author: OLSZEWSKI, Judge:

text:
    664 A.2d 582
    COMMONWEALTH of Pennsylvania v. Juan PEREZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 26, 1995.
    Filed Aug. 24, 1995.

      Alan L. Yatvin, Philadelphia, for appellant.
    Kathy L. Echternach, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HUDOCK, FORD ELLIOTT and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

Juan Perez appeals his conviction for second-degree murder in the robbery-shooting of Michael Sharpe, for which he received the mandatory life sentence. Perez filed no post-verdict motions, but now challenges the sufficiency and weight of the evidence on appeal. In the alternative, he argues that his trial counsel was ineffective for failing to preserve these and other issues in post-verdict motions.

Perez sold counterfeit drugs on North Orkney Street in Philadelphia; nobody would entrust him with real drugs, because he would use them instead of sell them. In October of 1991, Michael Sharpe purchased twenty caps of what he thought was cocaine from Perez, but was actually laundry detergent. Perez used the proceeds of his scam to buy a few caps of genuine cocaine for himself. Sharpe soon realized that he’d been taken, and returned to demand his money back. Perez offered Sharpe a single good cap, but Sharpe was not satisfied.

At this point another drug dealer, Jose Uderra, approached the pair and offered his assistance. When Sharpe declined to buy drugs from Uderra, Uderra (who was armed with a sawed-off shotgun) and Perez decided to beat up and rob the trouble-making customer. They threw Sharpe to the ground, kicked him around, and went through his pockets; Perez removed Sharpe’s jacket and threw his sneakers onto a nearby roof. Then Perez helped hold Sharpe still while Uderra shot him.

Perez filed no post-verdict motions, even though then-applicable Rule 1123 required the filing of post-verdict trial motions to preserve issues for appeal. See former Pa.R.Crim.P. 1123, 42 Pa.C.S.A. He has nonetheless appealed to this court, challenging the weight and sufficiency of the evidence (or alternatively alleging trial counsel’s ineffectiveness for failing to preserve these claims through post-verdict motions), and for failing to better redact the statement he gave to police. Perez did not file a statement of matters complained of on appeal, and the trial court did not request one pursuant to Pa.R.A.P. 1925. The trial court wrote an opinion addressing only the question of sufficiency of the evidence.

I.

Before addressing the merits of Perez’s claims, we must consider the effect of his failure to file post-verdict motions. Because Perez was found guilty in June of 1993, Rule 1123 required that he preserve any issues for appeal by first submitting them to the trial court in a post-verdict motion. Perez’s weight and sufficiency arguments are therefore technically waived. See Commonwealth v. Santana, 321 Pa.Super. 299, 468 A.2d 488 (1983).

Even so, the trial court chose to address the issue of sufficiency of the evidence. When an issue is waived for failure to comply with post-trial procedural rules but the trial court chooses to overlook the error and addresses the issue, an appellate court is bound to do likewise. See American Association v. Casualty Reciprocal Exchange, 527 Pa. 59, 67, 588 A.2d 491, 495 (1991). We therefore will consider Perez’s claim that his murder verdict was not supported by sufficient evidence.

No verdict can stand unless the Commonwealth has proven every element of the crime beyond a reasonable doubt. In reviewing this question, we consider the evidence in the light most favorable to the Commonwealth as verdict winner. E.g. Commonwealth v. Oliver, 431 Pa.Super. 1, 635 A.2d 1042 (1993). Here, witness Maria Martinez testified that she saw Perez and Uderra try to rob Sharpe, and then saw Perez hold Sharpe’s arms while Uderra shot him. N.T. 6/1/93, 66-67, 72-73. This testimony alone would be sufficient to establish first-degree murder; there can be no question that it establishes second-degree murder as well, being a killing committed in the course of a robbery. 18 Pa.C.S.A. § 2502(b) (defining felony-murder); Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979).

Consequently, we may also reject Perez’s claim that his trial counsel was ineffective for failing to preserve this sufficiency claim through post-verdict motions. There being sufficient evidence to support the conviction, the underlying claim is without merit, and counsel will not be found ineffective for failing to pursue a meritless claim. See, e.g., Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

II.

Our next inquiry concerns Perez’s challenge to the weight of the evidence. The decision to grant a new trial based on a challenge to the weight of the evidence is necessarily committed to the sound discretion of the trial court, because only the trial court observed the witnesses and other evidence first-hand. Commonwealth v. Brown, 538 Pa. 410, 648 A.2d 1177 (1994). A weight of the evidence claim cannot be considered for the first time on appeal. Rather, the credibility determinations involved in a weight claim require that it be brought to the trial court, lest it be waived. Commonwealth v. Hodge, 441 Pa.Super. 653, 658 A.2d 386 (1995).

Hodge, however, did not consider whether trial counsel could be found ineffective for failing to challenge the weight of the evidence before the trial court, a claim which Perez raises here. The first prong of any ineffectiveness inquiry is whether the underlying claim is of arguable merit. Pierce, 515 Pa. at 155, 527 A.2d at 973. In the past, we would have simply reviewed the record and made our own determination as to whether the verdict was so contrary to the evidence as to shock one’s sense of justice. E.g., Commonwealth v. Moore, 436 Pa.Super. 495, 501-03, 648 A.2d 331, 334 (1994) (holding that counsel was not ineffective for failing to preserve weight of the evidence challenge, since appellate court did not find the verdict shocking), alloc. denied, 540 Pa. 580, 655 A.2d 512 (1995). Our Supreme Court’s recent re-articulation of the standards involved in reviewing weight claims suggests that this practice is no longer tenable. In Brown, our high court specifically held that appellate courts cannot evaluate the merits of a weight claim, since we only have a cold record before us. 538 Pa. at 436-38, 648 A.2d at 1190. Appellate review of weight challenges is necessarily limited to whether the trial court abused its discretion in ruling on the claim. Id.

Extra care must be taken when conducting this review. As the Brawn Court noted, it is difficult for an appellate court to determine whether a trial court has abused its discretion, without reviewing the weight of the evidence as if it were the trial court. The essence of appellate review for a weight claim appears to lie in ensuring that the trial court’s decision has record support. “Where the record adequately supports the trial court, the trial court has acted within the limits of its discretion.” Id. at 437, 648 A.2d at 1190 (quoting Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985)). This approach suggests that when a weight claim is raised for the first time on appeal, an appellate court may address and reject it only when there is absolutely no record support for a defense verdict — that is, when the defendant has introduced no evidence, and the Commonwealth’s evidence has no internal inconsistencies. When there is simply no record evidence which weighs in the defendant’s favor, we would have to hold that for a trial court to find the verdict against the weight of the evidence would necessarily constitute an abuse of discretion.

Nor may we take the trial court’s silence as a tacit denial of any weight claim, presuming that if the trial court’s conscience had been shocked by the verdict, then surely it would have granted a new trial sua sponte. Just as a splash of water will help electric current flow, so too can a thoughtful marshalling of record evidence bring hidden inconsistencies into sharp relief, and awaken a court to the realization that the verdict is indeed shocking. Cf. Commonwealth v. Ragan, 439 Pa.Super. 337, 653 A.2d 1286 (1995) (where appellant challenged the weight of the evidence but the trial court did not address the issue, we could not take silence as an implicit denial of claim but were required to remand for proper consideration).

Considering Perez’s ineffectiveness claim in this light, we see that a remand is necessary. The two eyewitnesses who testified against Perez gave dramatically different accounts of his involvement in Sharpe’s death: while witness Maria Martinez described Perez as participating in the shooting, witness Maria Carrasquillo testified that Perez ran away after the robbery was over, and was already around the corner when Uderra shot Sharpe by himself. Compare N.T. 6/1/93 pp. 66-67 with pp. 132-34. Perez’s confession admitted to robbing Sharpe, but also stated: “By the time the shooting happened I was almost to the corner of Indiana & Orkney Street.” R.R. at 498. The jury could have drawn several conclusions from this conflicting evidence: that Perez intentionally killed Sharpe; that Sharpe was killed in the course of Perez’s robbery; or that Perez only robbed Sharpe, but had nothing to do with his killing. Because there is some evidence which weighs in Perez’s favor, we cannot reject his ineffectiveness claim as meritless. Nor can we weigh the evidence ourselves. Brown, supra, at 538 Pa. 410, 648 A.2d 1177. Hence, we are constrained to remand the case back to the trial court to determine if trial counsel was ineffective for failing to challenge the weight of the evidence below.

