author: POPOVICH, Judge:

text:
    543 A.2d 1216
    COMMONWEALTH of Pennsylvania, Appellant, v. Brian L. SWITZER, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1988.
    Filed June 17, 1988.

      Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellant.
    William T. Tully, Harrisburg, for appellee.
    Before CAVANAUGH, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Dauphin County, Criminal Division, entered October 7, 1986, granting appellee’s, Brian L. Switzer’s, motion to suppress evidence. We reverse.

On May 26, 1986, appellee was arrested for driving under the influence of alcohol (75 Pa.C.S.A. § 3731(a)(1-4) and driving a vehicle at an unsafe speed (75 Pa.C.S.A. § 3361) by Officer Eric P. Kessler of the Pennsylvania State Capitol Police (hereinafter referred to as “Capitol Police”). Initially, Officer Kessler, while on duty and coming from a state facility near 16th and Chestnut Streets in Harrisburg, observed appellee, who was driving a pick up truck, run a red light at the intersection of 15th and State Streets. Officer Kessler then followed appellee on State Street from 15th to 13th Streets when both stopped for a red light. Officer Kessler then continued to follow appellee who was traveling over the State Street Bridge at an excessive rate of speed. Officer Kessler determined that appellee was traveling at approximately 60 miles per hour in a 35 miles per hour zone. Upon crossing the bridge, appellee was stopped by Officer Kessler on 7th Street in the vicinity of a number of State owned facilities.

Officer Kessler approached appellee’s truck in order to converse with appellee. He observed appellee’s eyes to be “red, glassy and dilated” and noted an odor of alcoholic beverage. (N.T., October 7, 1986).

Appellee failed a field sobriety test which was administered by Officer Wass of the Capitol Police. Officer Kessler asked appellee if he would agree to take an intoxilyzer test. Officer Kessler then placed appellee in the rear of his police car and gave him his Miranda warnings. Appellee admitted to being at a bar for two (2) hours prior to the stop in question and drinking six (6) gin and tonics. Appellee was transported to the Harrisburg Police Department, where he was given an intoxilyzer test.

On October 7, 1986, a hearing was held before the Honorable John C. Cherry on appellee’s omnibus pre-trial motion to suppress evidence, i.e. Officer Kessler’s observations concerning appellee’s physical condition, field tests, statements and chemical breath test results. The lower court granted appellee’s motion. This appeal followed.

The Commonwealth presents two issues for our review on appeal: (1) whether the lower court erred in suppressing evidence based upon Capitol Police’s lack of primary jurisdiction; and, (2) whether the lower court erred in holding that the Municipal Police Jurisdiction Act (42 Pa.C.S.A. § 8951 et seq.) does not apply to Capitol Police.

Before discussing the merits of the Commonwealth’s claims, we must determine whether the Order appealed from in the instant case is final. In Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1985), the Pennsylvania Supreme Court held:

[T]he Commonwealth’s appeal of a suppression order is proper as an appeal from a final order when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution.

Since the record shows that the certification requirement has been satisfied in the case at bar, we hold that the Commonwealth has an absolute right of appeal to this Court to test the validity of a pre-trial suppression order. Id.

In Commonwealth v. Hubble, 509 Pa. 497, 504 A.2d 168, 171 (1986), the Court identified the appropriate standards of appellate review of a suppression court’s rulings:

On review, our responsibility is ‘to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.’ Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975).

It is the Commonwealth’s contentions that the lower court erred in suppressing the evidence in question based upon the Capitol Police’s lack of primary jurisdiction and erred in holding that the Municipal Police Jurisdiction Act (42 Pa.C.S.A. § 8951 et seq.) does not apply to Capitol Police.

The jurisdiction of the Capitol Police is defined in § 2416 of the Administrative Code of 1929, as amended, 71 Pa.S.A. § 646 Purdon Pamp. (1987). The pertinent sections to this proceeding are subsection (e) and (h), which read:

§ 646 (Adm.Code § 2416). Capitol Police, Commonwealth Property Police and Campus Police.
The Capitol Police, Commonwealth Property Police and the Security or Campus Police of all State colleges and universities, State aided or related colleges and universities and community colleges shall have the power, and their duty shall be:
(e) To exercise the same powers as are now or may hereafter be exercised under authority of law or ordinance by the police of the cities of Harrisburg, Pittsburgh and Philadelphia, municipalities in Dauphin County wherein State buildings are located and in municipalities wherein said colleges, universities and community colleges are located:
(h) To arrest any person who shall damage, mutilate or destroy the trees, plants, shrubbery, turf, grass-plots, benches, buildings or structures, or commit any other offense within State buildings on State grounds in Dauphin County, the Pittsburgh State Office Building and grounds, and the Philadelphia State Office Building and grounds, the executive mansion, and the grounds and buildings of all State colleges and universities, State aided or related colleges and universities and community colleges, and carry the offender before the proper aider-man, justice of the peace or magistrate and prefer charges against him under the laws of the Commonwealth.
Security and Campus Police shall exercise their powers and perform their duties only on the premises of the State colleges and universities, State aided or related colleges and universities and community colleges by or for which they are employed and only and after they have completed a course of training including crisis intervention training and riot control as approved by the Department of Education except, that Campus Police employed by State owned colleges and universities located in any municipalities, other than cities of the first class or second class, are authorized, in emergency situations occurring within the municipality, upon the request of the mayor or other executive authority and under the direction of the local law enforcement authorities, to exercise those powers and perform those duties conferred pursuant to this section within the municipality for the limited purpose of aiding local authorities in emergency situations.
As amended 1965, Sept. 28, P.L. 553 § 4; 1968, July 7, P.L. 297, No. 149, § 1; 1975, July 30, P.L. 149, No. 75, § 1, imd. effective; 1978, Sept. 27, P.L. 777, No. 149, § 4, imd. effective.

Appellee contends that the foregoing statute limits the jurisdiction of the Capitol Police to the borders of state property. We disagree. 71 Pa.S.A. § 646(e) specifically grants to the Capitol Police the same powers that are exercised by the police of the cities or municipalities in which they are employed. In addition, in § 646(d), the Capitol Police are permitted in the performance of their duties “to adopt whatever means may be necessary.”

In Commonwealth v. Pennsylvania Labor Relations Board, 502 Pa. 7, 463 A.2d 409 (1983), the Pennsylvania Supreme Court, in its attempt to settle a labor dispute, concluded that Capitol Police were “police” and not security guards. Moreover, the Court held that the performance of police duties by Capitol Police is “statutorily mandated and not merely incidental to the responsibilities of the Capitol Police.” 502 Pa. at 14, 463 A.2d at 412-13. The Court further concluded:

Section 646(e) is to be construed liberally with a view, inter alia, to the object to be attained by the statute and the consequences of a particular interpretation. Statutory Construction Act of 1972, Act of Dec. 6, 1972, No. 290, § 3, 1 Pa.C.S.A. §§ 1928(c) and 1921(4) and (6). Thus, by subsection (e) of this enabling legislation, the Capitol Police are vested with the same powers exercised by the police of the cities in which the Capitol Police are located.

502 Pa. at 15, 463 A.2d at 413.

Thus, we find that Capitol Police are considered “police” and are vested with the same powers exercised by the police of the cities and municipalities in which the Capitol Police are located. 71 Pa.S.A. § 646(e) and (h). Commonwealth v. Pennsylvania Labor Relations Board, supra.

In the instant case, the lower court held that the evidence must be suppressed due to the fact that the pursuit and arrest occurred on streets within the city of Harrisburg, outside the jurisdiction of the Capitol Police, rather than in a state building or on the grounds surrounding such a building.

42 Pa.C.S.A. § 8953(a)(2) and (5) provide municipal police with the power to make extra-territorial arrests:

§ 8953. Statewide municipal police jurisdiction
(a) General rule. — Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
(2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.
(5) Where the officer is on official business and views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer and which offense is a felony, misdemeanor, breach of the peace or other act which presents an immediate clear and present danger to persons or property.
1982, June 15, P.L. 512, No. 141, § 4, effective in 60 days.

Thus, pursuant to 71 Pa.S.A. § 646(e), the power which municipal police possess to make arrests outside their jurisdiction, subject to the provisions of 42 Pa.C.S.A. § 8953(a)(2) and (5), extends also to Capitol Police.

In Commonwealth v. Holderman, 284 Pa.Super. 161, 425 A.2d 752 (1981), this Court considered whether campus police, whose jurisdiction is also defined under 71 Pa.S.A. § 646, could make a warrantless arrest outside the boundaries of the campus while in fresh pursuit of a summary offender. In Holderman, supra, the campus police officer observed the defendant make an improper left turn from Shortlidge Road, which is located on the Pennsylvania State University campus, onto Park Avenue, located outside the campus. Following pursuit of the defendant through the intersection, the officers stopped his vehicle on Park Avenue. The defendant was charged by the officers with the summary traffic offense of making an improper turn (75 Pa.C.S.A. § 3331 and with the offense of driving under the influence of alcohol (75 Pa.C.S.A. § 3731), based on observations of the defendant following the stop. The Holderman court held:

... [Pjolice officers in Pennsylvania are empowered to make warrantless arrests of summary offenders outside the perimeter of their jurisdiction when in fresh pursuit. 42 Pa.C.S. § 8901. See Commonwealth v. Robb, 238 Pa.Super. 62, 352 A.2d 515 (1975). By virtue of subsection (e) of 71 P.S. § 646, the General Assembly has given campus police officers the same powers as those possessed by their municipal counterparts. By a fair reading of the statute, this grant of powers appears to encompass the power to make extraterritorial arrests. Consequently, campus police officers, in this rare instance, may pursue and arrest a summary offender fleeing campus. (footnote added).

