text:
    615 A.2d 55
    COMMONWEALTH of Pennsylvania v. Eric ROGERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1992.
    Filed Oct. 1, 1992.

      Michael E. Wallace, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com.
    Before CAVANAUGH, OLSZEWSKI and MONTGOMERY, JJ.
   OLSZEWSKI, Judge.

Appellant, Eric Rogers, appeals from the judgment of sentence imposed on October 24, 1991, by the Court of Common Pleas of Philadelphia County. Following a jury trial, appellant was sentenced to life imprisonment on April 5, 1991. On October 24, 1991, after post-trial motions were heard and denied, appellant was sentenced to an additional 2/¿ to 5 years for possession of an instrument of crime, 5 to 10 years for criminal conspiracy, and 10 to 20 years for aggravated assault. These sentences are to be served consecutive to each other and to the life sentence.

Appellant worked for a man named Craig Haynes and received a salary of $600 a week to watch over Haynes’ drug houses. (N.T. 4/2/91 at 2.43, 2.49.) In the spring of 1989, the Haynes group and the Junior Black Mafia (JBM) became engaged in a “war.” The JBM was a rival group that conducted the same business as Haynes. Appellant’s conviction arose out of an incident that occurred on June 29, 1989. On that date, a crowd had gathered to watch a basketball game at Fourth Street and Washington Avenue. After consulting with Haynes, Byron Massey Lawrence informed appellant that two men sitting in a parked car were JBM members and that they were to “hit” them. (N.T. 4/1/91 at 2.34.)

The victims, Anthony Fletcher and Eric Hurst, were sitting in Fletcher’s gold BMW parked on Fourth Street beside the playground. Appellant was armed with a .45 caliber automatic which was given to him by Haynes two days prior to the shooting. Lawrence was armed with a .32 caliber automatic. Appellant repeatedly fired at the car from the rear while Lawrence shot from the front. Eric Hurst, who was shot from behind in the head and chest, fell to the ground and died as he tried to get out of the car. Fletcher ultimately recovered from the gunshot wounds. Raymond Adams, who was familiar with appellant and his accomplice, was an eyewitness to this grisly scene that occurred at approximately 7:15 P.M. (N.T. 4/1/91 at 1.146, 1.58-59; 4/2/91 at 2.65.)

On November 21, 1989, appellant was arrested and gave a voluntary inculpatory statement. At a hearing on March 22, 1991, appellant was unsuccessful in having that statement suppressed. After a jury trial on April 4, 1991, appellant was convicted of murder in the first degree, criminal conspiracy, aggravated assault, and possession of an instrument of crime. Appellant received a sentence of life imprisonment for first-degree murder. Post-trial motions were denied on October 24, 1991, and additional consecutive terms of 10 to 20, 5 to 10, and 2]é to 5 years were imposed. Appellant now appeals from the judgment of sentence.

Appellant raises eleven issues for our review. Because we find appellant’s contentions are without merit, we affirm the judgment of the lower court. Initially, we note that appellant’s statement of the questions presented is in violation of Pennsylvania Rule of Appellate Procedure 2116(a), which states that the statement of questions presented should not ordinarily exceed fifteen lines and must never exceed one page. Appellant’s statement of questions presented exceeds the limit by a half page. Nevertheless, we will address appellant’s contentions.

Appellant’s first contention is that the trial court erred in admitting, over objection, a portion of appellant’s statement relating to prior, wholly unrelated, crimes. Appellant complains that the statement was inflammatory and unrelated to the trial. We disagree.

Admissibility of evidence is a matter addressed to the sound discretion of the trial court and an appellate court may reverse only upon a showing that the lower court abused its discretion. Commonwealth v. Tedford, 523 Pa. 305, 328, 567 A.2d 610, 621 (1989).

Evidence of other crimes is generally inadmissible. Such evidence may, however, be admitted in certain circumstances where the evidence is relevant for some other legitimate purpose and not merely to prejudice the defendant by showing him or her to be a person of bad character. Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989). A defendant’s other criminal acts may be introduced to prove motive; intent; absence of mistake or accident; a common scheme, plan, or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others; or to establish the identity of the person on trial as the person who committed the crime in issue. Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989); Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987).

The portion of appellant’s statement that appellant objects to having been admitted into evidence established that appellant had previously worked for Craig Haynes by watching Haynes’ drug houses. In return, appellant received a salary of $600 per week. It also establishes that appellant was in jail for ten months, during which time he threatened a rival of Haynes. For this deed, appellant received a sum of $500 from Haynes. This statement was read to the jury during trial (N.T. 4/2/91 at 2.43), read by the prosecutor during his closing (N.T. 4/4/91 at 4.39-4.41), and read again during jury deliberations. (Id. at 4.101.)

Contrary to appellant’s allegations, this evidence does not contain “inflammatory, unrelated biographical material.” (Brief for appellant at 8.) The fact that appellant previously worked for the rival of the victims and collected money for protecting this rival demonstrates motive. Without the introduction of this evidence, there would be no apparent link between appellant and the victims.

Appellant’s contention that this evidence was irrelevant and inadmissible has been addressed by the Supreme Court in Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986), and Commonwealth v. Gwaltney, 497 Pa. 505, 442 A.2d 236 (1982). In Colson, this state’s Supreme Court held that evidence that defendant was a drug dealer with the victim’s brother who had a strong motive to kill the victim was admissible to show the relationships of the parties involved in the crime. Colson, 507 Pa. at 463, 490 A.2d at 823. In Gwaltney, evidence that showed that the defendant and the victim were members of rival gangs in Philadelphia was admissible to establish motive. Similarly, the evidence in this case was admissible to show the relationship between the parties that created the motive for murder.

Appellant also argues that the instant case does not fall into that class of cases where the motive is defined with specificity and where the other crime evidence has a particular, direct bearing upon motive. This argument has no merit. Caselaw requires only that the evidence be relevant. See Common wealth v. Cannaday, 404 Pa.Super. 215, 590 A.2d 356 (1991); Commonwealth v. Colson, supra. Instantly, the evidence was admissible and relevant to show the motive for murder.

Appellant further contends that irrelevant or peripheral evidence concerning drugs is especially objectionable. However, the evidence at issue was relevant to show motive for the shooting. Furthermore, evidence of other crimes, even those involving drug-related activities is admissible to demonstrate motive. In Commonwealth v. Ramos, 366 Pa.Super. 624, 532 A.2d 22 (1987), evidence was presented that appellant killed a drug dealer in competition with appellant’s Mend. Evidence that appellant and his Mend had threatened the victim for selling drugs in his territory was admissible. See also Commonwealth v. Gelber, 406 Pa.Super. 382, 594 A.2d 672 (1991); Commonwealth v. Stern, 393 Pa.Super. 152, 573 A.2d 1132 (1990).

Appellant alternatively argues that even if the other crime evidence in appellant’s statement was relevant to motive for the crime in question, its prejudicial effect outweighed any probative value. We disagree.

In determining whether evidence is admissible, the trial court should balance the relevancy and evidentiary need for the evidence of distinct crimes against the potential for undue prejudice. Commonwealth v. Lark, 505 Pa. 126, 477 A.2d 857 (1984). Where the evidence is relevant, the fact that testimony of another crime may be prejudicial will not make it inadmissible. Commonwealth v. Gelber, supra, (quoting Commonwealth v. Hall, 523 Pa. 75, 85, 565 A.2d 144, 149 (1989) (citing Commonwealth v. Morris, 513 Pa. 169, 175, 519 A.2d 374, 376 (1986)).

While the admission of this statement may be somewhat prejudicial to appellant, this is outweighed by its relevancy and probative value. As previously stated, the evidence in the present case is relevant to show appellant’s motive. It is probative to show a relationship between appellant and a rival of the victims. Indeed, it is the only apparent link between appellant and the victims. For this reason it was admitted into evidence. It was not offered into evidence to show that appellant is of bad character and has a propensity to commit crimes.

Also, as a farther precaution against improper prejudice, the judge instructed the jury that this evidence could only be considered for two purposes: one, to determine whether there was a relationship between appellant and Haynes; and, two, to determine whether this relationship provided a motive for the shooting of Anthony Fletcher and the murder of Eric Hurst. (N.T. 4/4/91 at 4.66.) Therefore, we disagree that the prejudicial effect of this evidence outweighed any probative value.

Appellant next contends that the trial court erred in admitting, over objection, testimony concerning appellant’s participation in an alleged drug transaction that took place on the Walt Whitman Bridge four months after the murder of Eric Hurst.

The evidence that appellant claims was improperly admitted established that on October 12,1989, appellant, Lawrence and Haynes were involved in a money drop on the Walt Whitman Bridge. The jury heard that on that date police were alerted to a car stopped on the bridge. The police thought the car had broken down and pushed the car to an exit ramp. Appellant then began to drive away, leaving Lawrence on the bridge. The police proceeded to pull over appellant who claimed not to know who Lawrence was. Meanwhile, another officer picked up Lawrence who was carrying a bag containing $19,900. (N.T. 4/3/91 at 3.20-3.22.) Appellant and Lawrence were arrested, brought to Port Authority and questioned. Later that night, two more cars visited that same spot on the bridge. When the officer pulled up, people ran away down the bridge. When stopped by the police, they gave false identification. One of the men was Craig Haynes. They were also taken to a police station. A woman then showed up at the station asking for directions. Officer Waninger became suspicious when this woman scanned the room and continued to look past him. The officer then looked into the vehicle in which she arrived and saw Lawrence in the car. {Id. at 3.23-3.27.)