If the trial court had requested counsel to file a statement of matters complained of on appeal, the weight claims, within the context of ineffective assistance of counsel, would have been addressed in the court’s opinion. In such a case, we would not be forced to remand. The trial court not only mistakenly presumed that new Rule 1410 applied to this case, but also apparently presumed that the new rule eliminated all post-trial practice. We stress to trial courts that the new Rule 1410 which obviates most post-verdict motions does not dispense with the trial court’s responsibility to write an opinion addressing the issues being appealed. Under Pa. R.A.P. 1925(b), when an appellant does not file a statement of matters complained of on appeal, it is the trial court’s responsibility to order appellant to do so. Compare Commonwealth v. Forest, 427 Pa.Super. 602, 607-08, 629 A.2d 1032, 1035 (1993) (when trial court requests a statement of matters complained of on appeal but appellant does not file one, trial court cannot address issues, appellate review is hampered, and claims are waived), alloc. denied, 536 Pa. 642, 639 A.2d 28 (1994) , with Commonwealth v. Thomas, 305 Pa.Super. 158, 451 A.2d 470 (1982) (when trial court does not order appellant to file a concise statement of matters complained of on appeal, failure to file statement does not waive issues).

III.

Finally, Perez claims that his trial counsel was ineffective for failing to ensure that Perez’s side of the story was not redacted out of his confession. The Commonwealth used Perez’s confession as an admission against him, but could not use it against Uderra because Uderra had no opportunity to cross-examine Perez, who chose not to testify. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The trial court therefore redacted Perez’s confession to eliminate any references to Uderra. See Oliver, 431 Pa.Super. at 5-8, 635 A.2d at 1044-45. Perez claims that in redacting his statement, the trial court needlessly edited the sentence “I thought it was over and started to walk.... ” R.R. 498. Perez argues that his trial counsel was ineffective for not keeping this evidence in the statement which was read to the jury.

We agree with Perez that there was no reason for editing out this sentence; it did not implicate Uderra in any way. Nor was it suspect as being self-exculpatory — it was part of Perez’s narrative admitting to the robbery, and had already been corroborated by one eyewitness. It should have been read to the jury as part of Perez’s confession, and we can posit no reason why counsel did not object to its pointless redaction. See Pierce, supra 515 Pa. at 160-61, 527 A.2d at 976 (to establish ineffective assistance of counsel, the underlying claim must be of arguable merit, its omission must have had no reasonable basis, and it must have prejudiced appellant).

This oversight, however, could not have prejudiced Perez. Despite the omission, the confession still expressed Perez’s version of events by stating that “By the time the shooting happened I was almost to the corner of Indiana and Orkney Streets.” N.T. 6/2/93 at 64. The jury also heard Maria Carrasquillo testify to the same scenario. N.T. 6/1/93 at 132-34. Moreover, if the jury had found that Perez held Sharpe still while Uderra blew him away, then it should have found Perez guilty of first-degree murder. By returning verdicts of conspiracy and murder in the second degree, the jury indicated that it believed Perez’s version but still found sufficient nexus between the robbery and the clearly foreseeable killing to carry Perez’s culpability over into the latter act. See Commonwealth v. Evans, 489 Pa. 85, 91-92, 413 A.2d 1025, 1028 (1980) (duration of conspiracy is a question of fact). Finding no prejudice, this ineffectiveness claim fails.

Remanded with instructions. Jurisdiction relinquished.

      . This version of the crime was provided by one of the Commonwealth’s two eyewitnesses. The other eyewitness testified that after the robbeiy was over Perez ran away, and Uderra shot Shaipe in the chest by himself. Perez gave the same account in his own statement to the police: that he left when the robbery was over, and had walked a good distance away when Uderra shot Shaipe.

      . Under the new Rule 1410, which applies to all cases where guilt is determined after January 1, 1994, post-verdict motions are no longer required to preserve most issues for appellate review. The trial court mistakenly believed that the new rule applied. Trial court opinion, 1/5/95 at 5.

      . The trial court also mistakenly believed that post-verdict motions were filed and heard, and that it requested counsel to file a Rule 1925(b) statement of matters complained of on appeal. Opinion at 3. The record shows, and the parties concede, that neither of these required post-verdict procedures took place. We are at a loss to understand how the trial court could offer such a counter-factual description of the record in its opinion. As we will discuss, the trial court’s failure to request a statement of matters complained of on appeal complicates the disposition of this case.

      . Moreover, our high court has suggested that we may relax our application of waiver somewhat in criminal cases for purposes of judicial economy, in order to pre-empt future P.C.R.A. litigation. Commonwealth v. Sees, 529 Pa. 450, 451 n. 1, 605 A.2d 307, 308 n. 1 (1992); see also Takes v. Metropolitan Edison Co., 440 Pa.Super. 101, 136-37, 655 A.2d 138, 156-57 (1995) (Olszewski, J. dissenting) (distinguishing procedural waiver from substantive waiver).

      . If the trial court finds that Perez's weight of the evidence claim is without merit, it may properly reject the ineffectiveness claim without holding an evidentiary hearing.

      . We also note that the failure to properly challenge the weight of the evidence cannot be raised as a layered ineffectiveness claim on P.C.R.A. A weight claim does not go to the truth-determining process; rather, it is a post-verdict claim which asks the trial court to ignore the truth-determining process’s otherwise reliable determination of guilt. See 42 Pa.C.S.A. § 9543(a)(2)(ii). So long as trial courts properly require defendants to file statements of matters complained of on appeal and write thorough opinions, weight claims will either be timely raised and addressed or permanently waived.

      . We must presume that the jury found Perez guilty of conspiracy to commit robbery. The Commonwealth never specified what criminal act it charged Perez of conspiring to commit in its information, the court did not specify an underlying crime in its conspiracy instruction, and the verdict did not specify an underlying crime. See R. Information (describing the allegations against Perez as violating 18 Pa.C.S.A. § 903 generally); N.T. 6/3/93 at 114 (jury instructed that “in order to find a defendant guilty of conspiracy to commit the crime of either robbery or the crime of murder, you must be satisfied ... ”); R. Verdict Sheet (Perez found guilty of conspiracy, with no mention of underlying crime).

      . Our holding that Perez was not prejudiced by counsel’s redaction oversight does not contradict our decision to remand for the trial court to address Perez’s weight claim. Both the prejudice prong of an ineffectiveness claim and a weight of the evidence claim involve judicial review of the record to determine if things should have come out differently. It is of no matter that weight of the evidence claims are probably the weakest reason for granting a new trial, and almost never fly. Appellate courts are permitted to conduct the prejudice analysis, but only the trial court may analyze the weight claim. Pierce, supra; Brown, supra.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    664 A.2d 587
    Stephen R. WOJDAK, Nicholas J. Maiale, Esquire, Personal Representative of Ludwig S. Capozzi, Jr., Deceased, Maurice C. Clifford, Patricia J. Clifford, Salvatore M. Debunda and Carol Debunda, Frank E. Devine, Teri Y. Doke, Domenic Falcone, Ruth W. Hayre, Samuel M. Merion, Martin D. Sellers, Dennis Sigovich v. GREATER PHILADELPHIA CABLEVISION, INC., General Partner of Greater Philadelphia Cablevision, L.P. and Greater Philadelphia Cablevision, L.P., Appellants.
    Superior Court of Pennsylvania.
    Argued March 30, 1995.
    Filed Aug. 25, 1995.

      Antoinette R. Stone, Philadelphia, for appellants.
    Howard A. Rosenthal, Philadelphia, for appellees.
    Before BECK, TAMILIA and CERCONE, JJ.
   BECK, Judge:

This is an appeal from a judgment entered on an order confirming an appraisal of limited partnership interests. Because the factual and procedural background giving rise to the issues presented is complex, we set it forth at length, as follows.

Appellant Greater Philadelphia Cablevision, L.P. (the “Partnership”) is a limited partnership organized under the law of Delaware. The Partnership owns and operates a cable television system in Philadelphia. Appellant Greater Philadelphia Cablevision, Inc. (the “General Partner”) is a Pennsylvania corporation and is the general partner of the Partnership. Appellees, Stephen R. Wojdak, Nicholas J. Maiale, Esquire, Personal Representative of Ludwig S. Capozzi, Jr., Deceased, Maurice C. Clifford, Patricia J. Clifford, Salvatore M. Debunda, Carol Debunda, Frank E. Devine, Teri Y. Doke, Dominic Falcone, Ruth W. Hayre, Samuel W. Merion, Martin D. Sellers, and Dennis Sigovich (the “Limited Partners”) are eleven of the twelve limited partners in the Partnership. They collectively originally owned 9.25% of the Partnership.

The General Partner and the Limited Partners are parties to a limited partnership agreement (the “Agreement”) dated February 11, 1988. The Agreement gives the Limited Partners the right .to sell their interests in the Partnership by “putting” to the General Partner or the Partnership (who are required to buy the offered interests) portions of the Limited Partners’ interests during specified time periods. In January 1992 the Limited Partners “put” 50% of each of their interests, as permitted by the Agreement (the “Put Interests”).

