author: BECK, Judge:

text:
    664 A.2d 983
    BOULEVARD ASSOCIATES, Appellant, v. The SELTZER PARTNERSHIP, a Pennsylvania General Partnership, Isabelle Seltzer Fleck, Doris S. Barrow and Walter L. Bartholomew, in His Capacity as Trustee for the Trust of Mary E. McWilliams. BOULEVARD ASSOCIATES v. The SELTZER PARTNERSHIP, Isabelle Seltzer Fleck, Doris S. Barrow and Walter L. Bartholomew, Jr., in His Capacity as Trustee for the Trust of Mary E. McWilliams, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1995.
    Filed Aug. 4, 1995.
    Reargument Denied Oct. 11, 1995.

      William R. Thompson, Philadelphia, for Boulevard Associates.
    Leonard A. Busby, Philadelphia, for the Seltzer Partnership.
    Before BECK, KELLY and HOFFMAN, JJ.
   BECK, Judge:

In this appeal from a declaratory judgment we address inter alia the scope of the trial court’s review of an appraisal conducted pursuant to a lease agreement. More specifically we examine whether judicial review may include an examination of the appraiser’s scope of authority. We find that it may. We affirm the trial court.

The lease agreement was executed in March of 1965. Under its terms, the predecessor of appellant Boulevard leased a parcel of land located at 10 Presidential Boulevard in Bala Cynwyd, Pennsylvania from appellee The Seltzer Partnership (Seltzer). As defined in the lease, the leased premises consisted of the land “together with all easements, rights and privileges thereto belonging or in any way appertaining____” Article 4 of the lease required Boulevard to erect an office building on the land. The building, which was completed early in the initial term of the lease, belonged to Boulevard while the land belonged to Seltzer.

The lease also granted Boulevard the option to purchase the leased premises, providing as follows:

LANDLORD hereby grants to TENANT an irrevocable option to purchase the leased premises exclusive of building and improvements which are the Property of the TENANT, for the price of Three Dollars and Thirty-Five Cents ($3.35) per square foot or the then fair market value of the land (exclusive of the buildings and improvements which are the Property of the TENANT) to be determined by appraisal (the appraisers assuming for the purpose of determining fair market value that the land is not subject to this lease) whichever is higher.

In March 1991 Boulevard exercised its option to purchase the property. The lease provided that the lease term would expire on September 7, 1991. Prior to the expiration of the term, Seltzer and Boulevard tried unsuccessfully to arrive at a consensual fair market value of the leased premises. Once the term of the lease expired, Boulevard continued to occupy the leased premises but discontinued its rental payments.

By early 1992, the parties having realized that no agreement on fair market value would be reached, the appraisal process was commenced. The lease provision governing the appraisal process states:

Appraisals: Wherever in this lease appraisals may be required to determine the then fair market value of the land exclusive of buildings and improvements, if the parties hereto are unable to agree as to the then fair market value, either party may initiate an appraisement proceeding by giving the other party fifteen (15) days written notice of its or her desire for an appraisement---- The two qualified real estate appraisers thus selected [by the parties to the Lease] shall, within thirty (30) days after their appointment: (1) agree on the then fair market value and so report to the parties in writing and such value shall be binding upon all concerned; or (2) if they cannot agree on such value within such thirty (30) day period, they shall designate in writing a third qualified real estate appraiser.
The three appraisers thus selected shall proceed promptly with an appraisement, giving the parties an opportunity to be heard. The fair market value, as determined by a majority of such appraisers, shall be binding upon all concerned.

Ultimately three appraisers were appointed to value the leased premises. After having given the parties an opportunity to be heard, the appraisers unanimously agreed to a fair market value of $1 million. In arriving at this value, the appraisers considered zoning restrictions pertinent to the use of the leased premises. Specifically they considered the fact that Lower Merion Township, where the leased premises are located, had recently enacted a new zoning ordinance that severely restricted the size of any building that could be constructed on land such as the leased premises. Boulevard’s building far exceeded the new size limitations and, therefore, had become a nonconforming use. However, another provision of the Lower Merion Zoning Code permitted the present building to remain on the land and also provided that if the building was destroyed or damaged by fire or other cause, it could be reconstructed at its exact former size. Based on this information, the appraisers arrived at a valuation that included consideration of the fact that this particular piece of property could in future support a building as large as the one presently on it.

Boulevard objected to the $1 million valuation, contending that the appraisers had exceeded the authority under the lease; that they erred in considering the size of the building the land could support. Rather, Boulevard contended that the appraisers should have valued the land as if it were vacant and thus subject to the new zoning restrictions on the size of any building that could be constructed on it in future. Boulevard based this contention on the fact that the lease directed the appraisers to value only the land, exclusive of the buildings and improvements presently located there. Boulevard argued that it was not bound by the appraisal since the appraisers exceeded the authority assigned to them in the lease and wrongfully included consideration of the existence of the present building and the new zoning restrictions when appraising the land.

Seltzer accepted the appraisal and proceeded to schedule a closing on the sale within the time period provided by the lease. When the closing on the sale of the building was imminent, Boulevard instituted this action for a preliminary injunction preventing the closing and for a declaratory judgment that the appraisers’ valuation was flawed and therefore not binding. Seltzer counterclaimed for payment of rent and attorneys’ fees. After initial proceedings resulting in a denial of the preliminary injunction, the closing was conducted on October 5, 1992. Boulevard paid the appraised price but reserved its right to pursue its pending action.

Thereafter the trial court entered an Adjudication and Decree Nisi denying relief to Boulevard and awarding a portion of the rent claimed by Seltzer. The court’s reasoning in support of accepting the appraisers’ valuation was as follows:

Initially, it should be noted that the fair market value of the land was determined by a binding appraisal process as set forth in the Lease Agreement. The value of the land was unanimously agreed to by all three appraisers including Boulevard’s appointed appraiser. The Lease Agreement states specifically that the appraised value “shall be binding upon all concerned.” There has been no evidence presented to the Court to suggest that the appraisers acted in an illegal, fraudulent or criminal manner. The appraisers [sic] determination is given the same degree of finality as an award under common law arbitration. Accordingly, Boulevard is bound [by] ... the appraiser’s determination.
Furthermore, the appraisers [sic] conclusion was also legally correct. The benefit of this nonconforming use runs with the land. Accordingly, the appraisers correctly valued the land with the inclusion of the nonconforming use.

Trial Court Opinion at p. 11. The foregoing language indicates that the trial court utilized a standard of review that limited its inquiry to whether the appraisers acted in an “illegal, fraudulent or criminal manner.” However, the court noted that the appraisers had not in fact made any substantive error in valuing the subject property.

After denying post-trial motions, the trial court entered an order directing that the Adjudication and Decree Nisi be made final. Boulevard timely appealed and Seltzer cross appealed.

Boulevard raises the following issues on appeal:

1. Whether a court of law is permitted to determine whether appraisers appointed to value land under a contract of submission acted within the authority conveyed to them by the contract.
2. Whether the appraisers appointed under the lease agreement between Boulevard and the Seltzer Partnership exceeded the authority conveyed to them.
3. Whether the court erred as a matter of law in determining that the appraisers’ decision was legally correct and binding upon appellant.
4. Whether the court erred in awarding rent to Seltzer.

In the cross-appeal Seltzer challenges the amount of rent awarded by the trial court for the period during which Boulevard held over as a tenant and contends that the trial court erred in denying Seltzer attorneys’ fees.

