text:
    554 A.2d 54
    COMMONWEALTH of Pennsylvania v. Mitchell COPELAND, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1988.
    Filed Dec. 21, 1988.
    Reargument Denied Feb. 28, 1989.

      William P. Fedullo, Philadelphia, for appellant.
    Suzan Willcox, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WIEAND, McEWEN and MELINSON, JJ.
   WIEAND, Judge:

Mitchell Copeland was tried by jury and was found guilty of murder in the first degree. Post-trial motions were denied, and Copeland was sentenced to serve a term of life imprisonment. A direct appeal was filed in the Superior Court, after which trial counsel was permitted to withdraw and present counsel was appointed. The arguments now made in the direct appeal are that (1) the trial court erred in denying a motion to suppress statements which appellant had made to police; (2) the prosecuting attorney was guilty of misconduct in the delivery of the opening and closing addresses; (3) the trial court’s rulings and responses to defense counsel demonstrated bias and prejudice; (4) the trial court erred in refusing to admit photographs of burns which appellant had allegedly sustained prior to the killing; (5) the trial court erred when it refused to instruct the jury that throwing hot water or acid on a person could be deemed adequate provocation within the definition of voluntary manslaughter; and (6) trial counsel rendered ineffective assistance. We find no merit in Copeland’s first five contentions but remand for an evidentiary hearing on his claim that defense counsel rendered ineffective assistance when he failed to convey to his client a plea bargain offered by the Commonwealth.

On July 27, 1985, at or about 10:40 p.m., the battered and blood covered body of seventy year old Victoria Alford was found by police in the kitchen of an apartment which she had shared with appellant. Appellant was found shirtless near the body of the decedent. He had blood and scratch marks on his neck and shoulders, and on his chest were red blotches which appeared rash-like. His sneakers were also covered with blood and had made imprints in the blood around the victim’s body. Appellant initially denied culpability. Later, at the police administration building, after having been informed of his Miranda rights for a second time, appellant gave a written statement in which he said that he had slapped and shoved Ms. Alford after she had burned him by throwing hot water on his chest. As to Alford’s death, appellant suggested that she must have fallen and struck her head. Police took photographs of appellant’s chest and then took him for preliminary arraignment about 4:00 a.m. the next morning. He was thereafter taken to the hospital for treatment and was found to have sustained second degree burns of his chest.

Post-mortem examination of the victim revealed more than one hundred abrasions of her body. The absence of fractures suggested repeated blows of moderate force, inflicted by a relatively soft object. Other evidence prompted an opinion that blows had been inflicted while the victim was alive but in a prone position, perhaps by being kicked by a person wearing sneakers.

Appellant’s contention that the trial court erred by refusing to suppress evidence of his oral and written statements has been waived. The court’s suppression ruling was not alleged as error in appellant’s post-trial motions or supplemental post-trial motions. It is well settled that only issues raised in post-trial motions are preserved for appellate review. Commonwealth v. Gravely, 486 Pa. 194, 198-199, 404 A.2d 1296, 1298 (1979); Commonwealth v. Heckman, 366 Pa.Super. 224, 227, 530 A.2d 1372, 1373 (1987); Commonwealth v. Thier, 354 Pa.Super. 7, 9, 510 A.2d 1251, 1252 (1986), alloc. denied, 515 Pa. 578, 527 A.2d 539 (1987), cert. denied, — U.S. —, 108 S.Ct. 142, 98 L.Ed.2d 98 (1987). Moreover, after reviewing the record of the pre-trial suppression hearing and the findings made by the hearing court, we are satisfied that appellant’s suppression motion was properly denied.

Because appellant failed also to preserve in post-trial motions the alleged misconduct of the prosecuting attorney, this issue, too, has been waived.

We find no merit in appellant’s contention that the trial court demonstrated bias and prejudice against the defense. Although there were several acrimonious exchanges between the trial judge and defense counsel, our review of the record discloses that they were almost uniformly precipitated by defense counsel’s angry responses to rulings made by the trial judge. When the exchanges between court and counsel are examined in the context in which they occurred, it cannot be said that the trial judge demonstrated a failure to preside in an impartial and evenhanded manner.

At trial, appellant’s defense was that the victim had provoked retaliation by throwing either hot water or sulphuric acid on his chest and that his crime, therefore, was voluntary manslaughter. To establish severe burning of his chest, appellant sought to introduce photographs of the scarring of his chest at the time of trial. The trial court disallowed the photographs, holding that the condition of appellant’s chest after the burns had been treated was not relevant. More specifically, the trial court wrote in its post-trial opinion as follows:

Defendant attempted to introduce photographs of himself taken at the time of trial which showed the effects of treatment, scarring, and surgery done to alleviate injuries sustained one and one-half years earlier at the time defendant was arrested. Since defendant was alleging that the injuries were inflicted by the victim and were adequate provocation for the attack which caused her death, this Court cannot see the relevancy in demonstrating those effects which were, in fact, created by treatment. The photos were not of the wounds allegedly inflicted by the victim and thus were not competent evidence.
Defendant had available to him photos of the injuries taken the night they occurred; he chose not to introduce them. These photos, taken hours after the murder, would have had probative value to the jury which was the final arbiter of whether the wounds or the circumstances of their inflictions were adequate provocation for murder.
Since defendant has not met the threshold inquiry of relevancy, his contention that the Court failed to rule on the inflammatory nature of the photos has no basis. Concerning the matter of relevancy, it has been said that: “The law furnishes no test of relevancy, but tacitly refers it to logic and general experience. Evidence is admissible which tends to make the fact at issue more or less probable or intelligible or to show the origin and history of the transaction between the parties and explain its character.” Gregg v. Fisher, 377 Pa. 445, 454, 105 A.2d 105, 110 (1954). Therefore, issues of relevancy are left in large measure to the sound discretion of the trial court, whose decisions will not be reversed in the absence of a clear abuse of discretion. See: Commonwealth v. Sálesele, 361 Pa.Super. 173, 522 A.2d 70 (1987); Commonwealth v. Underwood, 347 Pa.Super. 256, 500 A.2d 820 (1985); Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984); Commonwealth v. Lumpkins, 324 Pa.Super. 8, 471 A.2d 96 (1984).

Commonwealth v. Sullivan, 372 Pa.Super. 88, 96, 538 A.2d 1363, 1368 (1988).

Whether photographs of appellant’s scarred chest after treatment for second degree burns were relevant to show injury constituting sufficient provocation to reduce murder to voluntary manslaughter is a close question. “Analyzing and weighing the pertinent costs and benefits is no trivial task. Wise judges may come to differing conclusions in similar situations. Even the same item of evidence may fare differently from one case to the next, depending on its relationship to the other evidence in the cases and the importance of the issues on which it bears.” McCormick on Evidence § 185 at 546 (3d ed. 1984). It is precisely for this reason that “much leeway is given trial judges who must fairly weigh probative value against probable dangers.” Id. at 546-547.

In the instant case, the trial court excluded the tendered photographs because they did not depict the condition of appellant’s chest at the time of the killing. Although the issue of relevancy is a close one, we cannot say that the ruling of the trial court was an abuse of discretion. As the trial court observed, photographs were available for appellant’s use which depicted the condition of his burned chest shortly after he had been arrested on the day of the killing and were not used.

The evidence showed that the killing had occurred following an argument between the victim and the defendant. The evidence was undisputed that the defendant had sustained second degree burns on his chest. Appellant had said in his statement to police that Victoria Alford had thrown hot water on him. Other evidence showed that there had been sulphuric acid on the defendant’s shoes and trousers; and the defense argued, therefore, that Alford had poured acid on the defendant. As a result of this provocation, the defense asked the jury to find that appellant had been burned and had killed Alford while in the heat of passion or rage caused by the burning injury which he had sustained.

The law of voluntary manslaughter has been summarized at 17 P.L.E. Homicide § 32 in relevant part as follows:

Under the Crimes Code, a person who kills another without lawful justification commits voluntary manslaughter if, at any time of the killing, he is acting under a sudden and intense passion resulting from serious provocation by the victim____ As defined by the courts, voluntary manslaughter is the intentional and unlawful killing of a human being without malice, either express or implied, committed under the influence of sudden passion, or heat of passion, which places the defendant beyond the control of reason and which is due to legally adequate provocation____
The presence of passion in its broad sense is the element that distinguishes voluntary manslaughter from murder. The term “passion” includes anger and terror, provided they reach a degree of intensity sufficient to obscure temporarily the reason of the person affected, and includes rage, fear or any other emotion that renders the mind incapable of cool reflection. However, to support a finding of guilty of voluntary manslaughter by reason of heat of passion, the jury must find both that the defendant was impassioned and that a reasonable person would have acted in the heat of passion under the same circumstances, (footnotes omitted).

The passion which will reduce an unlawful killing to voluntary manslaughter must be caused by legally adequate provocation. Commonwealth v. Flax, 331 Pa. 145, 155, 200 A. 632, 637 (1938). The test for determining the existence of legally adequate provocation is an objective test. Commonwealth v. Miller, 473 Pa. 398, 399, 374 A.2d 1273, 1274 (1977); Commonwealth v. Stasko, 471 Pa. 373, 384, 370 A.2d 350, 356 (1977); Commonwealth v. McCusker, 448 Pa. 382, 389, 292 A.2d 286, 289 (1972). The test is whether a reasonable man, confronted with the same or a similar event, would become impassioned to the extent that his mind was incapable of cool reflection. Commonwealth v. Stasko, supra 471 Pa. at 384, 370 A.2d at 356; Commonwealth v. McCusker, supra 448 Pa. at 390, 292 A.2d at 290.

