author: WIEAND, Judge:

text:
    571 A.2d 1079
    COMMONWEALTH of Pennsylvania v. Anthony James BONACE, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1989.
    Filed March 6, 1990.

      Wayne H. Hundertmark, Cranberry, for appellant.
    William G. Martin, Jr., Dist. Atty., Franklin, for Com., appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge:

Anthony James Bonace was tried by jury and was found guilty of two counts of burglary, two counts of theft by unlawful taking, and one count of criminal conspiracy. Post-trial motions were denied, and Bonace was sentenced to pay fines totalling three thousand ($3,000) dollars, to make restitution, and undergo imprisonment for a total of not less than twenty-five (25) months nor more than seventy-two (72) months. On direct appeal from the judgment of sentence, Bonace asserts that the trial court erred when it refused to hold, as a matter of law, that the police conduct in this case had been so outrageous as to prevent conviction on due process grounds. He contends also that the trial court erred when it denied defense motions for mistrial after the Commonwealth, on four separate occasions during trial, had elicited evidence of prior criminal activity. These issues are lacking in merit; and, therefore, wé affirm the judgment of sentence.

The evidence introduced by the Commonwealth at trial disclosed that on or about April 10, 1987, James Wheatcroft went to appellant’s home in Youngstown, Ohio, where he was asked to participate with appellant in the commission of several burglaries. Wheatcroft purported to agree, but thereafter he contacted Joseph Ennett, of the Bureau of Alcohol, Tobacco and Firearms, and Detective Michael Hoza, of the Poland Township Police Department, and told them of appellant’s plans. He said that appellant had referred specifically to the entry of a garden or tractor shop in Greenville, Mercer County, Pennsylvania. Wheatcroft agreed to inform Ennett and Hoza when a date was set for the burglaries and to wear a body wire on that date. Wheatcroft learned on the morning of April 15, 1987, that the burglaries were to be committed that night. Participating in the preliminary discussion, in addition to Wheatcroft and appellant, were James Miller and Jenny Keller. After this discussion, Wheatcroft contacted Ennett and Hoza and told them of the plans which had been made and that his pickup truck was to be used for the trip to Pennsylvania. He also told them that Miller would be armed. Ennett thereafter arranged for surveillance, which included participation by the Bureau of Alcohol, Tobacco and Firearms, the Department of the Treasury, the Poland Township and City of Youngstown Police Departments, and the Pennsylvania State Police. Later in the day, Wheatcroft was fitted with a body wire, and an electronic tracking device was placed in the taillight of his truck.

When the would-be burglars left Ohio, they were followed by law enforcement personnel in unmarked cars. They entered Pennsylvania on Interstate Route 80 and proceeded to Route 8, in Berkeyville, Venango County, where they exited the interstate highway. They then drove north, passed through the City of Franklin, and turned into Pone Lane in Sandycreek Township. After they had circled the area several times, Wheatcroft and Miller left the vehicle and broke into a home owned by Paul Lehman. While Miller and Wheatcroft were inside the home, appellant and Keller drove around the block. All the burglars remained in radio contact with each other, however, and actually discussed the items which were to be taken. When Miller and Wheatcroft left the Lehman home, they were directed by appellant to a second home located a distance of one hundred yards away. This home, which was owned by John Hricsina, was also entered, and various items of personal property were taken. The burglars were later apprehended in Franklin, with the help of local police.

At trial, appellant demurred to the Commonwealth’s evidence; and when his demurrer was denied, he rested without offering evidence. The jury, although fully instructed on entrapment, rejected this defense and found appellant guilty of all charges. On appeal, appellant argues that police conduct was “outrageous” because they allowed the burglaries to occur despite prior knowledge that the crimes were to be committed. Inasmuch as the police knew of the intended burglaries, he argues, they must be deemed accomplices and guilty of an “outrageous” entrapment.

The evidence at trial was that the police had not intended to allow burglaries to occur but had contemplated an arrest as soon as their electronic surveillance produced evidence of a criminal conspiracy. Faulty equipment and hilly terrain, however, permitted the receipt of only an intermittent signal from Wheatcroft’s truck and the wire which he was wearing. In addition, because of unfamiliarity with Venango County, the police lost the pickup truck which they were following. As a result, police did not become aware of the location of the first burglary until after Miller and Wheat-croft had already entered the Lehman home. They then decided not to interrupt the burglary in progress, because they had been told that Miller was armed and suspected that residents might be present in the home. The police also did not know that a second burglary was to be committed and became aware of it only after Miller and Wheat-croft had commenced their entry of the home. Again, an attempt to make an arrest was delayed.

The trial court evaluated appellant’s contention that the police had violated his due process rights in the following manner:

Although the officers’ conduct, by their own candid admission, fell short of the level of professionalism in communication and coordinating skills that one would expect from the various law enforcement agencies involved (Department of Treasury, Youngstown City Police, Pennsylvania State Police, inter alia), we do not find their conduct “outrageous”. Before finding conduct “outrageous” we would be required to find extensive and nefarious police involvement in, and encouragement of, criminal activities. Com. v. Delligatti, [371 Pa.Super. 315], 538 A.2d 34 (Pa.Superior Ct.1988); Com. v. Mathews, 347 Pa.Superior Ct. 320, 500 A.2d 853 (1985); U.S. v. Twigg, 588 F.2d 373 (3d Cir.1978); U.S. v. West, 511 F.2d 1083 (3d Cir.1975); Hampton v. U.S., 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) (plurality opinion); U.S. v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). No such evidence exists. On the contrary, the evidence supports the finding that Defendant was predisposed to committing these burglaries. He implemented the plans to do so. He was completely in charge of the operation. The fact that the police officers were unaware of the next move that the Defendant intended to make— actually enter a particular house — and [failed to] prevent that entry is not evidence of “outrageous” conduct on their part, but, rather, demonstrates the police role as an eavesdropper without control over the developments and undermines Defendant’s entrapment defense.

This rationale, which we adopt, is dispositive of appellant’s due process argument. Cf. Commonwealth v. Lee, 262 Pa.Super. 218, 221, 396 A.2d 724, 725 (1978) (merely affording opportunities or facilities for the commission of crime by one who already has the necessary criminal intent does not defeat the prosecution).

Appellant’s reliance upon Commonwealth v. Mathews, 347 Pa.Super. 320, 500 A.2d 853 (1985), is misplaced. In that case, the Superior Court held that “[e]ven where entrapment is not proved, police involvement in criminal activity may be so outrageous that a prosecution will be barred on due process grounds.” Id. at 321, 500 A.2d at 854. See also: Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); United States v. Twigg, 588 F.2d 373 (3d Cir.1978); Commonwealth v. Delligatti, 371 Pa.Super. 315, 538 A.2d 34 (1988). In Mathews, where the defendants were convicted of attempting to manufacture methamphetamine, a controlled substance, the police had provided the defendants with money for the purchase of necessary chemicals to manufacture the substance and also for the rental of a residence where the methamphetamine could be manufactured. Police also had helped move necessary equipment into the home and instructed the defendants step-by-step in the manufacturing process. A majority of the Superior Court concluded that such “extensive police involvement in, and encouragement of” illegal activity was so outrageous as to violate due process. Id. at 327-328, 500 A.2d at 857. Police conduct had been comparable “ ‘to a burglar being instructed on a step-by-step turn of a vault dial by the police so he [might] consummate the act.’ ” Id. at 328, 500 A.2d at 857, quoting the trial court’s opinion. These facts are not at all similar to the facts of the instant case. Here, the impetus for the several burglaries, as well as the planning thereof and the means for carrying out the same, came from the evil minds of the burglars themselves. The police did nothing more than allow them to commit their criminal acts before they were arrested. The poor quality of the police surveillance while the burglaries were being committed did not excuse appellant’s criminal acts or constitute a bar to prosecution therefor.

