author: BROSKY, Judge.

text:
    638 A.2d 991
    COMMONWEALTH of Pennsylvania v. Luis TORO, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1993.
    Filed March 14, 1994.

      Robert Rebstock, Philadelphia, for appellant.
    Helen Kane, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before CIRILLO, FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the judgment of sentence entered following appellant’s conviction for possession of a controlled substance, i.e. cocaine, with the intent to deliver and criminal conspiracy. Appellant presents the following issues for review: (1) whether an alleged conflict of interest existed between trial counsel’s representation of appellant and a co-actor, William Cartagena, so as to deprive appellant of his right to the effective assistance of counsel under the United States and Pennsylvania Constitutions; (2) whether the trial court erred in admitting evidence of appellant’s failure to appear at a previous trial listing; (3) whether trial counsel was ineffective in failing to object to the prosecutor’s cross-examination of appellant regarding the use of other names he had given the police; (4) whether trial counsel was ineffective in failing to object to the prosecutor’s closing remarks relating to appellant’s fugitive status; (5) whether trial counsel was ineffective in failing to object to the trial court’s instruction to the jury that appellant furnished the police with a different name in 1992; (6) whether trial counsel was ineffective in failing to timely litigate a motion to suppress a post-arrest identification of appellant and whether the trial court erred in denying trial counsel’s request to litigate this motion; and (7) whether the trial court erred in refusing to grant appellant’s motion to suppress keys which were discovered on appellant after his arrest. For the reasons set forth below, we affirm the judgment of sentence.

It is necessary to recount the relevant facts and history of this case before addressing the merits of appellant’s claims. Officer Dickerson and Officer Davis were assigned to conduct an undercover surveillance in a high drug-trafficking area in the City of Philadelphia in August, 1988. At approximately 7:20 p.m., Officer Dickerson and Officer Davis operated an unmarked van which they parked near the intersection of Gurney and Mascher Streets. Using a pair of binoculars, Officer Dickerson observed appellant, Luis Toro, William Cartagena and other males standing at the intersection of Gurney and Waterloo Streets. A white male approached appellant and the other individuals and handed William Cartagena an unknown amount of United States currency. Mr. Cartagena then signaled to another male, who approached the group from a hidden location, took the money from Mr. Cartagena and quickly disappeared up Waterloo Street. Appellant then gave Mr. Cartagena keys. Mr. Cartagena walked to a gray Toyota which was parked nearby and used the keys to open the trunk. Mr. Cartagena removed clear packets containing a white substance from the trunk and handed them to the white male, who then departed from the area. Mr. Cartagena then returned the keys to appellant.

At this time, appellant, Mr. Cartagena and the other males noticed the van and decided to investigate. The males, who were armed with baseball bats, banged on the van and told the occupants to leave the area. Officer Dickerson told the group to leave him alone because he was engaged in amorous relations with a female and that he would leave when he was finished. Officer Dickerson’s response apparently satisfied the men and they went back to the street corner where they had previously stood.

Several minutes later, Officer Dickerson observed another transaction in which a second white male approached the group, spoke with Mr. Cartagena and handed him currency. Mr. Cartagena waived down Waterloo Street and the young male who previously took the money reappeared, was given the money and departed. Mr. Toro again gave Mr. Cartagena keys which he used to unlock the trunk of the Toyota. Mr. Cartagena removed plastic packets containing a white substance and handed them to the white male who then left the area. Mr. Cartagena returned the keys to appellant. Officer Dickerson relayed his observation of the two drug transactions and the descriptions of the individuals involved to Sergeant McCloskey, who was supervising the surveillance and who was parked nearby.

The group again became suspicious of Officer Dickerson’s van and approached it a second time and were again armed with baseball bats. Unknown individuals struck the van with the bats and threatened to inflict bodily harm on the officers if they did not leave the area. Officer Dickerson advised Sergeant McCloskey of the incident and that he was going to pull out. Sergeant McCloskey, who had previously driven through the area and who was familiar with the descriptions of appellant and Mr. Cartagena, proceeded to the scene with other uniformed officers. Appellant, Mr. Cartagena and several other men were arrested. During a pat-down search, Sergeant McCloskey recovered keys from appellant which he used to open the trunk of the Toyota. Twenty-two small packets and five larger packets containing a white powder were discovered in the trunk. The packets were subsequently analyzed and found to contain cocaine. Appellant and Mr. Cartagena were thereafter charged with various offenses arising out of this incident.

Appellant failed to appear at a trial listing and a bench warrant for his arrest was issued. For reasons which do not appear of record, appellant was not located until 1992 at which time he was again arrested. Appellant filed a pre-trial motion which contested the legality of his 1988 arrest and which sought to suppress, among other things, appellant’s previous identifications and the physical evidence seized by the police. The suppression motion was denied by the lower court. Appellant was convicted of the above offenses following a jury trial held in June, 1992. Appellant filed timely post-trial motions. Appellant subsequently obtained new counsel who filed supplemental post>trial motions on appellant’s behalf. All appellant’s post-trial motions were denied. Appellant was sentenced on December 30, 1992 to a term of seven (7) to fourteen (14) years imprisonment regarding his drug conviction; no further sentence was imposed with respect to the conspiracy conviction. No motion for modification/reconsideration of sentence was filed. Appellant thereafter initiated a timely appeal to this court.

Appellant’s first, third, fourth, fifth and sixth claims all relate to the effectiveness of trial counsel. In reviewing allegations of this type:

The threshold inquiry ... is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interest. Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him.

Commonwealth v. Persinger, 532 Pa. 317, 321, 615 A.2d 1305, 1307 (1992) (citations omitted). We shall evaluate appellant’s assertions of ineffectiveness in accordance with this standard.

Appellant first contends that he was deprived of his constitutional right to the effective assistance of counsel because of an alleged conflict of interest which existed between counsel’s dual representation of appellant and Mr. Cartagena. As recognized by this court:

Counsel may be held to have been ineffective in representing a defendant if the defendant demonstrates that an actual conflict of interest adversely affected his lawyer’s performance. Moreover, ... while it is true that prejudice is presumed when counsel is burdened by an actual conflict of interest, this is so only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest affected his lawyer’s performance .... [A]n actual conflict of interest ... is evidenced whenever during the course of representation, the interests of appellant—and the interests of another client towards whom counsel bears obligations—diverge with respect to a material factual or legal issue or to a course of action.

