author: MONTEMURO, Judge:

text:
    576 A.2d 358
    QUARRY OFFICE PARK ASSOCIATES, and Reality Engineering Company Appellees, v. PHILADELPHIA ELECTRIC COMPANY Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1990.
    Filed May 8, 1990.
    Reargument Denied July 10, 1990.

      James C. Sargent, Jr., West Chester, for appellant.
    Anthony J. Vetrano, Paoli, for appellees.
    Before DEL SOLE, MONTEMURO and TAMILIA, JJ.
   MONTEMURO, Judge:

This case involves a dispute over appellant Philadelphia Electric Company’s (PECO) interest in a railroad line which traverses tracts of land owned by appellees Quarry Office Park Associates and Realty Engineering Company (Developers).

On December 19, 1986, Developer Quarry filed an action to quiet title, seeking to lay claim to land underlying the rail line on the basis that the Consolidated Rail Corporation (Conrail), PECO’s predecessor in interest, had abandoned the railroad. On February 25, 1988, Developer Realty filed a complaint in ejectment, alleging abandonment by Conrail and requesting that PECO remove the rails, ties, ballast and other railroad materials situated on the property. The trial court consolidated the two actions. In ruling in favor of Developers on the parties’ cross-motions for summary judgment, the trial court found that Conrail held a conditional fee interest in the property, rather than a fee simple absolute, and that Conrail abandoned the rail line when Conrail conveyed the property to PECO, a “non-railroad.” See Trial Court Opinion 2-3. The court found that Conrail had not successfully transferred its railroad right-of-way and thus Conrail’s interest reverted to the original grantors and their successors in interest, i.e., Developers as the present owners of the parcels. PECO appeals from the order granting summary judgment in favor of Developers. Because we find that issues of triable fact exist, we reverse and remand the case for trial.

The rail line was established in 1851 and 1852, when Developers’ predecessors in interest conveyed to the Chester Valley Railroad Company a portion of their land for use as a railroad. The Chester Valley Rail Road Company constructed a railroad, known as the Chester Valley Secondary, over these parcels of land; the rail line extends for approximately seven miles, from Tredyffrin Township in Chester County on the western end to King of Prussia, Montgomery County on the eastern end. Chester Valley’s interest in the railroad eventually passed to the Reading Company, and from the Reading Company to Conrail in 1976. Conrail used the line for the transport of freight by its commercial customers. Since 1982, Conrail has used the rail line solely to move transformers to PECO’s Upper Merion substation. As of the Spring of. 1982, Conrail stopped servicing its other customers along the line. When the line ceased to generate sufficient revenues to continue operation and maintenance, Conrail filed two applications before the Interstate Commerce Commission (ICC), pursuant to Section 308(c) of the Regional Rail Reorganization Act of 1973 (RRR Act), 45 U.S.C. § 701 et seq, as amended by Section 1156 of the Northeast Rail Service Act of 1981, requesting permission to abandon service to customers on the line. In July, 1984, the ICC authorized Conrail to abandon the line, if Conrail so chose. The ICC certificate authorizing Conrail’s abandonment of the line stated that “[i]f the authority granted by this certificate and decision is exercised, Conrail shall advise this Commiss in writing, immediately after abandonment of the line of railroad, of the date on which the abandonment actually took place.” R.R. 1171a. Conrail never provided written notice of a date of abandonment to the ICC. Conrail did not apply to the Pennsylvania Public Utilities Commission (PUC) for permission to abandon or abolish the bridges and highway crossings.

On May 2, 1986, Conrail conveyed its interest in the rail line to PECO for $600,000. PECO intends to use the line for routine or emergency replacement or upgrading of its transformers located at its Upper Merion Substation. PECO anticipates that the substation will continue to expand due to the rapid residential and commercial development in the area and the increased electrical needs of PECO’s customers. The substation is surrounded on all sides by natural and man-made impediments which restrict access by other means of transportation. The transport of the transformers over the rail line will be conducted by Conrail, pursuant to an agreement between PECO and Conrail.

Developers own adjacent pieces of property over which the rail line traverses. Developers Quarry and Realty, aware of the existence of the rail line, purchased the property in 1985 and 1984 respectively, intending to build multi-story office buildings or corporate headquarters on the land.

In reviewing an order granting summary judgment, our function is to determine whether any genuine issues of triable fact exist. Melendez v. Pennsylvania Assigned Claims Plan, 384 Pa.Super. 48, 557 A.2d 767, 768 (1989); Alberici v. Tinari, 374 Pa.Super. 20, 542 A.2d 127, 128 (1988). Summary judgment will be upheld if the pleadings, depositions, answers to interrogatories, admissions and affidavits indicate there are no genuine issues as to any material facts and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Melendez, supra, 384 Pa.Super. at 50, 557 A.2d at 768; Alberici v. Tinari, supra, 374 Pa.Super. at 22, 542 A.2d at 127.

The disposition of this case rests upon two determinations: the nature of interest in land the Chester Valley Rail Road Company acquired from Developers’ predecessors in interest, and thus what interest Conrail acquired in the property; and whether Conrail abandoned its rights in the property before, or when, Conrail conveyed the rail line to PECO.

Developers predecessors in title are three landowners who, in 1851 and 1852, conveyed to the Chester Valley Railroad Company interests in that portion of the property underlying the rail line. The instruments of conveyance provide:

Know all Men by these Presents, That I, [name of landowner] of Chester County, for and in consideration of the benefits which may or shall result to me from the construction and completion of the Chester Valley Rail Road, and in consideration of the sum of One Dollar, to me in hand paid by the Chester Valley Rail Road Company, the receipt whereof is hereby acknowledged, have granted, bargained, sold, conveyed and confirmed, and by these presents do grant, bargain, sell, convey and confirm unto the said the Chester Valley Rail Road Company, their successors and assigns, the right, liberty, and privilege of entering upon and occupying the land belonging to me on and near the route of said Rail Road, (as the same is prescribed and defined in an Act of the General Assembly of the Commonwealth of Pennsylvania, passed on the 22d day of April, A.D., 1850 creating the said Company,) to the extent of thirty three (33) feet in width of the said land on each side of the centre line of said Rail Road, and such additional width as may be necessary in the construction and use of said road at deep cuttings and embankments, but to no other or greater extent in width; and extending in length of the width aforesaid, [description of length] and also the right of using, occupying, and enjoying the said land perpetually, for all the uses and purposes convenient or necessary for a Rail Road. And I do hereby release to the said The Chester Valley Rail Road Company, all claim for or right to any damages which have accrued, or may or can accrue to me and to my heirs, executors, administrators and assigns, for or by reason of the said Company’s taking, holding, or using the said land, to the extent herein above described, or any part thereof, for the use and purpose aforesaid.

R.R. 1091a, 1093a, 1095a.

