author: JOHNSON, Judge: FORD ELLIOTT, Judge,

text:
    601 A.2d 1268
    John R. ORIE, Jr., Appellant, v. Nicholas Rade STONE, Jr., Executor of the Estate of Nicholas Rade Stone, Defendant, v. PITTSBURGH NATIONAL BANK, Additional Garnishee.
    Superior Court of Pennsylvania.
    Argued June 19, 1991.
    Decided Jan. 3, 1992.

      John R. Orie, Jr., Pittsburgh, in pro per.
    Richard J. Freyvogel, Jr., Pittsburgh, for appellee.
    Before POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
   JOHNSON, Judge:

This is an appeal from the order entered on October 19, 1990, purporting to vacate the order entered on September 11, 1990, which directed the entry of judgment in favor of John R. Orie, Jr. and against additional garnishee, Pittsburgh National Bank, in the amount of $10,769.66 held in the account captioned “Estate of Nicholas Rade Stone, Deceased, Nicholas Rade Stone, Jr., Executor.” We reverse.

This garnishment proceeding commenced when John R. Orie obtained a complaint for confession of judgment against Nicholas Rade Stone, Jr. in the amount of $17,920. Upon praecipe, the Prothonotary prepared a writ of execution against Nicholas Rade Stone, Jr., defendant, naming Allegheny Valley Bank as garnishee. On February 17, 1987, Orie directed the Prothonotary to re-issue the writ of execution against the Estate of Nicholas Rade Stone, naming Nicholas Rade Stone, Jr., the beneficiary and Executor of the Estate, as additional garnishee. At the time of issuance of the writ, Orie also filed and served interrogatories directed to Stone, Jr., Executor.

Stone, Jr., Executor, as garnishee, accepted service on February 20, 1987 but failed to respond to Orie’s interrogatories as contemplated by Pa.R.C.P. 3145. On March 24, 1987, Orie notified Stone, Jr. of his intention to enter default judgment against him pursuant to Pa.R.C.P. 3146. On April 2, 1987, upon praecipe, the Prothonotary entered judgment, unliquidated in amount, in favor of Orie and against Stone, Jr., Executor, garnishee. Orie then notified Stone, Jr. pursuant to Rule 3146 that the court would assess the amount of the judgment at a hearing to be held on April 27,1987. Stone, Jr. failed to appear at the hearing. On April 27, 1987, judgment by default was taken against Stone, Jr., Executor, garnishee, in the amount of $17,920 for failure to answer interrogatories pursuant to Pa.R.C.P. 3146(a).

On June 23,1987, Orie filed a praecipe to re-issue the writ of execution naming Pittsburgh National Bank [hereinafter “PNB”] as additional garnishee. At the time of the judgment, the Estate account maintained at PNB, contained only a nominal balance. No further action was taken until August, 1990, when PNB filed Supplemental Answers to Interrogatories, and New Matter in accord with Pa.R.C.P. 3145(b)(3), wherein PNB revealed that it had in its possession the sum of $10,769.66, following deduction for attorneys fee and service charge, held in the account captioned “Estate of Nicholas Rade Stone, Deceased, Nicholas Rade Stone, Jr., Executor.”

At the suggestion of PNB, Orie presented a “Motion to Compel Payment” directed to PNB. On September 11, 1990, the Court issued an order directing the entry of judgment in favor of Orie and against additional garnishee, PNB, in the amount of $10,769.66, held in the Estate account. No appeal was ever taken from the trial court’s September 11,1990, order. Instead, on September 27, 1990, Stone, Jr. presented a motion to vacate the September 11, 1990, Order of the court alleging inter alia that he did not receive notice of presentation of the Motion to Compel Payment to Garnishee.

On October 19, 1990, thirty-eight days after judgment was entered, the Honorable Robert P. Horgos entered an Order in which he vacated the September 11, 1990 Order and directed the release of the funds from Orie’s garnishment action. Upon a Motion for Reconsideration and/or Clarification presented by PNB, Judge Horgos entered an Order on November 1, 1990 in which it directed PNB to pay the funds at issue into a court supervised account until final resolution of the controversy. On appeal from the Order of October 19, 1990, Orie argues that the trial court erred in vacating its September 11, 1990 order. Because we find that the trial court was without power to vacate its September 11, 1990 order, we are constrained to agree with Orie.

“Unlike a judgment entered by confession or by default, which remains within the control of the court indefinitely and may be opened or vacated at any time upon proper cause shown, a judgment entered in an adverse proceeding ordinarily cannot be disturbed after [it has become final].” Simpson v. Allstate Ins. Co., 350 Pa.Super. 239, 243-244, 504 A.2d 335, 337 (1986) (citations omitted). A judgment entered in an adverse proceeding becomes final if no appeal therefrom is filed within thirty days. 42 Pa. C.S.A. § 5505. Thereafter, the judgment cannot normally be modified, rescinded or vacated. Simpson, supra, 350 Pa.Superior Ct. at 244, 504 A.2d at 337.

In this Court’s decision in Simpson, we stated that:

Although the inability of a court to grant relief from a judgment entered in a contested action after the appeal period has expired is not absolute, the discretionary power of the court over such judgments is very limited. Generally, judgments regularly entered on adverse proceedings cannot be opened or vacated after they have become final, unless there has been fraud or some other circumstance “so grave or compelling as to constitute ‘extraordinary cause’ justifying intervention by the court. ”

Simpson, supra, 350 Pa.Superior Ct. at 245, 504 A.2d at 337. (citations omitted) (emphasis ours).

In the instant case, the judgment entered on September 11, 1990 in favor of Orie and against garnishee, PNB, was not entered by confession, nor was it entered by default upon praecipe. Instead, it was entered by the trial court, upon Orie’s Motion to Compel Payment, after both Orie and PNB had a full opportunity to present their positions by way of interrogatories and answers thereto.

The Rules of Civil Procedure for the Enforcement of Money Judgments do not provide for the filing of a “Motion to Compel Payment.” However, the Rules do provide that the procedure between plaintiff and the garnishee “shall, as far as practicable, be the same as though the interrogatories were a complaint and the answer of the garnishee were an answer in a civil action.” Pa.R.C.P. 3145(a); see Johnson v. Johnson, 357 Pa.Super. 248, 251, 515 A.2d 960, 961 (1986) appeal denied 515 Pa. 581, 527 A.2d 541. In his “Motion to Compel Payment,” Orie sought to have the court decide, based upon the interrogatories and PNB’s answers thereto, that PNB was holding assets of Stone, Jr., defendant. Construing the interrogatories filed by Orie as a complaint and the answers to interrogatories filed by PNB as answers, we conclude that Orie’s Motion to Compel Payment was actually a Motion for Judgment on the Pleadings in accord with Pa.R.C.P. 3147. Id., 357 Pa.Superior Ct. at 251, 515 A.2d at 961.

Rule 3147 permits the trial court to enter judgment in favor of the plaintiff and against the garnishee upon the pleadings provided that “no money judgment entered against the garnishee shall exceed the amount of the judgment of the plaintiff against the defendant together with interest and costs.” In its September 11, 1990 Order the court specifically stated that “judgment is entered in favor of plaintiff, John R. Orie, Jr., and against garnishee, Pittsburgh National Bank, in the amount of $10,769.66 held in the account captioned ‘Estate of Nicholas Rade Stone, Deceased, Nicholas Rade Stone, Jr., Executor.’ ” Thus, the requirements of Rule 3147, that judgment be entered, that it be for property in the garnishee’s possession, and that it not be in an amount exceeding the amount of the judgment of plaintiff against defendant (here, $17,920) have been satisfied. We, therefore, hold that the judgment entered by the court on September 11, 1990 was a judgment against garnishee, PNB, on the pleadings in accord with Pa.R.C.P. 3147. Johnson, supra, 357 Pa.Superior Ct. at 252, 515 A.2d at 962.

A judgment on the pleadings under Pa.R.C.P. 3147 is a final and appealable order because it has the effect of terminating the litigation and putting the party against whom the judgment is entered permanently out of court. Id., 357 Pa.Superior Ct. at 252, 515 A.2d at 962. In the instant case, when judgment was entered against PNB on September 11, 1990, PNB was out of court and Orie could have executed on the judgment. Any appeal therefrom had to be filed within thirty days. Pa.R.A.P. 903(a).

Although Stone, Jr.’s petition to vacate the order was presented on September 27, 1990, well within the 30-day appeal period permitted by Pa.R.A.P. 903, no appeal was ever taken from the judgment. Consequently, at the end of the 30-day appeal period, the judgment became final. Simpson, supra 350 Pa.Super. at 245, 504 A.2d at 338. Our inquiry, thus, turns to whether there was a showing of fraud or other ‘extraordinary cause,’ that would have justified a subsequent intervention by the trial court. See Simpson, supra, 350 Pa.Superior Ct. at 245, 504 A.2d at 337.

Our review of the record in this case reveals no ‘extraordinary cause’ that would have justified intervention by the court. In his petition to vacate the September 11, 1990 order, Stone, Jr. alleged, for the first time, that the funds possessed by PNB in the Estate account did not belong to Stone, Jr., but rather they belonged to the Estate of Nicholas Rade Stone, Deceased. Further, Stone, Jr. complained that he did not receive notice of the Motion to Compel Payment directed to garnishee, PNB, and that without notice, Stone, Jr. was unable to appear and inform the court as to the true nature of the funds in PNB’s possession.

We are unable to conclude that Stone, Jr.’s lack of notice of the “Motion to Compel Payment” in the garnishment action between Orie and PNB, constituted an ‘extraordinary cause’ justifying the intervention of the trial court, especially in light of Stone, Jr.’s failure, as Executor, to respond to Orie’s interrogatories, and further in light of Stone, Jr.’s failure to act on his own behalf, as Executor, prior to his filing of a Motion to Vacate. The record reveals that Stone, Jr., Executor, was afforded notice at each step of the garnishment proceedings.