Commonwealth v. Smith, 380 Pa.Super. 619, 629-630, 552 A.2d 1053, 1059 (1988), allocatur denied, 525 Pa. 581, 575 A.2d 112 (1990) (citations and quotation marks omitted) (emphasis in original). Accord Commonwealth v. Munson, 419 Pa.Super. 238, 244-245, 615 A.2d 343, 346-347 (1992). In addition,

dual representation alone does not amount to a conflict of interest____ [T]o make the dual representation rise to a true conflict, [a defendant] need not show that actual harm resulted, but must at least show the possibility of harm---[A defendant] will satisfy the requirement of demonstrating possible harm, if he can show, inter alia, that he had a defense inconsistent with that advanced by the other client, or that counsel neglected his case in order to give the other client a more spirited defense.

Commonwealth v. Breaker, 456 Pa. 341, 345, 318 A.2d 354, 356 (1974) (plurality opinion) (citations and quotation marks omitted). As applied here, appellant has not demonstrated that trial counsel actively represented conflicting interests and that an actual conflict of interest adversely affected trial counsel’s performance.

The record reveals that trial counsel had previously represented Mr. Cartagena with respect to charges arising out of the same transaction involving appellant. N.T. 6/17/92 at 362-363. However, these charges had been dismissed and trial counsel no longer represented Mr. Cartagena -with respect to this incident. Id. Consequently, there was no simultaneous dual representation with respect to the offenses arising out of the same incident.

Of course, the absence of simultaneous representation is not determinative since, in some circumstances, counsel’s prior representation can give rise to an actual conflict of interest. Commonwealth v. Munson, 419 Pa.Super. at 245, 615 A.2d at 347. While a conflict of interest may be more difficult to prove in the absence of simultaneous representation, the courts have recognized that a conflict of interest may arise if counsel reveals privileged communications of the former client or otherwise divides his loyalties so that he is incapable of diligently representing his client. Id., 419 Pa.Super. at 245, 246-247, 615 A.2d at 347-348. In this case, there is no indication that trial counsel possessed confidential information resulting from his prior representation of Mr. Cartagena which affected his ability to zealously and effectively represent appellant. There is similarly nothing which would support appellant’s speculative assertions that Mr. Cartagena might have implicated himself in the commission of the crime and exculpated appellant. Nor is there any evidence that trial counsel’s loyalties were so divided that he was incapable of diligently representing appellant. Appellant and Mr. Cartagena likewise did not have clearly divergent interests, since appellant’s defense was that he, Mr. Cartagena and other Hispanic males were simply standing on the street corner and talking at the time they were arrested by the police and that neither he nor anyone else had seen let alone engaged in any drug sales. N.T. 6/17/92 at 300, 305, 334, 338, 369, 375 and 386.

The record also indicates that trial counsel represented Mr. Cartagena at the time of appellant’s trial with respect to charges arising out of a different incident which was unrelated to appellant’s case. N.T. 6/17/92 at 362-363. However, trial counsel’s dual representation of both appellant and Mr. Cartagena at the time of appellant’s trial did not result in an actual conflict of interest because the cases involved completely unrelated criminal charges. Thus, the concerns which normally arise where co-actors are represented by the same counsel, e.g., the possibility of inconsistent defenses or the neglect of one client’s defense, were not implicated here. Under these circumstances, we find that trial counsel was not burdened by a conflict of interest which adversely affected his performance in representing appellant. Accordingly, trial counsel cannot be deemed ineffective on this basis.

Appellant next contends that trial counsel was ineffective in failing to object to the prosecution’s cross-examination of appellant regarding his use of different names. Appellant asserts that the prosecutor’s examination was improper because he was able to elicit information which implied that appellant had a prior criminal record. In reviewing this issue, we note that trial counsel did object to the prosecutor’s attempt to question appellant with regard to his contacts with the police which preceded his 1988 arrest; this objection was sustained by the lower court. N.T. 6/17/92 at 383-384. Consequently, trial counsel cannot be deemed ineffective with respect to this reference. We reach a similar conclusion regarding the prosecutor’s other questions.

It is well settled that evidence of distinct crimes is not generally admissible against a defendant unless the evidence falls within one of the recognized exceptions. Commonwealth v. Lark, 518 Pa. 290, 302-303, 543 A.2d 491, 497 (1988). However, it is equally well established that “[e]vidence of flight or self-concealment on the part of a person who knows that he or she is wanted for a crime may be admitted to show consciousness of guilt.... ” Commonwealth v. Colson, 507 Pa. 440, 464, 490 A.2d 811, 823-824 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). As applied here, the record reveals that the prosecutor did not attempt to introduce evidence pertaining to appellant’s prior criminal activity. Instead, the prosecutor elicited information regarding appellant’s use of different names during his contacts with the police. N.T. 6/17/92 at 381-382. Evidence of this type was relevant to the issue of appellant’s consciousness of guilt and was properly admissible for this purpose. Commonwealth v. Colson, supra.

The mere fact that the cross-examination contained references to police contact was not, standing alone, prejudicial to appellant nor did it indicate that appellant had committed other crimes. As recognized by the Supreme Court, “[t]o warrant a characterization as prejudicial the testimony must convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense.” Commonwealth v. Carpenter, 511 Pa. 429, 437, 515 A.2d 531, 535 (1986) (emphasis omitted). The references in this case primarily related to appellant’s 1988 arrest on the instant charges as well as a non-specifíed more recent contact. N.T. 6/17/92 at 381-382. These references did not expressly or implicitly disclose that appellant had committed a prior offense; rather, they only indicated that appellant had prior “contact” with the police. Cf. Commonwealth v. Carpenter, supra (reference to witness’ occupation as a parole officer did not prejudice the defendant and did not imply that the defendant had a criminal record; also citing other cases in which police contact or knowledge of the defendant’s address did not reasonably imply prior criminal activity by the defendants). Because the prosecutor’s cross-examination was proper and did not reasonably implicate appellant in any prior criminal activity, trial counsel was not ineffective for failing to object to appellant’s cross-examination.