In addition to the above language set forth on the Company’s printed form, each of the instruments of conveyance contains a handwritten provision. The agreement between landowner W. Davis and Chester Valley contains handwriting to the effect that “[i]t is understood that I am to receive for the above grant two hundred & twenty five dollars $225 in cash and one share of the preferred stock in the Company — It is also understood that I am to do the fencing on both sides of the Rail Road the compensation for which is to be included in the above mentioned $225 & one share of stock, that being in full for damage & fencing. I also agree that in case the Courts shall at anytime decide that this damage belongs to other parties, then & in that case I will refund the Same.” R.R. 1093a. The back of the document contains handwriting indicating receipt of $225.00 and $40.00 in lieu of one share of preferred stock as payment in full for the fence and for land damage done or likely to be done due to the construction of the railroad.

The agreement between landowner David Havard and the Company provides, in handwriting, that the “[i]t is understood that said Rail Road Company shall pay me for the Land occupied by said Company and a fence to be constructed by me in a good and workmanlike manner on either side of said Road, and the cost attending the removal of my Barn along the line of said Road, the Sum of Five Hundred Dollars which Sum is to be paid by Sd. Company before commencing work on my property.” R.R. 1095a. The back of the Havard instrument of conveyance notes receipt of $500.00 as payment for the fence, removal of the barn and damage done to the property by construction of the railroad.

The agreement between A.K. Davis and the Company provides, in handwriting, that “[i]t is understood that I am to receive for the above grant, at the rate of one hundred dollars per acre for the land occupied by the Rail Road —[]—It is understood that a Rail Road Bridge is to be constructed in the meadow opposite my house, instead of an Embankment — The land under said Bridge is not to be paid for by the Rail Road Co. — but the Co. shall at all times have the right of access to the [ ] & abutments of said Bridge to build, repair, or renew the same, ... I agree to construct the necessary fences, at the rate of ten cents per running foot. I also agree that in case the Courts shall at anytime decide that the above damage money belongs to others— then, in that case, I will refund the same.” R.R. 1091a. The back of the document contains a statement indicating that $300.00 was received as “the amount in full for land damage according to the within agreement.” R.R. 1092a.

PECO argues that these instruments conveyed to the Chester Valley Rail Road a fee simple title in the land. Developers argue that the interest conveyed consisted solely of a railroad right-of-way. In interpreting instruments of conveyance, our “primary object must be to ascertain and effectuate what the parties intended.” Brookbank v. Benedum-Trees Oil Company, 389 Pa. 151, 156-57, 131 A.2d 103, 107 (1957). See also Lawson v. Simonsen, 490 Pa. 509, 417 A.2d 155 (1980). In determining the parties’ intent, we rely on the traditional rules of interpretation:

(1) the nature and quantity of the interest conveyed must be ascertained from the instrument itself and cannot be orally shown in the absence of fraud, accident or mistake and we seek to ascertain not what the parties may have intended by the language but what is the meaning of the words ...; (2) effect must be given to all the language of the instrument and no part shall be rejected if it can be given a meaning ...; (3) if a doubt arises concerning the interpretation of the instrument it will be resolved against the party who prepared it ...; (4) unless contrary to the plain meaning of the instrument, an interpretation given it by the parties themselves will be favored ... ; (5) “to ascertain the intention of the parties, the language of a deed should be interpreted in the light of the subject matter, the apparent object or purpose of the parties and the conditions existing when it was executed” ...

Brookbank, supra, 389 Pa. at 157 n. 6, 131 A.2d at 107 n. 6 (emphasis in original) (citations omitted).

The issue in Brookbank concerned what rights a railroad had to drill for natural gas under an abandoned railroad bed. In deciding this question, the Court interpreted a document containing language substantially similar to the wording of the instrument at issue here, finding that the parties intended to convey a “right of way” for railroad purposes. The agreement in Brookbank provided:

Know All Men By These Presents, That, J.J. Ingraham and Anna Ingraham parties of the first part, for and in consideration of the sum of Three Hundred Dollars, lawful money of the United States, duly paid by the railroad company hereinafter mentioned, to us, receipt of which is hereby acknowledged, have granted, bargained, sold, released and conveyed unto the Susquehanna and Southern Railroad Company, a corporation organized under the laws of Pennsylvania, its successors and assigns, a strip of land four rods in width, and, through cuts and fills such additional widths as may be needed for slopes, one-half thereof on either side of the center line as now located, of the Susquehanna and Southern Railroad, leading from Sinnemahoning, Pennsylvania, to DuBois, Sykes-ville, & c., through lands of the parties above mentioned, situate in Gibson Township, Cameron County, Pennsylvania.
Together with the right to enter upon the said land and lay out, construct, maintain and operate a railroad over and across the lands belonging to the parties above mentioned, taking and using such earth, stones and gravel, as may be needed for grading and filling such road, and hereby fully releasing said railroad company, its successors and assigns, from all liability by reason of the location, construction and operation of the said railroad.
A good farm crossing and cattle guard on each side thereof to be built and maintained by said Company.

Brookbank, supra, 389 Pa. at 154-55, 131 A.2d at 106. The Court held that the railroad acquired a right of way for railroad purposes by virtue of this agreement.

Our review of the Court’s analysis of the agreement in Brookbank convinces us that the instruments of conveyances in this case were intended to transfer a railroad right of way and not a fee simple interest. The determinative factors which supported the finding of a railroad right of way in Brookbank are factors which exist in this case. Specifically, the omission of habendum and warranty clauses; the specification of the rights given to the railroad; and the release relieving the railroad of liability arising from the location, construction and operation of the railroad supported the finding in Brookbank that the parties intended the conveyance of a right of way for railroad purposes. Id., 389 Pa. at 162-64, 131 A.2d at 110-11.

The present agreements contain no clauses requiring that the landowners warrant their title to the property or describing the extent of the estate conveyed. The Brookbank court found it “inconceivable that the railroad would have omitted these clauses from an instrument of conveyance under whose terms they intended to receive a fee simple estate.” Id., 389 Pa. at 162-63, 131 A.2d at 110. The agreements specify that the Chester Valley Rail Road has the right, liberty, and privilege of entering upon and occupying the land and the right of using, occupying, and enjoying the said land perpetually, for all the uses and purposes convenient or necessary for a Rail Road. As the Brookbank court noted, “[i]f the parties intended to convey a fee simple interest to the railroad, it was surplusage to give the railroad these rights because such rights would naturally belong to the railroad as holder of the fee.” Id., 389 Pa. at 163, 131 A.2d at 110. Finally, the instant agreements release the Rail Road Company from all claim for or right to any damages resulting from the Company’s taking and using the land for the construction and use of the railroad. The Brookbank court held that a similar release indicated the conveyance of a right of way, because if a fee interest had been conveyed, the railroad would have a complete right to build and operate a railroad over the land. Id., 389 Pa. at 163-64, 131 A.2d at 110. Given the close parallel between the instrument of conveyance in Brookbank and the agreements at issue here, we hold that the Chester Valley Rail Road Company secured a right of way for railroad purposes by virtue of the instruments of conveyance.