This court stated in Luckenbaugh v. Shearer, 362 Pa.Super. 9, 14, 523 A.2d 399, 401 (1987) appeal denied 518 Pa. 626, 541 A.2d 1138, that:

The extraordinary cause referred to in Simpson and other cases is generally an oversight or action on the part of the court or the judicial process which operates to deny the losing party knowledge of the entry of final judgment so that the commencement of the running of the appeal time is not known to the losing party.

(Emphasis ours).

In Luckenbaugh, the trial court entered an order on March 20, 1985 dismissing the plaintiffs’ case for failure to answer interrogatories. On April 1, 1985, Plaintiff filed a petition to strike the dismissal. Following the expiration of the thirty-day appeal period, no appeal having been taken, the judgment became final. However, on August 8, 1985, the trial court entered an order striking the dismissal and opening the judgment that it had previously entered. 362 Pa.Superior Ct. at 12, 523 A.2d at 400.

When the trial court entered its order and opinion, it referred to ‘extraordinary cause’ and stated that the same existed by finding that there was a possibility of a ‘postal mishap’ in that the answers to interrogatories were mailed by plaintiffs’ counsel to defense counsel but were not delivered. Id., 362 Pa.Superior Ct. at 14, 523 A.2d at 401. On appeal from the August 8, 1985 order, this court held that while the ‘postal oversight’ may have been a sufficient reason to act to open the judgment within thirty days from its entry, this type of failure does not rise to the level of ‘extraordinary cause’ contemplated by the cases which permit a trial court to act once the judgment has become final and the appeal time has expired. Id., 362 Pa.Superior Ct. at 14, 523 A.2d at 401.

In that case, we held that plaintiffs were aware of the entry of judgment on March 20, 1985 well within the time prescribed for filing an appeal since on April 1, 1985 they filed their petition to strike the dismissal and open the judgment. Finding no ‘extraordinary cause’ which operated to deny plaintiffs knowledge of the entry of final judgment, we vacated the order of the trial court opening the judgment and striking the order of dismissal and reinstated the order of March 20 dismissing the case. Id., 362 Pa.Superior Ct. at 15, 523 A.2d at 402.

Similarly, in the instant case, we are unable to find ‘extraordinary cause’ which operated to deny Stone, Jr. knowledge of the entry of final judgment on September 11, 1990. 362 Pa.Superior Ct. at 14, 523 A.2d at 401. It is obvious that Stone, Jr. was aware of the entry of judgment on September 11, 1990, since on September 27, 1990, well within the appeal period, he presented the Petition to Vacate the September 11, 1990 order. Absent a showing of ‘extraordinary cause,’ the trial court lacked the authority to issue the October 19, 1990 order. Therefore, we must conclude that the trial court’s attempt to vacate the September 11, 1990 order entering judgment against PNB in favor of Orie was a nullity. Since we find the order of October 19, 1990 to have been a nullity, we need not consider whether Stone, Jr. had standing to challenge the entry of the order of September 11, 1990. Moreover, we are unable to consider the appealability of the October 19, 1990 order since its entry beyond the authority of the trial court renders that purported order a nullity.

For the foregoing reasons, we reverse the order of October 19, 1990, and we reinstate the order of September 11, 1990 entering judgment in favor of Orie. Jurisdiction is relinquished.

FORD ELLIOTT, J., filed a dissenting opinion.

FORD ELLIOTT, Judge,

dissenting:

I must respectfully dissent from the Opinion of the majority. As is the case with any appeal that comes before our court, the initial concern upon which we must focus our attention is whether our court has jurisdiction to hear the appeal. Because I find that the present appeal is interlocutory in nature, I am of the opinion that this court lacks jurisdiction to hear this appeal, and that the appeal should therefore be quashed.

It is well settled that an appeal will lie only from a final order unless otherwise permitted by statute. Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). A final order is usually one which ends the litigation or, alternatively, disposes of the entire case. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). In the case presently before us, the order appealed from neither ends the litigation nor disposes of the entire case. The order appealed from in this instance merely vacates a prior order which had directed Pittsburgh National Bank, as Garnishee, to pay over certain funds held in an account for the Estate of Nicholas Rade Stone, Deceased. The order did not resolve the controversy between the parties as to whether proceeds of the Estate could be used to satisfy Orie’s judgment against Stone, Jr. Rather, the October 19, 1990 order merely vacated a prior order which had directed the Garnishee, PNB, to pay over funds in an estate account to satisfy Orie’s judgment against the Executor, Stone, Jr. Furthermore, the October 19, 1990 order was followed by another order directing the estate funds to be deposited in a court supervised account pending final resolution of the matter. Clearly, by its own terms, the October 19, 1990 order was not a final, appeal-able order.

Since the order in question is not one which terminates the case and therefore is not a final, immediately appealable order, the order must therefore be interlocutory in nature. As a general rule, interlocutory orders are subject to appellate review only under certain limited circumstances. Pursuant to Rule 1311 of the Pennsylvania Rules of Appellate Procedure, an appeal may be taken by permission from an interlocutory order of a trial court. Such a process requires the written permission of the appellate court in which review of the order is sought. No such permission was ever granted in this instance.

The second alternative by which an interlocutory order is subject to appellate review is provided under Rule 311 of the Pennsylvania Rules of Appellate Procedure. Pursuant to Rule 311, certain interlocutory orders may be appealed as of right. A review of Rule 311 reveals that the present order does not fall within any of the categories of interlocutory appeals as of right set forth in the rule. The fact that the present appeal does not fall within the purview of Rule 311 is the feature distinguishing this case from a case relied upon by the majority, Luckenbaugh v. Shearer, 362 Pa.Super. 9, 523 A.2d 399 (1987).

Luckenbaugh and the present case are procedurally similar in that in both instances the trial courts entered orders which were followed by either motions or petitions of the party against whom the order was entered. In the present case it was a motion to vacate the order, and in Luckenbaugh it was a petition to strike the dismissal. In each instance the motion or petition was filed within 30 days of the preceding order. However, in each instance the trial court failed to rule on the respective motion or petition within the applicable 30-day period, and by operation of the Pennsylvania Rules of Civil Procedure, the orders became final. Again, in each case following the expiration of the 30-day period, but prior to any appellate action being commenced, the trial courts ruled upon the pending motions or petitions which had been filed within the 30-day period. It was from those rulings which the appeals were filed. The ruling in Luckenbaugh struck the dismissal and opened the judgment. The ruling in our case vacates a prior order directing garnishee to pay over funds in an estate account to satisfy a judgment against the executor of the estate. In both instances, the orders appealed from were interlocutory in nature. However, the fact that this court allowed the appeal in Luckenbaugh cannot be used as support for allowing the present appeal. The Luckenbaugh court expressly noted that the appeal was an interlocutory appeal as of right permissible under Rule 311(a) of the Pennsylvania Rules of Appellate Procedure:

Initially, it should be noted that Pennsylvania Rule of Appellate Procedure 311(a) establishes the right of the defendant to appeal from the order entered. Rule 311(a) provides that ‘an appeal may be taken as of right from: (1) [a]n order opening, vacating or striking off a judgThe trial court’s order, which purported to ‘open’ and ‘strike’ its judgment was appealable.

Luckenbaugh, 362 Pa.Superior Ct. at 12, 523 A.2d at 401 (emphasis in original; citations omitted).

However, since Luckenbaugh was decided in 1987, Rule 311 has been amended. Presently, Rule 311(a)(1) only permits interlocutory appeals as of right from “order[s] refusing to open, vacate, or strike off a judgment. Therefore, the order appealed from in Luckenbaugh could not be appealed from as an interlocutory appeal as of right under the present Rule 311. Any reliance on Luckenbaugh by the majority is therefore misplaced, as under the current state of Rule 311(a) the October 19, 1990 order in question was not appealable.

Clearly, the present interlocutory order is not the type from which an appeal as of right is mandated. Therefore, because the order in question is not a final order, and because it is not the type of interlocutory order which may be appealed as of right, nor was permission granted to appeal this order, I find that this court is without jurisdiction to consider this matter.

The majority’s analysis of the September 11, 1990 order being a final and appealable order may well be correct. {See majority opinion, at p. 486-487.) But it is not the September 11, 1990 order which is being appealed to this court. No appeal was ever taken from that order. Rather, it is the October 19, 1990 order which is being appealed. Therefore, it is that order which must be examined to determine its finality for review purposes. As noted previously in this dissent, the October 19, 1990 order is not a final order, nor is it the type of interlocutory order which warrants an appeal as of right. Thus, I reiterate my conclusion that this court lacks jurisdiction to consider an appeal from the October 19, 1990 order of the trial court, and I would therefore quash the appeal.

      . The issue of jurisdiction is properly raised by this court, sua sponte. See Suburban East Tires v. Duquesne Light Co., 302 Pa.Super. 284, 448 A.2d 638 (1982).

      . In his Statement of Jurisdiction, appellant cites Rule 311(a)(2) as providing the basis upon which this court may exercise jurisdiction over this appeal. That section allows for an appeal as of right from an interlocutory order “confirming, modifying or dissolving ... an attachment ..." The October 19, 1990 order is not such an order. The October 19, 1990 order arguably did dissolve appellant's attachment of the funds. However, as noted in the body of this text, that order was followed by a second order which provided that the garnishee was not to release the funds from the account of the Estate of Nicholas Rade Stone but rather was to pay the funds into a court-supervised account pending final resolution of the matter. Thus, for all intents and purposes, the order on appeal is not one which dissolved an attachment. The attachment still exists. It was the order compelling payment which was vacated pending final resolution of controversy. Thus, the October 19, 1990 order is not the type contemplated by Rule 311(a)(2).

      . Furthermore, it is my belief that the majority’s reliance upon Luck-enbaugh may be inappropriate for another reason. The Luckenbaugh court relied, in part, upon Rule 1701 of the Pennsylvania Rules of Appellate Procedure to support its conclusion that the trial court acted without authority when it entered an order on the petition to strike more than 30 days after order dismissing the case was entered.

