source: Caselaw Access Project

author: WIEAND, Judge: JOHNSON, Judge,

license: Public Domain

text:
    618 A.2d 406
    Susan HYDE, Appellee, v. Lloyd HYDE, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1992.
    Filed Nov. 6, 1992.
    Reargument Denied Jan. 15, 1993.

      Johnson, J., filed dissenting opinion.
    1. Husband and Wife @=278(1)
    Parent and Child @=3.1(8)
    Right of children to be supported adequately cannot be bargained away by their parents in separation and property settlement agreement.
    2. Divorce @=306
    Father could not contribute to child’s college education without undue hardship to himself and two other children living with him, where, after payment of alimony, he had only $1,680 per month for support of himself and his two children.
    3. Divorce @=306
    In determining mother’s obligation to contribute to. support of her two children living with their father and in determining whether father had continuing obligation to contribute to college education of third child, alimony paid by father to mother should have been treated as gross income to mother in calculating monthly net income. Rules Civ.Proc., Rule 1910.16—5(b), 42 Pa.C.S.A.
    4. Husband and Wife @=279(1)
    There was no basis for disturbing hearing court’s order requiring husband to pay interest at rate of seven and one-half percent per month on unpaid alimony, where terms of separation and property settlement agreement which established rate of interest on unpaid alimony were clear, record did not demonstrate that terms establishing rate of interest resulted from mutual mistake, and husband did not argue that rate of interest established by agreement was usurious.
    Michael J. Seymour, Bethal Park, for appellant.
    John R. DeAngelis, Pittsburgh, for appellee.
    Before WIEAND, JOHNSON and MONTGOMERY, JJ.
   WIEAND, Judge:

The principal issue in this appeal is the consideration to be given to alimony payments in determining the amount of child support payments to be made by a divorced mother and father, both of whom have independent incomes.

Susan Hyde and Lloyd Hyde were married on August 13, 1970 and parented three children: Rebecca, age 19; Daniel, age 17; and Joshua, age 15. Prior to the entry of a decree in divorce on February 1, 1988, the parties entered a separation and property settlement agreement. Pursuant to the terms thereof, custody of the three children was awarded to Susan. Lloyd, meanwhile, obligated himself to pay child support in the amount of five hundred ($500.00) dollars per month and alimony in the amount of one thousand eight hundred twenty ($1,820.00) dollars per month for a period of seventy-two (72) months. Subsequent to the divorce, the two younger children moved in with their father. Rebecca continues to live with her mother while not in residence at Westminster College, where she matriculates.

In November, 1989, Susan Hyde filed a petition seeking to hold her former husband in contempt of court for failing to comply with the terms of the property settlement agreement, which had been incorporated into the divorce decree. She also filed a petition in which she made an additional claim against her former husband for the educational costs being incurred by Rebecca. On January 2, 1990, an order was entered directing Lloyd to pay four hundred ($400.00) dollars per month on account of Rebecca’s college education. In September, 1990, Lloyd Hyde filed a petition for the support of the two children who were now living with him. He also asked the court to vacate the order for Rebecca’s educational support. After a hearing in October, 1990, the court found Lloyd Hyde in contempt for failing to make alimony payments in full, determined the amount of alimony in arrears, vacated the order for the support of the two children who were now living with their father, gave credit for child support adjustments, and directed that Lloyd pay Susan the sum of $19,-664.06. The court also refused to vacate the order of $400.00 per month toward the cost of a college education for Rebecca and ordered Susan to pay $450.00 per month for the support of the two younger children. Lloyd appealed. He contends that in several respects the trial court abused its discretion.

Lloyd is the owner of a franchise known as “Servpro” which cleans and restores fire damaged buildings and contents. The court found his earnings to be $3500 per month. From this amount, he is required to pay alimony in the amount of $1,820.00 per month and educational support for Rebecca in the amount of four hundred ($400.00) dollars per month.

Susan is a working psychologist and is entered in the Ph.D. program at Indiana University of Pennsylvania. She has income, exclusive of alimony, in the amount of two thousand ($2,000.00) dollars per month. When this is added to the alimony received by Susan, it is clear that she has a cash flow of at least three thousand, eight hundred twenty ($3,820.00) dollars per month. From this amount she contributes the sum of four hundred ($400.00) dollars per month to Rebecca’s college education.

It is a simple matter of mathematics to determine that Lloyd, after paying alimony and educational support as ordered by the court, has available monthly the sum of twelve hundred eighty ($1,280.00) dollars for the support of himself and the two children who are living with him. Susan, on the other hand, has available monthly for the support of herself and the two children, after paying four hundred dollars for Rebecca’s education, the sum of three thousand, four hundred twenty ($3,420.00) dollars.

In determining Susan’s obligation to contribute to the support of her two children, the trial court excluded the monthly alimony which she received and found that her only income was two thousand ($2,000.00) dollars per month. In determining whether Lloyd had a continuing obligation to contribute to Rebecca’s college education, however, the trial court considered his monthly income to be thirty-five hundred ($3,500.00) dollars. It is the failure either to reduce Lloyd’s income by the amount of alimony which he pays or to increase Susan’s income by the amount of alimony which she receives which has created the inequitable disparity between the parental obligations of Lloyd and Susan. Some of this disparity has also been brought about by the terms of the parties’ agreement, and if Lloyd were the only victim of the disparate income, we would not be inclined to rescue him from the results of a bad bargain. In fact, however, the real victims are the two children who are presently living with him. Their right to be supported adequately cannot be bargained away by their parents. See: Brown v. Hall, 495 Pa. 635, 643 n. 11, 435 A.2d 859, 863 n. 11 (1981); Travitzky v. Travitzky, 369 Pa.Super. 65, 79 n. 6, 534 A.2d 1081, 1088 n. 6 (1987); Oman v. Oman, 333 Pa.Super. 356, 361, 482 A.2d 606, 609 (1984).

In Steinmetz v. Steinmetz, 381 Pa.Super. 440, 554 A.2d 83 (1989), a panel of the Superior Court considered a similar issue. It‘determined, under the circumstances of that case, that alimony payments should not be considered income to a wife-mother but that the father’s available income should be reduced by such payments of alimony. The court was influenced by the fact that the wife-mother was dependent upon the alimony which she received to support herself. It concluded, therefore, that income derived by her from alimony payments should not be a source of support for her children. The Court’s ruling, however appropriate to the facts of that case, as the Court realized, cannot be applied automatically to all cases. Thus, the Court said specifically that alimony payments are not “automatically” to be included as income to the wife.

The trial court, in the instant case, failed to follow the teaching of Steinmetz, because it determined that alimony payments should be excluded as income to Susan but should not be excluded from that income to Lloyd which was available for child support. This was error. In fact, of Lloyd’s income of $3,500.00 per month, the sum of $1,820.00 per month is immediately earmarked as alimony to Susan. Thus, Lloyd has available for the support of himself and his children only $1,680.00 per month. This is approximately four hundred ($400.00) dollars per week and does not bespeak an ability to contribute to Rebecca’s college education without undue hardship to Lloyd and the two children living with him. See: Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102 (1989); Chesonis v. Chesonis, 372 Pa.Super. 113, 538 A.2d 1376 (1988).

In fact, however, the holding in Steinmetz v. Steinmetz, supra, has been superseded by the Rules of Civil Procedure adopting the Support Guidelines. The monthly net income of mother and father, for purposes of applying the guidelines, is to be determined as set forth in Pa.R.C.P. 1910.16—5(b). It is there provided as follows:

(b) Monthly Net Income. The amount of support to be awarded is based in large part upon the parties’ monthly net income. Monthly net income is determined by subtracting only the following items from monthly gross income:
(1) federal, state, and local income taxes;
(2) F.I.C.A. payments and non-voluntary retirement payments;
(3) union dues;
(4) health insurance premiums for the benefit of the other party or the children.
Monthly gross income is ordinarily based upon at least a six-month average of all of a party’s income. The term “income” is defined by the support law, 23 Pa.C.S. § 4302, and includes income from any source. The statute lists many types of income including:
(1) wages, salaries, fees and commissions;
(2) income from business or dealings in property;
(3) interest, rents, royalties, and dividends;
(4) pensions and all forms of retirement;
(5) income from an interest in an estate or trust; and
(6) social security benefits, temporary and permanent disability benefits, workmen’s compensation and unemployment compensation.

From this it is quite clear that alimony payments are not to be subtracted from gross income to determine net income available for child support. Alimony is not one of the items which are deductible from gross income to determine net income. On the other hand, gross income is defined generally as “income from any source” and is broad enough to include alimony payments. Thus, since alimony payments must be accounted for, they are counted as gross income to the receiving spouse.