The trial court in the instant case instructed the jurors generally on voluntary manslaughter and the objective standard to be applied in determining whether there had been adequate provocation. The Court said:

Voluntary manslaughter exists where there was an intentional act which caused death, but such act was administered with a sufficient provocation by the individual killed and while the defendant was in a state of terror, anger, fear, rage or resentment without time to cool, so that he was placed beyond the control of his reason and suddenly impelled to do the deed. If any of these factors be lacking, if there is provocation by the individual killed but no passion, or if there is passion without sufficient cause or provocation by the individual killed, or if there has been time to cool and reason has resumed, then the killing will be murder. What is sufficient provocation by the individual killed cannot be defined exactly for it must bear with the circumstances. However, no mere words, gestures or charges, however false or insulting, and no mere slight assault can constitute what the law knows as sufficient provocation. What is serious provocation involves an objective standard of evaluation which you must apply by asking yourselves if the provocation involved under the facts and circumstances of this case would create an intense passion in a reasonable man. The passion involved must be sufficiently intense to obscure temporarily the reason of the person effected, and it must be due to a legally adequate provocation on the part of the deceased. In short, the causal provocation by the individual killed must be such as would induce a reasonable man to lose control over his reasoning faculties and to enter into an uncontrollable frenzy which leads him to the use of deadly force without time to cool and reason to resume.

.

Defense counsel did not object to the foregoing instruction, but at the conclusion of the court’s charge to the jury he requested the court to “inform the jury that hot water— pouring of hot water or acid on the body of the defendant could be deemed and believed to be sufficient provocation for the definition of provocation in voluntary manslaughter.” Although the prosecuting attorney consented to an instruction “that acid may be considered ... on the issue of legal and just provocation,” the trial court declined to give any additional instruction. Appellant contends that this was error.

We agree with counsel that the request to the court to relate its instructions on “adequate provocation” to the evidence in the case was a reasonable request and one which the court might properly have granted. On the other hand, the trial court’s charge to the jury contained a correct statement of the law and was free of error. Thus, when the court’s instructions are examined in their entirety and considered against a backdrop of the evidence and the arguments of counsel, it cannot be said that the failure to give the requested additional instruction was prejudicial error requiring a new trial. The jury was aware of the defense contention that defendant’s violent conduct had been committed in the heat of passion caused by the pouring of hot water or acid on his chest, and the trial court’s instructions correctly stated the law necessary to determine whether the crime thereafter committed was murder or voluntary manslaughter. Under these circumstances the court’s refusal of appellant’s request for additional instructions does not require a new trial.

The analysis which we apply in reviewing claims of ineffective assistance of counsel is firmly established.

Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant. Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986), allo, denied, 514 Pa. 629, 522 A.2d 558 (1987). To meet that burden, appellant must demonstrate that 1) the issue underlying his claim of ineffectiveness is of arguable merit; 2) the course chosen by counsel had no reasonable basis designed to serve his interests; and 3) he suffered prejudice as a result of counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 158-160, 527 A.2d 973, 975-76 (1987); Commonwealth v. Buehl, 510 Pa. 363, 378-79, 508 A.2d 1167, 1174-75 (1986); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-5 & n. 8, 235 A.2d 349, 352-53 & n. 8 (1967).

Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988).

During trial counsel’s voir dire examination of juror number three, the following questions were asked and responses given:

Q. If my client does not testify or offer any evidence at all in his behalf, would you be able to follow Judge Sabo’s instructions and not hold that fact against him at all in your determination as to his guilt or innocence?
A. Yes, sir.
Q. As my client sits here today, and you not having heard any evidence at all, can you at this particular point presume him to be innocent of all the charges?
A. No, sir.
Q. Well, you remember — in our society a person, as Judge Sabo indicated, who is charged with a crime is presumed to be innocent until proven guilty beyond a reasonable doubt.
A. That’s correct.
Q. Would you be able to follow that instruction, and at this point presume my client to be innocent of all the charges?
A. No, sir.
Q. Why, sir?
A. Because I have to hear the story from the client, from representatives from the witnesses before I honestly could make a decision.
THE COURT: What he’s saying to you is, can you presume the defendant innocent at this time until and unless the Commonwealth is able to prove him guilty beyond a reasonable doubt?
THE JUROR: Oh, yeah. Everybody is innocent until proven guilty. Excuse me. May I — what I understood the attorney is, if I think without any presentation, if a client is guilty or innocent, and I have no judgment until I hear the presentations.
Q. Is there anything that was not brought out by the questioning of Judge Sabo, Mr. Grant or myself, that would prevent you from being able to be fair to both sides in this case?
A. No, sir.
Q. Could you be fair to both sides in this case?
A. I’d be fair to both sides.
MR. JAMES: Thank you very much, sir.

Appellant contends that his trial counsel was ineffective for accepting juror number three. We disagree.

There is nothing in the responses of the juror to indicate that he could not serve impartially or that he would draw an adverse inference to appellant if appellant failed to testify. Indeed, the juror responded clearly that he would be able to follow the judge’s instructions and would require the Commonwealth to prove appellant’s guilt beyond a reasonable doubt. The juror also stated unequivocally that “[ejverybody is innocent until proven guilty.” While at one point the juror exhibited difficulty in understanding defense counsel’s question, his response was nothing more than a declaration that he would have to wait until all the evidence was presented before making his decision. There was nothing improper in this response, and no basis therein for sustaining a challenge for cause. As the Supreme Court recently said:

Even a statement by a prospective (or chosen) juror that some evidence might be required from defendant to change an opinion or impression already formed would not be a sufficient basis for challenge for cause if he or she also stated that he or she could follow the court’s instructions and decide the case solely on the evidence presented. Commonwealth v. Sparrow, 471 Pa. 490, 500-01, 370 A.2d 712 (1977); Commonwealth v. Lopin son, 427 Pa. 284, 234 A.2d 552 (1967); Commonwealth v. McGrew, 375 Pa. 518, 100 A.2d 467 (1953).

Commonwealth v. Smith, 518 Pa. 15, 37, 540 A.2d 246, 256 (1988). For similar reasons we find no basis for declaring counsel ineffective for failing to challenge the juror peremptorily.

Finally, appellant argues that:

[T]he District Attorney has indicated to present counsel that he offered appellant’s prior counsel the opportunity for an open plea of guilty to Homicide in the 3rd Degree. The appellant himself and those members of his family who accompanied him to court every day, his mother and his cousin, Dolores Reed, all indicate that no such offer was ever conveyed to the appellant by defense counsel.

The prevailing view among courts which have considered this issue is that counsel has a duty to inform his client of tendered plea agreements and may be found ineffective for failing to do so. See: United States ex rel. Caruso v. Zelinsky, 689 F.2d 435 (3d Cir.1982); Johnson v. Duckworth, 793 F.2d 898 (7th Cir.1986), cert. denied, 479 U.S. 937, 107 S.Ct. 416, 93 L.Ed.2d 367 (1986); People v. Whitfield, 40 Ill.2d 308, 239 N.E.2d 850 (1968); Lyles v. State, 178 Ind.App. 398, 382 N.E.2d 991 (1978); State v. Simmons, 65 N.C.App. 294, 309 S.E.2d 493 (1983); People v. Alexander, 136 Misc.2d 573, 518 N.Y.S.2d 872 (1987); Hanzelka v. State, 682 S.W.2d 385 (Tex.App.1984); State v. James, 48 Wash.App. 353, 739 P.2d 1161 (1987); State v. Ludwig, 124 Wis.2d 600, 369 N.W.2d 722 (1985). See generally: Annot. Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Plea Bargaining, 8 A.L.R.4th 660 (1981). Cf. United States v. Bowers, 517 F.Supp. 666 (W.D.Pa.1981) (counsel found ineffective for failing to advise defendant of government’s offer of immunity).

This precise issue has not been before the. appellate courts of Pennsylvania. However, in Commonwealth v. Napper, 254 Pa.Super. 54, 385 A.2d 521, 10 A.L.R.4th 1 (1978), the Superior Court determined that defense counsel had been ineffective for failing to advise his client regarding the merits of accepting a tendered plea bargain vis-a-vis the dangers of trial. In Napper, counsel had informed the defendant that a plea offer had been made, but counsel had failed to give his client professional advice regarding the advantages of accepting the offer and the dangers inherent in rejecting it. Finding this to constitute ineffective assistance of counsel, the Napper Court reasoned:

Defense counsel has a duty to communicate to his client, not only the terms of a plea bargain offer, but also the relative merits of the offer compared to the defendant’s chances at trial. See, e.g., A.B.A. Project on Standards for Criminal Justice: Standards Relating to The Prosecution Function and The Defense Function, (Approved Draft, 1971):
Advising the defendant.
(a) After informing himself fully on the facts and the law, the lawyer should advise the accused with complete candor concerning all aspects of the case, including his candid estimate of the probable outcome.
(b) It is unprofessional conduct for a lawyer intentionally to understate or overstate the risks, hazards or prospects of the case to exert undue influence on the accused’s decision as to his plea.
Id., The Defense Function § 5.1 (emphasis added).
See also I Amsterdam, Segal and Miller, Trial Manual for the Defense of Criminal Cases (1967):
The decision whether to plead guilty or contest a criminal charge is probably the most important single decision in any criminal case. This decision must finally be left to the client’s wishes; counsel cannot plead a man guilty, or not guilty, against his will. But counsel may and must give the client the benefit of his professional advice on this crucial decision, and often he can protect the client adequately only by using a considerable amount of persuasion to convince the client that one course or the other is in the client’s best interest. Such persuasion is most often needed to convince the client to plead guilty in a case where a not guilty plea would be totally destructive.
Id. at 2-143 (emphasis added).
Here, counsel chose to neglect his duty “to give [appellant] the benefit of his professional advice on [the] crucial decision” whether to accept the plea bargain offer; his “offhanded” presentation, made for reasons entirely inappropriate to his client’s interests, failed to make clear to appellant “the risks, hazards or prospects of the case.” Under the circumstances, we must hold trial counsel ineffective, for we cannot conclude that he “made an informed choice, which at the time the decision was made reasonably could have been considered as advancing and protecting the appellant’s interest.” Commonwealth v. Roundtree, 469 Pa. 241, 249, 364 A.2d 1359, 1363 (1976).
We recognize that appellant might have rejected the plea bargain offer because it would have meant “state time.” We also recognize that we cannot be sure that the trial court, which after trial imposed very heavy sentences, would have accepted the plea bargain. These uncertainties, however, in no way affect the fact that counsel, for no good reason, failed to take action that arguably might have furthered appellant’s interests. In other words: It cannot be denied that upon proper advice, appellant might have accepted the offered plea bargain; nor that, while a court may reject a plea bargain, as a practical matter — especially in crowded urban courts— this rarely occurs. Finally, it should be noted that our decision gives appellant only imperfect relief. We cannot compel the Commonwealth to reinstate its plea bargain offer; nor can we dictate what sentence may be imposed if appellant pleads guilty without so advantageous an offer as he had before, or if he goes to trial and is again convicted.