284 Pa.Super. at 166, 425 A.2d at 755. The Holderman court further held:

Moreover, 71 P.S. § 646, like 42 Pa.C.S. § 8901, is not a penal statute and therefore must be liberally construed to effect its object and to promote justice. 1 Pa.C.S. § 1928. See Commonwealth v. Fiume, [278] Pa.Super. [75], 419 A.2d 1364 (1980); Commonwealth v. Robb, supra. A campus police force is a valuable resource of not only the college or university it serves but the surrounding municipality as well. (footnote added).

284 Pa.Super. at 167, 425 A.2d at 755-56.

However, in the instant case, the lower court relied on Commonwealth v. Roberts, 356 Pa.Super. 309, 514 A.2d 626 (1986) in arriving at its decision. In Roberts id., this Court affirmed an order suppressing evidence obtained during an arrest made by a park police officer, while outside his primary jurisdiction. The Roberts court determined that 42 Pa.C.S.A. § 8953 (Statewide Municipal Police Jurisdiction Act) did not apply to park police officers. Rather, the park police officers receive their authority from 16 Pa.S.A. § 2512, which provides:

§ 2512. Duty of Police

It shall be the duty of the police or guards appointed to duty in any recreation places, without warrant, forthwith to arrest any offender against the rules and regulations, ordained or resolved by the county commissioners, that they may detect in the commission of such offense, and to take the person so arrested forthwith before a magistrate, alderman or justice of the peace having competent jurisdiction. 1955, Aug. 9, P.L. 323, § 2512.

A careful reading of 16 Pa.S.A. § 2512 shows that park police officers are not given the power to make extra-territorial arrests. Commonwealth v. Roberts, id.

Unlike Park Police, Capitol Police and Campus Police do possess the authority to make extra-territorial arrests under 71 Pa.C.S.A. § 646(e) and the extra-territorial provisions of 42 Pa.C.S.A. § 8953. Therefore, in the instant case, we find that Capitol Police Officer Kessler, under 71 Pa.S.A. § 646(e) and 42 Pa.C.S.A. § 8953(a)(2) and (5), properly, made an extra-territorial arrest of appellee.

The case of Commonwealth v. Lymph, 372 Pa.Super. 97, 538 A.2d 1368 (1988), is directly on point. In Lymph, we held that:

Both the plain meaning of 71 P.S. § 646(e) and 42 Pa.C. S.A. § 8953 and the interpretation of the statutes by the courts of this Commonwealth provide Capitol Police with the authority to make extra-territorial arrests under certain circumstances. Capitol Police Officer Chiricos was acting within the scope of 71 P.S. § 646(e) as delineated in 42 Pa.C.S. § 8953 when, while on duty within his official patrol route he directly observed the misdemeanor offense which led to his extra-territorial arrest of appellant [for driving under the influence of alcohol]. Accordingly, appellant’s arrest was not illegal [and evidence from that arrest will not be suppressed.] Lymph, 538 A.2d at 1372.

Similarly, we find that appellee’s arrest for driving under the influence of alcohol and driving a vehicle at an unsafe speed was not illegal. Officer Kessler, while on duty covering his patrol route as a Capitol Police officer, directly observed appellee run a red light and travel 60 miles per hour in a 35 miles per hour area, both summary offenses, and observed the signs of driving under the influence of alcohol, a misdemeanor, once having stopped appellee’s vehicle. Therefore, pursuant to 71 Pa.S.A. § 646(e) and the extra-territorial arrest provision of 42 Pa.C.S.A. § 8953(a)(5), Officer Kessler possessed the power to make his extra-territorial arrest of appellee, despite the fact that the offenses did not take place in state buildings or on the grounds surrounding said state buildings.

Since appellee’s arrest was not illegal, we find that the lower court erred in granting appellee’s motion to suppress evidence.

Order reversed and the case is remanded for proceedings consistent with this opinion.

Jurisdiction is relinquished.

      . 42 Pa.C.S.A. § 8901 has since been repealed. (1982, June 15, P.L. 512, No. 141, § 3, effective in 60 days).
      It was replaced by 42 Pa.C.S.A. § 8953 which, as previously noted, currently provides municipal police in Pennsylvania with the power to make extra-territorial arrests.

      . As mentioned in footnote 1, 42 Pa.C.S.A. § 8901 has been repealed and has been replaced by 42 Pa.C.S.A. § 8953.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    543 A.2d 1221
    COMMONWEALTH of Pennsylvania v. Sterling K. MOLL, Appellant.
    Superior Court of Pennsylvania.
    Argued April 5, 1988.
    Filed June 14, 1988.
    Reargument Denied Aug. 5, 1988.

      Charles A. Rector, LeMoyne, for appellant.
    M.L. Ebert, Jr., Assistant District Attorney, Carlisle, for Com., appellee.
    Before BROSKY, MONTEMURO and JOHNSON, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence entered against appellant after his non-jury trial for criminal mischief.

Appellant challenges the sufficiency of the evidence to support his conviction for criminal mischief. For reasons appearing infra, we vacate the judgment of sentence and discharge appellant.

Appellant was arrested and charged with criminal mischief as a result of his admitted action in cutting a hole in a fifteen-inch storm drain pipe installed by the Borough of Wormleysburg, Cumberland County, on an easement adjacent to his property. While appellant admits to the act of cutting and, as a result thereof, damaging the drain pipe which belonged to the Borough, the crux of his representation is that “his conduct occurred without the presence of criminal intent to endanger property as is required by [18] Pa.C.S.A. [§] 3304(a) 2 [sic].” Appellant’s Brief, p. 6. For appellant, this lack of criminal intent, which forms the basis of his argument to this Court, translates into the Commonwealth’s failure to prove the malice element of this offense.

The concept of legal malice imports the absence of any justification, excuse or recognized mitigation of circumstances, an actual intent to cause the resulting harm or the willful commission of an act with the awareness of a strong likelihood that harm may result. See Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973). However, in the absence of malice as an express element of an offense, the Commonwealth must, instead, prove that an actor acted intentionally, knowingly, or recklessly. Commonwealth v. Moore, 261 Pa.Super. 92, 395 A.2d 1328 (1978). The section of the Crimes Code under which appellant is charged, 18 Pa.C.S.A. § 3304(a)(2), requires, as an element of its perpetration, intent or recklessness. Thus, malice is now embraced within the elements of intent, knowledge and recklessness. See Official Comment to § 302 of the Crimes Code, 18 Pa.C.S.A. § 302, defining the various requirements of culpability. The Comment goes on to state that words like “malice” have no settled meaning, and, consequently, the design of present Section 302 is to eliminate the obscurity of that term. Accordingly, if the Commonwealth’s level of proof had risen sufficiently to establish beyond a reasonable doubt the element of either intent or recklessness necessary to demonstrate that appellant caused the harm which the statute intended to prevent, it would have also proven that appellant acted with malice.

Appellant acknowledges that his act of cutting the pipe was intentional. He denies, however, that he was motivated by malice, i.e., an evil motive, to endanger property. Rather, he claims that this act was necessary to protect his property from flooding. The flooding caused damage to the understructure of appellant’s property, and his method of “self-help” actually alleviated the problem because it facilitated surface drainage of water from his property. We believe appellant’s reasoning here to be that his conduct did not rise to the level of harm which the criminal mischief statute was designed to prevent.

The section of the criminal mischief statute with which appellant was charged reads as follows:

§ 3304. Criminal mischief
(a) Offense defined. — A person is guilty of criminal mischief if he:
(2) intentionally or recklessly tampers with tangible property of another so as to endanger person or property....

In this regard, appellant’s intent when he broke the drain pipe, as he perceives it, was to protect his property, not to endanger the property of another. However, we must still contend with the facts that (a) appellant admitted his intent to break the pipe; and (b) the pipe belonged to the Borough, rather than to appellant.

The applicable section of the statute requires an intent to endanger property. As we stated earlier, appellant readily acknowledges that he broke the pipe. He even reported this misdeed to the appropriate Borough officials. But he disavows any criminal i.e., malicious motive in doing so. It is true that if an actor declares his intent, this establishes the requisite frame of mind without resort to circumstantial proof of his conduct. See Commonwealth v. O'Searo, 446 Pa. 224, 352 A.2d 30 (1976); Commonwealth v. Wright, 289 Pa.Super. 399, 433 A.2d 511 (1981).

Turning to Section 302 of the Crimes Code, 18 Pa.C.S.A. § 302, we see that it defines the culpable mental states elemental to the commission of the instant offense.