        A judgment entered in a contested proceeding which ends the litigation must either be appealed within thirty days or the trial court must expressly grant reconsideration within thirty days from the entry of the judgment. Pa.R.A.P. 1701, 42 Pa.C.S.A.
      Here, the trial court’s action was well beyond the thirty-day time period in which it had to grant reconsideration.

        Luckenbaugh, 362 Pa.Superior Ct. at 13, 523 A.2d at 401.
      The thirty-day period in 1701 merely defines the appeal period from the entry of a final order. If no appeal is filed within the thirty-day period, 1701 has no application in limiting the power of the trial court to act on a party’s motion. In the present case, no appeal was taken from the September 11, 1990 order of the trial court. Thus, Rule 1701 has no application to the subsequent action by the trial court of entering an order on October 19, 1990, vacating the September 11, 1990 order.
      The only applicable statutory section is 42 Pa.C.S.A. § 5505, which defines the period of time (also thirty days) in which the trial court may act to modify or rescind an order upon notice to the parties.
      However, to the extent that the majority relies upon section 5505,1 offer the following comments. First, I believe an argument can be made that this section only precludes action by the trial court sua sponte and does not prohibit the trial court from acting on a party1 s motion. In the present case, appellant was aware of the challenge to the September 11, 1990 order, as evidenced by the Notice of Presentation and Certification of Service. Although it may have been a more prudent course for the trial court to have vacated the decree within thirty days, I cannot find conclusively that § 5505 wrests jurisdiction from the trial court to act on a party’s timely motion where no appeal has been filed and all parties are on notice as to the challenge. Section 5505 was enacted to provide finality to orders thirty days after entry. However, in this case or any case where a timely motion challenging the order is pending before the court, an order can hardly be characterized as final for § 5505 purposes until the petition is acted upon by the court.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    601 A.2d 1275
    COMMONWEALTH of Pennsylvania v. Angelo GREKIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1991.
    Decided Jan. 14, 1992.

      Raymond Radakovich, Pittsburgh, for appellant.
    James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CAVANAUGH, BECK and KELLY, JJ.
   BECK, Judge:

Appellant Angelo Grekis was tried and convicted by a jury of nineteen (19) separate counts of both receiving stolen property and nineteen (19) separate counts of criminal conspiracy. The convictions arose as a result of a fencing operation involving the receipt and sale of stolen cigarettes by the operators of the Quick Stop restaurant in Pittsburgh. The primary issue at trial and on appeal is the sufficiency of the proof of appellant’s participation in and knowledge of the fencing operation. Following the denial of post-trial motions, appellant was sentenced to consecutive terms of imprisonment on fourteen counts of receiving stolen property and concurrent terms of imprisonment on the remaining receiving stolen property counts. Appellant was sentenced to no further penalty on the conspiracy convictions. The aggregate term of imprisonment, therefore, was three and one half (3V2) to twenty-eight (28) years. Appellant’s motion to modify sentence was subsequently denied. This appeal followed.

The evidence upon which appellant was convicted established the following. Lance Neuring was a burglar and a thief who forcibly entered numerous stores in Pittsburgh between August 16, 1987, and February 19,1988, and stole in excess of 1600 cartons of cigarettes. Each carton contained ten packs of cigarettes. After each burglary, Neur-ing took his spoils to the Quick Stop restaurant where he sold the cigarettes for $5.00 a carton. Neuring had arranged for the delivery and sale of the stolen cigarettes with George Lignos, appellant’s brother-in-law, who was on the premises and apparently in charge during the early morning hours when the deliveries customarily took place. The Commonwealth’s theory of the case against appellant was that he was the actual owner and operator of the Quick Stop restaurant and that although George Lignos was the immediate physical conduit for the receipt and purchase of the stolen items, appellant had constructive possession of the stolen goods and reaped the benefit of their sale.

Neuring ordinarily delivered the sizable quantities of stolen cigarettes to the Quick Stop in large plastic bags or drums. He brought them upstairs to a storage-type area where electronic surveillance equipment oversaw the restaurant. Neuring originally met Lignos at the Quick Stop restaurant when a friend had suggested to him that the Quick Stop would be a place interested in purchasing the stolen merchandise. Neuring negotiated the $5.00 a carton price with Lignos and thereafter would call Lignos after the completion of each burglary and theft. Neuring usually took the cigarettes to the Quick Stop in the early morning hours, around one or two a.m., or even later. During the six month period at issue here, Neuring would bring the stolen cigarettes to the Quick Stop each time he burglarized one of the victimized stores. In fact, at trial Neuring was questioned about each specific burglary location and date and affirmatively testified that on each occasion he brought the stolen cigarettes to the Quick Stop restaurant. He estimated that this occurred two or three times a week and that the average booty each time amounted to one hundred cartons of cigarettes, more or less.

The cigarettes thus sold to the Quick Stop were then resold by the individual pack for approximately $1.25 a pack. The stolen cigarettes were stored and sold from behind the cigarette and candy counter towards the rear of the restaurant. Occasionally George Lignos was not available to transact business with Neuring and at those times Sterios Mavroides, a younger relative, would take the cigarettes and pay Neuring.

Lance Neuring testified at trial that he never sold cigarettes directly to appellant. Neuring testified that he didn’t really know appellant and that appellant was not present when his dealings with Lignos were transacted. Neuring indicated that from what he understood, appellant “just worked during the day” and, as previously indicated, Neur-ing’s business took him to the Quick Stop very late at night. However, in a previous statement to the police, Neuring indicated that although he never sold cigarettes to appellant, he saw him in the store periodically and had approached him on one occasion to see if he would arrange a transaction in Lignos’ absence. According to the police statement, appellant told Neuring that Neuring should just keep dealing with Lignos. This incident was denied by Neuring at trial who maintained that he never had anything to do with appellant. In any event, the evidence was undisputed that Neuring did not directly sell the contraband to appellant. The Commonwealth never asserted otherwise, and based its case instead on a theory of constructive possession and conspiracy.

The two police officers chiefly responsible for investigating the case against appellant were Detective Howard Parsons and Detective John Balobeck, each of whom testified for the Commonwealth. Parsons is a twenty-two year veteran of the Pittsburgh police department and spent the majority of that time investigating burglaries. Parsons testified that Lance Neuring confessed to the burglaries after being arrested on unrelated charges. In his confession, Neuring identified the Quick Stop as the locale for disposal of the stolen items and indicated to police the nature of his arrangement with Lignos and Mavroides. As a result of Neuring’s disclosures, more than 600 cartons of stolen cigarettes were seized by the police from the Quick Stop. The cigarettes were recovered from racks at the rear of the restaurant, where cigarettes and candy were sold to the public.

Detective Parsons was very familiar with the Quick Stop restaurant and with Angelo Grekis, the appellant. Parsons stated that he had had many conversations, “probably two dozen”, with Angelo Grekis and that “on more than one occasion” appellant had indicated to the detective that he was the owner of the Quick Stop and that it was “his establishment.” Parsons also testified that appellant had stated to him that George Lignos was the night manager of the Quick Stop but that subsequent to Lignos’ arrest on these charges, appellant had fired him. To Parsons, the import of appellant's remarks was that the Quick Stop was “[appellant’s] establishment solely and that George Lignos and Sterios Mavroides were employees of it.” Parsons also testified that one evening he was watching the news on television when he saw appellant interviewed. Apparently, appellant was in a newsworthy dispute with another business owner in the neighborhood. During the course of the television interview, appellant plainly indicated that the Quick Stop was “his establishment.”

On cross-examination, in response to defense counsel’s persistent questioning regarding how the detective knew that appellant “owned” the Quick Stop, Parsons answered that the fact that appellant “owns and runs” the Quick Stop is “common knowledge throughout our department, ... common knowledge in the street, and by his own admission.” Parsons noted that the area in which the Quick Stop is located is a focus of a great deal of law enforcement activity and that, as a result, he and his partner go past the restaurant on many occasions. Parsons stated that on most occasions, appellant can be observed either inside the Quick Stop or standing out in front of it. Parsons also stated that when George Lignos was questioned subsequent to his arrest in this case, Lignos said that appellant owned the Quick Stop restaurant and that he (Lignos) had worked there since appellant opened the business.

Through Detective Parsons, the Commonwealth also introduced evidence of a license issued by the City of Pittsburgh for electrical/mechanical/music/video devices located at the Quick Stop restaurant. The license was issued to Angelo Grekis and listed him as owner. The license had been seized by the police from the Quick Stop restaurant.

The Commonwealth also called George Lignos as a witness. As noted above, Lignos is appellant’s brother-in-law and is the person with whom Neuring dealt directly. Immediately following his arrest, Lignos gave a statement to the police in which he indicated that appellant was the proprietor of the Quick Stop and that he, Lignos, was “only the manager at night for him.” This meant that Lignos was at the Quick Stop from nine at night until nine in the morning. In the same statement to police, Lignos indicated that he took the money to pay Neuring for the stolen cigarettes out of the cash register at the Quick Stop. At the close of his direct examination, Lignos confirmed that the statement that he gave police after arrest was accurate.

On cross-examination by defense counsel, however, Lig-nos testified that appellant knew nothing about the cigarette buying scheme and that it was something that he devised by himself in order to have extra money to spend at the race track. Further, Lignos testified that, despite what he had told police regarding the proprietorship of the Quick Stop, he and his sister, appellant’s wife, really owned the restaurant and that appellant had no ownership interest in it. In fact, Lignos stated that he owned 51% of the corporation’s stock and appellant’s wife owned the remaining 49% of the stock. The testimony was that the stock, which originally had been in appellant’s name, was transferred to Lignos in 1985. Further, Lignos asserted that Mrs. Grekis ran the business and was there on a daily basis, primarily at lunch hours, and was responsible for ordering supplies and for other business matters. Lignos stated that he told the police otherwise because he was “scared.” Lignos testified that appellant was not around the Quick Stop very often because of other business commitments. Finally, Lignos stated that he “guessed” that appellant shared in the illegal profits from the video poker machines on the premises but denied that appellant received any share of the cigarette proceeds.