Appellant mischaracterizes this evidence as an alleged “drug transaction.” (Brief for appellant at 20.) No evidence concerning drugs was admitted. Although the Commonwealth did have evidence that this was a drug transaction, the prosecutor agreed not to reveal that cocaine was later found on the bridge.

This evidence was also relevant to prove motive. Commonwealth v. Gwaltney, 497 Pa. 505, 442 A.2d 236 (1982). It was the Commonwealth’s theory of the case that appellant and Lawrence worked for Haynes and that they conspired to kill the victims, who were rivals of Haynes. This evidence was relevant to show a continuing conspiracy between appellant, Haynes, and Lawrence. Furthermore, appellant’s complaint that the bridge incident was four months after the alleged shooting does not preclude the admission of this evidence. Remoteness in time goes to weight, not admissibility. Commonwealth v. Zdrale, 397 Pa.Super. 167, 579 A.2d 1309 (1990), rev’d on other grounds 530 Pa. 313, 608 A.2d 1037 (Pa., 1992).

Appellant contends that even if this evidence was admissible, the prejudicial effect of the evidence outweighs any probative value. He also states that there was no attempt to mitigate the prejudicial impact by delivering an instruction suggesting that the evidence was to be considered only for some limited purpose.

As indicated, the evidence was offered to show the relationship of the parties which gave rise to the motive for the shooting. Moreover, contrary to appellant’s contention, the trial judge did deliver a cautionary instruction. The judge instructed the jury to consider the bridge evidence for one purpose only; that is, to show the relationship between conspirators Rogers, Haynes, and Lawrence. (N.T. 4/4/91 at 4.66.) This precautionary instruction was sufficient to guard against prejudice.

Appellant further alleges that the court erred by admitting, over objection, a photograph of the decedent at the scene of the shooting. This argument also has no merit.

Decisions regarding the admissibility of photographs are committed to the sound discretion of the trial judge and will not be reversed absent a showing that the trial court abused its discretion. Commonwealth v. Hernandez, 404 Pa.Super. 151, 590 A.2d 325 (1991) (citing Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977); Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974)).

It is not for the appellate court to usurp the function of the trial court to balance the alleged prejudicial effect of the evidence against its probative value. Commonwealth v. O’Shea, 523 Pa. 384, 400, 567 A.2d 1023, 1030 (1989). In determining the admissibility of the photographic evidence, the trial court must first determine whether the pictures are inflammatory. Commonwealth v. Young, 524 Pa. 373, 572 A.2d 1217 (1990). If they are not inflammatory, they are admissible, provided they are relevant and can assist the jury in understanding the facts. Even if the photos are inflammatory, they are admissible if their evidentiary value clearly outweighs the likelihood they will inflame the passions of the jurors. Commonwealth v. Hernandez, supra.

In the present case, the photograph in question was a black- and-white photo of decedent’s body; decedent had fallen as he tried to get out of the passenger side of the car. No blood was apparent. Upon review of the photograph, we determine that it was not inflammatory. Furthermore, the photo was relevant since it was probative of the position of decedent’s body. This was an issue at trial because appellant had claimed that he shot over the car making sure he didn’t shoot anyone. (N.T. 4/2/91, at 2.35.) Pursuant to the case law cited above, we find no error in the trial court’s admission of this photograph.

Appellant next states that the trial court erred in admitting, over objection, a chart indicating that the prosecution expert had concluded within a reasonable degree of certainty that a bullet entering decedent had been discharged from a .45 when in fact he had not reached such a conclusion.

This chart was probative of where the bullet came from. There were two guns involved in the shooting: one was a .32 caliber gun fired by Lawrence, the other was a .45 caliber gun fired by appellant. (N.T. 4/2/91, 2.35-2.36.) The officer testified that two bullets, one obtained from the car door and another obtained from the back of the victim’s head, were from the .45 caliber gun. The officer determined this because the bullet coming from the door weighed 218.8 grains and the one coming from the victim’s head weighed 221 grains. Bullets of a .32 caliber weigh 71 grains while the bullets of a .45 weigh 230 grains. When shot, a bullet loses some of its mass. If its weight is significantly higher than 71 grains it cannot be from a .32 caliber gun. It was Officer Finor’s testimony that the bullets in question came from the .45 caliber gun. A chart is authenticated by evidence sufficient to establish that the chart accurately represents that which it purports to represent. L. Packel and A. Poulin, Pennsylvania Evidence at § 901.3 (citing Wigmore and McCormick). Officer Finor stated that the chart prepared by the Commonwealth correctly represented his testimony. (N.T. 4/3/91, at 3.81-3.82.) Counsel for appellant had the opportunity to cross-examine Officer Finor on this point. If the testimony previously given by Officer Finor was inconsistent with the chart, then such inconsistency was a credibility determination for the jury.

Appellant also complains that the chart was prepared by the Commonwealth with the intention of deceiving the jury by false information contained in the chart. There is nothing in the record to support such a claim, and we will not speculate. We will point out that the authenticating witness need not have prepared the exhibit, but must simply have sufficient knowledge to authenticate it. (Id. at § 901.3 at 794.) Although Officer Finor did not prepare the chart in question, he had the requisite knowledge necessary to authenticate the chart.

Appellant next assigns error to the trial court for denying appellant’s request for a jury instruction on involuntary manslaughter. The Pennsylvania Supreme Court addressed the issue of when a trial court must give an instruction on involuntary manslaughter in Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980), and Commonwealth v. Williams, 490 Pa. 187, 415 A.2d 403 (1980). In White and Williams, the Supreme Court set forth the following standard:

To this end and to,finally clarify this situation, we now hold that in a murder prosecution, an involuntary manslaughter charge shall be given only when requested, and where the offense has been made an issue in the case and the trial evidence would reasonably support such a verdict.

White, 490 Pa. at 185, 415 A.2d at 402. We are bound by the decisions of our Supreme Court and, therefore, our decision herein will be controlled by this statement of the law. It has been held that “[i]f any version of the evidence in a homicide trial, from whatever source, supports a verdict of involuntary manslaughter, then the offense has been made an issue in the case, and a charge on involuntary manslaughter must be given if requested.” Commonwealth v. Draxinger, 345 Pa.Super. 554, 557, 498 A.2d 963, 965 (1985), cited in Commonwealth v. Bybel, 399 Pa.Super. 149, 581 A.2d 1380 (1990). The holding in Draxinger must be read considering the Supreme Court’s mandate in White and Williams. Therefore, our review in this case is: first, whether a request was made for the instruction; second, whether involuntary manslaughter was made an issue in the case; and third, whether all of the evidence from whatever source reasonably would support a verdict of involuntary manslaughter.

Under 18 Pa.C.S.A. § 2504(a), involuntary manslaughter requires evidence that the killing occurred due to recklessness or gross negligence. The only evidence in this case that supports a verdict of involuntary manslaughter is the following testimony of appellant:

I fired over the top of the car making sure I didn’t hit anybody. The direction that I was shooting I made sure that no one was standing there before I fired.

Appellant claims that this testimony supports a finding that his actions were only reckless and, therefore, he was entitled to an instruction on involuntary manslaughter. We disagree. The evidence at trial indicated that appellant was on the scene with a loaded gun he had been given by the leader of the drug gang that employed him. Appellant approached the vehicle and fired the entire magazine of the .45 caliber semi-automatic pistol into the vehicle occupied by the deceased victim and the other victim. The physical evidence at the scene of the crime placed spent .45 caliber cartridges on the ground in the vicinity of where appellant was firing, one .45 caliber bullet in the head of the decedent, and a second .45 caliber bullet in the lower portion of the door of the automobile. All of the evidence at trial was in complete contradiction to appellant’s version of the events. All of the evidence, except appellant’s testimony, places appellant firing the entire magazine of his weapon into an occupied vehicle. Such conduct is not recklessness or gross negligence, it is malice. One would have to disregard all of the evidence except that of appellant in order to have a case where the testimony even remotely supported involuntary manslaughter. The trial evidence in this case could not reasonably support a verdict on involuntary manslaughter. The trial court, therefore, properly denied any such instruction.

Appellant next contends that the trial court erred in denying appellant’s motion to suppress based on the lack of probable cause for issuance of the arrest warrant. Appellant contends that the veracity of the witness mentioned in the affidavit is questionable because the witness wrongly identified co-defendant Raymond Adams as one of the shooters, and also because the witness was an anonymous person. This argument is meritless. Our standard for reviewing such claims is:

In reviewing an order denying a motion to suppress evidence we must determine whether the factual findings of the lower court are supported by the evidence of record. Commonwealth v. Espada, 364 Pa.Super. 604, 607, 528 A.2d 968, 969 (1987). In making this determination, we may only consider the evidence of the Commonwealth witnesses and so much of the witnesses for the defendant as, fairly read in the context of the record as a whole, remains uncontradicted. Id. If the evidence supports the findings of the lower court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are in error. Id.