Commonwealth v. Napper, supra 254 Pa.Super. at 60-61, 385 A.2d at 524, 10 A.L.R.4th at 5-7. Cf. Commonwealth v. McNeil, 497 Pa. 187, 195-196, 439 A.2d 664, 668 (1981) (plurality opinion) (counsel not ineffective for failing to advise defendant of plea bargain where counsel testified at evidentiary hearing and court found that prosecution was unwilling to offer any plea and that counsel advised his client of such fact).

Based upon the reasoning of Napper and the consensus among courts of other jurisdictions which have considered the issue here raised, we conclude that there is arguable merit in appellant’s contention that counsel was ineffective for failing to tell him of the plea agreement which the Commonwealth had offered.

When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the court below to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing. See: Commonwealth v. Spotts, 341 Pa.Super. 31, 33, 491 A.2d 132, 134 (1985).

Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987). Therefore, we will vacate the judgment of sentence, at least for the time being, and remand the case to the trial court for an evidentiary hearing on appellant’s claim that trial counsel was ineffective for failing to disclose to him that a plea agreement had been offered by the Commonwealth. At such hearing, in order to be entitled to relief, appellant will have the burden of proving that: (1) an offer for a plea was made; (2) trial counsel failed to inform him of such offer; (3) trial counsel had no reasonable basis for failing to inform him of the plea offer; and (4) he was prejudiced thereby. If appellant establishes these facts, he must be awarded a new trial. If, however, he fails to meet the burden of proving these facts, the judgment of sentence may be reinstated.

The judgment of sentence is vacated and the case is remanded for an evidentiary hearing in accordance with the foregoing opinion. Jurisdiction is not retained.

      . In view of our determination that the trial court’s instruction concerning adequate provocation was a correct statement of the law, we reject appellant’s argument that trial counsel was ineffective for failing to submit a written point for charge on the same subject. See: Commonwealth v. McNeil, 497 Pa. 187, 198, 439 A.2d 664, 669 (1981) (plurality opinion); Commonwealth v. Jones, 298 Pa.Super. 199, 209, 444 A.2d 729, 734 (1982).


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    554 A.2d 62
    COMMONWEALTH of Pennsylvania v. Steven LINDENMUTH, Appellant. COMMONWEALTH of Pennsylvania v. Bruce S. FENSTEMAKER Appellant. COMMONWEALTH of Pennsylvania v. Gary L. LOMISON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1988.
    Filed Jan. 3, 1989.
    Reargument Denied March 2, 1989.

      Michael J. Rudinski, Williamsport, for appellant in No. 737.

      Peter T. Campana, Williamsport, for appellants in Nos. 738 and 739.
    Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Com., appellee.
    Before BECK, KELLY and HESTER, JJ.
   HESTER, Judge:

Steven Lindenmuth, Bruce Fenstemaker and Gary Lomison each appeal from the judgment of sentence entered against them on October 27, 1987, in the Court of Common Pleas of Lycoming County. They were convicted of criminal attempt to possess a controlled substance with intent to deliver following a consolidated jury trial. Their appeals were also consolidated. We affirm.

The evidence introduced at trial establishes the following. Agent Thomas Sokso of the Internal Revenue Service was investigating a large scale drug dealer by the name of Nicholas DiEspriella. A former companion of DiEspriella turned informant, named Dosso, aided in the investigation. Dosso had sold large quantities of marijuana to Scott L. Brown for DiEspriella in 1984 and 1985 and knew that Brown still owed money to DiEspriella from these deals. Agent Sokso, with the aid of Dosso and Agent Hollier of the Pennsylvania Attorney General’s Office, began to gather evidence against DiEspriella by contacting Brown.

The plan was to have Dosso meet with Brown under the pretext of collecting the money. On July 14, 1986, Agents Sokso and Hollier accompanied Dosso as extra intimidation to collect the debt which Brown owed DiEspriella and which Dosso had been unable to collect from Brown. Since Brown did not have the money or any means to raise the money, he eventually agreed to sell marijuana supplied by Dosso to make a profit and repay the debt.

The agents returned to Brown’s residence with Dosso to tell Brown that he must have the money before the marijuana would be delivered to him. Agent Hollier threatened Brown that one of his vehicles would be seized for payment of the debt if he did not come forward with the money to buy the marijuana. Brown, who had not been selling marijuana recently, agreed to collect the money from some friends and meet Sokso at a later date.

On July 28, 1986, agents Sokso and Hollier contacted Brown and arranged to meet him to discuss the deal further. They told Brown that they would provide him with seven pounds of marijuana for the sum of $3,000.00. Brown agreed to get the money from friends and to meet Sokso and Hollier the next day in a parking lot. Brown met with a number of friends from work and told them he would sell them a minimum quantity of one pound of marijuana for $600.00. Appellants were interested and gave their money to Brown since marijuana was not readily available in the Williamsport area at that time.

Brown met with Hollier and Sokso on July 29, 1986. He had only $2,600.00. They agreed to sell him only six pounds. He was arrested after he gave Hollier and Sokso $2,600.00. Brown was then transported to the civil defense building and later decided to cooperate in the investigation. No immunity was given, and no specific leniency was promised. Sokso interviewed Brown about DiEspriella. The investigation was turned over to agent Hollier.

Agent Hollier persuaded Brown to telephone each of his buyers to tell them that the deal had not gone through, that the money was stolen and that he would try to repay them. Each telephone conversation was tape recorded. Each appellant acknowledged that he had given Brown money for the purpose of purchasing a pound of marijuana.

Appellants were charged with criminal attempt to possess with intent to deliver and conspiracy to possess with intent to deliver. They were tried together following denial of their pretrial motions to sever. The jury found appellants not guilty of conspiracy, but did find them guilty of criminal attempt to possess with intent to deliver. This timely appeal followed.

Appellants first contend that the conduct of the agents in threatening Brown and inducing him to buy and sell marijuana was outrageous and so fundamentally unfair that it violated their due process rights under the Fourteenth Amendment to the United States Constitution and Article I, § 9 of the Pennsylvania Constitution. Appellants ask us to dismiss the charges against them on the basis that the veiled threats and conduct toward Brown by the agents was egregious in that government agents threatened force and induced a crime that otherwise would not have occurred. Appellants contend that dismissal is required in order to send a message that police involvement which creates criminal action is a perversion of the criminal justice system, and will not be condoned.

Appellants rely on United States v. Twigg, 588 F.2d 373 (3rd Cir.1978) and Commonwealth v. Mathews, 347 Pa.Super. 320, 500 A.2d 853 (1985), to support their claim that conduct of government agents can be so outrageous as to bar prosecution even where entrapment is not shown. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). Appellants further posit that Brown’s ignorance that he was aiding the government should not insulate it from penalty for outrageous conduct which resulted in its prosecution of appellants.

Initially, we note that, as it relates to due process guarantees, our state constitution affords no greater protection than the United States Constitution. Coades v. Commonwealth of Pennsylvania Board of Probation and Parole, 84 Pa.Cmwlth. 484, 480 A.2d 1298 (1984). Accordingly, our analysis below of the federal constitution applies to the state constitution.

Twigg and Mathews held that police involvement in criminal activity can be so outrageous that a prosecution will be barred on due process grounds. This is a legal question to be determined by the court, not the jury. United States v. Engler, 806 F.2d 425, 430 (3rd Cir.1986), cert. denied, 481 U.S. 1019, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987).

Government agents in Twigg and Mathews supplied money, indispensable equipment and advice in a plan to manufacture drugs. It was held in both cases that the government’s role in inducing and supporting the crime was so extensive that it was deemed to negate to the required criminal element of mens rea so that prosecution was barred.

Instantly, the agents’ involvement was not as extensive nor as intrusive as that involved in Twigg and Mathews. Furthermore, and key, is the fact that police actions in this case did not affect appellants’ mens rea, but Brown’s mens rea. The police coerced Brown, not the appellants, into committing the crime through threats and intimidation. The evidence establishes that appellants offered Brown money for drugs merely because he asked them if they would like to buy some. Notes of Testimony, (N.T.), 5/21/87, at 126. No police coercion or influence contributed to the independent decision by any of the appellants to purchase narcotics. Twigg and Mathews, therefore, are distinguishable, and we will not extend the reasoning of those cases to a situation where the police initiated the criminal episode by encouraging a third party, not the defendant, to engage in criminal activity and where the third party was unaware that he was being used to further police actions. Appellants dealt with Scott Brown and not directly with the agents. The fact that Brown was induced to sell marijuana below the current market value does not give us cause to extend the lack of mens real due process defense to appellants on a principal similar to “prosecutorial taint.” We agree with the trial court that the agents’ involvement in this case does not rise to such a level that prosecution should be barred.

Appellant’s second contention is that the conduct of the agents constituted entrapment and the question of entrapment should have been put before the jury. 18 Pa.C.S. § 313. The defense of entrapment, “focus[es] on the conduct of the police and will not be concerned with the defendant’s prior criminal activity or other indicia or a predisposition to commit crime.” Commonwealth v. Taylor, 299 Pa.Super. 113, 120, 445 A.2d 174, 177 (1982). Thus, we test for entrapment under the Code by objectively assessing police conduct rather than by considering the defendants’ prior criminal activity or other indicia or focusing on a subjective evaluation of a defendant’s motivations.