Appellant’s third assertion of ineffectiveness involves trial counsel’s failure to object to the prosecutor’s closing statement in which he referred to appellant as a fugitive from justice. With respect to this , claim, our Supreme Court has stated:

It is well established that a prosecutor, just as a defense attorney, must have reasonable latitude in presenting a case to the jury and must be free to present his or her arguments with logical force and vigor. Counsels’ remarks to the jury may contain fair deductions and legitimate inferenees from the evidence presented during the testimony.... However, not every intemperate or uncalled for remark by the prosecutor requires a new trial. As we have stated many times, [cjomments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. Furthermore, the prejudicial effect of the prosecutor’s remarks must be evaluated in the context in which they occurred.... In applying these standards on appellate review ... [the question of] [w]hether this standard has been violated by the language of the district attorney is not in the first instance our decision to make. It is the duty of the trial judge to rule upon the comments; this Court is limited in its review to whether the trial court abused its discretion.

Commonwealth v. D’Amato, 514 Pa. 471, 489-491, 526 A.2d 300, 309-310 (1987) (citations and quotation marks omitted). We will examine the prosecutor’s reference in accordance with these principles.

The evidence introduced at trial established that appellant had failed to appear for a January, 1989 trial listing of which he had notice and that appellant’s next contact with the criminal justice system occurred in January of 1992. N.T. 6/12/92 at 129-131. There was also evidence that appellant utilized different names in his contacts with the police. N.T. 6/17/92 at 381-383. The prosecutor’s reference to appellant’s fugitive status was thus a fair deduction or legitimate inference to be drawn from the evidence. Moreover, the prosecutor’s remark was made in response to trial counsel’s closing argument in which he attempted to show that the Commonwealth had misidentified appellant as one of the perpetrators. See Transcript of Closing Argument 6/17/92 at 2-23. The prosecutor thus demonstrated that no mistake had been made because appellant’s use of an alias and failure to appear evidenced his consciousness of guilt. See id. at 24-25. The prosecutor also explained that if some mistakes had been made in this case, they were attributable to the lengthy delay caused by appellant’s failure to appear. See id. at 26. When viewed within this context, we find that the comment was proper and was not unduly prejudicial to appellant. We therefore decline to find trial counsel ineffective for failing to object to the prosecutor’s remark.

Appellant’s fourth ineffectiveness claim arises out of his failure to object to the trial court’s instruction to the jury that appellant furnished the police with a different name in 1992. Appellant argues that the instruction was erroneous because the evidence pertaining to appellant’s use of a different name was only relevant with respect to the motion in limine discussion. Appellant does not refer us to any authority in support of this novel proposition nor are we aware of any such authority. However, as we previously indicated, “[e]vidence of flight or self-concealment on the part of a person who knows that he or she is wanted for a crime may be admitted to show consciousness of guilt____” Commonwealth v. Colson, supra.

In this case, appellant admitted that he used the name “Luis Toro” when he was arrested in 1988 and that he used the name “Luis Padilla” in his more recent contact with the police. N.T. 6/17/92 at 381-383. Although appellant testified that his full name is “Luis Alnardo Albino Toro Padilla”, see id. at 381, the fact remains that he used different surnames in his various contacts with the police. In light of this testimony, the trial court did not err in instructing the jury regarding appellant’s use of different names and trial counsel was not ineffective for failing to object to the court’s charge. See Commonwealth v. Carter, 409 Pa.Super. 184, 194, 597 A.2d 1156, 1160 (1991), allocatur denied, 530 Pa. 664, 610 A.2d 44 (1992) (jury instruction on flight and/or concealment was proper where the defendant failed to appear for a scheduled trial date, a bench warrant was issued for his arrest and the defendant attempted to avoid apprehension by giving the police a false name when he was apprehended more than one year later). See also Commonwealth v. Martinez, 413 Pa.Super. 454, 456, 458-459, 605 A.2d 811, 812-813 (1992), allocatur denied, 533 Pa. 608, 618 A.2d 399 (1992) (jury instruction on flight was proper where the defendant failed to appear at trial, despite having signed a subpoena agreeing to do so, and a bench warrant was issued for her arrest; when apprehended more than a month later, the defendant failed to offer an excuse for her absence). Because the instruction was proper, trial counsel was not ineffective for failing to object to it.

Appellant’s fifth and final allegation of ineffectiveness of counsel relates to trial counsel’s alleged failure to litigate a motion to suppress a post-arrest identification by Officer Dickerson. In addition, appellant argues that the trial court erred in denying trial counsel’s belated request for a hearing on this matter. Because these questions are inextricably intertwined, they will be addressed together.

The record reveals that trial counsel first learned of the post-arrest identification of appellant by Officer Dickerson during the hearing on appellant’s motion to suppress other evidence. See N.T. 6/11/92 at 56. This same testimony was later introduced at trial. N.T. 6/12/92 at 145. However, trial counsel did not seek to suppress this evidence or have it stricken until the next day of trial, at which time he requested a hearing. N.T. 6/16/92 at 181-182. The trial court denied appellant’s request after discussing it with counsel. Id. at 183. We find no error in the trial court’s denial of appellant’s request for a hearing. We similarly find that trial counsel was not ineffective for failing to litigate this issue earlier.

In reviewing the propriety of identification evidence, the central inquiry is whether, under the totality of the circumstances, the identification was reliable. Suggestiveness in the identification process is but one factor to be considered in determining the admissibility of such evidence and will not warrant exclusion absent other factors.... [T]he following factors are to be considered in determining the propriety of admitting identification evidence: the opportunity of the witness to view the perpetrator at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the perpetrator, the level of eertainty demonstrated at the confrontation, and the time between the crime and the confrontation. The corrupting effect of the suggestive identification, if any, must be weighed against these factors. Absent some special element of unfairness, prompt, one-on-one identification is not per se violative of the accused’s constitutional rights....

In the Interest of McElrath, 405 Pa.Super. 431, 437-438, 592 A.2d 740, 742-743 (1991) (citations omitted). Accord Commonwealth v. Baker, 531 Pa. 541, 552, 614 A.2d 663, 668 (1992).