Whether to declare a mistrial is a decision which rests within the sound discretion of the trial court, whose exercise thereof will not be reversed absent an abuse of. such discretion. Commonwealth v. Hamm, 325 Pa.Super. 401, 412, 473 A.2d 128, 133 (1984). Clear references to prior unrelated criminal conduct by a defendant generally warrant the granting of a defense motion for mistrial, because the commission of one crime is not proof of the commission of another and because the effect of such evidence is to create unfair prejudice against the defendant. Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981); Commonwealth v. Riggins, 374 Pa.Super. 243, 251, 542 A.2d 1004, 1008 (1988); Commonwealth v. Thomas, 361 Pa.Super. 1, 14-15, 521 A.2d 442, 449-450 (1987). However, not all references which may indicate prior criminal activity warrant reversal. Mere “passing references” to prior criminal activity will not necessarily require reversal unless the record illustrates definitively that prejudice resulted from the reference. Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979); Commonwealth v. Riggins, supra. The nature of the reference and whether the remark was intentionally elicited by the Commonwealth are additional factors to be considered in determining whether a mistrial is necessary. Commonwealth v. Pursell, 508 Pa. 212, 230, 495 A.2d 183, 192 (1985); Commonwealth v. Williams, 470 Pa. 172, 178, 368 A.2d 249, 252 (1977). See also: Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162 (1981); Commonwealth v. McEachin, 371 Pa.Super. 188, 537 A.2d 883 (1988); Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984). Moreover, “[a]n immediate curative instruction to the jury may alleviate [the] harm [which would otherwise result] from reference to prior criminal conduct.” Commonwealth v. Morris, 513 Pa. 169, 176, 519 A.2d 374, 377 (1986). See also: Commonwealth v. Lawson, 519 Pa. 175, 546 A.2d 589 (1988); Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (1986); Commonwealth v. Kubiac, 379 Pa.Super. 402, 550 A.2d 219 (1988).

The first remark complained of by appellant in this case occurred during the prosecuting attorney’s opening statement to the jury. While highlighting the evidence to be introduced on behalf of the Commonwealth, the prosecutor said:

There had been some talk on the way over — you’re going to hear that Agent Ennett recalls a conversation about talking about going over to Greenville or Greensburg, I guess was maybe the word used, to burglarize a lawn and garden shop.

Contrary to appellant’s assertion, this comment did not relate to prior criminal conduct by appellant. It pertained, rather, to statements which appellant had made to Wheat-croft in furtherance of his plan to enter Pennsylvania for the purpose of committing a burglary. This conversation was not rendered irrelevant or immaterial merely because the conspirators subsequently decided to alter the goal of their nefarious activities in Pennsylvania.

During examination of the informant, Wheatcroft, the prosecutor asked the witness to relate conversations which had occurred during the trip from Ohio to Pennsylvania on the night of April 15,1987 and which pertained to the plans for that evening. Wheatcroft responded: “We talked about breaking in as many houses as we could, making a big haul, past experiences, et cetera, et cetera.” Appellant contends that Wheatcroft’s reference to “past experiences” could have been understood by the jury to refer to prior burglaries. We find therein no basis for relief. The witness’s answer was nothing more than a passing reference to a prior association and did not specify either criminal or unseemly conduct. The remark, moreover, was made in response to a proper question and was not elicited for the purpose of prejudicing appellant unfairly. After appellant had objected, the trial court offered to provide a cautionary instruction, but its offer was declined by defense counsel. Under these circumstances, the trial court did not abuse its discretion by denying appellant’s motion for mistrial.

During the cross-examination of Pennsylvania State Trooper Lucian Paglia, defense counsel inquired why the police had allowed two burglaries to occur without taking action, and the witness responded:

Because our intent [ ] with the wire was to wait and see until we got enough, and we would assume from what we were told from Wheatcroft, the way [appellant] always operated, that he would say this is what we were going to do, and once that was heard that is when we would effect an arrest.

The trial court denied a motion for mistrial based upon this answer, but offered to give a cautionary instruction. This was declined by the defense. We find no abuse of discretion in the trial court’s denial of the defense motion for mistrial. The trooper’s remark was elicited by defense counsel and was a fair response to the question asked.

Finally, appellant argues that a mistrial should have been granted when Agent Ennett, asked by the prosecutor about information which had been supplied by Wheatcroft, testified that “[h]e had information on an interstate burglary ring.” Appellant objected to this answer. In response, the trial court gave an extensive curative instruction as follows:

This witness has said something about the fact of investigating an interstate burglary ring. That may or may not be the case. In any event, it’s not for your consideration. You should disregard that statement as though it has never been stated. That means in the course of your deliberations, you won’t talk about it, you won’t think about it. It’s not a factor in this case____ It is not for you to pass upon whether or not the defendant in this case Mr. Bonace is a good person. Whether he’s a good person or not is not for you to consider. The only thing you are to consider here today is whether or not Mr. Bonace was involved in the burglary of the two residences____ Whether or not he’s a good person and whether or not he ever committed a crime before or not, whether or not he goes to church every Sunday, that is of no concern of yours. Therefore, the reference by the officer to there being an interstate burglary ring is immaterial, it’s not relevant and put it aside and strike it from your memory. I’m asking you to do that and the law requires you to do it. The reason for it is because all we are concerned [ ] about is what occurred on the 15th of April. Okay.
To be absolutely [sure] that.you understand, whether or not there was an interstate burglary ring has nothing to do with why we are here today, and you are totally to disregard that comment in your further deliberations in the case. It has absolutely nothing to do with this case. Whether the jury’s exposure to an improper reference to

prior criminal conduct can be cured by a prompt, cautionary instruction depends upon a consideration of all the attending circumstances. Commonwealth v. Morris, supra 513 Pa. at 177, 519 A.2d at 377; Commonwealth v. Richardson, supra at 526, 437 A.2d at 1165. In reviewing the decision of the trial court to give a cautionary instruction instead of aborting an otherwise error-free trial, we must determine whether the court abused its discretion or committed an error of law. Commonwealth v. Shawley, 522 Pa. 475, 481, 563 A.2d 1175, 1177-1178 (1989) (plurality opinion). See also: Commonwealth v. Morris, supra 513 Pa. at 175, 519 A.2d at 376; Commonwealth v. Heaton, 504 Pa. 297, 302, 472 A.2d 1068, 1071 (1984). Instantly, the record discloses that the witness’s reference to an interstate burglary ring was not intentionally elicited by the prosecutor. The prosecutor also did not attempt to take advantage of the witness’s reference. The trial court sustained a defense objection and gave an immediate and careful cautionary instruction. The court’s forceful instruction to disregard the witness’s improper remark, we conclude, was sufficient to cure the prejudice, if any, which may otherwise have been caused. See, e.g.: Commonwealth v. Richardson, supra (mistrial was unnecessary where jury was instructed to disregard witness’s testimony concerning a prior burglary of the same residence for which defendant was then on trial); Commonwealth v. Povish, 479 Pa. 179, 387 A.2d 1282 (1978) (mistrial not necessary where jury was instructed to disregard testimony about a robbery for which defendant had been charged but was not then being tried); Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977) (mistrial was unnecessary where jury was instructed to disregard remark that witness had previously seen defendant “work people over”). The trial court’s denial of appellant’s motion for a mistrial was not an abuse of discretion.

The evidence of appellant’s guilt in this case was overwhelming. Because of the nature of the crimes committed and the manner in which they were uncovered by the police and committed by the appellant and his accomplices, a jury could not have failed to realize that the burglars were not naive schoolboys. The jurors were nevertheless instructed that it was their duty to determine solely whether appellant had committed the crimes with which he had been charged. The trial court carefully navigated the proceedings through the shoals of unfair prejudice; and the jury returned a verdict consistent with the compelling evidence which had been produced by the Commonwealth. Appellant is not entitled to an arrest of judgment or a new trial.

The judgment of sentence is affirmed.


source: Caselaw Access Project

author: HOFFMAN, Judge.

license: Public Domain

text:
    571 A.2d 1084
    COMMONWEALTH of Pennsylvania v. Larry TROOP, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 14, 1989.
    Filed March 9, 1990.

      David G. Ridge, Erie, for appellant.
    Joseph P. Conti, Asst. Dist. Atty., Erie, for Com., appellee.

      Before CIRILLO, President Judge, and WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge.

This appeal is from the judgment of sentence for three counts each of robbery, criminal conspiracy, theft, and receiving stolen property. Appellant contends that the trial court erred in (1) questioning him in the presence of the jury; (2) refusing to sever appellant’s trial from that of his co-defendant; and (3) refusing to dismiss the charges against him or grant a new trial on the ground that his preliminary hearing was improperly conducted. In addition, appellant contends that the evidence was insufficient to support convictions for separate counts of criminal conspiracy. For the reasons that follow, we find these claims to be meritless and, accordingly, we affirm the judgment of sentence.

The charges in the instant case arose out of appellant Larry Troop’s participation, along with four accomplices-— James Troop, Renee Buckner, Bess Brown, and Daniel Yerosko — in three separate gunpoint robberies occurring in April, 1988 in Erie, Pennsylvania. The Commonwealth elected to try appellant together with his brother, James Troop. In September, 1988, after attempting to select a jury in Erie County, the trial court determined that a change of venire was warranted. By order dated October 21, 1988, the Pennsylvania Supreme Court directed that the jury be chosen from Allegheny County. A jury from Allegheny County was empanelled and, on November 15, 1988, appellant and James Troop proceeded to trial. On November 18, 1988, the jury found appellant guilty of three counts each of robbery, criminal conspiracy, theft, and receiving stolen property. Appellant filed timely post-trial motions, which were denied. On January 9, 1989, appellant was sentenced to an aggregate term of imprisonment of twenty-four-to-forty-eight-years. A motion for reconsideration of sentence was filed and denied. This timely appeal followed.