In Commonwealth v. Manley, 252 Pa.Super. 77, 380 A.2d 1290 (1977), we stated that courts have recognized that:

[w]hile it is true that under normal circumstances entrapment is usually a jury question, where the evidence points to only one conclusion the question may be decided as a matter of law, just as any other factual issues admitting of only one conclusion.
United States v. Klosterman, 248 F.2d 191, 195 (3rd Cir.1957), cited in, Commonwealth v. Mott, 234 Pa.Super. 52, 58, 334 A.2d 771, 774-75 (1975).

Id. 252 Pa.Super. at 87, 380 A.2d at 1294.

First, any police conduct in this case was directed toward Brown, not appellants. Second, we do not find the police conduct in this case to be overly intrusive or to have induced appellants to commit a crime that otherwise would not have occurred. Compare: Commonwealth v. Thompson, 335 Pa.Super. 332, 484 A.2d 159 (1984), in which a pretty blond “enticed” defendant, a police officer, over a ten month period to provide some marijuana to her; Commonwealth v. Berrigan, 234 Pa.Super. 370, 343 A.2d 355 (1975), in which a woman, new to town and an undercover agent, convinced the defendant, in order to earn her gratitude, to obtain some marijuana for her. Instantly, unlike these cases, appellants were not unduly swayed to commit a crime by police. Our courts have recognized that drug dealing is a difficult crime to prosecute and police can use artifice and stratagem to detect criminal activity. Merely affording opportunities for the commission of crime by one who already had the criminal intent to engage in such a crime does not defeat the prosecution. Commonwealth v. Loccisano, 243 Pa.Super. 522, 366 A.2d 276 (1976). This was the case with appellants.

Finally, we see no basis for altering the rule that a defendant enticed by a third party — who was not acting at direction of the police — cannot raise the entrapment defense where the inducing party acted as a private citizen and not as a government agent. United States v. Jannotti, 673 F.2d 578, 606 (3rd Cir.1982) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982); United States v. Ahmad, 347 F.Supp. 912 (M.D.Pa.1972), modified 482 F.2d 171, 177 (3rd Cir.1973). Brown’s dealings with appellants were independent of and not directed or controlled by government agents. We will not credit a “prosecutorial taint” argument under an entrapment analysis any more than under a due process analysis.

Furthermore, we will not view Brown as a government agent merely due to the fact that he was entrapped. Therefore, the government agents dealt with Brown as an independent party and did not deal directly with appellants. Consequently, we find that the trial court was correct that there was no entrapment of appellants as a matter of law, and that the issue of entrapment was correctly withheld from the jury.

Appellants’ third argument is that the evidence is insufficient to sustain the jury’s verdict of guilty of criminal attempt to possess marijuana with intent to deliver. They argue that the only evidence of intent in this case is the quantity of marijuana involved, and that quantity itself is not sufficient to prove that appellants attempted to possess marijuana with intent to deliver.

In this situation, we must review the evidence in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Derr, 501 Pa. 446, 462 A.2d 208 (1983). As we stated in Commonwealth v. Nunez, 312 Pa.Super. 584, 459 A.2d 376 (1983):

To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Moreover, it is in the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The fact finder is free to believe all, part or none of the evidence. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978).

Id. 312 Pa.Super. at 586, 459 A.2d at 376.

Instantly, the Commonwealth’s expert witness, agent Byerly, stated that in his experience a pound of marijuana (16 ounces, 28.2 grams per ounce or approximately 448 grams) was far more than would typically be required for personal use. Agent Byerly testified:

Q: Do you have an opinion about whether or not a pound of marijuana would more likely be intended for a person’s own personal use or for delivery to other persons?
A: In my past experiences I have found that a pound of marijuana was usually purchased by a person or received by a person for distribution to other people, in some instances retaining a portion of that for himself, and the profits from the sale or the delivery of the additional or the remaining amounts would cover the amount that was used by that individual.

N.T., 5/23/87, at 170-71.

Agent Byerly further testified:

Q: Do you have an opinion about what quantity of marijuana or what range of quantities would be more likely to be purchased for a person’s own personal use? A: Average, maybe a quarter ounce to an ounce, possibly up to as much as two, three, maybe four ounces.

N.T., 5/23/87, at 172.

While we acknowledge that in this case there is no evidence of ongoing dealings, drug paraphernalia, or other drugs indicating intent to deliver, we have often stated that a large quantity of drugs can support an inference of possession with intent to deliver. Commonwealth v. Cubler, 236 Pa.Super. 614, 346 A.2d 814 (1975). In Commonwealth v. Harmes, 255 Pa.Super. 147, 151, 386 A.2d 551, 552 (1978), we determined that seven pounds or 112 ounces of marijuana was sufficient to infer possession with intent to deliver. There, we noted that “the seven pounds [of marijuana] possessed by the defendant was 3200 grams, over one hundred times the thirty grams specified by statute tersonal use’, 35 P.S. § 780-113(a)(31).” See also Commonwealth v. Bowermaster,o be considered ‘a small amount for p 297 Pa.Super. 444, 444 A.2d 115 (1982) (four pounds of marijuana sufficient to establish intent to deliver); Commonwealth v. Chamberlain, 277 Pa.Super. 503, 419 A.2d 1261 (1980) (ten pounds of marijuana along with paraphernalia was sufficient to establish intent to deliver); Commonwealth v. Hunt, 256 Pa.Super. 140, 389 A.2d 640 (1978) (291 grams of marijuana, together with other drugs sufficient). Appellants were trying to buy 448 grams, which is over one hundred times the amount specified in 35 P.S. § 780-113(a)(31).

We conclude that appellants’ intent to possess one pound (16 ounces or approximately 448 grams) and their act of giving Brown the money to obtain the marijuana is sufficient for a jury to find that they took a substantial step and were guilty of criminal attempt to possess marijuana with intent to deliver.

Appellants’ final contention is that the trial court erred in denying their motion for severance of their trials. Pa.P. Crim.P. 1128, “Severance of Offenses and Defendants,” provides:

The court may order separate trials of offenses or defendants or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.

(Emphasis added).

[8,91 In Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985), the Pennsylvania Supreme Court stated the general rule that joint trials of defendants are advisable when the crimes charged arise from the same evidence and much of the same evidence is necessary or applicable to the defendants. See also Commonwealth v. Jackson, 451 Pa.

462, 303 A.2d 924 (1973); Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954); cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954). A single criminal episode exists where a number of charges are logically and/or temporarily related and share common issues of law and fact, and separate trials should not be granted for single criminal episodes since they involve substantial duplication and a waste of scarce judicial resources. Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177, 183 (1983). Further, the defendant must demonstrate that actual prejudice resulted from the joint trial. Commonwealth v. Patterson, 519 Pa. 190, 546 A.2d 596, 601 (1988).

In Commonwealth v. Morales, we further stated:

This court has consistently held that the decision whether to sever trials of co-defendants is one within the sound discretion of the trial judge and will not be disturbed on appeal absent a manifest abuse of that discretion. Commonwealth v. Tolassi, 489 Pa. 41, 49-50, 413 A.2d 1003 (1980). (See cases cited therein); Commonwealth v. Iacino, 490 Pa. 119, 415 A.2d 61 (1980); see also Commonwealth v. Katsofanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983) and Commonwealth v. Hamm, 325 Pa.Super. 401, 473 A.2d 128 (1984).

Id. 508 Pa. at 61, 494 A.2d at 372.

An appellant has the burden of demonstrating that the trial court manifestly abused its discretion or created a clear injustice when arguing against a trial court’s discretionary ruling that severence will not be permitted. The assertion of a better chance of acquittal if tried separately does not meet this burden. Commonwealth v. Iacino, 265 Pa.Super. 375, 401 A.2d 1355 (1979), aff’d 490 Pa. 119, 415 A.2d 61 (1980). We are not persuaded that appellants have satisfied this burden.

Appellants claim that there were several separate transactions involved here and that they were prejudiced as follows. A fourth co-defendant, Mr. Berkheiser, testified that he purchased only one-half pound of marijuana, and this created the implication that appellants’ one-pound purchases were for more than their personal use. They claim that Mr. Berkheiser would not have testified at separate trials. Also, appellant Lindenmuth was prejudiced by testimony of prior deliveries of marijuana by Brown to appellants Fenstemaker and Lomison. Lomison and Fenstemaker were each prejudiced by evidence that the other intended to buy from Brown when this testimony would not have been admissible if they had had separate trials. Once Mr. Berkheiser testified, appellants contend they would have been perceived badly by the jury if they had not testified, and, thus, they had no choice but were forced to testify. Finally, appellants claim prejudice from the diminished number of pre-emptory challenges that they received when they were tried together. A number of jurors were stricken when they knew one or more of appellants.

Initially, we note that a single criminal episode was involved here. Appellants shared a common motive, their acts were logically and temporarily connected, much of the same evidence would have been presented at separate trials and no adverse defenses were shown. Judicial economy weighs heavily in favor of a joint trial. The jury understood that each appellant was to be judged for his actions alone, and the jury could easily separate and follow the pertinent facts applicable to each defendant.

Furthermore, no prejudice resulted. Conspiracy was alleged and all the evidence would have been admissible at separate trials. There is no constitutional right to any pre-emptory jury challenge and appellants failed to demonstrate how they were prejudiced by the limited number of pre-emptory challenges. We find unconvincing appellants’ argument that they were compelled to testify by the fact that Berkheiser testified.

Judgments of sentence affirmed.

BECK and KELLY, JJ., concur in the result.


author: CAVANAUGH, Judge:

text:
    554 A.2d 68
    COMMONWEALTH of Pennsylvania, Appellee, v. Robert A. WEEKS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1988.
    Filed Jan. 24, 1989.
    Reargument Denied March 7, 1989.