Initially we must determine the trial court’s proper scope of judicial review of an appraisal conducted pursuant to a private agreement. Both parties analogize this situation to an private agreement providing for common law arbitration and cite case law wherein a similar analogy has been drawn. See, e.g., Ice City, Inc. v. Insur. Co. of North America, 456 Pa. 210, 314 A.2d 236 (1974). Boulevard argues that in both appraisal and general arbitration, a court may always inquire into whether the appraisers or arbitrators exceeded the scope of authority granted to them in the parties’ agreement. Seltzer counters that the only question that may be decided by the reviewing court is whether the appraisers (or arbitrators) acted with bias, were unduly influenced, committed fraud, or engaged in criminal conduct. Seltzer further argues, however, that even if it is conceded that the scope of authority issue was properly before the trial court, in this case the appraisers acted within their authority.

Although there is little Pennsylvania authority directly on point, the authority that does exist supports Boulevard’s position. It is true that appraisal pursuant to private agreement has been analogized to common law arbitration. In Ice City, supra, the Supreme Court held that for enforcement purposes, appraisal provisions were as enforceable as arbitration provisions, and that both were favored by the public policy of the Commonwealth as efficient dispute resolution mechanisms. Id. at 216-17, 314 A.2d at 240-41. The Court did note, however, that the scope of an appraisal provision was much more limited than the typical arbitration provision since the former provided only for resolution of issues of valuation and the latter provided for resolution of an entire controversy between the parties. Id. at 216 n. 12, 314 A.2d at 240 n. 12.

In determining the scope of trial court review in an appraisal, we look for guidance to the scope of judicial review of common law arbitration. Such review is severely limited. This scope of review has aptly been described as follows:

In arbitration governed by common law principles, the arbitrators are the final judges of both law and fact and the award is not subject to judicial review for mistakes of either unless it is clearly shown that the party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award. To prevail on these grounds, actual fraud must be shown ... Similarly, an ‘irregularity’ will not be found simply upon a showing that an incorrect result was reached. An irregularity which requires reversal of a common law arbitration award refers to the process employed in reaching the result of the arbitration, not to the result itself.

Gwin Engineers, Inc. v. Cricket Club Estates Development Group, 382 Pa.Super. 533, 555 A.2d 1328, 1329 (1989) (citations omitted).

In addition, arbitrators’ authority is restricted to the powers the parties have granted them and the trial court may examine whether the arbitrators exceeded the scope of their authority. See Sley System Garages v. Transport Workers Union of America, 406 Pa. 370, 178 A.2d 560 (1962); Giant Markets v. Sigma Marketing Systems, 313 Pa.Super. 115, 459 A.2d 765 (1983). As the Sley System Court stated:

The power and authority of arbitrators are wholly dependent upon the terms of the agreement of submission, and they cannot exercise authority as to matters not included therein, or validly determine the dispute if they violate or act inconsistently with the terms of the submission---The scope of matters submitted to arbitration is determined by the intention of the parties as ascertained in accordance with the rules governing contracts generally.

Id. at 374, 178 A.2d at 561-62 (citations omitted). See also Brennan v. General Accident Fire and Life Assur. Corp., Ltd., 524 Pa. 542, 574 A.2d 580, 583 (1990).

Appraisal, like arbitration, is subject to limited judicial review. In both instances the law favors non-judicial dispute resolution that the parties have agreed to. Alternate dispute resolution is economical in terms of time, expenditure of judicial resources and transactional costs. Limited judicial review also imposes finality in a contested matter. To permit anything but limited judicial review defeats the purpose of appraisal as well as arbitration.

We hold that judicial review of appraisal is limited to fraud, misconduct, corruption or other irregularity causing an unjust result. See Gwin Engineers, supra. We also hold that the reviewing court may examine the appraisers’ scope of authority and whether they have exceeded it. The powers of the appraisers are determined by the submission assigned to them by the parties. Since appraisers do not have authority to decide matters not included in the submission, the trial court may review the scope of their authority. Assigning this review function to the trial court maintains the strict limitation on review but assures the parties that the appraisers have not gone beyond the submission assigned to them.

Our conclusion on this issue also finds some support in older cases, not cited by the parties, involving appraisal clauses found in fire insurance policies. For example, in Patriotic Order Sons of America Hall Assoc. v. Hartford Fire Insur. Co., 305 Pa. 107, 157 A. 259 (1931), the Supreme Court reviewed the actions of appraisers appointed pursuant to an agreement between a fire insurer and its insured. The appraisers were charged with assessing the value of the insured’s property that had been damaged in a fire and then assessing the amount of loss or damage sustained to that property. The amount of coverage provided was calculated using a ratio of these values. The insured alleged that the appraisers had erred in assessing the “sound value” of the property instead of assessing the “actual cash value” as provided in the insurance policy. The Supreme Court rejected this argument, stating:

In fixing sound value the appraisers fixed actual cash value. Under the very terms of the appraisal agreement their finding could not be contradicted---- [t]he appraisement is final.
“The general rule undoubtedly is that, unless restricted by the agreement of submission, arbitrators are the final judges of both law and fact, and an award will not be reviewed or set aside for mistake in either----”

Id. at 113, 116, 157 A. at 262 (citations omitted).

These comments strongly suggest that the supreme court would apply the principle that a court may review whether arbitrators exceeded their scope of authority with equal force in a case involving review of the findings of appraisers.

This conclusion does not lead us, however, to accept Boulevard’s further argument that in this case the appraisers exceeded the scope of their authority. To reiterate, Boulevard argues that the appraisers exceeded the scope of their authority when they concluded that in valuing the subject property they should consider the fact that under present zoning ordinances the property could continue to sustain a building of the size presently on it. Boulevard posits that this conclusion constituted a mistaken interpretation of the lease which required the appraisers to value the land exclusive of buildings and improvements.

We disagree. The scope of the submission to these appraisers, i.e., the scope of authority granted to them, was the task of valuing the subject property. This is what the parties agreed to submit to appraisal under the terms of the lease and this is what they charged the appointed appraisers to do. In the course of performing this task, the appraisers had to decide what valuation method to use. When they decided that the most appropriate way of valuing this property would be to include consideration of the actual use the property could be put to in future, including the fact that it could continue to sustain a building of the same size as the one presently on the property, the appraisers clearly were not exceeding their authority. Rather, they were making exactly the type of decision that the parties had asked them to make and by which the parties agreed to be bound.

As the Supreme Court has held, in an arbitration case "... once it is determined that a substantive dispute is arbitrable, normally the arbitrator has the authority to decide all matters necessary to dispose of the claim.” Brennan, 524 Pa. at 542, 574 A.2d at 583. The rule is the same for appraisal matters. Here, the appraisers had to make a variety of decisions in the course of setting a value for the property. One of these permissible decisions was that this property possessed a benefit under the pertinent zoning ordinances and that the existence of this benefit was relevant to valuation. Since the appraisers did not exceed the scope of their authority in making this decision in the course of valuing the property, and there is no other ground alleged for refusing to enforce the appraisers’ valuation, we find that the appraisers’ valuation is binding.

Boulevard also challenges the trial court’s award of rent to Seltzer for the period of slightly over a year during which Boulevard held over as tenants on the property. In the cross-appeal, Seltzer argues that the trial court was correct in awarding rent, but erred in calculating the amount of rent owed and in refusing to award Seltzer attorneys’ fees.

We have reviewed the record and find no basis for disagreement with the trial court’s determination that Boulevard had no right to occupy the property without payment of any rent for over a year after the expiration of the lease term. Boulevard not only occupied the property during this time, but also received income from its own tenants who occupied the building. Nothing in Seltzer’s conduct relieved Boulevard from its rental obligation.

