cash to Wife, including the award to Wife of the value of Philadelphia-Electric Stock in the amount of $17,000.00, one-half of the proceeds from the sale of real estate, one-half of rental payments for Husband’s business and a cash distribution of $50,793.00 above the items she retained at the time of separation.

Opinion 10/14/93, at 16-17. This statement indicates that the trial court believed that Wife was awarded four items beyond the marital assets in her possession: the stock, the real estate proceeds, the rental payments, and the $50,793. The court intended to eliminate the cash, but presumably intended to retain the award of the stock, the real estate proceeds, and the rental payments. Since we cannot be sure of the trial court’s intended distribution, I would remand for a determination of whether Wife should receive the $50,793 cash award.

      . The Master noted that "a large amount of the assets were unilaterally divided between the parties at the time of separation.” He then proposed that Wife be awarded $419,017.23 in equitable distribution of property. The intended equitable distribution of property recommended by the master is clear from the record. The trial court's intention to eliminate the cash award to wife, notwithstanding the language referred to in the dissent, is likewise clear from a careful review of the record. Nevertheless, "as an appellate court, we may affirm the decision of the lower court by reasoning different than that used by the lower court.” McKenna v. Mooney, 388 Pa.Super. 298, 302, 565 A.2d 495, 496 (1989). The trial court’s marital property distribution scheme results in an equitable distribution award to Wife in the amount of $368,224.00.

      . In Perlberger, Wife received $438,191.00 in equitable distribution. The trial court found that there were bills from one firm for $283,-000.00 in fees plus $44,955.00 for costs. Considering all the relevant factors, it denied the award of counsel fees and costs. In the instant case, wife has outstanding bills for counsel fees and costs in the amount of approximately $55,000.00.'

      . Wife claimed to have a heart valve problem, a herniated disc, macular degeneration of the right eye, and sporadic bleeding. Opinion 10/14/93, at 14.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    654 A.2d 1141
    COMMONWEALTH of Pennsylvania v. Mark ARCH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 16, 1994.
    Filed Feb. 15, 1995.

      Lenora M. Smith, Harrisburg, for appellant.
    Edward Marsieo, Asst. Dist. Atty., Harrisburg, for the Com., appellee.
    Before CAVANAUGH, POPOVICH and SAYLOR, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Dauphin County following appellant’s conviction for unlawful possession of drug paraphernalia. Appellant now contends that trial counsel was ineffective for failing to file a motion to suppress. After careful review, we reverse, vacate the judgment of séntence and remand for a new trial.

Examination of the record reveals the following: On July 24, 1991, Officer Scott Neal, while on routine patrol, heard a report that a white Toyota with a Virginia registration was being used by three black males wanted in an assault incident. Neither the license plate number nor the model type of the Toyota was known to Officer Neal. There was also no physical description of the perpetrators other than they were three black males. Later, Officer Neal observed a white Toyota with Virginia license plates in the parking lot of the Cloverleaf Motel. Officer Neal contacted the communications center to confirm what type of vehicle was used in the assault. The communications center confirmed the earlier report and also informed Officer Neal that a handgun was involved in the assault.

Officer Neal then radioed for additional officers and positioned his patrol car so he could observe the white Toyota. While waiting for support to arrive, he observed appellant approach the front of the motel. Officer Neal believed that appellant, upon seeing the patrol car, turned around and walked back to the rear of the motel. Officer Neal never observed appellant approach the white Toyota or take any action that would indicate that appellant was connected with the car. A few minutes later, Officer Neal observed appellant walk parallel to the motel and enter the motel office and then return to his room. Officer Neal never observed which room appellant entered.

A sweep of the area was made when the support officers arrived. During this sweep, appellant was once again walking around from the rear corner of the motel. The police stopped appellant and asked him in which room he was staying. According to Officer Neal, appellant stated that he was staying in Room 14. The police did not question appellant about the earlier assault incident or attempt to ascertain if appellant was connected with the white Toyota. During this initial stop, appellant also stated that another black male and a black female were staying in the room. Appellant was then placed in a police car for identification purposes.

The police then proceeded to Room 14 where a black male and a black female were ordered out of the room at gunpoint. Searching for what they believed to be an armed suspect, the police observed, in plain view, glassine packets which are commonly used for packaging cocaine. They also observed a shoulder holster, a firearms carrying case, fifty rounds of .25 caliber ammunition and several razor blades. All of this contraband was seized.

At appellant’s bench trial, the Commonwealth offered the testimony of Officer Neal and the paraphernalia that was seized in the motel room. On cross-examination Officer Neal admitted that he could not positively connect the white Toyota in the parking lot with the one used in the assault. There was also no evidence that any other police officer established that the white Toyota in the parking lot was the car used in the assault. Appellant testified on his own behalf and denied that he was staying in Room 14 of the motel. Appellant also testified that he was charged with assault arising out the incident reported earlier that evening, but these charges were dismissed.

The court convicted appellant of unlawful possession of drug paraphernalia. Trial counsel, in post-verdict motions, asserted his own ineffectiveness for failing to file a motion to suppress the contraband. These motions were denied, and the court sentenced appellant to a period of five to twelve months imprisonment. This timely appeal followed.

Appellant’s now contends that trial counsel was ineffective for failing to file a motion to suppress the evidence. We agree.

The standard applied when attacking counsel’s competence is well known: “The ineffectiveness of counsel is shown where there is merit to the underlying claim, the course chosen by counsel does not have a reasonable basis, and the defendant shows prejudice.” Commonwealth v. Graham, 522 Pa. 115, 118, 560 A.2d 129, 130 (1989). Where the ineffectiveness claim is based on the failure of counsel to move for suppression of evidence, “the defendant must establish that there was no reasonable basis for not pursuing the suppression claim and that if the evidence had been suppressed, there is a reasonable probability the verdict would have been more favorable.” Commonwealth v. Melson, 383 Pa.Super. 139, 145, 556 A.2d 836, 839 (1989). Thus, we must first determine if there is merit to the claim that the evidence obtained in the hotel room should have been suppressed.