As applied here, the record discloses that Officer Dickerson testified at trial that he and his partner commenced their surveillance at approximately 7:20 p.m. on August 17, 1988. N.T. 6/12/92 at 135. Officer Dickerson conducted the surveillance in an unmarked van which had a tinted material on the windows such that the police officers could see out but other individuals could not see the interior of the van; the tinted material was slightly opaque but did not substantially diminish the officer’s ability to view appellant. Id. at 135-136, 165 and 172. With the aid of binoculars, Officer Dickerson observed appellant and Mr. Cartagena for a period in excess of fifteen minutes. Id. at 136-137, 139, 140 and 163. Officer Dickerson was parked approximately fifteen to twenty yards away from appellant. Id. at 148 and 160. Officer Dickerson relayed descriptions of appellant and Mr. Cartagena to Sergeant McCloskey. Officer Dickerson described the individuals as two Hispanic males, one of whom was taller and one of whom was shorter. Id. at 144. The taller man, later identified as Mr. Cartagena, wore a peach-colored shirt and the other male, later identified as appellant, wore a blue-colored shirt. Id. at 144 and 145. Officer Dickerson returned to the police station approximately fifteen to twenty minutes after ending his surveillance and verified that appellant and Mr. Cartagena were the individuals he had observed. Id. at 145.

The above evidence thus demonstrates that Officer Dickerson, a trained police officer, observed appellant and the other individuals for a substantial period of time. Officer Dickerson relayed the descriptions of the individuals, as he was observing them, to his supervising officer. Appellant and the other individuals were then apprehended and taken to the police station. Within one half hour after leaving the surveillance location, Officer Dickerson identified appellant and Mr. Cartagena. This procedure was entirely proper and we do not find the circumstances surrounding Officer Dickerson’s identification to have been unduly suggestive. See In the Interest of McElrath, 405 Pa.Super. at 438-439, 592 A.2d at 743 (one-on-one confrontation between the victim and the defendant was proper where the victim focused on the defendant’s face during the incident, promptly reported the crime and a description of the perpetrator to the police, and thereafter positively identified the defendant at a one-on-one confrontation which occurred within one half-hour after the crime had been committed); Commonwealth v. Jenkins, 232 Pa.Super. 523, 532-533, 335 A.2d 463, 467-468 (1975) (one-on-one identification of the defendant by a police officer within two hours after he committed the crime was properly admitted where the officer had the opportunity to observe the defendant in a well-lit area, had a full frontal view of the defendant’s face and had chased the defendant before he escaped). Moreover, the concerns applicable to a one-on-one identification of an accused by a lay witness are simply not present here, since the identification was made by a trained police officer who witnessed the crime and had an adequate opportunity to observe the appellant. See Commonwealth v. Jenkins, 232 Pa.Super. at 532, 335 A.2d at 467 (police officer, unlike a lay witness, is not subject to the same pressure to cooperate with the police).

Even were we to assume, arguendo, that the post-arrest identification was improper, Officer Dickerson’s identifications of appellant both at trial and the suppression hearing were nevertheless admissible because Officer Dickerson had a reliable independent basis for the identification. Commonwealth v. Baker, 531 Pa. at 552-553, 614 A.2d at 668-669 and In the Interest of McElrath, 405 Pa.Super. at 439-440, 592 A.2d at 743-744 (in court identifications were admissible where the witnesses had an independent basis for the identification and the circumstances surrounding the identification rendered it reliable). Because Officer Dickerson’s identification of appellant at the police station immediately following his arrest was proper, it follows that trial counsel was not ineffective for failing to request a hearing to suppress this identification. In addition, the trial court did not err in refusing to grant appellant’s untimely request for a hearing.

Having addressed appellant’s ineffectiveness claims, we must now address his remaining allegations of error. With regard to the admission of evidence pertaining to appellant’s failure to appear, we observe that questions affecting the scope of examination or cross-examination of witnesses are within the discretion of the trial judge and decisions regarding such matters will not be reversed on appeal absent a clear abuse of discretion or error of law. Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992); Commonwealth v. Grove, 363 Pa.Super. 328, 332-333, 526 A.2d 369, 371-372 (1987), allocatur denied, 517 Pa. 630, 539 A.2d 810 (1987). In this case, appellant argues that the evidence should have been excluded because it established nothing more than appellant’s mere failure to appear.

Appellant correctly notes that evidence of a defendant’s failure to appear, standing alone, is not admissible to show consciousness of guilt. Commonwealth v. Barnes, 406 Pa.Super. 58, 62, 593 A.2d 868, 870 (1991); Commonwealth v. Babbs, 346 Pa.Super. 498, 504, 499 A.2d 1111, 1114 (1985). However, this court has also held that the failure to appear, when coupled with other evidence, is sufficient to permit an inference that the defendant fled and/or concealed his identity to avoid prosecution. Commonwealth v. Carter and Commonwealth v. Martinez, supra. In this case, the record demonstrates that: (1) appellant had signed a subpoena promising to appear at the January 1989 trial listing, thus demonstrating his knowledge that he was wanted with regard to the charges relating to this incident; (2) appellant, without explanation, failed to appear and a bench warrant was issued for his arrest; and (3) he attempted to conceal his identity by providing the police with a different surname when appellant was arrested three years later. N.T. 6/12/92 at 121, 130-132; N.T. 6/17/92 at 382. The Commonwealth thus established that appellant attempted to conceal his identity in addition to his failure to appear. Under these circumstances, the trial court did not err in permitting the Commonwealth to introduce this evidence. Commonwealth v. Carter and Commonwealth v. Martinez, supra.

Appellant’s final allegation of error concerns the trial court’s refusal to suppress the keys which were taken from appellant during his arrest.

In an appeal from the denial of a motion to suppress[,] our role is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we may consider only the evidence of the prosecution’s witnesses and so much of the evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from those factual findings.

Commonwealth v. Fromal, 392 Pa.Super. 100, 111, 572 A.2d 711, 717 (1990), allocatur denied, 527 Pa. 629, 592 A.2d 1297 (1990) (citations omitted). We shall evaluate the suppression ruling and appellant’s arguments with these principles in mind.

Appellant contends that the keys should have been suppressed because the police lacked the requisite probable cause to arrest appellant. We are somewhat perplexed by appellant’s argument. A review of the record demonstrates that the Commonwealth never introduced into evidence the keys taken from appellant. Because the keys were not used at trial the evidence was, in effect, suppressed by the Commonwealth. See Commonwealth v. Baker, 531 Pa. at 552, 614 A.2d at 668 (omission of evidence by the Commonwealth is the equivalent of suppression). Although the evidence was not used against appellant at trial, his suppression claim is without merit.