Detective Balobeck, also of the burglary squad, confirmed that he saw appellant “quite frequently” at the Quick Stop restaurant during the time period in question. He also attested to conversations he had with appellant in which appellant acknowledged that the Quick Stop was “his business.” Notably, Balobeck recalled a conversation which followed the arrests in the instant case in which appellant told Balobeck that he had fired George Lignos. Balobeck also saw appellant’s appearance on the evening news program during which appellant made it clear that the Quick Stop belonged to him.

Appellant testified on his own behalf. He denied having any knowledge of the cigarette fencing operation at the Quick Stop. Appellant claimed to have no interest in the Quick Stop and stated that the restaurant was run entirely by his wife, who was a 49% stockholder, and his brother-in-law Lignos, who was a 51% stockholder. He testified that during the six month period at issue here, he was out-of-town the majority of time promoting concerts for a Greek entertainer. As a result he maintained that he was never present at the Quick Stop. Appellant stated that before 1985 he was the majority stockholder in the Quick Stop but in that year he transferred his entire interest to his brother-in-law George Lignos gratuitously. According to appellant, after Lignos was arrested in this case, he was fired by Mrs. Grekis even though she was the minority shareholder because it was “a family situation.” Appellant further explained that the poker machines were present in the establishment through an “agreement between [appellant] and Duffy Vending Company.” Later in his testimony appellant claimed that the license referred to above by Detective Parsons which listed the “location” as the Quick Stop and appellant as “owner” was really referring to the owner of the machines and not the owner of the restaurant.

The jury returned a verdict of guilty on all counts of receiving stolen property and criminal conspiracy. The gravamen of appellant’s complaint on appeal goes to the sufficiency of the evidence. Appellant contends that the Commonwealth failed to carry its burden and prove beyond a reasonable doubt that he had “received” the stolen cigarettes that Neuring delivered to the Quick Stop. Further, appellant claims that it was not shown that he had the requisite knowledge of the stolen property to support conviction. He also argues that the evidence was insufficient to sustain the conspiracy convictions in that the Commonwealth failed to show a conspiratorial agreement between the parties. Moreover, appellant contends that he could not be convicted of nineteen separate counts of receiving stolen property because the Commonwealth failed to prove the elements of each distinct charge. Similarly, he argues that the conspiracy was a continuous one, if it existed at all, and that it was also error to charge and convict on nineteen separate counts of conspiracy. The trial court compounded the error, according to appellant, by sentencing him to consecutive sentences on fourteen of the receiving stolen property counts. We agree with appellant on one asserted claim, i.e., that it was error to charge and convict him on 19 counts of criminal conspiracy and that only one continuing conspiratorial agreement is reasonably established by the evidence. In all other respects, we affirm the judgment of sentence.

We begin with the familiar and well established admonition that our standard of review for challenges to the sufficiency of evidence is limited. We must determine whether, viewing all the evidence at trial, as well as all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense was proven beyond a reasonable doubt. Both direct and circumstantial evidence receive equal weight when assessing the sufficiency of the evidence. Commonwealth v. Carson, 405 Pa.Super. 492, 592 A.2d 1318, 1320 (1991); Commonwealth v. French, 396 Pa.Super. 436, 578 A.2d 1292 (1990). All reasonable inferences, consistent with the evidence, must be viewed in the Commonwealth’s favor as verdict winner.

In order to convict appellant of receiving stolen property, it was necessary for the Commonwealth to show three elements beyond a reasonable doubt. The evidence must establish that the property was stolen, that appellant was in receipt, possession or control of it, and that appellant had “guilty knowledge”, that is, that he knew or had reason to know that the property was stolen. See Commonwealth v. Carson, 405 Pa.Super. at 496, 592 A.2d at 1321; Commonwealth v. Stasiak, 305 Pa.Super. 257, 265, 451 A.2d 520, 524 (1982).

The Commonwealth clearly proved that the cigarettes were stolen. Appellant does not dispute this element. He claims, instead, that on the element of receipt or possession and on the element of appellant’s knowledge the Commonwealth’s proof was inádequate. Appellant maintains that since the evidence was uncontroverted that Neuring sold the stolen cigarettes to Lignos and Mavroides only and that appellant never directly purchased the goods from the thief, the evidence therefore fails to establish appellant’s knowledge or possession of the contraband. The Commonwealth counters by arguing that its case was premised upon the concept of constructive possession which it sufficiently established through an abundance of circumstantial evidence. If the Commonwealth can show that appellant had constructive possession of the stolen goods, it is clear that the element of receiving or possessing the stolen property is satisfied. Commonwealth v. Brady, 385 Pa.Super. 279, 287, 560 A.2d 802, 806 (1989).

The legal concept of constructive possession is a well-settled and flexible one in the criminal law. In theory, our Supreme Court has defined it as follows:

Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. We have defined constructive possession as “conscious dominion.”_ We subsequently defined “conscious dominion” as “the power to control the contraband and the intent to exercise that control.”

Commonwealth v. Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213 (1986) (citations omitted).

In Mudrick and elsewhere, our courts have cautioned that the doctrine of constructive possession defies bright line application. Commonwealth v. Mudrick, 510 Pa. at 308, 507 A.2d at 1213; Commonwealth v. Carroll, 510 Pa. 299, 302, 507 A.2d 819, 821 (1986); Commonwealth v. Stembridge, 397 Pa.Super. 1, 7, 579 A.2d 901, 904 (1990). Instead, we must examine the totality of the circumstances in order to assess whether constructive possession has been shown. Moreover, it is clear that circumstantial evidence alone can be used to show the requisite circumstances. Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983).

In our judgment, the Commonwealth’s evidence and all the reasonable inferences which arise therefrom, sufficiently established that appellant had “conscious dominion” over the illegal property at the Quick Stop restaurant. The jury reasonably could conclude that the Quick Stop was a business which was de facto owned, operated and controlled by Angelo Grekis. Detectives Parsons and Balobeck both unequivocally testified that their duties required them to patrol the Quick Stop frequently and regularly. On numerous occasions, during the applicable time period, appellant was seen by the detectives both inside the store and in front of it. This testimony contradicted both appellant’s trial testimony and that of Lignos. The jury, however, was free to believe the detectives. The detectives also attested to repeated conversations with appellant in which he admitted control and management of the Quick Stop and confirmed that it was “his establishment.” The jury was entitled to reject as implausible, incredible or self-serving, appellant’s protestations that he transferred control of the business to his brother-in-law and that he himself had no role in running the restaurant.

The substance of the detectives’ conversations and observations was corroborated by numerous circumstances from which dominion and control by appellant could also be inferred. Among- these circumstances is the fact that George Lignos was fired after this incident even though according to appellant, Lignos was the majority shareholder. Additionally, Lignos himself told the police in a recorded statement following his arrest that appellant was the proprietor of the Quick Stop while Lignos was merely the night manager. Lignos confirmed the accuracy of this statement during direct examination but recanted during cross. Further, the police seized an electronic device license from the Quick Stop which listed appellant as “owner” at that location. The jury was not bound to accept appellant’s explanation that the license was referring to the owner of the video machines if such an interpretation did not conform to experience or common sense.

Based on the combination of this evidence and the reasonable inferences which must be drawn from it in favor of the Commonwealth, we conclude that the jury certainly could infer that appellant in fact controlled the operation of the Quick Stop restaurant. As owner and operator, appellant could reasonably be found to exercise dominion and control over a continuous and voluminous flow of stolen cigarettes which were openly stored in and sold from his restaurant on a daily basis during a six month period, particularly since he was seen there on a frequent basis by the detectives. See Commonwealth v. Walters, 250 Pa.Super. 446, 378 A.2d 1232 (1977) (jury could have inferred that the defendant had the power to control the stolen goods from the fact that he had a proprietary interest in the trailer where the goods were found and from his presence in the trailer at various times when the goods were there). We note that there is no requirement that appellant actually physically have handled the stolen goods in order to have possessed them for purposes of this offense. Moreover, appellant’s dominion and control over the goods may be exercised through another, e.g., in this case through his admitted “employees”, Lignos and Mavroides. It is clear that appellant attempted to insulate and isolate himself from the fencing operation. The jury did not find appellant’s position to be credible.

The appellant also argues that the Commonwealth failed to prove guilty knowledge. We disagree. Given the conclusion that appellant actually ran and controlled Quick Stop’s business we find that it was reasonable for the trier of fact to conclude, based on inferences drawn from the evidence, that appellant knew both of the presence of the stolen cigarettes and that they were stolen. The testimony at trial demonstrated that Neuring supplied the Quick Stop with literally hundreds of cartons of cigarettes a week which eventually were stacked in the restaurant behind the register where the sales took place. Anyone in the restaurant, much less the owner, would be aware of the presence of such a mass of valuable goods. Moreover, the existence of the cigarettes could not be accounted for through legitimate channels and a person connected, as appellant was, with the operation of the business could be assumed to know this. Evidence produced from the records of the business established that legitimate purchase of cigarettes for resale in the store never amounted to more than a tiny fraction of the large quantities displayed and available for sale at the Quick Stop. Moreover, anyone involved in the purchase and sale of cigarettes would be familiar with the tax stamp that each pack carries. The evidence at trial established that 65 different tax stamps were represented in the quantity of goods seized by the police, even though the Quick Stop’s business records indicated that only two distributors sold to the store through legal channels.