(b) Kinds of culpability defined.—

(1) A person acts intentionally with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
(3) A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and justifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.

Emphasis added.

Hence, if appellant were criminally motivated in cutting the pipe, the Commonwealth would have to prove that the nature of his conduct was to consciously cause the result the statute here in question seeks to guard against, i.e., tampering with tangible property of another with the intent to place person or property in danger.

The record made at the non-jury trial is replete with testimony from Borough Officials describing the problems which appellant had had with the Borough regarding past drainage problems. These problems culminated in the filing of two civil suits by appellant against the Borough. Three witnesses described appellant when he arrived at the Borough Building to report his misdeed as angry and upset. They testified that appellant was red-faced and shouting.

Interestingly, the Commonwealth makes much ado about appellant’s subsequent behavior at the Borough Building and focuses its appellate argument on this later conduct. However, appellant’s subsequent outburst and his general demeanor could not support a conviction for criminal mischief, since we may rely only upon the attendant facts and circumstances during the actual commission of the offense. While it may be true that appellant could have been (and probably was) angry and upset as he dug and then cut the offending hole in the pipe, we glean nothing in the language of the criminal mischief statute which makes emotionally charged behavior an element of this crime. Display of anger or other emotional upset, alone, simply does not translate into criminally actionable behavior.

Appellant cites Commonwealth v. Hines, 32 Pa.D. & C.3d 206 (1985), to support his assertion of lack of criminally culpable behavior here. In Hines, two girls were observed breaking off tree limbs and throwing portions of the limbs against a building. At a de novo hearing after one defendant’s summary conviction for criminal mischief, the trial court concluded that proof of malicious intent was not properly inferable under the circumstances. The prevailing circumstance there was that although defendant denied breaking limbs or damaging trees, she admitted pulling leaves from a tree as a jest. The trial court held that the act, even if committed as charged, was not the result of an evil intent or motive.

We believe that Hines is dispositive of the instant matter. The commission of an act done out of whim, jest, caprice or fancy is no different from one committed primarily to prevent structural damage to and land devaluation of one’s property in the absence of any criminally motivated intent, as here. Neither the Commonwealth nor the trial court seriously discount the applicability of Hines to the case at bar. As we stated elsewhere, however, the Commonwealth fruitlessly attempts to create a nexus between appellant’s act of cutting the storm pipe to facilitate surface drainage on his land and his subsequent display of emotion at the Borough Building to justify the charge of criminal mischief.

The statute in question requires intent to tamper with property so as to place a person or persons or property in danger. Mr. Rowland, the Borough’s consulting engineer and the Commonwealth’s expert in this case, testified that the hole cut in the pipe was small. He also testified that any damage that could result would be due to the appearance of dirt and debris in the pipe. If dirt and debris accumulated in the pipe, the latter would eventually clog and lead to backup. This, in turn, would cause further ponding of water (N.T. 35). He further testified that it would not be unusual for water, dirt and debris to be in a storm drain because these elements normally travel through the pipe. This is true even where a pipe has no holes whatever. As to the offending pipe here, Mr. Rowland indicated that he saw a “little bit of dirt” in the pipe when he looked into the hole which appellant had cut (N.T. 50). Finally, he testified that after the pipe had been flushed, which is a common practice, no foreign material was present (N.T. 55, 59). Mr. Rowland’s anticipation that if another rainstorm had occurred, debris would have flowed through the pipe, resulting in a large amount of soil settling in the pipe, is speculative because, as appellant’s counsel pointed out, no debris was found (N.T. 59). Consequently, no harm rising to the level of criminality was suffered to the pipe. Here, the Commonwealth has simply failed to satisfy the element of intent to cause the harm contemplated by the statute.

The applicable provision of the criminal mischief statute is worded in the disjunctive, however. Therefore, we must next consider whether appellant’s conduct was reckless. This means that the Commonwealth must demonstrate that appellant disregarded an unjustifiable and substantial risk that his conduct would produce the intended result, i.e., the domino effect of clogging, backup and then ponding. Appellant’s conduct in that regard would have to be shown to be a gross deviation from the standard of conduct of a reasonable person in appellant’s situation. As we stated earlier, no evidence of dirt or debris which could lead to endangerment of the pipe or to any other thing or person was proven to exist. Thus, since appellant’s conduct did not cause the harm which the statute seeks to protect against, it logically follows that the risk which appellant was assumed to have disregarded was equally non-existent.

We note that in reviewing the trial testimony, its tenor throughout retains the flavor of a trial of a civil suit for damage to the pipe, with appellant here admitting his liability insofar as the cutting but affirmatively defending that act on the basis of its ameliorative and remedial effect. The criminal courts of this Commonwealth are impressed with a duty to avenge harm and evil deeds committed against society. They do not now and were never meant to redress civil wrongs, as the Borough of Wormleysburg has sought here. Running appellant through the prosecutorial gauntlet is plainly an unfitting vehicle through which the Borough of Wormleysburg seeks redress for the harm done to its property. On this note, we caution both the Borough and the Commonwealth that:

[a]n avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates his duty, he establishes a precedent that will reach to himself.

T. Paine, Dissertation on First Principles of Government, in Common Sense and Other Political Writings, Thomas Paine 174 (W.F. Adkins ed. 1953) (1776). We urge the Borough, the Commonwealth and appellant to cast aside their respective battle gear and, instead, in the spirit of compromise, attempt a meaningful resolution of this and all related disputes among the parties.

Moreover, the instant prosecution of appellant is not reflective and fails to effectuate the general purposes of the Crimes Code, which are:

(1) To forbid and prevent conduct that unjustifiably inflicts or threatens substantial harm to individual or public interest.
(2) To safeguard conduct that is without fault from condemnation as criminal.
(3) To safeguard offenders against excessive, disproportionate or arbitrary punishment.
(4) To give fair warning of the nature of the conduct declared to constitute an offense, and of the sentences that may be imposed on conviction of an offense.
(5) To differentiate on reasonable grounds between serious and minor offenses, and to differentiate among offenders with a view to a just individualization in their treatment.

18 Pa.C.S.A. § 104.

That the subject criminal prosecution achieves these otherwise laudable goals here simply fails to persuade. Accordingly, we find it necessary to vacate the judgment of sentence of twelve-months’ unsupervised probation imposed upon appellant and order his discharge. We are reminded that Section 302(a) of the Crimes Code, 18 Pa.C.S.A. § 302(a), states that a person cannot be guilty of an offense unless he acts intentionally, knowingly, recklessly or negligently, depending on the minimum requirements of culpability set forth in the statute, with respect to each element thereof.

Even if we were to conclude that appellant’s conduct rose to a criminally culpable level, we would nevertheless incline towards the same result and order the prosecution dismissed as a de minimis infraction pursuant to Section 312 of the Crimes Code. That provision reads in applicable part as follows:

§ 312. De minimis infractions

(a) General rule. — The Court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the conduct of the defendant:
(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant condemnation of conviction____

18 Pa.C.S.A. § 312(a)(2).

This section applies to situations where no harm occurs either to the victim or to society, generally. Commonwealth v. Moses, 350 Pa.Super. 231, 504 A.2d 330 (1986). Its purpose is salutary — to remove petty infractions from the reach of the criminal law. See Comment following Section 312. Appellant’s act, while damaging, did not rise to the level of “the harm or evil sought to be prevented by the law defining the offense [of criminal mischief]....” Under the circumstances, it was “too trivial to warrant condemnation of conviction.”

The spirit of rebellion which aroused appellant’s fury against a political body non-responsive to the crys of an outraged citizen, yet quick to condemn his protestations as incorrigible and his motives ignoble is no different from that which kindled the zeal and the quest for liberty (we more often than not take for granted) by a rankled citizenry of small folk well over two hundred years ago. Since that time long past, many changes have been wrought on this Nation and this Commonwealth. We are heartened to see, however, that this fervor, boldness and intrepidness are yet very much alive, well and pervasive in at least one citizen of the Borough of Wormleysburg, Cumberland County, Pennsylvania.

Like Thomas Jefferson, we, too, “hold it, that a little rebellion, now and then, is a good thing, and as necessary in the political world as storms in the physical.” Letter to James Madison (January 30, 1787).

Judgment of sentence vacated; appellant is ordered discharged. Jurisdiction is not retained.

MONTEMURO and JOHNSON, JJ., concur in the result.

      . Although the information charges appellant with criminal mischief without citation to any subsection, the information does recite that he “intentionally, knowingly, recklessly or negligently damage[d] or tamper[ed] with the tangible property of another.” This essentially tracks the language of Section 3304(a)(2). The showing of criminal negligence and the requirement of damage to tangible property are included as elements to Section 3304(a)(1). But this subsection is inapplicable as no evidence exists that appellant employed fire, explosives or other dangerous means in digging towards and cutting the pipe.

