author:
JOHNSON, Judge:
      POPOVICH, Judge,

text:
    444 A.2d 1176
    COMMONWEALTH of Pennsylvania, v. Raymond WANAMAKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Feb. 5, 1982.
    Reconsideration or Reargument En Banc Denied May 18, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

After a nonjury trial on August 17, 1979, Appellant was found guilty of Criminal Conspiracy, Carrying Firearms on Public Streets, Possessing Instruments of Crime—Criminal Instruments Generally, and Aggravated Assault. Appellant was found not to be guilty of Criminal Attempt. The court denied Appellant’s post-trial motions on October 30, 1979; and on December 11, 1979, the court denied Appellant’s Motion to Vacate and Reconsider the Sentence Nunc Pro Tunc. This is an appeal from the final Judgment of Sentence.

The complainant (Smith), after leaving a bar with two companions, heard Appellant, who was with a group of people across the street, shout a statement that was unintelligible. When Smith asked whom Appellant had addressed, Appellant replied, “You,” and, pulling a knife, began to walk across the street toward Smith. When Smith picked up some bricks, Appellant directed his brother to bring Appellant’s loaded rifle, which Appellant subsequently fired at Smith. The bullet hit the wall behind Smith. As Smith ran away, Appellant fired another shot. No one was injured, although approximately thirty people—including some children—were in the vicinity of the shooting.

Appellant raises threé issues for our consideration. First, Appellant claims that the evidence was insufficient to establish that he was guilty of aggravated assault. Second, Appellant argues that the conviction for criminal conspiracy should be vacated, first, because it was not based upon sufficient evidence, and, second, because the finding of guilty of criminal conspiracy to attempt to commit murder and that of not guilty of attempt to commit murder constitute inconsistent verdicts. Third, Appellant claims that section 906 of the Penal Code, 18 Pa.C.S.A. § 906, bars convictions for two inchoate crimes—conspiracy and possessing instruments of crime, in the instant case.

For the following reasons, we vacate the judgment of sentence and remand.

In discussing his first issue, Appellant claims that the Commonwealth failed to prove that he attempted to cause serious bodily injury to the complainant. Appellant argues that the evidence reveals not an intent to injure the complainant but merely an intent to “scare” him. This argument lacks merit.

In Commonwealth v. Kramer, 247 Pa.Super.Ct. 1, 371 A.2d 1008 (1977), the court affirmed the principle that the intent to injure may be inferred from reckless conduct that is likely to result in injury. Id., 247 Pa.Superior Ct. at 12, 371 A.2d at 1013. In the instant case, Appellant’s act of firing a loaded rifle at the complainant constitutes reckless conduct that is likely to result in injury. Appellant’s intent to injure the complainant may be inferred from this conduct.

As the first prong of his second issue, Appellant argues that the conviction for criminal conspiracy was not based upon sufficient evidence. When the issue of insufficiency of the evidence is raised on appeal, the appellate court must view the evidence, together with all reasonable inferences, in the light most favorable to the Commonwealth. Id., 247 Pa.Superior Ct. at 12, 371 A.2d at 1013. In the instant case, Appellant directed his brother to go to Appellant’s home and bring a loaded rifle, which Appellant fired in the direction of the complainant.

Third degree murder does not require the specific intent to kill, although it does require malice. Commonwealth v. Pitts, 486 Pa. 212, 219, 404 A.2d 1305, 1308 (1979). In Commonwealth v. Hare, 486 Pa. 123, 404 A.2d 388 (1979), the court stated that malice may be found if the defendant “consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm.” Id., 486 Pa. at 129, 404 A.2d at 391.

In the instant case, Appellant’s conduct reveals a conscious disregard of a great risk that he might have inflicted death or serious bodily harm upon Smith. Accordingly, Appellant’s conspiracy with his brother to engage in activity that manifests such malice constitutes a criminal conspiracy to commit murder.

The other prong of Appellant’s second issue is that the conviction for criminal conspiracy to commit murder is inconsistent with the court’s finding that Appellant was not guilty of attempted murder. In Commonwealth v. Rosen, 141 Pa.Super.Ct. 272, 14 A.2d 833 (1940), the court held that the sufficiency of the evidence, as a matter of law, to sustain a conviction of conspiracy to commit a substantive crime is not affected by the fact that the defendants were acquitted on the substantive charges. Id., 141 Pa.Superior Ct. at 277, 14 A.2d at 835.

Even if these respective verdicts of guilty of conspiracy to commit murder and not guilty of attempted murder were inconsistent, the inconsistency would not constitute grounds for reversal. A judge may render inconsistent verdicts. Commonwealth v. Harris, 239 Pa.Super.Ct. 603, 606, 360 A.2d 728, 729 (1976). Thus Appellant’s second issue lacks merit.

Appellant’s third issue is whether or not section 906 of the Penal Code bars Appellant’s convictions for two inchoate crimes—conspiracy and possessing instruments of crime. Section 906 states:

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

Commonwealth v. Tingle, 275 Pa.Super.Ct. 489, 419 A.2d 6 (1980), is on point with this issue in the instant case. In Tingle, the Superior Court held that 18 Pa.C.S.A. § 903 barred the defendant’s conviction of both criminal conspiracy and possessing instruments of crime. Id., 275 Pa.Superior Ct. at 499, 419 A.2d at 11. Under Tingle, Appellant’s conviction for both of the aforesaid crimes constitutes an error of law, and judgment on one of the crimes must be arrested. Id., 275 Pa.Superior Ct. at 500, 419 A.2d at 12.

For the foregoing reasons, the judgment of sentence is vacated; and the case is remanded. The lower court shall arrest judgment on the conviction of either criminal conspiracy or possessing instruments of crime.

POPOVICH, J., files a concurring statement.

POPOVICH, Judge,

concurring:

I concur in the result reached by the majority. However, when an appellant is improperly convicted of two inchoate crimes, this court has the option of either remanding for resentencing or amending the sentence directly. 42 Pa.C. S.A. § 706 (1981); Commonwealth v. Turner, 290 Pa.Super. 428, 434, 434 A.2d 827, 831 (1981). Herein, since appellant was sentenced concurrently to five years probation for conspiracy and one year probation for possessing instruments of crime, this writer must opine that the interests of judicial economy would be served best by vacating appellant’s sentence for possessing instruments of crime.

      . 18 Pa.C.S.A. § 903.

      . Id, § 6108.

      . Id., § 907(a).

      . Id., § 2702.

      . Id., § 901.

      . See page 1179, infra.

      . Section (a)(1) of 18 Pa.C.S.A. § 2702 states that a person is guilty of aggravated assault if he:

        attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.


source: Caselaw Access Project

author: HOFFMAN, Judge: VAN der VOORT, Judge,

license: Public Domain

text:
    444 A.2d 1179
    COMMONWEALTH of Pennsylvania v. Gregory HOLLAND, Appellant.
    Superior Court of Pennsylvania.
    Argued May 12, 1981.
    Filed Feb. 19, 1982.
    Reargument Denied May 18, 1982.
    Petition for Allowance of Appeal Denied Sept. 10,1982.

      Jon J. Auritt, Media, for appellant.
    Rex R. Gary, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

Appellant contends, inter alia, that the lower court erred in refusing to propound his requested voir dire questions on racial prejudice. We agree and, accordingly, reverse the judgments of sentence and grant appellant a new trial.

Before jury selection, appellant, a black man, requested the lower court to propound 39 questions to the prospective jurors, including four questions probing the veniremen’s possible racial bias. Although the lower court permitted a number of appellant’s proposed questions, it refused those concerning race. An all-white jury was chosen, and following trial, appellant was convicted of robbery, theft by unlawful taking, and two weapons offenses. The lower court denied post-trial motions and imposed sentence, prompting this appeal.