Appellant first contends that he is entitled to a new trial because questions posed to him by the trial court prejudiced him in the eyes of the jury. A trial judge has the right and sometimes the duty to question witnesses to clarify existing facts and to elicit new facts. See, e.g., Commonwealth v. Seabrook, 475 Pa. 38, 44, 379 A.2d 564, 567 (1977); see also Commonwealth v. Hammer, 508 Pa. 88, 100, 494 A.2d 1054, 1060 (1985). The questioning, of course, should not display bias or feeling nor should it be unduly protracted. See Commonwealth v. Seabrook, supra at 45, 379 A.2d at 567. Indeed, “[particular care must be taken so that the questions do not usurp or unduly encroach upon the fact finding function of the jury by suggesting judicial disbelief of particular testimony or a judicial opinion on one or more issues for or against one side or the other.” Commonwealth v. King, 378 Pa.Super. 553, 557, 549 A.2d 195, 197 (1988) (citing Commonwealth v. Hammer, supra). A new trial is required, however, only when the trial court’s questioning is prejudicial, “that is when it is of such nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.” Commonwealth v. Hammer, supra (citing Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973)).

The context in which the court questioned appellant was as follows. Appellant testified concerning his drug use in April of 1988, stating that he had been “freaking on cocaine” and “messing with drugs”. N.T. November 17, 1988 at 177. With specific regard to April 11, 1988, the date of the first robbery, appellant stated that he had purchased cocaine from “the Puerto Ricans”. Later that day, appellant stated, the co-defendant James Troop along with his other accomplices (Buckner, Brown, and Verosko) approached him and asked him if he wanted to get “high”; appellant replied that he “got some from the Puerto Ricans.” Id. at 180. When appellant continued to testify concerning the substance of this conversation, the Commonwealth raised a hearsay objection. During the discussion on the objection, the following exchange occurred:

THE COURT: Maybe if we got the names of the Puerto Ricans, maybe we can get them in through a warrant. Would you like to supply their names, Mr. Troop, who you got this cocaine from?
[APPELLANT]: No. Well, he has an opportunity — I can’t—
THE COURT: You can’t do what?
[APPELLANT]: I can and I can do it, but—
THE COURT: Well, if you’ll give us the names, I’ll let you do the hearsay.

Id. at 181. Appellant’s counsel then requested a sidebar and motioned for a new trial.

After reviewing appellant’s claim in context, we are satisfied that these isolated questions were not of such moment as to require the granting of a new trial. The questioning was designed to ascertain the identity of the persons from whom appellant claimed he purchased cocaine. To the extent that the court thereby emphasized appellant’s unrelated illegal activity in purchasing narcotics, the questioning was not specially prejudicial, as appellant himself had already testified to that effect. Moreover, the questioning was not extensive, nor did it indicate, on its face, a disbelief of appellant’s testimony. We are aware that, at sidebar, the trial court indicated its disbelief of appellant’s claim that he purchased the cocaine from “Puerto Ricans”, see id. at 183; however, there is no evidence that this disbelief was conveyed to the jury. Accordingly, we conclude that the court’s questioning did not deprive appellant of a fair trial, and thus he is not entitled to relief on this ground.

Appellant’s second claim arises from the trial court’s refusal to sever his trial from that of his co-defendant brother. Our Supreme Court has noted that, under the Pennsylvania Rules of Criminal Procedure and case law,

the decision whether to sever trials of co-defendants is one within the sound discretion of the trial judge and will not be disturbed on appeal absent a manifest abuse of discretion____ The defendant must show real potential for prejudice and not mere speculation____ The mere fact that a co-defendant might have a better chance of acquittal if tried separately is not sufficient to grant a motion to sever____
The general policy of the law is to encourage joinder of offenses and consolidation of indictments when judicial economy can thereby be effected, especially when the result will be to avoid the expensive and time-consuming duplication of evidence. Joint trials are, in fact, advisable where ... conspiracy is charged____ But the interest in judicial economy must be balanced against the need to minimize the prejudice that may be caused to a defendant by consolidation____ In determining whether the trial judge abused his discretion, the critical factor is whether the accused has been prejudiced by the trial court’s decision.

Commonwealth v. Patterson, 519 Pa. 190, 197, 546 A.2d 596, 599-600 (1988) (citations omitted).

After carefully reviewing the record in light of these standards, we are satisfied that the trial court did not abuse its discretion in denying appellant’s motion to sever. Appellant argues that he was prejudiced by the court’s decision because (1) testimony was introduced at trial concerning the co-defendant’s violent nature; (2) their defenses were inconsistent; and (3) open antagonism existed between the co-defendant and his counsel. In support of his claim concerning the co-defendant’s violent character, appellant cites only to the testimony of Bess Brown, one of his accomplices. A review of Ms. Brown’s testimony indicates that, although she testified that the co-defendant had beaten and threatened her, see N.T. November 16, 1988 at 96-97, 104, she also stated on cross-examination that appellant never had threatened her, see id. at 114, and in fact had protected her at times. See id. at 132. In light of the fact that the cross-examination of Ms. Brown clearly outlined the distinction in personalities between appellant and his co-defendant, we cannot conclude that the testimony regarding the co-defendant’s character worked to appellant’s prejudice. With regard to appellant’s claim of inconsistent defenses, our Supreme Court has recognized that “[t]he probability of antagonistic defenses is one of the factors that a court should consider in deciding whether to grant severance____ However, more than a bare assertion of antagonism is required.” Commonwealth v. Morales, 508 Pa. 51, 62, 494 A.2d 367, 373 (1985) (citations omitted). Here, although the defenses of the co-defendants were not identical, they also were not so antagonistic as to pose a significant possibility of prejudice. Indeed, the central thrust of both defenses was that the defendants had been mistakenly identified; the only real distinction between the two defenses was that the co-defendant, in addition to raising the identification issue, also presented an alibi defense. This minor difference alone is not sufficient to warrant separate trials. Appellant’s remaining allegation of prejudice is equally unavailing. Appellant’s only argument regarding the prejudice that resulted from the supposed antagonism between the co-defendant and his counsel is that appellant “would have had a better chance for acquittal” if he had been tried alone. Such an argument was specifically rejected by our Supreme Court in Commonwealth v. Patterson, supra: “[t]he mere fact that a co-defendant might have a better chance of acquittal if tried separately is not sufficient to grant a motion to sever.”

Appellant’s third contention relates to what he alleges was an improper preliminary hearing. At appellant’s preliminary hearing, a police officer read into evidence, over appellant’s objection, a transcribed statement taken from another accomplice, Renee Buckner, which apparently implicated appellant in the robberies. After the charges against appellant were bound over, he filed a motion for a writ of habeas corpus, alleging, inter alia, that he had not received a proper preliminary hearing because of the admission of Buckner’s statement, and that, without the statement, the Commonwealth had failed to establish a prima facie case. The motion was denied prior to trial. On appeal, appellant argues that the court erred in refusing either to dismiss the charges against him or to grant him a new trial on the ground that his preliminary hearing was improperly conducted. Initially, we note that appellant’s suggestion that he should be discharged based upon the insufficiency of the evidence at his preliminary hearing is patently meritless, as our Supreme Court has held that the failure to establish a prima facie case at a preliminary hearing “is clearly immaterial where at the trial the Commonwealth met its burden by proving the [offense] beyond a reasonable doubt.” Commonwealth v. McCullough, 501 Pa. 423, 427, 461 A.2d 1229, 1231 (1983); cf. Commonwealth v. Davis, 308 Pa.Super. 204, 212, 454 A.2d 92, 96 (1982) (fact that defendant did not succeed in obtaining discharge at district justice level on grounds that complaint was defective is not ground for disturbing conviction on appeal), allocatur denied (February 28, 1983).

Appellant’s suggestion that he is entitled to a new trial simply because the Commonwealth introduced hearsay testimony during the preliminary hearing is similarly merit-less. We recognize that, in light of the critical nature of the preliminary hearing in assuring that the Commonwealth has a legal basis for prosecuting a person, the better course may be for the Commonwealth, whenever possible, to produce evidence to establish its prima facie case that would also be admissible at trial. However, there is no requirement that the Commonwealth do so in all instances. As we noted in Commonwealth v. Rick, 244 Pa.Super. 33, 366 A.2d 302 (1976):

The distinction between a preliminary hearing and the trial itself is well settled. While a trial determines guilt or innocence, the “preliminary hearing is held primarily to prevent the detention of a person for a crime which was never committed or of a crime with which there is no evidence of his connection.” ...
The question at a preliminary hearing is not whether there is sufficient evidence to prove the defendant guilty beyond a reasonable doubt; rather, the question is whether the prosecution must be dismissed because there is nothing to indicate that the defendant is connected with a crime. In this case, the chemist’s report, alone, would have been inadmissible at trial to prove appellant was intoxicated. However, the district justice acted correctly in admitting the report to determine that there may have been a crime committed and that appellant may have been involved. Certainly, the difference in purpose between a preliminary hearing and a trial dictates a different enforcement of the rules of evidence.