The General Partner and the Limited Partners were unable to agree on a price for the Put Interests. In May 1992 they commenced an appraisal under Section 9.5(e) of the Agreement, which provides for an appraisal by either an investment banking firm or a cable broker experienced in cable television. Section 9.5(e) further provides:

In determining the purchase price for purposes of the Put and Call, the appraiser shall determine the fair market value of the Individual Interests being Put or Called, as of the September 30 immediately preceding the initiation of the Put or Call, using whatever valuation techniques he deems appropriate.... The Partnership, the General Partner and each Special Limited Partner and Transferee shall be finally bound by the decision of the appraiser.

In August 1992 the parties selected Waller Capital Corporation, an investment firm specializing in cable television, as the appraiser (the “Appraiser”). The Appraiser was retained pursuant to an agreement dated September 4, 1992 (the “Fee Agreement”). In September and October 1992 the Appraiser gathered information about the Partnership’s cable system (the “System”). On October 7, the General Partner and the Limited Partners made oral presentations to the Appraiser. Later in October 1992, the Appraiser sent a draft appraisal to the parties for their comment. The Appraiser determined the fair market value of the Put Interests as follows:

1. The Appraiser calculated the fair market value of the Partnership’s System and adjusted this value to account for the Partnership’s other assets and liabilities, thus yielding a fair market value of the Partnership as a whole.
2. The Appraiser then multiplied that amount by 4.625% to reflect the portion of the Partnership represented by the Put Interests.
3. The Appraiser determined that a discount should be applied to the value of the Put Interests because a buyer of those interests would have:
a. no voice in the management of the Partnership;
b. no liquid or efficient market in which to sell the Put Interests; and
c. no means to realize the full value of the Put Interests until the termination of the Partnership under the terms of the Agreement, which would occur in 2015, or until the Partnership were sold to a third party.

Thus, the Appraiser applied a thirty-five percent (35%) discount to arrive at the final value of the Put Interests.

Both sides objected to the draft Appraisal. The Appraiser rejected both sides’ objections and issued a Final Appraisal that was virtually the same as the draft. In explanation, the Appraiser stated that it continued to feel that lack of marketability and minority interest discount was appropriate based on its own research, which included consultation -with “experienced cable television investors” and research into publicly traded cable stocks and other “limited partnership documentation.” The final total value of all the Put Interests was determined to be approximately $2.6 million.

The Limited Partners immediately filed a petition to confirm the appraisal in part and to vacate it in part. They objected only to the application of the discount to the Put Interests, and did not challenge the underlying valuation of the Partnership as a whole. Although the petition was filed in the Court of Common Pleas for Philadelphia County, both parties agreed and continue to agree that the dispute is governed by the substantive law of Delaware as provided in the Agreement. The Limited Partners contended that the application of a discount was substantively incorrect. They further argued that the appraisal had been procured by “undue means,” as that phrase is used in the Delaware Arbitration Act, since the Appraiser had consulted with cable television investors other than the parties in gathering information concerning the appraisal.

By Memorandum Order dated February 1993, the trial court vacated the Appraisal only insofar as it applied the 35% discount. The court cited no precedent in support of its determination, which it justified as follows:

This Court ... must conclude that the appraisal was procedurally deficient. Consultation by the appraiser with unknown and unidentified cable television investors on the issue of valuation of the individual interests was inconsistent with the otherwise structured and open nature of the appraisal process. To do so subsequent to scheduled consultations with the parties relating to determination of value and without notice to them was so irregular and unforeseeable as to constitute “procurement by undue means.” Additionally, even the appraiser’s substantive findings as to the fair market value of the individual interests appeared arbitrary and irrational. The application of a minority discount to the individual interests ... and only those interests after introduction of the concept of “full private market value” in devaluing those interests seems contrary to the law of the State of Delaware and without support in any provision of the partnership agreement itself or the fee agreement with the appraiser.

Trial Court Memorandum Order, 2/12/93, at pp. 2-3.

Following entry of this order there were several further procedural skirmishes between the parties in the trial court, and several attempts by the Partnership and GPC to appeal the decision of the trial court to this court. All of these appeals were eventually quashed as having been taken from interlocutory orders. Finally, on January 19, 1994, the trial court instructed the parties jointly to request that the Appraiser issue a new appraisal that would be modified solely to eliminate the application of the 35% discount. The Appraiser complied with this request and the trial court ultimately issued an order confirming the modified appraisal and entered final judgment thereon. This timely appeal followed.

The Partnership and the General Partner raise the following issues on appeal:

1. Did the lower court err by not deferring to a binding determination of fair market value by an appraiser, who was an industry expert selected by the parties?
2. Did the lower court err by deciding that a determination of fair market value by an appraiser had been procured by “undue means” within the meaning of 10 DeLCode § 5714(a) because the appraiser relied in part on its own expertise and sources of industry information?
3. Did the lower court err by deciding that an industry expert’s decision to apply minority and lack-of-marketability discounts in appraising minority limited partnership interests violated Delaware law and the agreements among the parties?
4. Did the lower court have authority to direct an appraiser to increase its determination of fair market value to conform to the lower court’s view?

As in every case, the first issue is the proper standard of review to be applied in determining whether the trial court committed reversible error. Although, as we have noted earlier, all parties agree that the substantive law to be applied in this case is the law of the state of Delaware, nevertheless as a Pennsylvania appellate court reviewing the action of a Pennsylvania trial court, we must determine whether the trial court either abused its discretion or committed an error of law. Hall v. Nationwide Mut. Ins. Co., 427 Pa.Super. 449, 629 A.2d 954 (1993). As to the substantive issues presented, we are in the unusual position of having to construe and apply the law of a sister jurisdiction, much as does a federal court sitting in diversity. In such cases, the federal courts are compelled to follow the decisions of the highest court of the state whose law is governing. If there is no ruling on the issue from the highest court, then the federal court must determine what the state’s law is, giving due regard for the relevant rulings of the other courts in that state. Northeast Financial Corp. v. Insur. Co. of North America, 757 F.Supp. 381, 383 (D.Del.1991). If the law of the state is unclear, the federal court must predict how the state’s highest court would rule on the issue presented. Id. We have followed this model in analyzing the law of Delaware as it applies to the facts before us.

Since this is a case that fundamentally constitutes a challenge to an appraisal award that resulted from an appraisal conducted pursuant to a private agreement, the first substantive issue presented is the extent to which Delaware law permits judicial review of such an award. We have determined that such review is very limited. As the Partnership and the General Partner have correctly stated, under Delaware law a binding determination by a third party appraiser selected pursuant to a private agreement is basically the equivalent of. arbitration, and judicial review thereof is governed by the Delaware Uniform Arbitration Act, 10 Del.Code §§ 5701 et seq. (the “Act”). See Northeast Financial Corp. v. Insur. Co. of North America, 757 F.Supp. 381, 384 (D.Del.1991), citing Closser v. Penn Mut. Fire Ins. Co., 457 A.2d 1081, 1087 (Del.1983). Since arbitration is favored by Dela ware public policy as a speedy and efficient dispute resolution mechanism, a court is not permitted to interfere with the decision of the arbitrator based on a simple disagreement with the arbitrator’s analysis of the merits of the issue. Rather, the award must be confirmed as long as it can rationally be derived from the parties’ agreement or submission to the arbitrators and is not completely irrational. See Northeast Financial, supra; Malekzadeh v. Wyshock, 611 A.2d 18, 20-21 (Del.Ch.1992).

Although the trial court in this case did not expressly analyze Delaware law to determine the limits it placed on the court’s review of the appraisal, the court appears to have relied primarily on one section of the Delaware Arbitration Act in rejecting the appraisal. The court stated that the appraisal was defective due to “procurement by undue means” and generally referred to the Act. Section 5714(a) of the Act states that the court will vacate an arbitration award where the award “was procured by corruption, fraud or other undue means.” Here, the trial court concluded that the Appraiser’s consultation with cable television investors without notice to the parties constituted procurement of the appraisal by undue means. The Limited Partners further argue that such consultation violates the Fee Agreement between the parties and the Appraiser, which states in section 2 thereof:

There shall be no ex parte proceedings and neither Party shall discuss the Valuation with [the Appraiser] in the absence of the other Party. This policy shall not be interpreted to limit [the Appraiser’s] access to the cable system or its employees and officers. Both Parties shall receive notice of any meeting or telephone calls between representatives of the cable system and [the Appraiser] and both Parties or their designees, shall be entitled to observe same or participate therein.

Responding to the latter argument first, we do not interpret section 2 of the Fee Agreement as prohibiting the Appraiser from consulting with cable television investors outside of the cable television system owned and operated by the Partnership. The foregoing language clearly only prohibits contact by the Appraiser with one party to the Fee Agreement outside of the presence of the other party or contact with any representative of the Partnership’s cable system outside of the presence of either party, if they wish to be present. This provision cannot fairly be interpreted to impose any limits on the conduct of the Appraiser in performing research and investigation through contact with other people who might be sources of valuable information concerning the proper valuation of the Put Interests.