In addition, the illegal purchase of the cigarettes from Neuring involved a steady and sizable outflow of cash from the store’s cash register, late at night, two or three times a week. Further, the sale of the cigarettes produced thousands of dollars worth of profit for the business while Neuring was supplying the Quick Stop. Assuming, as we must, that the evidence fairly supported the inference that appellant operated and controlled the Quick Stop, we conclude that the trier of fact could believe that appellant knew that the cigarettes were there and that they were stolen merchandise. We reiterate that knowledge that goods are stolen may be established entirely by circumstantial evidence. Commonwealth v. Carson, supra, 405 Pa.Super. at 497, 592 A.2d at 1321; Commonwealth v. Pinkston, 342 Pa.Super. 333, 341, 492 A.2d 1146, 1150 (1985). We conclude the Commonwealth proved appellant’s guilty knowledge beyond a reasonable doubt.

Appellant also contends that the evidence of conspiracy was insufficient because the Commonwealth failed to prove the existence of a conspiratorial agreement. Appellant correctly notes that it is essential for such an agreement to exist before a conspiracy conviction can be upheld. See, e.g., Commonwealth v. French, 396 Pa.Super. 436, 440, 578 A.2d 1292, 1294 (1990). In this regard, this court recently has stated:

It is equally plain that direct proof of such an agreement is rarely available, nor is it necessary. Thus, ‘proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities’.... An agreement can be inferred from a variety of circumstances including, but not limited to, the relation between the parties, knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode. These factors may coa-lesee to establish a conspiratorial agreement beyond a reasonable doubt where one factor alone might fail.

Id., 396 Pa.Super. at 440-441, 578 A.2d at 1294 (citations omitted).

Here appellant argues that, in addition to there being no evidence of an explicit agreement between himself and Neuring for the receipt of stolen goods, there is also no persuasive circumstantial evidence to show an implicit agreement between himself, Lignos, Mavroides and Neur-ing to receive stolen property. We reject this argument. The reasonable inferences consistent with the evidence permit the conclusion, explained at length above, that appellant was the de facto owner and operator of the Quick Stop and that Lignos and Mavroides were his employees. The funds used to purchase the stolen goods were regularly taken from the cash register at appellant’s restaurant. The stolen goods were sold from and stored in open view at the Quick Stop. Not only was George Lignos appellant’s employee and brother-in-law, but he was also a next door neighbor. The family relationship was close and strong enough for appellant to sign over his majority share in the stock of Quick Stop for no consideration. Moreover, appellant’s customary presence in the restaurant, the volume and value of the stolen cigarettes, the frequency of the deliveries and the substantial profit at which the goods were sold, are factors which contribute to the conclusion that appellant knew of the crime and participated in it. Moreover, it is wholly unnecessary to prove that appellant knew the identity of Neuring or directly conspired with Neuring in order to establish an agreement amounting to a criminal conspiracy. Based on 18 Pa.C.S.A. § 903(b), this court has pointed out that, “it is not necessary that each conspirator know the identity of each fellow conspirator so long as the conspirator knows that a person with whom he has conspired has in turn conspired with other unknown persons to aid in the attainment of their joint conspiratorial objective(s).” Commonwealth v. Savage, 388 Pa.Super. 561, 572, 566 A.2d 272, 277 (1989).

In fact, in the main appellant’s argument regarding the sufficiency of the evidence on conspiracy is premised on insisting that the evidence at trial failed to show that he was present at the Quick Stop, operated the Quick Stop or knew about the stolen merchandise. However, as our earlier discussion makes plain, we conclude that there was ample evidence to demonstrate all three of these allegedly missing factors. We find that the circumstances surrounding the conspiracy justify the conclusion that the parties here had agreed to act in concert to commit the offense of receiving stolen property.

More troublesome, however, is appellant’s assertion that the Commonwealth did not prove nineteen conspiracies but a single, continuing conspiracy which included, inter alia, nineteen deliveries of stolen merchandise. In this matter, we conclude that appellant must prevail. Given the nature of the evidence here, we agree that it proved a single, ongoing and continuous conspiracy' rather than a distinct criminal agreement each time Neuring delivered the cigarettes. Recently, this court has explained:

Under Pennsylvania law, a single conspiracy may have multiple criminal objectives.... Thus, when on a single occasion there is a single agreement to commit two crimes, e.g. murder and arson, a single conspiracy exists .... Likewise, a single conspiratorial agreement may involve a continuing course of criminal conduct involving the repetition of a single crime or the commission of a series of crimes.

Commonwealth v. Savage, 388 Pa.Super. 561, 571, 566 A.2d 272, 276-277 (1989); see also Commonwealth v. Troop, 391 Pa.Super. 613, 621, 571 A.2d 1084, 1088-89 (1990) (where the evidence demonstrated that the co-conspirators formulated a distinct and separate criminal plan and committed a robbery each time their need for money for cocaine arose, evidence warranted a finding of three separate conspiracies).

In light of this standard, we find that the evidence here substantiates only a single conspiracy to accomplish several, repeated crimes. By so concluding we do not fail to appreciate that this conspiracy involved numerous serious offenses. No doubt the “fencing” arrangement with the Quick Stop facilitated and encouraged the many separate burglaries committed by Neuring. Nonetheless, the heart of the offense of conspiracy is the agreement and in our view the evidence at trial reasonably supports the inference of only one. See Commonwealth v. Perez, 381 Pa.Super. 149, 553 A.2d 79, appeal dismissed, 525 Pa. 132, 577 A.2d 1340 (1989). Thus, we vacate the convictions on all but one count of criminal conspiracy. Since no penalty was imposed by the trial court on any conspiracy count, however, no further relief with respect to this error is warranted.

In a related claim of error, appellant asserts that the trial court erred in sentencing him consecutively on several counts of receiving stolen property. His challenge is two-fold. First he argues that the evidence was insufficient to convict, a claim which has been exhaustively disposed of above. Second, appellant argues that since the Commonwealth proved only_an “ongoing and continuous scheme,” he should have been sentenced on only one count of receiving stolen property. We reject this approach.

While, we agree, as previously discussed, that only one conspiratorial agreement can be inferred from the evidence, the crime of receiving stolen property was committed each time appellant took conscious dominion over and had knowledge of each delivery of stolen merchandise. The testimony at trial established that Neuring delivered the stolen cigarettes directly to the Quick Stop almost immediately upon completion of each burglary. Appellant has cited us to no cases, nor have we found any, which even suggest that a separate sentence cannot be imposed for each offense committed. In fact, it is clear that even consecutive sentences such as those imposed here have been sanctioned by this court in analogous circumstances. See Commonwealth v. Yacoubian, 339 Pa.Super. 413, 489 A.2d 228 (1985) (ringleader of burglary/fencing operation sentenced to seven consecutive sentences on each of seven convictions for receiving stolen property); Commonwealth v. Donnelly, 233 Pa.Super. 396, 336 A.2d 632 (1975) cert. denied, 424 U.S. 974, 96 S.Ct. 1477, 47 L.Ed.2d 744 (1976) (where the record fairly indicated two separate thefts and deliveries of sets of bonds, the trial court did not err in, imposing sentence on each conviction of receiving stolen goods). We conclude that the trial court did not abuse its broad discretion in imposing consecutive sentences here.

Therefore, in accordance with the above findings, we vacate appellant’s conviction on all except one conspiracy charge and we affirm the judgment of sentence on appellant’s convictions for receiving stolen property.

      . 18 Pa.C.S.A. § 3925 (Purdon 1983).

      . 18 Pa.C.S.A. § 903 (Purdon 1983).

      . Each' of the burglaries during which the cigarettes were stolen was established by direct evidence at trial. An owner or representative of each burglarized establishment testified regarding the manner of breaking and entering and the number of cartons of cigarettes stolen. Each owner also testified that neither Lance Neuring nor any of the parties connected with the Quick Stop restaurant had permission to obtain the missing merchandise. Also each owner identified the wholesale cigarette supplier whose tax stamp number would have been on each stolen pack. Thus the fact that the cigarettes were stolen, an essential element of receiving stolen property, was established by this testimony and the testimony of the thief himself. In fact, this element was never really a contested aspect of proof at trial.

      . At the time of appellant's trial, Neuring was serving a five to fifty year sentence for a series of burglaries including the ones implicated in the instant case.

      . The business records of the Quick Stop which were turned over to police sifter the cigarettes were seized, accounted for the legitimate purchase of only a tiny fraction of the cigarettes. Moreover, the tax stamps on the cigarettes seized indicated that they came from 65 different distributors although Quick Stop legally purchased from only two distributors.

      . Lignos and Mavroides each pled no contest to receiving stolen property and had been sentenced to probation prior to appellant’s trial.

      . Appellant also challenges one evidentiary ruling by the trial court. He asserts that the trial court erred in admitting into evidence the prior inconsistent statement by Neuring to Detective Parsons that Neuring had spoken to appellant on a single occasion regarding the potential purchase of the cigarettes, a conversation Neuring denied at trial. This argument is without merit. The law is now abundantly clear that prior inconsistent statements of a non-party witness are admissible at trial as substantive evidence as well as for impeachment purposes. Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). To be admissible for such purposes, "the declarant must be a witness in a judicial proceeding, and the declarant [must be] available for cross-examination.” Commonwealth v. Sopota, 403 Pa.Super. 1, 10, 587 A.2d 805, 809 (1991). As declarant, Neuring certainly satisfied these requirements. The only other requirement regarding the admissibility of Neuring’s out-of-court statement is that it have been given under circumstances which render it sufficiently reliable. Commonwealth v. Patterson, 392 Pa.Super. 331, 572 A.2d 1258 (1990). Appellant does not suggest, nor does the record reveal, any reason to challenge the reliability of Neuring’s voluntary statements to Detective Parsons. The trial court did not err in permitting the use of the statement as substantive evidence.

      . Appellant’s related argument that it was error to charge him with nineteen counts of receiving stolen property is premised entirely on his assertion that appellant "was never shown to be in possession of any of the stolen cigarettes” because he was out of town the majority of the time. Our discussion regarding the sufficiency of the evidence disposes of this claim. Moreover, it is clear that the Commonwealth demonstrated at trial that Neuring delivered the fruits of each of nineteen admitted burglaries to the Quick Stop immediately after each was perpetrated. Each receipt could, as discussed above, be constructively imputed to appellant as the individual in charge of the Quick Stop and frequently present.


text:
    601 A.2d 1284
    COMMONWEALTH of Pennsylvania v. Angelo GREKIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1991.
    Decided Jan. 14, 1992.