Appellant believes that the keys should have been suppressed because the police had insufficient probable cause to arrest appellant.

In this Commonwealth, the standard for evaluating whether probable cause exists is the totality of the circumstances test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The bench mark of a warrant-less arrest is the existence of probable cause, namely, whether the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing the crime.

Commonwealth v. Rodriguez, 526 Pa. 268, 272-273, 585 A.2d 988, 990 (1991) (citations and quotation marks omitted).

When we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element. We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might. Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same beyond-a-reasonable-doubt standard which we apply in determining guilt or innocence at trial.

Commonwealth v. Brown, 426 Pa.Super. 601, 606, 627 A.2d 1217, 1219 (1993) (citations and quotation marks omitted). In addition

[a]n arresting officer is not required to have sufficient information to establish probable cause for the arrest so long as the officer ordering the arrest possessed sufficient information giving rise to probable cause. Further, an arresting officer in executing a valid arrest may rely on radio broadcasts emanating from police authorities in one of the following instances: 1) when he is ordered or directed to perform the arrest by an officer in possession of facts justifying the arrest, 2) when he receives information over the radio justifying the arrest, or (3) when a combination of facts heard over the radio and acquired otherwise provides requisite probable cause.

Commonwealth v. Fromal, 392 Pa.Super. at 112, 572 A.2d at 717.

After reviewing the totality of the circumstances, we find that Sergeant McCloskey had sufficient probable cause to arrest appellant. Sergeant McCloskey testified that he had driven through the area several times prior to the undercover surveillance conducted by Officer Dickerson. N.T. 6/11/92 at 14 and 24-25. At this time, he observed the same group of males later seen by Officer Dickerson congregating on the street corner. Id. at 14 and 23-25. Sergeant McCloskey also drove through the area after Officer Dickerson had moved into his location and again noticed the males. Id. at 9 and 14. Officer Dickerson communicated via two-way radio with Sergeant McCloskey and reported the two drug sales. Id. at 10, 11, 12,17 and 19-20. Officer Dickerson additionally described the two primary individuals who were involved, i.e., appellant and Mr. Cartagena. Specifically, Officer Dickerson stated that the individuals were Hispanic males; one of whom wore a peach-colored shirt and the other wore a blue-colored short-sleeve shirt. Id. at 12, 18 and 54. Sergeant McCloskey was further advised that one of the individuals had a beard and that the men wore shorts. • Id. at 25-26 and 54. Sergeant McCloskey was also informed that appellant was in possession of or had been in possession of the keys that were used to open the gray Toyota in which the cocaine had been stored. Id. at 20, 48 and 54. Based on these descriptions and his prior observations of the area, Sergeant McCloskey knew exactly which men Officer Dickerson had described. Id. at 14 and 25-27. Within ten minutes after Officer Dickerson ended his surveillance, Sergeant McCloskey and the other officers arrived at the. location and found the individuals who matched the description of the men which he and Officer Dickerson previously had observed. Id. at 16-19. Except for appellant and Mr. Cartagena, no other individuals matching Officer Dickerson’s description were found at this particular location when Sergeant McCloskey arrived. Id. at 18. Sergeant McCloskey was thus able to focus solely upon these individuals when he arrested appellant and Mr. Cartagena. Id. at 17-18.

Appellant argues that Sergeant McCloskey did not have probable cause to effectuate appellant’s arrest because the description of the individuals involved in the drug sales was too vague and general. We agree with appellant that descriptions which are applicable to large numbers of people will not support a finding of probable cause. Commonwealth v. Jackson, 459 Pa. 669, 674, 331 A.2d 189, 191 (1975). However, the police in this case were not engaged in the type of “dragnet arrest” which was condemned in Commonwealth v. Jackson; rather, they were looking for specific individuals at a specific location at a specific time. Cf. Commonwealth v. Jackson, 459 Pa. at 674-675, 331 A.2d at 190-191 (where the defendant was arrested at least forty minutes after the crime had been committed and the description of the perpetrator applied to fifteen to twenty individuals, including the defendant, all of whom were arrested).

As indicated above, Sergeant McCloskey had driven through the area and knew or had reason to believe that the men he had previously seen were the same individuals described by Officer Dickerson. Moreover, appellant and Mr. Cartagena were the only individuals who matched the description and they were found at the same location within a relatively short period of time after they were last observed by Officer Dickerson. Under these circumstances, the general descriptions relayed by Officer Dickerson were sufficient to support a finding of probable cause. See Commonwealth v. Chase, 394 Pa.Super. 168, 174, 575 A.2d 574, 576-577 (1990), allocatur denied, 527 Pa. 608, 590 A.2d 295 (1990) (description of drug dealer as a black man wearing a blue shirt, combined with the fact that he was observed by the arresting officers at the same location immediately after he had sold narcotics to an undercover police officer, was sufficient to support a finding of probable cause). Because appellant’s arrest was supported by probable cause, the search of his person incident to his lawful arrest was proper. See Commonwealth v. Lewis, 394 Pa.Super. 403, 407, 576 A.2d 63, 65-66 (1990) (warrantless searches and seizures are per se unreasonable, subject only to a few specific exceptions; one such exception is a search incident to a lawful arrest). Accordingly, the trial court did not err in refusing to suppress the keys.

Judgment of sentence affirmed.

      . 35 P.S. § 780-104(2)(i)4 (defining coca leaves or any derivative therefrom as a Schedule II controlled substance).

      . 35 P.S. § 780-113(a)(30).

      . 18 Pa.C.S.A. § 903(a).

      . Issues III3A and IIIB, as set forth in the statement of the questions presented, are not actually subparts of issue III because they raise distinct allegations of ineffectiveness. We have thus renumbered these questions and the remaining assignments of error. Because a review of the certified record discloses that trial counsel did not object to the matters raised in issues III, IIIA and IIIB (now issues 3, 4 and 5), the question presented for review is not whether the trial court erred but whether trial counsel was ineffective in failing to object. We have rephrased these issues accordingly.

      . The five large packets each contained approximately 28 grams of cocaine. The twenty-two smaller packets each contained approximately 7 grams of cocaine. Thus nearly three hundred grams of cocaine were recovered from the vehicle.