We also reject the trial court’s determination that the appraisal was the result of the use of “undue means.” Although precedent on the meaning of the phrase “undue means” as used in an arbitration act is sparse, we conclude that the Supreme Court of Delaware would not find that the facts presented in this case rise to the level of undue means. Although the Delaware courts have not defined “undue means,” other courts construing this language in their jurisdiction’s arbitration act have noted that the statutory language itself, i.e. “corruption, fraud or other undue means,” (emphasis added), suggests that the phrase “undue means” was intended to refer to conduct of the same general character as corruption or fraud. These cases suggest that “undue means” refers to conduct that is far outside the bounds of propriety. See, e.g., Drayer v. Krasner, 572 F.2d 348, 352 (2d Cir.1978), cert. denied, 436 U.S. 948, 98 S.Ct. 2855, 56 L.Ed.2d 791 (1978); Shearson Hayden Stone, Inc. v. Liang, 493 F.Supp. 104, 108 (N.D.Ill.1980), aff'd, 653 F.2d 310 (7th Cir.1981). Given the Delaware courts’ public policy favoring arbitration, we believe those courts would define “undue means” in a similarly restrictive fashion.

Our examination of the record in this case reveals no such impropriety on the part of the Appraiser. Specifically, it is alleged that it was grossly improper for the Appraiser to consult with experienced cable television investors to determine whether minority and lack of marketability discounts were appropriately applied to interests like the Put Interests. After consulting with these persons, the Appraiser concluded that there were no investors that would be willing to buy interests of the character of the Put Interests at the time of valuation unless those interests were subject to a significant discount.

We disagree that this investigatory technique was improper. When private parties agree to be bound by private appraisal and further specify that the appraiser to be selected must have extensive expertise in the type of business interest the appraiser will be called upon to value, the parties are necessarily committing themselves to rely on that expertise. Part of this expertise is the ability to identify what information is crucial to the task at hand and to amass that information. Here, the Appraiser relied, of course, on a great deal of information concerning the Partnership and the cable television system it operated which was provided by the parties themselves. The Appraiser also relied, however, on its general knowledge of and experience in the valuation of business interests of this sort. This knowledge and experience led the Appraiser to believe that it was necessary for it to investigate whether lack of marketability and minority interest discounts were appropriate by consulting with investors who potentially would have information pertinent to that question. After having done so, the Appraiser issued a draft appraisal reflecting its application of such discounts. Each party was then permitted to comment on the draft appraisal before the final appraisal was issued. Thus, the Limited Partners had a full opportunity to express their opposition to the application of the discounts. We see no impropriety whatsoever in this approach. It certainly cannot be regarded as the type of conduct the Supreme Court of Delaware would consider to be “undue means.”

The only other grounds provided by the trial court for its partial vacation of the appraisal insofar as minority and lack of marketability discounts had been applied was that the appraisal “appeared arbitrary and irrational,” and “seems contrary to the law of the State of Delaware and without support in any provision of the partnership agreement itself or the fee agreement with the appraiser.” The court cited no precedent or other authority in support of these conclusions.

After a careful review of the conduct of the Appraiser in this matter and of the agreements pursuant to which the appraisal was conducted, we find no basis for concluding that a Delaware court would deem the Appraiser’s actions to be inconsistent with the parties’ agreements or their submission to the Appraiser. Under Delaware law, a party moving to vacate an arbitration award on the ground that the arbitrator exceeded his powers under the submission to him must demonstrate that the arbitrator did so by strong and convincing evidence. Malekzadeh v. Wyshock, supra, 611 A.2d at 21. In this case, the Partnership Agreement charged the Appraiser with determining the fair market value of the Put Interests. The Agreement defined “fair market value” as “the price at which a willing seller would sell and a willing buyer would buy [the Put Interests] ... in an arm’s-length transaction without time constraints.” As the Partnership and General Partner persuasively argue, in arriving at fair market value of a business interest, it is well-established that there are situations where minority and lack of marketability discounts are appropriate. See generally Shannon Pratt, Valuing a Business (1989); Raymond C. Miles, Basic Business Appraisal (1984). Nothing in the parties’ agreements removes from the Appraiser the authority to make this determination one component of appraising the fair market value of the Put Interests. In fact, section 9.5 of the Partnership Agreement expressly directs that the Appraiser may determine what valuation techniques it will use.

Moreover, there is no indication that a Delaware court would deem the Appraiser’s actions completely irrational and contrary to law. We reiterate that in reviewing the actions of the Appraiser, we do not inquire merely whether we agree with the Appraiser’s ultimate conclusions, but rather whether the Appraiser so far exceeded the terms of the submission to it or acted in such a patently unreasonable manner as to justify the interference of the court. As the foregoing discussion demonstrates, it was not at all irrational for the Appraiser to apply the discounts it did and neither the trial court nor the Limited Partners have cited a single Delaware authority standing for the proposition that the valuation techniques used by the Appraiser violate Delaware law. Although the Limited Partners argue at great length that the use of lack of marketability and minority discounts violates the principles set forth in Delaware case law regarding appraisal of business interests, the authorities on which they rely largely address statutory stock appraisal proceedings conducted under the Delaware stock appraisal statute, 8 Del.Code § 262.

In sum, on the basis of the record before us, and applying the standards established by Delaware law, we find no basis for vacating the Final Appraisal originally submitted by the Appraiser. The trial court erred in refusing to confirm that appraisal, directing that it be modified to remove the discounts originally applied, and ultimately confirming the modified appraisal from which those discounts had been removed. Therefore, we reverse the judgment of the trial court and remand for confirmation of and entry of judgment on the Final Appraisal as originally submitted by the Appraiser.

Judgment reversed; case remanded for further proceedings consistent with this opinion; jurisdiction relinquished.


author: ROWLEY, President Judge.

text:
    664 A.2d 593
    COMMONWEALTH of Pennsylvania v. James Dennis RESTAURI, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 5, 1995.
    Filed Aug. 29, 1995.

      James D. Restauri, pro se, appellant.
    Terry J. Williams, Assistant District Attorney, State College, for Com., appellee.
    Before ROWLEY, President Judge, and SAYLOR and HOFFMAN, JJ.
   ROWLEY, President Judge.

Appellant James Dennis Restauri claims in this pro se direct appeal that the trial court erred in denying his petition to find the State College Bureau of Police Services in contempt of a court order to expunge all “records of [his] arrest or prosecution” for summary offenses. We affirm.

Before addressing appellant’s claim, it is necessary to review the complicated procedural history that preceded this appeal.

According to the expungement petition, appellant James Restauri was arrested by the State College police on a variety of summary charges between 1979 and 1985. At some point thereafter, appellant applied to and was hired by the Delaware State Police, after failing to disclose any record of his prior arrests in Pennsylvania. Appellant consequently was charged with a violation of the Delaware State Police Rules and Regulations when the Delaware authorities were supplied with his arrest records by the authorities in State College in July, 1991.

On September 23, 1991, appellant presented the Centre County Court of Common Pleas with a petition to expunge his records, claiming that the charges accruing from the prosecutions in Pennsylvania were “paid in full” and that there was no “justification [ ] for the Commonwealth to maintain” his records. The trial court granted appellant’s petition the same day, without a hearing and without objection from the Commonwealth.

On August 12, 1993, appellant filed a motion in Centre County requesting that the trial court compel the Delaware State Police to comply with the court’s September, 1991, order of expunction. The trial court held a hearing on the motion on January 10, 1994, and subsequently denied appellant’s motion. In an unpublished memorandum, a panel of this Court recently affirmed the trial court’s action on the grounds that the records had been sent to Delaware by the State College police authorities prior to the entry of the expunction order, and further, that the Delaware Police held appellant’s records as an employer, not as a criminal justice agency. Commonwealth v. Restauri No. 218 Harrisburg 1994 (filed 7/11/95).

In the meantime, on June 22, 1994, appellant also filed a petition to hold the State College police in contempt, alleging that they had not completely destroyed his records as mandated by the trial court’s 1991 expunction order. The trial court held a hearing on this petition also, on August 26, 1994. This petition was denied in an order and opinion dated September 21, 1994. Timely notice of appeal was filed with this Court on October 18, 1994. It is this appeal that is presently before us for decision.

Appellant contends that somewhere there may still exist a sealed, paper record of his arrests, asserting that nothing short of physical destruction satisfies the plain language of the court’s expunction order, and nothing short of physical proof that this was done will save the State College police from a contempt citation. The trial court, essentially conceding that some record of appellant’s arrest and prosecution may still exist somewhere, although sealed and inaccessible, similarly focuses its efforts on asserting that “destruction” of the records was not what it meant to say when ordering “expunction” of appellant’s records. The Commonwealth, choosing not to contradict appellant’s assertions that his records may still exist somewhere, argues instead that destruction is not legally required in expungement orders, citing to the Criminal History Record Information Act, 18 Pa.C.S. § 9101 et seq.