Commonwealth v. Frank, 407 Pa.Super. 500, 501, 595 A.2d 1258, 1259 (1991). We note, however, that determinations of credibility of witnesses, as well as the weight placed upon their testimony, is exclusively the province of the suppression court. Commonwealth v. Mason, 215 Pa.Super. 22, 608 A.2d 506, 507 (Pa.Super., 1992).

The test in this Commonwealth for determining whether probable cause exists for the issuance of an arrest warrant is the “totality of the circumstances.” Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Commonwealth v. Price, 318 Pa.Super. 240, 464 A.2d 1320 (1983) ; Commonwealth v. Moore, 321 Pa.Super. 1, 467 A.2d 862 (1983). In determining whether probable cause exists, a magistrate is not required to find a showing of criminal activity; mere probability of such criminal activity is sufficient for probable cause. Commonwealth v. Gray, 322 Pa.Super. 37, 46, 469 A.2d 169, 173 (1983). Furthermore, the information offered to demonstrate probable cause must be viewed in “a common sense, nontechnical, ungrudging and positive manner.” Commonwealth v. Jones, 506 Pa. 262, 484 A.2d 1383 (1984) . Our duty on appeal is to ensure that the magistrate had a “substantial basis for concluding that probable cause exists.” Commonwealth v. Fromal, 392 Pa.Super. 100, 114, 572 A.2d 711, 718 (1990) (quoting Illinois v. Gates, supra, 462 U.S. at 238-239, 103 S.Ct. at 2332). “A trial court’s determination of probable cause is accorded the utmost deference on appeal.” Commonwealth v. Singleton, 412 Pa.Super. 550, 603 A.2d 1072 (1992) (quoting Commonwealth v. Potter, 350 Pa.Super. 61, 67, 504 A.2d 243, 246 (1986)). We must limit our inquiry to the information within the four corners of the affidavit submitted in support of probable cause when determining whether the warrant was issued upon probable cause. See Pa.R.Crim.P. 119(a); Commonwealth v. Edmunds, 526 Pa. 374, 382, 586 A.2d 887, 891 (1991).

The affidavit in the present case indicated that Detective Augustine’s finding of probable cause to arrest was based on: his opinion that the grand jury presentment was an accurate summary of his petition in the investigation; discussions with other law enforcement personnel; his interview with Anthony Fletcher — the surviving victim; and, other eyewitnesses to the shoe ting. (Affidavit of Detective Augustine at 2.) Based on this information, an arrest warrant was issued.

The anonymous eyewitness in the grand jury presentment testified under oath. The credibility of this witness was a matter for the fact finder. Detective Augustine’s affidavit was based upon the sworn grand jury testimony of this anonymous eyewitness and information obtained through interviews with the other eyewitnesses and police personnel. We find that the anonymous eyewitness’s sworn testimony, corroborated with independent police investigation, was sufficient under the totality of circumstances test to issue an arrest warrant. Commonwealth v. Singleton, supra. The trial court did not err in denying appellant’s motion to suppress based on lack of probable cause for issuance of the arrest warrant.

Appellant’s next contentions are that the evidence was insufficient to prove conspiracy, murder in the first degree, and aggravated assault; and also that the verdicts were against the weight of the evidence. These claims are without merit.

Initially, we note that these claims are waived. In Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) (en banc), we held that we would no longer consider issues preserved where post-trial motions consisted of no more than statements that “the evidence was insufficient to support the verdict,” or that the “verdict was against the weight of the evidence.” Claims not specifically raised in post-trial motions are waived on appeal. Commonwealth v. Cardona, 316 Pa.Super. 381, 386, 463 A.2d 11, 14 (1983); Pa.R.Crim.P. 1123(a), (c)(3). In the present case, the post-trial motions were set forth in boilerplate language and are, therefore, not preserved for appellate review.

Even if these claims were not waived, however, they are meritless. In reviewing a challenge to the sufficiency of the evidence, we must determine:

... whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984) (citation omitted).

Contrary to appellant’s assertions, the evidence was sufficient to convict appellant of conspiracy under 18 Pa.C.S.A. § 903. Appellant states that there was no evidence that appellant entered into an agreement with the specific intent of promoting or facilitating the crime.

Under existing law in Pennsylvania, the Commonwealth need not prove an explicit or formal agreement in order to establish the existence of a criminal conspiracy. Commonwealth v. Manlin, 270 Pa.Super. 290, 411 A.2d 532 (1979). Agreement may be shown inferentially by showing the relation, conduct or circumstances of the parties. Commonwealth v. Jackson, supra. Overt acts of alleged co-conspirators are sufficient proof of a conspiracy. Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927 (1982).

In Commonwealth v. Monroe, 356 Pa.Super. 109, 514 A.2d 167 (1986), this Court found that there was sufficient evidence to support a conviction for conspiracy when appellant had gone out drinking with a companion before the robbery, drove to a supermarket with this companion, and appellant drove from the lot with his headlights off when his companion got into the car with the gun. Likewise, there is sufficient evidence in the present case for a conspiracy conviction. Appellant, by his own admission, stated that he worked for Haynes’ drug business. Appellant, along with his co-conspirator, shot at the victims because they belonged to the JBM. Subsequent to that shooting, the three conspirators were picked up by the police in the bridge incident. This is sufficient to find an inferential agreement between appellant, Lawrence, and Haynes due to their relationship in the drug business. Therefore, we find the evidence was sufficient to show that appellant was involved in a conspiracy and that the incident in question was not just a simultaneous shooting as appellant avers.

Appellant next complains that the evidence was insufficient to support a verdict for first-degree murder. First-degree murder is defined by 18 Pa.C.S.A. § 2502 as criminal homicide committed by an intentional killing. The Commonwealth’s evidence at trial indicated, at a minimum, that appellant approached the car with a loaded .45 caliber semi-automatic pistol. Upon reaching the rear of the vehicle, appellant opened fire and fired the entire magazine into the occupied vehicle. Appellant has argued there was no evidence of a specific intent to kill. We disagree. That appellant had a specific intent to kill is a reasonable inference from the facts as stated above. Viewing the evidence in the light most favorable to the Commonwealth and allowing all reasonable inferences therefrom, the evidence is sufficient for a first-degree murder conviction.

Appellant also argues that there was insufficient evidence to convict him of the aggravated assault of Anthony Fletcher who survived the shooting. Under 18 Pa.C.S.A. § 2702(a)(1) and (4), a person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily harm to another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life;
(4) attempts to cause or intentionally or knowingly causes bodily injury with a deadly weapon[;].

Appellant states that the evidence was insufficient to show that he intended to cause serious bodily harm to Anthony Fletcher. The fact that appellant shot a full magazine of bullets into the car, and killed the man in the passenger side next to Anthony Fletcher, leads us to the conclusion that appellant had a specific intent to cause serious bodily injury. Even if appellant did not have specific intent to cause bodily harm, he acted at a minimum recklessly under circumstances indicating extreme indifference to the value of human life. Further, appellant attempted to cause serious bodily injury to Anthony Fletcher with a deadly weapon, regardless of whether a bullet from appellant’s weapon struck Fletcher.

Finally, appellant contends that his convictions for criminal conspiracy, first-degree murder and aggravated assault were against the weight of the evidence. Our standard of review is that a verdict will not be deemed as against the weight of the evidence unless so contrary to the evidence as to “shock one’s sense of justice.” Commonwealth v. Jensch, 322 Pa.Super. 304, 469 A.2d 632 (1983).

Regarding appellant’s conviction for conspiracy, evidence was presented that appellant was in the drug business with Haynes; that the association between appellant, Haynes, and Lawrence continued after the shooting incident; and that he shot at the “JBM boys” along with Lawrence. In light of this evidence and the evidence discussed above in regard to appellant’s meritless challenge to the sufficiency of the evidence, we find that the verdict for criminal conspiracy was not contrary to the weight of the evidence.

Regarding appellant’s conviction for first-degree murder, there was eyewitness testimony at trial that appellant fired into the car, appellant admitted firing a .45 caliber handgun, .45 caliber bullets were removed from the victim’s head and the car door, and seven .45 caliber shells were found on the ground behind the car. In light of this evidence and the evidence discussed above in regard to appellant’s meritless challenge to the sufficiency of the evidence, we cannot say that a first-degree murder conviction is contrary to the weight of the evidence.

Appellant’s conviction for aggravated assault on Anthony Fletcher was not so contrary to the evidence as to shock our sense of justice where appellant shot into a car where Fletcher was sitting, killing the man on the passenger side.

Because we find that appellant’s contentions are without merit, we.affirm the judgment of the lower court.

Judgment of sentence affirmed.

CAVANAUGH, J., concurs in the result.

      . In Commonwealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111 (1991), this Court affirmed its right and duty to review a trial court's refusal to grant a new trial on the basis that the verdict is against the weight of the evidence. Contra, Murray, concurring and dissenting opinion by Olszewski, J. (appellate review of weight of evidence challenges is at variance with the fact-finding province of the jury and not properly the subject of appellate review).


source: Caselaw Access Project

author: ROWLEY, President Judge:

license: Public Domain

text:
    615 A.2d 65
    In re ESTATE OF Kalman KESSLER, Deceased. APPEAL OF Edward R. KESSLER and Howard J. Kessler, Co-Executors of the Estate of Kalman Kessler.
    Superior Court of Pennsylvania.
    Argued June 16, 1992.
    Filed Sept. 29, 1992.