      . The charges against Mr. Cartagena were subsequently dismissed without prejudice. Andrew Gay, Esq. represented Mr. Cartagena during these proceedings. Mr. Gay also represented Mr. Cartagena with respect to an unrelated matter at the time of appellant's trial.

      . It is unclear whether appellant was arrested with regard to the instant offenses or as a result of an unrelated crime. At the time of his second arrest, appellant told the police that his name was Luis Padilla.

      . Appellant was represented throughout the suppression and trial proceedings by Andrew Gay. Mr. Gay also filed the initial post-trial motions on appellant's behalf. For ease of discussion we will refer to Mr. Gay as trial counsel. Richard Shore, Esq. was the attorney who represented appellant with regard to the supplemental post-trial motions.

      . Prior to sentencing, appellant obtained new counsel, Louis Savino, Esq., to represent him. Mr. Savino has continued to represent appellant in this appeal.

      . Although appellant argues that his rights under both the United States and Pennsylvania Constitution have been violated, appellant has made no effort to explain how the Pennsylvania Constitution differs from the protection afforded by the United States Constitution. Appellant likewise has not complied with the requirements set forth in Commonwealth v. Edmunds, 526 Pa. 374, 390, 586 A.2d 887, 895 (1991) (describing the four factors which a litigant must brief and analyze where a provision of the Pennsylvania Constitution is implicated). We accordingly decline to consider whether the Pennsylvania Constitution provides appellant with greater protection than the federal constitution. Commonwealth v. Lucas, 424 Pa.Super. 173, 177, 622 A.2d 325, 327 (1993) (declining to consider a state constitutional analysis where the defendant did not comply with Edmunds and did not explain how the state constitution differed from its federal counterpart).

      . Although appellant refers us to several instances of trial counsel’s allegedly divided loyalties, we do not find his assessment to be supported by the record. Rather, the record demonstrates that trial counsel zealously, vigorously and effectively defended appellant’s interests throughout the proceedings. For example, trial counsel fully exploited the mistake made by Officer Dickerson at the suppression hearing in which he confused appellant and Mr. Cartagena and identified Mr. Cartagena as the individual who held the keys. See N.T. 6/12/92 at 149-155 and 162-165; N.T. 6/17/92 at 405-418; Transcript of Closing Argument 6/17/92 at 5-11. If trial counsel's loyalties were as divided as appellant suggests, trial counsel would not have emphasized Officer Dickerson’s mistake at trial, because it directly implicated Mr. Cartagena and tended to exculpate appellant.

      . Appellant additionally argues that trial counsel was ineffective in failing to request a cautionary instruction after Mr. Cartagena was called to the stand and subsequently decided not to testify. This issue was not raised in appellant’s statement of the questions and is therefore deemed waived. Commonwealth v. Unger, 494 Pa. 592, 595 n. 1, 432 A.2d 146, 147 n. 1, (1980). This issue is nevertheless without merit. Our Supreme Court has held that “[a] mere odd or unexplained occurrence during a trial does not justify the conclusion that the jury has drawn an inference prejudicial to the accused.” Commonwealth v. Todaro, 524 Pa. 64, 70, 569 A.2d 333, 336 (1990), cert. denied, — U.S. —, 112 S.Ct. 1271, 117 L.Ed.2d 498 (1992). Consequently, a defendant will not be deemed prejudiced by the lack of a cautionary instruction where a witness is called to the stand and asserts, outside of the jury's hearing, his Fifth Amendment privilege and then leaves the stand. Id. Moreover, trial counsel may well have decided not to emphasize the incident by asking for an instruction or otherwise attempting to explain the witness’ absence, since the jury may have drawn an adverse inference from Mr. Cartagena's apparent unwillingness to testify on appellant’s behalf.

      . Certainly, appellant’s 1988 arrest could not convey prior criminal activity since it was directly related to the charges for which appellant was then being tried. Appellant’s 1992 contact was not referred to as an arrest and the jury was never advised that appellant was re-arrested in 1992. Instead, the jury was only informed that appellant had recendy given the police a different name. N.T. 6/17/92 at 381 and 382. Because the facts of appellant’s 1992 contact were never divulged, the jury may thus have concluded that appellant was re-arrested with respect to the 1988 offenses rather than as a result of other criminal activity.

      . In connection with this claim, appellant further argues that the prosecutor engaged in deliberate misconduct by referring to appellant’s 1992 contact with the police. This issue is waived because it was not raised in the statement of questions presented. Commonwealth v. Unger, supra. It is nonetheless without merit. Appellant suggests that the prosecutor violated a trial court ruling which prohibited the prosecutor from introducing evidence of appellant’s re-arrest and use of an alias. No such ruling was ever made. Rather, the trial court indicated that evidence pertaining to appellant's failure to appear and/or concealment of his identity was admissible pursuant to Commonwealth v. Carter, 409 Pa.Super. 184, 597 A.2d 1156 (1991), allocatur denied, 530 Pa. 664, 610 A.2d 44 (1992). N.T. 6/12/92 at 124-125. During an in camera discussion, however, the prosecutor stated that he did not intend to introduce evidence through the clerk of courts that the defendant was re-arrested and gave an alias upon his re-arrest. Id. at 123. The prosecutor did not violate his prior statement because he never presented any evidence through the clerk of court or any other witness that appellant was re-arrested in 1992 and that he used an alias at this time. However, the prosecutor was permitted to cross-examine appellant and, as we have previously discussed, cross-examination on the use of a different name in an attempt to conceal his identity from the police was proper.

      . Appellant also argues that the trial court erred in denying trial counsel’s request for a hearing at which evidence pertaining to appellant’s failure to appear could be presented. Again, this issue is waived because it was not identified in the statement of questions presented. Commonwealth v. Unger, supra. Although appellant's request for a hearing was denied, the trial court ruled that appellant could introduce evidence explaining his failure to appear at trial. N.T. 6/12/92 at 125-126. Appellant chose not to present any evidence explaining his failure to appear at trial and cannot now be heard to complain of the trial court’s ruling.