      Raymond Radakovich, Pittsburgh, for appellant.
    James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

      Before CAVANAUGH, BECK and KELLY, JJ.
   BECK, Judge:

This is an appeal filed from the judgment of sentence imposed upon Angelo Grekis after a jury convicted him of one count of promoting prostitution , one count of corrupting a minor, one count of solicitation to commit prostitution and three counts of solicitation to commit involuntary deviate sexual intercourse (IDSI). The instant case arose following the arrest of a young girl for soliciting for prostitution. During the course of the post-arrest interview, the girl disclosed that her primary base of operations was Krazi’s Bar, an establishment known by the police to be owned and operated by Angelo Grekis. Prompted, in part, by the extreme youth of the girl, who was fourteen (14) at the time of her arrest, the police investigated further.

Appellant Grekis seeks relief on several grounds. He argues that the trial court erred in permitting the Commonwealth to amend the information to add the three counts of solicitation to commit IDSI. Appellant also challenges the sufficiency of the evidence on all the charges of which he was convicted. In addition, in a supplemental brief filed by leave of this court, appellant claims that trial counsel was ineffective for failing to object to the testimony by the victim regarding an uncharged act of oral sex for which she was paid by appellant. Finally, appellant raises numerous complaints regarding the sentences imposed.

The evidence upon which appellant was convicted was as follows. Krazi’s Bar and its adjoining establishment, the Quick Stop Restaurant, are located in the business district of downtown Pittsburgh. Detectives from the organized crime, narcotics and intelligence unit testified at trial regarding their familiarity with Krazi’s Bar, its clientele and its ownership. On numerous occasions appellant identified himself to the police as the person in charge at Krazi’s Bar. Due to what the detectives described as a “high concentration of daylight prostitution” in the area, the police maintained a steady surveillance around and in the bar. One officer who was stationed in the bar several hours a week observed the level of managerial and business involvement appellant exhibited every day. The evidence indisputedly established that appellant was in charge.

Every time the police chased the prostitutes off the street, “invariably” they would go into appellant’s bar. Therefore, Detective Lou Garda, a twenty year police veteran, investigated further to discover that Krazi’s Bar was sanctuary to numerous “prostitutes and pimps.” The detective pointed these clients out to appellant so that appellant could not claim, as previously he had, that he did not know who was in his bar. As a result of recurring incidents of this nature, the police warned appellant on many occasions that he was in danger of losing his liquor license since permitting the use of his establishment for prostitution was in violation of the law. These warnings were repeated but were disregarded by appellant. The detectives described appellant’s attitude as indifferent to the type of activity flagrantly occurring on his premises.

S.H., a young girl who frequented Krazi’s Bar in order to solicit for prostitution, was arrested on January 23, 1989, when she tried to solicit a police officer. During the course of her interview with police following arrest, she revealed her connection with Krazi’s Bar. At appellant’s trial, S.H. testified that between August 1988 and January 1989 she was in the bar almost every day, six days a week. At the time, she was fourteen years old. She frankly admitted that she was in Krazi’s Bar for purposes of prostitution. She testified that she saw appellant there almost everyday. According to S.H., the fact that she was a prostitute was known to everyone and that, in fact, “the only people that would come down there were prostitutes, pimps, drug dealers, male prostitutes, anything of that sort.” Appellant never attempted to stop S.H. or discourage her nor did he ask her to leave. Although an obvious young girl at the time of these events, S.H. had no trouble purchasing drinks at the bar, which she could recall doing at least three times. Moreover, she stated that usually she would take her clients to a nearby motel room but that occasionally she would take them into the ladies’ room in the bar. S.H.’s testimony makes it clear that these activities were in no way concealed but, on the contrary, were very conspicuous.

With respect to her direct interactions with appellant, S.H. described them as follows. On December 13, 1988, after she had consumed a drink served to her at the bar, appellant approached her and offered her “$35 for head.” S.H. interpreted this as a request for oral sex in exchange for money. S.H. agreed and she and appellant went upstairs to the office where the act was performed. Later the same day, appellant again approached S.H. and said “I want your ass.” S.H. responded that “you’re going to have to pay for that because I’m not willing to give it up.” Appellant then said “I’ll give you $50.” When S.H. declined, the subject was dropped. S.H. explained at trial that appellant’s terminology meant that “he wanted to have anal intercourse.” A few weeks later, appellant made the same request and again S.H. responded negatively. Sometime after that, also on an unspecified date, the request was repeated and met with the same negative response. S.H. stopped going to Krazi’s Bar after her arrest for soliciting and subsequent confinement to a youth development center.

Appellant’s defense at trial was three-pronged. First, he presented testimony through his wife and neighbor which sought to establish that on December 13, 1988, the day the first act of solicitation for IDSI was said to have occurred, he was out-of-town. Second, he sought to undermine the credibility of S.H. by characterizing her as untrustworthy and a liar. Finally, he introduced the testimony of a mailman who frequented Krazi’s Bar and who testified that he never saw anyone soliciting for prostitution there.

Appellant originally was charged with five offenses: promoting prostitution, corrupting the morals of a minor, and three counts of criminal solicitation to commit prostitution. Specifically, the latter three counts alleged that appellant had offered fifty dollars to S.H. to engage in anal intercourse. A preliminary hearing was held on February 10, 1989 and appellant was held for court on all charges. Thereafter, on July 21,1989, months before trial was scheduled, the Commonwealth petitioned to amend the information in order to charge three counts of criminal solicitation to commit IDSI. On August 28, 1989, a hearing was held on the Commonwealth’s petition to amend. At the hearing, the Commonwealth maintained that the predicate facts for the three additional counts were identical to those facts underlying the solicitation for prostitution counts, i.e., that the defendant had offered S.H. money to engage in an act of anal intercourse. The Commonwealth noted further that S.H.’s age was developed explicitly at the preliminary hearing. When queried by the court about how the amendment would prejudice his client, under these circumstances, defense counsel argued that he was prejudiced by a lack of a preliminary hearing on the amended counts. The trial court found that no prejudice had been shown and permitted the amendment. Trial was held two months later.

On appeal, appellant again asserts that the trial court erred in permitting the amendment discussed above. He contends, but does not demonstrate, that the amendment prejudiced his ability to defend himself at trial. We conclude that, under the circumstances of this case, the trial court properly permitted the amendment of the information. The amendment here worked no prejudice to appellant and in no way diminished his ability to prepare his defense for trial. As such, we find that the amendment did not constitute error.

The courts of this Commonwealth have had numerous opportunities to review challenges to amended informations and have developed a standard by which such claims shall be evaluated. The starting point is Pa.R.Crim.P. 229, which provides:

The court may allow an information to be amended when there is a defect in form, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

Appellant argues that by adding the charges of criminal solicitation to commit IDSI the court violated the letter of Rule 229 which disallows amendments which charge an “additional or different offense.” To the extent that a substantive change was worked by amending the information to charge an offense carrying a greater potential penalty and whose elements are theoretically different, a literal reading of Rule 229 would appear to argue in appellant’s favor. Rule 229 is a starting point only, however, because our courts apply the rule with an eye toward its underlying purposes and with a commitment to do justice rather than be bound by a literal or narrow reading of procedural rules. Therefore, this court had stressed that “we look more to substantial justice than to technicalities” when reviewing the validity of an amended information. Commonwealth v. Fuller, 396 Pa.Super. 605, 616, 579 A.2d 879, 885 (1990). Furthermore, we have noted that: “The case law sets forth a broader test for propriety of amendments than the plain language of the rule Commonwealth v. Mosley, 401 Pa.Super. 537, 542, 585 A.2d 1057, 1060 (1991) (en banc). The broad scope of the test is defined by the fundamental purposes of Rule 229, which are; 1) to place a defendant on notice of the criminal conduct of which he is accused and, 2) to avoid prejudicing his defense by last minute additions or substantive changes of which he is uninformed. See Commonwealth v. Mosley, supra, 401 Pa.Super. at 541, 585 A.2d at 1059, citing Commonwealth v. Stanley, 265 Pa.Super. 194, 212, 401 A.2d 1166, 1175 (1979), aff'd, 498 Pa. 326, 446 A.2d 583 (1982) (“The safeguards of the rule are intended to give the defendant adequate preparation time for trial without risk of last-minute additions to the charges which materially alter his defense.”)

In light of these basic principles, the often-articulated guidelines for assessing the propriety of amendments to an information are the following:

[T]he courts of this Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted.

Commonwealth v. Stanley, 265 Pa.Super. at 212-13, 401 A.2d at 1175.

Applying these guidelines to the facts of the instant case it is clear that the amendments sought by the Commonwealth were properly permitted by the court. Appellant unmistakably was placed on notice of his criminal conduct and, in fact, was alerted to the charges from numerous sources both in the original information and at the preliminary hearing. The original information charged appellant with three counts of criminal solicitation in violation of 18 Pa.C.S. § 902(a), in that appellant “offered the victim [S.H.] $50.00 to engage in anal intercourse with him”. The conduct was properly characterized as a request to engage in conduct which would constitute the crime of prostitution if committed. The three separate counts were predicated on the same three incidents described above in which appellant requested that S.H. engage in an act of anal intercourse for money. Given S.H.'s age, however, the same conduct underlying the original charges would, if proved, also support charges of criminal solicitation to commit IDSI.

Moreover, the original criminal complaint charged appellant with corrupting the morals of a minor “by the act of offering the minor $50.00 to engage in I.D.S.I. with him.” Thus, not only did the criminal solicitation counts apprise appellant of the basic factual elements of his criminal conduct, the corrupting minors count of the same information alerted him to the central feature here, that is that the conduct constituted an invitation to commit IDSI.