It is well-settled that “the singular purpose of voir dire examination is to secure a competent, fair, impartial and unprejudiced jury.” Commonwealth v. Futch, 469 Pa. 422, 426, 366 A.2d 246, 248 (1976). The scope of voir dire examination rests within the sound discretion of the trial court and its decisions will not be reversed absent palpable error or abuse of discretion. Commonwealth v. Fulton, 271 Pa.Superior Ct. 430, 432, 413 A.2d 742, 743 (1979). However, “a complete denial of the right to an examination of jurors to show bias or prejudice is a palpable abuse of discretion and entitles the defendant to a new trial.” Commonwealth v. Foster, 221 Pa. Superior Ct. 426, 429, 293 A.2d 94, 95 (1972).

Appellant contends that the lower court abused its discretion in refusing to examine the veniremen on their possible racial bias. We agree. Although considered to be the “wiser course,” there is no federal constitutional right to explore racial prejudice through voir dire examination solely because the victim is white, and the defendant black. Ristaino v. Ross, 424 U.S. 589, 597 n.9, 96 S.Ct. 1017, 1022 n.9, 47 L.Ed.2d 258, 265 n.9 (1976). Nonetheless, the Pennsylvania Supreme Court “has held that such a right is well-grounded in state law.” Commonwealth v. Christian, 480 Pa. 131, 140 n.11, 389 A.2d 545, 549 n.11 (1978). See also Commonwealth v. Futch, supra, 469 Pa. at 428 n.4, 366 A.2d at 248 n.4. Unquestionably, when the entire panel is composed exclusively of whites, “a [black] defendant is entitled to question prospective jurors on matters of racial bias.” Commonwealth v. Mayo, 272 Pa. Superior Ct. 115, 120, 414 A.2d 696, 699 (1979). See also Commonwealth v. Foster, supra, 221 Pa. Superior Ct. at 429, 293 A.2d at 96. The victim, the entire jury, and all of the Commonwealth’s witnesses were white, while appellant and all defense witnesses were black. “To sweep under the rug, figuratively, the reality of life that racial prejudice exists can prevent a defendant from obtaining a fair trial. Id., 221 Pa.Superior Ct. at 428, 293 A.2d at 95. Under the facts of this case, we find that the lower court abused its discretion in utterly refusing to allow some investigation into racial prejudice or bias. See Commonwealth v. Christian, supra (one generalized question dealing with racial prejudice insufficient under the circumstances); Commonwealth v. Futch, supra (two questions specifically addressed to racial prejudice sufficient); Commonwealth v. Dessus, 262 Pa.Superior Ct. 443, 396 A.2d 1254 (1978) (three questions on racial prejudice sufficient to obviate the need for individual voir dire). Accordingly, we reverse the judgments of sentence and grant appellant a new trial.

So ordered.

VAN der VOORT, J., files a dissenting opinion.

VAN der VOORT, Judge,

dissenting:

This was a jury trial in which the defendant was found guilty of robbery, theft by unlawful taking and possessing an instrument of crime. The majority grants a new trial because the trial judge ruled that the defendant was not entitled to question the prospective jurors as to their possible prejudice against black persons. Not in every case is a black person who is charged with crime entitled to question prospective jurors as to whether or not they are prejudiced against such person because of his race. When the case is race-sensitive and there is a likelihood that prejudice because of race might infect the trial, then a defendant is entitled to have inquiry made as to the impartiality of prospective jurors. Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976). The majority relies in important measure on the ruling in Commonwealth v. Christian, 480 Pa. 131, 389 A.2d 545 (1978), in which case there were problems of racial sensitivity. The defendant was charged with murder, burglary, rape and deviate sexual intercourse. Intimate physical contact was shown by the Commonwealth’s evidence. The defendant was black, the victim white. The prosecution showed that the defendant made sexual advances to another white woman prior to the killing of the victim. In the instant case, there was no intimate physical contact. The instant case, in my judgment, is not race-sensitive. There is no likelihood that racial bias or prejudice might infect the trial. In my judgment, the trial judge was properly within his discretion in ruling that the defendant was not entitled to ask veniremen questions about whether or not they were prejudiced against blacks.

I respectfully dissent and would affirm the judgment of sentence of the trial court.

      . Because of our disposition of this matter, we need not address appellant’s remaining contentions.

      . The relevant proposed voir dire was as follows:
      29. Are any of you racially prejudiced?
      30. Do any of you hold a prejudice against the Defendant simply because he is black?
      31. Do any of you believe simply because the Defendant is young and black that he must be guilty of the crime accused?
      32. Do any of you have any reserved feelings that black people are more likely to commit crime than white people?

      . The Commonwealth contends that appellant has waived any objection to the lower court’s voir dire by not specifically objecting at its conclusion. Appellant’s proposed voir dire questions were specifically denied. This situation is analogous to a trial court’s denial of specifically requested points for charge. See Commonwealth v. Christian, 480 Pa. 131, 140 n.10, 389 A.2d 545, 549 n.10 (1978).
      [When] a point for charge is timely offered and rejected, we have indicated that there is no need for the party who has submitted the point to take further action at trial to preserve the issue; the trial judge has been fully alerted, and no purpose would be served by insisting on the formality of an exception to a refusal of one’s point.

        Commonwealth v. Williams, 463 Pa. 370, 373 n.1, 344 A.2d 877, 879 n.1 (1975). See also Commonwealth v. Miller, 490 Pa. 457, 470-71 n.9, 417 A.2d 128, 135 n.9 (1980); Commonwealth v. Sisak, 436 Pa. 262, 270, 259 A.2d 428, 433 (1969). Requiring an exception to the lower court’s refusal of a submitted voir dire question would be similarly purposeless. Accordingly, appellant’s claim has been preserved for our review.

      . There was a struggle over disposition of the money ($520) as the defendant wrested the money from the operator of the service station.


author: CERCONE, President Judge:

text:
    444 A.2d 1182
    COMMONWEALTH of Pennsylvania v. Manuel VOLK, Appellant. COMMONWEALTH of Pennsylvania v. Rosalyn VOLK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed April 23, 1982.

      Penn B. Glazier, Lancaster, for appellants.
    Michael H. Ranck, District Attorney, Lancaster, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER and WIEAND, JJ.
   CERCONE, President Judge:

These consolidated appeals are from the judgments of sentence entered by the Court of Common Pleas of Lancaster County. Following a non-jury trial, each of the appellants was convicted of theft by deception, conspiracy and violation of Section 481(a) of the Public Welfare Code. The amount of public assistance funds fraudulently obtained was estimated to be $9,824.90. Appellant, Rosalyn Volk, was ordered to make restitution, her sentence of imprisonment was suspended and she was placed on probation for twenty-three months with respect to the crime of theft by deception. Appellant, Manuel Volk, was ordered to make restitution and was sentenced to a term of imprisonment of not less than three months nor more than twenty-three months. Post verdict motions were filed and denied. Herein, appellants raise several allegations of error.

Appellants first claim that their waiver of a jury trial was defective because they were not advised during the colloquy (1) of their right to participate in the selection of the jury panel, (2) that the jury was to be chosen from members of appellants’ community, or (3) that the verdict of the jury must be unanimous. According to Pennsylvania Rule of Criminal Procedure, Rule 1101, a defendant may waive a jury trial. Although there is no per se prophylactic rule reversing convictions for failure to comply with Rule 1101, the Supreme Court in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), concluded that the purpose of the colloquy is to show that the defendant understands (1) that the jury would be comprised of defendant’s peers, (2) that the verdict must be unanimous, and (3) that the defendant could participate in jury selection. The Williams court further held that there could be adequate substitutes for the colloquy. Herein, appellants signed a written waiver of jury trial. This waiver contained the Williams requirements. The waiver form read:

WAIVER OF JURY TRIAL
AND NOW, January 10, 1979, comes the defendant and pleads not guilty and with the consent of his attorney, and the attorney for the Commonwealth and the approval of the judge, waives a jury trial and elects to be tried by a judge without a jury, fully understanding that if he were tried by a jury:
1. The jury would be chosen from members of the community thereby producing a jury of his peers.
2. That any verdict rendered by a jury must be unanimous and,
3. That he would be permitted to participate in the selection of a jury panel.