A police officer may approach a citizen or may briefly detain a citizen, without probable cause, for investigatory purposes.- Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Prengle, 293 Pa.Super. 64, 437 A.2d 992 (1981). In order for such a stop to be reasonable under the Fourth Amendment to the United States Constitution, the police officer must point to specific and articulable facts “which in conjunction with rational inferences deriving therefrom” warrant the initial stop. Prengle, supra, 68, 437 A.2d at 994. “This standard is met ‘if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot ... ’ ” Commonwealth v. Espada, 364 Pa.Super. 604, 607, 528 A.2d 968, 969 (1987), quoting Commonwealth v. Hicks, 434 Pa. 153, 158-59, 253 A.2d 276, 279 (1969). A police officer cannot reach such a conclusion based upon an “unparticularized suspicion” or “hunch.” Terry, supra, 392 U.S. at 27, 88 S.Ct. at 1883. If the reasons for the stop meet the aforementioned standards, the police officer may conduct a limited search of the suspect if he reasonably believes that his safety or the safety of others is threatened. Id. at 27, 88 S.Ct. at 1883. A police officer need not personally observe the suspicious conduct leading to the reasonable belief needed for a Terry stop and may rely upon information received over the police radio to justify the initial stop. Prengle, supra, 293 Pa.Super. 68, 437 A.2d at 994; Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986). A major factor in justifying a Terry stop when the suspicious conduct has not been personally observed is the specificity of the description of the suspect. Jackson, supra, 438, 519 A.2d at 430. An illegal Terry stop or arrest can taint a reasonable search. See, e.g., Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Espada, supra, 364 Pa.Super. 607, 528 A.2d at 969.

Here, the police did not have the reasonable suspicion required to make the initial stop of appellant. The Commonwealth produced no evidence that appellant exhibited any behavior that would connect him with the white Toyota and arouse a reasonable suspicion by Officer Neal. Moreover, Officer Neal did not know whether the white Toyota in the parking lot was the one used in the assault. The police did not have a description of a suspect, and appellant did not display any suspicious behavior that would warrant a Terry stop. The mere fact that appellant walked back toward the rear of the motel after allegedly seeing Officer Neal did not constitute proper grounds for a Terry stop. Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973). Accordingly, the initial stop was illegal, and, as a result, the search of the motel room was tainted. Wong Sun, supra, 371 U.S. 471, 83 S.Ct. 407.

We held, in Commonwealth v. Williams, 298 Pa.Super. 466, 444 A.2d 1278 (1982), that proper grounds for a Terry stop did not exist where a suspect’s actions were much more suspicious than those of appellant in this ease. In Williams, a police officer stopped an individual who was riding a bicycle because the police officer had information that the individual was responsible for stealing several bicycles. Id. 468, 444 A.2d at 1279. After questioning the defendant and the defendant’s mother, the officer concluded that the bike was stolen and impounded the bicycle. Id. The impounded bicycle was subsequently identified by the burglary victim and she testified at the defendant’s trial.

We held that the stop was not justified under Terry and that the lowér court erred in denying appellant’s motion to suppress the testimony of a witness who identified the bicycle and testified that it had been stolen. Id. 471, 444 A.2d at 1280. We stated that there was no reasonable basis for the police officer to conclude that criminal activity was afoot. Id. “Common rumor or report,” without more, could not justify a stop. Id.

Here, appellant’s connection with the crime is more tenuous than the connection in Williams. Officer Neal possessed no information that’ would have connected appellant with the earlier assault. Appellant took no actions that could be viewed as connecting him with the white Toyota. Moreover, there is no evidence that the police had a description of the individuals involved in the assault. Accordingly, appellant’s underlying suppression claim is not without merit. See also, Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969) (holding that police did not have grounds for Terry stop simply because the defendant’s appearance was similar to the description given to police of the perpetrator of a recently reported crime and defendant was walking near the crime scene and not exhibiting any suspicious behavior); Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977), cert. denied, 435 U.S. 947, 98 S.Ct. 1533, 55 L.Ed.2d 546 (1978) (holding that police officer could not have had reasonable belief that criminal activity was afoot where defendant was merely walking along the edge.of the highway even though defendant was carrying no bags and had an unkempt appearance).

Because appellant’s underlying claim has arguable merit, we must determine whether the course chosen by appellant’s counsel had a reasonable basis. Graham, 522 Pa. 115, 560 A.2d at 130. In other words, we must determine why counsel neglected to file a motion to suppress the contraband seized during the search of the motel room.

The record reveals that trial counsel did not have a reasonable basis for his actions. In post-verdict motions, counsel asserted his own ineffectiveness for failing to file a motion to suppress the paraphernalia seized in the motel room. Thus, counsel lacked a reasonable basis for his actions. See, Commonwealth v. Schroth, 495 Pa. 561, 435 A.2d 148 (1981) (holding that counsel was ineffective for failing to file a motion to suppress and remanding for a suppression hearing).

Finally, appellant must establish prejudice to merit relief with an ineffectiveness claim. Graham, 522 Pa. 115, 560 A.2d at 130. Prejudice exists when “but for the arguably ineffective act or omission, there is a reasonable probability that the result would have been different.” Commonwealth v. Lott, 398 Pa.Super. 573, 581 A.2d 612 (1990), allocatur denied, 527 Pa. 663, 593 A.2d 839 (1991). In order to determine if prejudice existed, we must examine the entire record. Commonwealth v. Glover, 422 Pa.Super. 543, 619 A.2d 1357 (1993). Instantly, trial counsel’s actions were prejudicial to appellant. There is more than a reasonable probability that appellant would not have been convicted if the paraphernalia would have been suppressed. The Commonwealth’s only additional evidence was the testimony of Officer Neal. Appellant’s version of the incident contradicted Officer Neal’s version of the incident in important areas. Because appellant suffered prejudice from the admission of the paraphernalia, he must be granted a new trial. See, Melson, supra (Trial counsel was ineffective for failing to file a motion to suppress identification testimony of a witness because without the disputed testimony there was a reasonable probability that the outcome of the trial would have been different. The witness provided the only untainted testimony connecting defendant with the crime.); Commonwealth v. Corbin, 322 Pa.Super. 271, 469 A.2d 615 (1983) (holding that if trial counsel failed to file a motion to suppress, ineffectiveness would be established because failure to do so could not have a reasonable basis).

Reversed and remanded for a new trial. Judgment of sentence vacated. Jurisdiction relinquished.

      . 35 Pa.S.A. § 780-113(a)(32).