However, the question remains as to the amount of rent owed. The trial court held that the amount owed was $16,000 per year, “in accordance with the terms of the original Lease Agreement”. Trial Court Opinion at p. 10. Seltzer points out, however, that Section 202 of the Lease states the following:

Renewal Options — Exercise. Subject to a sale of said premises either during the original term or during any extended period, as set forth in Section 1801 hereof, TENANT is hereby given the right at its option to extend the original term of this lease for five (5) successive periods of five (5) years each following expiration of the original term hereof. Such options shall be exercised only by written notice given to LANDLORD by TENANT at least one hundred eighty (180) days prior to the expiration of the original term hereof____ The annual rental for each such extended term shall be based upon 6% of the then appraised fair market value of the ground or the present rental, whichever is greater.

Based on this section, Seltzer argues that the trial court should not have awarded rental at the rate of $16,000 per annum, the original rental rate, but rather should have awarded Seltzer rent at the rate of six percent of the value of the land, which would yield an annual rental of $60,000.

Although the trial court did not state its reasons for awarding rent for the holdover period only at the original rate of $16,000 per annum, we assume the court did so because it did not find the increased rental provisions of Section 202 of the lease applicable to this situation. We agree that Section 202 does not apply. Boulevard did not exercise the option provided under Section 202 to extend the term of the lease. To the contrary, Boulevard exercised its option to purchase the property in March 1991, several months before the expiration of the initial term in September 1991. Under these circumstances, it would be grossly inequitable to hold Boulevard responsible for the increased rent that would be due under Section 202 if Boulevard had not exercised the purchase option but rather had elected to extend the lease for an additional five year term. Such a result would clearly not reflect the intent of the parties as expressed in Section 202.

Finally, we find no error in the trial court’s refusal to award Seltzer attorneys’ fees. We have carefully reviewed the section of the lease on which Seltzer relies in asserting this claim and do not find it applicable to the circumstances of this case. The trial court was clearly acting within its discretion in refusing to make an award of attorneys’ fees.

The final decree of the trial court is affirmed.

      . Boulevard purchased the interest of its predecessor in the Lease and obtained an assignment of rights thereunder in 1985.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    664 A.2d 989
    Lee E. FERGUSON, Appellant, v. Marius H. PANZARELLA and Geisinger Medical Group. Lee E. FERGUSON v. Marius H. PANZARELLA, M.D. and Geisinger Medical Group. Appeal of Marius H. PANZARELLA, M.D., (“Dr. Panzarella”) and Geisinger Clinic t/d/b/a Geisinger Medical Group-Wyoming County.
    Superior Court of Pennsylvania.
    Argued May 9, 1995.
    Filed Aug. 10, 1995.
    Reargument Denied Oct. 13, 1995.

      Patricia Corbett, Scranton, for appellant.
    Richard C. Seneca, Harrisburg, for appellees.
    Before CAVANAUGH, McEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

The parties in this medical malpractice action present cross-appeals from the June 17, 1994 Order granting defendants’ motion for a new trial and denying their motions for judgment n.o.v. and remittitur. The trial court granted a new trial on the basis that it had improperly refused to direct a verdict in favor of defendants as to plaintiffs third claim, alleging negligent post-operative care.

The evidence educed at trial reveals that plaintiff, Lee E. Ferguson (plaintiff), sustained a knee injury and was treated by defendants, Marius H. Panzarella, M.D., and Geisinger Medical Group (defendants). Plaintiff subsequently brought this action against defendants alleging negligence in 1) failing to properly align his patella during surgery, 2) failing to discover and repair interior knee damage and 3) failure to insure proper patella alignment during follow-up visits. Defendants raised in defense the failure of plaintiff to attend numerous post-operative appointments. Following the presentation of evidence, the jury was instructed that they could consider the alleged contributory negligence of plaintiff in relation to his claim of negligent after-care only and not in relation to the two other claims. However, the jury was not asked to make specific findings as to each of the three issues of liability. Rather, the verdict questionnaire asked only, “Was [Panzarella] negligent?” The jury returned a verdict finding both parties negligent and apportioning sixty per cent (60%) liability to defendant-Panzarella and forty per cent (40%) liability to plaintiff. The gross verdict of $243,526.51 was then molded to $146,115.91 to reflect the apportionment of liability. Following timely post-trial motions, the trial court granted defendants a new trial on the basis that the jury was improperly permitted to consider the negligence of Panzarella in rendering postoperative care to plaintiff. Specifically, the trial court relied on Gentile v. Devirgilis, 290 Pa. 50, 138 A. 540 (1927), for its conclusion that a physician cannot be held liable for failure to provide proper postoperative care where the patient fails to cooperate in postoperative treatment. Thus, reasoned the trial court, a directed verdict should have been granted for defendants as to plaintiff’s third claim.

Appellate review of a trial court’s decision to grant or deny a new trial is subject to an abuse of discretion standard. Chiaverini v. Sewickley Valley Hospital, 409 Pa.Super. 630, 598 A.2d 1021 (1991). The power to grant a new trial lies inherently with the trial court and we will not reverse its decision absent a clear abuse of discretion or an error of law which controlled the outcome of the case. Spang & Co. v. U.S. Steel Corp., 519 Pa. 14, 545 A.2d 861 (1988).

On appeal, plaintiff initially asserts the trial court erred in granting a new trial because defendants did not preserve their claim that plaintiff was barred from recovering for negligent post-operative care by his failure to attend follow-up visits. At the close of plaintiff’s case, defendants moved for a compulsory nonsuit on the basis that plaintiff failed to cooperate in postoperative care. They also submitted points for charge requesting an instruction in the nature of a directed verdict on the same issue. Further, the Gentile issue was raised and briefed in post-trial motions and plaintiff responded with a thorough discussion of Gentile. Therefore, because the issue was raised at trial and in post>trial filings, we agree with the trial court that it was properly preserved. See Pa.R.C.P. 227.1.

The main point of contention between the parties concerns the impact of the Comparative Negligence Act on the case relied on by the trial court in granting a new trial, Gentile, swpra. Specifically, plaintiff claims that, “[ijnasmuch as the Trial Court’s Decision with respect to the granting of a new trial was based solely upon its reliance on the Gentile case, the Gentile case being superseded by the Comparative Negligence Act, it follows that the granting of a new trial by the Trial Court, based upon the Gentile Decision should be reversed.” (AppellanVcross-appellee’s brief at 22.) Defendants counter that “Gentile was not superseded by the Comparative Negligence Act because Ferguson’s conduct is not evidence of contributory negligence. Rather [Gentile ] precludes his recovery for negligent after-care because the fact-finder cannot determine, as a matter of law, whether the physician made an error in medical judgment.” (Appellee/cross-appellant’s brief at 22.)

In Gentile, the plaintiff-patient consulted with the defendant/dentist following continued pain in her lower jaw. The defendant attempted to extract a tooth, which broke, leaving a portion remaining in the plaintiffs mouth. This apparently was not an uncommon occurrence and the defendant instructed plaintiff to return the next day for further treatment. Instead, plaintiff returned four days later, at which time the condition of her jaw had seriously deteriorated. Plaintiff sued defendant for malpractice and the trial court gave the jury binding instructions in defendants’ favor. The Supreme Court affirmed, finding that defendants’ negligence could not be established because the plaintiff had failed to cooperate in her after-care. In rejecting plaintiffs argument that the issue of her negligence was for the jury, the court held, “[i]f [plaintiff had cooperated in her after-care], for anything that appears, her trouble might have been completely alleviated and no further evil consequences might have happened to her---Her failure to act upon defendant’s advice, and to return to him at the time he directed, may have been the reason for all plaintiffs subsequent illness and distress.” Gentile, swpra at 54, 138 A. at 541. Thus, as enunciated by the Gentile Court, the problem that arises when a patient fails to substantially comply with a physician’s post-operative instructions is that neither the court nor the jury can determine whether the physician’s after-care was negligent and, even assuming negligence, whether that negligence, or the plaintiff’s neglect, caused the deteriorated condition. The instant action also demonstrates this problem.