This waiver is identical to the one reviewed and deemed acceptable in Commonwealth v. Harmes, 255 Pa.Superior Ct. 147, 386 A.2d 551 (1978); in fact, Harmes was a Lancaster County case. The Harmes court concluded that the waiver set forth those ingredients of a jury trial which are necessary for the defendant to understand the significance of the right he is waiving. As here, the appellant in Harmes did not allege that he did not understand the waiver form. Accordingly, our court held in Harmes that appellant had failed to carry his burden and establish that his waiver was not knowing and intelligent. Because we are instantly faced with the identical factual scenario, we too find that appellants have not carried their burden.

As a second point of error, appellants argue denial of their right to representation of counsel because the court denied the request that Mr. Volk be permitted to participate in the examination of witnesses and the conduct of the trial. Clearly, a defendant has a constitutional right to represent himself if he voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1976). However, appellants herein chose to be represented by counsel. According to the American Bar Association Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, Section 5.2, there are certain decisions relating to the conduct of the case which are ultimately for the accused and others which are exclusively for defense counsel. Those decisions to be made by the accused after consultation with counsel include (1) what plea to enter, (2) whether to waive a jury trial and (3) whether to testify on his own behalf. The decisions of what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical trial decisions are within the exclusive province of the lawyer after consultation with his client. The court below cannot be faulted for denying the request to permit Mr. Volk to participate actively in court. By constantly conferring and consulting with his chosen attorney, Mr. Volk certainly would be assured of expressing his views and participating in his own defense. Once retained, counsel is to protect the interests of the accused. A defendant should not be permitted to act on his own behalf concerning trial strategies when he is represented, and where no proper withdrawal by counsel from the case has occurred or the defendant has not made an intelligent and voluntary waiver of further assistance. See e.g. Commonwealth v. Bell, 442 Pa. 566, 276 A.2d 834 (1971).

Insufficiency of evidence is alleged in connection with the convictions for conspiracy, theft by deception and violation of the public welfare code. We will deal with these claims seriatum. The test to be applied by our Court in appraising the sufficiency of the evidence is a two step inquiry. First, we must regard all the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could have based the verdict and then we must ask whether that evidence, along with all reasonable inferences to be drawn therefrom, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Anderson, 265 Pa.Superior Ct. 494, 402 A.2d 546 (1979); Commonwealth v. Eddington, 255 Pa.Superior Ct. 25, 386 A.2d 117 (1978); Commonwealth v. Luther, 266 Pa.Superior Ct. 240, 403 A.2d 1329 (1979). Criminal conspiracy is defined as:

(a) Definition of conspiracy.—A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903 (1973).

“The essence of criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished.” Commonwealth v. Carter, 272 Pa.Superior Ct. 411, 416 A.2d 523 (1979); Commonwealth v. Anderson, supra. By its very nature, the crime of conspiracy is frequently not susceptible of proof except by circumstantial evidence. Commonwealth v. Carter, supra. Commonwealth v. Kwatkoski, 276 Pa.Superior Ct. 401, 406 A.2d 1102 (1979). And although a conspiracy cannot be based upon mere suspicion or conjecture, Commonwealth v. Anderson, supra, a conspiracy “may be inferentially established by showing the relationship, conduct or circumstances of the parties, and the overt acts on the part of the co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed.” Commonwealth v. Carter, supra, quoting Commonwealth v. Horvath, 187 Pa.Superior Ct. 206, 211, 144 A.2d 489, 492 (1958). Herein, it was clearly established that appellants received assistance grants, beginning on June 20, 1975 and continuing at the rate of two per month until May 12, 1977. Testimony also revealed that although they were advised by the welfare authorities of their responsibility to report changes of circumstances, they never did so. That is, appellants acquired several large material assets, including a residence, a reasonably new automobile and a rental property. With the acquisition of the rental property, appellants’ generated income which was never reported to the authorities. Even though appellants were aware of their responsibilities, they continued to endorse and cash the welfare checks which contained the following printed notice:

By endorsing this check I certify that I have notified my County Board of Assistance of all changes in the facts as stated in my application for assistance and that neither I nor a member of my family has any earnings from employment or other resources which would affect the eligibility of myself or my family which I have not reported to said board. I know that I can be penalized by fine or imprisonment, or both, for any false statements.

Under these circumstances, the conduct of the parties indicate that they were acting together with the common and corrupt purpose to receive welfare funds to which they were not entitled.

The crime of theft by deception for which appellants were convicted is defined as:

(a) Offense defined.—A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;

18 Pa.C.S.A. § 3922(a)(1) (1973).

It is appellants’ position that the Commonwealth has not demonstrated the existence of false statements and even if such statements had been made, they were of no pecuniary significance, thus invoking the statutory exception found at Section 3922(b), which provides that “the term ‘deceive’ does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed.” A thorough review of the record proves appellants’ claim to be frivolous. Through their continual misrepresentations, appellants created and reinforced false impressions as to their acquisition of assets and changes of income. Although aware of their duty to report changed circumstances to the Department of Welfare, appellants failed to adhere to this established welfare regulation, and thus, created the false impression that their circumstances remained unchanged and that they were entitled to the benefits.

In arguing that the evidence was insufficient to maintain the conviction for violation of the Public Welfare Code, appellants’ claim that the provisions of the Public Welfare Code concern only those misstatements of fact with regard to initial applications. Appellants were specifically convicted for Section 481(a) of the Code which reads:

(a) Any person who, either prior to, or at the time of, or subsequent to the application for assistance, by means of a wilfully false statement of misrepresentation, or by impersonation or other fraudulent means, secures, or attempts to secure, or aids or abets any person in securing assistance, or Federal food stamps, under this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars ($1,000), or to undergo imprisonment not exceeding one year, or both, and also shall be sentenced to make restitution of any moneys he has received by reason of any such false statement, misrepresentation, impersonation, or fraudulent means.

62 P.S. 481(a) (1981 supp.) (emphasis supplied).

A reading of this provision, belies appellants’ claim. In fact, all three claims of insufficiency—conspiracy, theft by deception, and public welfare code—are without merit.

Appellants next fault the lower court for denying their motion for continuance. The charges in this case were filed on December 14, 1977, and the case was first listed for trial in March of 1978. It was continued, at the request of appellants’ counsel, Richard Shay, Esquire, until May of 1978. In May of 1978 it was continued, at the request of appellants’ new counsel, Michael J. Rostolsky, Esquire, until July of 1978. In July of 1978, the appellant Manuel Volk, entered a plea of guilty to one count of violating the Public Welfare Code. By agreement of the Commonwealth and the defense all remaining charges against him, and all of the charges against Rosalyn Volk would be nolle prossed. In September of 1978 a motion to withdraw guilty plea was filed by Manuel Volk, a hearing was held in October of 1978, and he was allowed to withdraw his plea. Trial was then scheduled for November of 1978 and was continued until January of 1978, at the request of the appellants’ third counsel, Andrew Appel, Esquire. (Note: during 1978 Lancaster County Criminal Court was held in January, March, May, July, September, and November). Appellants’ counsel who tried the case, Andrew Appel, became involved in the case around November 1, 1978. The request made by Attorney Appel was not to obtain additional evidence but only to extend the time for preparation of the case.