      . Appellant also contends that the evidence was insufficient to sustain his conviction for unlawful possession of drug paraphernalia. 35 Pa.S.A. § 780-113(a)(32) prohibits "[t]he use of, or possession with intent to use, drug paraphernalia for the purpose of ... preparing ... packing or otherwise introducing into the human body a controlled substance in violation of this act.” The evidence is sufficient when, "viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt." Commonwealth v. Carter, 329 Pa.Super. 490, 495-96, 478 A.2d 1286, 1288 (1984). Here, the evidence was sufficient to sustain the conviction because the Commonwealth presented evidence that the paraphernalia was seized in a motel room in which appellant was residing. See, Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983); Commonwealth v. Mudrick, 510 Pa. 305, 507 A.2d 1212 (1986).

      . Accord, Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970); Commonwealth v. Marcelonis, 284 Pa.Super. 46, 424 A.2d 1384 (1981)

      . The Commonwealth attempts to justify the entry and subsequent search of the motel room on the basis that "exigent circumstances” existed, excusing the need for a search warrant. See, Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980). The Commonwealth not only overlooks the Terry issue but also presents a flawed analysis of the circumstances that give rise to exigent circumstances. The Commonwealth contends that “exigent circumstances” alone will justify a warrantless entry and search of a dwelling.
      The Fourth Amendment to the United States Constitution and the Article I, section 8 of the Pennsylvania Constitution protect motel guests from unreasonable searches and seizures. Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115 (1993). In order to enter a dwelling without a warrant to make an arrest or conduct a search, the police must have probable cause as well as an exception to the warrant requirement. Commonwealth v. Govens, 429 Pa.Super. 464, 632 A.2d 1316 (1993) (citations omitted). Thus, the Commonwealth incorrectly asserts that exigent circumstances alone justified the warrantless entry and search of the motel room.


author: OLSZEWSKI, Judge:

text:
    654 A.2d 1146
    COMMONWEALTH of Pennsylvania, Appellant, v. James MAGNUM, Appellee. COMMONWEALTH of Pennsylvania, Appellee, v. James MAGNUM, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1994.
    Filed Feb. 17, 1995.

      Louis D. Lappen and Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for the Com.
    Lillian H. Ransom, Philadelphia, for James Magnum.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   OLSZEWSKI, Judge:

The Commonwealth appeals and James Magnum cross-appeals a judgment of sentence imposed upon Magnum for committing the following crimes: burglary, making terroristic threats, criminal trespass, possessing an instrument of crime, unlawful restraint, and simple assault. The Commonwealth claims that the trial court, when imposing sentence, failed to take into account the mandatory deadly weapon enhancement. Magnum, in his cross-appeal, argues that the evidence was insufficient to sustain a verdict finding him guilty of burglary. The trial court found that the Commonwealth did not preserve its appeal from the discretionary aspects of sentence by failing to timely file a motion for reconsideration of sentence.

On the morning of March 1, 1993, James Magnum broke into the residence of his former girlfriend, Ellen Patterson, and threatened her and her then-current boyfriend with a knife. During the ensuing argument, Magnum punched Ms. Patterson in the face. The boyfriend tried to call the police, but found that the phone was dead. He jumped out of a second-floor window and summoned the police from a pay phone. Meanwhile, Ms. Patterson fled from Magnum and hid in the basement. When Magnum found her there, he continued his threats. When the police arrived they began negotiations with Magnum, who eventually released Ms. Patterson unharmed.

In his cross-appeal Magnum argues that he did not have the requisite felonious intent, when entering the home, necessary to support a burglary conviction. When reviewing a sufficiency challenge we must view the evidence, and all inferences therefrom, in the light most favorable to the Commonwealth. Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992); Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984). In light of this standard, we believe that the element of intent was sufficiently supported by the evidence to sustain a guilty verdict beyond a reasonable doubt.

Burglary is defined as the act of entering or occupying a structure with intent to commit a crime therein. 18 Pa. C.S.A. § 3502. This intent must be formed contemporaneous to the entering. Commonwealth v. Russell, 313 Pa.Super. 534, 460 A.2d 316 (1983). Our Supreme Court has recently rejected a per se assumption that a sign of forced or unauthorized entry into a building alone automatically gives rise to an inference of an intent to commit a crime inside. Commonwealth v. Wilamowski 534 Pa. 373, 633 A.2d 141 (1993). Instead, the Supreme Court in Wilamowski adopted a “totality of the circumstances” test. Id. at 379-80, 633 A.2d at 144. In order to meet its burden of proof, the Commonwealth must establish additional evidence that goes beyond showing a mere breaking. Id. While Wilamowski emphasizes that “intent [cannot] ... derive from mere conjecture or surmise,” id., we have held that intent may be reasonably inferred from the circumstances. Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984); Commonwealth v. Simpson, 316 Pa.Super. 115, 462 A.2d 821 (1983); Russell, 313 Pa.Super. at 542-46, 460 A.2d at 321-22.

Using a “totality of the circumstances” test, we find that the evidence was sufficient to infer that Magnum had a felonious intent when he entered Ms. Patterson’s home. Magnum broke into the house through a locked garage. When he first encountered Ms. Patterson and her boyfriend, he pulled a knife from out of his coat pocket. N.T. 10/6/93 at 25-26. He told the boyfriend to get out of “his” house, even though he was neither a current resident of the house nor its owner, and proceeded to threaten the boyfriend. When Magnum cornered Ms. Patterson in the basement, he told her that “he really should f*** [Ms. Patterson] up for what [she] did to him.” Id. at 64-65. We find that this evidence was sufficient for a jury to infer that Magnum had the intent to commit a felony or felonies when he broke into the Patterson residence. See Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990) (determining that evidence of forced entry combined with crimes of murder and arson therein was sufficient to sustain a burglary conviction).

Before turning to the Commonwealth’s claim that the sentencing court failed to take into account the mandatory deadly weapons enhancement when determining the length of the sentence imposed, we first must examine whether or not the Commonwealth’s claim is waived for failing to timely file a motion to reconsider sentence. The sentence was imposed on January 13,1994. A written post-sentence motion to reconsider sentence must be filed no later than ten days after imposi-. tion of sentence. Pa.R.Crim.P. Rule 1410, 42 Pa.C.S.A. “The failure to do so waives any complaint concerning sentence that does not involve the lawfulness of the sentence itself.” Com monwealth v. Koziel, 289 Pa.Super. 22, 432 A.2d 1031 (1981). The purpose of the rule is to allow the sentencing court the first opportunity to modify its sentence. Id. at 24-25, 432 A.2d at 1032.