Id., 244 Pa.Superior Ct. at 36-37, 366 A.2d at 303-04 (citations and footnote omitted); see also Commonwealth v. Branch, 292 Pa.Super. 425, 429-30, 437 A.2d 748, 749-50 (1981) (during preliminary hearing, police officer testified, over hearsay objection, that victim’s brother, who did not testify at preliminary hearing, saw defendant shoot victim, and Commonwealth represented that victim’s brother would be available at trial; held, such hearsay evidence is sufficient to establish prima facie case at preliminary hearing), allocatur denied (October 6, 1981). Appellant interprets Rick and Branch to allow for hearsay testimony at a preliminary hearing only where there is an affirmative showing of unavailability and reliability. But neither Rick nor Branch hold or suggest that such a showing is required; indeed, in Branch, which, like the case at bar, involved the introduction of a witness’s statement, there was no evidence to suggest that the witness was either unavailable or unreliable. See Commonwealth v. Branch, supra, 292 Pa.Superior Ct. at 428-29, 437 A.2d at 749-50. Moreover, we note that here, as in Branch, the Commonwealth certified in good faith that Buckner would be available at the time of trial. This certification helps to minimize the chances that the primary evil that preliminary hearings are designed to prevent — i.e., the prosecution of persons unconnected with a crime — will occur. Accordingly, appellant is not entitled to relief on the ground that his preliminary hearing was defective.

Appellant last contends that the evidence was insufficient to support convictions for separate counts of criminal conspiracy. Appellant relies on § 903(c) of the Crimes Code, which provides:

Conspiracy with multiple criminal objectives. — If a person conspires to commit a number of crimes, he is guilty of only one conspiracy as long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.

18 Pa.C.S.A. § 903(c). We have noted that,

Section 903(c) articulates a concept which is not new in American jurisprudence, “ ‘The conspiracy is the crime, and that is one, however diverse its objects/ ” Braverman v. United States, 317 U.S. 49, 54, 63 S.Ct. 99, 102, 87 L.Ed. 23 (1942), quoting Frohwerk v. United States, 249 U.S. 204, 210, 39 S.Ct. 249, 252, 63 L.Ed. 561 (1919). See also W. LaFave and A. Scott, CRIMINAL LAW § 62 (1972) (“An agreement to commit several crimes is but one conspiracy.”). In Braverman, supra, the Supreme Court went on to explain that, “the single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute____” Id. 317 U.S. at 54, 63 S.Ct. at 102.

More recently, the parameters of this principle have been further defined:

A single, continuing conspiracy is demonstrated where the evidence proves that the essential feature of the existing conspiracy was a common plan or scheme to achieve a common, single, comprehensive goal---A single, continuing conspiracy may contemplate a series of offenses, or be comprised of a series of steps in the formation of a larger, general conspiracy..... Therefore, where the evidence at trial is sufficient for the jury to infer that the essential features of the existing conspiracy were a common plan or scheme to achieve a common, single, comprehensive goal or end, then the conclusion that the conspiracy was a single, continuing conspiracy is justified.

United States v. Continental Group, Inc., 456 F.Supp. 704, 716 (E.D.Pa.1978), aff'd, 603 F.2d 444 (3d Cir.1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 703, 62 L.Ed.2d 668 (1980).

Commonwealth v. Lore, 338 Pa.Super. 42, 67-68, 487 A.2d 841, 855 (1984) (citations omitted), allocatur denied (July 18, 1985).

Here, appellant argues that the trial evidence established that the robberies and other offenses resulted from one ongoing conspiracy, with the single purpose of obtaining money to use to purchase cocaine. We disagree. According to the testimony of one of the accomplices, Bess Brown, the first robbery, on April 11,1988, occurred after appellant and his four accomplices had taken cocaine, and discussed the need to get money to buy more cocaine. N.T. November 16, 1988 at 55-62. The money taken in the robbery was used to purchase cocaine, which the five shared. Id. at 63. Some twenty-seven hours later, on April 13, 1988, the five accomplices were together again, and there was a discussion concerning the need to obtain money to purchase more cocaine. Id. at 66-67. Appellant, along with James Troop and Daniel Yerosko, then proceeded to an “AM/PM” store and robbed it. Id. at 67-70. Once again, the proceeds from the robbery were used to purchase cocaine for the entire group. Id. at 70-71. The final robbery occurred later that morning. Bess Brown testified that, prior to this robbery, James Troop mentioned the need to obtain more money for cocaine. Id. at 72-73. Appellant Larry Troop agreed, and four of the five then drove to a convenience store and robbed it. Id. at 73-77. The proceeds again were used to purchase cocaine. Id. at 77.

This testimony alone clearly was sufficient to justify a finding that appellant and his accomplices entered into three separate agreements to commit the robberies. The three criminal episodes that formed the basis for appellant’s convictions were separated in time and place. In addition, there was no evidence of a single, pre-existing criminal plan that encompassed the three separate robberies. Instead, the evidence suggested that the group formulated a separate criminal plan and committed a, robbery each time the group needed money to buy more cocaine. As the Commonwealth aptly notes in its brief, “the idea and agreement to commit each robbery was formed only after the available cocaine had been used by the co-defendants. Each time the need for cocaine surfaced and each time the need for money to purchase the cocaine surfaced, the group agreed to commit the robberies____” Brief for Appellee at 32. Accordingly, we hold that the evidence warranted a finding of guilt for three separate conspiracies.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . James Troop also was found guilty of these crimes; his appeal is docketed at No. 656 Pittsburgh 1989.

      . Rule 1127 provides that "[defendants charged in separate indictments or informations may be tried together if they are alleged to have participated in the same act or transaction ... constituting an offense or offenses." Pa.R.Crim.P. 1127(A)(2). Our Supreme Court has noted that "[t]his rule of joinder parallels the case law which recognizes that joint trials of co-defendants [are] advisable when the crimes charged grew out of the same acts and much of the same evidence is necessary or applicable to both defendants.” Commonwealth v. Morales, 508 Pa. 51, 61, 494 A.2d 367, 372 (1985) (citations omitted). The other pertinent Rule is 1128, which provides:
      Severance of Offenses or Defendants
      The court may order separate trial of offenses or defendants or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.
      Comment
      This rule provides the procedure whereby the court may, because of prejudice to a party, order separate trials of offenses or defendants that otherwise would be properly tried together under Rule 1127. A defendant may also request severance of offenses or defendants on the ground that trying them together would be improper under Rule 1127.

        Id.

      . The notes of testimony from the preliminary hearing have not been transcribed; thus we cannot review the contents of the statement.

      . We should also note that, in light of the fact that appellant’s guilt was established beyond a reasonable doubt at trial, even if we were to agree that the preliminary hearing was improper we could not conclude that a new trial would be the appropriate remedy, at least absent some showing of actual prejudice. As Judge Brosky noted in Commonwealth v. Murray, 348 Pa.Super. 439, 502 A.2d 624 (1985), once a defendant's guilt has been proved in a fair trial, the ordering of a new preliminary hearing would be "an empty and futile remedy”:
      We find it extremely unlikely that once the Commonwealth had proved its case beyond a reasonable doubt, it would fail to pass the prima facie test at the new preliminary hearing. If the new preliminary hearing somehow did yield a new result, it could only be that certain charges should be dropped, which could not warrant a new trial on those charges. Logically, a new preliminary hearing is foolish once the evidentiary trial is completed without reversible error.

        Id., 348 Pa.Superior Ct. at 452, 502 A.2d at 630; see also W. LaFave & J. Israel, Criminal Procedure, § 14.4, at 273 (1984 & Supp.1989) ("[mjany courts are of the view that the conviction should be treated as having rendered harmless the magistrate’s error — at least in the absence of a showing by defense counsel of actual prejudice at trial.”).