Interesting though all of the above arguments may be, and understandable in light of the language contained in the expunction order, they are beside the point. We need not reach the question of whether appellant is entitled to “destruction” rather than (or in addition to) “removal” of his records from the files and computers at State College. At the hearing held in this case on August 26, 1994, the officer in charge of records and data processing, Corporal Stuller, testified that the records “were removed within a day to two days” after he received the court’s expungement order. In addition, the chief of the State College police department, Thomas King, testified that “[tjhere are no records in our computer system or in our incident files regarding Mr. Restauri. [ ] There are no records in any files existing[,] formal or informal in any .office of the State College Police Department, mine includ[ed].” Thus, the trial court determined that there were no grounds upon which to find the State College Police in contempt.

A close reading of appellant’s argument confirms our conclusion that appellant is really petitioning the trial court to find that the police in State College were in contempt at some undefined time prior to the August 26,1994, hearing. For this contention appellant relies upon Corporal Stuller’s testimony at the earlier hearing on appellant’s motion to compel the Delaware authorities to comply with the expunction order, held on January 10, 1994, or seven months before the hearing on appellant’s contempt petition was held. In this regard, appellant completely misunderstands the purpose of a petition for civil contempt, which is to “coerce the contemnor into compliance” with a court order, or face sanctions. Rulli v. Dunn, 337 Pa.Super. 613, 487 A.2d 430 (1985). However, the question before the trial court was whether, on August 26, 199k, any records existed, anywhere.

The certified record from the hearing on appellant’s contempt petition confirms the fact that a search of the computerized records system at State College disclosed no reference to appellant or his arrests. Whether such records were still in existence at some time prior to the contempt hearing in August, 1994, is wholly irrelevant for purposes of a contempt proceeding. Civil contempt proceedings are not intended to provide sanctions in hindsight. Appellant may find testimony from the chief of the State College Police Department that no records exist anywhere inadequate. We find it as compelling as did the trial court: there was no evidence that, as of August 26,1994, any of appellant’s records still existed, anywhere.

Appellate review of a trial court’s actions relies heavily upon the sound discretion of the trial judge. Goodman v. Goodman, 383 Pa.Super. 374, 556 A.2d 1379 (1989). Reversal occurs only in the event that a clear abuse of the trial court’s discretion is evident. Mueller v. Anderson, 415 Pa.Super. 458, 609 A.2d 842 (1992). It was not an abuse of the trial court’s discretion to find that testimony that appellant’s arrest records no longer exist constitutes compliance with the trial court’s expunction order of September 21, 1991. As there is no remedial action left for the State College Police to take, there is no basis for finding them in contempt. Rulli, supra, at 613, 487 A.2d at 430 (civil contempt defined as a refusal to do an act ordered).

In summary, it is clear that appellant was convicted of the offenses for which he requested expungement. We have no record to enlighten us as to why the trial court granted the expunction order. No hearing on the matter was held, and the Commonwealth inexplicably acquiesced in appellant’s request. No appeal regarding the questionable propriety of the expunction order was taken. The evidence presented at the hearing on appellant’s petition for contempt proves conclusively that no records of appellant’s arrest or prosecution existed on August 26, 1994. Thus, there is nothing left for the State College Police to do in order to comply with the trial court’s expungement order and there are no grounds for a finding of contempt. We affirm the trial court’s action on this basis, without deciding the legal question of whether expunction requires physical destruction of records. Turnway Corp. v. Soffer, 461 Pa. 447, 336 A.2d 871 (1975) (appellate court may sustain correct result on a basis other than that relied upon by trial court).

Order affirmed.

      . The trial court’s order of expungement read, in pertinent part:
      [A]ll authorities maintaining official and unofficial records of arrest or prosecution or other criminal records shall immediately upon receipt of this Order:
      1. Remove, expunge and destroy any record of the above arrest or prosecution of the defendant, including fingerprints and photographs or any citations relating to the above-named individual.
      2. Execute the affidavit below, return this Order to the Court and retain no copies thereof or any correspondence or reference thereto.
      Order, 9/23/91 (emphasis supplied).

      . Appellant relies upon the following for a definition of "expunge”:
      To destroy; blot out; obliterate; erase; efface designedly; strike out wholly. The act of physically destroying information — including criminal records — in files, computers, or other depositories.
      Black’s Law Dictionary 522 (5th ed. 1979).

      . "Expunge” is defined in the Criminal History Record Information Act as:
      (1) To remove information so that there is no trace or indication that such information existed;
      (2) to eliminate all identifiers which may be used to trace the identity of an individual, allowing remaining data to be used for statistical purposes; or
      (3) maintenance of certain information required or authorized under the provisions of section 9122(c) (relating to expungement), when an individual has successfully completed the conditions of any pretrial or post-trial diversion or probation program.
      18 Pa.C.S. § 9102 (emphasis supplied).

      . Our review of relevant case law and statutory language indicates that expungement is commonly granted in language which would seem to require a law enforcement agency to remove and “destroy” criminal records. See, e.g., Wolfe v. Beal, 477 Pa. 477, 384 A.2d 1187 (1978) (Supreme Court reversed determination by Commonwealth Court that lack of statutory authority to expunge records of commitment to mental hospital precluded destruction of records); Commonwealth v. J.C.K., 438 Pa.Super. 1, 651 A.2d 144 (1994) (trial court ordered expunction and destruction of records when conditional pardon granted); Conroy v. Com. Dept. of Transp., 97 Pa.Commonwealth Ct. 344, 345, 509 A.2d 941, 942 (1986) (expungement order required "keepers of criminal records [to] expunge and destroy” records), appeal denied, 514 Pa. 626, 522 A.2d 51 (1987); Wisniewski v. Commonwealth, 73 Pa.Commonwealth Ct. 318, 320 n. 1, 457 A.2d 1334, 1336 n. 1 (1983) (expungement order required keepers of records to "expunge and destroy” records); 35 P.S. § 780-119 (trial court shall order appropriate keepers of criminal records to expunge and destroy records following acquittal, dismissal, or withdrawal of charges).

      . We would make short shrift of the “validity” of the trial court’s expungement order, were it before us. Appellant was not entitled to it in the first place, as it appears that his request for expunction is not related to a claim that the charges against him were withdrawn or dismissed, or that he was acquitted. See Commonwealth v. W.P., 417 Pa.Super. 192, 612 A.2d 438 (1992) (expunction normally granted where petitioner found not guilty, charges were dismissed at preliminary hearing stage, or ARD program completed); Commonwealth v. Cook, 359 Pa.Super. 216, 518 A.2d 858 (1986) (defendant who pled guilty not entitled to expungement, where not provided for by statute). While the judicial remedy of expunction is not dependent upon statutory authority, it is properly granted only where "acquittal is consistent with a finding of real innocence.” Commonwealth v. Rose, 263 Pa.Super. 349, 351, 397 A.2d 1243, 1244 (1979).
      However, this question is not before us, and the unfortunate granting of appellant’s petition for expunction has spawned a wealth of unnecessary litigation, including the instant appeal. In this regard, we concur with the statement filed by Judge Cavanaugh in the related litigation at No. 218 Harrisburg 1994, which noted that appellant has "already received a greater benefit than is generally allowed by the courts of this Commonwealth.” Commonwealth v. Restauri, supra (Cavanaugh, J., concurring).

      . In his motion for reconsideration, filed October, 1994, appellant for the first time challenged admission of testimony given by the chief of police at the contempt petition hearing on August 26, 1994, for failure to lay a proper foundation. This issue is waived, as appellant failed to preserve it through a timely objection when the testimony was offered. Commonwealth v. Smith, 414 Pa.Super. 208, 606 A.2d 939 (1992) (Superior Court will not review claim on appeal if not called to trial court’s attention at time when any alleged error could be corrected), appeal denied, 533 Pa. 624, 620 A.2d 490 (1993).


author: CERCONE, Judge:

text:
    664 A.2d 597
    COMMONWEALTH of Pennsylvania v. Robert Wesley AUSTIN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 27, 1995.
    Filed Aug. 29, 1995.

      Garrett D. Page, Norristown, for appellant.
    Maria L. Durante, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before ROWLEY, P.J., and HUDOCK, and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered after appellant pled guilty to third degree murder and criminal conspiracy. We affirm.

On August 27, 1994, at 1:40 a.m., appellant and two accomplices attacked a pedestrian who was under the influence of alcohol and unable to defend himself. Appellant punched the victim twice, causing him to fall to the pavement. As the victim lay on the ground, one of appellant’s co-conspirators repeatedly kicked the victim’s head while appellant and the other accomplice rummaged through the victim’s possessions. The victim died of a cerebral hemorrhage caused by the blows inflicted during this attack.