      . In fact, trial counsel commented upon the absence of the keys during his closing argument and attempted to utilize this information to demonstrate that the police had arrested the wrong man. Transcript of Closing Argument 6/17/92 at 18-19.


source: Caselaw Access Project

author: HOFFMAN, Judge.

license: Public Domain

text:
    638 A.2d 1004
    Joseph L. SZABO and Stacy Szabo v. BRYN MAWR HOSPITAL, David J. Adams, M.D., and Robert J. Lachman, M.D., Appeal of Joseph SZABO.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1993.
    Filed March 15, 1994.

      Lee Albert, Philadelphia, for appellant.
    Andrew H. Briggs, Plymouth Meeting, for Adams, appellee.
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge.

This appeal is from the April 25, 1993 order granting appellee, David M. Adams, M.D., summary judgment. Appellants, Joseph and Stacy Szabo, raise one issue for our review:

Whether genuine issues of material fact exist, precluding Summary Judgment, as to the liability of an operating surgeon, pursuant to the “Captain of the Ship Doctrine” and agency principles, where the surgeon was present at the surgical procedure along with the anesthesiologist, and the plaintiff/patient was injured as a result of negligence during the anesthesia procedure?

Appellants’ Brief at 3. For the reasons that follow, we reverse.

On April 29, 1986, appellant Joseph Szabo (hereinafter “Mr. Szabo”), was admitted to Bryn Mawr Hospital for a left knee arthroscopy. On that day, Mr. Szabo was evaluated by a nurse and given pre-operative instructions which included an instruction not to eat or drink anything by mouth after midnight prior to surgery.

On April 30, 1986, the morning of surgery, appellee, Dr. Adams (hereinafter “Dr. Adams”), took the history and performed a physical examination of Mr. Szabo. In addition, on that morning Mr. Szabo received a pre-anesthesia evaluation by Dr. Lachman, the anesthesiologist, also a defendant in this action. Prior to this evaluation, Dr. Lachman was advised that Mr. Szabo had ingested 4 ounces of milk at 5:30 a.m. Deposition of Robert J. Lachman, M.D. at 8. After conducting his evaluation, Dr. Lachman made the decision to proceed with surgery and chose the type of anesthesia to be used.

Anesthesia began at approximately 11:40 a.m. Shortly thereafter, Mr. Szabo began to retch and vomit solid food particles causing an immediate intubation and suctioning of the pharynx and trachea. Mr. Szabo was immediately transferred to the intensive care unit for aspiration pneumonitis. He was treated and discharged several days later.

On January 20, 1988, appellants filed their complaint alleging that Mr. Szabo received improper anesthesia care. On March 17, 1993, Dr. Adams filed his motion for summary judgment. On March 22,1993, the court, inadvertently, granted summary judgment before appellants had a chance to respond. On that same day, the court’s order was vacated in order to afford appellants an opportunity to respond. On March 26, 1993, appellants filed their responses.

On April 23, 1993, the Honorable Thomas J. Rutter, Judge Pro Tern, granted Dr. Adams’ motion for summary judgment. On April 25, 1993, that order was ratified by the Honorable Sandra Mazer Moss. This timely appeal followed. The Rule governing motions for summary judgment provides in pertinent part that:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Pa.R.C.P. 1035. Summary judgment may only be granted in cases that are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430; 456 A.2d 1009, 1011 (1983). In addition, the record must be examined in the light most favorable to the non-moving party, accepting as true all well-pleaded facts in its pleadings and giving that party the benefit of all reasonable inferences drawn therefrom. Hower v. Whitmark Assoc., 371 Pa.Super. 443, 445; 538 A.2d 524, 525 (1988), appeal denied, 522 Pa. 584, 559 A.2d 527 (1989).

Appellant argues that where the operating physieian is present at a surgical procedure and his patient is injured as a result of negligence, during the anesthesia procedure, a factual issue is presented regarding the surgeon’s liability, pursuant to the “Captain of the Ship Doctrine.” We agree.

Under the “Captain of the Ship” Doctrine a surgeon is liable for all negligence which causes harm to his patient in the operating room in which the surgeon is the person of the highest authority. McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949) (operating surgeon liable for resident’s negligent insertion of silver nitrate into eyes of a newborn following a cesarean section delivery); Schneider v. Albert Einstein Medical Center, 257 Pa.Super. 348, 390 A.2d 1271 (1978) (operating surgeon liable for negligence by the anesthesiologist).

“The ‘Captain of the Ship’ Doctrine has agency considerations at its base.” Grubb v. Albert Einstein Medical Center, 255 Pa.Super. 381, 395, 387 A.2d 480, 487 (1978). The essential question when determining whether an agency relationship exists is “whether one is subject to the control of another not only to the work to be done but also the manner of performing it.” Grubb at 395, 387 A.2d at 487. In addition, it is well-settled that doctors may be simultaneously the agent of a hospital and another physician even where employment between the doctors themselves is not joint. Grubb at 395, 387 A.2d at 487; See also, Rockwell v. Stone, 404 Pa. 574, 173 A.2d 54 (1961) (surgeon responsible on agency theory for negligence of doctor in charge of administering anesthesia to patient).

In the instant case, the trial court found that there was no evidence to support a claim that Dr. Adams deviated from the required standard of care. However, the trial court fails to discuss whether Dr. Adams remains hable for medical malpractice under an agency theory. Moreover, the facts remain unclear as to whether Dr. Lachman, the anesthesiologist, was subject to the control of Dr. Adams. Therefore, as there remains a genuine issue of material fact, summary judgment was inappropriate. See Schneider 257 Pa.Super. at 366, 390 A.2d at 1280 (citing Tonsic v. Wagner, 458 Pa 246, 253, 329 A.2d 497, 500 (1974)) (where inferences are unclear, questions of agency are for the jury’s determination). Hence, we reverse the trial court’s order.

Order reversed.


author: OLSZEWSKI, Judge.

text:
    638 A.2d 1006
    COMMONWEALTH of Pennsylvania v. Roderick LEE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 7, 1994.
    Filed March 16, 1994.

      David Crowley, Public Defender, Bellefonte, for appellant.
    Mark S. Smith, Asst. Dist. Atty., Bellefonte, for Com., appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge.