The cases cited by PECO in support of its position that the instrument conveyed a fee simple are unpersuasive. PECO also relies on an appraisal which opines that the amounts of money paid to the landowners for the land were consistent with transfers of fee simple titles to the land. In Lawson v. Simonsen, supra, 490 Pa. at 516, 417 A.2d at 159, the Court refused to accept the appellant’s claims as to the sufficiency of consideration paid for the interest, stating that “these arguments rely on facts totally unobtainable from the written document and we are not permitted to look beyond that document in cases, like the present one, where fraud, accident or mistake, have not been alleged.” Id., citing Brookbank, supra. As neither party in this case has alleged fraud, accident or mistake, we will not go beyond the words of the documents to ascertain the intent of the original landowners and the Chester Valley Railroad Company. The language in each of the agreements, as quoted above, indicates that the money received by the landowners was compensation for the damages which flowed from the location and construction of the railroad on the landowners’ properties.

Because the Chester Valley Rail Road possessed only a railroad right of way, as opposed to a fee simple interest in the property, Conrail acquired a railroad right of way in 1976, when the interest passed to Conrail. We now must consider whether Conrail abandoned its interest in the property.

The instruments of conveyance granted the right of way “for all the uses and purposes convenient or necessary for a Rail Road.” R.R. 1091a, 1093a, 1095a. A railroad right of way terminates and the property interest reverts back to the grantor or the grantor’s successors in title when the land ceases to be used for railroad purposes. Brookbank, supra, 389 Pa. at 167, 131 A.2d at 112; Lacy v. East Broad Top Railroad & Coal Co., 168 Pa.Super. 351, 354, 77 A.2d 706, 708 (1951). To constitute abandonment, there must be an intention to abandon, accompanied by “external acts” by' which the intention is carried into effect. Id., 168 Pa.Superior Ct. at 358, 77 A.2d at 710.

The determination of whether a railroad has actually abandoned its right of way by acting upon and effecting its expressed intention to abandon is a question for a jury to decide. Lawson, supra, 490 Pa. at 517, 417 A.2d at 160; Lacy, 168 Pa.Super. at 358, 77 A.2d at 710. We find that triable factual disputes exist in this case as to whether Conrail intended to abandon the line and whether Conrail actually abandoned the line.

Developers argue that Conrail evidenced an intention to abandon the line when Conrail (1) ceased running trains on the line; (2) ceased maintaining the line; (3) sought and received approval from the ICC to abandon the line; and (4) planned to dismantle the line’s track. It is well-settled that nonuse of a rail line does not constitute abandonment. Lawson v. Simonsen, supra, 490 Pa. at 517, 417 A.2d at 158; Lacy v. East Broad, 168 Pa.Super. at 358, 77 A.2d at 710. Thus, Conrail’s failure to operate trains on the line and maintain the line are not indicative of an intent to abandon.

■ The record does show some evidence of Conrail’s intent to abandon, since Conrail applied to the ICC for permission to abandon the rail line and Conrail planned to dismantle the track. In Lacy v. East Broad, supra, where the railroad company applied for and obtained a certificate from the Public Utility Commission (PUC) authorizing abandonment of a portion of the railroad’s right of way, the Court held that the proceedings before the PUC constituted, at most, an expression of the railroad’s intention to abandon the right of way. Id., 168 Pa.Superior Ct. at 356-58, 77 A.2d at 709-10. The Court also noted that a certificate of abandonment from the ICC may indicate an intent to abandon. Id., 168 Pa.Superior Ct. at 359, 77 A.2d at 710-11. PECO emphasizes that the application to the ICC for abandonment was for abandonment of service, not for abandonment of the line itself. A reading of the statutory provisions under which Conrail applied for the certificate of abandonment indicates otherwise. The statute provides that Conrail may file a notice of insufficient revenues for any line which is part of its system, and after 90 days have elapsed, may thereafter file an application for abandonment of the line. 45 U.S.C. § 748(c) and (d). Provided that no offers for sale of the subject line are made, Conrail may abandon, dismantle or otherwise dispose of the rail line, except for bridges and other structures. 45 U.S.C. § 748(e). Given this statutory scheme, we find that abandonment within the meaning of the RRR Act is not limited to abandonment of service.

PECO also stresses that Conrail never applied to the PUC for a certificate of public convenience for authorization to abolish the railroad or any of its crossings, as required by 66 Pa.C.S.A. § 1102(a)(2). While the Commonwealth of Pennsylvania ordinarily has jurisdiction over abandonment proceedings, if abandonment proceedings pursuant to the RRR Act are initiated, as they were in this case, the state scheme is preempted. Consolidated Rail Corporation v. Pennsylvania Public Utility Comm’n, 565 P.Supp. 153, 156 (Sp.Ct.RRRA 1983). Thus, in light of Conrail’s application for and receipt of the ICC certificate authorizing abandonment and Conrail’s plans for dismantlement of the track, we conclude that a jury question exists on whether Conrail intended to abandon the line.

Likewise, the record shows that there is evidence from which a jury could find that Conrail actually abandoned the rail line before selling the line to PECO. Developers cite Conrail’s allowance of severance of the line and Conrail’s sale of the line to PECO as external acts of abandonment. Conrail allowed the removal of tracks in certain portions of the line. A review of the record shows that Conrail could have agreed to the severance of the line at this juncture because of economic concerns or as a step in furtherance of an abandonment effort. The fact that the balance of the rail line remains an intact, viable railway is evidence to support PECO’s position that Conrail did not abandon the line. We find that whether Conrail actually abandoned the line must be resolved at trial.

We disagree with the views of the trial court and the Developers that as a matter of law, abandonment of the rail line was completed when Conrail conveyed its interest to PECO, a “non-railroad.” The instruments of conveyance transferred a right of way “for all the uses and purposes convenient or necessary for a Rail Road.” So long as the owner of the right of way continues to use the line for railroad purposes, i.e., for the transport of goods, passengers, equipment, or other such freight by rail, the railroad will not be deemed to have been abandoned. There is no requirement that the owner of the railroad be a railroad company, per se. PECO’s intended use of the line to ship transformers and other heavy equipment and machinery into the substation constitutes a use for railroad purposes.

Although the sale of the line to PECO was not made pursuant to the RRR Act, a review of the history and provisions of the RRR Act shows that a finding of abandonment in a case where a railroad sells a line to a non-carrier would be inconsistent with the RRR Act’s purposes. In an-effort to alleviate the crisis of railroad insolvency, Congress enacted the RRR Act in 1974, which provided, in part, for the reorganization of railroads located in the northeast corridor into an economically viable railway system. The establishment of Conrail was one of the means through which Congress intended to accomplish this goal. 45 U.S.C. § 701(b).