Normally, the ten-day period to file would have ended on January 23, 1994. January 23rd fell on a Sunday, however. “When any period of time is referred to in any statute ... [and] the last day of any such period shall fall on Saturday or Sunday ... such day shall be omitted from computation.” 1 Pa.C.S.A. § 1908. The period to file thus ended on January 24, 1994.

The sentencing court stated that it refused to hear the Commonwealth’s petition because a motion for reconsideration of sentence was not filed, and the Commonwealth did not object to the court’s calculations at the time of sentencing. Opinion, 4/13/94 at 5. The record does include a petition to reconsider sentence. Two different dates are stamped on the petition, however. On top is stamped “RECEIVED, January 25, 1994, Criminal Motion First Judicial District of Pennsylvania.” On the bottom the following is stamped:

TIMELY ACCEPTANCE ONLY JUDGE’S SIGNATURE REQUIRED.
ATTORNEY MUST RETURN MOTION TO ROOM 685 CITY HALL.

Petition Denied 1/25/94; R.R. at 6a. The date “1/24/94” is written in next to the phrase “Timely Acceptance Only.” After the words “CITY HALL” the notation “4:30 p.m.” and the initials “J.L.” are written in ink. The Commonwealth claims that this is proof that the motion was timely filed on the 24th. The trial court apparently believed, however, that the date stamp, marked “RECEIVED,” is evidence that the motion was not filed until the 25th, one day too late.

In Commonwealth v. Laskaris we held that even though a motion for a new trial and/or arrest of judgment was not filed with the court clerk within the required ten-day period, the motion was nevertheless timely filed when the appellant left the motion with the judge, and local practice precluded the court clerk from accepting the motion unless it was accompanied by an order of the court signed by a judge. 385 Pa.Super. 339, 561 A.2d 16 (1989), appeal denied, 525 Pa. 617, 577 A.2d 889 (1990). There, it was established that the standard practice in the county was for the clerk of courts to refuse documents for filing which did not contain an “Order of Court” with a judge’s signature. We held that because local practice was responsible for the delay in filing, the late filing would be excused. Id. 385 Pa.Super. at 345-47, 561 A.2d at 19. Our ratio decidendi was that “local procedural rules cannot be construed so as to be inconsistent with prevailing statewide rules.” Id. (citations omitted).

In Laskaris we found that a handwritten notation reading “Received 9/29/86-IT” was sufficient proof that appellant did leave the motion with a judge as claimed, and thus could have filed the motion in a timely fashion. Id. at 347-48, 561 A.2d at 20. The stamp “Timely Acceptance Only” by the clerk of courts in the present case served the same function as the receipt notation in Laskaris; both establish that the motions were timely filed with the court. The fact that the clerk of courts would not fully accept the motion without the judge’s signature, as attested to by the second stamp, is a procedural rule that only serves to place an additional burden on a party seeking to file a post-trial motion with the court. See id. As we stated in Laskaris, “[procedural rules are not ends in themselves, but means whereby justice, as expressed in legal principle, is administered. They are not to be exalted to the status of substantive objectives.” Id. (citing Feingold v. Septa, 512 Pa. 567, 517 A.2d 1270 (1986) (citations omitted)).

Having determined that the Commonwealth’s motion to reconsider was timely filed, we now turn to the issue of the mandatory deadly weapon enhancement. The question of whether or not it was an abuse of discretion for the sentencing court not to consider the mandatory deadly weapon enhancement is a challenge to the discretionary aspect of the sentence. See Commonwealth v. Scullin, 414 Pa.Super. 442, 607 A.2d 750, appeal denied, 533 Pa. 633, 621 A.2d 579 (1992). The Commonwealth claims that the sentencing court erred by not applying the enhancement and by failing to state for the record its reasons for so doing.

In order to preserve this claim for appeal, the Commonwealth must observe the following procedures: (1) a motion for reconsideration must be timely filed; (2) the Commonwealth must set forth any discretionary sentencing issues in its statement of questions presented per Pa.R.A.P. 2116(b); and (3) the Commonwealth must provide a concise statement of reasons for allowance of the appeal in accordance with Pa.R.AP. 2119(f). Id. 414 Pa.Super. at 446-48, 607 A.2d at 752; Commonwealth v. Penrod, 396 Pa.Super. 221, 578 A.2d 486, (1990). In meeting these requirements, the Commonwealth properly preserved its grounds for appeal.

We next must determine whether or not the 2119(f) statement demonstrates a substantial question that the sentencing court imposed a sentence that was inappropriate under the sentencing code. Scullin, 414 Pa.Super. at 446-48, 607 A.2d at 752. Issues relating to the sentencing court’s failure to consider the mandatory deadly weapon enhancement, in accordance with 204 Pa.Code § 303.4, have been held to be substantial questions. Id.; Commonwealth v. Reading, 412 Pa.Super. 239, 603 A.2d 197 (1992). The standard of review in assessing a substantial question regarding the discretionary aspects of sentence is an abuse of discretion. Scul lin, 414 Pa.Super. at 446-48, 607 A.2d at 752. A sentencing court, however, has no discretion to refuse to apply the deadly weapon enhancement. Id. at 450-52, 607 A.2d at 754; Commonwealth v. Septak, 359 Pa.Super. 375, 518 A.2d 1284 (1986); Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985). “In cases where the trial court erroneously calculates the starting point under the guidelines, this Court will vacate the sentence and remand for reconsideration of sentence.” Scullin, 414 Pa.Super. at 450-52, 607 A.2d at 754 (citations omitted).

In this case Magnum used a knife to threaten the victims and hold Ms. Patterson hostage. The knife is obviously a deadly weapon. See 18 Pa.C.S.A. § 2301 (defining a deadly weapon as any device or instrumentality calculated to produce serious injury or death when used in the manner intended). When a deadly weapon is used during the commission of an offense, 12 and 24 months are added to the minimum and maximum guideline sentencing range, respectively. 204 Pa. Code § 303.4(a). While a court may depart from the guidelines, it must first consider a range which includes the mandatory deadly weapon enhancement. Pa.C.Sent.3d 39 (August 1, 1988); Scullin, 414 Pa.Super. at 450-52, 607 A.2d at 754 (stating that the sentencing court must begin its calculations from the correct starting point). There is no evidence on the record that the sentencing court considered the deadly weapon enhancement in determining its calculations.