      Richard H. Martin, Philadelphia, for appellant.
    David Freeman, Philadelphia, for participating party.

      Before ROWLEY, President Judge, and HUDOCK and BROSKY, JJ.
   ROWLEY, President Judge:

In this appeal we are asked to review a decree of the Orphans’ Court declaring that an inter vivos trust created by the late Kalman Kessler (“Father”) for the benefit of his sons, appellants Edward R. Kessler and Howard J. Kessler (“Sons”), was not irrevocable but, because Father intended to retain ownership of the trust assets, was instead a testamentary disposition which was ineffective to defeat the elective rights of Father’s widow, Muriel Kessler, appellee (‘Wife”). For the reasons set forth below, we vacate the decree of the Orphans’ Court.

On September 16, 1986, Father and Sons entered into a trust agreement which provides, inter alia, as follows:

Trustees [Sons] shall hold, manage, invest and reinvest the trust fund, collect the income arising therefrom, ... and shall pay over unto Trustor [Father], for and during his lifetime, the net income thereof.
Trustees shall pay so much of the principal of the trust fund as Trustor shall request in writing from time to time; provided, further, the aggregate of all such payments of principal so made unto Trustor upon his written request shall not exceed Ten Thousand ($10,000.00) Dollars in any calendar year in the aggregate; provided, however, that the decision to pay over principal to Trustor shall be exclusively within the discretion of the Trustees who shall be without liability for their decision not to pay over principal to Trustor.
Upon Trustor’s death, Trustees shall divide the trust fund ... into shares for my then living issue, [the distribution to be made on a per stirpes basis].
The Trustor has had explained to him, and he understands, the consequences of an irrevocable trust, and he declares that he intends this trust to be irrevocable, and he retains no right to alter, amend or revoke the same.

On February 12, 1987, five months after the creation of the trust, Father married Wife. He executed a will, naming Sons as executors, on July 29, 1987. Father died on December 11, 1987.

Wife filed an election to take her one-third share of Father’s property pursuant to 20 Pa.C.S. § 2203(a). In their Petition for Adjudication and Notices of Audit, Sons asserted that Wife had no interest in the trust. The account filed by Sons showed a balance of $11,858.88; it did not include the stock which constituted the trust assets, and which had a value at Father’s death of $191,754.88. Wife filed objections in which she argued, inter alia, that the trust assets should have been treated as part of Father’s estate and subject to her elective rights. A hearing concerning Wife’s objections was held on February 6, 1990.

In an adjudication and decree dated February 13, 1991, the Orphans’ Court found that Father never intended to divest himself of the ownership of the assets purportedly conveyed in trust and that “the trust [was therefore] a testamentary disposition which is ineffective to defeat the rights of his surviving spouse” (Adjudication at 28). The Court directed that the trust assets be treated as part of Father’s estate and subject to Wife’s elective rights. Sons filed exceptions. On November 13, 1991, an en banc panel of the Orphans’ Court, with one member dissenting, entered a final decree dismissing the exceptions and confirming the adjudication. Sons then filed this timely appeal.

Although appellants raise four issues, these issues essentially involve a single claim: that the evidence of record does not support the finding of the Orphans’ Court that Father intended to and did retain owmership and control of the assets purportedly conveyed in trust. Our role in reviewing this claim is to determine whether the record is free from legal error and whether the findings of the Orphans’ Court are supported by competent and sufficient evidence and “are not predicated upon capricious disbelief of competent and credible evidence.” In re Estate of Dembiec, 321 Pa.Super. 515, 520, 468 A.2d 1107, 1110 (1983). The findings of an Orphans’ Court judge who heard the testimony of witnesses are to be given the same weight as a jury verdict, particularly when those findings are based on determinations of credibility. Id. The test to be applied is not whether we, the reviewing court, would have reached the same result, but whether a judicial mind, after considering the evidence as a whole, could reasonably have reached the same conclusion. In re Masciantonio’s Estate, 392 Pa. 362, 367, 141 A.2d 362, 365 (1958).

Concerning the validity of inter vivos trusts, our Supreme Court has said the following:

While the cases so vary in their facts as to prevent the application of a general governing principle of law, some definite rules have emerged. They are summarized in In re Shapley Trust, 353 Pa. 499, at pages 500, 501, 46 A.2d 227 ...: “It will suffice to say that where the deed [trust instrument] vests a present interest in the beneficiaries it is a valid inter vivos trust. It is not rendered testamentary in character because the settlor reserves a beneficial life estate, and in addition, a power to revoke or modify in whole or part. Where, however, settlor, in addition to the reservations above mentioned, reserves the power to control the trustee as to the details of the administration of the trust, and thus makes the trustee merely the agent of the settlor, the scheme becomes testamentary as to dispositions intended to take effect after death.”

In re Pengelly’s Estate, 374 Pa. 358, 363-64, 97 A.2d 844, 846 (1953) (additional citations omitted; bracketed insertion in original). Wife’s right of election is set forth in the Probate, Estates and Fiduciaries Code as follows:

(a) Property subject to election. — When a married person domiciled in this Commonwealth dies, his surviving spouse has a right to an elective share of one-third of the following property:
(3) Property conveyed by the decedent during his lifetime to the extent that the decedent at the time of his death had a power to revoke the conveyance or to consume, invade or dispose of the principal for his own benefit.
In construing this subsection, a power in the decedent to withdraw income or principal, or a power in any person whose interest is not adverse to the decedent to distribute to or use for the benefit of the decedent any income or principal, shall be deemed to be a power in the decedent to withdraw so much of the income or principal as is subject to such power, even though such income or principal may be distributed only for support or other particular purpose or only in limited periodic amounts.

20 Pa.C.S. § 2203(a). The Official Comment which accompanied the 1978 enactment of this provision includes the following statement:

It is intended that the spouse should have a right of election only with respect to assets which the decedent retained the right or power to enjoy during his lifetime. This should not include property which the decedent has given away absolutely and cannot recapture for his own benefit, even though he has retained a power of appointment which cannot be exercised in his favor during his lifetime.

In order to understand the trial court’s findings, we turn first to the evidence offered at the hearing. David S. Workman, Esquire, the lawyer who prepared the trust for Father, testified as follows: During the latter half of August, 1986, Father consulted Mr. Workman because he had met someone whom he might marry and he wanted to insure that his assets would go to Sons at his death. Father explained that the income from his investments was sufficient for his needs, that the management of his assets had become burdensome to him, and that he wanted Sons to take over the management of the assets. Mr. Workman first suggested that Father enter into an antenuptial agreement with his future spouse, but Father suggested that such a device might be distasteful. Mr. Workman then suggested, as another means to the same end, an irrevocable trust. He explained to Father that if he placed his assets in such a trust he could never get them back again. He also asked Father whether he thought he would ever need the trust principal, and Father replied that he did not think so. Mr. Workman suggested that Father might at least want to reserve the right to ask the trustees for some of the principal each year, with the trustees having the power to grant or deny his request, and Father agreed to such a provision in the amount of $10,000 per year. To the best of Mr. Workman’s knowledge, Father funded the trust with substantially all of his liquid assets. Mr. Workman sent his bill for preparing the trust agreement to Howard Kessler.

Bennett Broad, senior vice president of Dean, Witter, Reynolds, Inc., testified that the firm received stock certificates in the name of Kalman Kessler, re-registered them in the name of the Kalman Kessler Trust, and sent them to the address of the trust, which was also the address of Father’s residence. Mr. Broad explained that Father had always preferred to hold his own securities rather than leave them with the broker. He emphasized that even if Father had the stock certificates in his possession, he would be unable to do anything with them, as they could be negotiated only by the trustees. The trustees, however, would have to get the certificates from Father in order to do so. Similarly, the dividend checks were registered in the name of the trust and only the trustees would have the power to cash them, regardless of where they were sent. After the formation of the trust, according to Mr. Broad, there were five transactions involving the securities in the trust, and all of those transactions were made at Sons’ direction. Mr. Broad described a conversation with Father as follows:

Q: What was the occasion for that conversation? Were you explaining to him what the trust meant?
A: No, I’m not his attorney. Again, I am just his custodian. But ... Kalman was very concerned about the receipt of his dividends and the — and knowing that everything was in order in his life. He was very fastidious that way, and he called us constantly to make sure that things were done. And in just one of our conversations I mentioned to him that his — that he had no power over this trust whatsoever; we were not able to take any instructions from him relative to this trust as he did not own this trust.
Q: But he wanted to get the dividends himself; is that correct?
A: No. We informed him at the time of the establishment of this trust that the irrevocability of it was such that the dividends were to be ultimately received by the trustees. He only asked they be sent to him because he could take the burden of the bookkeeping off of his sons.

N.T. at 32-33. Mr. Broad also testified that Father never tried to instruct him on the disposition of the securities.