Recognizing that the provisions of the RRR Act enacted in 1974 failed to result in the creation of a self-sustaining railroad system in the Northeast region, Congress amended the RRR Act in 1981. See 45 U.S.C. § 1101. The amended provisions reflect a congressional policy which favors the purchase of Conrail’s financially troubled rail lines by various entities. The RRR Act permits Conrail to sell a line which generates insufficient revenues to a “financially responsible person (including a government authority).” 45 U.S.C. § 748(d); 49 U.S.C. § 10905(d). The category of “persons” who may purchase a line is not limited to rail carriers. Hence, PECO would qualify as a person who may offer financial assistance under the RRR Act. To hold that as a matter of law, Conrail abandons a rail line by selling the line to a “non-railroad” would frustrate the remedial purpose of the RRR Act.

We have carefully reviewed the cases cited by the Developers and find that none of the cases present the precise factual and legal issues posed by the instant case. In Chew v. Commonwealth, 400 Pa. 307, 161 A.2d 621 (1960), the Commonwealth had condemned property on which a railroad company owned a right of way. The dispute concerned whether the railroad company or the successors of the original landowners should receive the condemnation damages. To resolve the question, the Court relied upon a provision of the Restatement of the Law of Property addressing distribution of condemnation awards; this provision required the Court to determine whether abandonment of the railroad right of way was imminent at the time of the condemnation proceeding, not whether actual abandonment had occurred. Id., 400 Pa. at 310-12, 161 A.2d at 622-23. Given the railroad company’s adopted resolution to substitute bus service for rail service, and the company’s application to the PUC for approval to abandon railway service, the Court found that abandonment was imminent. Id. In Schnabel v. County of DuPage, 101 Ill.App.3d 553, 57 Ill.Dec. 121, 428 N.E.2d 671 (1981), the court held that the railroad company had abandoned its railroad right of way when the company tore up and removed all the rails, ties and wires necessary for the operation of the line, and had applied to the Illinois Commerce Commission for permission to discontinue railroad services. In this case, Conrail did not dismantle and remove all of its track; the rail line is still a viable means of supplying rail service. The case of Kansas City Area Transportation Authority v. 4550 Main Associates, Inc., 742 S.W.2d 182 (Mo.App.1986) is also readily distinguishable in that the finding of abandonment was predicated upon the fact that the holders of the railroad right of way had ceased all rail service, removed tracks, paved over portions of the line and were using the property for parking lots and billboards.

We cannot conclude that as a matter of law, Conrail had abandoned the line before or when the line was sold to PECO. Because we find that the question of whether Conrail abandoned the rail line must be resolved at trial, we need not address Developers’ argument that PECO has worked an unconstitutional taking of Developers’ property.

For the foregoing reasons, we reverse the order granting summary judgment in favor of Developers, and remand the case to the trial court for proceedings consistent with this decision.

Reversed and remanded. Jurisdiction is relinquished.

      . The Upper Merion Substation is the most heavily loaded distribution substation in PECO’s system, serving seven surrounding townships and several major industrial and commercial customers.

      . The Brookbank court noted that a railroad right-of-way had, at times, been termed both an easement and a base or conditional fee. Brookbank, supra, 389 Pa. at 166 n. 23, 131 A.2d at 111-12 n. 23. The Court noted that regardless of the name given the estate, the railroad acquires simply a right to the surface and so much of the subsurface as is necessary for the support of the railroad, but does not acquire any mineral rights.


source: Caselaw Access Project

author: BECK, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    576 A.2d 366
    COMMONWEALTH of Pennsylvania v. Dennis FOY, Appellant.
    Superior Court of Pennsylvania.
    Argued October 25, 1989.
    Filed May 29, 1990.

      David S. Shrager, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before DEL SOLE, BECK and MONTGOMERY, JJ.
   BECK, Judge:

This case presents the following question: where a defendant has been arrested and charged with committing a highly distinctive series of crimes, may the Commonwealth introduce evidence at trial that following the defendant’s arrest, no further crimes of the type of which the defendant stands accused were reported? We find that under the circumstances of this case, evidence that no further crimes were reported was properly admitted at trial. We therefore affirm the appellant’s judgment of sentence.

The relevant facts are summarized in the opinion of the trial court.

During the year of 1987, a series of sexual assaults involving various elderly women occurred in the Borough of Homestead, Pennsylvania. The crimes committed exhibited a unique pattern which indicated that the assaults were the work or “signature” of a single perpetrator in that all of the crimes involved women between the ages of 61 and 85 who lived alone at the time of the assaults; all of the assaults occurred between the hours of 12:30 A.M. and 3:25 A.M. within a densely populated two and one-half block area of Homestead. The means of entry was primarily a window; once inside the house, the assailant would bind the victim with clothing, bedclothes or other objects found in the house, sexually assault her and then burglarize the residence. During the attacks the actor stated “shut up or I’ll kill you,” and was felt by the victim to be a black male, this being ascertained by description of victim, voice identification and hairs found at the scene which were foreign to the victims.
Chronologically, the crimes took place as follows: On February 2, 1987, a seventy-five year old female, [C.R.], was raped and her home was burglarized. Items taken during the burglary included ninety-two dollars ($92.00) cash, two (2) portable television sets a gold chain and a ladies’ Timex watch with a black band. On March 1, 1987, a sixty-four year old female, [D.H.], was raped and her home burglarized. Items taken during the burglary included sixteen (16) silver spoons, a solid gold bracelet and forty-five dollars ($45.00) cash. On April 24, 1987, the home of a seventy-six year old female, [E.F.], was burglarized and the actor attempted, but failed to rape her. Items taken during the burglary included two hundred forty-six dollars ($246.00), two bracelets, and a watch. On June 18, 1987, an eighty-five year old female, [E.L.], was raped and her home was burglarized. Less than one, hundred dollars ($100.00) was taken by the actor. On August 25, 1987, the same women [sic] who was victimized on April 24, 1987, [E.F.], was raped and her home burglarized for the second time. Items taken during the burglary included less than fifty dollars ($50.00), an airhorn, and two (2) rifles, one of which was a Remington 20 [gauge] shotgun.
In early September of 1987, an Allegheny County Police Detective, Richard Ross, received information from a confidential informant that defendant, Dennis Foy, was in possession of the Remington 20 gauge shotgun that had been stolen from the home of [E.F.] on August 24, 1987. Detective Ross was told by the informer that defendant was going to the Steel City Pawn Shop in Braddock on September 3, 1987, at approximately 2:00 P.M. to get the weapon out of pawn.
After notifying the police task force supervising the investigation of the Homestead rapes of this information, Detective Ross and his partner proceeded to the pawn shop where they arrived at approximately 1:00 P.M. on September 3, 1987. The detectives placed the pawn shop under surveillance and, thereafter, observed the defendant arrive at approximately 2:15 P.M. Detective Ross and his partner entered the pawn shop where they observed the defendant with the claim ticket for the gun in his possession attempt to get the shotgun out of pawn.
At that time, the manager of the pawn shop refused to give the shotgun to the defendant, due to the fact that the defendant had no identification as required by law to obtain firearms out of pawn. The defendant then told the manager that he would obtain identification and return to the shop and exited the store. At approximately 3:10 P. M. the defendant re-entered the establishment, produced the required identification and obtained the shotgun. Defendant Ross immediately placed the defendant under arrest on the charge of receiving stolen property and notified him of his rights.