      David B. Acker, Coudersport, for appellant.
    Martha J. Duvall, Assistant District Attorney, Coudersport, for Com., appellee.
    Before CAVANAUGH, TAMILIA and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This case is before us upon the allowance of an appeal nunc pro tunc by the lower court. On appeal, we are asked to review the propriety of appellant’s sentence.

Appellant pled guilty to escape and murder of the third degree on January 6, 1986. On March 5, 1986, he was sentenced to a term of incarceration of a minimum of nine and a maximum of eighteen years on the murder charge and a concurrent term of a minimum of three and a maximum of six months on the escape charge. Appellant filed a motion for reconsideration of sentence, and after a hearing on April 2, 1986, the motion was denied.

A notice of appeal from the judgment of sentence was filed on May 2, 1986. On January 20, 1987, this court quashed the appeal as untimely since the appeal should have been taken within thirty days of March 5th. No 625 Pittsburgh 1986, per curiam. Thereafter on August 4, 1987, appellant executed a pro se petition under the Post Conviction Hearing Act (PCHA), and on August 19, 1987 the lower court appointed instant counsel to represent appellant. An amended PCHA petition was filed on December 15, 1987. By order filed on December 16, 1987, the lower court granted leave to appeal nunc pro tunc. Notice of appeal was filed on January 14, 1988, and the matter is now properly before us for review.

The first issue presented is, “Whether trial counsel was ineffective for failure to raise objection to improprieties in the sentencing and post trial hearings?” Appellant’s argument on this issue is based upon the alleged interjection of religion in the sentencing proceeding by the trial court, Judge Harold B. Pink. Appellant maintains that trial counsel rendered ineffective assistance when he did not object to Judge Fink’s references to religion and to his own personal religious beliefs.

The standard by which we determine whether counsel has acted in a constitutionally effective manner is first, is the claim of arguable merit; second, is there some reasonable basis designed to effectuate the client’s interest; and third, has the challenged conduct prejudiced the client. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Absent any of these factors, a claim of ineffectiveness dues not warrant the granting of relief.

We have thoroughly reviewed the record in this case and find that although there is arguable merit to appellant’s claim, there is a reasonable basis for counsel’s action designed to further appellant’s best interests and there is no prejudice suffered by appellant as a result of counsel’s action.

Appellant claims that Judge Fink interjected religion into the sentencing hearing and the hearing on the motion for reconsideration of sentence. In fact, the topic of religion was not brought up until the judge afforded appellant his right of allocution. Prior to appellant’s addressing the court, the discussion between the court and counsel regarding sentencing involved the Sentencing Guidelines, particularly the effect of appellant’s juvenile adjudications on the calculation of the prior record score. It was appellant who informed the court that he had found the Lord and that he had put his fate in his hands. After appellant finished speaking, the judge imposed sentence. In doing so, he discussed appellant’s background, the nature of the crime and appellant’s state of mind and use of alcohol and drugs at the time of the crime, appellant’s expression of remorse and cooperation with the authorities, as well as a reference to appellant’s apparent sincerity in pursuing religion. The judge’s comments on religion were in response to the statement made by appellant and, in this context, do not appear to reflect an influence of religion in determining sentence.

Looking to the hearing on the motion for reconsideration of sentence, again the question of religion was brought up by counsel for appellant wherein he sought to alert the judge to the genuineness of appellant’s religious beliefs and devotion. Again, the judge allowed appellant to expostulate about the change which his religious beliefs had brought about in his life. The judge had a minimal amount of comment and reiterated his belief that appellant’s rebirth would stand him in good stead during his period of incarceration. Judge Fink then referred to the Sentencing Guidelines and stated that the original sentence was an appropriate sentence. The record then reflects the court as saying, “Thank you. I wonder how our Court Reporter’s going to put down the tongues.” Notes of Testimony, April 2, 1986, at 10. The appellant said,. “Praise the Lord.” Ibid. Immediately thereafter the court concluded the hearing and stated that he regretted that a young man who has submitted himself to the Lord must spend his next nine years in prison, but that the sentence stood.

The question before us is, did trial counsel have a reasonable basis for not objecting to the religious references made by the court? We conclude that he did since he hoped that his client’s religious fervor would impress the judge in a favorable manner and would result in a more lenient sentence. The record shows that the judge considered all relevant factors including the presentence report, before imposing sentence. (See, Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). Absent an abuse of discretion, the court’s consideration of the pre-sentence report requires that the sentence not be disturbed on appeal.) Trial counsel was not unreasonable in seeking to gain leniency for his client by appealing to the judge’s known and admitted religious preferences.

In finding no ineffectiveness of trial counsel, we are by no means implying that the behaviour of Judge Fink was appropriate. On appeal, our attention has been called to the opinion of the Supreme Court in which it accepted the recommendation of the Judicial Inquiry and Review Board (JIRB) that Judge Fink be removed from office. Judicial Inquiry and Review Board v. Fink, 516 Pa. 208, 532 A.2d 358 (1987). Judge Fink’s conduct during the instant case was reviewed, among many other charges, and was found to be violative of the Judicial Code of Conduct. In discussing this case the court said:

(c) In April of 1986 Respondent presided over a hearing on a motion for reconsideration of sentence in Commonwealth v. Weeks, No. 83 of 1985 (C.P. Potter County). At the hearing the defendant testified that he had been “born again,” that he had “found” Jesus Christ, and as further evidence of his religious temperament, he began “speaking in tongues.” Although Respondent denied the defendant’s motion for reconsideration, Respondent, while wearing judicial robes, descended from the bench and physically embraced the defendant as a “brother in Christ.” ...
It is, of course, axiomatic that an individual litigant’s religious beliefs and practices may not be considered by any judicial officer in any legal proceeding in this Commonwealth. That a litigant might be treated favorably because of his religious identity, rather than because of the merits of is case, would violate the Establishment Clause of the First Amendment and is a concept foreign to any notion of fundamental fairness. And yet the possibility of religiously-biased treatment is precisely what was raised in the cases where Respondent himself acknowledged that his religious preferences were so well known that criminal defendants commonly professed Christian beliefs and practices in an attempt to get reduced sentences.
Our system of government is grounded on individual freedom to participate or not participate in religious activity. And this freedom extends, needless to say, to those involved in civil and criminal litigation. When a judge of a Court of Common Pleas openly indicates a personal affinity for persons of the Christian faith, as opposed to persons of no religious faith or persons of non-Christian faith, he has affixed the imprimatur of state approval on a particular type of religious belief. This is the stuff of oppression, not freedom, and it will not be tolerated in this Commonwealth.

Id., 516 Pa. at 229-231, 532 A.2d at 368-369.

We note, however, that the Supreme Court faced a different issue and had the benefit of a different record than the ones before us. We are not called upon to re-examine the competence of Judge Fink to hold judicial office. In light of the Supreme Court’s decision, it would be exceeding our jurisdiction as an inferior appellate court to presume to determine that matter. We are required to decide the issue of ineffective assistance of counsel. Further, nowhere in the record before this court does it appear that Judge Fink descended from the bench in judicial robes and physically embraced the appellant as a “brother in Christ.” This evidence, it must be concluded, was developed in the course of the proceedings against Judge Fink. Absent this evidence in the record before us, we may not consider it in evaluating the effectiveness of trial counsel.

In summary, it appears the argument on appeal is an attempt to capitalize on events which may have worked in appellant’s favor after action has been take against the trial judge by the Supreme Court. Appellant has made no showing that his counsel’s failure to object to the subject of religion prejudiced him in any manner. Such is the standard that must be met to prove ineffective assistance of counsel. Judge Fink’s conduct has been determined to have been violative of the Judicial Code and the Supreme Court has sanctioned him. We are without authority to accede to appellant’s desire to turn this appeal into a proceeding whose only outcome would be the superfluous condemnation of Judge Fink’s behavior.

Contemporaneous and subsequent events which may bear upon a judge’s or lawyer’s competence are inadequate to warrant a new trial unless it can be demonstrated that the individual on trial suffered actual prejudice as a result of the challenged behavior. Appellant does not articulate any tangible way he has been prejudiced, but appears to rest on the per se impropriety of Judge Fink’s actions. This approach has been rejected by this Court. See, Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988) (fact that judge is under investigation by the JIRB at time of trial does not mandate new trial absent showing of specific instances of partiality, bias, or prejudice) and Commonwealth v. Vance, 376 Pa.Super. 493, 546 A.2d 632 (1988) (subsequent revocation of defense counsel’s admission to the bar and alleged cocaine abuse at time of trial does not constitute ineffectiveness where counsel’s actual representation reveals that counsel had acted in his client’s best interests.) Absent a showing of lack of reasonable basis for counsel’s action and of prejudice suffered by appellant, we find that appellant had the benefit of effective assistance of counsel.

The second issue presented is, “Whether the trial court improperly imposed sentence upon the Defendant?” Appellant bases this argument on the trial court’s application of the Sentencing Guidelines. However, since the Guidelines have been held to have been of no force at the time of imposition of sentence, Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), any argument claiming misapplication of the guideline criteria is moot. We examine the sentence in light of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) and Commonwealth v. Devers, supra, to determine whether there has been compliance with the Sentencing Code, as a whole, and whether the lower court had available to it a pre-sentence report which would assist it in the exercise of its broad discretion in imposing an appropriate sentence. Given the circumstances of the crime (a killing committed with a codefendant), appellant’s background and expression of remorse as well as his adjustment to incarceration, the sentence of nine to eighteen years is not an abuse of discretion.

Judgment of sentence affirmed.

HOFFMAN, J. concurs in the result.

      . We note this issue is an appeal from a discretionary aspect of sentence and should have complied with the requirements of Commonwealth v. Tuladziecki, supra, regarding inclusion of a statement of reasons relied upon for allowance of appeal. However, since appellee did not raise this procedural defect in appellant’s brief, it is waived. Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987).


author: POPOVICH, Judge:

text:
    554 A.2d 72
    Peter WILLIAMS and Cynthia Williams, H/W, Appellants, v. The MEDICAL COLLEGE OF PENNSYLVANIA, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 3, 1988.
    Filed Feb. 2, 1989.