As noted, the basis of plaintiffs claim of negligent after-care was that Dr. Panzarella had failed to diagnose and treat the post-operative lateral tracking of his patella. However, the record indicates that plaintiff missed numerous postoperative appointments and waited at least two months to revisit defendants on at least three occasions. Dr. Panzarella’s uncontradicted testimony as to the impact of this neglect was as follows:

[S]o basically the importance of seeing somebody regularly is that you can assess the affect of your particular treatment and you’re confounded if you can’t do that because you’re like starting fresh again.

(N.T., 1/28/94, p. 25.) The record also indicates that plaintiff refused, at various times, to take physical therapy and his medication.

It is clear that plaintiffs substantial failure to cooperate in his post-operative care effectively precluded the defendants’ assessment of his post-operative progress. Therefore, as a matter of law, the defendants’ negligence cannot be established. Gentile, supra. Moreover, the Comparative Negligence Act is inapposite to plaintiff’s claim of negligent after-care because the Act presumes the jury’s ability to establish and weigh the negligence of both parties. See 42 Pa.C.S. § 7102(a). As noted, any negligence on the part of Dr. Panzarella as to plaintiff’s after-care cannot be determined and a requisite to the operation of the Act is thus absent. Hence, we agree with the trial court that Gentile remains viable and mandates the dismissal of plaintiffs claim of negligent after-care at retrial. This holding does not, of course, mandate the dismissal of negligent after-care claims where a patient’s failure to cooperate is insignificant. Rather, in order to warrant dismissal, the patient’s failure to comply with aftercare instructions must, as a matter of law, preclude a determination of whether or not the physician was negligent in treating the condition which serves as the basis of the negligent after-care claim.

Lastly, defendants claim the trial court erred in permitting plaintiffs subsequent treating physician, Dr. Rex Herbert, to present expert medical testimony critical of Dr. Panzarella, after being offered only as a fact witness. Specifically, error is alleged in the fact that Dr. Herbert was permitted to testify as to the cause of plaintiffs torn meniscus and tracking patella.

Initially, we find that Dr. Herbert was offered as an expert witness. Indeed, plaintiffs counsel stated the following during Mr. Herbert’s deposition, a videotape of which was presented to the jury:

Let the record reflect to clear up any question ... Dr. Herbert is being offered here today as an expert in the limited capacity to testify only as to the opinions that he has given in the report[s] previously. He will not be commenting on any deviation from the standard [of care] or testifying in a manner which would be contrary to Dr. Panzarella in this case____ We have provided two reports in this case and I am making it clear that his testimony is limited to the scope of those reports.

(N.T., 1/28/94, p. 17.)

Thus, the question before us is not whether a fact witness improperly testified as an expert, but whether the expert’s testimony exceeded the scope of the offer.

The admission of expert testimony is a matter within the sound discretion of the trial court and will not be disturbed in the absence of a clear abuse of discretion. Beechwoods Flying Service, Inc. v. Al Hamilton Contracting Corp., 504 Pa. 618, 476 A.2d 350 (1984).

The allegedly improper testimony of Dr. Herbert was as follows:

Q. Doctor, based upon your history, your physical examination of Mr. Ferguson, can you tell us, please, what in your opinion was the cause of the torn menicus [sic]?
[Objection.]
[Overruled.]
A. ... [I]t would be my opinion that the torn cartilage that I found at arthroscopy occurred on that date when he fell from the truck.
Q. Okay, Thank you. Doctor, in your opinion what was the cause, based on your history, physical and all your examinations, the arthroscopy and follow-up care, with a reasonable degree of medical certainty, what, in your opinion, was the cause of the degenerative condition, the joint condition in the patellogemoral joint?
[Objection.]
[Overruled.]
A ... I would have to say that it is my opinion that the arthritis condition in his knee was in his kneecap, patella itself, was related to the way in which the patella was tracking that I found on the x-rays.

(N.T. at 52-54.)

We agree with the trial court that this testimony is not adverse to Dr. Panzarella. Dr. Herbert’s statement that the meniscus tear was due to plaintiffs original injury does not impugn Dr. Panzarella in the absence of a statement from Dr. Herbert that the tear should have been discovered during the initial surgery. Likewise, Dr. Herbert’s statement that plaintiffs knee degeneration was due to a tracking patella is not adverse to Dr. Panzarella unless Dr. Herbert also states that negligent- surgery caused the tracking. Indeed, Dr. Herbert explicitly refused, as follows, to impugn Dr. Panzarella’s treatment of plaintiff:

Q. You have not agreed to render any expert opinions in this case criticizing the care provided by Dr. Panzarella, is that correct?
A. That is correct.

(N.T. at 61.)

Consistent with the offer presented by plaintiff’s counsel, Dr. Herbert did not testify as to any deviation from the standard of care by Dr. Panzarella. The admission of the testimony was therefore proper.

In the instant case, a new trial was granted on the basis that the jury was allowed to consider an improper claim of negligence. Since the verdict form did not disclose which claim or claims served as the basis of the jury’s finding of negligence, the trial court was unable to gauge the impact of the improper submission of plaintiff’s third claim. Accordingly, the trial court did not abuse its discretion in granting a new trial.

For the foregoing reasons, we affirm the June 17, 1994 Order granting defendants’ motion for a new trial and denying their motions for judgment n.o.v. and remittitur.

Order affirmed.

      . Motion to quash cross-appeal and answer thereto is denied as moot.


author: HUDOCK, Judge:

text:
    664 A.2d 994
    COMMONWEALTH of Pennsylvania, Appellant v. Ezra CHILDS, Appellee.
    Superior Court of Pennsylvania.
    Submitted June 29, 1995.
    Filed Aug. 10, 1995.
    Reargument Denied Oct. 11, 1995.

      Joan Weiner, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Sheryl S. Chernoff, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and HUDOCK and CERCONE, JJ.
   HUDOCK, Judge:

The Commonwealth appeals from the judgment of sentence imposed after Appellee was convicted in a non-jury trial of aggravated assault as a second degree felony and possessing an instrument of crime. Appellee was sentenced to ten years probation for the aggravated assault charge and three years concurrent probation for possessing an instrument of crime. The Commonwealth filed a motion for reconsideration of the sentence which was denied without a hearing on January 6, 1994. The Commonwealth then filed this direct appeal. We vacate the judgment of sentence and remand for resentencing.

The facts which led to Appellee’s arrest and conviction stemmed from a landlord/tenant dispute between Appellee and Bridgette Dorsey and Kevin Smith. Appellee rented a house to Dorsey and Smith in February of 1993. Despite repeated requests to make repairs on the property, Appellee failed to repair the house forcing Dorsey and Smith to move out. On March 4, 1993, Dorsey and Smith began moving their belongings from the Appellee’s premises to their new house. Along with their own personal items, Dorsey and Smith took two bedroom dressers which Appellee allegedly told them they could have. At approximately 9:00 p.m., Appellee arrived at the rented premises with his girlfriend, Carmella, and demanded that Smith return the two dressers. Smith agreed to return the dressers and began walking in the direction of his vehicle. As Smith entered the driver’s side of the vehicle, Appellee obtained a gun from his girlfriend. Appellee then walked over to Smith’s car and stopped two feet away from the driver’s side window. Appellee aimed the gun at Smith’s head and fired one shot. Smith, who was trying to get the car in gear and drive away, ducked when Appellee fired the gun, thus escaping injury. The bullet shattered the driver’s side window and put a hole in the passenger side door. Smith then sped away while keeping his head down. Smith ran into a police officer one block from the incident and reported what had occurred. Appellee was subsequently arrested and charged with various criminal offenses.