Magnum was given two consecutive 9- to 23-month sentences with work release, four concurrent 9- to 23-month sentences, and terms of probation of three years and five years to run consecutive to the other sentences and concurrently with each other. R.R. at 214a. The sentencing court found that the gravity offense score was 7 and the prior record score was O. Id. at 202a. It then correctly stated the sentencing guidelines for these scores: “a mitigated range of four to eight months, standard range of eight to twelve months and aggravated range of twelve to eighteen months.” Id.; see 204 Pa.Code § 303.9. If the deadly weapon enhancement was considered, however, the proper calculations would have been 16 to 32 months in the mitigated range, 20 to 36 months in the standard range, and 24 to 42 months in the aggravated range. A sentence of 9 to 23 months was therefore below the mitigated range. Even Magnum concedes that the sentencing court “stated the standard guideline ranges without including the deadly weapon enhancement.” Appellee’s reply brief at 7 (citations omitted).

•Because the sentencing court failed to consider the guidelines with the deadly weapon enhancement, the sentence must be vacated and the case remanded for resentencing. If the sentencing court then wishes to impose a sentence outside the guidelines, it may do so provided it places adequate reasons for the deviation on the record. This was not done in the present instance, in contravention of 42 Pa.C.S.A. § 9721(b).

For the foregoing reasons, the verdict finding Magnum guilty of burglary is affirmed, but the case is remanded for resentencing in accordance with the provisions of this decision. Jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 2706.

      . 18 Pa.C.S.A. § 3503.

      . 18 Pa.C.S.A. § 907.

      . 18 Pa.C.S.A. § 2902.

      . 18 Pa.C.S.A. § 2701.

      . Magnum asserts that this and similar references to "his” house during the incident shows that he lacked the requisite intent to commit a burglary, since he believed that he was authorized to enter the premises. Despite these statements, the jury was free to infer that Magnum did not really believe that the Patterson home was indeed "his.” Credibility determinations and the weight to be given to the evidence are within the province of the trier of fact. Commonwealth v. Taylor, 324 Pa.Super. 420, 423-26, 471 A.2d 1228, 1229-30 (1984). "[T]he fact finder is free to believe all, some, or none of the evidence.” Id. (citations omitted).

      . Apparently Magnum blamed Ms. Patterson for his being jailed for violating a Protection From Abuse Order.

      . The 1993 amendments to the Rules of Criminal Procedure have abrogated, in part, this proscription. A defendant’s post-sentence motion challenging a judgment of sentence may still be made, but failure to do so will not affect a defendant's right to appeal. Pa.R.Crim.P. Rule 1410, 42 Pa.C.S.A. Accordingly, "the defendant may chose to raise any or all properly preserved issues in the trial court, the appellate court, or both.” Id. at Comment. The new rule does not address or alter the Commonwealth’s right to appeal, however. Id.

      . The first day is excluded and the last day is included when calculating the run date for any statute. 1 Pa.C.S.A. § 1908.

      . The Commonwealth is correct in stating that failure to object to a length of sentence at the time of sentencing does not in itself per se waive the issue. “[A] discretionary sentencing issue is preserved for appellate review if raised either at the time of sentencing or in a motion to modify sentence.” Commonwealth v. Eyster, 401 Pa.Super. 477, 480, 585 A.2d 1027, 1029 (1991) (en banc) (citations omitted), appeal denied, 529 Pa. 646, 602 A.2d 857 (1992).

      . “In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing pursuant to section 2154 (relating to adoption of guidelines for sentencing) and made effective pursuant to section 2155, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.” 41 Pa.C.S.A. § 9721(b).


author: KELLY, Judge:

text:
    654 A.2d 1150
    COMMONWEALTH of Pennsylvania, Appellant, v. Wilfredo LOPEZ, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1995.
    Filed Feb. 21, 1995.

      Joan Weiner, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Jeremy Ibrahim, Philadelphia, for appellee.
    Before BECK, KELLY and HOFFMAN, JJ.
   KELLY, Judge:

In this appeal, we must determine whether a prima facie case of aggravated assault can be established by the Commonwealth against a person who fires eight bullets at the front door of an empty residence. After careful consideration, we hold that a prima facie case can be established because it is possible for the Commonwealth to present evidence supporting each element of aggravated assault against such a person. Specifically, a person who discharges a weapon into an empty residence can commit an aggravated assault if he possesses the requisite intent to cause serious bodily injury or bodily injury via the use of a deadly weapon to another, even though it is impossible for that person to actually cause such injury because of the absence of a person inside the residence. Therefore, we reverse the trial court’s quashal of-the aggravated assault charge leveled by the Commonwealth against appellee, Wilfredo Lopez, and reinstate that charge against him.

The relevant factual history and procedural posture of this case are as follows. At approximately noon on April 7, 1993, appellee approached his former paramour, Luz Balentin, from behind as Ms. Balentin opened the door to her 928 West Silver Street, Philadelphia, residence. Appellee grabbed Ms. Balentin by the arms and forced her inside of her residence. Appellee then pinned Ms. Balentin against the wall, proceeded to bite Ms. Balentin about the face, neck, and stomach areas, and said “that [Ms. Balentin] should forgive him and that he wanted to be with [her].” N.T. 5/3/93 at 7.

Ms. Balentin rebuked appellee’s advances towards her and declined appellee’s invitation to rekindle their romantic relationship. Consequently, appellee told Ms. Balentin that he would kill her if he had a gun. After hearing this threat on her life, Ms. Balentin pushed appellee away from her and fled into the streets. Appellee followed Ms. Balentin and told her that “today the battle begins.” Id. at 9. Appellee immediately proceeded to act out this “battle” by vandalizing Ms. Balentin’s son’s motor vehicle which was parked in the street near her residence. Appellee then told Ms. Balentin that “the war will continue” and drove away. Id. Ms. Balentin was in front of her residence when appellee fled.

Appellee returned to West Silver Street shortly after he had left Ms. Balentin standing in front of her residence. Appellee stood in front of 928 West Silver Street and proceeded to fire eight bullets at its front doors. These bullets went through the doors and into Ms. Balentin’s residence. Fortunately for Ms. Balentin, she did not return to her residence after appellee fled. Ms. Balentin hid in her neighbor’s residence as appellee shot at the front doors of her residence. No one was injured as a result of this incident.