      James C. Stover, Philadelphia, for appellants.
    Donald F. Ladd, Philadelphia, for appellee.
    Before CAVANAUGH, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This is a direct appeal from the order of the Court of Common Pleas of Philadelphia County granting summary judgment in favor of The Medical College of Pennsylvania. We affirm.

On appeal the appellants, Peter Williams and Cynthia Williams, contend: (1) the trial court improperly relied upon a memorandum prepared for arbitration when resolving an issue of material fact as to the date the appellant-husband was injured; and (2) pursuant to 42 Pa.C.S.A. § 5524(2), an action commenced two years and four days after the incident in question is not barred by the statute of limitations.

On September 2, 1984, the appellants filed a writ of summons instituting the underlying civil action against the appellee, The Medical College of Pennsylvania. On December 4, 1986, the appellants filed a complaint alleging that “on or about September 3, 1984,” the appellee negligently caused Peter Williams, to fall from a gurney in the emergency room.

On May 8, 1987, the appellee filed an answer with new matter asserting the affirmative defense of the statute of limitations. On June 16, 1987, the appellants replied to the appellee’s affirmative defense and put at issue the statute of limitations.

On June 17, 1987, in accordance with Phila.R.C.P. Rule 180(a), the matter was heard by the Arbitration Panel of the Court of Common Pleas which awarded the appellants six thousand dollars.

On July 17, 1987, the appellee filed a timely appeal to the Court of Common Pleas, after which it filed a motion for summary judgment asserting that the appellants’ action was barred by the two year statute of limitations. On April 18, 1988, the lower court granted the appellee’s motion for summary judgment and dismissed the appellants’ complaint. This timely appeal followed.

First, the appellants contend the trial court improperly determined a question of material fact by relying upon a legal memorandum prepared by appellants’ counsel in preparation for an arbitration hearing. The memorandum which was submitted to the Arbitration Panel stated that on August 29, 1984, the appellant-husband fell from a gurney in the appellee’s emergency room. The appellants argue that the memorandum was prepared in anticipation of the appellee’s affirmative defense that the claim was barred by the statute of limitations. Since the memorandum was not a pleading filed of record, and the date of the incident was consistently stated as September 3, 1984, on all other papers filed, the appellants claim the trial court should not have relied upon the memorandum when resolving the date of the incident.

Generally, we note that Pa.R.C.P. 1035(b) authorizes the trial court to grant a motion for summary judgment where there is no genuine issue of material fact.

Pa.R.C.P. 1035(b). Motion for Summary Judgment.

Rule 1035(b) states in pertinent part:

(b) The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, in any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Instantly, the appellants claim that the date of the incident is a genuine issue of material fact which has not been resolved, and therefore the trial court improperly granted the appellee’s motion for summary judgment. We disagree.

The record reveals that the appellee attached medical records to the supplemental brief stating that the appellant-husband’s injuries occurred on August 29, 1984. The medical records were properly certified by affidavit as the true and correct copies of the original medical records arising from the incident.

We note that the appellants offered no affidavits to refute the validity of the medical records presented by the appellee, nor did the appellants offer any evidence to counter the admission that the date of the incident was August 29, 1984.

According to Pa.R.C.P. 1035(d) the appellants cannot rely upon the allegations presented in the pleadings alone.

Rule 1035(d). Motion for Summary Judgment

(d) Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the signer is competent to testify to the matters stated therein. Verified or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so response, summary judgment, if appropriate, shall be entered against him.

Further, an appeal from the Arbitration Panel to the trial court will be a trial de novo with the original documents and the transcript of the testimony being reviewed and considered by the trial court pursuant to Pa.C.S.A. Rule 1808 and Rule 1809(b).

The trial court properly reviewed the appellants’ memorandum admitting that the date of the incident was August 29, 1984. Additionally, every medical record introduced during the arbitration stated that the appellant-husband’s injuries were sustained on August 29, 1984. No testimony or documents were offered by the appellants to refute the date of the incident. We reject the appellants’ contention that the lower court improperly relied upon the memorandum which the appellants presented to the Arbitration Panel when resolving the material question of the date of the incident. The medical records certified by affidavit established the only date the appellant-husband fell from the gurney was August 29, 1984. The appellants improperly relied upon the pleadings to establish that the incident occurred on September 3, 1984.

We find that no genuine issue of material fact remained in dispute and the trial court properly granted the appellee’s motion for summary judgment. The appellants failed to respond to the appellee’s motion for summary judgment with specific facts or affidavits proving the accident occurred on September 3, 1984. We find the appellants’ first allegation without merit.

Secondly, the appellants contend that the present action is not barred by the statute of limitations.

An action to recover damages for injury to the person, according to 42 Pa.C.S.A. § 5524(2) requires that the cause of action be commenced within two years of the injury.

The computation of the period of time referred to in any statute is governed by the applicable provision of the Statutory Construction Act of 1972, namely, 1 Pa.C.S.A. §§ 1908, 1909, 1910.

1 Pa.C.S.A. § 1908 Computation of Time:

When any period of time is referred to an any Statute, such period in all cases, except as otherwise provided in Section 1909 of this title, (relating to publication for successive weeks) and Section 1910 of this title, (relating to computation of months), shall be computed so as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday of Sunday, or any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted form the computation.

1 Pa.C.S.A. § 1908.

1 Pa.C.S.A. § 1910 (Computation of months) provides:

When in any statute the lapse of a number of months after or before a certain day is required, such number of months shall be computed by counting the months from such day, excluding the calendar month in which such day occurs, and shall include the day of the month in the last month so counted having the same numerical order as the day of the month from which the computation is made, unless there be not so many days in the last month so counted, in which case the period computed shall expire with the last day of such month.

1 Pa.C.S.A. § 1910.

Section 1909 determines the computation for the publishing of notices and is inapplicable for purposes of computing time relative to the Statute of Limitations. See 1 Pa.C.S.A. § 1909.

Instantly, the appellants contend that the computation of the period of time referred to in any statute is governed by the applicable provisions of the Statutory Construction Act of 1972, 1 Pa.C.S.A., Section 1908, as well as Pa.R.C.P. 106. Further, the appellants state the Statutory Construction Act and The Rules of Civil Procedure are each consistent in establishing the principle that when a period of time is referred to in either the rules or the statute, that time should be computed so as to exclude the first day of the period and to exclude the last day of the period when that day falls on Saturday or Sunday or a day made a legal holiday by the laws of the Commonwealth.

Rule 106 Pa.R.C.P. Computation of time:

(a) When any period of time is referred to in any Rule, such period in all cases, except as otherwise provided in Rules 107 and 108, shall be so computed as to exclude the first and include the last day of such period.
(b) Whenever the last day of any such period shall fall on Saturday of Sunday, or any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.

Pa.R.C.P. Rule 106.

The appellants argue that, even if the accident occurred on August 29, 1984, their action is not barred by the statute of limitations. According to the appellants the first day to be included for the purposes of computation under 1 Pa.C. S.A. § 1908 would be August 30, 1984; thus the two-year limitation period would have expired Saturday, August 30, 1986. The appellants noted that Saturday, August 30,1986, Sunday, August 31, 1986, and Labor Day, September 1, 1986, should be omitted from the computation thereby making Tuesday, September 2, 1986, as the last day of the two-year limitation period.

However, we find, when applying either 1 Pa.C.S.A. § 1908, or § 1910, to compute the two-year limitation deadline, Friday, August 29, 1986, would be the final day of the two-year limitation period. Additionally, Pa.R.C.P. Rule 106(a) applies except as otherwise provided in Rule 107 and 108.

Pa.R.C.P. Rule 108 applies to computation of months wherein the “day of the month in the last month [is] counted having the same numerical order as the day unless there are not so many days in the last month so counted.” Based on Rule 108, we find the appellants improperly excluded the day of the incident when calculating the end of .the limitation period according to the computation by month procedure.

Moreover, the following calculation results when using 1 Pa.C.S.A. § 1908 to determine the end of the limitation period. August 29, 1984, the date of the fall, would not be counted. Therefore, August 30, 1984, would be counted as the first day of the limitation period, and August 29, 1985, would be counted as the 365th day. The 730th day, or the last day of the limitation period was Friday, August 29, 1986, a business day and not excluded as a legal holiday. The appellant failed to file the present cause of action before Friday, August 29, 1986, the final day of the two-year limitation period.

When computing the two-year limitation period by using 1 Pa.C.S.A. § 1910, the 24 month computation, the same result is obtained as when applying 1 Pa.C.S.A. § 1908. Since the incident occurred on August 29, 1984, the month of August, 1984, is not included in the count. September 29, 1984, would be counted as the end of month # 1 of the limitation period. August 29,1985, would be counted as the end of the 12th, and Friday, August 29, 1986, would be the 24th month and the end of the two-year limitation period.

Consequently, whether the appellants choose to compute the final day of the two-year statute of limitation period according to 1 Pa.C.S.A. § 1908 or § 1910, the period ends Friday, August 29, 1986. We reject the appellants’ use of Pa.R.C.F. Rule 106 wherein the appellants state the day after the incident was the day to be used for the computation of months. When using the computation of months as found in 1 Pa.C.S.A. § 1910 or Rule 108, the date of the incident starts the two-year period running, with the corresponding anniversary date of the incident in the following month being the first month of the 24 month computation. The appellant improperly proffers that the anniversary date of the incident was August 30, 1984, and therefore, the limitation period ended Saturday, August 30, 1986. The appellants claim that the day of the incident is to be excluded from both the 24 month computation of 1 Pa.C. S.A. § 1910, and the 730 day computation of § 1908. The first day is only excluded when using 1 Pa.C.S.A. § 1908 to compute the 730 day limitation period.