Appellee was found guilty of “attempt[ing] to cause or intentionally or knowingly causing] bodily injury .to another with a deadly weapon” pursuant to section 2702(a)(4) of the aggravated assault statute on July 27, 1993. Appellee was also adjudicated guilty of possessing an instrument of crime (PIC). Prior to sentencing, the trial court ordered that a presentence report be prepared and that Appellee undergo a mental health evaluation. On December 29, 1993, Appellee was subsequently sentenced to ten years probation for the aggravated assault and three years concurrent probation for PIC.

The Commonwealth contends that the sentencing court abused its discretion by sentencing Appellee to an excessively lenient sentence of ten years probation. The Commonwealth points out that the sentence imposed is substantially below the recommended mitigated range under the Sentencing Guidelines.

The Commonwealth challenges the discretionary aspects of sentencing for which there is no automatic right to appeal. This Court is guided by section 9781(b) of the Judicial Code which provides:

The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code.]

42 Pa.C.S.A. § 9781(b).

The Commonwealth has complied with the procedural requirements enunciated by our Supreme Court in Commonwealth v. Tuladziecki, 513 Pa. 508, 511-12, 522 A.2d 17, 19 (1987) . Therefore, we must determine whether the Commonwealth has raised the appearance of a substantial question as to whether the sentence imposed is appropriate under the Sentencing Guidelines. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Felix, 372 Pa.Super. 145, 150-52, 539 A.2d 371, 374 (1988), alloc. den., 525 Pa. 642, 581 A.2d 568 (1990). In numerous decisions of this Court we have found that the Commonwealth presented a substantial question when it contended that the sentence imposed was excessively lenient and unreasonably deviated from the applicable guideline range. See Commonwealth v. Moore, 420 Pa.Super. 484, 490-92, 617 A.2d 8, 12 (1992); Commonwealth v. Masip, 389 Pa.Super. 365, 366-67, 567 A.2d 331, 332 (1989); Felix, 539 A.2d at 374; Commonwealth v. Rizzo, 362 Pa.Super. 129, 523 A.2d 809, 812 (1987). Accordingly, we grant the Commonwealth allowance of appeal and will review the discretionary aspects of Appellee’s sentence.

The trial court is vested with sound discretion when sentencing a criminal defendant. Absent an abuse of that discretion, this Court will not vacate the sentence imposed. Commonwealth v. Jones, 433 Pa.Super. 266, 269-71, 640 A.2d 914, 916 (1994). The trial court, however, must exercise its discretion in accordance with the applicable provisions of the Sentencing Code, 42 Pa.C.S.A. section 9701 et seq. Commonwealth v. Murphy, 405 Pa.Super. 452, 457-59, 592 A.2d 750, 753 (1991). We grant much deference to the sentencing court since “it is in the best position to view the defendant’s character, displays of remorse, defiance or indifference and the overall effect and nature of the crime.” Jones, 640 A.2d at 916 (citing Commonwealth v. Jones, 418 Pa.Super. 93, 101, 613 A.2d 587, 591 (1992) (en banc), alloc, den., 535 Pa. 615, 629 A.2d 1377 (1993)). When imposing a sentence, the trial court may select from the alternatives of probation, determination of guilty without a penalty, partial or total confinement, fines or intermediate punishment. 42 Pa.C.S.A. § 9721(a). “The sentencer has broad discretion to choose a penalty from sentencing alternatives and the range of permissible confinements, provided the choices are consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.” Commonwealth v. Devers, 519 Pa. 88, 92, 546 A.2d 12, 13 (1988). Although the sentencing court is required to consider and consult the Sentencing Guidelines when imposing a sentence, it retains the discretion to sentence below the mitigated range as long as it clearly explains the reasons for doing so. Jones, 640 A.2d at 917 n. 3. If the sentence imposed is outside of the recommended guidelines, the trial court must provide a contemporaneous written statement of the reason or reasons for the deviation or it must state on the record in the presence of the defendant the reasons for the sentence. Commonwealth v. Munson, 419 Pa.Super. 238, 241-43, 615 A.2d 343, 345 (1992). “When a sentencing court deviates from the sentencing guidelines, it is important that the court reflect a consideration of the sentencing guidelines, the background and character of the defendant, the circumstances of the crime, and impose a sentence that is consistent with the protection of the public and the rehabilitative needs of the defendant.” Commonwealth v. Cruz Ortega, 372 Pa.Super. 389, 394, 539 A.2d 849, 852 (1988).

Under the Sentencing Guidelines, a conviction for section 2702(a)(4) of the aggravated assault statute based on the defendant’s attempt to cause bodily injury with a deadly weapon carries an offense gravity score of six. See 204 Pa.Code § 303.8, reprinted at 42 Pa.C.S.A. § 9721. Based on Appellee’s criminal history, the trial court correctly calculated a prior record score of six. Thus, applying these scores, the guidelines suggest the following ranges for Appellee’s conviction of aggravated assault:

Mitigated range: 25-33 months
Standard range: 33-49 months
Aggravated range: 49-61 months

204 Pa.Code § 303.9.

Likewise, the guidelines specify that the offense of possession of an instrument of crime is assigned an offense gravity score of three. Appellee’s prior record score of six is only applied when calculating the sentence for the offense with the highest offense gravity score which in this case is aggravated assault. See Pa.Code § 303.6(a). Therefore, the prior record score for purposes of computing the sentence for the PIC conviction is zero. Using these figures, the guidelines suggest the following ranges for PIC:

Mitigated range: non-confinement
Standard range: 0-6 months
Aggravated range: 6-12 months

204 Pa.Code § 303.9.

Rather than impose a term of imprisonment as the guidelines suggest, the sentencing court choose a ten year period of probation for aggravated assault and a three year period of probation for PIC. The sentencing court justified its sentence of probation on two grounds, the fact that Appellee had not engaged in criminal behavior for a substantial period of time and the fact that Appellee’s family was dependent on him for support. Specifically, the sentencing judge stated on the record:

The only thing that I can say on the record that you have going for you is the fact that you have been crime free for about twenty years.

N.T., 12/29/93, at p. 10. The sentencing court continued:

You are responsible for your family’s welfare and apparently somebody needs to do that. And if I were to send you to jail today, who’s going to take care of them?

N.T., 12/29/93, at pp. 11-12.

The Commonwealth contends that the sentencing court’s rationale for imposing probation was insufficient considering the totality of the circumstances, including the nature and conduct of Appellee’s offense, his prior criminal history, and his inability to reform himself after previous terms of imprisonment and probation. The Commonwealth argues that the sentencing court relied on an erroneous fact that Appellee was supporting his family. The Commonwealth points out that Appellee has been unemployed since May of 1991 when he quit his job doing maintenance work. According to the Commonwealth Appellee was not providing substantial support for his mother and child since his only income was welfare benefits totalling $187.00 biweekly and $203.00 in food stamps every month. The Commonwealth also argues that the sentencing court ignored the safety needs of the public and depreciated the gravity of Appellee’s conduct.