The grant or denial of a motion for continuance rests within the sole discretion of the trial court, and the decision of that court will be disturbed only where there is an abuse of discretion. Commonwealth v. Rainey, 271 Pa.Superior Ct. 240, 412 A.2d 1106 (1979). No abuse of discretion is evidenced in the case at bar. Counsel did not assert that harm or prejudice would result if the continuance were not granted; he merely expressed the need for more preparation time. In view of the absence of any asserted harm, appellants’ argument that counsel was unable to perform competently because of insufficient time to prepare is without merit. Commonwealth v. Palmer, 273 Pa.Superior Ct. 184, 417 A.2d 229 (1979).

Appellant also asserts a Rule 1100 speedy trial violation. However, the record discloses that both appellants signed waivers of the 180 day rule, which stated that they agreed to be tried within 120 days of October 27, 1978, the date Manuel Volk’s guilty plea was withdrawn. Appellants’ trial commenced on January 10, 1979, which was well within the agreed upon period of time. A defendant may waive his rights under the provisions of Rule 1100, and the signed agreement by the defendant is sufficient record indication that defendant’s waiver was informed and voluntary. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976); Commonwealth v. Wareham, 256 Pa.Superior Ct. 23, 389 A.2d 581 (1978).

Finally, appellants raise two counts of ineffectiveness: (1) that trial counsel was ineffective for failing to move to quash the information on the basis that the prosecutions for theft and conspiracy were barred by the applicable statute of limitations, and (2) that trial counsel was ineffective for failing to move to quash the information where the information was not specific as to the date or times of the alleged offenses. But because counsel cannot be faulted for failing to file baseless claims, appellants’ ineffectiveness arguments fail, Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973).

With regard to appellants’ first count of ineffectiveness, we find that the prosecutions for theft and conspiracy were not barred by the applicable statutes of limitation. As a general rule, prosecutions must be commenced within two years after the crimes have been committed. 42 Pa.C.S.A. § 5552 (1981). There is, however, an exception to this rule where conspiracy is the crime. For purposes of the statute of limitation, the crime of conspiracy is a continuing offense. Commonwealth v. Kirk, 141 Pa.Superior Ct. 123, 14 A.2d 914 (1940), aff’d, 340 Pa. 346, 17 A.2d 195 (1941). See also Commonwealth v. Cardonick, 448 Pa. 322, 329 n. 14, 292 A.2d 402, 406 n. 14 (1972). And any conspiracy that is renewed by repetitions may be prosecuted at any time within two years after the commission of the last offense. Commonwealth v. Kirk, supra; Commonwealth v. Dunie, 172 Pa.Superior Ct. 444, 94 A.2d 166 (1953). Herein, the checks were received at the rate of two per month from June 20, 1975 through May 14, 1977. The complaint was filed on December 14, 1977. Given these dates, it is clear that the prosecution for conspiracy was begun well within the applicable statutory time frame.

Likewise there is an exception provided for the crime of theft by deception. The statutory exception reads as follows:

If the period proscribed in subsection (a) or (b) has expired, a prosecution may nevertheless be commenced for:

(1) Any offense a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.

42 Pa.C.S.A. § 5552(c)(1) (1981).

Fraud is a material element of the offense of theft by deception, thus invoking the exception in the instant case. See e.g. Commonwealth v. Feldman, 243 Pa.Superior Ct. 408, 365 A.2d 1289 (1976). See also Commonwealth v. Evans, 190 Pa.Superior Ct. 179, 154 A.2d 57 (1959), affirmed 399 Pa. 387, 160 A.2d 407 (1960), cert. denied, 364 U.S. 899, 81 S.Ct. 233, 5 L.Ed.2d 194 (1960). Instantly, there is testimony that the Department of Welfare first learned of the possible fraud on April 28, 1977. The charges were brought on December 14, 1977. This was within one year of discovery. Appellants’ first claim of ineffectiveness must thus fail.

Pennsylvania Rule of Criminal Procedure 225(b)(3) disproves the accuracy of appellants’ second ineffectiveness claim, which asserts the imprecision of the information. That rule in pertinent part reads:

(b) the information shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains:
(3) the date when the offense is alleged to have been committed if the precise date is known, and the day of the week if it is an essential element of the offense charged, provided that if the precise date is not known or if the offense is a continuing one, an allegation that it was committed on or about any date within the period fixed by the statute of limitations shall be sufficient. (emphasis supplied).

Herein, the Commonwealth established that the crime was a continuing one. Appellants received a total of forty-eight checks, commencing on June 20, 1975, and continuing at the rate of two per month until May 12, 1977. Moreover, the informations set forth that the offenses were committed on or about May 12, 1977, and at divers times prior thereto. With reference to the welfare fraud charge, the informations specifically provided:

[Said defendants(s) ] . . . deliberately concealed] the receipt of income and other available resources . . . during the period June 20, 1975 through May 12, 1977.

On the basis of our discussion dealing with the applicable statutes of limitations for each of the three crimes for which appellants were convicted, we can conclude that the dates represented within the informations fell “within the period fixed by the statute of limitations” and therefore, were “sufficient.”

Judgments of sentence affirmed.

      . Moreover, appellants never expressed any misunderstanding as to the nature and scope of their responsibilities under the Welfare Code.

      . We note parenthetically that counsel did indeed have approximately 10 weeks to prepare for trial.

      . We note here that the statute of limitations for violations of the Welfare Code is four years, 62 P.S. § 481(c) (1981 supp.); therefore, the prosecution of appellants under this chapter was also timely instituted.


text:
    444 A.2d 1188
    Beryl ROBERTS, Appellant, v. John ROBERTS.
    Superior Court of Pennsylvania.
    Argued May 5, 1981.
    Filed April 23, 1982.

      Neil A. Morris, Philadelphia, for appellant.
    Joseph Della Guardia, Philadelphia, did not file a brief on behalf of appellee.
    Before CERCONE, President Judge, and SPAETH and CAVANAUGH, JJ.
   CERCONE, President Judge:

Appellant, Beryl Roberts, takes this appeal from the order of the lower court in which the court opened three judgments praeciped by appellant against appellee, John Roberts. At the time the judgments were entered, the parties were married. They have since divorced. Finding error in the equity court’s decision, we reverse.

This action had its inception on May 12, 1977, when appellant, in conjunction with her complaint in divorce, filed a petition for alimony pendente lite, counsel fees and expenses. From the very beginning, appellee’s response to this action has been characterized by legal foot-dragging to the point of contempt of court;- A deposition was scheduled, for which appellee failed to appear, and a court order was necessary to compel appellee’s cooperation. Thereafter, on January 30, 1978, the court entered an order granting the petition for alimony pendente lite in the sum of $150.00, plus an additional sum of $500.00 to go towards counsel fees. In response to this order, appellee filed a petition for reconsideration, which was denied and appellee was found in contempt several months later. Appellant filed a petition seeking imprisonment of appellee for failure to comply with the court’s orders. Once again, appellee responded by filing a petition for reconsideration. The lower court then discharged appellee’s rule which had stayed the proceedings, and, for a third time, appellee filed a petition for reconsideration. On April 11, 1979, the court stayed all proceedings and ordered further depositions and a hearing on this matter. Thereafter, over a period of several months, appellant entered three judgments by praecipe on the arrearages due. More than a year later, on June 10, 1980, a final decree in divorce was entered and on June 23, 1980, appellee filed a petition to open judgments. This petition was granted by the court, and appellant now appeals.