      . Two law suits were filed by appellant against the Borough. The first resulted in the installation of the offending drain pipe which has now become the eye of the controversy among the parties. Continuing this saga is a second suit by appellant against the Borough filed pursuant to the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8521 et seq. The tenor of this complaint sounds in negligence on the part of the Borough for failing to take action to protect appellant’s property against structural damage and land devaluation. The Complaint also requests equitable relief. As an appellate tribunal, we are not prone, of course, to indulge in speculation. Our role is limited to the application of the law to facts appearing of record. In examining the instant record, we observe that the information charging appellant with the subject offense was handed down only after appellant filed the second suit, with approximately only one month separating the two events. We cannot be faulted, while in the performance of our judicial duties, for making a passing query as to what significance, indeed, if any, attaches to the chronological juxtaposition of these two occurrences.


author: WIEAND, Judge:

text:
    543 A.2d 1226
    COMMONWEALTH of Pennsylvania v. Augustine LODIS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 7, 1988.
    Filed June 20, 1988.
    Petition for Allowance of Appeal Denied Nov. 18, 1988.

      Richard M. Meltzer, Philadelphia, for appellant.
    Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Com., appellee.

      Before WIEAND, McEWEN and BECK, JJ.
   WIEAND, Judge:

This is a direct appeal from a judgment of sentence imposed upon Augustine Lodis after a jury had found him guilty of aggravated assault and possession of an instrument of crime. New counsel was appointed after Lodis had been sentenced, and, on appeal, Lodis alleges for the first time that trial counsel rendered ineffective assistance.

The facts of the case were summarized by the trial court as follows:

The Commonwealth presented evidence that on August 30, 1984, at approximately 7:00 P.M., the complainant, Michael Wuykiw, drove to the three hundred block of East Hunting Park Avenue in Philadelphia, as he customarily did, to allow his Doberman to run in a wooded area behind the Franklin Diner.
After about fifteen minutes, Wuykiw whistled for his dog, who returned and jumped into the car. As Wuykiw walked toward his car, the defendant, Augustine Lodis, came toward him carrying a 34" long pipe. He shouted: “Keep your mother fucking dog out of my property or I will blow your head off and your dog’s head off.” (N.T. 70, September 2, 1986.) An altercation ensued, first verbal and then physical. The dog jumped from the car and Lodis struck it several times with the pipe. Wuykiw retreated to his car, entering the driver’s seat, while the dog limped into the rear seat. The defendant walked back to the Elisha Webb building at 315 East Hunting Park Avenue.
The complainant started his car and began driving away. The defendant came out of the building and ran toward Wuykiw’s car. The complainant stopped, fearing that the defendant would run in front of the auto. The defendant ran up to the front passenger side of the car, thrust a gun halfway through the window and fired, striking the complainant in the neck. The dog was still in the back seat.
The complainant lost control of the car, which rolled across Hunting Park Avenue and struck another moving vehicle. Wuykiw saw Lodis run back into the Elisha Webb building.
The police arrived within minutes. After receiving information from the complainant, members of the Police Stake-Out Unit broke into the warehouse and after locating the defendant as he was coming out of a shower, placed him under arrest.
Kenneth Curry testified as a Commonwealth witness that at the time in question he was working at an Arco station across the street from 315 East Hunting Park Avenue. He saw a man leaning into a car parked on or near the Elisha Webb lot. There was a man in the driver’s seat. Curry assumed that the two were talking. He looked away and about thirty seconds later heard a noise which he presumed was a backfire. He then saw the car coasting from the parking lot toward the street and a man running from the car to the Elisha Webb building. The car was then involved in a collision with another vehicle.
The defendant testified that while he was working alone inside the Elisha Webb building, which was a warehouse owned by his father, he discovered a large Doberman chasing cats. He drove the dog off with a pipe and then went outside to investigate further. He observed the complainant with the animal and warned him to keep the dog off the property. The complainant started an altercation. The Doberman jumped from the car and circled Lodis. Fearing that it was going to attack, Lodis struck it with the pipe. The complainant threatened Lodis before driving away. The defendant re-entered the warehouse and resumed his work. About ten minutes later he heard the sound of a car pulling up. He went to an open garage door, carrying a gun for his own protection. He saw the Doberman begin to jump from the complainant’s car, which was fifteen to twenty feet away. Lodis fired once at the dog for his own protection and went back into the warehouse. The car pulled away and was involved in an accident across the street. The defendant removed the bullets from the gun and stored the weapon in one of the places he customarily kept it. He did not know that the complainant had been wounded until the police entered the warehouse.
The police officers who arrived at the scene were told by the complainant that his assailant had run into the building at 315 East Hunting Park Avenue. A police Stake-Out Unit was called to the scene and the building was placed under surveillance. After the building was observed for over a half hour, five or more police officers broke the lock to the door of the building with a battering ram and gained entrance. All were heavily armed. They proceeded to search the warehouse, an office area and rafters above the office. The officers heard noise coming from behind a door in an apartment area, and the defendant emerged, wet, clad only in a towel. He appeared to have just taken a shower.' Lodis acted surprised and made remarks indicating that he did not know why the police were there. (See N.T. 139, September 2, 1986) Detective John Walker testified that as soon as the defendant emerged from the shower room and saw the police he said: “[W]hat are you doing in here, you can’t be in here, you need a warrant____” (N.T. 152). Detective Walker asked Lodis in response if he hadn’t heard or seen what was going on outside, referring to blinking lights and the sound of police radios coming from vehicles which were visible and audible through a window. The defendant replied that he thought it was a traffic accident. (N.T. 153).
Detective Walker then told the defendant that there had been a shooting and that the person involved had run into the building. The defendant was placed under arrest, allowed to dress and was then taken to East Detective Division (N.T. 153-54).
The warehouse was not searched at that time and no evidence was seized.
A warrant to search the warehouse was obtained at 2:45 A.M. and Detective Walker proceeded immediately to search the premises for the handgun and ammunition. While there, he received a phone call from East Detectives informing him that the defendant wanted to show them where the gun was. Lodis was brought to the scene. He led Detective Walker to a shelf in the warehouse (N.T. 159). The handgun was found wrapped in a towel and was in an open box. Detective Walker noted that the gun was unloaded. He asked the defendant what happened to the ammunition and the defendant responded that he had dumped the ammunition before going into the building. (N.T. 159; N.T. 6, September 3, 1986). A box of .357 caliber ammunition was found by the police in the living area of the warehouse without the defendant’s assistance.

Lodis contends that trial counsel was ineffective for the following reasons: (1) he failed to move pre-trial to suppress the gun and the ammunition, as well as Lodis’s statements regarding the same; (2) he failed to object to questions regarding Lodis’s post-arrest silence; (3) he failed to question the complaining witness about a separate civil action for the purpose of attacking the witness' credibility; and (4) he failed to request jury instructions pertaining to (a) the voluntariness of Lodis’s statements to the police, and (b) the bias of the complaining witness.

The first step in reviewing an ineffectiveness of counsel issue is to determine whether there is arguable merit in the underlying claim. Commonwealth v. Pierce, 515 Pa. 153, 158-159, 527 A.2d 973, 975 (1987). Only when this threshold requirement is met do we proceed to determine whether counsel’s strategy was unreasonable and whether the alleged error resulted in prejudice to appellant. Id. In the instant case, we find that appellant’s contentions lack arguable merit. Therefore, the judgment of sentence will be affirmed.

Appellant contends that his statements regarding the location of the gun and his disposition of the ammunition were subject to suppression (1) because he had not been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (2) because he had not been arraigned within six (6) hours after arrest as required by Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Because the gun and ammunition were discovered following his statements, he argues, they were fruits of the poisoned tree and were also subject to suppression. We disagree.

Although appellant has argued that trial counsel was ineffective for failing to move pre-trial to suppress the ammunition, the record fails to reveal any causal connection between appellant’s statements and the finding of the ammunition by the police. Appellant’s statement was that he had dumped the ammunition. The police found the ammunition as a result of an independent search. The validity of this search has not been questioned. Therefore, there was no causal connection between appellant’s statement and the finding of the ammunition by the police.

The police had arrived at appellant’s warehouse armed with a valid search warrant and were in the process of executing the warrant when appellant volunteered to direct them to the weapon. The general rule is that evidence which would have been found by independent means is not subject to suppression merely because the finding was expedited by illegal police activity. In Commonwealth v. Brown, 470 Pa. 274, 368 A.2d 626 (1976), the Supreme Court said:

Where the initial taint did not affect the reliability of the evidence, the only basis for excluding relevant testimony is to discourage unlawful police conduct by preventing the exploitation by police of their improper acts. However, where the prosecution can establish that the challenged evidence would have come to its attention from an independent source free of the taint, there is not the type of exploitation of the illegality that requires the imposition of the rule of exclusion. Restated, where the evidence obtained as the result of illegal police activity would have been discovered in the course of a lawfully conducted investigation, no purpose is served in applying the exclusionary rule.

Id., 470 Pa. at 284, 368 A.2d at 631 (citation and footnote omitted). Although appellant’s statements in the instant case may have expedited the discovery of the gun, it seems certain that the gun would have been discovered independently thereof by police who had a warrant to search the very warehouse in which the gun was found. Under these circumstances, the gun was not subject to suppression either because appellant’s volunteered assistance had come seven hours after arrest or because it had not been preceded by Miranda warnings. Therefore, appellant’s present argument lacks substantive merit. Counsel will not be deemed ineffective for failing to file a meritless pre-trial motion. See: Commonwealth v. Ehrsam, 355 Pa.Super. 40, 512 A.2d 1199 (1986), appeal denied, 515 Pa. 573, 527 A.2d 535 (1987).