On May 3, 1993, appellee’s preliminary hearing was held in Municipal Court. The Municipal Court determined that the Commonwealth established a prima facie case against appellee pursuant to its charges of simple assault, aggravated assault, recklessly endangering another person, terroristic threats, and criminal mischief. The Municipal Court dismissed the charges of burglary and criminal trespass leveled against appellee by the Commonwealth.

On May 13, 1993, appellee petitioned for quashal of the aggravated assault charge and the other charges leveled against him by the Commonwealth. Appellee claimed that the Commonwealth failed to establish a prima facie case against him with regard to the aggravated assault charge and the other charges. The Court of Common Pleas, on July 12, 1993, quashed only the aggravated assault charge, ruling that the Commonwealth failed to establish a prima facie case. The court reasoned that the Commonwealth’s case failed to allege sufficient facts to show that appellee intended to inflict serious bodily harm upon Ms. Balentin because she was not inside of her residence when appellee fired eight bullets at its front door. Trial Court Opinion at 3. The Commonwealth filed a timely appeal from the order quashing the aggravated assault charge.

The Commonwealth raises the following issue for our review:

PROPERLY VIEWED IN THE LIGHT MOST FAVORABLE TO THE COMMONWEALTH, DID THE EVIDENCE PRESENTED AT THE PRELIMINARY HEARING ESTABLISH A PRIMA FACIE CASE OF AGGRAVATED ASSAULT BY SHOWING THAT DEFENDANT PHYSICALLY ASSAULTED HIS FORMER GIRLFRIEND, THREATENED TO KILL HER, AND THEN FIRED NUMEROUS GUNSHOTS THROUGH HER FRONT DOOR?

Commonwealth’s Brief at 4.

The Commonwealth asserts that a prima facie case exists to support its charge that appellee committed the crime of aggravated assault. Specifically, the Commonwealth claims that Ms. Balentin’s testimony sufficiently proves that appellee attempted to cause her serious bodily injury or attempted to cause her bodily injury with a deadly weapon. To support, this claim, the Commonwealth argues that appellee’s state of mind is the critical factor which establishes a prima facie case of aggravated assault against him. The Commonwealth further argues that, under the circumstances, the absence of Ms. Balentin or any other person from Ms. Balentin’s residence is irrelevant in determining whether a prima facie case of aggravated assault lies against appellee. We agree.

The limited function of a preliminary hearing is to establish a prima facie case against the accused. Commonwealth v. Smith, 436 Pa.Super. 277, 290, 647 A.2d 907, 913 (1994); Commonwealth v. Fox, 422 Pa.Super. 224, 234, 619 A.2d 327, 332 (1993), allocatur denied, 535 Pa. 659, 634 A.2d 222 (1993). Aprima facie case consists of evidence produced by the Commonwealth which sufficiently establishes that a crime has been committed and that the accused is probably the perpetrator of that crime. Commonwealth v. McBride, 528 Pa. 153, 157-58, 595 A.2d 589, 591 (1991); Commonwealth v. Jury, 431 Pa.Super. 129, 138, 636 A.2d 164, 168-69 (1993); Pa.R.Crim.P. 141(d). In other words, the prima facie case in support of appellee’s guilt consists of evidence presented by the Commonwealth that, “if accepted as true, would warrant the trial judge to allow the case to go to the jury.” Commonwealth v. Austin, 394 Pa.Super. 146, 151, 575 A.2d 141, 143 (1990) (citing Commonwealth v. Wojdak, 502 Pa. 359, 367, 466 A.2d 991, 995-96 (1983)). Each element of the criminal offense charged must be supported by the Commonwealth’s evidence. Id. (citing Commonwealth v. Wojdak, supra at 369, 466 A.2d at 996-97). Proof of the accused’s guilt beyond a reasonable doubt, however, need not be established by the Commonwealth at a preliminary hearing. Id. (citing Commonwealth v. Snyder, 335 Pa.Super. 19, 23, 483 A.2d 933, 935 (1984)). The Commonwealth satisfies its burden at a preliminary hearing as long as it presents evidence that “establishes] sufficient probable cause to warrant the belief that the accused committed the offense.” Commonwealth v. McBride, supra 528 Pa. at 158, 595 A.2d at 591 (citing Commonwealth v. Wojdak, supra, 502 Pa. 359, 466 A.2d 991).

The statute defining the offense of aggravated assault pertinently provides as follows:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
******
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon----

18 Pa.C.S:A. § 2702(a)(1), (4). Criminal attempt occurs when a person, “with the intent to commit a specific crime ... does any act which constitutes a substantial step toward the commission of that crime.” 18 Pa.C.S.A. § 901(a). The statute defining the mens rea of intent states as follows:

(1) A person acts intentionally with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

18 Pa.C.S.A. § 302(b)(l)(i), (ii). The fact that the accused misapprehended the circumstances, thereby making it impossible for him to commit the crime attempted, is not a defense to an attempt crime. 18 Pa.C.S.A. § 901(b).