      . In addition to the brief filed by counsel, appellant has filed a brief pro se in which he raises five "supplemental questions.” Specifically, appellant claims that (1) his arrest (which was effected pursuant to a warrant, and based upon information provided by one of his co-conspirators, Bess Brown) was unlawful (appellant does not specify what relief he would be entitled to even if this claim had merit); (2) his trial was unfair because certain identification testimony was perjured (appellant bases this claim solely on supposed inconsistencies in the testimony); (3) he is entitled to a new trial because of prosecutorial misconduct; (4) the prosecutor failed to disclose information pursuant to Pa.R.Crim.P. 305; and (5) the court deprived him of a fair trial by ordering him to keep his head down and not look at certain witnesses. Although appellant expresses no dissatisfaction with counsel’s performance, he couches these claims in ineffectiveness terms. Pursuant to Commonwealth v. Gaerttner, 518 Pa. 452, 543 A.2d 1091 (1988), see also Commonwealth v. Shaw, 379 Pa.Super. 491, 495 n. 2, 550 A.2d 555, 557 n. 2 (1988); but see Commonwealth v. Aultman, 387 Pa.Super. 113, 119, 563 A.2d 1210, 1216 (1989), we have carefully reviewed the record in light of appellant’s pro se allegations, and we find his claims to be meritless.


author: POPOVICH, Judge.

text:
    571 A.2d 1091
    COMMONWEALTH of Pennsylvania, Appellant, v. Forrest L. FICK, Appellee.
    Superior Court of Pennsylvania.
    Submitted Feb. 5, 1990.
    Filed March 22, 1990.

      Charles M. Guthrie, Jr., Asst. Dist. Atty., Reading, for Com., appellant.
    Robert E. Giering, Reading, for appellee.
    Before KELLY, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge.

The Commonwealth appeals from the September 11,1989, order of the Court of Common Pleas of Berks County dismissing the charge of driving under the influence of alcohol which was lodged against appellee, Forrest L. Fick. On appeal, the Commonwealth argues that the court improperly dismissed the charges brought under 75 Pa.C.S.A. § 3731. After thorough review of the record, we reverse.

On November 5, 1988, appellee was arrested for driving under the influence of alcohol or controlled substance and several summary offenses while driving a friend home from the Mt. Penn Tavern. Appellee entered a plea of guilty to the summary offenses. On January 19, 1989, District Justice Phyllis Kowalski bound the charges over for trial. Appellee filed a petition for a writ of habeas corpus on February 2, 1989, alleging that the Commonwealth had failed to establish a prima facie case. After a April 11, 1989, hearing, consideration of written memoranda and the transcript of the preliminary hearing of January 19, 1989, the lower court granted appellee’s petition for a writ of habeas corpus and dismissed the driving under the influence charge. The Commonwealth filed this timely appeal on September 19, 1989.

It is well-settled that the prosecution has the burden of establishing at least prima facie that a crime has been committed and the accused is the one who committed it. Commonwealth v. Ruza, 511 Pa. 59, 63, 511 A.2d 808, 810 (1986). Instantly, the Commonwealth had to establish that appellee was driving, operating or was in actual physical control of the movement of his vehicle while:

(1) under the influence of alcohol to a degree which rendered him incapable of safe driving; or
(3) under the combined influence of alcohol and any controlled substance to a degree which rendered him incapable of safe driving; ...

75 Pa.C.S.A. § 3731(a)(1) & (3).

The Commonwealth argues that appellee’s erratic driving, wide left-turn, apparent disorganization while looking for his driver’s license and owner card, cursing, anger, his failure to pass the field sobriety tests, the odor of alcohol on his breath and the admitted use of medication established a prima facie case. We agree.

It was shown that appellee was using over-the-counter and prescription drugs to treat allergies. (N.T., 1/9/89, p. 24). Appellee testified that he took his medication at 6:00 p.m. and 10:00 p.m. (N.T., 1/19/89, p. 24). Three (3) witnesses corroborated appellant’s statement that he had not consumed liquor during the night in question, (N.T., 1/19/89, pp. 31, 34 & 38-41), and no evidence was presented that appellee had been or was seen drinking. However, appellee stated that he took Nyquil six (6) hours prior to his arrest. (N.T., 1/19/89, p. 24). Nyquil contains 2.5 ounces of alcohol (N.T., 4/11/89, p. 5).

Appellee and a witness testified that appellee used Primatene Mist while at the bar. (N.T., 1/19/89, pp. 24 & 41). Appellee testified that the mist, used because of the smoke at the bar, smelled like alcohol, (N.T., 1/19/89, p. 24), and contained alcohol. (N.T., 1/19/89, p. 24), This statement was not contradicted by the district magistrate or the arresting officer who smelled the mist at the preliminary hearing. (N.T., 1/19/89, p. 25).

The Commonwealth’s argument is also supported by one of appellee’s witnesses. A passenger in appellee’s car stated that he was in no condition to drive and that his driving was erratic. (N.T., 1/19/89, p. 42-43). The witness testified that he had asked appellee to allow him to drive but the car was stopped before a driving change could be made. (N.T., 1/19/89, p. 42).

The word alcohol, as used in 75 Pa.C.S.A. § 3731, is not defined. However, we cannot limit its definition to name-brand liquors. Admittedly, appellee used two (2) products containing alcohol and supplemented that use with a decongestant and a commercial sleep product. (N.T., 1/19/89, pp. 24). The combination of these items affected appellee’s driving, as characterized by the Commonwealth’s case and appellee’s own witness.

The citizens of this Commonwealth must be made aware that driving under the influence of alcohol is not limited to alcohol in the traditional sense. The law does not excuse individuals who drive under the influence of prescription drugs and over-the-counter medications which contain alcohol. These items can and will affect driving ability to the same degree as liquor and controlled substances.

The district magistrate who conducted the preliminary hearing stated that:

... the court has no doubt as to the truthfulness of the testimony of the defendant in the manner in which this happened. However, the defendant admittedly used three different types of drugs earlier in the evening, one being a prescription or a controlled substance. On that basis, I am going to hold these charges over for court.

(N.T., 1/19/89, p. 49).

Appellee’s driving behavior and admitted ingestion of medication established a prima facie case for driving under the influence. Therefore, we find that the lower court erred by granting appellee’s writ of habeas corpus.

Reversed, vacated and jurisdiction is relinquished.

      . 75 Pa.C.S.A. § 3731(a)(1) & (3).


author: HOFFMAN, Judge:

text:
    572 A.2d 2
    COMMONWEALTH of Pennsylvania v. Yaakov PERLMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 30, 1989.
    Filed Feb. 26, 1990.
    Reargument Denied April 16, 1990.

      Robert E. Welsh, Jr., Swarthmore, for appellant.
    Marsha V. Mills, Deputy Atty. Gen., Harrisburg, for the Com., appellee.
    Before POPOVICH, HOFFMAN and BROSKY, JJ.
   HOFFMAN, Judge:

This appeal is from the order below denying appellant’s petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends that he is entitled to relief under the PCRA because (1) the evidence was insufficient to support his convictions; and (2) trial counsel was ineffective for failing to (a) call a character witness and (b) assert the accountant-client privilege to bar the testimony of appellant’s accountant at trial. We affirm.

On December 13, 1985, following a jury trial, appellant was found guilty of sixteen counts of failing to file state sales tax returns, and sixteen counts of failing to remit sales tax. See 72 P.S. § 7268(b). Appellant was sentenced on April 27, 1987 to eleven-and-one-half-to-twenty-three-months imprisonment, as well as $16,000 in fines and the costs of prosecution. Appellant, represented by new counsel, filed a direct appeal in this Court and raised six claims, five of which concerned the effectiveness of trial counsel. On May 9, 1988, the judgment of sentence was affirmed by this Court in an unpublished order and Memorandum. See Commonwealth v. Perlman, 381 Pa.Super. 659, 548 A.2d 642 (1988) (table). Present counsel (appellant’s third attorney) then entered his appearance and filed a petition for reargument, which was denied on July 6, 1988, and a petition for Allowance of Appeal to our Supreme Court, which was denied on February 14, 1989. Thereafter, on March 14, 1989, appellant filed the instant petition under the PCRA. After hearing argument, the PCRA court entered an order and opinion on April 13, 1989 denying the petition, and this appeal followed.

Appellant first contends that the evidence introduced at trial was insufficient to support his convictions because he filed his tax returns and paid the delinquent sales taxes prior to the filing of the criminal complaint against him. Relying on Commonwealth v. Sacco, 366 Pa.Super. 261, 531 A.2d 1 (1987), allocatur denied 517 Pa. 622, 538 A.2d 876 (1988), appellant argues that this “pre-accusation compliance” with the tax laws rendered his conduct non-criminal as a matter of law and, thus, he should be discharged.

As a preliminary matter, we must determine whether this claim is cognizable under the PCRA. Eligibility for relief under the PCRA is governed by 42 Pa.C.S.A. § 9543, which provides in pertinent part:

(a) General rule. — To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:
(1) That the person has been convicted of a crime under the laws of this Commonwealth and is:
(i) currently serving a sentence of imprisonment, probation or parole for the crime;
* * * * * *
(2) That the conviction or sentence resulted from one or more of the following:
(i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
* * # # * *
(3) That the allegation of error has not been previously litigated and one of the following applies:
(i)'\ The allegation of error has not been waived.
($ If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.
* * * * * *
(4) That the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational strategic or tactical decision by counsel.