In the instant case, a fair and equitable result can best be achieved by including the alimony payments as monthly gross income to Susan. In this manner, her ability to contribute to the support of her children can most accurately be determined without depriving her of the benefit of the order requiring Lloyd to pay alimony. By requiring her to contribute to the support of the children who are now residing with Lloyd on the basis of the income which she receives from all sources, she will be able to benefit her children fairly and in keeping with the funds available to her. When she makes these contributions in accordance with the guideline formula, Lloyd should also be able to continue his payment of one-half of Rebecca’s monthly expenses at college. In this manner, both parents will continue fully to be a sustaining force in the lives of all of their children. The alimony payments, then, will not be placed beyond the reach of the children’s needs but will be available, as circumstances permit, to insure that the children are properly supported.

Appellant also contends that the trial court erred when it required him to pay interest at the rate of 7]/¿ percent per month on unpaid alimony and improperly apportioned his payments between educational expenses for his daughter and alimony for his former wife. However, the terms of the agreement which establish the rate of interest on unpaid alimony are clear, and the record does not demonstrate that they are the result of mutual mistake. Moreover, the record does not disclose that the apportionment of payments by the Collection Department was improper or in violation of specific instructions by appellant. As such, there is no basis for disturbing the hearing court’s computation of interest chargeable to appellant on alimony payments not made when due.

Reversed and remanded for proceedings consistent with the foregoing opinion. Jurisdiction is not retained.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting.

In this case, Father appeals from an order for child support. I completely agree with the Majority to the extent that it upholds the order of the trial court directing the parties’ to equally share the cost of their daughter’s college education. However, I am compelled to dissent since I would affirm the order of the trial court in its entirety.-

The Majority defines the primary issue in this appeal as whether the trial court erred in excluding alimony payments received by Mother from her income in calculating the amount of her child support payments due to Father. The Majority determines that the trial court erred in its calculation of Mother’s monthly income. I disagree.

To include alimony received in Mother’s monthly income, the Majority relies upon Rule 1910.16-5(b) of the Pennsylvania Rules of Civil Procedure. Subsection (b) of this Rule states, in its entirety:

(b) Monthly Net Income. The amount of support to be awarded is based in large part upon the parties monthly net income. Monthly net income is determined by subtracting only the following items from monthly gross income:
(1) federal, state, and local income taxes;
(2) F.I.C.A. payments and non-voluntary retirement payments;
(3) union dues;
(4) health insurance premiums for the benefit of the other party or the children.

Monthly gross income is ordinarily based upon at least a six-month average of all of a party’s income. The term “income” is defined in support law, 23 Pa.C.S. § 4302, and includes income from any source. The statute lists many types of income including:

(1) wages, salaries, fees and commissions;
(2) income from business or dealings in property;
(3) interest, rents, royalties, and dividends;
(4) pensions and all forms of retirement;
(5) income from an interest in an estate or trust; and
(6) social security benefits, temporary and permanent disability benefits, workmen’s compensation and unemployment compensation.

From reference to Rule 1910.16—5(b), the Majority correctly states that the Rule does not provide for the deduction of alimony payments from Father’s gross income to calculate his net income for child support purposes. The Rule clearly provides only for the deduction of various taxes, retirement contributions, health insurance payments, and union dues.

The Majority then defines gross “income” as a term “broad enough to include alimony payments” in Mother’s income for the purpose of calculating child support payments. I must disagree. The term “income” is defined specifically for support law in 23 Pa.C.S. § 4302 as:

“Income.” Includes compensation for services, including, but not limited to, wages, salaries, compensation in kind, commissions and similar items; income derived from business; gains derived from dealings in property; interest; rents; royalties; dividends; annuities; income from life insurance and endowment contracts; all forms of retirement; pensions; income from discharge of indebtedness; distributive share of partnership gross income; income in respect of a decedent; military retirement benefits; railroad employment retirement benefits; social security benefits; temporary and permanent disability benefits; workmen’s compensation and unemployment compensation.

Our legislature does not include alimony in the specific examples used to illustrate what constitutes gross income. This statute specifically provides that “compensation for services” is included in the definition of “income” for support purposes. Rather than serving as compensation to a spouse for services, as contemplated for “income” under 23 Pa.C.S. § 4302, our Court has considered alimony to be rehabilitative. Alimony assures that the needs of the dependent spouse are met until such time as the dependent spouse is able to adjust to life without financial support from the former spouse. McNulty v. McNulty, 347 Pa.Super. 363, 500 A.2d 876 (1985). While the term “income”, as defined for support purposes, may encompass many types of remuneration, I am unwilling to usurp the legislative function and include alimony in the definition of “income” under 23 Pa.C.S. § 4302. The Majority relies upon the inclusion of alimony in gross income for income tax purposes as support for the proposition that alimony should be included in the calculation of Mother’s gross income. Rule 1910.16—5(b), however, specifically refers to “income” only as it is defined by support law, 23 Pa.C.S. § 4302. Absent statutory authority, I will not presume the term “income” to be so all-inclusive that it must necessarily include alimony.

This Court has recently addressed this identical issue in Steinmetz v. Steinmetz, 381 Pa.Super. 440, 554 A.2d 83 (1989). There, we stated that monies allocated as alimony should be excluded from the resources available for child support for both supporting and dependent spouses. Id. at 449, 554 A.2d at 86-87. The Majority correctly notes that our holding in Steinmetz was superseded by Pa.R.C.P. 1910.16—5(b) to the extent that money allocated for alimony payments may not be excluded when calculating the payor spouse’s net income. Nonetheless, I am unable to agree with the Majority’s conclusion that Rule 1910.16(b) invalidates the entire holding of Steinmetz. There, we specifically stated:

Because alimony is specifically designated to assist the dependent spouse in overcoming the economic effects of the dissolution of the marriage and not for the support of the children, the inclusion of the alimony award would create the appearance of an inflated income from which the child support obligation would be drawn and would undermine the purpose for which alimony is awarded.

Steinmetz at 448, 554 A.2d at 86. This statement is the viable standard under which we must assess the actions of the trial court. Nothing contained in Rule 1910.16-5(b) acts to supersede this long-held understanding as to the purpose of alimony.

In the present case, the trial court applied the appropriate standards to arrive at the income available for child support for both parties. The trial court included the money allocated for alimony payments in Father’s net income, as statutorily mandated under Rule 1910.16-5(b). The trial court also excluded the amount of alimony payments received from Mother’s income for the purposes of calculating the child support which Mother must pay, which is the proper procedure, under Steinmetz.

I am unable to agree with the Majority that it is within the purview of this Court to “rescue” parties from “the results of a bad bargain”. Majority opinion, pp. 417-421. Our function, as an appellate court, is not to fashion a more “fair and equitable result.” Majority opinion, p. 421. An order for child support must be affirmed unless a clear abuse of discretion on the part of the trial court has been proven by clear and convincing evidence. Oeler by Gross v. Oeler, 527 Pa. 532, 594 A.2d 649 (1991). I am unable to conclude that there has been an abuse of discretion on the part of the trial court, since the order in question complies with the existing law.

The Majority, in footnote 8, p. 422, indicates that it expresses no opinion on whether the interest rate of seven and one-half percent as established in the agreement is usurious. Since the clear implication of the footnote is that such a rate might be usurious, and since material contained in footnotes in one opinion sometimes surface as “law” in a later opinion, I feel compelled to distance myself from any such implication.

The parties, in this case, were represented by counsel and clearly provided for a specific rate of interest to be paid by Father in the event of a default in the payment of alimony. Property Settlement Agreement, January 21, 1988 at 14. Where contract provisions anticipate non-payment of money due, and provide for a specific rate of interest, they will be upheld. Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 36, 473 A.2d 584, 595 (1984). Only where parties fail to provide for the rate of interest, in the event of breach of contract, will the “legal rate” of interest be applied by the courts. Daset Mining Corp. at 39, 473 A.2d at 597; Restatement (Second) of Contracts § 354, comment a.

In the present case, the parties, on the advice of counsel, agreed that if Father were to breach his duty to pay alimony, interest of seven and one-half percent per month would be paid to Mother on all unpaid amounts of alimony. Father does not contend that the rate of interest as provided in the property settlement agreement is usurious or illegal. This issue was not raised in the trial court. The Majority raises this issue sua sp'onte, albeit by way of footnote. But see Pa.R.A.P. 302(a). This Court could not consider the issue posed in the Majority’s footnote 8 simply because it is outside the scope of proper appellate review. Estep v. Estep, 508 Pa. 623, 626-627, 500 A.2d 418, 419 (1985) citing Wiegand v. Wiegand, 461 Pa. 482, 485, 337 A.2d 256, 257 (1975).