Although we recognize the stringent standard of review in an appeal challenging the discretionary aspects of sentencing, we agree with the Commonwealth that Appellee’s sentence was “unreasonable.” After reviewing the record in this case and weighing the relevant sentencing considerations found in the Sentencing Code, we conclude that the sentencing court abused its discretion by unreasonably deviating from the sentencing guidelines and imposing an unreasonably lenient sentence.

Section 9781(c) of the Sentencing Code delineates when this Court may vacate the sentence imposed by the trial court. It provides:

The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:
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(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

42 Pa.C.S.A. § 9781(c). To determine whether the sentence imposed was “unreasonable” we must consider the following factors:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the [sentencing] commission.

See 42 Pa.C.S.A. § 9781(d); Commonwealth v. Moore, 617 A.2d at 12.

Furthermore, section 9722 of the Sentencing Guidelines specifies what factors the sentencing court should consider when deciding to impose probation rather than confinement. It provides:

§ 9722. Order of probation
The following grounds, while not controlling the discretion of the court, shall be accorded weight in favor of an order of probation:
(1) The criminal conduct of the defendant neither caused nor threatened serious harm.
(2) The defendant did not contemplate that his conduct would cause or threaten serious harm.
(3) The defendant acted under a strong provocation.
(4) There were substantial grounds tending to excuse or justify the criminal conduct of the defendant, though failing to establish a defense.
(5) The victim of the criminal conduct of the defendant induced or facilitated its commission.
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime.
(8) The criminal conduct of the defendant was the result of circumstances unlikely to recur.
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.
(10) The defendant is particularly likely to respond affirmatively to probationary treatment.
(11) The confinement of the defendant would entail excessive hardship to him or to his dependents.
(12) Such other grounds as indicate the desirability of probation.

42 Pa.C.S.A. § 9722.

Applying the factors of section 9781(d) and section 9722 of the Sentencing Code to the facts of the present case, we conclude that a ten year probationary sentence is “unreasonable.” Appellee’s criminal conduct threatened serious harm to Smith. If Smith had not ducked when Appellee fired the gun, he could have been killed and Appellee could be facing homicide charges. Appellee had to realize that if he fired a loaded weapon at the victim’s head, it would most likely result in serious injury if not death. Appellee reacted violently to a verbal argument over bedroom furniture — he was not strongly provoked into shooting at the victim since Smith agreed to return the dressers he took from the house. There were no grounds which excused or justified Appellee’s behavior and the victim in no way induced Appellee to shoot him. Appellee was previously convicted of a violent crime in 1973 when he was found guilty of voluntary manslaughter. Appellee was fortunate to receive a sentence of ten years probation for the voluntary manslaughter charge. While serving this probation Appellee continued his criminal conduct. In 1975 Appellee was convicted of robbing a federal bank for which he served approximately six years in federal prison. Given the fact that Appellee resorted to violence after getting into a dispute over furniture, this Court cannot conclude that the circumstances which led to this offense are not likely to occur again. Finally, the investigator who prepared Appellee’s presentence investigation concluded that Appellee was “a risk for community supervision.” See Presentence investigation at p. 7.

Only two factors enumerated in section 9722 weigh in Appellee’s favor. First, Appellee had not committed any criminal offenses since he was released from prison in October of 1981. Second, confining Appellee may cause some hardship on his dependents as they will be deprived of his welfare benefits and food stamps. Despite these two factors, we conclude that the sentence imposed was inconsistent with the duty to protect the public from violent offenders, the gravity of the offense, and Appellee’s rehabilitative needs. Devers, 546 A.2d at 13.

Judgment of sentence vacated. Matter remanded for resentencing in accordance with this memorandum. Jurisdiction relinquished.

      . 18 Pa.C.S.A. §§ 2702 and 907, respectively.

      . Because the use of a deadly weapon was an element of the offense, the deadly weapon enhancement provision found in 42 Pa.C.S.A. section 9712 did not apply.


author: OLSZEWSKI, Judge:

text:
    664 A.2d 999
    COMMONWEALTH of Pennsylvania v. Patrick A. VITALE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 9, 1995.
    Filed Aug. 23, 1995.

      George Goldstein, Philadelphia, for appellant.
    Theodore R. Racines, Assistant District Attorney, Allentown, for Commonwealth, appellee.
    Before OLSZEWSKI, HUDOCK and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

Patrick Vitale appeals his judgment of sentence following a jury trial for conspiracy to possess cocaine and conspiracy to possess cocaine with intent to deliver. He was sentenced to three-to-ten years incarceration. Post-trial motions were denied by the Honorable Carol K. McGinley. He now raises the following five claims on appeal:

(1) An expert witness’s interpretation of coded words impermissibly usurped the province of the jury.
(2) It was error for the trial court to allow appellant to be impeached with his conviction for federal income tax evasion.
(3) The jury should have been charged on mutually inconsistent inferences.
(4) The affidavit used to procure the wiretap was statutorily deficient.
(5) A recorded conversation between appellant’s wife and one of the co-conspirators should not have been admitted into evidence.

Appellant was one of nine co-defendants arrested following an extensive investigation by the Pennsylvania State Police into illegal drug activity. The State Police initiated five wiretaps in the course of their investigation. Messages were intercepted from calls from phones listed in the names of either Robert Kratzer or Tony DeJesus, two of appellant’s co-conspirators. A total of 1,557 phone calls were intercepted. Of these, the jury heard 106 conversations. Thirteen involved talks between Kratzer and appellant or Kratzer leaving messages on appellant’s answering machine. One involved a phone call between Kratzer and appellant’s wife.

Appellant was convicted primarily as a result of his phone conversations with Kratzer. At trial, State Trooper Joseph Vasquez was qualified as an expert witness in interpreting jargon employed by the conspirators, as it was presumed that the lay juror might not have a reference for many of the phrases used by appellant and his co-conspirators.

Appellant first claims that as the language used by the defendants in the tapes was ordinary and quotidian, the admission of much of Trooper Vasquez’s testimony was error. Arguing that the jurors’ own experiences would have enabled them to decode the questioned excerpts by themselves, appellant maintains that Trooper Vasquez’s testimony improperly usurped the fact-finding province of the jury. We disagree.

Appellant does not contest Vasquez’s expertise. Moreover, appellant admits that “[cjoded conversation utilizing language which is intended to prevent the uninitiated from understanding it is subject to interpretation by an expert.” Appellant’s brief at 9. Rather, appellant argues that much of what was interpreted was common knowledge.

“Expert testimony is readily admissible to interpret and explain the use of code words and the meaning of certain language used in drug trafficking.” Commonwealth v. Riffert, 379 Pa.Super. 1, 21, 549 A.2d 566, 576 (1988) (quoting United States v. Dawson, 556 F.Supp. 418, 423 (E.D.Pa.1982), affirmed, 727 F.2d 1101 (3d Cir.1984)) (citations omitted), allocatur denied, 522 Pa. 602, 562 A.2d 825 (1989). We have held that such testimony does not invade the province of the trier-of-fact. Id. Moreover, the determination of whether to admit or exclude evidence is within the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion. Commonwealth v. Scarfo, 416 Pa.Super. 329, 383, 611 A.2d 242, 269, allocatur denied, 535 Pa. 633, 631 A.2d 1006 (1992).