Wife testified that she and Father decided to marry in the late spring of 1986 and made a definite decision to that effect around Thanksgiving of that year. Before the marriage, according to Wife, Father promised her that when they married she would receive $140,000 to $160,000, as well as a car, an apartment, and jewelry, and that “he would leave me in a much better position than my first husband had ...” (N.T. at 47). Wife testified that she first learned about the trust after the marriage, when she found in the mail a letter apparently enclosing a dividend check from the trust. Father and Wife “had words about it ... and he flew up and he said everything would work out” (N.T. at 48). Wife occasionally saw Father filling out deposit slips after receiving such envelopes.

Bernice Kessler, wife of Howard Kessler, testified that after Father received the stock certificates that had been reissued in the name of the trust, he asked her to put them in a safe deposit box and she did so, placing them in a box that was in her name only. On two or three occasions she removed certificates from the box at the direction of her husband and his brother so that they could execute transactions involving those certificates. She explained that dividend checks were endorsed by her husband and his brother and then turned over to Father, who deposited them or cashed them. With regard to the family relationship, she testified as follows:

Q: I assume ... that your relationship to your father-in-law was extremely close.
A: That’s correct.
Q: He trusted you implicitly?
A: I would certainly think so.
Q: Did he discuss with you drawing up the trust?
A: I was in on the discussions when he was planning it---I worked in my husband’s office, and my father-in-law was in the office every day at some time or another.
Q: He made deliveries for your husband, did he not?
A: That is correct.

N.T. at 134-35.

Howard Kessler and Edward Kessler testified that after the trust was formed Father asked them if they would lend him the money to buy a car and they agreed to do so, with Father giving them a promissory note for the sum involved, $10,800. Howard Kessler testified that Mr. Workman’s bill for setting up the trust was paid from his personal account. - Edward Kessler described the family relationship as follows:

My brother and I are very close. He calls me. I go to his office. It is a matter of fifteen or twenty blocks away from me. I see my father there. We meet for lunch. We do a lot of things.

N.T. at 147. In addition, there was the following exchange:

Q: Were you ... willing to trust your sister-in-law Bernice with these stock certificates?
A: Absolutely.
Q: You have a great deal of faith in her?
A: I have a great deal of faith in all of my family, sir.

N.T. at 154.

After examining “the pattern of behavior and course of conduct of the decedent in regards to his assets and his marriage” (Adjudication at 26), the Orphans’ Court reached the following conclusion:

This was a close knit family. They saw each other daily. They trusted each other implicitly. In all of his dealings with his children, Kalman Kessler was the instigator, leader and director of action. The sons and daughter-in-law did what the decedent told them to do when he told them to do it. Kalman Kessler was a very fastidious man who was in complete control of his assets and family at all times. In light of the foregoing, this Court finds that Kalman Kessler never intended to divest himself of the ownership of the assets which he purportedly conveyed in trust on September 16,1986; that Kalman Kessler decided to marry Murial [sic] Kessler and looked for devices to insure that she would not get her hands on his assets; that Kalman Kessler did not voluntarily and knowingly cut himself off from his assets and did not place himself at the mercy of his sons; that the sons always understood that their father was still in charge of his assets, that is, that he was the principal and they were his agents. We further find that Kalman Kessler did not give up any control of his assets when he gave the stock certificates to his daughter-in-law to hold in her safe deposit box; that the daughter-in-law stood ready, at his request, to deliver the certificates back to the decedent; and, that the sons stood ready, at the request of their father, to pay all of the trust assets to him. This Court finds that the sons had no interest in the trust which was adverse to that of their father because, as a matter of fact, the sons stood ready to do their father’s bidding at all times. No matter how colorable the terms of the Trust Agreement of September 16, 1986, the fact that Kalman Kessler never intended to divest himself of ownership of the assets which he purportedly conveyed in trust makes the trust a testamentary disposition which is ineffective to defeat the rights of his surviving spouse.

Adjudication at 27-28. The Court added that after observing the demeanor of Howard, Bernice, and Edward Kessler, and after considering Sons’ substantial interest in the outcome of the proceedings, it found the testimony of the three witnesses to be incredible in the matter of the automobile “loan” and in all other respects as well.

It is evident that the Orphans’ Court considered the matters before it with considerable care and in great detail. The Court’s frustration with the evasiveness of the Kessler witnesses, which is apparent even from our reading of the “cold” record, is understandable. We are aware of the Court’s findings, which have not been challenged on appeal, that “the decedent’s sons have conducted themselves, as executors, in a manner clearly calculated to frustrate the surviving spouse and protect their interests ...” (Adjudication at 29). Nevertheless, when we leave the matter of Sons’ conduct in the administration of Father’s estate and turn to the matter of Father’s intent in establishing the trust, we are constrained to hold that the Orphans’ Court’s findings of fact are unsupported by competent evidence and are made in “capricious disregard” of such evidence.

First, the Orphans’ Court analysis does not take into account the most direct evidence of Father’s intent, namely, the testimony of his lawyer, David Workman. According to this witness, Father wanted to have Sons take over the management of his liquid assets and to insure that Sons received them after his death. It was Mr. Workman, not Father, who suggested placing the assets in an irrevocable trust. It was also Mr. Workman who suggested that Father might wish to retain the right to request a certain amount of the principal; Father’s initial reaction was that he would not need any of the principal because the income from the securities would be sufficient for his needs. Mr. Workman testified emphatically that Father understood the irrevocability of the trust. As was noted by Judge Bruno, who dissented from the Court en banc’s decision in the matter, this testimony was uncontradicted. There is no evidence in the record that Father intended to do otherwise than establish an irrevocable trust.

Second, there is no evidence that Father ever attempted to exercise control over his assets after the trust was established. Bennett Broad, the Dean, Witter executive, testified that he informed Father that only Sons, as trustees, could give instructions concerning the trust and, more importantly, that Father never attempted to instruct him on the disposition of the securities in the trust. This testimony is also uncontradicted. According to Mr. Broad, all of the transactions involving the trust securities, three of which occurred before Father’s death, were ordered by Sons, the trustees. That Father “was very concerned about the receipt of his dividends,” as Mr. Broad testified, is unsurprising given the fact that he was entitled to receive the net income from the Trust. In addition, although Bernice Kessler testified that Father gave her the securities to place in her safe deposit box, there was no testimony indicating that Father ever sought to have them returned to him, nor was there any evidence that he tried to interfere when Bernice Kessler retrieved certain securities at Sons’ request.

Our review of the factual record reveals a similar lack of support for the Orphans’ Court’s findings concerning the Kessler family’s purported willingness to do Father’s bidding. While there is indeed evidence that the Kesslers were a close-knit family whose members saw each other daily and trusted each other implicitly, there is no evidence to indicate that “the sons and daughter-in-law did what the decedent told them to do when he told them to do it.” Bernice Kessler was not asked whether she would have returned the stock certificates to Father if he had asked for them. It does not follow automatically from Sons’ willingness to give Father the sum of $10,800 to enable him to buy a car that Sons would have been equally willing to relinquish their interest in assets worth more than $190,000 if Father had asked them to do so. The Orphans’ Court’s finding that there existed an “esoteric understanding” between Father and Sons is simply not supported by the record.

Wife describes as inconceivable the suggestion that a person who was retired and lacking any means of support would give away all of his securities, “leaving himself penniless and at the complete mercy of his sons” (Brief for Appellee at 9). As Mr. Workman’s testimony indicated, however, Father was not lacking in income; to the contrary, Father thought that the income from the Trust would be adequate for his needs. Moreover, it is not beyond comprehension that a parent who believed himself to be loved and trusted by his children would willingly relinquish control of his assets, secure in the belief that his children would care for him in the unlikely event that his income proved inadequate to the task.

We emphasize one final point. The Orphans’ Court’s finding that Father “looked for devices to insure that [Wife] would not get her hands on his assets” (Adjudication at 27) is supported by the record. However, Father was permitted to place those assets beyond the reach of his future spouse, provided that he intended to relinquish control of the assets. See 20 Pa.C.S. § 2203(a)(3), supra. The Orphans’ Court, despite its pejorative description of Father’s aim, acknowledges as much. We are not required to decide whether we approve of Father’s aim, but only whether the evidence of record supports the Orphans’ Court’s finding that Father intended to and did retain ownership and control of the trust assets. We conclude that it does not and, therefore, that the Kalman Kessler Trust was not a testamentary disposition but a valid inter vivos trust, the assets of which are not subject to Wife’s elective rights. Accordingly, we vacate the decree insofar as it holds to the contrary and remand the case to the Orphans’ Court with instructions that the trust assets are not to be treated as part of Father’s estate.

Decree vacated. Case remanded to the Orphans’ Court for further proceedings consistent with this memorandum. Jurisdiction relinquished.

      . However, as noted below, the Orphans’ Court found Sons’ testimony in this matter to be incredible and concluded that the alleged “loan” was a sham, with Sons never expecting to be repaid by Father.