On this appeal, Father asserts that he misunderstood the interest provision which appears in the property settlement agreement and that the trial court should have considered Father’s understanding of the interest term in the agreement. Father also contends that the delinquent payments for alimony and the educational support for his daughter should have been designated solely as payments due for educational support. In that way, no interest could be assessed under the property settlement agreement. I find no merit in these arguments. I am at a loss in understanding the purpose in the Majority alluding to the possibility of usury arising on these facts.

The trial court, in this case, correctly articulated and applied the law with respect to property settlement agreements. Property settlement agreements will be interpreted in accordance with the same rules of law that apply to the interpretation of contracts in general. VanKirk v. VanKirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984). When construing agreements with clear and unambiguous terms, this Court need only examine the writing itself to give effect to the parties understanding. McMahon v. McMahon, 417 Pa.Super. 592, 598, 612 A.2d 1360, 1363 (1992). Here, the clear and unambiguous language of this property settlement agreement provides for payment of the agreed upon interest rate in the event of default by Father. Father entered into this agreement on advice of counsel and does not claim that the agreement was the product of fraud, duress or coercion. Now that Father has defaulted on his duty to pay alimony and educational expenses, he cannot offer parole evidence to explain how he would interpret the unambiguous interest provision which appears on the face of the agreement. Frank v. Frank, 402 Pa.Super. 458, 587 A.2d 340 (1991). Moreover, Father offers no authority, nor do we discern any, for the proposition that he should be permitted to allocate, from the $13,240.00 he owes in arrearages, how much of that sum should be designated as alimony or as educational expense, so that he can avoid paying interest on unpaid alimony. I cannot conclude that the trial court abused its discretion by enforcing the clear and unambiguous contract provisions. I would, therefore, affirm the order of the trial court.

Accordingly, I must respectfully dissent.

      . These were the ages given at the time of the hearing in October, 1990.

      . The agreement contains no provision for the payment of college expenses for the children by either parent.

      . It is undisputed that Susan receives payments of six hundred ($600.00) dollars per month from a note assigned to her as part of the parties' property settlement agreement. Husband argues that this is in addition to wife’s income of two thousand ($2,000.00) dollars per month. Although this was not the subject of a finding by the hearing court, there is some, albeit not conclusive, support in the record for husband’s contention. If this is correct, then wife has an actual cash flow of four thousand, four hundred twenty ($4,420.00) dollars per month.

      . The parties stipulated that Rebecca’s expenses were in the total amount of eight hundred ($800.00). dollars per month.

      . Lloyd is also required to pay medical expenses for the children and interest at the rate of l'k% per month on overdue payments of alimony.

      . The provisions of 23 Pa.C.S. § 4302, in pertinent part, are as follows:

        “Income.” Includes compensation for services, including, but not limited to, wages, salaries, fees, compensation in kind, commissions and similar items; income derived from business; gains derived from dealings in property; interest; rents; royalties; dividends; annuities; income from life insurance and endowment contracts; all forms of retirement; pensions; income from discharge of indebtedness; distributive share of partnership gross income; income in respect of a decedent; income from an interest in an estate or trust; military retirement benefits; railroad employment retirement benefits; social security benefits; temporary and permanent disability benefits; workmen’s compensation and unemployment compensation.

      . We observe that alimony payments, if paid pursuant to court order, are also deemed income to the receiving spouse for income tax purposes.

      . Appellant has not argued that the rate of interest established by the agreement is usurious, and with respect thereto we express no opinion.


author: TAMILIA, Judge:

text:
    618 A.2d 412
    Christopher M. WRIGHT, Appellant, v. Ronald L. SCHREFFLER, Individually and in his Capacity as an Employee of the Pennsylvania State University Department of University Safety; Thomas Harmon, Individually and in his Capacity as Supervisor of Investigator Ronald L. Schreffler and in his Capacity as Director of the Department of University Safety at the Pennsylvania State University; David Stormer, Individually and in his Capacity as Director of the Department of University Safety at the Pennsylvania State University and Employee of the Pennsylvania State University; the Pennsylvania State University; Thomas R. King, in his Capacity as Investigator and Employee of the State College Bureau of Police Services; Elwood Williams, Individually and in his Capacity as Chief of Police for the State College Bureau of Police Services; and Mayor Arnold Addison, in his Capacity as Mayor of the Borough of State College.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1992.
    Filed Nov. 6, 1992.
    Reargument Denied Jan. 15, 1993.

      Joseph M. Devecka, State College, for appellant.
    Michael E. Roll, State College, and James D. Young, Harrisburg, for appellees.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   TAMILIA, Judge:

Christopher M. Wright appeals the trial court’s Order entered December 4, 1991 granting appellees’ preliminary objections and dismissing with prejudice all counts of appellant’s complaint for failure to state a claim or cause of action upon which relief may have been granted.

In 1985, appellant was arrested for possession and delivery of marijuana by appellees Officers Ronald L. Schreffler, who was acting as an employee of Pennsylvania State University Department of University Safety, and Thomas R. King, who was acting as an employee of the State College Bureau of Police Services. After appellant was convicted and sentenced in 1987, this Court reversed on the basis appellant had been entrapped as a matter of law. Commonwealth v. Wright, 396 Pa.Super. 276, 578 A.2d 513 (1990), allocatur denied, 526 Pa. 634, 584 A.2d 317 (1991). Appellant then filed an eighteen-count complaint for malicious prosecution, conspiracy, intentional infliction of emotional distress and punitive damages against King and Schreffler, as well as against Thomas Harmon and David Stormer, who were two supervisors of Schreffler and Pennsylvania State University. Additionally, the complaint named as defendants Elwood Williams, who was the Chief of Police of State College and King’s supervisor, and Mayor Arnold Addison.

Although appellant’s underlying conviction was reversed by this Court, the trial court sustained the appellees’ preliminary objections, holding the claim for malicious prosecution failed since the initial criminal proceedings did not terminate in favor of appellant and since appellant did not show an absence of probable cause.

Appellant presents only one issue for our review. He argues a malicious prosecution action is not barred by an earlier finding of probable cause when the probable cause was predicated upon evidence of a crime induced by tactics amounting to entrapment as a matter of law. We agree and thus vacate the Order and remand the case for further proceedings.

On an appeal from the sustaining of preliminary objections in the nature of a demurrer we accept as true all well-pleaded material facts set forth in the complaint as well as all inferences reasonably deducible therefrom. DiMarco v. Lynch Homes, 525 Pa. 558, 583 A.2d 422 (1990).

“In order to prevail on a claim of malicious prosecution, the plaintiff must show that the defendant maliciously instituted proceedings against the plaintiff, that the defendant did not have probable cause to institute the proceedings, and that the proceedings terminated in favor of the plaintiff.” Motheral v. Burkhart, 400 Pa.Super. 408, 421, 583 A.2d 1180, 1187 (1990).

In dismissing the malicious prosecution counts, the trial court found as follows:

First, the initial or underlying proceedings did not terminate in favor of the Plaintiff. Second, although the conviction of the Plaintiff was reversed by the Superior Court, the Plaintiff cannot demonstrate the absence of probable cause by the arresting officers as the presence of probable cause was upheld by various judicial officers. The fact that the officers had probable cause is sufficient to defeat the cause of action of malicious prosecution.

(Slip Op., Grine, J., 12/23/91, p. 4.) The trial court reasoned a conviction conclusively establishes the existence of probable cause, regardless of whether it is subsequently reversed. The court stated “[ijimplicit in the trial court’s decision to submit the question to the jury is a finding of probable cause.” (Slip Op. at 4.)

“Whether an ‘entrapment has occurred is a question for the jury, unless the evidence points to only one conclusion, in which case it may be decided as a matter of law.’ ” Commonwealth v. Wright, 396 Pa.Super. 276, 288, 578 A.2d 513, 519 (1990), quoting Commonwealth v. Clawson, 250 Pa.Super. 422, 425, 378 A.2d 1008 (1977). Entrapment as a matter of law means the evidence was so overwhelming that reasonable minds could come to no other conclusion. Commonwealth v. Weiskerger, 520 Pa. 305, 554 A.2d 10 (1989). “Probable cause is defined as ‘... a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinary prudent man in the same situation in believing that the party is guilty of the offense.’ ” Cibrone v. Stover, 351 Pa.Super. 250, 254, 505 A.2d 625, 627 (1986), quoting Wainauskis v. Howard Johnson Co., 339 Pa.Super. 266, 277, 488 A.2d 1117, 1122 (1985).

Here, the officers technically never had probable cause to think appellant was engaged in criminal activity because “reasonable grounds of suspicion” were derived exclusively from their own illegal entrapment tactics and not from other circumstances. In other words, excluding the improper police behavior which induced appellant into illegal activities, the police lacked other grounds for probable cause.