Appellant cites to Commonwealth v. Carter to support the proposition that Trooper Vasquez’s testimony was prejudicial. 403 Pa.Super. 615, 589 A.2d 1133, allocatur denied, 528 Pa. 621, 597 A.2d 1151 (1991). Carter is inapposite, however, as the testimony in question in that case did not involve linguistic decoding. Rather, the officers in Carter stated that the defendant was “dealing narcotics.” Id. at 617, 589 A.2d at 1134. The police in Carter were interpreting their visual observations for the jury. Here, Vasquez was interpreting linguistic codes. He was a properly qualified expert; such testimony was admissible.

Appellant recites sixty-one passages of testimony he believes were prejudicial. A review of that testimony reveals that in twenty-four passages Vasquez was decoding jargon that referred to the amount of drugs. E.g., N.T. 9/23/91 at 42-43 (stating that “I’ll give you another one” referred to one ounce of cocaine). In eighteen the jargon or slang interpreted referred to price. E.g., id. at 53 (stating that “I’m at eight” meant eight hundred dollars). Fourteen pieces of testimony explained words referring to cocaine and/or the quality of cocaine. E.g., id. at 68-69 (interpreting “guarantee” to mean cocaine). Three times Vasquez interpreted words describing the drug business. E.g., id. at 78 (decoding “[Tjhese people are just adding up,” to mean that the cocaine Kratzer purchased was almost completely depleted and his clients were asking for more). Three interpretations were of slang for drug paraphernalia. E.g., id. at 43 (stating that “little pieces of plastic” referred to either a foreign substance inside the cocaine or a person who poorly cut the cocaine). We find that in all of these, Vasquez was decoding slang, the jargon of the drug underworld, so that the jury would know to what the tapes referred. It was still the jury’s obligation to decide if recorded conversations in which appellant was repeatedly heard to refer to drug transactions indeed constituted an intent to actually sell drugs. We therefore find that the admission of Vasquez’s testimony was not an abuse of discretion.

Appellant claims in his second issue that a conviction for federal income tax evasion is not a crimen falsi, and therefore it should not have been available to the prosecutor for impeachment purposes. We disagree. Crimes involving dishonesty or a false statement which occurred within ten years of the trial date are per se admissible. Commonwealth v. Randall, 515 Pa. 410, 415-17, 528 A.2d 1326, 1329 (1987); see also Allen v. Kaplan, 439 Pa.Super. 263, 268-70, 653 A.2d 1249, 1252 (1995); Commonwealth v. Young, 432 Pa.Super. 318, 320-22, 638 A.2d 244, 246 (1994); Russell v. Hubicz, 425 Pa.Super. 120,133-35, 624 A.2d 175,182, allocatur denied, 535 Pa. 670, 634 A.2d 1117 (1993).

Crimes such as rape, resisting arrest, prostitution, and assault with intent to kill are not crimes involving dishonesty or false statement. Kaplan at 270-72, 653 A.2d at 1253. Crimes such as theft, perjury, bribery, criminal trespass, and unauthorized use of a motor vehicle, however, have been held by Pennsylvania courts to be crimen falsi. Id. In addition, we have indicated that even if a crime would not in and of itself be crimen falsi, we would consider it as such if it was committed in part through the use of false written or oral statements. Id. (citing United States v. Hayes, 553 F.2d 824 (2nd Cir.), cert. denied, 434 U.S. 867, 98 S.Ct. 204, 54 L.Ed.2d 143 (1977)).

Appellant cites to Cree v. Hatcher for the proposition that appellant’s income tax conviction could not have been used to impeach his testimony. 969 F.2d 34 (3rd Cir.), cert. granted in part sub nom. Hatcher v. Valcarcel, 506 U.S. 984, 113 S.Ct. 490, 121 L.Ed.2d 429, and cert. denied in part, — U.S.-, 113 S.Ct. 1147,121 L.Ed.2d 577 (1992). In Cree the United States Court of Appeals for the Third Circuit was addressing the Federal Rules of Evidence. That decision is therefore not binding on this Court. Kaplan, 439 Pa.Super. at 271 n. 5, 653 A.2d at 1253 n. 5; see also Commonwealth v. Richardson, 347 Pa.Super. 564, 568-70, 500 A.2d 1200, 1203 (1985), allocatur denied, 525 Pa. 644, 581 A.2d 571 (1990).

Moreover, in Cree the issue was whether or not an expert witness could be impeached by his conviction of the misdemeanor of willful failure to file a federal income tax return, in violation of 26 U.S.C. § 7203. Cree at 36. In that case the expert doctor failed to pay an estimated tax. The Federal Court of Appeals held that there was no element of deceit, untruthfulness, or falsification in that crime, as there was no requirement that a defendant accused of violating § 7203 acted with an evil purpose to conceal tax liability. Id. at 37.

In the case sub judice, appellant was not convicted for willful failure to report information or pay taxes, but for an attempt to evade or defeat tax. 26 U.S.C. § 7201. The former is a lesser included offense of the latter. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). Section 7201 states that “any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony.” 26 U.S.C. § 7201. The United States Supreme Court has stated that “the elements of § 7201 are willfulness; the existence of a tax deficiency; and an affirmative act constituting an evasion or attempted evasion of the tax. In comparison, § 7203 makes it a misdemeanor willfully to fail to perform a number of specified acts at the time required by law....” Sansone, 380 U.S. at 351, 85 S.Ct. at 1010, 13 L.Ed.2d at 888 (citations omitted).

Evasion is the “act of eluding, dodging, or avoiding, or avoidance by artifice.” Black’s Law Dictionary 497 (5th ed. 1979). To evade paying taxes is to cheat the government. A violation of § 7201 means that a defendant knowingly and willfully attempted “to defraud the Government of its tax money.” McCarthy, 394 U.S. at 470, 89 S.Ct. at 1173, 22 L.Ed.2d at 427 (footnote omitted). Being convicted of willfully cheating the government is certainly a type of crimen falsi as contemplated within Randall and its progeny. The trial court was correct to rule that appellant, had he taken the stand, could have been impeached by his prior conviction.

In his third issue, appellant raises the claim that the jury should have been given the following charge:

Where two equally reasonable and mutually inconsistent references can be drawn from the same set of circumstances, the jury cannot guess which inference it will adopt, especially when one of the two guesses might result in depriving the defendant of his liberty. The defendant is entitled to an acquittal if guilt is not the only reasonable interpretation of the facts.

Appellant gleans this charge from the seminal case of Commonwealth v. Woong Knee New, 354 Pa. 188, 47 A.2d 450 (1946), where our Supreme Court held that “[a]n accused is entitled to an acquittal of the crime charged if his guilt is not the only reasonable interpretation of which the facts adduced against him are susceptible.” Id. at 195, 47 A.2d at 455. Appellant contends that since both he and Kratzer were in the construction business, some of the words decoded by Vasquez, such as “shingles” and “roof,” could have just as easily referred to home building as cocaine.

New refers to a challenge to the sufficiency of the evidence. If appellant believes that the evidence was insufficient to convict him, then his recourse should have been to seek a dismissal, have the verdict set aside, move to arrest judgment in a post-trial motion, or raise a sufficiency-of-the-evidence claim on appeal. He does not do so because the evidence clearly was sufficient to convict.

We have settled the issue of using New as a basis of a jury charge in Commonwealth v. Adams, where we stated:

We have examined New, a landmark case____ As we view the language, it sets standards for trial judges to follow in deciding whether to submit a case to the jury or direct a verdict. See Commonwealth v. New, supra, at 221, 47 A.2d at 450. In Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978) similar language was referred to as an “evidentiary proposition.” To submit the language as quoted to a jury would confuse persons unlearned in the law, and perhaps many who are supposed to be learned. Circumstantial evidence “is sufficient if the circumstances are consistent with criminal activity even though they might likewise be consistent with innocent behavior.” (Emphasis supplied). Commonwealth v. Moore, 226 Pa.Super. 32, 34, 311 A.2d 704, 705 (1973).