It has long been the law in Pennsylvania that where a statute fixes a time within which an act must be accomplished, courts do not have the power to extend it or allow the act to be done at a later date. See Wise v. Cambridge Springs, 262 Pa. 139, 142-43, 104 A. 863 (1918). The appellants were required to file suit on or before Friday, August 29, 1986, and the record reveals that the appellants filed this suit on September 2, 1986.

We find that the date of the appellant-husband’s injury was not in dispute, and, therefor, the trial court properly granted the appellee’s motion for summary judgment since the appellants failed to commence the cause of action within the two-year statute of limitation period. We therefor affirm the order of the trial court.

      . Appellants’ counsel during argument on appeal offered no explanation for the medical records dated August 29, 1984, and continued to state the incident occurred September 3, 1984.

      . 42 Pa.C.S.A. Rule 1808. Transmittal of Original Papers.
      Upon receipt of a copy of the Notice of Appeal and the appeal fee, the Administrator shall transmit to the prothonotary all the original papers in his possession whether or not introduced or admitted into evidence before the arbitrators, including transcripts of testimony, exhibits, depositions and discovery material, together with a copy of the docket entries, identified with the court term and number of the appeal.

      . Rule 1809(b). Procedure on Appeal.
      (b) The trial shall be de novo. Use at the trial of testimony given by a witness in person during the arbitration proceedings or by deposition taken during the arbitration proceedings, whether or not offered during the arbitration hearing, shall be governed by the rules of civil procedure and the rules of evidence, except that the transcript of the testimony of any expert medical witness or other expert offered as evidence during the arbitration proceedings, whether or not admitted into evidence by the arbitration panel and whether given in person or by depositions, shall be admissible at the trial, so far as admissible under the rules of evidence, whether or not the witness is available.

      . Section 5524. Two year limitation.
      (2) An action to recover damages for injures to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

      . Pa.R.C.P. Rule 108. Time. Computation of Months.
      Whenever in any rule the lapse of a number of months after or before a certain day is required, such number of months shall be computed by counting the months from such day, excluding the calendar month in which such day occurs, and shall include the day of the month in the last month so counted having the same numerical order as the day of the month from which the computation is made, unless there are not so many days in the last month so counted, in which case the period computed shall expire with the last day of such month.


author: MELINSON, Judge:

text:
    554 A.2d 77
    Charles YOUNG v. EASTERN ENGINEERING AND ELEVATOR COMPANY, INC., Appellant, H.H. Robertson Company, the Ballinger Company, the Williard Company, Turner Construction Company, City of Philadelphia Board of Trusts, and GEMH 2, Inc. and the City of Philadelphia. Appeal of EASTERN ENGINEERING AND ELEVATOR COMPANY, INC.
    Superior Court of Pennsylvania.
    Submitted Sept. 8, 1988.
    Filed Feb. 8, 1989.

      John J. O’Brien, III, Philadelphia, for appellant.
    Robert A. Korn, Philadelphia, for Young, appellee.
    Barbara A. Pennell, Philadelphia, for H.H. Robertson, appellee.
    Joel D. Gusky, Philadelphia, for Ballinger, appellee.
    Michael Saltzburg, Philadelphia, for Williard, appellee.
    Charles E. McClafferty, Philadelphia, for Turner, appellee.
    Thomas E. Byrne, III, Philadelphia, for Bd. of Trusts, appellee.
    Patrick M. Shea, Philadelphia, for Gemh 2, appellee.
    John B. Day, Deputy City Solicitor, Philadelphia, for Philadelphia, appellee.
    Before WIEAND, McEWEN and MELINSON, JJ.
   MELINSON, Judge:

Appellant, Eastern Engineering and Elevator Company, Inc. [hereinafter “Eastern”], appeals from two Orders of the Court of Common Pleas issued by the Honorable Curtis C. Carson on June 16, and July 21, 1987, granting motions for summary judgment filed on behalf of Appellees, H.H. Robertson Company [hereinafter “Robertson”] and The Ballinger Company [hereinafter “Ballinger”].

On October 10, 1979, Plaintiff, Charles Young [hereinafter “Young”], fell into an open elevator shaft while working on the construction of Wills Eye Hospital in Philadelphia. As a result of his fall, Young sustained serious bodily injury. The opening through which he fell was a twenty-inch wide gap in the drywall enclosure surrounding the elevator shaft. Young filed suit against the various parties responsible for the hospital’s construction. Those parties and their respective roles are as follows:

(1) The City of Philadelphia, Trustee under the will of James Wills, Deceased — owner of the land;
(2) The Ballinger Company — architect;
(3) Turner Construction Company — general contractor/construction manager;
(4) Eastern Engineering & Elevator Co., Inc. — elevator subcontractor;
(5) GEMH 2, Inc. — drywall subcontractor;
(6) H.H. Robertson — Structural subcontractor; and
(7) The Williard Company — electrical subcontractor.

After several years of discovery, Appellees, H.H. Robertson [hereinafter “Robertson”] and The Ballinger Company [hereinafter “Ballinger”], filed motions for summary judgment. The trial court granted Robertson’s motion on June 16, 1987, and Ballinger’s motion on July 21, 1987. Thereafter, Eastern filed this timely appeal from those two Orders.

On appeal, Eastern raises two issues stated in its brief as follows:

I. THE LOWER COURT ERRED IN RULING THAT THE RECORD PRESENTS NO EVIDENCE UPON WHICH A NOTIFICATION DUTY, RELATIVE TO SAFETY VIOLATIONS^] CAN BE PREMISED WITH RESPECT TO ARCHITECT^] THE BALLINGER COMPANY.
II. THE LOWER COURT ERRED IN RULING THAT THE RECORD PRESENTS NO EVIDENCE UPON WHICH A NOTIFICATION DUTY, RELATIVE TO SAFETY VIOLATIONS, CAN BE PREMISED WITH RESPECT TO STRUCTURAL SUBCONTRACTOR, H.H. ROBERTSON COMPANY.

In determining whether the trial court erred in granting or denying a motion for summary judgment, this court must determine whether the “pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. Rule 1035(b); Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 174-75, 507 A.2d 323, 331 (1986); Langan v. Harleysville Ins. Co., 376 Pa.Super. 372, 374, 546 A.2d 75, 76 (1988); Helinek v. Helinek, 337 Pa.Super. 497, 487 A.2d 369 (1985); Loyal Christian Benefit Association v. Bender, 342 Pa.Super. 614, 493 A.2d 760 (1985). “However, summary judgment may only be entered in those cases which are clear and free from doubt.” Consumer Party of Pennsylvania, 510 Pa. 158, 174-75, 507 A.2d 323, 331; Langan, 546 A.2d at 76; Weiss v. Keystone Mack Sales, 310 Pa.Super 425, 456 A.2d 1009 (1983); Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985). The moving party has the burden of proving that no genuine issue exists as to the material facts, and the record must be examined in the light most favorable to the non-moving party. Thompson v. Nason Hospital, 370 Pa.Super. 115, 535 A.2d 1177 (1988); Knecht v. Citizens and Northern Bank, 364 Pa.Super. 370, 528 A.2d 203 (1987). In making its determination, we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Thompson, 370 Pa.Super. 115, 535 A.2d 1177; Knecht, 364 Pa.Super. 370, 528 A.2d 203. We shall not disturb the trial court's decision granting summary judgment unless there has been an error of law, or a manifest abuse of discretion. Dume v. Elkcom Co., Inc., 368 Pa.Super. 280, 533 A.2d 1063 (1987).

Eastern claims that the trial court erred in concluding that Ballinger did not have a duty to protect the workers from hazards on the Wills Eye Hospital construction site.

The Ballinger Company and the City of Philadelphia entered into a contract by which Ballinger would serve as general design architect for the Wills Eye Hospital project. Under the contract, Ballinger’s only inspection responsibility was to make periodic visits to the hospital site to determine whether the work was proceeding in accordance with the contract documents and to familiarize itself with the progress and quality of the work. The contract had no provisions requiring Ballinger to supervise or control job safety or to implement safety precautions for the employees of the subcontractor or general contractor, or to halt construction if a defect was found in a contractor’s work. Ballinger was not required to make exhaustive or continuous on-site inspections of the quality or quantity of the work. The contract contained no undertaking by Ballinger to assume any duty of supervision and control with regard to the actual construction of the building outside of periodic inspections to insure the quality of construction. The contract did not impose on Ballinger the responsibility for safety on the construction site. On the other hand, the general contractor and the subcontractors had the duty to protect the workers from the hazards on the construction site. Eastern has failed to set forth any articulable factual basis upon which Ballinger, as the overall design architect, was to provide temporary lighting and/or temporary barricades surrounding the service elevators during construction. It further appears that there was no contractual undertaking of that duty by Ballinger.

Our examination now turns toward the existence of a legal duty of Ballinger toward Young. Our review of the case law of the appellate courts of this Commonwealth fails to disclose any duty upon an architect to protect workers from hazards on the construction site absent an undertaking by the architect, by contract or conduct, of the responsibilities of the supervision and control of construction and the maintenance of safe conditions on the construction project. See Marshall v. Port Authority of Allegheny County, 106 Pa.Cmwlth. 131, 525 A.2d 857 (1987) (Engineer had no duty to worker injured during bridge demolition upon which finding of negligence could be based absent evidence engineer was responsible for assuring safe work conditions); Heath v. Huth Engineers, Inc., 279 Pa.Super. 90, 420 A.2d 758 (1980) (Engineer liable for negligence where contract between engineer and sewer authority provided that engineer supervise work, periodically inspect it, and assist in safeguarding owner against defects by contractor).

Generally, an architect may be held liable for negligence in failing to exercise the ordinary skill of his profession, which results in the erection of an unsafe structure whereby anyone lawfully on the premises is injured. 97 A.L.R.3d § 2(a) (1980); 5 Am.Jur.2d, Architects § 25.