Id.

Appellant attempted to raise his sufficiency claim on direct appeal. We did not reach the merits of the claim, however, as we held that appellant waived it by failing to raise it in post-trial motions. See Memorandum, May 9, 1988 at 2-4 (R.R. at 309a-311a). To avoid the waiver, appellant now alleges, inter alia, that trial counsel was ineffective for failing to raise the issue in post-verdict motions and prior appellate counsel in turn was ineffective for failing to raise the issue in terms of trial counsel’s ineffectiveness. Appellant also alleges that the claim was not “previously litigated” as that term is defined in the PCRA. We agree that the issue is cognizable under the PCRA. Our disposition in the prior appeal did not turn on the merits of the claim; therefore, it has not been previously litigated under 42 Pa.C.S.A. § 9544(a)(2). Moreover, appellant’s waiver of the claim on direct appeal is excusable under the PCRA in light of counsel’s alleged ineffectiveness, see id. § 9543(a)(2)(h), and because the claim involves the sufficiency of the evidence, which necessarily implicates the “truth-determining process”, see id., and raises a question whether an “innocent individual” has been convicted. See id. § 9543(a)(3)(h). Accordingly, we may turn to the merits.

Appellant’s claim is premised on the alleged ineffectiveness of prior counsel. It is settled that, in order to prevail on a claim of ineffectiveness, the defendant must show that his underlying contention possesses arguable merit, that the course chosen by counsel had no reasonable basis designed to serve his interests, and that counsel’s conduct prejudiced him. See, e.g., Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988); see also 42 Pa.C.S.A. § 9543(a)(2)(h), (a)(4). Appellant’s underlying contention is based upon Commonwealth v. Sacco, supra. In Sacco, as in the instant case, the accused was convicted under the following statutory language:

§ 7268 Crimes
* * # * sje
(b) Other Crimes. ... [A]ny person who shall wilfully fail, neglect or refuse to file any return or report required by this article or any taxpayer who shall refuse to pay any tax, penalty or interest imposed or provided for by this article, ... shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand dollars ($1,000) and costs of prosecution, or undergo imprisonment not exceeding one year, or both____

72 P.S. § 7268(b). The pertinent facts in Sacco were as follows. On various dates between August 15, 1983 and January 20, 1984, the defendant had failed to file tax returns and failed to remit sales taxes which had been collected in the operation of her restaurant. Although the defendant filed the overdue returns on February 23, 1984, and paid the delinquent taxes, penalties and interest by April 16, 1984, she nevertheless was charged almost two years later, on February 5, 1986, with numerous violations of § 7268(b). See 366 Pa.Super. at 262, 531 A.2d at 1. Based on these facts, the Sacco Court found that the defendant’s convictions could not stand and ordered her discharged. The Court reasoned that the defendant “did not fail to file the required returns, nor did she refuse to remit the required taxes. She performed these actions nearly two years prior to the institution of criminal action.” Id. at 263, 531 A.2d at 1. The Sacco Court concluded that the defendant’s conduct was “tardiness” and not the type of conduct proscribed by § 7268(b). Id., 366 Pa. Superior Ct. at 264, 531 A.2d at 2.

Appellant argues that Sacco requires a finding that his conduct was not criminal under § 7268(b). For purposes of this appeal, we may assume that the construction of § 7268(b) found in Sacco applies to the instant case even though appellant was convicted prior to the decision in Sacco; however, for the reasons set forth below, we do not agree that Sacco would require that appellant be discharged.

The charges in the instant case arose out of appellant’s failure to file tax returns or remit sales taxes which had been collected by his company, Bakerwon, Inc. At trial, Thomas Hines, a criminal tax investigator for the Pennsylvania Department of Revenue, testified that a criminal investigation into appellant’s corporation commenced in July, 1984. In August, 1984, Hines made a phone call to Bakerwon and informed Jack Suransky, Bakerwon’s controller, that a criminal investigation was taking place, and the time periods that were the subject of the investigation. See N.T. December 12, 1985 at 123, 132 (R.R. at 130a, 139a). On October 19, 1984, Hines then met with appellant, and informed him that a criminal investigation was proceeding, and that the tax periods in question were from June, 1983 until September, 1984. Id. at 123-25 (R.R. at 130a-132a). Appellant admitted to Hines that he was aware that the returns and taxes had not been filed, and stated that the reason he had not filed was that he had met with financial difficulties. Id. at 125 (R.R. at 132a).

Hines further testified that it was only after he met with appellant and informed him of the investigation that appellant’s delinquent returns were filed. Id. at 132 (R.R. at 139a). Hines next spoke with appellant in April, 1985. At that time, appellant still had not paid the long-overdue sales taxes that he had collected. Also in April, Hines informed appellant that, based on his investigation, he was going to recommend a criminal prosecution. On July 18, 1985, almost a year after appellant was first apprised of the criminal investigation, appellant tendered a check to the Department of Revenue for a portion of the amount he owed. The criminal complaint against appellant was then filed on July 29, 1985. Thereafter, on August 14, 1985, appellant remitted the balance of all sales taxes due, together with interest and penalties.

Further evidence regarding the willful nature of appellant’s decision not to file his returns or taxes was provided by appellant’s accountant, Arthur Gardner, and his bookkeeper, Haría Levitt. Testimony from these witnesses established that appellant was aware of his monthly obligation to file, that returns were prepared and presented to appellant for at least some of the months in question, that checks were prepared by his bookkeeper to pay the taxes, and that appellant chose not to file the returns or the taxes. See, e.g., id. at 39-41, 54, 87-89, 95 (R.R. at 46a-48a, 61a, 94a-96a, 102a).

The key distinction between this case and Sacco is that, here, evidence was introduced that indicated that appellant’s conduct resulted not from mere “tardiness” but from a willful refusal to file the returns and taxes. We recognize that the facts here are similar to Sacco in that appellant was not charged under § 7268(b) until after he had filed his returns and paid a portion of his taxes. However, the instant case is unlike Sacco in that, although appellant’s “compliance” occurred before the formal institution of charges against him, it occurred only after he was notified that a criminal investigation was proceeding. From this evidence, a fact-finder could conclude that appellant did not merely act in a dilatory fashion but instead filed only in response to the investigation, in an attempt to ward off the impending criminal prosecution. In summary, we conclude that the evidence introduced at trial was sufficient to support a conviction under § 7268(b) and Sacco does not dictate a contrary result; thus, counsel cannot be deemed ineffective for failing to preserve this claim. Accordingly, we hold that the PCRA court did not err in denying appellant relief on this ground.

Appellant’s remaining contention is that trial counsel was ineffective for failing to (a) call a character witness and (b) assert the accountant-client privilege to bar the testimony of appellant’s accountant at trial. These precise claims were raised on direct appeal and specifically rejected by this Court. See Memorandum, May 9, 1988 at 4-7 (R.R. at 311a-314a). Accordingly, they have been previously litigated and are not cognizable under the PCRA. See 42 Pa.C. S.A. § 9544(a) (“an issue has been previously litigated if ... (2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue”). Accordingly, appellant is not entitled to relief on these grounds.

For the foregoing reasons, we affirm the PCRA order below.

Order affirmed.

      . Section 9544(a)(2) provides that an issue has been previously litigated if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” Id.

      . This check was tendered to Ronald J. Snitzer, of the Philadelphia Office of the Pennsylvania Department of Revenue.


author:
McEWEN, Judge:
      POPOVICH, Judge,

text:
    572 A.2d 6
    Maurice T. FOLEY, Appellant, v. Catherine A. FOLEY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1989.
    Filed Feb. 26, 1990.
    Reargument Denied April 5, 1990.

      Donald W. Grieshober, Erie, for appellant.
    William Hain, Erie, for appellee.
    Before McEWEN, POPOVICH and MONTGOMERY, JJ.
   McEWEN, Judge:

Appellant has taken this appeal from the order which granted appellee/wife’s petition to vacate a divorce decree entered January 16, 1987. We affirm.