Trial Court Op. at 1-3 (citations to record omitted).

The appellant was charged with five counts of burglary, four counts of rape, three counts of robbery, two counts of theft by unlawful taking or disposition, one count of involuntary deviate sexual intercourse and one count of receiving stolen property. The case against appellant was primarily based upon: 1) inculpatory statements made by the appellant while in custody; 2) items seized under the authority of a search warrant from the residences of the appellant’s parents and girlfriend that were identified as belonging to the victims; and 3) samples of hair and fingerprints recovered at the homes of the victims that matched the appellant’s hair and fingerprints.

During the course of the trial, on March 29, 1988, the Commonwealth called Christopher Kelly, the Homestead Chief of Police, to the stand. Over defense objection, the prosecutor posed the following question:

Q. Chief Kelly, have you gotten any reports of crimes ' that involve the early morning burglaries including rapes and robberies in that burglary involving the homes of elderly women living alone since September 3rd, 1987?

A. No, sir, none.

N.T. Vol. 2 at 250.

A jury convicted the defendant of all charges, and on January 3, 1989, he was sentenced to a total of 100 to 200 years imprisonment. On appeal, he argues that the trial court committed reversible error by: 1) denying a motion to sever; 2) denying a motion for change of venue; 3) denying a motion for change of venire; 4) denying a motion to suppress statements based upon the delay between arrest and arraignment; 5) denying a motion to suppress items seized pursuant to a search warrant; 6) denying a motion to suppress statements as the fruit of an illegal arrest; 7) denying a motion for mistrial on grounds of prosecutorial misconduct; 8) precluding defense counsel from arguing the voluntariness of statements to the jury; and 9) refusing to allow defense counsel to call the prosecutor representing the Commonwealth at the suppression hearing as a witness at the suppression hearing. As to these issues, we affirm on the basis of the well reasoned opinion of the trial court.

Appellant also contends that the court should have barred Chief Kelly from testifying that no rapes and burglaries of elderly women were reported in Homestead after appellant had been apprehended. This claim involves a question of first impression. We are aware of no appellate decision in Pennsylvania addressing whether the Commonwealth may introduce testimony indicating that signature crimes ceased to occur after the defendant was arrested. We conclude that the trial court’s decision to admit this testimony was correct based upon the application of general evidentiary principles.

Evidence is relevant if it tends to establish some material fact or if it tends to make a fact at issue more or less probable. Commonwealth v. Scott, 480 Pa. 50, 54, 389 A.2d 79, 82 (1978). In the instant case, the principal fact in dispute was the identity of the person who had robbed and sexually assaulted elderly women on five occasions. Since the five assaults bore a high degree of similarity, one might reasonably infer that the same individual was responsible for all of the offenses. See, e.g., Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955); L. Packel & A. Poulin, Pennsylvania Evidence, § 405.1(5) (1987). It would also be reasonable to infer that further crimes that fit the same distinctive pattern would likely be the work of the same party. Thus, if additional crimes with the same characteristics occurred after the defendant had been taken into custody, it would be more probable that the defendant was innocent and the true culprit was still at large. Conversely, if no further crimes of the same type occurred, it would be less probable that an innocent person had been wrongfully accused.

We find that where a series of crimes is so similar as to bear the marks of a common signature, the cessation of such crimes at the time of the defendant’s arrest may be relevant to the question of the defendant’s guilt or innocence. In the instant case, appellant does not dispute that Chief Kelly’s testimony was relevant. He argues instead that this testimony should not have been admitted because it was unduly prejudicial. Even relevant evidence is subject to exclusion if its probative value is substantially outweighed by the danger of unfair prejudice or confusion. Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 243, 433 A.2d 40, 47 (1981). See Commonwealth v. Boyle, 498 Pa. 486, 493-95, 447 A.2d 250, 254 (1982). It is the function of the trial court to balance the prejudicial effect of the evidence against its probative value, and the trial court’s ruling as to admissibility will not be disturbed absent an abuse of discretion. Commonwealth v. Dollman, 518 Pa. 86, 89-91, 541 A.2d 319, 321 (1988). We hold that the trial court did not abuse its discretion.

Chief Kelly’s testimony had significant probative value, especially in light of the chronological sequence of the five signature crimes. All of the attacks on elderly Homestead residents were committed between February 2, 1987 and August 25, 1987. The longest interval between any two of the crimes was nine weeks. Appellant was arrested nine days after the last incident, and he was put on trial approximately twenty-eight weeks after the last incident. During the time that appellant was in custody awaiting trial, a period of almost seven months, no more crimes fitting the established pattern were reported. The fact that no more crimes were reported prior to appellant’s trial would be less noteworthy if appellant had been tried within a few weeks of his arrest. The substantial delay between appellant’s arrest and trial bolstered the inference that crimes had ceased to occur because appellant was no longer at liberty.

We cannot say that the prejudicial nature of the Chief’s testimony deprived appellant of a fair trial. In every prosecution, the Commonwealth’s evidence is prejudicial in the sense that it is detrimental to the defendant’s case. Evidence should be excluded on grounds of prejudice only if it has “an undue tendency to suggest decision on an improper basis” Whistler Sportswear, Inc., 289 Pa.Super. at 243, 433 A.2d at 47, or if it would “divert the jury’s attention away from [its] duty of weighing the evidence impartially.” Commonwealth v. Taliaferro, 309 Pa.Super. 446, 453, 455 A.2d 694, 698 (1983). See Commonwealth v. Moore, 389 Pa.Super. 473, 482-483, 567 A.2d 701, 706 (1989); L. Packel & A. Poulin, Pennsylvania Evidence § 403; McCormick on Evidence § 185 at 545-46 (3rd ed. 1984). Judged by this standard, evidence of the absence of post-arrest crimes was properly admitted. The Chief’s testimony was not inflammatory and would not have aroused fixed hostility toward the defendant. Nor was the testimony confusing; the prosecutor’s questioning of Chief Kelly was succinct and straightforward and did not require an extensive inquiry into collateral matters. Under these circumstances, we see no reason why the jury would not have been able to conduct its deliberations in a fair and rational manner.