In this appeal, appellant argues, inter alia, that the lower court erred when it ruled upon appellee’s petition to open without affording appellant adequate time to file an answer. The standard for review in such cases is that this court will not reverse a lower court ruling, either opening or refusing to open a default judgment, unless an error of law or a clear, manifest abuse of discretion is shown. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Shainline v. Alberti Builders, Inc., 266 Pa.Superior Ct. 129, 403 A.2d 577 (1979). The record shows that on June 25, 1980, the court issued a rule to show cause to appellant as to why the petition to open should not be granted; appellant was directed by the Rule to appear before the court on July 2,1980 and answer. There also appears at the bottom of the Rule a handwritten notation, presumably written by the court, which reads “Please notify all parties.” Appellant now contends that appellee’s attorney did not mail the notice until Friday, June 27 and that it was not received by appellant’s counsel until Monday, June 30—just two days prior to argument. To support her argument, appellant includes in her brief a copy of the letter purportedly sent by appellee’s counsel. However, appellant admits that this letter is not part of the record, and this being the case, it can not be considered by this Court. Nonetheless, upon close inspection we find that the record does not indicate that any notice was sent appellant, nor does it indicate that appellant filed an answer to the petition. Yet the court opened the judgments based upon the petition of appellee alone. We find that the equities in this case are not so plain that they can be readily decided without the benefit of appellant’s answer.

In the case of Peoples National Bank of Susquehanna County v. Hitchcock, 278 Pa.Superior Ct. 375, 420 A.2d 589 (1980), this court was asked to review a case in which the lower court refused to issue a rule to show cause and instead opened judgment based solely upon the allegations in the petition to open. Although the Hitchcock case is not directly on point, the rationale bears upon the issue now at hand. In Hitchcock it was held that where, without an answer to the petition to open, the record was so incomplete that this Court could not tell where the equities lay, the lower court would be ordered to issue a rule to show cause why the petition to open judgment should not be granted. In the instant case, although the court did issue a rule to show cause, there is no indication on the record that any notice of this rule was sent appellant. Based on the facts of the case at bar and on the convoluted procedural history, not all of which is detailed, in this opinion, we find that the court abused its discretion by ruling on the petition without benefit of answer.

Accordingly, the order of the lower court opening judgment is reversed and the case is remanded for the filing of an answer to the petition by appellant.

      . Appellant states in her brief that these judgments were entered pursuant to the Divorce Law of 1929, P.L. 1237, as amended 1963, Aug. 14, P.L. 1065, No. 462, § 1; 1967, Oct. 19, P.L. 451, No. 207, § 1, 1974, June 27, P.L. 403, No. 139, § 1, 23 P.S. § 46.


author: PRICE, Judge:

text:
    444 A.2d 1190
    GRAZIANO CONSTRUCTION COMPANY, INC., a Pennsylvania corporation, Appellant, v. Laurence F. LEE, Jr., Bert A. Betts, Roy B. Davis, Jr., N. Clement Slade, Jr., Robert M. Green, Luther H. Hodges, James B. McIntosh, Arthur W. Milam, Jack H. Quartitius, Frederick H. Schroeder, and John W. York, not individually but as trustees of Fidelity Mortgage Investors, a Massachusetts business trust; and DLPST Corporation, a Pennsylvania corporation.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed April 23, 1982.
    Petition for Allowance of Appeal Denied Aug. 30, 1982.

      Robert W. Doty, Pittsburgh, for appellant.
    Richard B. Tucker, III, Pittsburgh, for appellees.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   PRICE, Judge:

On May 23, 1974, appellant, Graziano Construction Company, Inc. [hereinafter Graziano] obtained a writ of foreign attachment directing the seizure of certain property owned by Fidelity Mortgage Investors [hereinafter FMI]. The attachment was released on June 25, 1974, when FMI filed a bond in the amount of $275,000 with the court below. On August 29, 1978, the court of common pleas granted FMI’s motion to cancel and discharge the bond, reasoning that because Pennsylvania’s foreign attachment procedure was held unconstitutional by the United States Court of Appeals for the Third Circuit in Jonnet v. Dollar Savings Bank, 530 F.2d 1123 (3d Cir. 1976), the bond posted by FMI was invalid. Graziano appeals from the order cancelling the bond and discharging FMI as principal and United States Fire Insurance Company [hereinafter USFI] as surety, contending that the trial court’s retroactive application of the holding in Jonnet was inappropriate. For the reasons stated herein, we conclude that the question presented for decision is moot and, therefore, quash the appeal.

The pertinent facts are largely undisputed. Graziano commenced this action in assumpsit on May 23, 1974, by filing a praecipe for a writ of foreign attachment. After the writ had issued, Graziano filed its complaint against FMI and DLPST Corporation [hereinafter DLPST] on May 28, 1974, seeking recovery of the balance due for the construction of an office building located in the city of McKeesport, Allegheny County. Pursuant to the writ of foreign attachment, various property owned by FMI, including the office building, was attached. The attachment was dissolved and the attached property released when, on June 25, 1974, FMI filed a $275,000 bond with the trial court. FMI was principal and USFI surety on the bond, which named the Commonwealth of Pennsylvania as obligee to the use of Graziano.

Having secured the release of the attached property, FMI filed its answer to Graziano’s complaint on July 1, 1974. On August 30, 1974 DLPST filed its answer and new matter, to which Graziano replied on December 30, 1974. On January 30, 1975, shortly before the case was placed at issue, FMI filed a petition in the United States District Court for the Southern District of New York for a voluntary arrangement under chapter XI of the federal Bankruptcy Act. The bankruptcy judge issued an order the following day authorizing FMI to “operate its business and manage its property” as debtor in possession pending further order of the bankruptcy court. (Record at 49a). In view of the bankruptcy proceeding, the court of common pleas entered an order on March 26, 1976, directing that the case sub judice be stricken from issue and continued pending further order of the bankruptcy court. The plan of arrangement submitted by FMI was approved by its creditors and subsequently confirmed by the bankruptcy court on January 4, 1978. FMI was “released from all of its dischargeable debts” and all creditors holding dischargeable debts were “enjoined, stayed and restrained from instituting or continuing any action or employing any process to collect such debts as liabilities or obligations of FMI.” (Record at 76a-77a).

While the bankruptcy proceeding was pending, two important cases involving Pennsylvania’s foreign attachment procedure were decided. In Jonnet v. Dollar Savings Bank, 530 F.2d 1123 (3d Cir. 1976), the United States Court of Appeals for the Third Circuit held that Pennsylvania’s Rules of Civil Procedure relating to writs of foreign attachment deprived an alleged debtor of procedural due process and were, therefore, unconstitutional. The holding in Jonnet was applied retroactively by our supreme court in Schreiber v. Republic Intermodal Corporation, 473 Pa. 614, 375 A.2d 1285 (1977). The court there held that Jonnet did not establish a new principle of law which might be applied prospectively only and, accordingly, affirmed two orders invalidating writs of foreign attachment obtained prior to the date of the Jonnet decision.

On the basis of Jonnet and Schreiber, FMI filed a motion seeking cancellation and discharge of the bond it had previously posted as security for the release of the attachment. On August 29, 1978, the court below granted the motion, thereby authorizing the cancellation and discharge of the bond and the discharge of FMI as principal and USFI as surety.

FMI subsequently decided to cancel the bond. It contacted Alexander and Alexander of Texas, Inc., the agent for USFI which had issued the bond and, upon receipt of a confirmation letter dated September 18, 1978 and a copy of the August 29 order authorizing cancellation of the bond, the agent cancelled the bond. (Record at 112a-113a). Graziano subsequently filed a notice of appeal on September 27, 1978.

Presently before us is FMI’s motion to dismiss the appeal, disposition of which motion was deferred pending oral argument before this panel. FMI contends that the order authorizing cancellation of the bond is not a final order within the meaning of 42 Pa.C.S.A. § 742, and that the appeal is moot because the bond has been cancelled. We agree with the latter contention.