We disagree with the trial court’s position that probable cause existed because appellant was initially convicted, and the subsequent reversal did not replace the initial establishment of probable cause by a magistrate and a jury. Further, if we were to hold the initial conviction established the existence of probable cause, thereby foreclosing appellant’s malicious prosecution claim, citizens wrongfully entrapped by the police would have no civil redress and police officers would not be deterred from employing similar tactics in the future. “Official conduct designed to provoke criminal behavior, or which creates a substantial risk that unwitting citizens will be implicated in criminal schemes, should not be tolerated in Pennsylvania.” Commonwealth v. McGuire, 339 Pa.Super. 320, 334, 488 A.2d 1144, 1151 (1985). The trial court was in error in equating probable cause, based on information or evidence which is sufficient to trigger arrest and prosecution (even though it might not sustain a conviction or result in reversal after conviction), to entrapment where no probable cause existed. A preliminary finding of probable cause and conviction therefrom does not elevate entrapment to the level of protection afforded a lawful arrest when the ultimate finding of entrapment as a matter of law is made.

Finally, appellees contend even if probable cause was missing, appellant does not plead facts sufficient to establish malice by the officers. “Malice may be inferred from want of probable cause.” Wainauskis, supra at 279, 488 A.2d at 1123. Since we find the officers lacked probable cause to arrest and prosecute appellant, we infer their malicious intent.

Order vacated; case remanded for proceedings consistent with this Opinion.

Jurisdiction relinquished.

      . In support of its holding the trial court relies upon Bussard v. Neil, 616 F.Supp. 854 (D.C.Pa.1985), a case which this Court is not bound to follow. Additionally, we do not agree with the trial court’s analysis since entrapment was not present in Bussard. Without the entrapment in the present case, there could not have been a charge or conviction.


author: DEL SOLE, Judge.

text:
    618 A.2d 415
    COMMONWEALTH of Pennsylvania v. Aaron JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 16, 1992.
    Filed Nov. 16, 1992.

      Joel L. Fishbein, Philadelphia, for appellant.
    Karen A. Brancheau, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before McEWEN, DEL SOLE and HUDOCK, JJ.
   DEL SOLE, Judge.

This a direct appeal from a judgment of sentence imposed for the convictions of knowing or intentional possession of a controlled substance and possession of a controlled substance with intent to manufacture or deliver. Finding no abuse of discretion or error of law by the trial court, we affirm.

On August 8, 1990, Philadelphia Police Officer Genaro Fontanez wás working with a partner on a drug surveillance assignment in a North Philadelphia neighborhood. Officer Fontanez observed Appellant, Aaron Johnson, approach a car at the intersection of Somerset and Reese Streets, one-half block away. Appellant briéfly conversed with the driver and then handed him a green plastic packet, receiving money in exchange. Officer Fontanez followed Appellant until he reached Reese Street, where the officer lost sight of him for a brief moment. The officer next observed Appellant holding a paper bag, which he placed underneath a tire lying on the pavement. Appellant proceeded up Reese Street to the residence of Leslie Waters, approximately one hundred fifty feet away from the location of the bag. Upon reaching Ms. Waters’ house, Appellant joined several neighbors who were working on Ms. Waters’ car in front of her home.

Officer Fontanez went to investigate the contents of the paper bag left under the tire, while his partner apprehended Appellant. The bag contained $1503.00 and five hundred twenty-seven small green packets of a white substance, which tested positive for the presence of cocaine and had a street value in excess of $35,000.00.

A jury found Appellant guilty of knowing or intentional possession of a controlled substance and possession of a controlled substance with intent to manufacture or deliver. Timely post-verdict motions were filed, and new counsel was appointed. The trial court, after hearing argument on the motions, denied them and imposed a sentence of five to ten years’ imprisonment and a mandatory fine of $25,000.00, pursuant to 18 Pa.C.S.A. § 7508(a)(3)(iii). This appeal followed.

Appellant raises six issues for review:

1) Whether the verdict was supported by sufficient evidence, and whether the verdict was against the weight of the evidence and contrary to law?
2) Whether the supplementary instruction given to the jury regarding the legal definition of possession was contrary to law and highly prejudicial?
3) Whether trial counsel was ineffective for failing to give notice of an alibi defense, and for failing to request the standard alibi instruction?
4) Whether the sentence imposed constituted an aggravated sentence according to the sentencing guidelines and whether the court placed on the record any circumstance justifying an aggravated sentence?
5) Whether Appellant’s prior conviction for a weapons misdemeanor was too remote to be considered in his sentencing?
6) Whether the mandatory fine set forth in 18 Pa.C.S.A. § 7508(a$)(3)(iii) is unconstitutional on its face and as applied in Appellant’s case?

First we address Appellant’s claims regarding the weight and sufficiency of the evidence in his case. Appellant argues that because he was not seen with the paper bag in his hand for any substantial period of time prior to the officer’s observance of him placing the bag under the tire, there was no evidence that Appellant exercised dominion and control over the bag.

In reviewing for sufficiency of evidence the test is whether the evidence, viewed in the light most favorable to the Commonwealth as the verdict winner, and drawing all reasonable inferences therefrom, is sufficient to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989). In the instant case, the officer did see the bag in Appellant’s hand for a brief instant before Appellant secreted it in the tire. (N.T. 1/11/91, 28). The jury could correctly infer from the fact that Appellant hid the bag that he intended to exercise dominion and control over it; one does not deliberately hide property to which he is relinquishing ownership. Therefore, we find the evidence to be sufficient for the jury to have found every element of the crimes charged proven beyond a reasonable doubt.

Appellant does not specifically argue in what manner the verdict is against the weight of the evidence; however, we note that it is the jury’s prerogative to believe all, part or none of the evidence, Id., and there is no inconsistency between the evidence and the verdict so as to shock our sense of justice. Commonwealth v. Hunter, 381 Pa.Super. 606, 554 A.2d 550 (1989). Therefore, Appellant’s argument concerning the weight of the evidence also fails.

Appellant’s second contention on appeal is that the trial court’s supplementary instruction regarding the legal definition of possession was contrary to law and highly pre$judicial. When the jury requested that the court re-read Officer Fontanez’s testimony regarding Appellant’s discarding the paper bag, the court refused and instead gave an instruction concerning the legal definition of possession. Appellant claims that the instruction unfairly drew the jury’s attention to a hypothetical basis for a guilty verdict that was not supported by the evidence or testimony.

When a jury requests that recorded testimony be read to it to refresh its memory, it rests within the trial court’s discretion to grant or deny such request. Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984). We find no abuse of this discretion in the trial court’s refusal to re-read the officer’s testimony. In the instant case, the supplemental instruction given was in accordance with the standard jury instruction and took into account both the testimony of Officer Fontanez and Appellant’s testimony. Therefore, the instruction was neither erroneous nor contrary to law.

Appellant’s third claim is that trial counsel was ineffective for failing to give notice of an alibi defense and for failing to request the standard alibi instruction. Appellant contends that the testimony of Leslie Waters and her two neighbors establishes that Appellant was in front of Ms. Waters’ house, and not at the corner where the drug transaction occurred, for at least five minutes and as much as an hour. Therefore, he claims that because he presented substantial evidence that he was at a place other than the scene of the crime, he deserved to have the jury properly consider an alibi defense.

In the instant case, the testimony of the witnesses does not place Appellant away from the scene of the crime, but rather implies that Appellant was at the scene and that the officers mistakenly identified him as the one who had hidden the bag, instead of the two men Ms. Waters saw running by her. (N.T. 1/11/91, 64-67, 72). Therefore, Appellant was not entitled to an alibi instruction, as he did not present an alibi defense, and accordingly, this claim is meritless. Trial counsel was not ineffective for failing to assert a baseless claim. Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984).

Appellant’s fourth claim is that the trial court erred because the sentence imposed constituted an aggravated sentence and the court failed to state on the record the reasons justifying the imposition of such sentence. The Commonwealth asserts that Appellant has failed to raise a substantial question that the sentence imposed is not appropriate under the Sentencing Code. We disagree, noting that a substantial question is raised where there is an allegation that the sentencing court did not adequately explain its reason for the sentence. Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992) (en banc), citing Commonwealth v. Thomas, 370 Pa.Super. 544, 537 A.2d 9 (1988). Therefore, we will address the merits of Appellant’s first sentencing claim.

Sentences imposed at the overlap of the standard minimum and aggravated minimum ranges are presumed to be aggravated, Commonwealth v. Hoover, 342 Pa.Super. 163, 492 A.2d 443, 444 (1985), unless the trial judge asserts the contrary on the record. This occurred in the present case, when during sentencing, the judge specifically stated that the minimum sentence was within the standard range. (N.T. 9/25/91, p. 10). Therefore, Appellant’s claim is meritless.