      . Mr. Workman testified that he was not related to anyone in the Kessler family and that he did not represent Edward or Howard Kessler when Father consulted him about the trust. After Father died, Mr. Workman wrote wills for Sons and their wives, and he represented the Kessler family in connection with the probate of Father’s estate. The Orphans’ Court found that Mr. Workman "has clearly devoted much more time to the defense of his clients’ interests, as individuals, than he has devoted to advising them on how to administer this estate” (Adjudication at 31). The Court did not suggest, however, that Mr. Workman's testimony was unreliable.

      . We note that the Orphans’ Court’s findings as to Sons' interest in the trust are contradictory. On page 28 of the adjudication the Court, addressing Wife's claim that the Trust assets should be considered part of Father’s estate because he retained control over the assets, states that "the sons had no interest in the trust which was adverse to that of their father because, as a matter of fact, the sons stood ready to do their father’s bidding at all times.” On page 24, however, the Court states that "the sons, as issue of the decedent, had an interest in the principal which was adverse to that of the decedent.” The latter statement was in response to Wife's claim that she had a right to an elective share of the trust assets "by reason of the power of the decedent’s sons, as trustees, to make distributions of principal to him” (Adjudication at 24).


author: CERCONE, Judge:

text:
    615 A.2d 71
    B. Timothy HARCOURT, D.C., Appellant, v. GENERAL ACCIDENT INSURANCE COMPANY, Omni-Med Consultants, Inc.
    Superior Court of Pennsylvania.
    Argued June 2, 1992.
    Filed Oct. 5, 1992.

      James J. Kutz, Harrisburg, for appellant.
    Thomas E. Wood, Harrisburg, for Omni-Med, appellee. Douglas B. Marcello, Harrisburg, for General Accident, appellee.

      Before MONTEMURO, KELLY and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a final order sustaining preliminary objections filed on behalf of General Accident Insurance Company (“General Accident”) and Omni-Med Consultants, Inc. (“Omni-Med”). The order dismissed with prejudice a complaint filed by plaintiffiappellant B. Timothy Harcourt, D.C. For the reasons explained below, we vacate the order of the trial court and reinstate appellant’s complaint.

Certain relevant facts in the instant case have been correctly set forth by the trial court as follows:

The [plaintiff/appellant], B. Timothy Harcourt, D.C., is a doctor of chiropractic and is licensed to practice in Pennsylvania. On October 25, 1989, Brenda M. Wagner sustained injuries as the result of an automobile accident. On August 14, 1990, Ms. Wagner consulted the [appellant] for chiropractic treatment and a treating regimen was initiated. Dr. Harcourt billed General Accident Insurance Company ... which was Ms. Wagner’s first party medical benefits insurance carrier. General Accident challenged the reasonableness and necessity of the treatment rendered by Dr. Harcourt and engaged ... [Omni-Med] Consultants, Inc. ... to perform a review of Dr. Harcourt’s treatment pursuant to 75 Pa.C.S. § 1797. [Omni-Med] reviewed the matter and determined that the chiropractic care rendered by Dr. Harcourt was medically unnecessary. A request for reconsideration was filed with [Omni-Med by Dr. Harcourt].

Trial court opinion filed November 12, 1991 at 1-2. OmniMed’s denial notice to Dr. Harcourt properly informed him that he had a statutory right under the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1701 et seq., to request reconsideration of its decision. However, the denial notice also contained the information that Omni-Med intended to inject a non-statutory pre-requisite into the reconsideration process: Dr. Harcourt was required to submit four hundred fifty dollars ($450.00), payable in advance, before his claim would be reconsidered. See Appellant’s complaint, Exhibit A (letter from Omni-Med Consultants, Inc. dated January 14, 1991).

The certified record discloses that appellant lodged a timely request for reconsideration with Omni-Med. However, true to its letter of January 14th, the request remained unprocessed by Omni-Med since Dr. Harcourt didn’t pay the processing fee which Omni-Med had no statutory authority to impose. When neither Omni-Med nor General Accident would act upon his request for reconsideration, appellant instituted the litigation which is the subject of the instant appeal by filing a complaint in the Court of Common Pleas for Dauphin County.

Appellant’s complaint, docketed March 5, 1991, requested declaratory and equitable relief stemming from the alleged failure of Omni-Med and General Accident to follow the mandate of Pennsylvania’s Motor Vehicle Financial Responsibility Law (“MVFRL”), supra. The complaint averred that the defendants/appellees had refused to comply with MVFRL’s payment and peer review provisions. Appellant requested the trial court to direct the defendants/appellees to adhere to the requirements of MVFRL, provide him with an appropriate evaluation of his claim, and pay his provider fees during the pendency of the statutory review process. General Accident and Omni-Med responded by filing preliminary objections in the nature of a demurrer which were argued on October 2, 1991 before the Court of Common Pleas sitting en banc. The en banc panel of the Court of Common Pleas sustained the demurrer on November 12, 1991 and dismissed appellant’s complaint with prejudice. The instant timely appeal followed.

Appellant’s brief identifies four issues for our consideration:

I. Whether the trial court erred in granting [appellees’] preliminary objections in the nature of a demurrer.
[ II] . Whether the trial court’s dismissal of appellant’s complaint must be reversed because Act 6 of 1990,[] and section 1702 in particular, specifically require that an initial determination of a peer review organization, as that term is defined in section 1702, be performed by a doctor licensed in the same profession as the doctor whose treatment and services are subject to the review.
[ III] . Whether, in the alternative, the Insurance. Department’s regulations implementing the medical cost containment provisions of Act 6 of 1990, which were published in final form following the decision of the trial court, require the case to be remanded with instructions that the trial court determine whether the licensed health care provider [sic] who reviewed Dr. Harcourt’s records (Alan Keiser, D.O.) has experience providing and prescribing the precise care subject to the review.
[ IV] . Whether the trial court erred in concluding that an automobile insurance company may intentionally ignore the thirty day time limitation in which to challenge a provider’s treatment under 75 Pa.C.S. § 1797(b)(3) and withhold payment merely because the peer review organization ultimately recommends denial of payment.

Appellant’s brief at 3 (emphasis added). Appellee General Accident has provided a brief which responds in a point by point fashion to the claims presented by appellant. Appellee Omni-Med has directly responded to only one of appellant’s issues. However, Omni-Med has elected to raise two new points via its brief:

[1.] When the defendant in a declaratory judgment [action] is no longer engaged in the challenged activity, the issue is moot and any appeal should be dismissed.
[2.] The trial court lacked subject matter jurisdiction to hear [appellant’s] case.

Brief filed on behalf of Omni-Med Consultants, Inc. at i. Appellant thereafter filed a reply brief which presents the following arguments:

[ V.] The [Motor Vehicle Financial Responsibility Law (“MVFRL”) ], as amended, requires a PRO to utilize a doctor of chiropractic to review treatment provided by a doctor of chiropractic at the initial level of review when that initial determination recommends denial of payment.
[ VI.] General Accident violated the MVFRL by withholding payment to Dr. Harcourt notwithstanding its failure to challenge Dr. Harcourt’s treatment to peer review within thirty days from the date it received each bill for treatment.
[ VII.] [Omni-Med] waived its ability to secure removal from this litigation by failing to make the proper post-trial motion for substitution of parties.
[ VIII.] [Omni-Med] waived any challenge to the trial court’s jurisdiction.

Appellant’s reply brief at i (emphasis added).

We shall first address Omni-Med’s assertion that the Court of Common Pleas lacked subject matter jurisdiction to hear the complaint filed by Dr. Harcourt. Contrary to appellant’s argument, the absence of a timely objection by Omni-Med to the trial court’s subject matter jurisdiction is immaterial. An objection to jurisdiction over subject matter may never be lost by estoppel, consent, or waiver. Drummond v. Drummond, 414 Pa. 548, 551, 200 A.2d 887, 888 (1964). See also Civil Service Com’n v. Kuhn, 85 Pa.Commw. 85, 89, 480 A.2d 1327, 1329 (1984) (subject-matter jurisdiction cannot be conferred by the consent of the parties nor can it be waived as an issue). Although Omni-Med clearly has the right to challenge the court’s jurisdiction, we find that Court of Common Pleas exercised proper subject-matter jurisdiction in this case because of the nature of appellant’s claim.

Since in this case the insurer, General Accident, and the peer review organization, Omni-Med, refused to act on appellant’s petition for reconsideration, appellant petitioned the trial court for two types of relief: first, he sought a court order compelling General Accident and Omni-Med to comply with the statutory provisions of MVFRL; and second, he requested the court to provide declaratory relief in the form of an interpretation of 75 Pa.C.S. § 1797(b)(3) (Pending determination by a PRO). Appellee Omni-Med has objected to the trial court’s subject-matter jurisdiction on the grounds appellant has not exhausted his statutory remedies under MVFRL. We agree with Omni-Med that a statutory remedy is preferred over a common law remedy. 1 Pa.C.S. § 1504. Moreover, where there is a clear and adequate statutory remedy, that remedy is exclusive. See, e.g., Commonwealth Department of Environmental Resources v. Williams, 57 Pa. Commw. 8, 11, 425 A.2d 871, 872-73 (1981). In the instant case, however, we find that the governing statute provides no explicit “clear and adequate” remedy for the failure or deliberate refusal of either a provider or a PRO to abide by MVFRL’s reconsideration provisions.