When no serious bodily injury results from the accused’s actions, the Commonwealth must prove that he attempted to cause another to suffer such injuries. Commonwealth v. Fierst, 423 Pa.Super. 232, 241, 620 A.2d 1196, 1201 (1993); Commonwealth v. Everett, 408 Pa.Super. 166, 169, 596 A.2d 244, 245 (1991), allocatur denied, 530 Pa. 639, 607 A.2d 250 (1992). See Commonwealth v. Elrod, 392 Pa.Super. 274, 277, 572 A.2d 1229, 1231 (1990), allocatur denied, 527 Pa. 629, 592 A.2d 1297 (1990) (proof that the accused attempted to cause serious bodily injury to another establishes crime of aggravated assault). Attempt, in the context of an assault, is established when the accused intentionally acts in a manner which constitutes a substantial or significant step toward perpetrating serious bodily injury upon another. Commonwealth v. Carter, 329 Pa.Super. 490, 497-98, 478 A.2d 1286, 1289 (1984); Commonwealth v. Mayo, 272 Pa.Super. 115, 127, 414 A.2d 696, 702 (1979). This intent need not be directed at a specific person. Commonwealth v. Fierst, supra 423 Pa.Super. at 241, 620 A.2d at 1201 (under the circumstances, aggravated assault existed where accused veered into oncoming traffic lane in attempt to cause collision with another motor vehicle). See Commonwealth v. Mosley, 401 Pa.Super. 537, 552, 585 A.2d 1057, 1065 (1991) (firing shots into crowded area constituted attempt to cause serious bodily injury). Moreover, if the accused intends to cause serious bodily injury to another, then proceeds to perform all of the acts necessary to do so, the accused can still be guilty of aggravated assault even though completing an aggravated assault is impossible. See Commonwealth v. Henley, 504 Pa. 408, 416, 474 A.2d 1115, 1119 (1984) (accused may be convicted of receiving stolen property even though property is not actually stolen). See also Commonwealth v. Smith, 426 Pa.Super. 144, 155, 626 A.2d 614, 620 (1993) (where appellant, with finger on trigger, pointed unloaded gun at victim, pushed victim to floor, and threatened to kill victim, sufficient evidence to support appellant’s aggravated assault conviction existed); Commonwealth v. Chance, 312 Pa.Super. 435, 443, 458 A.2d 1371, 1374-75 (1983) (where appellant pointed unloaded gun at victim and victim heard gun click several times, sufficient evidence to support appellant’s aggravated assault conviction existed); Commonwealth v. Bond, 261 Pa.Super. 311, 315-16 n. 2, 396 A.2d 414, 416 n. 2 (1978) (same).

Significantly, circumstantial evidence can prove that the accused intended to inflict serious bodily injury upon another. Commonwealth v. Fierst, supra 423 Pa.Super. at 241, 620 A.2d at 1201; Commonwealth v. Elrod, supra 392 Pa.Super. at 277, 572 A.2d at 1231 (citing Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978)). The finder of fact is free to conclude that the accused intended the natural and . probable consequences of his actions to result therefrom. Commonwealth v. Gerulis, 420 Pa.Super. 266, 282, 616 A.2d 686, 694 (1992), allocatur denied, 535 Pa. 645, 633 A.2d 150 (1993) (quoting Commonwealth v. Thomas, 465 Pa. 442, 447, 350 A.2d 847, 849 (1976)).

Instantly, the testimony presented by Ms. Balentin at appellee’s preliminary hearing clearly establishes a prima facie case of aggravated assault against appellee. If the facts presented by the Commonwealth at appellee’s preliminary hearing are presented at his trial, the trial judge would be warranted in allowing the jury to determine if appellee attempted to cause Ms. Balentin serious bodily injury or attempted to cause her bodily injury via the use of a deadly weapon. After being rejected' by Ms. Balentin, appellee threatened her life; he told her that he would kill her if he had a gun. Appellee continued to threaten Ms. Balentin’s safety as she watched him damage her son’s motor vehicle; he stated that he considered himself and Ms. Balentin to be engaged in “battle.” The last place appellee had seen Ms. Balentin before driving away after damaging her son’s motor vehicle was in front of her residence. As appellee drove away, he again threatened Ms. Balentin’s safety by telling her that the “war” would continue. This evidence unequivocally demonstrates appellee’s intent to harm Ms. Balentin; he considered himself to be at “war” with her.

Subsequently, shortly after the incident in front of Ms. Balentin’s residence had ended, appellee returned to West Silver Street. Appellee stood in front of Ms. Balentin’s residence, the last place where appellant had seen Ms. Balentin before he had driven away, and fired, eight bullets into it. A reasonable finder of fact could readily determine from the aforementioned circumstances that appellee intended to cause serious bodily injury to Ms. Balentin or intended to cause her bodily injury with a deadly weapon if the finder of fact concludes that appellee believed that Ms. Balentin was inside 928 West Silver Street when he shot at it. Accordingly, appellee could be convicted of aggravated assault for his actions on April 7, 1993.

Moreover, the fact that it was impossible for appellee to harm Ms. Balentin when he shot at her residence because she was at a neighbor’s residence does not necessarily prevent him from being convicted of aggravated assault. If the finder of fact does determine that appellee believed that Ms. Balentin was inside her residence, intended to seriously harm her or harm her with a deadly weapon, and attempted to do so by firing bullets through the front doors of her residence, then a conviction of appellee for aggravated assault would be warranted. Under this scenario, appellee would have intended to commit aggravated assault upon Ms. Balentin and would have performed all acts necessary .to do so. Appellee’s state of mind, not Ms. Balentin’s location, is the key to determining whether he committed aggravated assault upon her and appellee’s misconception of the facts cannot eliminate his criminal culpability. Therefore, the Court of Common Pleas erred when it dismissed the charge of aggravated assault against appellee because the Commonwealth presented a prima facie case at appellee’s preliminary hearing that appellee committed aggravated assault upon Ms. Balentin even though she was not in her residence when he fired at it.

Based upon the foregoing, the order of the Court of Common Pleas dismissing the charge of aggravated assault lodged by the Commonwealth against appellee is reversed and the charge is reinstated.

Order reversed; case is remanded for trial. Jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 2706.

      . 18 Pa.C.S.A. § 3304.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 3503.

      . Other jurisdictions have also concluded that intent to commit a crime coupled with the perpetration of all acts necessary to perform the crime constitutes criminal liability despite the fact that it is impossible to complete the crime. For example, in Indiana, an attempted murder may exist where a person exploded a pipe bomb on the ground floor of a residence even though it was impossible to kill the intended victim because she was asleep upstairs. Armstrong v. State, 429 N.E.2d 647, 653-54 (Ind.1982). Additionally, in New York, a person may be guilty of attempted murder where he shoots a victim who may be dead if that person believes that the victim is alive. Commonwealth v. Dlugash, 41 N.Y.2d 725, 395 N.Y.S.2d 419, 426, 363 N.E.2d 1155, 1161 (1977), on remand, 59 App.Div.2d 745, 398 N.Y.S.2d 560 (1977).


author: WIEAND, Judge.

text:
    654 A.2d 1156
    MI-LOR, INC., a Pennsylvania corporation and Jack Siskin, in his individual capacity and Marvin Trachtman, in his individual capacity, Appellants, v. Sarae DiPENTINO and Jerome Realty Co., Inc., a Pennsylvania corporation and Vincent Dipentino, in his individual capacity, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1994.
    Filed Feb. 21, 1995.