In regard to Appellant’s fifth claim that the trial court erred in taking into account a weapons misdemeanor for which he was convicted in 1974, the Commonwealth again asserts that Appellant has failed to present a substantial question that the sentence imposed is inappropriate under the Sentencing Code, in accordance with Pa.R.A.P. 2119(f). Essentially, Appellant claims that the court erred in considering his weapons misdemeanor, as it was too remote in time, and that consequently, his prior record score was miscalculated. The Commonwealth is incorrect in its desire to apply § 9781(b) of the Sentencing Code and Pa.R.A.P. 2119(f) to this issue. Calculation of a prior record score or an offense gravity score are not matters within the trial court’s discretion. Therefore, neither § 9781 nor 2119(f) are implicated in this issue on appeal. We hold that where the issue on appeal is the improper calculation of a prior record score or an offense gravity score, a direct appeal lies because these are legal questions, and a discretionary review is not appropriate. Therefore, we will address the merits of Appellant’s sentencing issues.

In regard to the inclusion of the weapons misdemeanor as a background factor considered in the imposition of Appellant’s sentence, we note that Appellant has an extensive history of criminal behavior, including aggravated assault on a police officer, burglary, and sexual offenses against children. The present offenses were committed while he was on probation. Neither the Sentencing Code nor the sentencing guidelines place any time limits on offenses to be included in the prior record score, as such criminal history is relevant to sentencing. Thus, the 1974 conviction falls within the type of criminal activity that is pertinent to sentencing considerations, and we find no error by the trial court in including it as part of Appellant’s criminal history in assigning a prior record score.

Appellant’s final contention is that the mandatory fine of $25,000.00 set forth in 18 Pa.C.S.A. § 7508(a)(3)(iii) is unconstitutional on its face and as applied in the instant case. Appellant argues that because the statute does not permit the court to consider the defendant’s ability to pay prior to imposing the fine, the fine is unconstitutional on its face. Appellant claims that the statute is also unconstitutional as applied because he has few assets, was declared indigent by the court and is thus unable to pay the fine. We find no merit to either argument.

In Commonwealth v. Green, 406 Pa.Super. 120, 593 A.2d 899 (1991), we held that § 7508 was not a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. The appellant in Green argued that because of his advanced age and physical impairments, the imposition of a mandatory sentence under § 7508 amounted to cruel and unusual punishment. This court noted that the legislature, by enacting § 7508, acknowledged the gravity of drug offenses as well as the need to protect the public from such offenses. Therefore, we held that the mandatory minimum sentence established by § 7508 serves as a suitable deterrent and was not unconstitutionally disproportionate to the seriousness of the appellant’s crimes.

The instant case, while addressing a different constitutional challenge, is analogous. We find the sentence and fine which Appellant received to be proportionate to the gravity of Appellant’s offense. The Eighth Amendment only forbids extreme sentences which are “grossly disproportionate to the crime.” Solem v. Helm, 463 U.S. 277, 288, 303, 103 S.Ct. 3001, 3008, 3016, 77 L.Ed.2d 637 (1983). We find nothing disproportionate in regard to a $25,000.00 fine for possession of cocaine with a street value of $35,980.00. Therefore, Appellant’s argument that the statute is unconstitutional on its face is meritless.

Furthermore, case law also explicitly states that “[t]here is no constitutional requirement that invalidates the imposition of an otherwise valid fíne merely because a defendant lacks the immediate ability to pay or would have difficulty in doing so.” Commonwealth v. Church, 513 Pa. 534, 522 A.2d 30 (1987). However, because payment by Appellant will not become due until he is paroled, the “cruel and unusual” implications of the Eighth Amendment are not applicable until that time. Therefore, the issue of whether the statute is unconstitutional as applied is not before us presently, as it will not arise until collection of the fine. Accordingly, we affirm the judgment of the trial court.

Judgment of sentence affirmed.


author: BROSKY, Judge.

text:
    618 A.2d 420
    COMMONWEALTH of Pennsylvania v. Dale BRISON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 13, 1992.
    Filed Dec. 10, 1992.

      Vincent P. DiFabio, Paoli, for appellant.
    Terry Heyman, Asst. Dist. Atty., West Chester, for Com., appellee.
    Before McEWEN, CIRILLO and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the judgment of sentence entered following appellant’s convictions for one count of rape, kidnapping, aggravated assault and carrying a prohibited offensive weapon, and three counts of involuntary deviate sexual intercourse. Appellant presents the following issues for our review: (1) whether the verdict was against the evidence and/or the weight of the evidence; (2) whether appellant’s constitutional right to a fair trial was violated by the Commonwealth’s failure to comply with appellant’s request for DNA testing; and (3) whether appellant was denied his constitutional right to a fair trial and effective representation by the trial court’s failure to grant appellant’s request for DNA testing in light of appellant’s indigent status. For the reasons set forth below, we vacate the judgment of sentence and remand for further proceedings consistent with the following discussion.

Before proceeding to address the questions raised by appellant, it is necessary to briefly recount the relevant facts of this case. Shortly after midnight on July 14, 1990, the victim left her apartment and proceeded towards Penn Supreme, a late-night convenience store. As she approached the store, the victim observed an individual, whom she later identified as appellant, Dale Brison, standing near a pay telephone. The victim continued walking when appellant suddenly approached her and placed one hand about her throat and the other about her waist. The victim heard a clicking noise, similar to a switchblade knife being opened, and experienced a sharp pain in her left side. The victim then fainted for a brief period of time. When she regained consciousness, she found herself walking on another street with appellant’s hands still about her throat and waist. The victim tried to escape from appellant by attempting to sit down near some stone pillars and by grabbing onto a sign. The victim also screamed. The victim’s efforts to escape were thwarted by appellant who threatened the victim and instructed her not to scream. Appellant ultimately led the victim into briar bushes located outside of an apartment complex. Appellant removed the victim’s raincoat, her left shoe and sock, and the left leg of her jeans. Appellant then forced the victim to perform and/or submit to multiple acts of fellatio and cunnilingus. Appellant also vaginally and anally raped the victim several times. After completing his brutal assault, appellant released the victim at approximately 2:45 a.m.

When the victim arrived at her home, she discovered that she was heavily bleeding from the stab wounds inflicted by appellant. The victim also had abrasions on her neck and hand which were sustained during the incident. The victim contacted the police who transported her to the hospital where she was treated for her injuries. A rape kit was also performed on the victim.

Although the victim had observed appellant in the neighborhood, she did not know his name. The victim accompanied the police on several outings in an attempt to identify her assailant. On the third outing, the victim noticed appellant and mentioned this to the officer after they had walked past a group of individuals with whom appellant was standing. However, appellant had disappeared by the time the victim and the police officer returned for a closer look. Several days later, the victim observed a group of individuals standing outside her apartment building and became visibly upset when she recognized appellant in the crowd. A friend of the victim’s, who was driving past, noticed the victim’s distraught state and escorted her to the police station. The victim described appellant to her friend, who had also seen appellant. The victim’s friend, who knew appellant, informed the police of his identity. Appellant was thereafter arrested and charged with various offenses arising out of this incident.

A jury trial was held in June 1991, following which appellant was convicted of the above crimes. Post-trial motions were filed and denied. Appellant was subsequently sentenced on February 25,1992 to an aggregate sentence of eighteen (18) to forty-two (42) years’ imprisonment. This timely appeal followed.

Appellant first challenges the weight of the evidence presented. Our scope of review regarding claims of this type has been enunciated as follows:

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

Commonwealth v. Murray, 408 Pa.Super. 435, 436-437, 597 A.2d 111, 112 (1991) (en banc), allocatur denied, 529 Pa. 668, 605 A.2d 333 (1992), quoting Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984). We will evaluate the evidence and appellant’s arguments relating thereto in accordance with these principles.

In support of his attacks on the sufficiency and weight of the evidence, appellant claims that the evidence was deficient in that the victim was unable to make a positive identification due to a variety of factors. Appellant further argues that the evidence was inadequate because the physical evidence did not link appellant to the crimes and/or suggested that the victim was attacked by someone else. Finally, appellant contends that the evidence was deficient because he presented an uncontradicted alibi. Notwithstanding appellant’s arguments to the contrary, he is not entitled to relief on this basis.

The victim unequivocally and consistently testified that she was able to observe her assailant for a substantial period of time despite the darkened location, rain and diminished lighting conditions. N.T. 6/3/91 at 9, 10, 12, 16, 18, 21, 22 and 77. Moreover, the victim has consistently identified appellant as the perpetrator of the crime. Id. at 26-29. Although the victim did not describe appellant’s facial features or distinguishing facial characteristics to the police, the victim’s lack of specific details was a matter for the jury to consider in evaluating the victim’s credibility and does not render her otherwise positive identification inherently unreliable. With regard to the physical evidence, ie., appellant’s clothing, jewelry and the footprints obtained from the site of the assault, there is no question that these items either were not recovered or failed to conclusively connect appellant to the crime. The absence of such evidence, however, is not fatal to the Commonwealth’s case. Again, the absence of such evidence was a factor for the jury to consider in assessing the credibility of the victim.