It does not appear, moreover, that appellant’s statements to the police were inculpatory. At trial, appellant’s defense was that he had had a gun which he had used for his own protection. He testified that on the date of the alleged offense he had shot at Wuykiw’s dog to protect himself against the dog and that he had been unaware that accidentally a bullet had struck Wuykiw. After he had used the gun, appellant testified, he had unloaded it for safety reasons, had wrapped it in a towel, and had stored it in his usual manner on a shelf in the warehouse. In support of this defense, appellant’s trial counsel attempted to show by evidence and argued to the jury that appellant had been cooperative with the police. In part, he relied upon the statements which Lodis had made to the police. This was a reasonable strategy intended to serve appellant’s interests, and appellant does not contend that counsel was ineffective for adopting such a strategy. Under these circumstances, it cannot be said that appellant was prejudiced by the Commonwealth’s references to appellant’s statements regarding the location of the gun and the ammunition.

Appellant next argues that counsel was ineffective because he failed to object to the following re-direct examination of the arresting officer by the prosecuting attorney:

Q: Counsel asked you whether the defendant was cooperative with you when you arrested the defendant and whether or not he was cooperative when he showed you where the gun was located. Do you remember that?
A: I do.
Q: He asked you whether or not he knew whether someone had been struck by a bullet.
A: No.
Q: At any time at all did he mention anything to you at firing at a dog or man or anything else?
A: No.

This testimony, appellant argues, was an attempt by the Commonwealth to exploit his exercise of the Fifth Amendment privilege against self-incrimination in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). However, appellant did not exercise his Fifth Amendment right. On the contrary, he freely made statements to the police and apparently attempted to cooperate with them during their investigation. Under these circumstances, it was not improper for the Commonwealth to challenge the credibility of appellant’s defense by identifying inconsistencies between his trial testimony and the statements which he had made to police during their investigation. This was not an attempt to exploit any exercise by appellant of his Fifth Amendment privilege against self-incrimination. See: Commonwealth v. Beavers, 492 Pa. 522, 424 A.2d 1313 (1981); Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985), overruled on other grounds, Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987); Commonwealth v. Bunting, 284 Pa. Super. 444, 426 A.2d 130 (1981); Commonwealth v. Humphreys, 267 Pa.Super. 318, 406 A.2d 1060 (1979), overruled on other grounds, Commonwealth v. Burchard, 349 Pa. Super. 456, 503 A.2d 936, appeal denied, Commonwealth v. Van Slochem, 514 Pa. 642, 523 A.2d 1131 (1986). Appellant’s trial counsel was not ineffective for failing to object to this examination of the arresting officer.

Appellant next contends that trial counsel was constitutionally ineffective because he failed to cross-examine the complaining witness about the civil action which he had commenced against appellant for the purpose of establishing bias or a financial motive for fabricating testimony in the criminal case. Whether to inject the civil action and the complaining witness’ claim for personal injuries — with all that such a claim entailed — -into the criminal action was a strategic decision to be made by counsel. The civil action was marginally relevant at best, and the effect which such evidence would have had on the jury in the criminal case was for trial counsel to determine. Whether cross-examination about the civil action would have been harmful or helpful to the defense is not the type of issue about which a court will substitute its judgment for that of counsel. It was a strategic decision, purely and simply, and not one for which trial counsel will be found ineffective.

Finally, appellant contends that trial counsel was ineffective because he failed to request jury instructions pertaining to (1) the possible involuntariness of his statements to the ,police; and (2) the possible bias of the complaining witness because of the civil action. There is no merit in this contention. There was no evidence to support a finding that appellant’s statements had been made involuntarily and no evidence that a civil action had been brought for damages. Jury instructions on these issues, therefore, were not warranted. Commonwealth v. Osborne, 433 Pa. 297, 249 A.2d 330 (1969). Counsel will not be deemed ineffective for failing to make a meritless request.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 2702(a)(1).

      . 18 Pa.C.S. § 907(a).

      . Lodis was sentenced to serve concurrent terms of imprisonment for not less than five (5) years nor more than ten (10) years on the assault conviction and for not less than one (1) year nor more than two (2) years for possession of an instrument of crime.

      . The Davenport rule was modified by Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987). As the rule now stands, statements made within six hours after arrest are admissible against a defendant even where arraignment is unduly delayed. Only those statements made after the six hour period and prior to arraignment will now be excluded. This modification has no application to the instant case, however, since the statements at issue were made by appellant after having been in custody for a period of seven hours.


author: KELLY, Judge:

text:
    543 A.2d 1232
    COMMONWEALTH of Pennsylvania v. Charles CARR, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1988.
    Filed June 28, 1988.

      Samuel C. Stretton, West Chester, for appellant.
    Deborah Fleisher, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before BECK, KELLY and JOHNSON, JJ.
   KELLY, Judge:

Appellant, Charles Carr, appeals from judgment of sentence entered following acceptance of a nolo contendere plea to charges of corruption of the morals of a minor and involuntary deviate sexual intercourse relating to the sodomization of appellant’s five year old grandson. Appellant contends that the trial court erred in failing to grant his motion to withdraw his plea. Appellant also seeks review of the discretionary aspects of sentence.

I.

Upon review of the record, the briefs of the parties and the opinion of the learned trial court, we find no merit in appellant’s contention that the trial court abused its discretion in denying appellant’s eleventh hour petition to withdraw his plea.

When a defendant moves to withdraw his plea prior to sentence, he need only show a fair and just reason for the withdrawal and a lack of substantial prejudice to the Commonwealth. See Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984). After sentencing, a defendant must show manifest injustice in order to be permitted to withdraw his plea. Commonwealth v. Schultz, 505 Pa. 188, 477 A.2d 1328 (1984). At the outset of the sentencing hearing on March 11, 1987, appellant moved to withdraw his plea. (N.T. 3/11/87 at 2). As sentence had not been imposed, we find that the pre-sentence standard applies.

While a written motion must be filed within 10 days to challenge the denial of a motion to withdraw a plea, Pa.R.Crim.P. 321(a), a written motion is not a prerequisite to a valid exercise of the trial court’s discretion to permit or direct the withdrawal of a plea under Pa.R.Crim.P. 320. See e.g. Commonwealth v. Whittall, 304 Pa.Super. 258, 450 A.2d 669 (1982) (plea withdrawn following an assertion of innocence by the defendant despite the absence of a written motion). See also Pa.R.Crim.P. 9020 (all motions must be made in writing except, inter alia, when made in open court during a trial or hearing). Consequently, we do not adopt the trial court’s alternate reasoning that the post-sentencing standard for withdrawing a guilty plea must be applied because a formal written motion to withdraw the plea was not filed until after sentence was imposed. Though not filed prior to sentencing, appellant’s motion was nonetheless made in open court prior to sentence and as such must be reviewed under the pre-sentencing standard.

As “just cause” to withdraw his plea, appellant alleged that he was not competent to make the plea at the time it was entered. He presented expert testimony in support of that claim. However, the trial court rejected the testimony of the appellant and his expert based upon the thorough plea colloquy, the erroneous assumptions upon which appellant’s expert’s testimony was based, and the contrary expert opinion in the psychiatric report requested by the trial court. See Trial Court Opinion 9/22/87 at 6. The trial court’s factual finding that appellant was competent to enter the plea is supported by the record; consequently, we find no abuse of discretion in the denial of the motion to withdraw the plea based on appellant’s failure to demonstrate “just cause” for withdrawal.

Moreover, the trial court’s finding that the Commonwealth would have been substantially prejudiced by withdrawal of the plea is also supported by the record. Whether intentional or not, the delays occasioned by the plea and subsequent motions for continuances by appellant resulted in a shift in family sympathies from the child victim to appellant. Though undoubtedly available in a technical sense, the reluctance of family members to testify in a way which would cause the incarceration of appellant is evident, and would have significantly impaired the prosecution of this case. Moreover, the eight month delay would undoubtedly have dulled the five year old child victim’s recall of events, even in the absence of the subtle influences resulting from the intra-familial nature of the assault. Thus, substantial prejudice was present.

Applying the pre-sentencing standard for withdrawal of a plea, either of the trial court’s findings would mandate denial of the motion to withdraw the plea; consequently, we find no abuse of discretion. See Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984); Commonwealth v. Dorian, 314 Pa.Super. 244, 248, 460 A.2d 1121, 1123 (1983), aff'd 503 Pa. 116, 468 A.2d 1091 (1983). Thus, appellant’s first contention is found to be without merit.

II.

We deny allowance of appeal as to appellant’s challenge to the discretionary aspects of sentence. Rather than presenting a substantial question as to the appropriateness of the sentence imposed considering the Sentencing Code as a whole, appellant merely asks this Court to substitute our assessment of the weight to be accorded to sentencing factors for that of the trial court. This we will not do absent extraordinary circumstances, which are not present here. See Commonwealth v. Moran, 369 Pa.Super. 109, 111, 534 A.2d 1103, 1104 (1987).