      Mark Charleston, Philadelphia, for appellants.
    Michael J. McElhatton, Philadelphia, for appellees.
    Before WIEAND, CIRILLO and TAMILIA, JJ.
   WIEAND, Judge.

In this action to recover damages for the wrongful use of civil proceedings, the plaintiff-tenants contended that the defendant-lessors had improperly defended an action to recover a rental deposit by asserting a counterclaim without probable cause and for purposes of harassment. When the trial court entered summary judgment in favor of the defendant-lessors, an appeal was filed by the plaintiff-tenants.

Prior to February, 1988, Mi-Lor, Inc. occupied premises 1222 East Hunting Park Avenue, Philadelphia, pursuant to a lease with the owner, Sarae DiPentino. This lease had been negotiated by DiPentino’s agent, Jerome Realty Co., Inc., a DiPentino family business. Before vacating the premises, MiLor requested and made arrangements for an inspection of the premises and a return of its security deposit, plus interest. When neither the landlord nor a representative of the landlord appeared at the appointed time, the tenant vacated the premises, locked the doors and returned the keys to Jerome Realty Co. Later the same day, Vincent DiPentino, the owner’s son and president of Jerome Realty, delivered to Mi-Lor a written request for the immediate removal from the demised premises of certain fixtures which had been used in the tenant’s dry cleaning business. When Mi-Lor denied any obligation to remove fixtures, the landlord refused to return the security deposit. When the tenant sued to recover its deposit, the landlord counterclaimed for the cost of removing the fixtures. The action was submitted to compulsory arbitration and resulted in an award in favor of the tenant for its security deposit and in favor of the landlord for the cost of removing fixtures. The tenant appealed the arbitration award, and the case was thereafter heard de novo by the court sitting without a jury. The court found in favor of the tenant on its claim and against the landlord on its counterclaim.

Still later, the tenant, together with Jack Siskin and Marvin Trachtman, filed this action to recover damages for the landlord’s assertion of its counterclaim, alleging that it had been without “reasonable cause or justification” and for the sole purpose of hindering, harassing and annoying the tenant in its effort to recover its security deposit. The defendants denied that they had acted in bad faith and argued that a favorable arbitration award had demonstrated probable cause for the counterclaim.

Summary judgment may properly be granted only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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.” Marks v. Tasman, 527 Pa. 132, 134, 589 A.2d 205, 206 (1991). See: Pa.R.C.P. 1035(b). An entry of summary judgment is appropriate only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989).

Wrongful use of civil proceedings is a tort which arises when a' party institutes a lawsuit with malicious motive and lacking probable cause. Ludmer v. Nernberg, 433 Pa.Super. 316, 323, 640 A.2d 939, 942 (1994). The tort is defined at 42 Pa.C.S. § 8351 as follows:

§ 8351. Wrongful use of civil proceedings
(a) Elements of action. — A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability, to the other for wrongful use of civil proceedings:
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.
(b) Arrest or seizure of person or property not required. — The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant to this subchapter.

The burden of proof is prescribed by 42 Pa.C.S. § 8354 as follows:

§ 8354. Burden of proof
In an action brought pursuant to this subchapter the plaintiff has the burden of proving, when the issue is properly raised, that:
(1) The defendant has procured, initiated or continued the civil proceedings against him.
(2) The proceedings were terminated in his favor.
(3) The defendant did not have probable cause for his action.
(4) The primary purpose for which the proceedings were brought was not that of securing the proper discovery, joinder of parties or adjudication of the claim on which the proceedings were based.
(5) The plaintiff has suffered damages as set forth in section 8353 (relating to damages).

In this case, it is clear that the counterclaim filed by the defendants in the prior action was ultimately decided in favor of Mi-Lor. To recover, however, the plaintiffs must prove each and every element of the tort by a preponderance of the evidence.

Whether the filing of a counterclaim by a defendant, who has been sued, constitutes “the procurement, initiation or continuation of civil proceedings” has not previously been decided by the appellate courts of this Commonwealth. After careful study, we conclude that the filing of a counterclaim may well constitute the “continuation” of a civil proceeding and that the harm intended to be prevented by the statute may also arise from the filing of a counterclaim for improper purposes. We observe, however, that an action for the wrongful use of a counterclaim demands that courts examine such claims closely, lest a defendant be punished for nothing more than defending himself or herself against a claim made by another.

A review of the record in this case causes us to agree with the trial court that there is no real issue regarding the existence of probable cause for the counterclaim or the propriety of the purpose for which the counterclaim was filed. The documents which the plaintiff-appellants have produced in this action and upon which they relied to defeat the counterclaim in the prior action suggest nothing more sinister or malicious than a legal dispute between the several parties and their lawyers. Whether the tenant was obligated to remove the fixtures from the demised premises was not so definitive that the landlord should be allowed to raise it in defense of the tenant’s action only at the risk of a second action for abusing the process.

Pa.R.C.P. 1035(d) provides that

“[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not respond, summary judgment, if appropriate, shall be entered against him.” Pa.R.C.P. 1035(d) (Emphasis added). Therefore, where a motion for summary judgment has been made and properly supported, parties seeking to avoid the imposition of summary judgment must show by specific facts in their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue for trial. See Overly v. Kass, 382 Pa.Super. 108, 554 A.2d 970 (1989) and Tom Morello Construction Co., Inc. v. Bridgeport Federal Savings and Loan Assn., 280 Pa.Super. 329, 421 A.2d 747 (1980).

Marks v. Tasman, supra 527 Pa. at 135, 589 A.2d at 206. In response to the defendant-appellees’ motion for summary judgment, the plaintiff-appellants submitted documents from the prior trial and their interpretation thereof. The trial court determined that the prior action “was litigation like any other, unmarked by any of the varieties of outrageousness required to sustain a lawsuit under the cited statute[].” Our own review gives us no basis for disagreement.

Order affirmed.

      . While not discussed by the parties, we observe that an action under 42 Pa.C.S. § 8351 cannot be maintained by one who was not a party to the underlying action; mere adversity of interest is not sufficient to establish standing. Rosen v. American Bank of Rolla, 426 Pa.Super. 376, 383, 627 A.2d 190, 193 (1993).

      . We observe that if the landlord's withholding of the deposit had been wrongful, the tenant would have been entitled to recover double the amount of the deposit in the prior action. See: Act of April 6, 1951, P.L. 69, § 512, as amended, 68 P.S. § 250.512.