The same analysis is applicable to appellant’s alibi and misidentification defenses. Appellant’s alibi was that he was at home watching television with his mother. Contrary to appellant’s argument, appellant’s alibi evidence was sufficiently rebutted by the victim’s testimony and no other additional evidence was required. The jury evidently rejected appellant’s alibi and mistaken identity theories and resolved the conflicting versions against appellant. In light of the evidence presented by the Commonwealth, we discern nothing shocking about the jury’s verdict which makes the award of a new trial imperative. We likewise conclude that the Commonwealth’s evidence was more than sufficient to establish all of the elements of the crimes for which appellant was convicted. Appellant thus is not entitled to either a new trial or an arrest of judgment on this basis.

Appellant next asserts in his second and third allegations of error that he was denied due process because both the Commonwealth and the lower court failed to have DNA testing performed on samples taken from the victim despite appellant’s repeated requests and indigent status. As these matters are intertwined, they will be discussed together. Neither of the parties refers us to any relevant authority which is dispositive of appellant’s claims. Our own research likewise has not disclosed any apposite Pennsylvania cases. We have nevertheless uncovered several decisions from our sister states which have had the opportunity to address questions similar to that now raised by appellant. These decisions are summarized as follows.

The New York courts first examined this question in the case of In the Matter of Dabbs v. Vergari, 149 Misc.2d 844, 570 N.Y.S.2d 765 (Sup.Ct.Westchester Co.1990). In Dabbs, the defendant was tried and convicted, and his convictions were ultimately affirmed on appeal; DNA testimony was not available at the time of the defendant’s trial. The defendant subsequently sought post-conviction discovery relating to DNA testing. In granting the defendant’s request, the court reasoned:

it is well established that, notwithstanding the absence of a statutory right to post-conviction discovery, a defendant has a constitutional right to be informed of exculpatory information known to the State[.] [S]ee generally Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 216 [215] (1963).... A corollary to the duty of disclosure is the duty to preserve exculpatory material^] ... By a parity of reasoning, where evidence has been preserved which has high exculpatory potential, that evidence should be discoverable after conviction. Due process is not a technical conception with a fixed content unrelated to time, place and circumstances. It is flexible and calls for such procedural protections as the particular situation demands. Clearly, an advance in technology may constitute such a change in circumstance])] ... [I]f [defendant] were to be tried now, he would be entitled to DNA testing of the physical evidence. The need for testing is analogous to that considered in [cases] where the evidence was a controlled substance. [In such cases, a] defendant’s guilt or innocence h[a]ng[s] exclusively on the nature and amount of the substance in question. For refutation of the charges against him, there [i]s no acceptable alternative to scientific testing by experts of his choice. Similarly, in this case, while it is unclear what [DNA] testing will ultimately reveal, ... [i]f DNA testing could exclude semen from the attacker as belonging to [defendant], it would strongly impeach the credibility of the victim’s identification of [defendant]. [To] deny [defendant] the opportunity to prove his innocence with such evidence simply to ensure the finality of convictions is untenable.

Id., 149 Misc.2d at 847-850, 570 N.Y.S.2d at 767-769 (citations omitted).

The New York court revisited a similar issue in People v. Callace, 151 Misc.2d 464, 573 N.Y.S.2d 137 (Suffolk Co.Ct. 1991), in which the defendant again requested that post-conviction DNA testing be performed despite the fact that such testing was not available at the time of his trial. Although the court disagreed with the exculpatory evidence analysis applied in Dabbs, it nevertheless granted the defendant’s request on the basis that DNA testing of the samples constituted after-discovered evidence. Id., 151 Misc.2d at 464, 573 N.Y.S.2d at 139-140.

The New Jersey Superior Court has likewise considered the question of a defendant’s post-conviction entitlement to DNA testing in State v. Thomas, 245 N.J.Super. 428, 586 A.2d 250 (App.Div.1991). In Thomas, DNA tests were not performed at the time of the defendant’s trial. Prior to sentencing, the defendant requested that the prosecutor have the test performed at the state’s expense, due to the exorbitant cost of the test. The defendant further filed a motion seeking to compel the state to make the rape kit performed on the victim available for testing. On appeal, the court discussed DNA testing as well as its evolution as a diagnostic tool in criminal cases and suggested that the state’s failure to submit material for DNA analysis may implicate its obligation to reveal exculpatory evidence, as set forth in Brady v. Maryland. Id., 245 N.J.Super. at 432-434, 586 A.2d at 252-253. In concluding that considerations of fundamental fairness required the DNA testing, the court explained:

Our system fails every time an innocent person is convicted, no matter how meticulously the procedural requirements governing criminal trials are followed. That failure is even more tragic when an innocent person is sentenced to a prison term.... We regard it as ... important to rectify that failure.... Victim identification, however sincere, is notoriously unreliable. The other proofs offered here contradicted the reliability of the identifications, which were the sole evidence against defendant.... There is a possibility, if not a probability, that DNA testing now can put to rest the question of defendant’s guilt.... We would rather [permit the testing] than sit by while a [possibly] innocent man ... languishes in prison while the true offender stalks his next victim____ The precedent we create here, if any, is that in a criminal case, when the State’s proofs are weak, when the record supports at least a reasonable doubt of guilt, and when there exists a way to establish guilt once and for all, we will not elevate form so highly over substance that fundamental justice is sacrificed.

Id., 245 N.J.Super. at 435-436, 586 A.2d at 254.

The Indiana appellate court has also spoken on this issue. Finding the New York and New Jersey cases persuasive, Indiana has authorized DNA tests to be performed despite the fact that such testing was not available at the time of the defendant’s trial. Sewell v. State, 592 N.E.2d 705, 707-708 (Ind.App.Dist. 3 1992). In support of its decision, the court stated:

Advances in technology may yield potential for exculpation where none previously existed. The primary goals of the court when confronted with a request for the use of a particular discovery device are the facilitation of the administration of justice and the promotion of the orderly ascertainment of truth. Moreover, where the State possesses exculpatory evidence, such evidence is discoverable notwithstanding a lack of strict compliance with normal discovery procedures.... The potential for exculpation by DNA comparison parallels the potential for accurate identification. Therefore, Brady [v. Maryland] is implicated in post-conviction requests for forensic tests only where a conviction rested largely on identification evidence and advanced technology could definitively establish the accused’s innocence.

Id., 592 N.E.2d at 708.

The courts of Minnesota and Connecticut have similarly found DNA testing to implicate the concerns at issue in Brady v. Maryland. See State v. Schwartz, 447 N.W.2d 422, 427 (Minn.1989) (providing that constitutional concerns addressed in Brady ■ encompass information relating to DNA testing because such evidence is material to the issue of guilt and could have an impact on the trial outcome; accordingly, such evidence must be disclosed to the defendant) and State v. Hammond, 221 Conn. 264, 290-296, 604 A.2d 793, 806-808 (1992) (indicating that state’s failure to have DNA tests performed on the vaginal swabs taken from the victim where DNA tests previously performed on the victim’s clothing exculpated the defendant may have constituted a breach of duty to disclose exculpatory evidence which would have affected the outcome of the case). But see Arizona v. Youngblood, 488 U.S. 51, 58-59, 109 S.Ct. 333, 337-338, 102 L.Ed.2d 281, 290 (1988) (providing, in dicta, that the due process clause is not violated when the police fail to use a particular investigatory tool, such as a newer test, on semen samples).

We find the reasoning expressed by the courts of our sister states to be persuasive and compelling. The DNA testing process has been acknowledged by the courts as well as the national scientific community for its extraordinary degree of accuracy in matching cellular material to individuals. See State v. Thomas, 245 N.J.Super. at 433-434, 586 A.2d at 252-253; Commonwealth v. Rodgers, 413 Pa.Super. 498, 511, 605 A.2d 1228, 1235 (1992) and the authorities and literature referenced therein. Since its use in the legal forum, nearly all of the decisions which have considered whether DNA test results are admissible, including Pennsylvania, have permitted such evidence to be admitted. See State v. Montalbo, 73 Haw. 130, 144-145, n. 7, 828 P.2d 1274, 1283 n. 7 (1992); Commonwealth v. Rodgers, supra. And as scientific technology continues to advance, DNA analysis may eventually become as widely accepted as routine and decisive as fingerprint or other types of evidence. State v. Thomas, 245 N.J.Super. at 434, 586 A.2d at 253.