Furthermore, with respect to the notice component of the inquiry, it is also evident that appellant was made fully aware of S.H.’s age. First, as noted above, the count charging appellant with corrupting the morals of a minor alleged that he did so by asking her to engage in “I.D.S.I.” In the context of this case, the only conclusion that appellant reasonably could have reached was that S.H. was “less than 16 years of age” since that was the only aspect of the IDSI statute arguably applicable here. In addition, on February 10, 1989, a preliminary hearing was held on the original charges, at which point S.H. testified as to her date of birth and age at the time of these offenses. Her testimony at the time portrayed the identical factual situation which formed the basis of the amended information. Based on the foregoing, appellant’s assertions that “the original information did not mention the fact that the prostitute, the alleged victim, was less than 16 years of age and that the alleged actions of the Appellant constituted I.D.S.I.” and that therefore, “[he] could not fully apprise himself of the charges against him” are utterly unfounded. The Commonwealth’s intended proof against appellant on all the charges, including the ones added to the amended information, was made known to appellant long before the amendment was sought and never varied all the way through trial.

Appellant argues that the recent Supreme Court case of Commonwealth v. DeSumma, 522 Pa. 36, 559 A.2d 521 (1989) dictates that we find the instant amendment impermissible. In DeSumma, the defendant originally had been charged with displaying a handgun and menacing the driver of another automobile with whom he had argued when the other driver purportedly cut him off in traffic. The other car contained four passengers in addition to the driver/victim, but DeSumma was not charged with any criminal conduct with respect to them. At DeSumma’s preliminary hearing, the driver/victim testified, as did the police officer and DeSumma was held for trial. Before trial, however, the complaining witness disappeared and at trial the Commonwealth summoned one of the passengers to testify instead. Due to the disappearance of the complaining witness, the Commonwealth requested and the trial court permitted an amendment to the information adding the names of all four passengers to the counts charging DeSumma with simple assault and reckless endangerment. DeSumma was acquitted of simple assault and convicted of reckless endangerment and he appealed. The Superior Court affirmed the conviction, with Judge Wieand dissenting. The Supreme Court, relying heavily on Judge Wieand’s dissent, reversed. It found that the amendment was impermissible under Rule 229 because it charged “an additional and different offense” and that DeSumma was prejudiced by the eleventh-hour amendment. The court found that obvious prejudice flowed from the fact the DeSumma arrived at trial only to learn that he now had to defend himself against a charge of assaulting wholly different people with whom he had exchanged no words and with whom he previously had had no quarrel. The amendment was permitted suddenly and without warning and was necessitated by a last-minute and unanticipated variance in the proof the Commonwealth was prepared to present at trial. In our view, DeSumma is wholly inapposite.

Leaving aside for the moment the important question of timing and when the respective amendments were sought, the amendments at issue here did not, unlike in DeSumma, accuse appellant of conduct which had not previously been alleged. The Commonwealth did not intend to nor did it vary its proof in any way from what reasonably could be anticipated from the original information. Whereas in DeSumma, as Judge Wieand emphasized, there was no reason for DeSumma to believe, until the moment of trial, that he had committed an assault on the passengers in the other car, appellant here had every reason to believe that the Commonwealth would seek to prove that he had attempted to engage S.H., a minor, in an act of anal intercourse. In fact, contrary to what occurred in DeSumma, the evidence the Commonwealth planned to offer at trial on the amended information was the same evidence offered on the original information at the preliminary hearing.

Significantly, the amendment which was permitted in DeSumma was undertaken at the last minute when, on the threshold of trial, the Commonwealth’s original complaining witness failed to appear. Thus, the salient purpose to be served by Rule 229, i.e., that of adequate notice, was totally vitiated. In contrast, appellant here was informed of the proposed amendments literally months before trial. Two months passed between the time the trial court permitted the amendments and the time of trial. Under these circumstances, it is inconceivable that appellant can claim “surprise” with any credibility. Commonwealth v. Tillia, 359 Pa.Super. 302, 308, 518 A.2d 1246, 1249 (1986) (where appellant had been given two months notice of the specific amended charges prior to trial and had ample time for trial preparation, the purpose of Rule 229 was satisfied).

Appellant mistakenly suggests that DeSumma altered the well-established inquiry into the validity of proposed amendments to an information. He argues that “prejudice does not enter into the picture” if it can be shown that technically the information as amended charges an additional or different offense. In our view, however, the key to determining whether a proposed amendment is permissible is unchanged by DeSumma. We seek, as always, to discover whether a defendant was put on notice of his criminal conduct and whether he was prejudiced by the amendment. Two cases decided by this court after DeSumma reiterate and apply this standard. In Commonwealth v. Fuller, 396 Pa.Super. 605, 579 A.2d 879 (1990), allocatur denied, 527 Pa. 585, 588 A.2d 508 (1991), appellant was charged in the original information with attempt to commit criminal homicide, conspiracy to commit criminal homicide and solicitation to commit criminal homicide. Prior to trial, the Commonwealth was permitted to amend the information to charge aggravated assault. This court affirmed, finding that, while technically charging a “different” offense, the amendment was permissible. In Fuller we found that the “charge of aggravated assault and criminal attempt murder arose out of the same set of facts” and that “under the particular facts of this case, the crimes charged involved the same basic elements.” Commonwealth v. Fuller, 396 Pa.Super. at 616, 579 A.2d at 885. Therefore, because the defendant in Fuller was placed on notice of his criminal conduct and was not prejudiced by the amendment, this court held that it was permissible even though it involved a “substantive” change. Id.

Likewise, the en banc case of Commonwealth v. Mosley, 401 Pa.Super. 537, 585 A.2d 1057 (1991), clarified the applicability of DeSumma. In Mosley, the defendant was charged with various offenses which arose out of a gang battle which deteriorated into a shoot-out. A by-stander was killed and Mosley and his co-defendants were charged with her death. Several weeks prior to trial, the Commonwealth sought to amend the information to name as additional victims the opposing gang members who were the intended targets during the shoot-out. A hearing was held and the amendment was permitted. On appeal, this court affirmed, finding that DeSumma was distinguishable and did not control. The Mosley court noted the following relevant considerations: the identical facts formed the basis for the original charges and the amended charges; these facts did not change and were known from the time the charges were brought; the entire factual scenario was developed during the preliminary hearing; the same facts were “material and necessary component[s]” of both the original and amended informations; the description of the charges did not change due to the amendment; no change in defense strategy was necessitated by the change; and the timing of the Commonwealth request in Mosley allowed for ample notice and preparation. In concluding that the amendments were proper, Mosley reiterated that “the correct focus, in applying Rule 229 to attempted amendments of criminal informations, must remain whether the amendment works an irreparable prejudice by forcing the accused to prepare or present a defense without adequate notice or sufficient time.” Mosley, 401 Pa.Super. at 551, 585 A.2d at 1064. The central injustice in DeSumma was that the amendment altered the fundamental nature of the charges and confronted the defendant with an altogether new Commonwealth case. The same claim could not be made in Mosley and cannot be made here.

Finally, with regard to prejudice we note that appellant has not asserted any way in which the amended information prejudiced his defense. Appellant’s alibi defense and tactic of undermining S.H.’s credibility was equally applicable to the original charges and the amended ones. No aspect of his defense concerned either S.H.’s age or the specific sexual act suggested by appellant, the two distinguishing characteristics of solicitation to commit IDSI in this case. Moreover, as discussed above, appellant had more than adequate notice of these aspects of the Commonwealth’s case from the moment the criminal complaint was filed. The challenged amendment worked absolutely no harm to appellant nor was he deprived of fair notice of all the charges against him.

Appellant’s next several arguments concern challenges to the sufficiency of the evidence for his convictions of promoting prostitution, corrupting the morals of a minor and criminal solicitation to commit prostitution and IDSI. These claims have not been properly preserved for appellate review. They were raised, if at all, in boilerplate fashion in appellant’s post-verdict motions. Nowhere did appellant indicate in what manner the evidence was insufficient to convict him, nor did he specify which convictions were allegedly deficient. In his briefs in support of the post-verdict motions, appellant did not mention any sufficiency claims. As a result, the trial court did not address the sufficiency argument in its opinion denying post-verdict motions. It is well establishéd that given the foregoing, appellant’s sufficiency claims are waived. See, e.g., Commonwealth v. Hawthorne, 364 Pa.Super. 125, 527 A.2d 559, appeal denied, 517 Pa. 592, 535 A.2d 81 (1987); Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983).

Similarly, appellant’s claim that he was prosecuted under an unconstitutional “statutory scheme” involving the IDSI offense is waived. It is raised for the first time on appeal. Appellant did not argue it at trial, in post-verdict motions or in his briefs in support thereof. As such, it will not be heard now. See Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984).

In an amended brief filed by leave of this court, appellant alleges that trial counsel was ineffective in that the jury “was permitted to consider” evidence that appellant and S.H. had engaged in an act of oral sex for money on the same day he solicited her for IDSI. It is axiomatic that before a party can prevail on a claim of ineffectiveness of trial counsel it is first necessary to prove the merit of the underlying claim of error. See, e.g., Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Groff, 378 Pa.Super. 353, 548 A.2d 1237, 1243 (1988). Without actual merit to the underlying claim, no possible prejudice to the defendant can be established. We find that trial counsel here could not have prevailed in an effort to exclude the testimony regarding the act of oral sex from evidence and that therefore, counsel cannot be ineffective for failing to object to the testimony.

While it is the general rule that evidence of a distinct criminal act will not be admissible to prove that the defendant has a criminal disposition or to unfairly prejudice the jury, such evidence is admissible in well-defined limited circumstances. Commonwealth v. Nelson, 389 Pa.Super. 417, 567 A.2d 673 (1989). Therefore, evidence of other crimes can be shown when it tends to prove motive, intent, absence of mistake or accident, common scheme, plan or design, or some other legitimate purpose. Commonwealth v. Lawson, 519 Pa. 175, 546 A.2d 589 (1988). In addition, such evidence may be admissible if it comprises a part of a sequence of events which is part of the natural development of the facts at issue. Commonwealth v. Nolen, 390 Pa.Super. 346, 568 A.2d 686 (1989).