Appellant/husband has in his brief adequately summarized the procedural history underlying this appeal:

Appellant, Maurice T. Foley, and appellee, Catherine A. Foley, were married on April 17, 1976. On April 16, 1976, they signed a pre-marital agreement which is designated as defendant’s Exhibit D and which is attached to appellee’s brief in support of her petition to vacate the divorce decree. No children were born of their marriage. Appellant filed a complaint in divorce under Section 201(c) of the Divorce Code on September 15, 1986 and the same was served on appellee on September 16, 1986 and contained the required notice to defend and claim rights. On October 3, 1986, appellant and appellee signed a property settlement agreement which was not attached to nor incorporated with the divorce decree. On December 31, 1986, appellee signed an acceptance of service document to clarify matters relating to the service upon her of the divorce complaint. On December 31, 1986, the required affidavits of consent under Section 201(c) of the Divorce Code, signed on December 29, 1986 by both appellant and appellee, were filed. There were no other pleadings filed to the date of the entry of the divorce decree by either appellant or appellee. On January 16, 1987, a decree of divorce was entered under Section 201(c) of the Divorce Code.
On April 25, 1988, appellee filed a petition to open the decree of divorce. On May 2, 1988, preliminary objections were filed to said petition by appellant. On May 23, 1988, trial was held before Honorable Michael T. Joyce. On June 2, 1988, both the brief of appellant and the brief of appellee with attached exhibits were filed with the court. On February 14, 1989, [the] trial court filed its opinion and order vacating the divorce decree.

Appellant argues that the trial court erred when it granted the petition to vacate the divorce decree essentially because (1) appellee waived any grievance by her failure to respond, or otherwise plead, or to present any claim during the pendency of the divorce proceeding and instead waited fifteen months after entry of the divorce decree to do so, and (2) appellee failed to establish that appellant had engaged in the extrinsic fraud which is a condition precedent to vacating a decree in divorce.

The initial argument of appellant focuses upon the interplay of Divorce Code Sections 401(c), 401(j), and 102. It is to be emphasized at the outset that the legislature, in Section 401(c), expressly granted the trial court broad equity powers in divorce proceedings:

(c) In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.

Thus, despite appellant’s initial claim that section 401(j) of the Divorce Code precludes the retention by the court of jurisdiction over “any economic matters” following the entry of a divorce decree, the expansive terms of section 401(c) itself demonstrate with certainty that the equitable powers of the court are to survive the divorce decree. Moreover, it is the stated intent and policy of the Divorce Code of the Commonwealth of Pennsylvania to, inter alia, “effectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.” 23 P.S. § 102(a)(6). In summary, then, the courts of this Commonwealth are empowered under section 401(c) to intercede upon petition by the aggrieved party to address and correct economic injustice. Appellant’s claim that section 401(j) precludes such an intervention by the court is unpersuasive in the face of the certain terms of section 401(c), especially when considered in light of the legislative intent proclaimed in section 102(a)(6) of the Divorce Code. Thus, the trial court had the authority under the law to intercede on behalf of appellee were an injustice to so warrant.

Appellant also argues that there was insufficient evidence to establish extrinsic fraud under section 602 of the Divorce Code. The record, however, demonstrates that the treatment inflicted upon appellee by appellant and the intimidation effected thereby certainly composed extrinsic fraud as that concept is defined in Section 602 of the Code. The legislature in Section 602 of the Code described the circumstances under which the trial court may proceed to the exercise of its equitable power, and specifically referred to the notion of extrinsic fraud:

§ 602. Opening or vacating divorce decrees
A motion to open a decree of divorce or annulment may be made only within 30 days after entry of the decree and not thereafter. Such motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or because of a fatal defect apparent upon the face of the record, must be made within five years after entry of the final decree. Intrinsic fraud is such as relates to a matter adjudicated by the judgment, including perjury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case.

Since more than fifteen months had elapsed between the date of the divorce decree and the date of the petition to open the decree, the trial court was empowered to exercise its equitable powers only if appellee demonstrated that appellant had secured the decree through the use of extrinsic fraud. Thus, we are obliged to determine the precise meaning of extrinsic fraud, and then examine the record to determine if appellee sustained her burden of demonstrating that she was the victim of appellant’s extrinsic fraud.

The distinction between extrinsic fraud, i.e., fraud which relates to a collateral matter of consequence of which is to prevent a fair hearing, and intrinsic fraud, i.e., a matter relating to the adjudication of the judgment, was defined by the court in McEvoy v. Quaker City Cab Co., 267 Pa. 527, 536, 110 A. 366, 368 (1920):

By the expression ‘extrinsic or collateral fraud’ is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy. Among these are the keeping of the defeated party away from court by false promise of compromise, or fraudulently keeping him in ignorance of the action. Another instance is where an attorney without authority pretends to represent a party and corruptly connives at his defeat, or where an attorney has been regularly employed and corruptly sells out his client’s interest. The fraud in such case is extrinsic or collateral to the question determined by the court. The reason for the rule is that there must be an end to litigation; and, where a party has had his day in court and knows what the issues are, he must be prepared to meet and expose perjury then and there: Pico v. Cohn, 91 Cal. 129 [25 P. 970]. Where the alleged perjury relates to a question upon which there was a conflict, and it was necessary for the court to determine the truth or falsity of the testimony, the fraud is intrinsic and is concluded by the judgment, unless there be a showing that the jurisdiction of the court has been imposed upon, or that by some fraudulent act of the prevailing party the other has been deprived of an opportunity for a fair trial. Bleakley v. Barclay, 75 Kansas 462 [89 P. 906].

Fenstermaker v. Fenstermaker, 348 Pa.Super. 237, 243, 502 A.2d 185, 188 (1985), quoting McEvoy v. Quaker City Cab Co., 267 Pa. 527, 536, 110 A. 366, 368 (1920).

The trial court found that the actions of appellant did intimidate appellee to the extent that she was fearful of undertaking any effort to secure the economic justice to which she was entitled, and concluded that because she was thereby denied an opportunity for a fair trial, appellee had established the existence of extrinsic fraud. The trial judge stated:

In the instant case it appears that a great deal of influence must have been exerted upon the Defendant to obtain the result that presently stands. Defendant, after eleven years of marriage, received essentially only $1,500.00 and her personal clothing, while Plaintiff received property said to be worth $200,000.00 and everything else that arose from the marital relationship. The parties did enter into a marital property settlement agreement, however, that agreement purports to give with few exceptions all property, marital or otherwise to Plaintiff. This arrangement is unconscionable and cannot be accepted by the Court as a knowing, informed and freely given exchange by the Defendant. Therefore, in order to effect a fair and just determination and settlement of Plaintiffs and Defendant’s property rights this Court will allow Petitioner to proceed by granting her Petition to Vacate Divorce Decree.

“A proceeding to open a divorce decree is equitable in nature, and the appellate court will not reverse an order entered in such a proceeding unless there has been a clear abuse of discretion.” Masciulli v. Masciulli, 194 Pa.Super. 646, 169 A.2d 562 (1961) (citations omitted). There is no basis for this Court to conclude that the decision of the trial judge was an abuse of discretion. There was an ample factual basis for the finding of intimidation, as well as for the conclusions that because she had been denied a fair trial, she had established such extrinsic fraud as to justify vacating the decree in divorce.

Order affirmed.

MONTGOMERY, J., joins.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting.

While I agree with the implicit holding of the majority that duress may be extrinsic fraud, I reject the majority’s determination that appellant’s actions amounted to extrinsic fraud which precluded a fair hearing or presentation of appellee’s case. Rather, I would find that under the facts before us, viewed in a light most favorable to the verdict winner, the trial judge abused his discretion in vacating the divorce decree. Masciulli v. Masciulli, 194 Pa.Super. 646, 169 A.2d 562 (1961) (standard of review). This is not to say that appellee is without an avenue of redress since an action in assumpsit to invalidate the settlement agreement and seek damages remains.

The majority correctly cites Fenstermaker v. Fenstermaker, 348 Pa.Super. 237, 502 A.2d 185, 188 (1985), which, quoting McEvoy v. Quaker City Cab Co., 267 Pa. 527, 536, 110 A. 366, 368 (1920), reiterates the time-honored distinction between extrinsic fraud and intrinsic fraud as follows:

By the expression ‘extrinsic or collateral fraud’ is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy. Among these are the keeping of the defeated party away from court by false promise of compromise, or fraudulently keeping him in ignorance of the action. Another instance is where an attorney without authority pretends to represent a party and corruptly connives at his defeat, or where an attorney has been regularly employed and corruptly sells out his client’s interest. The fraud in such case is extrinsic or collateral to the question determined by the court. The reason for the rule is that there must be an end to litigation; and, where a party has had his day in court and knows what the issues are, he must be prepared to meet and expose penury then and there: Pico v. Cohn, 91 Cal. 129 [25 P. 970]. Where the alleged perjury relates to a question upon which there was a conflict, and it was necessary for the court to determine the truth or falsity of the testimony, the fraud is intrinsic and is concluded by the judgment, unless there be a showing that the jurisdiction of the court has been imposed up, or that by some fraudulent act of the prevailing party the other has been deprived of an opportunity for a fair trial. Bleakley v. Barclay, 75 Kansas 462 [89 P. 906].

Fenstermaker, 502 A.2d at 188.