Here, the provider had exhausted his remedies under MVFRL: he had timely requested PRO reconsideration. Appellees’ refusal to provide the statutory remedy left appellant with no recourse but to invoke the aid of a court of common pleas. To hold otherwise would be tantamount to ruling that our law permits an insurer to thwart the plain object of § 1797 by presenting a provider’s claim to a PRO and then tabling any subsequent request for reconsideration of the PRO’s ruling. Omni-Med’s reading of the statute would deprive an aggrieved provider of any means to obtain redress in the event an insurer or a PRO either refused or neglected to perform the reconsideration plainly required by § 1797(b)(2). The Legislature can never have intended such a patently absurd termination of a provider’s rights. See Crosby by Crosby v. Suite, 405 Pa.Super. 527, 541-42, 592 A.2d 1337, 1344-45 (1991) (courts should not construe statutes so as to promote or further absurd results).

Omni-Med also argues that appellant’s claims are moot, at least as to Omni-Med. Careful consideration of this contention discloses that under the guise of a general “mootness” argument, Omni-Med is actually seeking dismissal as a party from the instant litigation. The linchpin of this argument is an averment that appellee Omni-Med Consultants, Inc. entered into an asset purchase agreement on November 8, 1991 by which it sold the assets of its PRO business to an allegedly unrelated entity fortuitously called “Omni-Medicorp, Ltd.” Appellee Omni-Med therefore theorizes that appellant’s claims are moot as to it since it is “no longer in the PRO business” and “any issue as to the manner in which it [formerly] conducted its business is moot.” Appellee’s brief at 10. Unfortunately, we can find no indication in the certified record that Omni-Med either presented this mootness claim to the trial court or petitioned to be removed as a defendant. Issues not raised in the lower court are waived and cannot be raised for the first time on appeal. Pa.R.A.P., Rule 302(a), 42 Pa.C.S.

Having disposed of these initial procedural questions, we may now address appellant’s substantive claim: that the trial court erred in granting appellees’ preliminary objections in the nature of a demurrer. In support of this contention, appellant has presented three hypotheses. In the first and second instances, appellant claims (in the alternative): (1) that it was error on the part of the trial court to grant appellee’s preliminary objections in the nature of a demurrer because MVFRL requires the initial determination of a PRO to be performed by a medical practitioner licensed in the same profession as that of the treating practitioner whose services are subject to the reviewing process; or (2) that Insurance Department regulations which were implemented after the trial court’s decision was reached mandate initial PRO review by a medical practitioner licensed identically to the provider. Appellant also argues that it was error for the trial court to conclude that an automobile insurance company may ignore the thirty day limitation period provided by 75 Pa.C.S. § 1797(b)(3) during which the carrier may challenge a provider’s treatment.

Our scope of review from an order sustaining preliminary objections in the nature of a demurrer and dismissing a complaint is plenary. Cavaliere v. Duff’s Business Institute, 413 Pa.Super. 357, 364, 605 A.2d 397, 400 (1992). The role of this court is to ascertain “whether the trial court correctly determined that, taking as true all properly pleaded material facts and disregarding all pleaded conclusions of law, under no circumstances will the law permit recovery on the complaint.” Id. (citing Pawlowski v. Smorto, 403 Pa.Super. 71, 588 A.2d 36 (1990) and Doe v. Dyer-Goode, 389 Pa.Super. 151, 566 A.2d 889 (1989), allocatur denied, 527 Pa. 587, 588 A.2d 509 (1990)).

A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader’s right to relief. For the purpose of testing the legal sufficiency of the challenged pleading[,] a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, and every inference fairly deducible from those facts. The pleader’s conclusions or averments of law are not considered to be admitted as true by a demurrer. Since the sustaining of a demurrer results in a denial of the pleader’s claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.

Bash v. Bell Telephone Co., 411 Pa.Super. 347, 354-55, 601 A.2d 825, 828-29 (1992) (citations omitted).

Appellant has advanced alternative theories in support of his position that he was entitled to review by a member of his own profession during the initial phase of the PRO process. The thrust of his first argument is that the peer review mechanism mandated by 75 Pa.C.S. § 1797 cannot be interpreted in isolation, but can be properly understood only when read in pari materia with § 1702 which defines the phrase “Peer Review Organization.” Appellant is quite correct that § 1797 itself contains no discussion as to the professional qualifications required of the “peer” who performs the initial review:

Peer review plan. — Insurers shall contract jointly or separately with any peer review organization established for the purpose of evaluating treatment, health care services, products or accommodations provided to any injured person. Such evaluation shall be for the purpose of confirming that such treatment, products, services or accommodations conform to the professional standards of performance and are medically necessary. An insurer’s challenge must be made to a PRO within 90 days of the insurer’s receipt of the provider’s bill for treatment or services or may be made at any time for continuing treatment or services.

75 Pa.C.S. § 1797(b)(1). However, inspection of MVFRL demonstrates that the Legislature has supplied the pertinent explication for § 1797 via § 1702:

“Peer Review Organization” or “PRO.” Any Peer Review Organization with which the Federal Health Care Financing Administration or the Commonwealth contracts for medical review of Medicare or medical assistance services, or any health care review company, approved by the commissioner, that engages in peer review for the purpose of determining that medical and rehabilitation services are medically necessary and economically provided. The membership of any PRO utilized in connection with this chapter shall include representation from the profession whose services are subject to the review.

Id. § 1702 (emphasis added). This definition clearly requires that a PRO must include representation from the same profession under review whenever a PRO is employed in connection with any section of the Motor Vehicle Financial Responsibility Law. It would be absurd to interpret this statutory provision to mean that the PRO need only retain such qualified individuals as “window-dressing” but need not employ them in the actual review process. As previously stated, courts should not construe statutes so as to promote absurd results. Crosby by Crosby v. Sultz, 405 Pa.Super. at 541-42, 592 A.2d at 1344-45.

Appellant has correctly noted that the proper distinctions between the initial and reconsideration phases of the PRO process concern the status difference between a reviewer who is a member of the provider’s “profession” and one who is a member of the provider’s professional “specialty.” MVFRL requires that the initial PRO evaluation need only be performed by a member of the provider’s profession. However, any reconsideration conducted under the auspices of § 1797 must be handled by a person who belongs not only to the same profession, but is also a practitioner in the same specialty as the provider.

PRO reconsideration. — An insurer, provider or insured may request a reconsideration by the PRO of the PRO’s initial determination. Such a request for reconsideration must be made within 30 days of the PRO’s initial determination. If reconsideration is requested for the services of a physician or other licensed health care professional, then the reviewing individual must be, or the reviewing panel must include, an individual in the same specialty as the individual subject to review.

75 Pa.C.S. § 1797(b)(2) (emphasis added). While we agree with General Accident that the Legislature provided no explicit requirement for a particular form of initial PRO evaluation in § 1797(b) itself, we cannot agree that this constitutes a failure on the part of the Legislature. Simply put, the definitions of § 1702 control peer review under § 1797(b). That § 1797(b)(2) explicitly sets forth a more stringent form of evaluation for the reconsideration phase cannot be interpreted to mean that the initial PRO phase is unregulated in light of the clear language of § 1702, supra.

Appellant and appellee General Accident have presented lengthy and complex arguments regarding the proper professional qualifications which a PRO reviewer must possess. However, we need not go into detail regarding these claims because it is beyond cavil that words and phrases in a statute must be construed according to their common and approved usage. 1 Pa.C.S. § 1903(a). The term “profession” is defined by Webster as “the collective body of persons engaged in or practicing a particular calling or vocation.” Webster’s New Universal Unabridged Dictionary 1437 (J. McKechnie 2d ed. 1983). “Specialist,” however, has a much more restrictive definition. A specialist is “a person who devotes himself [or herself] to a particular branch of a profession, art, or science; a person who has studied and acquired specific knowledge on some particular subject; as, oculists and aurists are specialists as regards surgery.” Id. at 1741. In Pennsylvania, chiropractic licensure and practice is regulated by the Chiropractic Practice Act (“the Act”), 63 P.S. § 625.101 et seq. The provisions of the Act explicitly acknowledge that chiropractic is a profession which is further subdivided into specialty practices. Under Pennsylvania law, a practitioner of chiropractic may hold himself out as a “specialist,” but only after obtaining postgraduate certification in the avowed specialty. Id. § 625.506(a)(17). See also id. § 625.301 (defining the term “chiropractor”).

Applying these legal definitions to the present case, it emerges that chiropractors, the collective body of persons engaged as chiropractic practitioners, are exponents of a profession; but without postgraduate certification, chiropractors are not “specialists.” Under any reasonable interpretation of §§ 1702 and 1797(b) of MVFRL, appellant was entitled to an initial review by a member of his own profession, although not to review by a member of a chiropractic specialty, when the case was first submitted to the PRO. We therefore conclude that appellant was entitled to consideration by a chiropractor during the initial phase of the PRO review.