We do not adopt a per se rule that the prosecution may introduce evidence of a decline in crime statistics following the defendant’s incarceration. A trial judge must exercise caution when balancing the probative value and prejudicial effect of such evidence. In many cases, the probative value of such evidence will be negligible. For example, it may do little to advance the search for truth to permit the prosecution to refer to the absence of post-arrest crimes where the defendant has not been charged with committing a pattern of highly similar offenses or where the defendant has been placed on trial shortly after being taken into custody. However, where the trial court has reasonably determined that the probative value of evidence is not outweighted by its prejudicial effect, the evidence should be admitted and its weight should be determined by the jury.

Once the evidence is admitted, defense counsel may choose to protect the defendant’s interests by suggesting to the jury alternative explanations for evidence of an absence of post-arrest crimes. There are many possible reasons for an absence of additional reported crimes that are consistent with the defendant’s innocence. Police testimony concerning crime reports could be inaccurate. Further signature crimes may have been committed but never reported to the police. The true culprit may have died, or left the community, or been incarcerated on unrelated charges about the time of the defendant’s arrest. Or perhaps the true culprit has decided to refrain from further acts of violence in order to shift suspicion onto the defendant and thereby escape detection. The jury may assess the relative merits of each of these alternative explanations. The jury should be permitted to reach an informed decision as to guilt or innocence after considering all relevant and competent evidence in light of the arguments of counsel.

Finally, we note that the admission of Chief Kelly’s testimony is consistent with the decision of this court in Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981). In Rini, the defendant was charged with exposing himself to two high school students who were crossing a bridge on their way to morning classes. The trial judge allegedly barred the defense from introducing testimony that six days before the incident in question, a different man who bore a physical resemblance to the defendant had exposed himself to other high school students who were crossing the same bridge on their way to morning classes. On appeal, we held that “the defense may introduce evidence that someone else committed a crime which bears a highly detailed similarity to the crime with which the defendant is charged.” Id., 285 Pa.Super. at 480, 427 A.2d at 1388. Under Rini, appellant would have had the right to introduce evidence that other assaults that conformed to the pattern of the charged offenses had taken place. If the defense may attempt to demonstrate innocence by presenting evidence of highly similar crimes, it stands to reason that in an appropriate case the prosecution may present the absence of other crimes as evidence of guilt.

We find that the introduction of Chief Kelly’s testimony was proper. Judgment of sentence is affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting.

I dissent from the Majority’s holding that the Commonwealth may introduce evidence at trial to the effect that following a defendant’s arrest, no further crimes of the type of which the defendant stands accused were reported. In this case the defendant was charged in a highly distinctive series of crimes involving sexual assaults of elderly occurring in the Borough of Homestead, Allegheny County, Pennsylvania. Admittedly, the crimes committed were of a unique pattern as pointed out in the Majority Opinion. During the trial the Commonwealth, over objection, asked the following question:

Q. Chief Kelly, have you gotten any reports that involved the early morning burglaries including rapes and robberies involving the homes of elderly women living alone since September 3, 1987?

A. No, Sir, none.

N.T. Vol. 2 at 250.

First, it is my view that whether or not the police department received any reports of crime, particularly, rape, is not prohibitive of the guilt or innocence of the defendant. For example, the same type of crimes could have occurred in neighboring municipalities and while the Chief’s answer would be correct, it would not be accurate with regard to whether the defendant’s arrest ended this specific type of criminal activity.

Also, I believe that this testimony is highly prejudicial and not prohibitive of the defendant’s guilt. The Majority states on page 450 of its Opinion:

Once the evidence is admitted, defense counsel may choose to protect the defendant’s interests by suggesting to the jury alternative explanations for evidence of an absence of post-arrest crimes. There are many possible reasons for an absence of additional reported crimes that are consistent with the defendant’s innocence. Police testimony concerning crime reports could be inaccurate. Further signature crimes may have been committed but never reported to the police. The true culprit may have died, or left the community, or been incarcerated on unrelated charges about the time of the defendant’s arrest. Or perhaps the true culprit has decided to refrain from further acts of violence in order to shift suspicion onto the defendant and thereby escape detection. The jury may assess the relative merits of each of these alternative explanations. The jury should be permitted to reach an informed decision as to guilt or innocence after considering all relevant and competent evidence in light of the arguments of counsel.

Unfortunately, while the Majority recognizes all of the problems with admitting this type of testimony and the reasons that go to its lack of reliability, the Majority opines that argument of counsel can explain away direct testimony presented at trial. This analysis ignores the fact that arguments of counsel are not evidence and that defense counsel’s explanation during summation would not necessarily be persuasive even though one of the many factors giving rise to the lack reliability of this testimony has, in fact, occurred. Therefore, I dissent.

      . The issue of whether the court erred in refusing to order the prosecutor to testify as a witness at the suppression hearing was not specifically addressed in the trial court opinion, presumably because it was waived. On the question of pre-arraignment delay, see also Commonwealth v. DeBooth, 379 Pa.Super. 522, 526-30, 550 A.2d 570, 573-74 (1988).


author: CERCONE, Judge:

text:
    576 A.2d 371
    COMMONWEALTH of Pennsylvania v. Thomas William GRAHAM, Appellant.
    Superior Court of Pennsylvania.
    Argued March 28, 1990.
    Filed May 31, 1990.

      Peter H. Shaffer, Butler, for appellant.
    Robert F. Hawk, Asst. Dist. Atty., Butler, for Com., appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered July 6, 1989 in the Court of Common Pleas of Butler County, Criminal Division. We affirm.

On May 5, 1988, charges were filed against appellant, Thomas William Graham, stemming from an incident that occurred on that date at around midnight. The trial court found that while under the influence of drugs and alcohol, appellant took two loaded guns and went under a viaduct in the City of Butler in apparent contemplation of suicide. Appellant’s father, James A. Graham, Sr., was present at the scene attempting to dissuade his son from committing suicide. When police officers responded to a report of gunfire, appellant shouted at them and asked them to shoot him. Eventually, appellant fired a shot at Lieutenant Thomas Trinko of the Butler City Police Department. After a violent struggle with the police, appellant was taken into custody.

On April 18, 1989 a jury found appellant guilty of aggravated assault, recklessly endangering another person, and crimes committed with firearms. A non-jury verdict was also rendered on the same date finding appellant guilty of criminal mischief. The Commonwealth filed a motion requesting the trial court to impose the mandatory sentence for offenses committed with firearms pursuant to 42 Pa.C.S.A. § 9712(a). Appellant’s post-verdict motions were denied, and on July 6, 1989, he was sentenced to serve concurrent terms of incarceration of five (5). to ten (10) years for aggravated assault, twelve (12) to twenty-four (24) months for recklessly endangering another person, twelve (12) to twenty-four (24) months on the charge of crimes committed with firearms, and one (1) to two (2) months for criminal mischief.