Appellant was arrested and charged with both second and third degree homicide. Prior to trial, appellant filed a petition to transfer his case from the Criminal Division of the Court of Common Pleas to the Juvenile Division. The Honorable Marjorie C. Lawrence held a hearing on the motion on December 15-16, 1994 and subsequently refused to transfer the case. Appellant’s birthdate is November 13, 1977. He was sixteen years, nine months of age at the time of the attack, and seventeen years, one month at the time of the decertification hearing.

Following two days of a jury trial, appellant entered a guilty plea to third degree murder and conspiracy to commit robbery. On January 20, 1995, the lower court sentenced appellant to serve ten (10) to twenty (20) years imprisonment for the murder, with a consecutive term of five (5) to ten (10) years for conspiracy. A timely notice of appeal followed on January 27, 1995. Appellant now presents one issue for our consideration: whether the trial court erred and/or committed a gross abuse of discretion in denying transfer of the case to Juvenile Court. This question is jurisdictional, and therefore cannot be waived by the juvenile’s entry of a guilty plea. Commonwealth v. Reed, 435 Pa.Super. 304, 313-14, 645 A.2d 872, 876-77 (1994) (en banc), appeal denied, 540 Pa. 630, 658 A.2d 794 (1995).

The decision whether to grant an application for transfer to the Juvenile Court of a minor charged with murder is within the sound discretion of the hearing judge. Commonwealth v. Morningwake, 407 Pa.Super. 129, 135, 595 A.2d 158, 161, appeal denied, 529 Pa. 618, 600 A.2d 535 (1991).

A juvenile seeking transfer of a murder case to Juvenile Court has the burden of proving he belongs in a juvenile setting by showing his need for and amenability to a program with supervision, care and rehabilitation such as that which he would receive as a juvenile. The determination of whether a juvenile is amenable to the juvenile system is to be made only after a careful scrutiny of the individual’s personal make-up, previous history and the nature and circumstances of the alleged homicide.

Id. An abuse of discretion which will warrant reversal of the trial court’s decision to retain a murder case in the Criminal Division may not merely be an error of judgment, but must be a misapplication of the law or an exercise of manifestly unreasonable judgment based upon partiality, prejudice or ill will. Commonwealth v. Reed, 435 Pa.Super. at 315, 645 A.2d at 877 (citing Commonwealth v. Romeri, 314 Pa.Super. 279, 291, 460 A.2d 1139, 1145, aff'd, 504 Pa. 124, 470 A.2d 498 (1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984)).

When murder is charged, treatment as a “youthful offender” does not arise as a matter of right; rather, it must be sought under section 6322(a) of the Juvenile Act. Id. at 314, 645 A.2d at 877. In determining whether to transfer a case charging murder, section 6322(a) requires the trial court to apply the specific factors listed in section 6355(a)(4)(iii)(A) of the Juvenile Act. According to this statutory provision, the trial judge must have reasonable grounds to believe that all of the following criteria exist in order to retain the case in Criminal Division:

(A) That the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities, even though there may not have been a prior adjudication of delinquency. In determining this the court shall consider the following factors:
Age.
Mental capacity.
Maturity.
The degree of criminal sophistication exhibited by the child.
Previous records, if any.
The nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the Juvenile Court to rehabilitate the child.
Whether the child can be rehabilitated prior to the expiration of the Juvenile Court jurisdiction.
Probation or institutional reports, if any.
The nature and circumstances of the acts for which the transfer is sought.
Any other relevant factors.

42 Pa.C.S.A. 6355(a)(4)(iii)(A). However, the child bears the burden of demonstrating that he or she is amenable to treatment, supervision or rehabilitation as a juvenile by demonstrating that he or she meets the section 6355 factors. 42 Pa.C.S.A. § 6322(a). In the event that the evidence does not affirmatively demonstrate that the accused is the kind of youth who would benefit from the special features and programs of the juvenile court system, and in the event no special reason exists for sparing him or her from adult prosecution and punishment, jurisdiction would necessarily remain within the criminal court system. Commonwealth v. Pyle, 462 Pa. 613, 622-23, 342 A.2d 101, 106-07 (1975).

In this case, the trial judge was well aware of the correct standard governing her decision. In her opinion on appellant’s motion for transfer to Juvenile Division, Judge Lawrence explicitly listed all the pertinent factors under section 6355. She then analyzed specific facts relating to appellant’s background and the history of this case as they apply to each criterion. Judge Lawrence first stated that appellant was sixteen years, nine months of age at the time of the victim’s murder, and seventeen years and one month at the time of the transfer hearing. She found that the evidence showed appellant to possess above average intelligence, and to be mature beyond his chronological years. Appellant demonstrated a reasonable degree of criminal sophistication in that he conceived the idea of robbing the victim, and was the person who struck the first blow. Although appellant had no prior juvenile record, he did have two minor encounters with police.

The trial court noted that none of the witnesses recounted any emotional or behavioral problems on appellant’s part, and cited expert testimony by a defense psychiatric witness to the effect that appellant has great potential for becoming a law abiding citizen. However, this expert farther testified that appellant will require intensive counseling which would take at least three years. Furthermore, the psychiatrist conceded that rehabilitation could actually take longer than three or four years. Judge Lawrence was most troubled by the psychiatrist’s statement that appellant’s behavior did not stem from any identifiable emotional problem. See Commonwealth v. Kocher, 529 Pa. 303, 315, 602 A.2d 1308, 1315 (1992) (trial court may find the fact that a juvenile charged with murder has a sound mind free of disease or defect weighs against transfer of the case to Juvenile Division). The trial judge then addressed other factors she found relevant, such as the troubled marital history of appellant’s mother and its impact on appellant.

Judge Lawrence concluded that the evidence appellant presented failed to demonstrate that he belongs in the juvenile system, or that he is amenable to the treatment, supervision or rehabilitation which the juvenile system offers. The trial judge does not disagree with appellant’s assertions that his life could benefit from structure, counseling and education. However, Judge Lawrence has reasonably noted that this is common to virtually all juveniles and young adults. Trial Court Opinion filed December 28, 1994 at 6. We have carefully inspected the certified record in the instant case, and find that it supports the conclusions reached by the court below. We find no indication that Judge Lawrence has misapplied Pennsylvania law, or demonstrated manifestly unreasonable judgment based upon partiality, prejudice or ill will. Consequently, we affirm her decision to deny the transfer of appellant’s case to the Juvenile Division.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 2502(c).

      . Id. § 903(a)(1).

      . The Pyle court explained that evidence of mental illness or retardation would constitute a “special reason” for remanding a murder prosecution to Juvenile Division. 462 Pa. at 622-23, 342 A.2d at 106-107.

      . Appellant concedes that these facts are true, but urges us to interpret his acts as merely "stupid” or "thoughtless” and "uncalled for.” We cannot agree, however, that appellant’s behavior provides no indication of criminal sophistication. On the contrary, this argument merely supports the conclusion that appellant has avoided accepting responsibility for his part in causing the victim’s death. Moreover, appellant’s argument that he is not "as culpable as the 'actual perpetrator' who killed the victim” totally ignores the concept of accomplice liability which is well established in our law.

      . Appellant received a citation for disorderly conduct for playing loud music and, in a separate incident, was charged with driving without a license.


text:
    664 A.2d 600
    COMMONWEALTH of Pennsylvania v. Charles C. BETZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 26, 1995.
    Filed Aug. 29, 1995.

      Anthony V. Clarke, Bradford, for appellant.
    Erik Ross, Assistant District Attorney, Mt. Jewett, for Commonwealth, appellee.
    Before WIEAND, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered after a jury found appellant, Charles C. Betz, guilty of two counts of burglary. We affirm.

During the late hours of July 10, 1991 and the early morning hours of the following day, appellant burglarized two churches located in McKean County, Pennsylvania. The police arrested appellant on July 13, 1991 for an unrelated offense, and incarcerated him in the Warren County Jail. A criminal complaint issued for the McKean County burglaries on July 18, 1991. The Docket Transcript attached to the criminal complaint indicates that appellant was formally arrested for the McKean County charges on July 18, 1991, while he was still being held in the Warren County Jail.

The certified record also discloses that at all relevant times, appellant remained incarcerated in locations other than McKean County on charges unrelated to this appeal. The McKean County Court of Common Pleas repeatedly was forced to postpone appellant’s preliminary hearing because appellant’s presence was required in several different counties pursuant to other criminal proceedings unrelated either to the church burglaries or to the Warren County offense. The complexity of appellant’s transportation arrangements caused the postponement of both his pre-trial criminal conference, and the date of his trial in McKean County.