“[CJases presenting mootness problems involve litigants who clearly had standing to sue at the outset of the litigation. The problems arise from events occurring after the lawsuit has gotten under way—changes in the facts or in the law—which allegedly deprive the litigant of the necessary stake in the outcome. . . . ”

In re Gross, 476 Pa. 203, 209, 382 A.2d 116, 119 (1978), quoting G. Gunther, Constitutional Law 1578 (9th ed. 1975). The appellate courts of this Commonwealth will not decide moot or abstract questions, In re Gross, supra; Ridley Park Shopping Center, Inc. v. Sun Ray Drug Co., 407 Pa. 230, 180 A.2d 1 (1962); Wortex Mills v. Textile Workers, 369 Pa. 359, 85 A.2d 851 (1952), except in rare instances when the question presented is one of great public importance, Meyer v. Strause, 422 Pa. 136, 221 A.2d 191 (1966); Janet D. v. Carros, 240 Pa.Superior Ct. 291, 362 A.2d 1060 (1976), or when the question presented is capable of repetition yet escaping judicial review, Devlin v. Osser, 434 Pa. 408, 254 A.2d 303 (1969); Werner v. King, 310 Pa. 120, 164 A. 918 (1933). See generally Cases Moot on Appeal: A Limit on the Judicial Power, 103 U.Pa.L.Rev. 772 (1955).

The question presented in this appeal is clearly moot. The trial court’s order of August 29, 1978 relieved FMI and USFI of the ongoing responsibility to secure the alleged indebtedness of FMI. Graziano did not attempt to stay the effect of the trial court’s order pending its decision to appeal. Accordingly, in the absence of a stay or, for that matter, an appeal, FMI contacted the agent for USFI and the bond was cancelled on or about September 20, 1978. Thus, there no longer exists a bond to which Graziano may look for recovery if it prevails in the underlying action in assumpsit, even assuming, arguendo, that the court below erred in authorizing cancellation of the bond. It is well established that

[w]e cannot enter judgments or decrees to which effect cannot be given. Winston v. Ladner, 264 Pa. 548, 108 A. 22; Com. ex rel. v. Lawler, 343 Pa. 353, 22 A.2d 900. The rule is that where . . . pending an appeal, an event occurs which renders it impossible for the appellate court to grant any relief, the appeal will be dismissed. Com. ex rel. v. Cairns, 48 Pa. Superior Ct. 265; Reichard’s License, 45 Pa.Superior Ct. 606; Mills v. Green, 159 U.S. 651, 16 S.Ct. 132 [40 L.Ed. 293].

O’Donnell v. Pennsylvania Liquor Control Board, 158 Pa.Superior Ct. 533, 536, 45 A.2d 369, 370 (1946). See Sacred Heart Hospital v. Lanshe, 445 Pa. 57, 282 A.2d 331 (1971); Baker Nursing Home, Inc. Appeal, 28 Pa.Commonwealth Ct. 603, 369 A.2d 1336 (1977).

The circumstances sub judice are analogous to those in Commonwealth v. One 1978 Lincoln Mark V, 52 Pa.Commonwealth Ct. 353, 415 A.2d 1000 (1980). In that case, Pennsylvania State Police officers seized an automobile that was being used to transport various controlled substances. A forfeiture petition was filed and, after notice and a hearing, the' vehicle was forfeited to the Commonwealth. Thereafter, an individual claiming to be the equitable owner of the vehicle obtained an ex parte rehearing order, which was subsequently stricken. The individual claiming equitable ownership appealed, “but failed to obtain any supersedeas or stay.” Id., 52 Pa.Commonwealth Ct. at 355,415 A.2d at 1001 (footnote omitted). While the appeal was pending, the Commonwealth sold the subject vehicle. The Commonwealth Court dismissed the appeal as moot, reasoning as follows:

While an actual controversy existed when this action began, the subject matter, the rem, of the case is gone. The property having been sold and no person before us having any interest remaining therein, the issue is entirely moot. Further, the terms of the order that is here on appeal have been fully executed and there remains no power to grant the relief sought. Because an order in favor of appellants would have no effect we must find this case moot.

Id., 52 Pa.Commonwealth Ct. at 355-56, 415 A.2d at 1001-02 (emphasis added) (citations omitted). See Herman v. Pepper, 317 Pa. 349, 351, 176 A. 201, 202 (1935). Cf. Commonwealth ex rel. Stein v. Stein, 487 Pa. 1, 8, 406 A.2d 1381, 1385 (1979) (case not moot where sale of real property at mortgage foreclosure created fund to be divided between the parties).

Because the order of August 29, 1978 relieved FMI of any duty to continue to secure its alleged indebtedness, and because Graziano did not act to preserve the bond by obtaining a stay of the order, FMI was well within its rights in cancelling the bond. The bond having been discharged and cancelled, Graziano’s appeal must be dismissed as moot.

The appeal is dismissed.

      . Graziano constructed the office building for DLPST pursuant to the terms of two written agreements concluded between Graziano and DLPST in February, 1971. FMI, the construction mortgage lender, acquired title to the building through mortgage foreclosure proceedings instituted when DLPST defaulted on its construction loan.

      . The amount of the bond was established by the court below following a hearing on June 13, 1974.

      . Graziano moved to have the case placed at issue on February 3, 1975.

      . Bankruptcy Act of 1898, c. 541, § 301 et seq., as amended, superseded by the Bankruptcy Reform Act of 1978, Pub.L. 95-598, 92 Stat. 2549 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787.

      . “[T]he threshold test in deciding whether a new decision might be given prospective application only is whether the decision established a new principle of law, either by overruling clear past precedent or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 622, 375 A.2d 1285, 1289 (1977), citing Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). The Schreiber court concluded that the result in Jonnet v. Dollar Savings Bank, 530 F.2d 1123 (3d Cir. 1976) was clearly foreshadowed because “the constitutional defects in Pennsylvania’s rules governing foreign attachment were patent in light of recent precedents of the United States Supreme Court.” Schreiber v. Republic Intermodal Corp., 473 Pa. at 622, 375 A.2d at 1289, citing North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), reh. denied, 409 U.S. 902, 93 S.Ct. 177, 34 L.Ed.2d 165 (1972). See also Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).

      . The parties dispute the events leading to the cancellation of the bond on or about September 20, 1978, eight days before the expiration of the thirty day period within which Graziano was entitled to appeal from the order. Graziano contends that on September 28, one day after it had filed its notice of appeal, its counsel spoke by telephone with counsel for FMI and was allegedly informed that, since Graziano had appealed, FMI would continue the bond pending the outcome of the appeal. FMI, on the other hand, maintains that the parties’ counsel discussed the question of appeal in early September, at which time counsel for FMI was purportedly told that Graziano had not yet decided whether to appeal. Counsel for FMI contends that at no time was counsel for Graziano advised that FMI would continue the bond pending disposition of an appeal. (Record at 111a).
      We find it pointless to attempt to resolve this factual dispute. The parties agree that the bond was cancelled on or about September 20, 1978. That it was cancelled before Graziano filed its notice of appeal is irrelevant, given the absence of a written agreement between opposing counsel that the bond would not be cancelled pending the outcome of an appeal. “Oral agreements between attorneys will not be considered or recognized by an appellate court if disputed unless made in open court concerning a matter then under consideration.” Pa.R.A.P. 3122 (emphasis added). See Pa.R.C.P. 201; Commonwealth ex rel. Patricia L. F. v. Malbert J. F., Jr., 278 Pa.Superior Ct. 343, 345 n.2, 420 A.2d 572, 573 n.2 (1980); Appel Vending Co. v. 1601 Corp., 204 Pa.Superior Ct. 243, 247, 203 A.2d 812, 814 (1964). Cf. Britton v. Continental Mining and Smelting Corp., 366 Pa. 82, 85, 76 A.2d 625, 627 (1950) (alleged oral agreement between counsel not disputed).