The instant timely filed appeal raises three issues for our consideration: (1) whether the lower court erred in denying appellant’s motion to dismiss under Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A.; (2) whether the trial court erred in the additional instructions made to the jury during the course of deliberations; and (3) whether appellant was charged and convicted under the wrong subsection of the Pennsylvania Crimes Code so that the verdict was contrary to the law and evidence. We shall address appellant’s claims seriatim.

Initially, appellant argues that his rights under Rule 1100 were violated because he wás held in continuous pre-trial custody from May 6, 1988 through the date of trial on April 17, 1989. Appellant states that although he should have been released on bond after he had been incarcerated for one hundred eighty (180) days prior to trial, he was improperly held in jail because the Pennsylvania Board of Probation and Parole had lodged a detainer against him. Thus, appellant argues, even if the lower court had ordered him released on nominal bail, he would have remained incarcerated because of the detainer. We disagree with appellant’s interpretation of Rule 1100.

As our supreme court has explained, the court adopted Rule 1100 pursuant to their supervisory powers as a measure designed to reduce the backlog of cases awaiting trial. and to provide a rule of criminal procedure fixing a maximum time limit within which to bring an accused to trial. Commonwealth v. Smith, 524 Pa. 72, -, 569 A.2d 337, 338 (1990). The subsections of Rule 1100 which are relevant to appellant’s case contain the following provisions:

(c) In determining the period for commencement of trial, there shall be excluded therefrom:
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or his attorney;
(ii) any continuance granted at the request of the defendant or his attorney.
(e) No defendant shall be held in pre-trial incarceration for a period exceeding one hundred eighty (180) days excluding time described in subsection (c) above. Any defendant held in excess of one hundred eighty (180) days is entitled upon petition to immediate release on nominal bail.

Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A.

The record indicates that appellant was arrested on May 5, 1988, the same day on which the complaint was filed against him. Under Rule 1100(a)(2), trial was thus required to commence within one hundred eighty (180) days of that date. Appellant’s trial did not begin until April 17, 1989, three hundred thirty-two (332) days after the complaint was filed. However, delay caused by a defense request for psychiatric evaluation and the subsequently necessary competency hearing is attributable to the unavailability of the defendant. Commonwealth v. Millard, 273 Pa.Super. 523, 531-32, 417 A.2d 1171, 1176 (1979); Commonwealth v. Reese, 237 Pa.Super. 326, 330, 352 A.2d 143, 145 (1975). Defense counsel filed a request for psychiatric examination on May 20, 1988. The examination was conducted at Butler Memorial Hospital in August of 1988. On August 25, 1988, defense counsel filed a notice of insanity. A hearing to determine appellant’s competency was scheduled for September 16, 1988. Thus, a delay of one hundred nineteen (119) days was directly attributable to appellant’s unavailability for trial.

Appellant’s trial was scheduled for November of 1988. The record indicates, however, that on November 29, 1988, appellant notified the lower court that he had entered into plea negotiations with the District Attorney’s Office. On that date appellant filed a motion requesting that sentencing be held at the time of the guilty plea colloquy. The lower court responded the same day by entering an order directing that appellant be sentenced at the time of plea entry. The order of November 29, 1988 was contingent on the lower court receiving a pre-sentence report from the Pennsylvania Board of Probation and Parole prior to sentencing. The pre-sentence report was completed and available as of December 23, 1988. That same day the lower court scheduled a guilty plea colloquy and sentencing hearing for January 11, 1989. Although the hearing was continued on January 11, 1989, the record gives no reason for the continuance.

Tendering a guilty plea signifies “commencement of trial” for Rule 1100 purposes whether that plea is accepted immediately by the court or taken under advisement. Commonwealth v. Whittall, 304 Pa.Super. 258, 262, 450 A.2d 669, 671-72 (1982); Commonwealth v. Lewis, 295 Pa.Super. 61, 67, 440 A.2d 1223, 1226 (1982) (en banc). In the ordinary case, the guilty plea is entered first and followed at a later date by a sentencing hearing. See, e.g., Commonwealth v. Jensch, 322 Pa.Super. 304, 469 A.2d 632 (1983); Commonwealth v. DiSantis, 293 Pa.Super. 154, 437 A.2d 1252 (1981). Under such circumstances, the period after entry of the guilty plea during which the court determines the appropriate sentence is not part of the Rule 1100 calculation. Commonwealth v. Jensch, 322 Pa.Super. at 312, 469 A.2d at 636; Commonwealth v. DiSantis, 293 Pa.Super. at 158, 437 A.2d at 1254. In the instant case, appellant’s trial and/or guilty plea colloquy was postponed at his own request so that sentencing could be accomplished at the colloquy. While it would be unfair to penalize appellant for exercising his constitutional rights, it would be unreasonable to expect the Commonwealth to schedule a trial when the accused has indicated during good faith plea bargain negotiations that he will enter a guilty plea. We therefore hold that under the circumstances presented here, the forty-three (43) days between November 29, 1988 and January 11, 1989 is chargeable to appellant under Rule 1100 because the delay of trial during that period was the result of his motion requesting sentencing at the time of the guilty plea colloquy.

Appellant is thus chargeable with a total of one hundred sixty-two (162) days delay. When this total is subtracted from the three hundred thirty-two (332) days which elapsed between the date on which the complaint was filed and the date on which trial commenced, the result shows that appellant was brought to trial within one hundred seventy (170) days for the purposes of Rule 1100. We conclude that appellant’s rights under Rule 1100 were not compromised, and we affirm the ruling of the lower court on this issue.

The second claim raised by appellant is that the trial court erred in the response made to the jury’s request, during deliberations, for clarification of the word “intent” and the manner in which the term applies to the crime of aggravated assault. The gravamen of appellant’s complaint is that the supplemental jury charge actually given was not properly responsive to the jury’s request, failed to explain how the term “intent” relates to aggravated assault, and improperly included confusing information relating to voluntary intoxication. We note initially that the decision of whether to accede to a jury request for further instructions during deliberations is left to the discretion of the trial court. Commonwealth v. Tolassi, 489 Pa. 41, 57, 413 A.2d 1003, 1011 (1980). Furthermore, the scope of such supplemental instructions, when given, is within the sound discretion of the lower court. Commonwealth v. Perkins, 473 Pa. 116, 132, 373 A.2d 1076, 1084 (1977) (per Eagen, C.J. with two Justices concurring and three Justices concurring in the result); Commonwealth v. Tervalon, 463 Pa. 581, 592, 345 A.2d 671, 677 (1975). It is well settled that appellate evaluation of a jury instruction must be based on an examination of the instruction as a whole to determine whether it was fair or prejudicial. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied sub nom. Zettlemoyer v. Pennsylvania, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 rehearing denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). Error cannot be predicated on isolated excerpts; rather it is the general effect of the charge that controls. Commonwealth v. Myers, 376 Pa.Super. 41, 50, 545 A.2d 309, 314 (1988), allocatur denied, 522 Pa. 588, 561 A.2d 741 (1989).