In view of the wide acceptance and admissibility of DNA test results and the ability of such testing to accurately and definitively inculpate or exclude an individual as the perpetrator of the crime, we agree with appellant that DNA tests should have been performed on the samples taken from the victim in this case. The Commonwealth’s evidence consisted primarily of the victim’s identification testimony. However, the victim’s stab wounds in addition to the weather and reduced visibility may well have affected the victim’s ability to accurately view her assailant, and thus, she may have been prompted to identify appellant merely because she remembered seeing him in the neighborhood. Moreover, the victim did not specifically describe any of her assailant’s facial characteristics to the police. There was also no conclusive physical evidence, aside from a single hair sample which may have been consistent with any male of african-american descent, linking appellant to the crime. Had tests been conducted and found to exculpate or exclude appellant as the perpetrator, admission of the test results and the other evidence may well have provided sufficient reasonable doubt to secure an acquittal. In the alternative, inculpatory results would certainly have strengthened the Commonwealth’s case by providing concrete corroboration of the victim’s identification. Under these circumstances, principles of justice require us to vacate appellant’s conviction and remand to the trial court for the performance of DNA analysis on the samples taken from the victim.

Judgment of sentence vacated. Remanded for further proceedings consistent with the foregoing discussion. Jurisdiction relinquished.

      . 18 Pa.C.S.A. § 3121(1) and (2).

        . 18 Pa.C.S.A. § 2901(a)(3).

      . 18 Pa.C.S.A. § 2702(a)(1) and (4).

      . 18 Pa.C.S.A. § 908(a).

      . 18 Pa.C.S.A. § 3123(1) and (2).

      . The female victim was approximately thirty-seven years of age at the time of the incident.

      . Samples obtained from the rape kit and the victim’s undergarments confirmed the fact that the victim had been raped. In addition, tests revealed that a hair sample found on the victim’s body was consistent with that of appellant.

      . Specifically, appellant received a sentence of eight (8) to twenty (20) years for his rape and kidnapping convictions. These were directed to run concurrently with each other. Appellant was further sentenced to four (4) to ten (10) years’ imprisonment on his conviction for aggravated assault: this sentence was directed to run consecutively with that imposed on appellant’s rape and kidnapping convictions. Appellant was also given a six (6) to twelve (12) year sentence on each of his three convictions for involuntary deviate sexual intercourse. Although these sentences were directed to run concurrently with each other, they were to be served consecutively to appellant’s other sentences. Finally, the lower court imposed a sentence of six (6) to twelve (12) months on appellant’s conviction for possessing a prohibited offensive weapon; this sentence was directed to run concurrently with all of appellant's other sentences.

      . In his jurisdictional statement, appellant indicates that we may exercise jurisdiction over this appeal pursuant to Pa.R.A.P., Rule 341, 42 Pa.C.S.A. Appellant is in error. Jurisdiction over this appeal is vested in this court pursuant to § 742 of the Judicial Code, 42 Pa.C.S.A.

      . Appellant also argues that the verdict was against the evidence. Although this appears to be a reiteration of appellant's assertion that the verdict was against the weight of the evidence, we note that appellant recites the test for evaluating the sufficiency of the evidence with respect to this claim. Appellant’s Brief at 10. It thus appears that appellant has confused and commingled his sufficiency and weight of the evidence claims. As explained by this court, these matters should not be confused as they involve discrete inquiries. See Commonwealth v. Taylor, 324 Pa.Super. 420, 424-425, 471 A.2d 1228, 1229-1230 (1984) (discussing the distinctions between and different tests for evaluating challenges to the sufficiency and weight of the evidence). In light of appellant’s confusion, we will thus treat appellant’s claim that the verdict was against the evidence as a challenge to the sufficiency of the evidence. In reviewing matters of this type, the test is:
      [wjhether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence.

        Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986), quoting Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 538-539 (1979).

      . DNA evidence has been excluded in a few jurisdictions because of error in performance of the test or inaccurate methods. See State v. Montalbo, 73 Haw. 130, 144-145, n. 7, 828 P.2d 1274, 1283 n. 7 (1992).

      . The testimony at trial revealed that appellant and the victim lived on the same street within a few blocks of each other. N.T. 6/3/91, Vol. I, at 32 and N.T. 6/4/91, Vol. II, at 218.

      . Upon receipt of the test results, the trial court must ascertain whether appellant is entitled to a new trial. See Commonwealth v. Brosnick, 530 Pa. 158, 160-62, 607 A.2d 725, 727 (1992) (discussing standard for evaluating whether after-discovered evidence warrants the award of a new trial). In deciding this question, the trial court must necessarily consider whether the test results would be admissible. See id. This determination should be performed in accordance with our decision in Commonwealth v. Rodgers, 413 Pa.Super. at 507-515, 605 A.2d at 1233-1236 (discussing the admissibility of DNA test results). The judgment of sentence should be reinstated in the event that a new trial is not required.
      Based on the record currently before us, we do not know whether the specimens taken from the victim are still available for testing. Our holding is thus contingent upon the continued existence of these materials. If the samples have not been preserved by the Commonwealth and there is no hint of bad faith in failing to preserve the evidence, the judgment of sentence must be reinstated. See, e.g., Arizona v. Youngblood, 488 U.S. at 58, 109 S.Ct. at 337, 102 L.Ed.2d at 289 (1988) (holding that absent bad faith on the part of the police, the failure to preserve potentially useful evidence does not constitute a denial of due process of law); Commonwealth v. Tillia, 359 Pa.Super. 302, 310-314, 518 A.2d 1246, 1250-1252 (1986); Commonwealth v. Gamber, 352 Pa.Super. 36, 42-44, 506 A.2d 1324, 1327-1329 (1986) (same).


text:
    618 A.2d 426
    COMMONWEALTH of Pennsylvania, Appellant, v. Harold DAVIS.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1992.
    Filed Dec. 18, 1992.

      George S. Leone, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Paul M. George, Asst. Public Defender, Philadelphia, for appellee.

      Before ROWLEY, President Judge, and CAVANAUGH, McEWEN, DEL SOLE, BECK, TAMILIA, KELLY, POPOVICH and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

This appeal is taken by the Commonwealth from the Order of April 17, 1991, suppressing evidence seized as a result of the arrest of appellee, Harold Davis.

The facts underlying this case are not in dispute and are as follows. On the evening of May 26, 1989, Philadelphia Police Sergeant Edward Reilly was on duty with two other officers, assigned to provide security to a neighborhood organization cleaning up a public park at 8400 Brandywine Street. As he patrolled the park, Sergeant Reilly observed appellee with two other men in the rear of the park. Appellee had finished taking a puff from a cigarette and was handing it to the other men, who were facing Sergeant Reilly. The two men declined appellee’s offer, and when he saw Sergeant Reilly four or five feet away he discarded the cigarette. From his police experience, Sergeant Reilly recognized the aroma from the cigarette as marijuana. The sergeant stopped and searched the man and discovered a bag of marijuana and a capsule of “crack” cocaine on appellee’s person. The sergeant then arrested appellee for possession of marijuana, and he was charged subsequently with knowing and intentional possession of controlled substances.

Without delving into the procedural history of this case as it made its way to this Court, the issue now before us is whether the suppression court erred in classifying possession of marijuana as a summary offense rather than a misdemeanor, thus invalidating the arrest of appellee and requiring the suppression of all evidence seized as a result of the arrest.

When reviewing the trial court’s ruling on a suppression motion we must

determine whether the factual findings are supported by the record. In making this determination, we must consider only the evidence of the prosecution’s witnesses, and so much evidence of the defense that remains uncontradicted when fairly read in the context of the record as a whole. When the evidence supports the factual findings, we are bound by such findings; we may reverse only if the legal conclusions drawn therefrom are erroneous.

Commonwealth v. Medley, 531 Pa. 279, 612 A.2d 430 (1992).

In 1972, the Pennsylvania General Assembly enacted the Controlled Substance, Drug, Device and Cosmetic Act (the “Controlled Substance Act”), 35 P.S. §§ 780-101 et seq., replacing the Drug, Device and Cosmetic Act of 1961. The Controlled Substance Act provides, in pertinent part:

§ 780-113. Prohibited act; penalties

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(31) Notwithstanding other subsections of this section, (i) the possession of a small amount of marihuana only for personal use; (ii) the possession of a small amount of marihuana with the intent to distribute it but not to sell it; or (iii) the distribution of a small amount of marihuana but not for sale.
(g) Any person who violates clause (31) of subsection (a) is guilty of a misdemeanor and upon conviction thereof shall be sentenced to imprisonment not exceeding thirty days, or to pay a fine not exceeding five hundred dollars ($500), or both.