273 Pa.Super. 484, 486, 417 A.2d 751, 752 (1979) (per curiam).

[143 Appellant argues in his fourth claim that the wiretap should not have been used to collect evidence, as the Commonwealth failed to show that alternative investigative means had been tried and failed, or would be unsuccessful if tried. See 18 Pa.C.S.A. § 5709(3)(vii). “A condition precedent to the issuance of an order authorizing an intercept is a determination by a judge of the Superior Court that ‘normal investigative procedures with respect to such offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ....’ 18 Pa.C.S. § 5710(a)(3).” Commonwealth v. Doty, 345 Pa.Super. 374, 395, 498 A.2d 870, 880 (1985), cert. denied, 479 U.S. 853, 107 S. Ct. 185, 93 L.Ed.2d 119 (1986). “[This] requirement also suggests that a wiretap should not be employed as the initial step in a police investigation.” Id. (citations omitted). “However, the Commonwealth is not required to show that all other investigative methods have been exhausted.” Id. at 395, 498 A.2d at 881 (citations omitted).

In this instance, the Commonwealth used the following investigative measures: undercover infiltration, surveillance, execution of a search warrant, telephone records, and pen registers. That these techniques were ultimately inadequate was the result of the clandestine nature of co-defendants’ activities. One confidential informant, for instance, was unsuccessful in both learning the source of Kratzer’s cocaine and in having an undercover police officer introduced to Kratzer. Kratzer told this source never to bring anyone with him. N.T. 5/1/91 at 37. Moreover, one State Trooper at the suppression hearing testified to the logistical problems with maintaining a visual surveillance of Kratzer’s home. Id. at 32. Dejesus’ activities were equally difficult to identify without the assistance of the wiretaps. We are convinced that the wiretaps were necessary to maintain the efficacy and integrity of the investigation, and were lawfully employed.

In his final argument, appellant maintains that a recorded conversation between his wife and Kratzer should not have been admitted into evidence. Appellant alleges that this amounted to wife’s testifying against appellant, a violation of 42 Pa.C.S.A. Section 5913. We disagree.

The communication between wife and Kratzer was obviously not a confidential communication between spouses, and thus could not be excluded on that ground. See 42 Pa.C.S.A. § 5914; see also Commonwealth v. Newman, 534 Pa. 424, 633 A.2d 1069 (1993). We recognize, however, that wife’s conversation might be construed as an extrajudicial admission; thus we would prohibit its admission into evidence with the same force as we would in-court testimony. Commonwealth v. Easley, 341 Pa.Super. 381, 393-94, 491 A.2d 868, 874 (1985) (Popovich, J., concurring).

During the phone call in question, Kratzer left a message on appellant’s answering machine, saying, “I had something good, but you’re not around.” N.T. 9/23/91 at 66. Appellant’s wife picked up the phone and told Kratzer to come over, but to make sure he was alone. Id.

We find wife’s testimony too vague to be an admission. What the conversation did show, however, was that Kratzer was bringing something over for appellant. This is indicated by Kratzer’s testimony, not wife’s. As such, it is admissible béeause it is the admission of one co-conspirator uttered in the furtherance of a conspiracy. See Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). If any portion of the transcript should have been redacted to exclude wife’s conversation, such an omission was harmless error, since appellant’s participation in the conspiracy was established beyond a reasonable doubt through the conversations with Kratzer. See Commonwealth v. Jones, 540 Pa. 442, 446-447, 658 A.2d 746, 749 (1995) (stating that error is harmless when the evidence of guilt is overwhelming and the error insignificant so that it is clear beyond a reasonable doubt that the error did not contribute to the verdict); see also Evans at 92-94, 413 A.2d at 1029 (holding that admission of evidence of activity not done in furtherance of the conspiracy was harmless error where defendant’s participation was fully established by the testimony of another co-conspirator).

In sum, it was not an abuse of discretion for the trial court to admit the expert testimony of Trooper Vasquez; appellant could have been properly impeached with his conviction for evading and/or defeating federal taxes had he taken the stand; the trial court was correct in refusing to charge the jury on mutually inconsistent inferences; the wiretaps were proper; and, Kratzer’s conversation with appellant’s wife was properly admitted.

Judgment of sentence affirmed.

      . Trooper Vasquez's name appears in the record as both Vasquez and Vazquez.

      . One piece of challenged testimony referred to both amount and price.

      . The expert witness provides for the court what the late General Semanticist and United States Senator S.I. Hayakawa called informative connotations, which are the definitions of a term (what it is and is not) and its extensional denotation (the physical referent). See S.I. Hayakawa, Language in Thought and Action (4th ed. 1978) for a discussion of the meaning of words. In contrast, it would be error for the expert witness to provide for the jury the affective connotations of a word. These are "the aura of personal feelings [the word] arouses.” Id. at 64. The study of affective connotations has traditionally included the evaluative dimension of a word. See David K. Berio, The Process of Communication (1960) 296-7 (citing the classic study of connotations by Charles E. Osgood, George J. Suci, and Percy Tannenbaum in The Measurement of Meaning (1957)). We find no evidence in the record that Vasquez attempted to improperly evaluate the language on the tapes for the jurors; rather, he provided definitions for otherwise vague and ambiguous terms according to the lexicon of the linguistic community in which those words were uttered. See Hayakawa at 50-58 for a discussion of the importance of context in understanding language.

      . Appellant never testified, but did make a motion in limine for the court to decide on the admissibility of appellant’s prior conviction. Appellee argues that appellant's failure to testify should preclude him from raising this claim. The Commonwealth cites to Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) in support of its claim that appellant’s failure to testify makes any appellate ruling on this matter speculative. See appellee’s brief at 21. This Court has specifically rejected Luce in cases such as the one sub judice. Commonwealth v. Richardson, 347 Pa.Super. 564, 500 A.2d 1200 (1985), allocatur denied, 525 Pa. 644, 581 A.2d 571 (1990).

      . We recognize a federal court's authority to interpret federal law. See Nobers v. Crucible, Inc., 431 Pa.Super. 398, 406, 636 A.2d 1146, 1150 ("[W]here the Third Circuit has spoken on a federal question, the ultimate answer to which has not yet been provided by the United States Supreme Court, it is appropriate that we follow the Third Circuit’s decision.”), allocatur denied, 537 Pa. 665, 644 A.2d 1201 (1994). The issue before this Court, however, is not a per se interpretation of 26 U.S.C. § 7201 (federal income tax evasion). Rather, we must decide whether a violation of this federal statute is a crime of dishonesty as defined by the laws of the Commonwealth. The determination of a federal court applying a federal statute within the context of a discussion of the Federal Rules of Evidence, therefore, might be persuasive, but it is by no means binding. Cf. Canonsburg General Hosp. v. Unemployment Compensation Bd. of Review, 156 Pa.Commw. 533, 542 n. 5, 628 A.2d 503, 507 n. 5 (1993) ("[T]he status of strikers as determined by federal labor law is not binding or even necessarily relevant with regard to state unemployment law since the different laws have different policies and involve different rights.”), aff'd, 540 Pa. 531, 658 A.2d 790 (1995).

      . DeJesus proved to be Kratzer's source.

      . Section 5913 states in relevant part that "[e]xcept as otherwise provided in this chapter, in a criminal proceeding husband and wife shall not be competent or permitted to testify against each other."