III.

Appellant argues in support of the above claim that a sentence of two to four years imprisonment (to be followed by three years probation), considering his age and health, constitutes unconstitutional cruel and unusual punishment. This argument raises a challenge to the legality of the sentence which may be brought as of right, rather than a challenge to the discretionary aspects of sentence for which allowance of appeal is required. See Commonwealth v. Howard, 373 Pa.Super. 246, 247-248, 540 A.2d 960, 960-961 (1988).

In the instant case, although appellant properly raised in his motion to modify sentence a separate challenge to the legality of the sentence asserting that the circumstances of his age and health rendered the sentence of imprisonment unconstitutional cruel and unusual punishment, he failed to set forth this challenge separately in his statement of questions presented or in the argument section of his brief. Pa.R.A.P. 2116; Pa.R.A.P. 2119. Instead, he incorporated his challenge to the legality of the sentence into his general challenge to the discretionary aspects of sentence asserting that the trial court abused its discretion by imposing an excessive sentence. {See Appellant’s Brief at 3, 16-18). Though those distinct claims should have been raised in separate statements of questions presented and developed in separate argument sections, we do not find that the briefing error in any way impairs our ability to exercise the power of review, and so we elect, in our discretion, to address the merits of the claim.

Our decision to address the merits of this claim will be of little solace to appellant; we find the claim to be wholly meritless.

Appellant does not contend that a sentence of two to four years imprisonment is per se cruel and unusual punishment or even that such a sentence is disproportionate to the harm occasioned by the crimes of which he is convicted. Rather, appellant presents the rather novel argument that the sentence is unconstitutional (rather than merely an abuse of discretion) because the trial court rejected an alternative probationary scheme proposed by appellant which appellant argues would have protected the community while better accommodating appellant’s special mental health needs. We reject this argument. We note that appellant has not established, and indeed does not even allege, that mental health services available within the Pennsylvania prison system cannot adequately meet appellant’s alleged special mental health needs.

While it is the judiciary’s function to impose sentence, it is the legislature’s function to enact criminal laws, define the elements of crimes, and set the punishments imposable for criminal conduct. See Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), aff'd sub nom. McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). A punishment authorized by a legislature violates the proscription against cruel and unusual punishment only if it is so disproportionate to an offense as to offend evolving standards of decency or a balanced sense of justice. Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). Appellant has not cited and we do not find any authority for the novel theory of unconstitutionality propounded here; we are emphatically of the opinion that the “least restrictive means” type analysis, implicit in appellant’s argument, has no place in the review of cruel and unusual punishment claims.

Furthermore, it is appellant’s conduct and not the sentence of the trial court which offends well-established standards of decency. The record demonstrates that the trial court gave full consideration to each of the mitigating factors presented by appellant; and, despite the extremely serious nature of the offense and the presence of a prior conviction for the same offense, the trial court nevertheless sentenced appellant below the applicable recommended mitigated minimum range of the sentencing guidelines. We find no constitutional violation. Cf. Commonwealth v. Howard, supra (the convict’s rehabilitative needs are not the sole focus of an inquiry into whether punishment is so excessive as to constitute cruel and unusual punishment; the gravity of the offense and the protection of the community must also be considered).

CONCLUSION

Based upon the foregoing, judgment of sentence is affirmed, allowance of appeal of discretionary aspects of sentence is denied.

       In Commonwealth v. Taylor, 306 Pa.Super. 1, 451 A.2d 1360 (1982), we explained:
      The Court will not meticulously examine each brief which comes before us with the express intent of suppressing those which contain minor defects or omissions which are correctable through less drastic means. However, where gross deviations from the appellate rules, which substantially impair our ability to exercise the power of review, are present, we will not hesitate to suppress the party's brief and quash the appeal.
      451 A.2d at 1361. (Emphasis added). See also Commonwealth v. Zeitlen, 366 Pa.Super. 78, 84-85, 530 A.2d 900, 903-04 (1987) (Kelly, J., concurring) (discussing appropriate responses to different types of violations of the briefing rules).


author: OLSZEWSKI, Judge:

text:
    543 A.2d 1235
    COMMONWEALTH of Pennsylvania v. Allen ROSS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 18, 1988.
    Filed June 20, 1988.

      John R. Kalenish, Johnstown, for appellant.
    James A. Nelson, Assistant District Attorney, Ebensburg, for Com.
    Before OLSZEWSKI, JOHNSON, and HESTER, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence imposed after appellant was convicted by jury of forty-seven counts of sexual crimes against his daughter and three of his girlfriend’s children. On appeal, appellant challenges the trial court’s decision to: (1) refuse to merge eleven counts of indecent assault with eleven counts of involuntary deviate sexual intercourse; (2) sentence appellant to forty-to-eighty years on the involuntary deviate charges; and (3) allow a whip to be admitted as one of the Commonwealth’s exhibits. We affirm.

During 1985 and early 1986, appellant regularly sexually assaulted his seven-year-old daughter, [E.R.], and three of his girlfriend’s children. The record reflects that appellant fondled the children, forced all of the victims to perform fellatio, and attempted sexual intercourse with the female victims. Appellant was subsequently convicted of eleven counts of involuntary deviate sexual intercourse, eleven counts of indecent assault, two counts of incest, and two counts of statutory rape. The trial court sentenced appellant to forty-to-eighty years on eight counts of involuntary deviate sexual intercourse and concurrent sentences on the remaining counts.

Appellant first complains that the eleven counts of indecent assault should have merged with the eleven counts of involuntary deviate sexual intercourse for sentencing purposes. Regarding merger, we have declared:

In order to find that separate statutory offenses merge, we must ... determine not only that the crimes arose out of the same criminal act, transaction, or episode, but also that the statutes defining the crimes charged were directed to substantially the same harm or evil. If we do not take both of these steps, we fail in our duty to effectuate the legislative mandate in. carrying out statutory punishments.
Obviously if a defendant has committed several discrete criminal acts, he may be punished separately for each of them despite their close relationship in a single criminal episode, as long as each act is a separate injury in itself. If there are separate criminal acts, the first condition for application of the merger doctrine does not exist. Once a defendant commits an original crime, he is not permitted to compound the injuries he inflicts and then escape liability for additional crimes under the guise that they all were done in the same criminal transaction— Even if the defendant’s criminal conduct consists of a single physical act, however, the merger doctrine does not bar separate punishments if there are substantially different interests of the Commonwealth at stake and the defendant’s act has injured each interest.

Commonwealth v. Williams, 344 Pa.Super. 108, 127-28, 496 A.2d 31, 42 (1985) (citations omitted); see also Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942 (1987).

Therefore, whether two charges shall be merged depends ultimately on the finding that there has been only one injury to the Commonwealth. Williams, supra, 344 Pa.Super. at 143, 496 A.2d at 50. Instantly, appellant was convicted of and sentenced separately for indecent assault and involuntary deviate sexual intercourse. These offenses are defined as follows:

Indecent assault
A person who had indecent contact with another not his spouse, or causes such other to have indecent contact with him is guilty of indecent assault, a misdemeanor of the second degree, if:
(1) He does so without the consent of the other person;
(3) He knows that the other person is unaware that a indecent contact is being committed; ...
******
Involuntary deviate sexual intercourse
A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person: ...
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; ...
(5) who is less than 16 years of age.

18 Pa.C.S.A. §§ 3126 and 3123.

In the case at bar, the record reflects that on several occasions appellant forced his victims to perform, and/or he performed, a variety of perverse sexual acts. We refuse to accept appellant’s argument that each count of indecent assault is necessarily subsumed in the involuntary deviate sexual intercourse counts. Testimony elicited at trial indicated that each incident did not result in a single sexual act. Often, several perverse acts were performed during an encounter. Therefore, we have no difficulty in finding acts which indicate that the two crimes were two separate criminal acts. See Commonwealth v. Klinger, 323 Pa.Super. 181, 470 A.2d 540 (1983) (separate offenses were indecent assault of fondling victim’s breasts, involuntary deviate sexual intercourse was act of cunnilingus). This contention is without merit.

Next, appellant complains that the trial court abused its discretion in sentencing appellant to forty-to-eighty years imprisonment. Pa.R.A.P. 2119(f) requires that “[a]n appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence.” See Commonwealth v. Tuladziecki, 513 Pa. 508, 511, 522 A.2d 17, 20-21 (1987). Because appellant has failed to set forth a concise statement and the Commonwealth has objected to this omission, appellant’s challenge to his sentence is waived. Id.