Appellee alleged that appellant’s actions in procuring the divorce and settlement agreement amounted to duress which precluded her from seeking counsel and fully litigating the economic issues. Thus, the threshold question sub judice is whether duress falls under the definition of extrinsic fraud. Implicit in the majority’s decision is a holding that duress constitutes extrinsic fraud. Though I agree, I do so with some trepidation because my research of Pennsylvania case law has not revealed a single case where duress has been the reason a divorce decree was vacated (or opened).

Traditionally, extrinsic fraud has been found in the following situations: When a party is kept away from court by a promise of false compromise, Fenstermaker, supra (husband promised to complete on going settlement negotiations but did not after divorce decree was entered, decree vacated, wife allowed to litigate economic issues); when a party fraudulently assumes a residence to meet jurisdictional requirements, Nickerson v. Nickerson, 18 W.N.C. 210 (1883) (husband fraudulently assumed Pennsylvania residence to meet jurisdictional requirement; decree vacated); when a party is kept in ignorance of the action because notice was fraudulently withheld, Nickerson, supra (wife sent overseas by husband, husband then divorced wife on grounds of desertion, wife did not receive notice, decree vacated upon wife’s learning of divorce), Masciulli, supra (husband fraudulently concealed wife’s whereabouts, wife did not receive notice, decree vacated upon wife’s petition), Cortese v. Cortese, 163 Pa.Super. 553, 63 A.2d 420 (1949) (husband deprived wife of notice, decree vacated); and when defendant had notice of suit but was kept away by plaintiff’s representation that suit had been discontinued, Fidelity Ins. Co.’s Appeal, 93 Pa. 242 (1880). See also Freedman, Law of Marriage and Divorce in Pennsylvania (2nd Ed., Vol. 3, 1957) § 724; Pennsylvania Matrimonial Practice, § 35:3.

However, relief will not be afforded where the failure to defend is not caused by the fraud of the plaintiff, but is actually the fault of the defendant. See e.g., Catts v. Catts, 35 Pa.Super. 293 (1908) (respondent who directed her attorney to withdraw his appearance and then refrained from defending, although fully advised by her attorney of the consequences, cannot subsequently maintain she was denied a fair hearing); Knode v. Knode, 159 Pa.Super. 210, 48 A.2d 151 (1946) (defendant who intentionally conceals her residence, thus preventing him from giving notice, cannot maintain she was denied a fair trial); Taylor v. Taylor, 52 Pa.Super. 388 (1913) (defendant who knows of proceedings cannot excuse her failure to defend by the claim of her husband’s threat to institute a criminal action for adultery if she defended the divorce suit). In such cases, the defendant had every opportunity to appear and expose the allegedly fraudulent testimony of the plaintiff at the time of the suit but did not. But see, Teriberry v. Teriberry, 210 Pa.Super. 54, 232 A.2d 201 (1967) (wife appeared at trial and requested a continuance because her counsel could not appear, request denied, divorce entered, court applied equity power and opened divorce to allow wife her day in court).

Despite the dearth of Pennsylvania case law in support of the majority’s opinion, I recognize that the Legislature by defining extrinsic fraud extremely broadly — “... matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case” — in all likelihood intended it to encompass duress which precluded a party from defending. However, whether duress precluded a fair submission of the controversy should be determined on a case by case basis.

Instantly, I do not believe that appellee demonstrated that appellant’s actions prevented her from coming forward with a defense. Appellee contends that she refrained from retaining counsel because of her husband’s threats and that she was coerced into signing the documents without the advice of counsel. Appellee testified appellant “ordered” her not to see an attorney. (N.T., p. 12) She contends appellant would make statements to the effect that “people in his state of mind have murdered their family. They’ve shot their wives.” (N.T., p. 15) She stated appellant threatened “to tell a lot of my personal business ... [to] people I didn’t want to know, especially my children.” (N.T., pp. 17-18) Appellee testified that on one occasion, appellant “hit [her] with an open hand.” (N.T., p. 15) Appellee also alleged that appellant ran her off the road while she was driving her car, and that he wrote a biblical message concerning adultery on her bathroom mirror. (N.T., pp. 15, 13) In addition, after the date of separation, appellant, on several occasions, stayed at the marital residence over appellee’s objection.

I believe, however, that appellee’s argument is belied by the evidence. At the hearing on her petition to vacate, appellee admitted she received notice of every aspect of the divorce proceeding, and she consented to the divorce. In fact, appellee stated that it was she who first asked for a divorce. (N.T., p. 11) Further, appellee admitted “[she] was going with a man before the divorce was entered.” (N.T., p. 30)

Appellee does not contend that she was mislead as to the extent of the marital estate. Although she contends she did not read the agreement and was coerced into signing, appellee admits she signed the settlement agreement before a notary public. In her affidavit of consent to the divorce filed on December 31, 1986, appellee specifically stated “I understand that I may lose rights concerning alimony, division of property, lawyer’s fees or expenses if I do not claim them before a divorce is granted.” The parties also had entered into a premarital agreement which provided that all properties owned by the individual’s prior to the marriage would not become marital property.

Significantly, appellee admitted she knew well before the divorce was entered that she should seek the advise of counsel. (N.T., p. 23) She also admitted to receiving a letter from appellant’s counsel directing her to consult counsel before entering into the settlement agreement. And, when questioned by the court, appellee admitted that she was familiar with the divorce process as she had previously been divorced and had many divorced friends. (N.T., 43) Appellee even knew that after the divorce petition was filed, she could speak to an attorney about her rights because “the divorce was not final yet.” (N.T., p. 36)

When reviewing the evidence presented in a petition to vacate a divorce decree on the ground of duress, we should be cognizant of the acrimonious nature of divorce. Obviously, these parties no longer cared for one another. However, viewing her testimony in its best light, appellee failed to demonstrate abusive behavior on the part of the appellant. Appellant never directly threatened to harm appellee physically, and one slap does not rise to the level of abuse. Moreover, appellee did not allege a pattern of abuse which would lend credibility to her allegations.

Based on the facts adduced below, I am convinced that a person of ordinary sensibility would not have refrained from seeking counsel because of appellant’s actions. Granted this divorce was splenetic in nature, but appellee knew she should seek counsel and had every opportunity to defend in this action. I see no reason why fifteen months after entry of the divorce decree appellee should be allowed to escape its effect.

      . Section 401(j) provides:
      Whenever a decree or judgment is granted which nullifies or absolutely terminates the bonds of matrimony, any and all property rights which are dependent upon such marital relation, save those which are vested rights, are terminated unless the court otherwise expressly provides in its decree in accordance with subsection (b) or (b.l). All duties, rights, and claims accruing to either of said parties at any time heretofore in pursuance of the said marriage, shall cease and the parties shall, severally, be at liberty to marry again in like manner as if they had never been married, except where otherwise provided by law. 23 P.S. § 401©

      . The fundamental goal of finality inspired the equitable doctrine of estoppel and is mirrored in the maxim that "You may not sleep on your rights”. Appellee did not here sleep upon her rights. Rather, she was paralyzed by appellant’s threats of harm. "Fear flees in the face of reason and resolve, but terror vanquishes all”. (Vincent J. Dougherty, "From Mighty to Minion”, March 16, 1982). The law, not appellant, would be the villain were, upon this record, the trial court, or this Court, to give heed to the form of appellant’s argument and ignore the substance of the intimidation of which appellee had been victim.

      . The parties entered into a settlement agreement which was neither incorporated nor merged into the decree, and, consequently, appellee may still proceed in assumpsit. Caccavo v. Caccavo, 388 Pa.Super. 459, 463, 565 A.2d 1199, 1201 (1989) (a property settlement agreement not incorporated and merged into a divorce decree, it is not subject to modification pursuant to the provisions of the divorce code, but rather is governed by the law of contract); McFadden v. McFadden, 386 Pa.Super. 506, 510 n. 1, 563 A.2d 180, 182 n. 1 (1989); Sonder v. Sonder, 378 Pa.Super. 474, 492, 549 A.2d 155, 165 (1988) (en banc).

      . Analogizing to contract law, “[d]uress has been defined as that degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness____ The quality of firmness is assumed to exist in every person competent to contract, unless it appears that by reason of old age or other sufficient cause he is weak or infirm____ Moreover, in the absence of threats of actual bodily harm there can be no duress where the contracting party is free to consult with counsel.” Young v. Pileggi, 309 Pa.Super. 565, 455 A.2d 1228 (1983); Carrier v. William Penn Broadcasting Co., 426 Pa. 427, 233 A.2d 519 (1967), quoting from Smith v. Lenchner, 204 Pa.Super. 500, 205 A.2d 626 (1964).

      . Appellant’s primary asset, an auto race track, was purchased prior to the marriage.