The instant record reveals that the jury’s question was two-fold: “What is the definition of intent and how does it apply to the crime of aggravated assault?” N.T. 3/17-18/89 at 193-94. Contrary to appellant’s contention that the trial court simply reiterated the standard jury instruction regarding the intoxication defense, the trial court explained intent in the context of aggravated assault:

In order to find [that] the defendant attempted to [commit aggravated assault] you must find that he engaged in conduct which constituted a substantial step towards causing serious bodily injury to Lieutenant Trinko, and that his conduct in this regard was intentional, or, in other words, that it was his conscious object to cause such injury,____

Id. at 194. After stating that it was the Commonwealth’s responsibility to establish all the required elements beyond a reasonable doubt, the trial judge also explained that voluntary intoxication or a voluntarily drugged condition is not a defense to a criminal charge. Id. at 195-96.

We agree with appellant that the options available to the lower court included the possibility of requesting the jury to be more specific as to their difficulty. See, e.g., Commonwealth v. Carr, 370 Pa.Super. 1, 535 A.2d 1120 (1987), allocatur denied, 518 Pa. 648, 544 A.2d 960 (1988). However, it was also within the power of the trial court to decide whether additional information which was not requested by the jury was necessary to assist the jury in its understanding of the issue involved. Commonwealth v. McComb, 462 Pa. 504, 508, 341 A.2d 496, 498 (1975), citing Commonwealth v. Pasco, 332 Pa. 439, 446, 2 A.2d 736, 739 (1938). Such decisions are left to the sound discretion of the trial court. Id. As it was well within the prerogative of the trial judge in the instant case to make the supplemental charge without requesting the jury to amplify upon their question, we find no abuse of discretion.

Appellant concedes that not only did he testify on direct examination to the effect that he had ingested a large quantity of alcohol on the day of the incident in question, but that the prosecution made an issue of his intoxication during cross-examination. Appellant also concedes that in both the original charge and in the supplemental instruction, the lower court charged the jury in accordance with Pennsylvania Standard Criminal Jury Instruction 8.308(A), pertaining to the effect of voluntary intoxication on intent. Under these circumstances, we cannot find that it was illogical, unfair, or prejudicial to instruct the jury regarding the impact of voluntary intoxication on appellant’s ability to form the intent to commit aggravated assault. We therefore affirm on this issue.

Appellant’s final claim is that it was error to try him under § 2702(a)(2) of the Crimes Code when the information lodged in the instant case charged a violation of § 2702(a)(1). The relevant provisions of § 2702 state the following:

§ 2702. Aggravated assault
(a) Offense defined. — A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
(2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to a police officer or firefighter in the performance of duty or to an employee of an agency, company or other entity engaged in public transportation, while in the performance of duty;....

18 Pa.C.S.A. § 2702. The record shows that although the original complaint filed by the Butler City Police charged appellant with violating § 2702(a)(2), the information filed by the District Attorney indicated that appellant had violated subsection (a)(1). The theory pursued at trial by the Commonwealth was clearly based on subsection (a)(2). The thrust of appellant’s argument is that it was unfair to try and sentence him under subsection (a)(2), which carries a mandatory sentence of five (5) to ten (10) years incarceration if a firearm was involved in the assault, when the information charged only subsection (a)(1) which carries a less severe penalty.

Although it was error to try appellant under a different subsection of the Crimes Code from the subsection listed in the information, the record establishes beyond a reasonable doubt that the error did not contribute to the verdict and was therefore harmless. As our supreme court has explained, the doctrine of harmless error is a technique of appellate review designed to advance judicial economy by obviating the necessity for a retrial where the appellate court is convinced that trial error was harmless beyond a reasonable doubt. Commonwealth v. Thornton, 494 Pa. 260, 266, 431 A.2d 248, 251 (1981). “Its purpose is premised on the well-settled proposition that ‘[a] defendant is entitled to a fair trial but not a perfect one.’ ” Id., quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953). A variance between allegations in the information and the proof offered at trial is harmless error unless the defendant could be misled at trial, prejudicially surprised in his efforts to prepare a defense, precluded from anticipating the prosecutions’s proof or otherwise impaired with respect to a substantial right. Commonwealth v. Lohr, 503 Pa. 130, 135-36, 468 A.2d 1375, 1378 (1983); Commonwealth v. McFadden, 384 Pa.Super. 444, 450, 559 A.2d 58, 60 (1989), allocatur denied, 524 Pa. 595, 568 A.2d 1246 (1989). Error in the abstract does not require a new trial. Commonwealth v. Pittman, 320 Pa. Super. 166, 177, 466 A.2d 1370, 1375 (1983). “Error which does not result in prejudice to the accused or deny the accused a fair trial does not warrant an appellate court’s reversal of the trial court’s denial of a motion for a new trial.” Id.

In the instant case it is clear that appellant was not prejudiced in his defense by the distinctions between subsections (a)(1) and (a)(2). The evidence presented to the jury would, of necessity, have been the same under either subsection: i.e., that appellant used a firearm to shoot at a police officer, Lieutenant Trinko, during the course of that officer’s attempt to arrest appellant. Thus, appellant could not have been misled at trial, prejudicially surprised in his efforts to prepare a defense or precluded from anticipating the prosecution’s offer of proof. Appellant concedes that the only factual controversy relating to this issue concerns the question of whether he intentionally shot directly at a police officer or merely fired his weapon in the general vicinity of a police officer. We find this to be a distinction without a difference in relation to the question of the proper subsection for the charge, and we uphold the ruling of the trial court. See also U.S. v. Agnes, 753 F.2d 293 (3d Cir.1985), aff'g 581 F.Supp. 462 (E.D.Pa.1984) (no prejudicial variance between indictment and proof at trial where original indictment charged both robbery and extortion, indictment was subsequently reduced to extortion only, but sufficient evidence was presented to the jury to support appellant’s conviction on both charges).

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 2702.

      . Id. § 2705.

      . Id. § 6103.

      . Id. § 3304.

      . The record indicates that the hearing scheduled for September 16, 1988 did not take place. It was instead postponed until November 21, 1988, the date on which appellant's case was listed for trial. We need not address the issue of whether the time delay caused by the postponement is attributable to appellant or to the Commonwealth as such an inquiry is not necessary to resolve the instant appeal.