      . Graziano filed its notice of appeal to the Supreme Court of Pennsylvania, believing that that court had exclusive jurisdiction of the matter under 42 Pa.C.S.A. § 722(7). The supreme court, however, concluded that it lacked jurisdiction and, pursuant to Pa.R.A.P. 751(a), transferred the appeal to this court on December 21, 1979.
        Graziano Construction Company, Inc. v. Lee, 487 Pa. 241, 409 A.2d 330 (1979).

      . “The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders....” Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 742 (emphasis added).

      . Pa.R.A.P. 1732(a) provides, in pertinent part, that an “ [application for a stay of an order of a lower court pending appeal, or for approval of or modification of the terms of any supersedeas .... must ordinarily be made in the first instance to the lower court .... ” Graziano asserts that it was not required to apply for a stay in order to appeal from the August 29 order. As a general statement of the law, Graziano’s assertion is accurate. However, it has no bearing on whether a stay was necessary to prevent FMI from effectuating the order, i.e., cancelling the bond. Ct Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 620 n.4, 375 A.2d 1285, 1288 n.4 (1977) (appellants posted supersedeas bond to stay lower court order vacating foreign attachment).


text:
    444 A.2d 1194
    COMMONWEALTH of Pennsylvania v. Bruce M. BUFFINGTON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 24, 1981.
    Filed April 23, 1982.
    Petition for Allowance of Appeal Denied Aug. 20, 1982.

      Robert E. Campbell, Gettysburg, for appellant.
    Robert G. Teeter, Assistant District Attorney, Gettysburg, submitted a brief on behalf of Commonwealth, appellee.

      Before PRICE, WIEAND and LIPEZ, JJ.
   PRICE, Judge:

This appeal arises out of an automobile accident which occurred on May 16, 1979, in the village of Brushtown, Adams County. Mae R. Lloyd was operating her automobile in a westerly direction on Route 116. The weather was clear and dry. Appellant’s pickup truck crossed the center line of the highway from the oncoming lane of traffic and crashed head-on with her car. The impact of this violent collision jerked Mrs. Lloyd’s car over the berm of the road onto the front porch of an adjacent home. Appellant’s truck careened onto its right side facing west in the eastbound lane. As a result of the collision, Mrs. Lloyd was killed.

On November 30, 1979, appellant was tried before a jury in the Court of Common Pleas of Adams County on a charge of homicide by vehicle. A mistrial was declared, however, when a police officer stated on direct examination that he had detected a trace of alcohol on appellant’s breath immediately after the crash. Thereafter, appellant filed a motion to dismiss the charge on double jeopardy grounds because of prosecutorial misconduct. This motion was denied and an immediate appeal was taken to this court. For the reasons stated herein, we affirm the trial court’s order denying appellant’s motion for discharge.

At trial, the Commonwealth called as its expert witness Dennis J. Hagerman, the investigating officer present at the accident scene. During the course of Hagerman’s direct examination, defense counsel repeatedly objected that no foundation had been laid for the officer’s proffered testimony concerning the point of impact. These objections were sustained until the trial court finally granted a recess in order for the prosecution to organize its case-in-chief. When the trial had resumed and the proper foundational questions had been asked, the trial court ruled, at defense counsel’s behest, that the investigating officer could not render an expert opinion as to the cause of the collision. Immediately after this ruling, however, testimony regarding the point of impact was admitted. The prosecutor then asked Officer Hagerman about his observations of appellant following the crash:

Q. [ASSISTANT DISTRICT ATTORNEY] Did you observe Mr. Buffington on the scene?
A. [OFFICER HAGERMAN] Yes, sir, I did.
Q. Did you notice anything about his demeanor at that time?
A. When I talked to the man when I first observed him he was at the scene of the accident in the middle of the roadway. He was bleeding from the scalp area. He appeared confused, injured. There was an odor of alcoholic beverages about his person.

(N.T. 48-49). The defense then moved for a mistrial on the ground that the officer’s reference to an odor of alcohol without other proof of intoxication gave rise tó an impermissible inference that appellant was under the influence and unfit to drive at the time of the accident. Following a side bar conference, the trial judge admitted that, although intoxication is a proper circumstance from which recklessness or carelessness of a driver may be inferred, the mere fact that appellant’s breath smelled of alcohol did not prove intoxication, and, therefore, such evidence, standing alone, was inadmissible because highly prejudicial. See, e.g., Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956); Cusatis v. Reichert, 267 Pa. Superior Ct. 247, 406 A.2d 787 (1979); Schwarzbach v. Dunn, 252 Pa. Superior Ct. 454, 381 A.2d 1295 (1977); Selby v. Brown, 250 Pa. Superior Ct. 134, 378 A.2d 862 (1977). Accordingly, the trial judge granted appellant’s motion for a mistrial. Later, after the jury had been dismissed, Officer Hagerman stated in an unrecorded discussion with defense counsel that he had been specifically instructed by the prosecution to mention the odor of intoxicating liquor on appellant’s breath.

In challenging the propriety of the trial court’s order dismissing his pretrial motion to dismiss, appellant argues that the prosecutor’s conduct amounted to overreaching forbidden by the double jeopardy clause and, therefore, that his reprosecution must be barred. Appellant specifically contends that the events described above prove that, by deliberately infecting the proceedings, the prosecutor sought to trigger the declaration of a mistrial in order to secure a more favorable opportunity to convict or to prejudice appellant’s prospects for an acquittal. See Commonwealth v. Sample, 493 Pa. 347, 426 A.2d 582 (1981); Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980). Appellant buttresses his argument by citing the fact that, before Officer Hagerman committed the offending reference, the Commonwealth’s case was not progressing favorably: the trial judge had continuously sustained defense counsel’s objections to the prosecutor’s attempts to elicit opinion evidence regarding the place of impact and even felt constrained to recess the proceedings to enable the prosecutor to reorganize his direct examination.

In Commonwealth v. Clark, 287 Pa. Superior Ct. 380, 430 A.2d 655 (1981), we sought to dispel the uncertainty surrounding the standard to be applied in cases involving prosecutorial misconduct. That case set forth several factors to be used in determining the existence of bad faith. Mindful of those factors, we direct our attention to the instant record. See Commonwealth v. Potter, 478 Pa. 251, 268, 386 A.2d 918, 926 (1978) (Pomeroy, J., Opinion in Support of Affirmance).

After the officer’s reference to the smell of alcohol on appellant’s breath, the following discussion occurred out of the jury’s presence:

[THE COURT]: Is there any evidence that the Defendant was under the influence of alcoholic beverages?
[THE ASSISTANT DISTRICT ATTORNEY]: A blood test was refused in the hospital. The important aspect of this is that there is no explanation for this accident. I think it is within the province of the jury to hear this evidence and to determine—well, perhaps he fell asleep. Obviously the jury will make some determination in its mind as to how the accident occurred. That’s the Commonwealth’s position. This is something the jury should know. It’s a fact of the case.
[THE COURT]: When are you planning on trying this case again. Mr. Teeter, one of the elements that is involved in a homicide by vehicle is the element of criminal negligence. In civil cases involving the question of negligence it has been ruled that the mention of alcoholic beverages is inflammatory requiring a new trial or a mistrial in the absence of testimony that would indicate that the person was under the influence. If that is true in a civil case—I haven’t seen anything in a criminal case— but since the issue is the same that is negligence. I’m afraid [sic] your witness has committed an error which I just can’t overlook.
[THE ASSISTANT DISTRICT ATTORNEY]: I just feel that it’s something that the jury has a right to know because it is a fact of the case.
[THE COURT]: Do you have any authority that the civil rule does not also apply to a criminal action such as this?
[THE ASSISTANT DISTRICT ATTORNEY]: No, Your Honor.
[THE COURT]: I’ll give you five minutes to come up with authority.

(N.T. 49-50) (emphasis added). When the trial resumed, the assistant district attorney was unable to produce the requested research. The trial judge, therefore, granted the defense motion for a mistrial.