There is a split of authority as to whether an architect is liable to workers for injuries or death resulting from hazardous working conditions on a construction site. Although there is no clear majority, it would appear that the weight of authority is on the side of non-liability. Chesapeake and Potomac Telephone Company of Maryland v. Chesapeake Utilities Corporation, Del. 436 A.2d 314 (1981); Coffey v. Derby Steel Company, Inc., 291 Md. 241, 434 A.2d 564 (1981); Krieger v. J.E. Greiner Company, 282 Md. 50, 382 A.2d 1069 (1978). It would appear that an architect who, acting as an independent contractor, plans and supervises construction work is under a duty to exercise ordinary care in doing so in order to protect any person who foreseeably and with reasonable certainty may be injured by his failure to do so.

There are generally two types of cases in which liability is imposed: (1) cases in which there are contractual provisions which impose such liability upon the architect, and (2) in the words of the Arizona Appeals Court,

“these cases have disregarded fundamental contractual principles in attempting to parlay general ... supervision clauses which give the ... architect a right to stop observed unsafe construction processes into a duty which is neither consistent with generally accepted usage nor contemplated by the contract or the parties.”

Reber v. Chandler High School District #202, 13 Ariz. App. 133, 135-36, 474 P.2d 852, 854-55 (1970) (emphasis in original).

The leading case which imposed liability on an architect is Miller v. DeWitt, 37 Ill.2d 273, 226 N.E.2d 630 (1967). In holding the architect liable to the worker, the court stated that while there was no duty to specify what methods the contractor should use in building the structure, the terms of the contract between the owner and the general contractor gave the architect the right to insist upon a safe and adequate use of that method. Id., 37 Ill.2d at 285, 226 N.E.2d at 638. Other cases include Erhart v. Hummonds, 232 Ark. 133, 334 S.W.2d 869 (1960) (Court held it was a jury question as to whether the architect was negligent in failing to stop construction because of poor shoring where the contractor was required or directed by the architect to do so, and the architect was authorized to stop the work.); Geer v. Bennett, Fla.App. 237 So.2d 311 (1970) (The court stated, in dicta, when architects do undertake supervision of construction in addition to the preparation of plans, and when they perform their supervisory duties in a negligent fashion their liability is separate and distinct from the liability of the party who negligently performs the actual building process.); Swarthout v. Beard, 33 Mich.App. 395, 190 N.W.2d 373 (1971), rev’d on other grounds, 388 Mich. 637, 202 N.W.2d 300 (1972) (Architect was liable for death resulting from cave-in where he admitted that one of the provisions of the contract was that an excavation was to be maintained in a safe condition and that he had the right to stop the job if he thought it necessary for enforcement of safety requirements.)

With respect to cases denying liability, the leading case is probably that of Day v. National U.S. Radiator Corporation, 241 La. 288, 128 So.2d 660 (1961) where the widow of the deceased employee of a subcontractor obtained a judgment against the architects; however, the Louisiana Supreme Court reversed, stating that the architects were under no duty to supervise the contractor’s method of performing his contract, unless such power was provided for in the specifications.

“Their duty to the owner was to see that before final acceptance of the work the plans and specifications had been complied with, that proper materials had been used, and generally that the owner secured the building it had contracted for.”

Id., at 304-05, 128 So.2d at 666.

Other cases among those which held that architects are not liable include: Baker v. Pidgeon Thomas Company, 422 F.2d 744 (6th Cir.1970) (No liability because there was nothing in the [architect’s] contract with the owner that imposed a duty to ascertain whether all the subcontractors were conforming to their contracts with the owner, except to the extent those contracts required conformity with design specifications. The architect had no authority to stop work for safety reasons as they could when they detected deviations from specifications.”); Nauman v. Harold K. Beecher and Associates, 24 Utah 2d 172, 467 P.2d 610 (1970) (insufficient evidence to render an architect liable). In Nauman, the court observed:

“It would be outside the bounds of reasonable care to require the architect to scrutinize each act done by the foreman and fifty-eight other workmen over an eleven acre construction site to make certain that none of them did a potentially dangerous act.” Id., at 178-79, 467 P.2d at 614-15.

Krieger, 382 A.2d at 1077. See also Peterson v. Fowler, 27 Utah 2d 159, 493 P.2d 997 (1972). Vonasek v. Hirsch and Stevens, Inc., 65 Wis.2d 1, 221 N.W.2d 815 (1974); Ramos v. Shumavon, 247 N.Y.S.2d 699, 21 A.D.2d 4, aff'd without opinion, 15 N.Y.2d 610, 255 N.Y.S.2d 658, 203 N.E.2d 912 (1964).

We therefore hold that absent an undertaking by an architect, by contract or conduct, of the responsibilities of the supervision of construction and the maintenance of safe conditions on a construction project, an architect is not under a duty to notify workers or employees of the contractor or subcontractors of hazardous conditions on the construction site.

After a careful review of the facts in the case sub judice, it is clear that the architect, Ballinger, did not undertake any responsibilities, by conduct or contract, for the supervision and control of the actual construction of the building with the exception of its duty to make periodic inspections to insure the quality of construction. Rather, Ballinger was to make periodic visits to the site to familiarize itself generally with the progress and quality of the work and determine, in general, if the work was proceeding in accordance with the contract. Furthermore, the contract explicitly stated that Ballinger was not required to make “exhaustive or continuous on-site inspections.” Thus, Ballinger was under no duty to notify the worker, Young, of the hazardous condition which existed; i.e. the twenty-inch wide gap in the drywall enclosure around the elevator shaft. For this reason, Eastern’s first claim fails.

Appellant has raised for the first time on appeal that it is a third-party beneficiary to the contract between Ballinger and the owner. It is a well established tenet of appellate jurisprudence that a party may not ordinarily raise a claim for the first time at the appellate level. See Pa.R.A.P. Rule 302(a); see also Kimmel v. Somerset County Commissioners, 460 Pa. 381, 333 A.2d 777 (1975); Marzullo v. Stop-N-Go Food Stores, 364 Pa.Super. 106, 527 A.2d 550 (1987). Since Eastern has failed to raise in the court below its third-party beneficiary argument challenging the grant of summary judgment in favor of Ballinger, this issue is waived. We note, however, that had this issue been raised at the trial court level, it would have been found meritless as the elements required for one to be a third-party beneficiary are absent. The contract between Ballinger and the owner contains no statement that there is any intention that appellant benefit in any way from the contract. See Spires v. Hanover Insurance Company, 364 Pa. 52, 70 A.2d 828 (1950); Manor Junior College v. Roller’s Inc., 352 Pa.Super. 310, 507 A.2d 1245 (1986) (to be a third-party beneficiary entitled to recover on a contract it is not enough that it be intended by one of the parties to the contract and the third party that the latter should be a beneficiary, but both parties to the contract must so intend, and they must indicate that intention in the contract). Thus, Eastern’s claim is without merit.

In its second contention of error, Eastern claims that the trial court erred in ruling that the record presents no evidence upon which a notification duty, relating to safety violations, can be premised with respect to Robertson. We disagree.

H.H. Robertson Company had the contract to place large gray metal panels on the exterior of the building and around several columns on the interior of the building. With the exception of the interior columns, all of Robertson’s work was completely exterior in nature. Additionally, all the work performed by Robertson was completed some time before the accident occurred.

Eastern contends that the Restatement (Second) of Torts §§ 384 and 343 create a duty of care on the part of Robertson as a subcontractor to employees of other subcontractors at the construction site. A thorough reading of § 384 reveals that the duties of a subcontractor are limited when a general contractor is involved in the construction project. Comment (d) of § 384 Restatement (Second) of Torts states:

"... Again a general contractor employed to do the whole of the work may, by the authority of his employer, sublet particular parts of the work to subcontractors. In such a case, the rule stated in this section applies to subject the particular contractor or subcontractor to liability for only such harm as is done by the particular work entrusted to him ...”

Applying § 384 to the case at bar, it appears that Robertson had the duty to exercise reasonable care to protect Young from injuries he may receive as a result of dangerous conditions with regard to the work Robertson had subcontracted to perform if Young was not likely to discover or protect himself against those conditions. Thus, we must inquire whether Robertson created the dangerous condition in the performance of its contractual duties.

Robertson’s duties included installing the exterior wall panels of the hospital and did not involve any work on the inside of the hospital except for column enclosure at the first floor main entrance. Robertson gave deposition testimony that it had no involvement in the elevator construction and that no employees of Robertson did any work in the immediate area of Young’s accident. The trial court, in reviewing the extensive discovery materials, found “there has not been a scintilla of evidence pointing to liability on the part of [Robertson].” Eastern relies on the bald assertion that all subcontractors were advised to look for and report any hazardous conditions on the worksite. Constanction of the elevators or the drywall on the exterior of the elevator shafts was not part of the Robertson’s contract. The hazard which is alleged to have caused Young’s injuries was inside the building; however, with the exception of the column enclosures on the first floor, Robertson’s work was exclusively on the exterior of the building.

We also note that Eastern is the only party in this case that opposes Robertson’s motion for summary judgment. It was apparently clear to the other parties, including Young, that once discovery had been completed, there was no genuine issue as to the liability of Robertson. Upon independent review of the record, we find, as did the trial court, that Eastern has not presented any evidence which points to the existence of any genuine issue of material fact. Absent testimony of record that Robertson was involved in work on, or had control over the elevator shaft where Young fell, Robertson was not under a duty to notify Young of the hazardous conditions, and thus, cannot be liable for Young’s injuries.

The Orders of the trial court are affirmed.

      . Restatement (Second) of Torts § 384 provides:
      § 384. Liability of Persons Creating Artificial Conditions on Land on Behalf of Possessor for Physical Harm Caused While Work Remains in Their Charge.
      One who on Behalf of the possessor of land erects a structure or creates any other condition on the land is subject to the same liability, as though he were the possessor of the land, for physical harm caused to others upon and outside of the land by the dangerous character of the structure or other condition while the work is in his charge.

      . Restatement (Second) of Torts provides:
      § 343. Dangerous Conditions Known to or Discoverable by Possessor.
      A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

        ia) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and,
      (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
      (c) fails to exercise reasonable care to protect them against the danger.