Finally, appellant claims that the trial court erred in allowing the Commonwealth to enter a whip into evidence because the whip’s prejudicial impact outweighed its probative value. It is well established that to be admissible, evidence must be relevant and its prejudicial impact must not outweigh its probative value. Commonwealth v. Clark, 280 Pa.Super. 1, 421 A.2d 374 (1980). This Court opined in Clark:

“Relevant evidence then, is evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible.” Commonwealth v. Shoatz, 469 Pa. 545, 564, 366 A.2d 1216, 1225 (1976); Commonwealth v. Walzack, 468 Pa. 210, 218, 360 A.2d 914, 918 (1976) (both quoting C. McCormick, Evidence § 185 at 437-38 (2d ed. 1972))____ Of course, the prejudicial impact of the evidence may outweigh its probative value, and the court may be moved to exclude the evidence on this basis. Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973); Commonwealth v. Quarles, 230 Pa.Super. 231, 326 A.2d 640 (1974). In determining whether evidence is so remote that the prejudicial effect outweighs the probative value, the court has no fixed standard on which to rely, but must instead consider the nature of the crime, the evidence being offered and all attendant circumstances. Commonwealth v. Kinnard, 230 Pa.Super. 134, 326 A.2d 541 (1974). The trial judge’s determination that evidence is not to remote to be admissible is within his sound discretion and will not be overturned absent an abuse. Id.

Id., 280 Pa.Superior at 6-7, 421 A.2d at 376.

Our scrutiny of the record indicates that appellant garnered his victims’ participation in the sexual acts by threat of corporal punishment. Testimony established that appellant repeatedly threatened the children with the whip. We find that the whip was relevant to establishing coercion and threat, required elements of the charged offenses. See supra. Therefore, our inquiry now becomes “whether the evidence is so prejudicial that it ‘may inflame’ the jury to make a decision based upon ‘something other than the legal propositions relevant to the case.’ ” Commonwealth v. Conway, 368 Pa.Super. 488, 494, 534 A.2d 541, 544 (1987), quoting Commonwealth v. Shain, 324 Pa.Super. 456, 464, 471 A.2d 1246, 1249 (1984).

Scrutiny of the record indicates that the introduction of the whip could not have resulted in the jury being so aroused as to be unable to decide the case in an impartial manner. Id., quoting Commonwealth v. Hodge, 270 Pa.Super. 232, 242, 411 A.2d 503, 508 (1979). The introduction of the whip was merely adding to and clarifying testimony already elicited regarding appellant’s modus operandi for forcing the children to succumb to his sexual acts. Its introduction was not inflammatory and therefore, was not overly prejudicial. See Conway, supra. Accordingly, we find that the trial court did not abuse its discretion in this regard.

The judgment of sentence is affirmed.

      . Although the sexual act was not completed, appellant did achieve vaginal penetration.

      . For instance, [J.L.] testified that on several occasions, appellant forced her to touch his penis and then perform fellatio. [J.L.] further testified that during these encounters, three other victims were present and were forced ,to “do the same things.” Transcript at 80, 89. In addition, appellant’s daughter testified that on numerous occasions, appellant touched her "private parts” with his hands and mouth, in addition to attempting to have sexual intercourse with her. Transcript at 106-107, 114-115.


text:
    543 A.2d 1238
    Martin MARGOLIS, John Black, and Milton Lopus, t/d/b/a Financial Management Services, A Partnership, Appellants, v. Frank W. JACKSON, Jackson Gastroenterology Ltd., and Polyclinic Medical Center.
    Superior Court of Pennsylvania.
    Submitted April 5, 1988.
    Filed July 1, 1988.

      Spero T. Lappas, Harrisburg, for appellants.
    Wayne R. Spivey, Philadelphia, for appellees.
    Before BROSKY, MONTEMURO and JOHNSON, JJ.
   BROSKY, Judge:

This is an appeal from an order dismissing appellants’ cause of action.

Martin Margolis, John Black and Milton Lopus together make up a partnership known as Financial Management Services. Milton Lopus and the partnership sued appellees alleging an economic loss suffered as a result of tortious acts committed upon Milton Lopus. Upon demurrer the appellant partnership was dismissed. Appellant argues that a partnership has or should have a cause of action against a defendant whose negligence has caused the partnership to suffer lost income. We disagree and affirm the order appealed from.

Appellees provided certain medical services to Milton Lopus who subsequently suffered a serious illness. Lopus sued appellees alleging personal injury; Financial Management Services was an additional party and alleged economic loss due to the inability of Lopus to perform his functions in the partnership. Appellant argues its cause of action is not precluded by Pennsylvania law. We must conclude otherwise.

All parties involved here have argued the applicability of our Supreme Court’s holding in Philadelphia v. Philadelphia Rapid Transit Company, 337 Pa. 1, 10 A.2d 434 (1940). There, the City of Philadelphia attempted to recover damages in the form of wages and expenses paid to three firemen as a result of injuries they received when a trolley operated by the appellee struck a fire truck. The Court stated that whatever right the city had to recover such damages must be based upon the equitable doctrine of subrogation, and, in so doing, implicitly indicated that the city had no cause of action in its own right.

In Whirley Industries, Inc. v. Segel, 316 Pa.Super. 75, 462 A.2d 800 (1983), a panel of this court concluded that an employer’s cause of action against a third party could not be maintained where the employer sought recovery for increased workers compensation premiums resulting from a motor vehicle accident involving the third party and the employer’s employee. We made this conclusion even after acknowledging that, under such facts, the employer had no opportunity to recover via subrogation by provisions in the No-fault Act.

Both of the above cases dealt with an economic loss “out-of-pocket”, a type of loss representing money actually paid out by the employer. Appellant partnership, however, is seeking loss of expected profits. Attempts to recover such losses have also met with dismissal. In Aikens v. Baltimore and Ohio Railroad Co., 348 Pa.Super. 17, 501 A.2d 277 (1985), employees at a manufacturing company sued a railroad company where a train derailed and damaged the plant, causing the employees to miss work and wages. We held there that no cause of action was allowed for recovery of only economic loss occasioned by a negligent act. Although the present case is not identical to those above, the principle running throughout appears to convincingly foreclose the action found in this case.

The above cited cases clearly limit the extent that a negligent tortfeasor will be made legally liable for an economic loss caused directly or indirectly by the tortfeasor’s negligent act or conduct. Purely economical loss, when not accompanied with or occasioned by injury, is considered beyond the scope of recovery even if a direct result of the negligent act. Aikens, supra. Economic loss that is experienced due to an obligation of an employer to an employee, and occasioned by the negligence of a third party, will not give rise to an independent action by the employer against the third party, but rather, at best, a right of subrogation. Philadelphia v. Philadelphia Rapid Transit, supra., Whirley, supra. From these holdings it is obvious that a partnership or its partners will not be allowed to recover at law against a third party negligent tortfeasor when it suffers a loss of expected profits as the indirect result of the negligent incapacitation of a member of the partnership. Although some of the discussion behind the previous holdings centered around the foreseeability of the loss, other factors, perhaps even more convincing than foreseeability itself, have figured prominently in those holdings as well. For instance, in Aikens we stated:

To allow a cause of action for negligent cause of purely economic loss would be to open the-door to every person in the economic chain of the negligent person or business to bring a cause of action. Such an outstanding burden is clearly inappropriate and a danger to our economic system.

348 Pa.Superior Ct. at 21, 501 A.2d at 279.

Even more relevant to our holding today is the view expressed by our Supreme Court in the Philadelphia Rapid Transit case:

Appellant contends that the relation between the city and the firemen was that of master and servant and a common law a master has a right of action for loss of services of his servant caused by the negligence of a third party and that, the city’s suit can be sustained on that theory. It is extremely doubtful whether such a right of action should be recognized under modern conditions. It had its beginnings at a time when the relation of master and servant was totally different from that of today.

10 A.2d at 435-36.

This is essentially what appellants have asked us to do today and, as intimated by our Supreme Court, we find such a cause of action inappropriate and unrealistic in today’s economic and social climate.

For the foregoing reasons, we affirm the order appealed from.

Order affirmed.

MONTEMURO, J., concurs in the result.

      . It would appear that the employer would have no right to recover these damages through subrogation as the employee would have no right to recover these damages from the tortfeasor. The subrogation right would belong to the insurer who paid the worker’s compensation benefits to the employee for lost wages and medical expenses, as those damages would be recoverable by the injured-employee from the tortfeasor. See generally, Allstate Insurance Co. v. Clarke, 364 Pa.Super. 196, 527 A.2d 1021 (1987).


author: OLSZEWSKI, Judge: KELLY, Judge,

text:
    544 A.2d 50
    Jean E. ECKENROD, Administratrix of the Estate of Eugene C. Eckenrod, and Jean E. Eckenrod, in Her Own Right v. GAF CORPORATION, Raymark Industries, Inc., Owens-Corning Fiberglas Corporation, A-Best Products Company, Garlock, Inc., John Crane-Houdaille, Inc., H.K. Porter Company, Inc., Individually and as Successor-in-Interest to Southern Textile Company, Formerly Southern Asbestos Company, the Pittsburgh Gage Company & Anchor Packing Company. Appeal of The PITTSBURGH GAGE COMPANY. Jean E. ECKENROD, Administratrix of the Estate of Eugene C. Eckenrod, and Jean E. Eckenrod, in Her Own Right, Appellant, v. GAF CORPORATION, Raymark Industries, Inc., Owens-Corning Fiberglas Corporation, A-Best Products Company, Garlock, Inc., John Crane-Houdaille, Inc., H.K. Porter Company, Inc., Individually and as Successor-in-Interest to Southern Textile Co., Formerly Southern Asbestos Co., the Pittsburgh Gage Company & Anchor Packing Company.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1988.
    Filed May 6, 1988.
    Rearguments Denied July 12, 1988.