At first blush, it is true that the objective circumstances of the court proceeding indicate that the prosecutor’s case was going badly. To be sure, appellant did succeed in excluding the investigating officer’s expert testimony concerning the point of impact. As we have already noted, however, this critical evidence, showing that appellant’s vehicle crossed the center line and was in the opposite lane of travel when the crash occurred, was ruled admissible just prior to the officer’s reference to the odor of alcohol. Given this state of the record, we disagree with appellant’s contention that the prosecutor’s conduct should be perceived as an attempt to rescue an inadequate prosecution.

It is also fair to say in assessing appellant’s charge of prosecutorial overreaching that the evidence in this case, considered in its totality, may reveal more than the “hint of intoxication” condemned as prejudicial in Fisher v. Dye, supra, and its progeny. Our purpose in stating such is not to show that the trial court abused its discretionary power to declare a mistrial since that issue is not before us. Rather, we mean only to reiterate our finding in Clark, supra, that the absence of prejudice to a defendant at least substantially certain to result in a mistrial negates any inference of bad faith on the part of the prosecutor. Commonwealth v. Clark, 287 Pa. Superior Ct. at 397, 430 A.2d at 664.

Indeed, after reviewing the transcript of the proceedings, we find that any impropriety that occurred was attributable to the prosecutor’s belief that the odor of alcohol, when joined with other facts of evidence in the case, was relevant in determining whether appellant’s drinking contributed to the fatal accident. See note 8 supra. The prosecutor argued that, even if appellant was not intoxicated, the jury could reasonably infer that he was deprived of that degree of control and clarity of intellect which he would ordinarily possess. In light of this circumstance, it must be concluded that the prosecutor’s attempt to elicit testimony concerning the odor of alcohol on appellant’s breath had a basis in trial strategy and was not calculated to create an impression of unfitness to drive through innuendo. See generally Commonwealth v. Clark, supra.

Finally, it is important to note that the trial court itself was satisfied that the events which led to the mistrial failed to disclose any deliberate prosecutorial misconduct. See Commonwealth v. Clark, supra. Determining the motives of the prosecutor is analogous to assessing the credibility of the witnesses in a nonjury trial. Commonwealth v. Wright, 439 Pa. 198, 266 A.2d 651 (1970). “The trial judge who is on the scene and who has observed the individuals and the events is in a better position to decide this question than are we who only have a dry record from which to work.” Id, 439 Pa. at 204, 266 A.2d at 654-55 (citation omitted). Therefore, unless the record supports a finding of overreaching, we give great weight to a trial judge’s decision to permit a defendant’s reprosecution. See Commonwealth v. Clark, supra. As already indicated, we find that the instant record fully supports the conclusion of the trial court.

Admittedly, the portion of Officer Hagerman’s testimony that caused the declaration of a mistrial was given pursuant to the instructions of the prosecutor. This is not a case, however, where the prosecutor’s conduct was so abhorent as to constitute overreaching as proscribed by the double jeopardy clause. Criminal adjudication necessarily demands that the prosecutor assume an aggressive stance, and it is only when he has engaged in intentional misconduct designed to prejudice the jury or force the defense to move for a mistrial that society’s interest in punishing criminals must give way to a discharge of the accused.

The trial court’s order denying appellant’s motion for discharge is affirmed.

WIEAND and LIPEZ, JJ., concur in the result.

      . 75 Pa.C.S.A. § 3732 (1977). Section 3732 provides:
      Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

      . An order denying a pretrial motion to dismiss on double jeopardy grounds is immediately appealable. Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980); Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).

      . The trial judge stated:
      I just want to tell you, Mr. Teeter, that if you are trying to get this witness to express an opinion, there are several things that you have to do in order to qualify him to express an opinion. It’s becoming a little disconcerting with this unorganized way that this testimony is continuing. You haven’t gone into his background. You haven’t really developed what he’s seeing, the fact about which he’s basing any opinion even when not asked. We will sustain the last objection and order the jury to disregard that particular part of it but I’m just telling you that if you want to take a few minutes to get organized, perhaps you should do so but this is not coming in the way it properly should come in.
      (N.T. 24).

        . In order for the jury to find appellant guilty of homicide by vehicle, the trial judge was convinced that it must find his actions grossly negligent. See Commonwealth v. Nay, 281 Pa. Superior Ct. 226, 421 A.2d 1231 (1980); Commonwealth v. Barone, 276 Pa. Superior Ct. 282, 419 A.2d 457 (1980). But see Commonwealth v. Spurgeon, 285 Pa. Superior Ct. 563, 428 A.2d 189 (1981); Commonwealth v. Hartzell, 282 Pa. Superior Ct. 549, 423 A.2d 381 (1980).

      . The Commonwealth does not dispute this fact either now on appeal or in its answer to appellant’s pretrial application to dismiss the charge.

      . In the instant case, there is no question whether Officer Hagerman’s objectionable testimony should be imputed to the Commonwealth. See note 5 and accompanying text supra. But see Common

        wealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Palazzo, 275 Pa. Superior Ct. 135, 418 A.2d 649 (1980); Commonwealth v. Meekins, 266 Pa. Superior Ct. 157, 403 A.2d 591 (1979).

      . As this court said in Clark, the following circumstances are relevant in gauging a prosecutor’s conduct:
      (1) the absence of any actions undertaken by the prosecutor to preserve the trial and to enhance the defendant’s prospects for a fair trial after the misconduct occurred, (2) the absence of either abundant or convincing evidence of the defendant’s guilt, so that the prosecutor’s misconduct might reasonably be perceived as an attempt to rescue an inadequate prosecution, (3) the absence of misconduct causing serious and incurable prejudice to the defendant, (4) the absence of any neutral explanations, including inexperience, trial strategy, or inadvertence on the part of the government, to show that it did not, in fact, act purposely, (5) observations of the trial judge concerning the prosecutor’s motives, and (6) defiance by the prosecutor of any direct order or clear admonition by the trial court to refrain from specific conduct prejudicing the defendant’s prospects for acquittal.

        Commonwealth v. Clark, 287 Pa. Superior Ct. at 392, 430 A.2d at 661.

      . Without question, the mere fact of consuming intoxicating liquor is inadmissible to prove unfitness to drive. “[I]f in addition to the drinking, [however,] facts are shown from which a conclusion reasonably follows that the driver was under the influence ..., all the evidence ... [is] admissible ... to determine whether or not the drinking was wholly or partly the cause of an accident.” Commonwealth v. Cave, 219 Pa. Superior Ct. 512, 515, 281 A.2d 733, 734 (1971). In Cave, for example, this court held that where there is evidence establishing a causal connection between a driver’s drinking and a subsequent accident, the fact of drinking has rational probative value on the issue of the driver’s alleged intoxicated state outweighing any danger that a jury may be unduly prejudiced.
      Turning to the instant case, the circumstances indicate more than just drinking and in the occurrence of a fatal accident with nothing to connect the two. Under optimal driving conditions, appellant’s truck crossed the center line of a highway and collided head-on with another automobile. Immediately añerwards, the investigating officer at the accident scene found appellant in the middle of the highway, confused and with the odor of alcohol on his breath. Although it is by no means clear-cut, these facts arguably reveal a chain of events, leading from appellant’s drinking (as evidenced by the odor on his breath) to the accident, from which a reasonable inference could be drawn that appellant’s ability to safely operate his truck was impaired. Cf. Commonwealth v. Reeves, 237 Pa. Superior Ct. 443, 352 A.2d 167 (1975) (defendant’s conviction of driving under the influence of intoxicating liquor was affirmed on the basis of facts virtually identical to those involved in the present case).

      . In pertinent part, the trial court stated that its “firm belief [was] that the Assistant District Attorney sincerely believed [his conduct] was proper.” Slip op. at 3.