The matter underlying this appeal was continued from the June 1992 term to the July 1992 term. On July 2, 1992, appellant entered a guilty plea on the church burglaries in exchange for the Commonwealth’s agreement to drop other related charges, including two counts of theft and three counts of criminal trespass. Although the lower court accepted appellant’s guilty plea, the Honorable John M. Cleland, P.J., subsequently refused to accept the Commonwealth’s sentencing recommendation. The lower court consequently permitted appellant to withdraw his guilty plea. The matter was then scheduled for trial during the September 1992 term. However, the lower court had to postpone the trial because appellant was again unavailable in McKean County due to matters pending in other jurisdictions.

Appellant’s jury trial commenced on October 19,1992 before the Honorable P. Richard Thomas, specially presiding. The jury found appellant guilty on two counts of burglary. Appellant filed a motion for post-verdict relief on October 28, 1992. The Court of Common Pleas docket indicates that no action was taken on the motion until April of 1994, when the lower court heard argument on appellant’s claims. After considering amended/supplemental briefs, Judge Thomas denied appellant’s motion. The lower court conducted a sentencing hearing on October 4, 1994, at which time Judge Thomas sentenced appellant to serve a term of thirty (30) to sixty (60) months imprisonment, consecutive to unrelated sentences already imposed in Butler, Bradford, Clarion, Luzerne, Potter, Warren and Wyoming Counties. Appellant filed a motion for reconsideration, which the lower court denied in light of an amended sentencing order docketed October 12, 1994. The amended order clearly states that the burglary sentences of thirty to sixty months are concurrent to each other, but consecutive to the sentences imposed in the other counties.

The instant timely appeal followed entry of the first amended sentencing order, and raises three issues for our consideration:

1. Should the Court below have dismissed the case pursuant to Rule 1100?
2. Was the evidence produced at trial by the Commonwealth insufficient as a matter of law and/or against the weight of the evidence to sustain a verdict of guilty for two (2) counts of burglary?
3. Did the Court’s supplemental instructions to the jury go beyond the scope of their request and contain additional recitations that were prejudicial to the jury’s deliberating process?

We shall address these claims seriatim.

Appellant first, contends that the trial court erred in refusing to dismiss the McKean County burglary charges pursuant to Rule of Criminal Procedure 1100. In this regard, appellant claims that the case was unduly prolonged because the Commonwealth failed to exercise due diligence in securing his presence on the scheduled dates for hearings and other proceedings. Appellant acknowledges that the difficulties and delays resulted from the fact that he was incarcerated in various counties during the entire time at issue here and therefore had to be transported long distances to McKean County. However, he alleges that he had no control over his movements and that it was entirely up to the Commonwealth to arrange matters more efficiently.

Rule 1100 provides that trial shall commence within one hundred eighty days from the date on which a written complaint is filed when the defendant is incarcerated on that case. Pa.R.Crim.P., Rule 1100(a)(2), 42 Pa.C.S.A. However, the Commonwealth has three hundred sixty-five days in which to bring a defendant to trial when that defendant is not in custody related to the offense for which the complaint was filed. Id. § (a)(3). For the purposes of Rule 1100, “trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere.” Id. § (b).

Appellant concedes that he was not incarcerated on the McKean County charges at any time prior to his trial. Thus, the three hundred sixty-five day provision governs this case. Appellant entered his guilty plea on July 2, 1992, three hundred fifty-one days after the filing of the McKean County criminal complaint. A simple calculation shows that fourteen days of the Rule 1100 period remained when appellant tendered his guilty plea thereby extinguishing the original speedy trial requirement. See Commonwealth v. Wamsher, 395 Pa.Super. 384, 390-91, 577 A.2d 595, 598-99 (1990) (discussing effect on speedy trial rights of entering a guilty plea). On August 25, 1992 the trial court filed an order permitting appellant to withdraw his guilty plea. This effectively granted a new trial and commenced an entirely new speedy trial run date pursuant to Rule 1100. Id. at 391, 577 A.2d at 599.

When a new trial has been granted, the Commonwealth has one hundred twenty days to bring the matter to trial if the defendant is incarcerated on that case. Rule 1100(d)(1). Otherwise, the trial must commence within three hundred sixty-five days of the trial court’s order. Instantly, appellant’s trial began October 19,1992, only seventy-nine days after the lower court permitted appellant to withdraw his guilty plea. The record thus clearly demonstrates that no violation of appellant’s speedy trial rights occurred and the lower court correctly refused to dismiss the case pursuant to Rule 1100. See also Commonwealth v. Kubin, 432 Pa.Super. 144, 637 A.2d 1025 (1994) (discussing effect on calculation of speedy trial time periods when defendant is incarcerated in another jurisdiction).

Appellant presents a murky argument concerning the fact that the lower court “was fully aware of’ the guilty plea entered July 2, 1992. The crux of this claim appears to be that, because the trial court ultimately rejected the Commonwealth’s sentencing recommendation, the time between the guilty plea colloquy and the sentencing hearing should be charged to the Commonwealth. We cannot agree. The plain terms of Rule 1100 state that the relevant times for calculating speedy trial rights are the date on which a guilty plea is accepted and the date on which the trial court enters an order permitting withdrawal of the plea. The Rule does not address the reasons why a judge may permit a defendant to withdraw a plea, nor does the Rule require special treatment when a court declines to accept the Commonwealth’s sentencing recommendations.

Appellant also contends that this case requires different treatment under Rule 1100 because it was so difficult for trial counsel to contact him to prepare a proper defense. However, appellant is entitled to no particular benefit because he chose to travel across the state into several different counties to prey upon their citizens. We decline to carve out a special exception for cases in which a person perpetrates a multicounty crime spree which requires shifting the accused from one county jail to another in order to conduct the necessary hearings and trials. Although a prosecutor may rightfully expect cooperation and assistance from authorities in other jurisdictions, the District Attorney of McKean County has neither control nor direct influence over the court calendar or prosecution schedule of other counties. There is absolutely no suggestion in the record that the McKean County prosecutor failed to pursue appellant’s case with due diligence and we decline to grant relief pursuant to Rule 1100.

Appellant next argues that the evidence was insufficient to sustain the verdicts because the Commonwealth’s witnesses were not as credible as the defense witnesses. This claim improperly combines issues which must be reviewed under entirely different legal standards. As our Supreme Court has recently explained:

It is well settled that the test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could have determined [that] all the elements of the crime have been established beyond a reasonable doubt.

Commonwealth v. Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995). The facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant’s innocence, but the question of any doubt is for the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. Commonwealth v. Seibert, 424 Pa.Super. 242, 246, 622 A.2d 361, 363 (1993) (citing Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977) and Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943)).

By way of contrast, our review of a claim that a verdict is against the weight of the evidence is highly circumscribed; when presented with this type of argument, we are limited solely to determining whether the lower court committed an abuse of discretion in failing to award a new trial. Commonwealth v. Thompson, 538 Pa. 297, 315-16, 648 A.2d 315, 324 (1994). The trial judge should grant relief only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). Unless there are facts and inferences of record that disclose a palpable abuse of discretion, the trial judge’s reasoning should govern. Id at 436, 648 A.2d at 1190. As the Supreme Court has noted, “a trial court’s denial of a motion for new trial because the verdict is not opposed to the weight of the evidence is one of the least assailable of its rulings.” Id at 437, 648 A.2d at 1190 (internal quotation marks omitted).

The testimony of appellant’s accomplice, James Haskins, directly links appellant to the burglaries at issue here. Mr. Haskins stated that he accompanied appellant in a green Ford van on the dates and time in question. The two men went to a church in Westline, Pennsylvania where Mr. Haskins “boosted” appellant through a window. Appellant exited through the church door and announced that there were antiques within the church. Appellant then went back inside the church, Mr. Haskins returned to the open window, and appellant began to hand furniture to Mr. Haskins through the aperture. The pair removed approximately twenty chairs from the church which Mr. Haskins hid in “a bunch of weeds” for pick up at a later time. When appellant and the accomplice returned for the furniture, Mr. Haskins noticed a person taking down the license number of the van. Nevertheless, the duo retrieved the antiques and placed them in the green Ford van. N.T. 10/19/92 at 48-51.

After leaving the Westline Church, appellant and his accomplice drove to a church located outside of Kane, Pennsylvania. The witness testified that appellant experienced great difficulty in opening the windows of this church because they had just been painted. With the assistance of a tire iron and a screw driver, appellant eventually gained access to the interior of the church. Mr. Haskins stated that they removed another set of antique chairs which they placed in the van. They returned to Tidioute at around 6:30 or 7:00 a.m. and rested from their labors. Id. at 53-55.