      Francis X. McTiernan, Jr., Pittsburgh, for Pittsburgh Gage.
    Thomas W. White, Pittsburgh, for Eckenrod.
    Kathy K. Condo-Caritis, Pittsburgh, for GAF.
    David R. Johnson, Pittsburgh, for Raymark.
    Thomas Herbertson, Pittsburgh, for A-Best.
    John A. Bacharach, Pittsburgh, for Garlock.
    Before OLSZEWSKI, TAMILIA and KELLY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order granting summary judgment in favor of defendants-appellees A-Best Products Company (“A-Best”); Raymark Industries, Inc.; Owens-Corning Fiberglas Corporation; Garlock, Inc.; and H.K. Porter Company, Inc. (“Porter”). Appellant Eckenrod claims that there was an issue of material fact regarding the liability of Porter and A-Best. Appellant Gage Company maintains that the lower court erred in determining that appellant Eckenrod failed to present sufficient factual evidence that her decedent was exposed to asbestos manufactured and/or supplied by all appellees during his employment with Babcock & Wilcox Company (“B & W”). For reasons discussed below, we affirm the order of the trial court.

Appellant’s decedent, Eugene C. Eckenrod, began employment as a millwright in 1959 with B & W. From 1959 to 1982, decedent worked as a maintenance pipefitter, welder, and millwright at the Wallace Run facility. In March 1982, decedent was diagnosed as having lung cancer. He died in November 1982.

Appellant Eckenrod filed suit on November 15, 1984, alleging that her decedent died as a result of exposure to defendants’ asbestos products while working at B & W. Most of the defendants moved for summary judgment in early 1987 based on lack of product identification. On March 7, 1987, the motions of GAF Corporation, John Crane-Houdaille, Inc., and Anchor Packing Company were granted and the complaints against them dismissed. On May 7, 1987, the trial court granted the remaining motions for summary judgment and dismissed the complaints against each. It is the May 7, 1987, order that appellants challenge herein.

Appellant Eckenrod challenges only the granting of summary judgment in favor of A-Best and Porter. Appellant Gage Company contends that the judgment was improper as to all defendants. We have déclared that when reviewing an order granting summary judgment, our function is to determine whether there exist issues of triable fact. Bobb v. Kraybill, 354 Pa.Super. 361, 511 A.2d 1379 (1986). We have further determined that:

A summary judgment should only be entered in those cases which are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). The court must accept as true all well pleaded facts in the plaintiffs pleadings, and give the plaintiff the benefit of all reasonable inferences to be drawn therefrom. Just v. Sons of Italy Hall, 240 Pa.Super. 416, 368 A.2d 308 (1976).

Roland v. Krayco, Inc., 355 Pa.Super. 493, 513 A.2d 1029 (1986); see also Lucera v. Johns-Manville Corp., 354 Pa. Super. 520, 512 A.2d 661 (1986).

In order for liability to attach in a products liability action, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). Additionally, in order for a plaintiff to defeat a motion for summary judgment, a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer’s product. Wible v. Keene Corporation, No. 86-4451 Slip op. (E.D.Pa. August 19, 1987) [available on WESTLAW, 1987 WL 15833]; Anastasi v. Pacor, Inc., No. 6251 (C.P. Phila. Co., March 8, 1983) aff'd 349 Pa.Super. 610, 503 A.2d 44 (1985). Therefore, a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product’s use. Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126 (E.D.Pa.1985). Summary judgment is proper when the plaintiff has failed to establish that the defendants’ products were the cause of plaintiff’s injury. See Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).

Eckenrod contends that her decedent used asbestos gloves supplied by A-Best for twenty years, asbestos cloth supplied by A-Best for fifteen years, and asbestos cloth supplied by Porter for eight years while employed by B & W in the furnace area of the Wallace Run Facility. In support of her assertion, appellant claims that traveling requisition forms place both companies as a supplier of the products to B & W. In order to place her husband in the vicinity of the asbestos products and to detail his work activities, appellant relied on affidavits of three co-workers. The affiants indicated that they had worked with the decedent “upon occasion” at the Wallace Run facility; none, however, stated that the decedent worked exclusively or continuously at the Wallace Run furnace during his period of employment. Further, each indicated “exposure” to asbestos products but did not elaborate on the nature or length of the exposure or the brand of products available.

Additionally, while the affiants admitted that Mr. Eckenrod was “exposed to” asbestos products, none clarified the proximity of the products to the workers or that the appellees were the manufacturers/suppliers of the products being used. In fact, the only testimony as to the identification of any of the products came from the depositions of distributors of the asbestos products and one main plant storeroom employee at B & W. Each of these depositions indicates that various appellees sold asbestos products to B & W, but do not establish where the specific product was used or that Mr. Eckenrod came into contact with an identifiable product.

Whether direct or circumstantial evidence is relied upon, our inquiry, under a motion for summary judgment, must be whether plaintiff has pointed to sufficient material facts in the record to indicate that there is a genuine issue of material fact as to the causation of decedent’s disease by the product of each particular defendant. Schmidt v. Johns-Manville Corp., No. 80-3339 Slip op. (D.Md. November 30, 1982). Whether a plaintiff could successfully get to the jury or defeat a motion for summary judgment by showing circumstantial evidence depends upon the frequency of the use of the product and the regularity of plaintiff’s employment in proximity thereto. Id.

Upon careful scrutiny of the record, we must uphold the trial court’s granting of the motions for summary judgment in favor of Porter and A-Best. We acknowledge that the facts establish that the decedent on occasion was exposed to asbestos; there is no evidence, however, as to the regularity or nature of decedent’s contact with asbestos. Moreover, there is no testimony establishing that Mr. Eckenrod worked with asbestos supplied and/or manufactured by Porter or A-Best or any of the other appellees. The mere fact that appellees’ asbestos products came into the facility does not show that the decedent ever breathed these specific asbestos products or that he worked where these asbestos products were delivered. Pongrac, supra; Anastasi, supra. Absent testimony of record that identifies appellees’ products as being present in the furnace, there is not even a reasonable inference that appellant was exposed to appellees’ asbestos products. Pongrac, supra; see also Wible, supra.

Appellant Gage Company also challenges the granting of summary judgment in favor of the remaining appellees. After careful review of the record, we find that the standard delineated supra has not been satisfied regarding these appellees as well. Appellant Gage Company has failed to point to any testimony which establishes that Mr. Eckenrod inhaled asbestos fibers shed by the remaining appellee’s products. Therefore, we must uphold the trial court’s determination in this regard as well.

The order and judgment of the trial court are affirmed.

Concurring statement by Kelly, J.

KELLY, Judge,

concurring:

I agree with the majority as to its disposition of appellant Eckenrod’s claim. Eckenrod failed to present evidence as to the nature or regularity of decedent’s exposure to asbestos, or evidence that decedent worked with asbestos products supplied or manufactured by appellees.

I differ, however, with the majority’s disposition of the appeal of appellant Gage Company. Gage Company, defendant in the court below, failed to file even a memorandum opposing a grant of the remaining defendants’ summary judgment motions. It is a longstanding tenet of appellate jurisprudence that a party may not ordinarily raise a claim for the first time at the appellate level. See Pa.R.A.P. 302(a); see also Marzullo v. Stop-N-Go Food Stores, 364 Pa.Super. 106, 109, 527 A.2d 550, 551 (1987); Valvano v. Galardi, 363 Pa.Super. 584, 592, 526 A.2d 1216, 1220 (1987). The rationale behind this principle is that the trial court in the first instance must be permitted the opportunity to address any arguments which a party may have. Szakmeister v. Szakmeister, 344 Pa.Super. 465, 496 A.2d 1199 (1984); Cherry v. Wilier, 317 Pa.Super. 58, 463 A.2d 1082 (1983). I would hold that appellant Gage Company waived its right to challenge the grant of summary judgment by failing to challenge the co-defendants’ motion for summary judgment in the court below. See Pennsylvania Department of Transportation v. Phillips, 87 Pa.Cmwlth. 504, 488 A.2d 77 (1985).

      . Appellant Pittsburgh Gage Company did not file a motion for summary judgment.

      . Appellees Garlock, Inc., Raymark Industries, Inc., and H.K. Porter Company, Inc., contend that appellant Gage Company has waived its right to appeal by not challenging the motions for summary judgment in the trial court. We note, however, that an order granting summary judgment is final and appealable. Progressive Home Federal Savings and Loan Ass'n v. Kocak, 359 Pa.Super. 120, 518 A.2d 808 (1986). Therefore, appellant Gage Company was not required to raise challenges to the motions or the order in the trial court.

       In support of its position that Gage Company was not required to raise any challenge in the court below, the majority cites the rule that an order granting summary judgment is final and appealable. While this rule explains Gage’s failure to file post-verdict motions challenging the order granting summary judgment, it does not excuse Gage’s failure to challenge the co-defendants’ motions for summary judgment.