35 P.S. § 780-113(a)(31), (g) (emphasis added).

Notwithstanding the above classification of a violation of section (a)(31) as a misdemeanor, appellee argued the penalty-imposed by section (g) was within the range of summary offenses as provided in the Crimes Code, 18 Pa.C.S. et seq., and Sergeant Reilly improperly arrested appellee for his possession of marijuana, rather than issuing him a citation for a summary offense. Although the trial court agreed with appellee’s position, this Court cannot.

Appellee premised his argument in part on a section of the Crimes Code dealing with summary offenses. The Crimes Code provides:

(c) Summary offenses.—An offense defined by this title constitutes a summary offense if:
(1) it is so designated in this title, or in a statute other than this title; or
(2) if a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than 90 days.

18 Pa.C.S. § 106(c). The Crimes Code goes on to provide “[a]n offense hereafter defined by any statute other than this title shall be classified as provided in this section.” 18 Pa.C.S. § 106(e).

“It is recognized that the legislature has the exclusive power to pronounce which acts are crimes, to define crimes, and to fix the punishment for all crimes.” Commonwealth v. Church, 513 Pa. 534, 544, 522 A.2d 30, 35 (1987). The legislature also has the sole power to classify crimes. Id. To that end, the General Assembly reclassified in the Controlled Substance Act possession of marijuana from a felony to a misdemeanor, and the penalties for violation were reduced accordingly. Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780 (1977).

Nevertheless, appellee contends the provisions of section 106(c)(2) prevail over the provisions of the Controlled Substance Act. In support of this claim, appellee cites the following provision of the Statutory Construction Act:

§ 1935. Irreconcilable statutes passed by same General Assembly

Whenever the provisions of two or more statutes enacted finally during the same General Assembly are irreconcilable, the statute latest in date of final enactment ... shall prevail from the time it becomes effective....

1 Pa.C.S. § 1935. Therefore, under appellee’s theory, because the Crimes Code was enacted in December, 1972 and the Controlled Substance Act in April, 1972, “any contradiction between Section 106 of the Crimes Code and Section 780-113(g) of the Controlled Substance Act regarding the definition of a summary offense must be resolved in favor of the Crimes Code definition” (Brief of Appellee at 15).

The Statutory Construction Act, however, at section 1933, Particular controls general, also provides:

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.

Id. “The practical application of this policy does not permit prosecutions under general provisions of a penal code when special penal provisions apply.” Commonwealth v. Evans, 393 Pa.Super. 500, 574 A.2d 1051 (1990). In attempting to ascertain the meaning of a statute, we are required to consider the intent of the legislature and are permitted to examine the practical consequences of a particular interpretation. Commonwealth v. Stewart, 375 Pa.Super. 585, 544 A.2d 1384 (1988). We are to presume the legislature did not intend a result that is absurd or unreasonable. 1 Pa.C.S. § 1922(1); Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229 (1989). In construing legislative intent, the Court may look to the occasion and necessity of a statute, the circumstances in which it was enacted, the mischief to be remedied, the object to be attained by law, former law on the same subject and what the consequences of a particular interpretation would be. 1 Pa.C.S. § 1921(c)(1-6); Commonwealth v. Snyder, 385 Pa.Super. 58, 560 A.2d 165 (1989). In this regard, we find merit in the Commonwealth’s reliance on the analogous situation presented in Commonwealth v. Bidner, 282 Pa.Super. 100, 422 A.2d 847 (1980). In Bidner, the defendant was charged with violations of the Crimes Code and the Election Code, 25 P.S. § 3502, dealing with false statements made for purposes of voter registration. The trial court quashed the bill of information under the Crimes Code, holding defendant should have been charged under the Election Code. This Court affirmed, citing 1 Pa.C.S. § 1933 .and stating:

Preliminarily, we note that we divine no “manifest intention” of the legislature that, ... the Crimes Code is to prevail over ... the Election Code. Indeed, it has been observed that “this [Crimes] Code does not apply to or include offenses in other distinct areas of the law where an offense is defined and the penalty therefor is provided, such as the Vehicle Code, Liquor Code, etc.” Toll, Pa. Crimes Code Annotated, p. 25 (1974). Since the Election Code establishes its own comprehensive scheme of offenses and penalties, 25 P.S. §§ 3501-3553, it would seem that the legislature intended to accord special treatment to this area of criminal conduct to the exclusion of the more general provisions of the Crimes Code. Moreover, the legislature has recently amended certain sections of the election laws penalty provisions, thus manifesting its intention that the Election Code remains viable and should continue to govern whenever the misconduct appertains to elections. We thus conclude that the Crimes Code was not meant to prevail over the specific penalty measures of the Election Code.

Id. at 106, 422 A.2d at 850 (footnotes omitted).

So too, in this case, we discern no “manifest intention” of the legislature that the Crimes Code is to prevail over the Controlled Substance Act. Just as in the Election Code, the Controlled Substance Act clearly and specifically enumerates “its own comprehensive scheme of offenses and penalties,” and thus “it would seem that the legislature intended to accord special treatment to this area of criminal conduct to the exclusion of the more general provisions of the Crimes Code.” At a minimum, we find it unreasonable to presume the legislature would intend or desire to have the specifics of its comprehensive Controlled Substance Act nullified by general provisions of a general Crimes Code not particularly intended for narcotics offenses.

We also find compelling in favor of the Commonwealth the final provision of section 106: “An offense hereafter defined by any statute other than this title shall be classified as provided in this section.” 18 Pa.C.S. § 106(e) (emphasis added). Appellee contends “hereafter” as employed in section 106(e) means “after the effective date of this act, offenses defined in any other statute are to be classified as provided in section 106” (Brief of Appellee at 17). Such an interpretation takes the term “hereafter” out of its proper context and runs afoul of that portion of the Statutory Construction Act which states that “[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage.” 1 Pa.C.S. § 1903(a); Commonwealth v. Carr, 334 Pa.Super. 459, 483 A.2d 542 (1984). Rather, we find the syntax of section 106(e) compels the eminently reasonable conclusion that the grading scheme in section 106 applies only to offenses “hereafter defined by any statute other than this title,” and not to offenses previously defined by other statutes, such as the offenses defined in the Controlled Substance Act prior to the effective date of section 106. The word “hereafter” directly follows the reference to offenses and it is natural to assume it modifies the reference to offenses. Commonwealth v. Williams, 525 Pa. 216, 579 A.2d 869 (1990) (modifiers generally apply to the language that immediately precedes them). To give section 106 the effect appellee favors, it would have to read: “An offense defined by any statute other than this title shall be classified hereafter as provided in this section.” It, therefore, must be presumed the legislature intended the reasonable result attained by our reading of the Crimes Code and the Controlled Substance Act, a reading which gives effect to both statutes. 1 Pa.C.S. § 1922(1), (2); 1933.

Finally, although appellee bases his contention that possession of marijuana is a summary offense rather than a misdemeanor under 35 P.S. § 780-113(g), despite section 780-113(g)’s express classification of the offense as a misdemeanor, because the statute also provides for a sentence of thirty days, we find the basis for appellee’s contention, section 106 of the Crimes Code, read in its entirely, does not support his claim. Section 106(b)(9) states: “A crime declared to be a misdemeanor, without specification of degree, is of the third degree.” 18 Pa.C.S. § 106(b)(9). Section 106(b)(9), therefore, encompasses offenses declared to be misdemeanors, whether or not they are defined in the Crimes Code. We find the express classification of possession of marijuana as a misdemeanor in the Controlled Substance Act is clear evidence of the General Assembly’s intent to grade the offense as a misdemeanor rather than a summary offense, notwithstanding that the sentence for the offense is consistent -with a summary offense. Obviously the legislature intended offenders in this class to be subject to immediate arrest and search even though the penalty to be imposed was less than the usual penalty for a misdemeanor. Drugs in our society are so ubiquitous and the likelihood is so great that a mere user would be in possession of larger amounts, possibly for sale, a special legislative treatment was required to provide the police with greater enforcement powers to meet the problem.

For the foregoing reasons, we find Sergeant Reilly had probable cause to arrest appellee for a misdemeanor committed in his presence, and in a lawful search incident to the arrest, seized the additional marijuana and cocaine on appellee’s person. We further find, as a consequence, the court erred in suppressing this evidence. We now reverse and remand for trial on all charges.

Order reversed; remanded for trial.

Jurisdiction relinquished.

      . This case is properly before us given the Commonwealth’s certification that the suppression Order terminates or substantially handicaps its prosecution of appellee. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . 35 P.S. § 780-113(a)(31).

      . Id., § 780-113(a)(16).

      . Appellee contends the Commonwealth has waived the claim presented in this appeal for failure to preserve the issue at the suppression hearing. Examination of the record, however, indicates the Commonwealth did challenge consistently the classification of possession of marijuana as a summary offense at the suppression hearing and in its subsequent briefs and argument. This claim is entirely without merit, and we need not address it further.