Pamela Buffington testified that in July of 1991, she resided in her parents’ home, which is directly across the street from the Westline Church. When she returned home from work in the early morning hours of July 11th, she noticed a van parked in front of the church. Because Ms. Buffington and her companion, Mark McCoy, both thought this was suspicious, the witness wrote down the license number of the van and saved it “for future reference.” When Ms. Buffington learned that the church had been burglarized, she notified the State Police of the van’s license number. Id. at 15-17.

Mr. McCoy testified that he picked Ms. Buffington up from her job at approximately 2:00 a.m. and drove her home. The witness stated that he thought it was “strange” for anyone to be at the church at such an early hour of the morning. For this reason, he specifically obtained the van’s license plate number for Ms. Buffington. Id. at 18-19.

Trooper Scott Shipton of the Pennsylvania State Police testified that he investigated the Westline Church burglary and determined that the perpetrator had forced an entry into the building through a window. The officer’s statement corroborated the testimony of appellant’s accomplice as to the manner in which the burglary occurred. Trooper Shipton checked the license plate number Ms. Buffington provided, and learned that it was registered to a 1981 Ford owned by Robert A. Balase of Tidioute, Warren County, Pennsylvania. Id. at 31-32. Subsequent police investigation disclosed that this name is one of the aliases under which appellant has operated. Id. at 95-96 (testimony of Trooper Max Bizzak). The State Police recovered the stolen antique chairs and the property was identified by authorities from the two churches. Id. at 24-25 (testimony of Mrs. Carol Strand); 39-40 (testimony of the Reverend Donald Strand); 39-40 (testimony of the Reverend V. Theodore Benson). Reverend Benson corroborated Mr. Haskins’ testimony concerning the manner in which the Lebanon Lutheran Church at Kanesholm, Pennsylvania was burglarized. Id. at 36-38. Both pastors testified that the antique chairs from the Westline Church were manufactured in the same style as those taken from the Lebanon Lutheran Church. Evidence was also introduced indicating that the Ohio antique dealer who purchased the stolen chairs identified appellant as the person who sold the merchandise to him. Id. at 100.

Our law is clear that guilt may be predicated solely upon the uncorroborated testimony of an accomplice. Commonwealth v. Spencer, 432 Pa.Super. 631, 637-38, 639 A.2d 820, 824 (1994), appeal discontinued, 538 Pa. 645, 647 A.2d 900 (1994) (citing Commonwealth v. Goldblum, 498 Pa. 455, 466, 447 A.2d 234, 240 (1982)). However, when parties in crime testify against one another, their testimony must be recog nized as coming from a “corrupt source” and therefore must be subjected to the closest scrutiny. Id. (quoting Commonwealth v. Todt, 318 Pa.Super. 55, 63, 464 A.2d 1226, 1230 (1983)). In this case, Mr. Haskins’ testimony was not uncorroborated — it was supported by the testimony of seven other witnesses. Moreover, the trial judge properly gave a “corrupt source” instruction as to Mr. Haskins’ testimony. N.T. 10/19/92 at 152-154. We therefore agree with the lower court’s determination that the aggregate of the evidence presented at appellant’s trial was sufficient, if believed by the jury, to sustain the convictions for burglary.

We are cognizant of the fact that appellant presented three alibi witnesses who testified that he was at a location other than the churches during the time frame when the burglaries occurred. However, the jury was entitled to disbelieve the defense witnesses in favor of the testimony presented by the Commonwealth’s witnesses. Commonwealth v. Griscavage, 512 Pa. 540, 546, 517 A.2d 1256, 1259 (1986); Commonwealth v. Hamilton, 376 Pa.Super. 404, 414, 546 A.2d 90, 95 (1988), appeal denied, 521 Pa. 629, 558 A.2d 531 (1989). Because we find nothing in the certified record which supports the conclusion that the lower court committed a palpable abuse of discretion in refusing to grant a new trial, there is no basis upon which we could reverse Judge Thomas’ ruling. See Commonwealth v. Brown, supra, at 538 Pa. 410, 648 A.2d 1177 (fully discussing all the parameters governing a challenge to the weight of the evidence).

The final argument presented in this appeal is that the trial court erred in the supplemental instructions provided to the jury concerning the definitions of “theft” and “burglary.” Appellant contends that the trial court exceeded the bounds of propriety by summarizing the Commonwealth’s evidence after giving the supplemental charge. In particular, appellant contests the fact that the lower court made no mention of his alibi defense when summarizing the evidence.

After the jury has retired to consider its verdict, the trial judge may give additional or correctional instructions. Pa.R.Crim.P., Rule 1119(c), 42 Pa.C.S.A. In order to preserve a challenge to such a supplemental charge, defense counsel must make a specific objection before the jury returns to its deliberations. Rule 1119(b); Commonwealth v. Fuller, supra, at 396 Pa.Super. 605, 579 A.2d 879. In this case, the certified record merely indicates that the trial court “noted” defense counsel’s exception to the supplemental instructions after the jury left the courtroom. N.T. 10/19/92 at 167. The record contains no clue as to the basis of the exception. Even where the jury charge is palpably in error, a defendant must lodge a specific and timely objection “lest his challenge to the charge be precluded on appeal.” Commonwealth v. Corley, 432 Pa.Super. 371, 381-82, 638 A.2d 985, 990 (1994), appeal denied, 538 Pa. 641, 647 A.2d 896 (1994). We therefore find that appellant has waived this issue.

Purely for the sake of argument, however, we note that no relief is warranted here.

It is within the province of the trial court to summarize evidence, so long as the court makes no material misstatements. Summarizing evidence is not the 'equivalent of expressing an opinion as to the conclusions to be drawn from conflicting evidence.

Commonwealth v. Pelzer, 531 Pa. 235, 246, 612 A.2d 407, 413 (1992) (citations omitted). In this case, the trial judge did not summarize the evidence. After defining the meaning of the terms “theft” and “burglary,” Judge Thomas merely reiterated the nature of the Commonwealth’s charge against appellant and properly reminded the jury that they were the sole factfinders of matters relating to appellant’s guilt or innocence:

[The] Commonwealth’s theory in this case is that the defendant in these cases went in the two church buildings with intent to steal something, that is commit theft when he got in there. If you are satisfied beyond a reasonable doubt that at the time he entered the building he did it with the intent to commit the crime of theft when he got in there, that is to steal the chairs, and you are satisfied of that beyond a reasonable doubt, he’s guilty of burglary. If you are not so satisfied from all of the evidence then he’s not guilty of burglary.

N.T. 10/19/92 at 165. These remarks were plainly an adjunct to the technical definition of the crime of burglary, and were intended merely to illustrate how to apply that definition. Moreover, the trial judge explicitly reminded the jury that they were to make their determinations based on the totality of the evidence. As such, the trial court’s remarks provide no grounds for the grant of a new trial.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3502.

      . The Docket Transcript in this matter was not prepared until February 13, 1992 and the recitation in that document of July 18, 1991 as the formal arrest date appears to be incorrect. Appellant avers that the arrest occurred on October 18, 1992. Appellant’s brief at 6. However, this is obviously a typographical error as appellant’s actual trial was conducted on October 19, 1992.
      It is most probable that appellant was formally arrested on or about October 22, 1991, the date on which he signed an Affidavit of Rights indicating that he had been apprised of his various constitutional rights with regard to the criminal charges pending against him in McKean County. This time frame is corroborated within the Docket Transcript, which lists October 22, 1991 as the originally scheduled preliminary arraignment date. The first entry on the Court of Common Pleas docket transmitted to this court was not made until November 8, 1991, when William P. McVay, Esquire requested appointment of counsel for appellant due to a conflict of interest with the McKean County Public Defender’s Office. The lower court appointed present counsel to represent appellant on December 3, 1991.

      . The lower court also entered a clarification order on November 3, 1994 noting that appellant was entitled to fifty-seven (57) days credit for time served in other counties on a detainer related to the burglaries at issue in this case.

      . For purposes of this analysis, we will accept the filing date of July 18, 1991 as recited on the Docket Transcript attached to the criminal complaint. We note that 1992 was a “leap” year having twenty-nine days in the month of February.

      . Appellant’s brief complains that the trial court "neutralized” the "corrupt source” instruction by stating that accomplices often want to "spill the beans” and "get it off their chest.” Appellant made no objection to the charge prior to the time when the jury left the courtroom to begin deliberations. The trial judge even asked defense counsel if he had any objections to the jury instructions. Counsel replied, “No, your Honor, I don’t have any.” N.T. 10/19/92 at 163. Consequently any challenge to the jury instructions has been waived. See Pa.R.Crim.P., Rule 1119(b), 42 Pa.C.S.A. (requiring preservation of challenge to jury instructions by means of a specific objection presented to the court before the jury retires to begin deliberating); Commonwealth v. Fuller, 396 Pa.Super. 605, 623 n. 11, 579 A.2d 879, 888 n. 11 (1990), appeal denied, 527 Pa. 585, 588 A.2d 508 (1991) (applying Rule 1119(b)).