Appellant’s final allegation is that the trial court erred in permitting General Accident to 'willfully disregard the thirty day limitation period during which an insurance carrier may challenge a provider’s treatment without first paying the provider. Appellant believes that this error was compounded when the trial court disregarded the fact that the insurance carrier and the PRO acted in concert to impose non-statutory hurdles to the review/reconsideration process in the form of a $450 fee levied against Dr. Harcourt before Omni-Med would reconsider the claim. From the pleadings in the certified record, it appears to be appellees’ position that appellant’s request for reconsideration was untimely filed because he refused to pay Omni-Med’s reconsideration fee.

In this situation, we are inclined to agree with certain recent comments by the Honorable R. Stanton Wettick of the Court of Common Pleas of Allegheny County which are highly apropos of the instant case:

A PRO is not a neutral body. While a PRO cannot be owned by or be otherwise affiliated with the insurance company (31 Pa.Code § 68.3(d)), the law provides for the insurance company to select the PRO that will review the claim. The insurance company initially pays the PRO for its services. The insured plays no role in the selection process. Obviously, PROs have a strong financial incentive to appear fair in the eyes of the insurance company. Otherwise, the insurance company will take its business elsewhere. On the other hand, the PRO is not as concerned with how the insured views the PRO because this will not affect its future business. Consequently, the PRO does not have the characteristics of an independent body for which the Legislature would seek judicial deference.

Lehman v. State Farm Insurance Companies, 140 P.L.J. 78, 82 (1992). We can find no statutory provision in MVFRL which supports Omni-Med’s claim for a reconsideration fee to be paid by the medical provider. However, MVFRL does contain the following language dispositive of appellant’s challenge:

(3) Pending determinations by PRO.- — If the insurer challenges within 30 days the receipt of a bill for medical treatment or rehabilitative services, the insurer need not pay the provider subject to the challenge until a determination has been made by the PRO. The insured may not be billed for any treatment, accommodations, products or services during the peer review process.

75 Pa.C.S. § 1797(b)(3). We agree with appellant that section 1797(b)(3) clearly requires an insurance carrier to pay the provider any disputed amounts for treatment which has not been challenged until thirty-one (31) or more days after the carrier receives the bill for the treatment. Under the plain terms of subsection (b)(3), an insurer must pay a provider if the insurer has not commenced the PRO review process within thirty days.

The trial court actually agreed with appellant’s interpretation of the statute. However, the trial court considered the point to be moot because the initial PRO review favored General Accident:

We agree with [appellant] General Accident that since a decision has been rendered by the initial peer review panel that the treatment was medically unnecessary, Count II of the complaint is moot and should be dismissed. Although General Accident should not have withheld payment pending the PRO’S determination, it is now irrelevant that payment was withheld since, in the interim, the initial peer review panel determined that treatment was medically unnecessary. If, upon reconsideration, the PRO determines, or if on appeal this Court determines[,] that the services were medically unnecessary, [sic] the provider will be paid for his services plus interest at 12% per year on any amount withheld by an insurer pending PRO review. 75 Pa.C.S. § 1797(b)(5).

Trial court opinion at 6-7. We find the trial court’s mootness ruling inapplicable to the present case as the initial resolution of appellant’s claim was reached via a flawed and faulty process which cannot be permitted to stand. It is irrelevant that a plaintiff may tack an interest charge onto his award if he ultimately achieves a favorable result under the statute’s reconsideration provision. The plain terms of subsection (b)(5) required General Accident to pay Dr. Harcourt for the treatment rendered to Ms. Wagner during the initial review process if the matter was not referred to the PRO within thirty days of Dr. Harcourt’s billing.

We see no indication in the certified record for the instant ease that appellant was ever notified that General Accident had commissioned a peer review until he received the notice of the unfavorable evaluation by Omni-Med. The certified record is silent regarding the date on which General Accident referred the matter to Omni-Med. Since the record certified to this court provides no information concerning this factual matter crucial to resolution of appellant’s third claim, we must remand the case to the trial court so that it may determine the date on which General Accident submitted appellant’s claim to Omni-Med for initial PRO consideration. If this referral occurred more than thirty days after Dr. Harcourt originally submitted his claim, then he is entitled to payment of his fee plus interest as of the original submission date. See 75 Pa.C.S. § 1797(b)(3). In this event, the trial court shall enter an order directing General Accident to pay Dr. Harcourt the total amount of his claim plus the applicable interest. While the question of General Accident’s initial referral date is before the trial court, Omni-Med may petition for removal as a defendant in this litigation on grounds of mootness.

After the trial court has conducted the necessary fact-finding and made its ruling regarding Dr. Harcourt’s right to payment under § 1797(b)(3), General Accident may elect either to pay Dr. Harcourt and let the matter rest, or in the alternative, may proceed with a new peer review. Should General Accident initiate a peer review process on remand, Dr. Harcourt’s claim may only be referred to a new peer review organization which is unconnected in any way with appellee Omni-Med Consultants, Inc. The new PRO may not be a successor in interest to Omni-Med Consultants, Inc. If General Accident elects to pursue a peer review, the matter shall be submitted for an initial review to be conducted by a chiropractor in accordance with the foregoing opinion. Should the initial PRO determination favor General Accident, Dr. Harcourt will have the right to request reconsideration before a chiropractic specialist. Any reconsideration fee charged may not exceed the initial fee charged by the PRO to General Accident. The reconsideration fee must be paid by General Accident, but ultimately shall be borne by the party against whom the reconsideration determination is made.

The order of November 13, 1991 is vacated and appellant’s complaint is reinstated. The case is remanded with instructions. Jurisdiction is not retained.

      . An order which sustains preliminary objections and dismisses a complaint is, of course, both final and immediately appealable. See Bash v. Bell Telephone Co., 411 Pa.Super. 347, 601 A.2d 825 (1992).

      . "Act 6,” P.L. 11, No. 6 enacted February 7, 1990, effectuates extensive modifications to the Motor Vehicle Financial Responsibility Law which comprises Chapter 17 of the Motor Vehicle Code. See 75 Pa.C.S. § 1701 et seq. At issue in the instant appeal are the medical cost containment savings provisions of Act 6 “which limit permissible charges by health care providers for the treatment or services rendered to automobile accident victims ... and provide for the utilization of peer review organizations (PROs) by property and casualty insurers for the purpose of evaluating the quality and medical necessity of treatment.” 21 Pa.Bull. 5601 (November 30, 1991).

      . Section 1797(b)(3) is set forth infra in conjunction with our discussion and resolution of appellant’s allegations of trial court error.

      . Having reached the above conclusion, we need not consider appellant’s contentions regarding certain federal peer review regulations or those contained in Pennsylvania’s Peer Review Protection Act, 63 P.S. § 425.1 el seq., which allegedly support appellant’s interpretation of MVFRL. Nor will we address the merits of appellant’s alternative argument concerning the final regulations promulgated by the Insurance Department.

      . During the comment period prior to promulgation of final administrative regulations by the Insurance Department, appellee Omni-Med recommended that the requesting party (presumably the medical provider in most instances) should bear the cost of PRO reconsideration. 21 Pa.Bull. 5606 (November 30, 1991). This was not the position actually adopted by the Department. The final administrative regulations provide that the insurance carrier “shall make up-front payment for reconsideration to the PRO, but that the losing party shall ultimately pay for the reconsideration.” Id.; codified at 31 Pa.Code § 69.52(h). The Insurance Department established no fee schedule or formal fee structure for reconsideration because MVFRL contemplates that insurance carriers and PROs will contract jointly for the purpose of PRO review. 21 Pa.Bull. 5606. As a cost control measure, the charge for reconsideration may not exceed the charge for the initial review paid by the insurance carrier. Id.; 31 Pa.Code § 69.52(h). It is an unfortunate fact that the final administrative regulations simply were not promulgated by the Insurance Department in time to guide Omni-Med in its approach to Dr. Harcourt’s claim.

      . The subsections to which the trial court refers contain the following language:
      PRO determination in favor of provider or insured. — If a PRO determines that medical treatment or rehabilitative services or merchandise were medically necessary, the insurer must pay to the provider the outstanding amount plus interest at 12% per year on any amount withheld by the insurer pending PRO review.
      75 Pa.C.S. § 1797(b)(5);
      Determination in favor of insurer. — If it is determined by a PRO or court that a provider has provided unnecessary medical treatment or rehabilitative services or merchandise or that future provision of such treatment, services or merchandise will be unnecessary, or both, the provider may not collect payment for the medically unnecessary treatment, services or merchandise. If the provider has collected such payment, it must return the amount paid plus interest at 12% per year within 30 days.

        Id. § 1797(b)(7) (emphasis added). Both the trial court and appellees seem to misunderstand the import of subsection (b)(7) as they appear to believe that the provider would be under no obligation to return payments made by the insurer prior to a determination unfavorable to the provider.

      . Should a PRO ultimately determine that Dr. Harcourt’s services were medically unnecessary, he will be required to return this sum to General Accident. See 75 Pa.C.S. § 1797(b)(7).

      . This court is cognizant of the fact that the Insurance Department's administrative regulations directly apply only to insurer payments to providers for services rendered on and after November 30, 1991. 31 Pa.Code § 69.2. However, the parties to the instant litigation need no longer‘"operate in the dark” as to the proper construction and effect of 75 Pa.C.S. § 1797 because their peer review process may be fully informed by reference to the final administrative regulations set forth at 31 Pa.Code § 69.52.