The evidence that appellant and S.H. had engaged in an act of oral sex, which occurred in the office of his bar, after appellant had offered to pay S.H. $35.00 to do so, was probative on a number of issues and was clearly admissible. The evidence was relevant on the charge of promoting prostitution, in that it tended to establish that appellant knew S.H. was regularly engaging in sexual activity as a business. It was relevant to show appellant’s state of mind when, subsequent to having engaged in oral sex for money with S.H., he then solicited her to commit IDSI. His conduct immediately preceding that request was probative of his intent to again engage S.H. in a sex act and of his intent to pay her for same. Thus, the evidence was also probative on the counts of criminal solicitation to commit prostitution. The evidence was also a part of the history of the event on trial, in that the act of oral sex occurred very close in time, in the bar which appellant was accused of using for purposes of prostitution, and with the girl he repeatedly solicited for sexual purposes. Trial counsel was not ineffective for failing to attempt to keep from the jury this plainly admissible evidence.

Appellant’s contention that the jury mistakenly may have convicted him of committing the oral sex act instead of convicting him of the solicitation to commit IDSI is without support on this record. The trial court’s instructions made plain the nature of the charges and the specific acts alleged to constitute them. There was no conceivable way the jury could have regarded the court’s instruction as giving them liberty to decide which act supported the verdict. Moreover, we note that with regard to December 13, 1988, the date the act of oral sex and the first solicitation to commit IDSI occurred, appellant’s defense was that he was out-of-town and could not have committed either one. There is no merit in this argument.

Finally, we address appellant’s sentencing claims. As noted above, appellant was convicted of promoting prostitution, corrupting the morals of a minor, one count of criminal solicitation to commit prostitution, and three counts of criminal solicitation to commit IDSI. The court sentenced appellant to: two and one half (2V2) to five (5) years imprisonment for promoting prostitution; a consecutive sentence of equal length for corrupting the morals of a minor; a concurrent sentence of six (6) to twelve (12) years for one count of solicitation to commit IDSI; and to no further penalty on the remaining counts which were one count of solicitation to commit prostitution and two counts of solicitation to commit IDSI. Appellant makes two claims regarding the sentences imposed. First, he contends that the trial court erred in failing to merge corrupting the morals of a minor with promoting prostitution for sentencing purposes. Appellant also claims that the crimes code prohibits the conviction of more than one inchoate offense, when the criminal conduct was designed to commit or culminate in the same crime. Thus, he challenges his convictions on the three counts of IDSI.

Appellant’s argument that corrupting the morals of a minor and promoting prostitution merge for purposes of sentencing fails on two grounds. In the first place, it is now the law in Pennsylvania that crimes do not merge for purposes of sentencing unless one of the crimes is a lesser included offense of the other. In order to constitute a lesser included offense, the elements of the lesser crime “must be identical to and capable of being wholly subsumed within the elements of the greater offense, and the factual predicate for the lesser offense included offense must also be part of the factual predicate required to establish the greater offense.” Commonwealth v. Yates, 386 Pa.Super. 282, 287, 562 A.2d 908, 911 (1989); Commonwealth v. Blassingale, 391 Pa.Super. 395, 571 A.2d 426 (1990). The crime of promoting prostitution requires that the individual charged permit the place under his control, management or supervision to be regularly used for purposes of prostitution. It does not necessarily include an act that corrupts or tends to corrupt the morals of a minor. Corrupting the morals of a minor is not a lesser included offense of promoting prostitution. Moreover, in the context of this case, the crimes of promoting prostitution and corrupting the morals of a minor did not arise from the same factual predicate. The promoting prostitution charge was predicated on appellant’s conduct of regularly permitting his place of business to be used for prostitution. The corrupting a minor charge was based on appellant’s specific solicitation of S.H. for IDSI. The jury could have convicted appellant of either offense without convicting him of the other since the conduct underlying each offense was distinct. As such, the crimes do not merge for purposes of sentencing. See Commonwealth v. Mobley, 399 Pa.Super. 108, 117, 581 A.2d 949, 953 (1990).

Lastly, appellant argues that the trial court erred in sentencing him for each conviction of solicitation to commit IDSI. In support of this claim, appellant relies on 18 Pa.C.S. § 906 (Purdon 1983) which states:

Multiple convictions barred
A person may not be convicted of more than one offense defined by this chapter [inchoate crimes] for conduct designed to commit or to culminate in the commission of the same crime.

In the first place, the trial court did not sentence appellant to three sentences for solicitation to commit IDSI but rather imposed sentence on only one count. On the remaining two counts appellant received no further penalty. Therefore, it is clear that his complaint is without factual basis. This court has held on numerous occasions that section 906 is intended to prevent imposition of sentence on multiple inchoate offenses. Therefore, we have interpreted the term “convict[ion]” in section 906 to mean entry of a judgment of sentence not a finding of guilt by the jury. See Commonwealth v. Maguire, 307 Pa.Super. 80, 85, 452 A.2d 1047, 1049 (1982); see also Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985); Commonwealth v. Orlowski, 332 Pa.Super. 600, 481 A.2d 952 (1984).

Moreover, his convictions for three counts of criminal solicitation to commit IDSI do not violate section 906 of the crimes code for an additional reason. That section is designed to eliminate multiple convictions, i.e., judgments of sentence, for conduct which constitutes preparation for a single criminal objective. Commonwealth v. Zappacosta, 265 Pa.Super. 71, 401 A.2d 805 (1979). In the instant case, appellant solicited S.H. to commit IDSI on three separate, unrelated occasions which were several weeks apart. As such, the solicitations were discrete acts designed to culminate in three different crimes. Therefore, section 906 is inapplicable.

Judgment of sentence affirmed. Jurisdiction is relinquished.

      . 18 Pa.C.S. § 5902(b)(7) (Purdon 1983).

      . 18 Pa.C.S. § 6301 (Purdon 1983).

      . 18 Pa.C.S. § 902 (Purdon 1983).

      . 18 Pa.C.S. § 902 (Purdon 1983).

      . S.H. testified that she particularly remembered the date because a certain pimp had approached her to get her to work for him and she remembered that she was wearing clothes that belonged to another prostitute.

      . The original information charged appellant with criminal solicitation to commit prostitution. The underlying offense, prostitution, is a misdemeanor of the third degree. 18 Pa.C.S. § 5902(a). The amended information charged appellant with criminal solicitation to commit involuntary deviate sexual intercourse. The underlying offense, IDSI, is a first degree felony. 18 Pa.C.S. § 3123. The grading of criminal solicitation offenses is governed by 18 Pa.C.S. § 905, which provides:
      (a) as otherwise provided in this section, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is the object of the conspiracy. An attempt, solicitation or conspiracy to commit murder or a felony of the first degree is a felony of the second degree.
      Therefore, the proposed change clearly changed the grade of the offense charged. Under the circumstances of this case, this factor is not dispositive. See Commonwealth v. Fuller, 396 Pa.Super. 605, 616, 579 A.2d 879, 885 (1990) (permissible under the particular circumstances of that case for court to allow amendment which added a charge of aggravated assault, a first degree felony, where the original information charged criminal solicitation to commit murder, a second degree felony).
      In addition, the elements of the underlying offenses, prostitution and IDSI, are indisputably different. Prostitution is engaging in sexual activity as a business. It does not require particularized deviate sexual activity, nor, of course, does it contain the added component of involuntariness on the part of the victim. Likewise, IDSI does not contain the "business” ingredient. However, as is explained more fully infra, in the context of this case, the same conduct by appellant and the same explicit proof underlies each offense here. The law does not disallow all proposed changes which involve offenses with different elements, but only those which constitute such material differences that the defendant is prejudiced thereby.

      . 18 Pa.C.S. § 3123 (Purdon 1983) provides: Involuntary deviate sexual intercourse
      A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
      (1) by forcible compulsion;
      (2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
      (3) who is unconscious;
      (4) who is so mentally deranged or deficient that such person is incapable of consent; or
      (5) who is less than 16 years of age.

      . See Commonwealth v. Wax, 391 Pa.Super. 314, 571 A.2d 386 (1990) (appellant made aware of the Commonwealth’s proof not only through the original information but also through a bill of particulars; therefore, appellant could not claim prejudice or surprise).

      . Commonwealth v. DeSumma, 367 Pa.Super. 634, 641, 533 A.2d 453, 457 (1987) (Wieand, J., dissenting).

      . Appellant’s argument regarding the necessity to hold an additional' preliminary hearing is wholly without merit. The purpose of a preliminary hearing is to establish that there is probable cause to hold a defendant for trial and to protect an accused against unlawful detention. Commonwealth v. Beatty, 281 Pa.Super. 85, 421 A.2d 1159 (1980). Appellant had a full preliminary hearing on the original information and, as has been exhaustively discussed above, the same events and factual predicate constitute the amended charges. No additional proof was necessary to establish a prima facie case on the amended charges and appellant does not argue that he was unlawfully arrested or detained. Appellant cites us to no case, nor have we discovered one, which mandates that an accused is entitled to a second preliminary hearing after an information is amended, when an accused has properly been held for trial on the original charges.

      . Appellant makes a similar argument with respect to the charge of soliciting for prostitution. He argues that he could not be “convicted and sentenced" on both soliciting for prostitution and soliciting to commit IDSI because to do so would violate section 906 by allowing multiple convictions for inchoate offenses designed to culminate in the same crime. Assuming that it would be proper in this case to conclude that criminal solicitation to commit prostitution and criminal solicitation to commit IDSI were offenses designed to culminate in the "same crime”, a question we need not reach, appellant nevertheless cannot prevail on this argument. No judgment of sentence was imposed on the verdict of soliciting for prostitution. Therefore, based on the above-cited cases, no violation of section 906 occurred.