Roderick Lee appeals the judgment of sentence entered against him for rape and involuntary deviate sexual intercourse (IDSI) convictions. Lee was accused of forcibly sodomizing a fellow inmate, sixteen-year-old William Healey, at Rockview State Prison. The evidence, adduced through Healey and other inmates, established that Lee ran a “running game” whereby he befriended and “protected” Healey from ostensible sexual advances by other inmates. The other inmates were part of the ruse, however, and backed off from Healey at Lee’s insistence; the purpose of all this was to cajole Healey into sexual relations with Lee. When Healey balked, Lee wanted to fight and told Healey that he could “knock him out and take it [have sex with him].” N.T. 1/27/92, at 25. Lee subsequently sodomized Healey twice and coerced oral sex twice. Healey stated that he submitted to the acts because, “I was scared. I didn’t know what to do if I ever said no to anything. Afraid he would beat the hell out of me or kill me or something.” Id. at 44. Despite Lee’s testimony that he never sodomized Healey, a jury convicted him of the aforementioned crimes.

I.

Lee argues that the evidence of rape was insufficient because Healey submitted to the sexual acts, thus allowing no inference that there was forcible compulsion. When addressing such a claim, we must view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Matty, 422 Pa.Super. 595, 619 A.2d 1383 (1993). It is well-settled that where

a victim is threatened with physical abuse if she [or he] refuses to engage in intercourse with the assailant even to the point where the victim considers it pointless to resist, we have held that such conduct demonstrates the use of force and threat of force sufficiently compelling to meet the statutory threshold of forcible compulsion.

Commonwealth v. Gabrielson, 370 Pa.Super. 271, 285, 536 A.2d 401, 407 (1988). Here, not only did Healey feel that it would be pointless to resist Lee’s advances, but feared for his life if he did not submit. In fact, it was only after the president of the “Lifers Association at Rockview” assured Healey that he had friends who would “back him up,” that he felt comfortable to report the rapes. This evidence is sufficient to prove forcible compulsion beyond a reasonable doubt.

II.

Lee complains that a floor brush was improperly admitted into evidence against him. Lee concealed a floor brush in his jacket, and revealed it to Healey when he stated that he could have “knocked him out” and had sex with him. Although Healey could not identify the brush as the actual one which Lee brandished during their confrontation, it was similar to it:

Q: Now, do you know whether that’s the exact floor brush that you saw that night?
A: No, they all look the same to me.
Q: Okay. Is that the same size and shape?
A: Basically, yes.

N.T. 1/26/92, at 22.

Admission of demonstrative evidence is left to the discretion of the trial judge, and it is clear that “there is no requirement that the Commonwealth establish the sanctity of its exhibits beyond a moral certainty.” Commonwealth v. Hudson, 489 Pa. 620, 631, 414 A.2d 1381, 1387 (1980). “The Commonwealth is not compelled to establish that the particular weapon to be introduced was the actual weapon used in the commission of the crime.” Commonwealth v. Fromal, 392 Pa.Super. 100, 125, 572 A.2d 711, 724 (1990). All that is required is a “sufficient foundation demonstrating circumstances justifying an inference of the likelihood that the weapon was used in the crime charged.” Id.

Here, although there is no testimony which tends to establish that the floor brush was the actual one used, Healey’s testimony clearly establishes an inference that it was similar to the one used to threaten him. We find that this was a sufficient foundation for the brush’s admission. There was nothing peculiar about the brush that was actually used in the confrontation and the Commonwealth merely sought to demonstrate what Healey’s characterization of a “floor brush” meant. Admitting the evidence under these circumstances is well within the trial court’s discretion.

III.

Lee also argues that two “letters” were improperly admitted into evidence because he claims that they were not authenticated. We disagree.

The first document is a letter written by Lee to an inmate, Louis Jones. The letter is very near unintelligible, but in essence solicits Jones’ “help” in preparing Lee’s defense to Healey’s accusations. A handwritten document may be authenticated by “the opinion of any person acquainted with the handwriting of the supposed writer.” 42 Pa.C.S.A § 6111. Here, Jones acknowledged that he was familiar with Lee’s handwriting and identified the letter as being one which Lee sent to him. This is sufficient to authenticate the letter and its reception into evidence was not an abuse of discretion.

The next “letter” is not a letter at all. It is an unsigned, handwritten affidavit which contains, among others, the assertions “I am a homosexual,” and “William Healey is a known homosexual throughout the prison.” Shawn Jordan, an inmate, testified that Lee asked him to testify that Healey was a homosexual and known among the prisoners to commit homosexual acts. Lee then sent the letter to Jordan and at some point asked him to rewrite it and sign it. Lee apparently wanted the document to aid in his defense; he could claim that the charges against him were brought by a jilted lover. The Commonwealth wanted the evidence to show that Lee’s acts of subornation demonstrated a consciousness of guilt.

Lee contends that the affidavit was not authenticated because Jordan never saw it in Lee’s possession and because it took a form different than what he expected—a normal letter, not an affidavit. We reject this argument. A document may be proved by circumstantial evidence. Commonwealth v. Brooks, 352 Pa.Super. 394, 508 A.2d 316 (1986). This may be accomplished by “proof of any circumstances which will support a finding that the writing is genuine.... ” Id. at 399, 508 A.2d at 319 (quoting McCormick, Evidence, § 222 (E. Cleary 2d Ed.1972)). Jordan claimed that Lee approached him and asked him to testify that Healey was a homosexual. He then received a document purportedly from Lee, who later asked him to rewrite the affidavit and affix his signature. We feel that this testimony is sufficient to authenticate the document because it embodies exactly what Lee told Jordan it would— ■factual allegations that Healey was homosexual. Furthermore, Lee himself dispelled any doubt that he actually sent the letter when he asked Jordan to rewrite it. Simply because Lee did not hand deliver the affidavit, or because it was not a personal letter, does not render the document any less authentic. The trial court did not abuse its discretion in accepting the affidavit into evidence.

IV.

Finally, our review of the record indicates that the trial court imposed an illegal sentence which must be corrected. It is well established that we must correct an illegal sentence sua sponte. Commonwealth v. Kozrad, 346 Pa.Super. 470, 499 A.2d 1096 (1985). Lee committed two forcible acts of anal intercourse and two acts of oral intercourse with Healey. Lee was charged with four counts of rape, 18 Pa. C.S.A. § 3121, and four counts of involuntary deviate sexual intercourse (IDSI), Id. at § 3123. He was sentenced on all eight counts, although it is clear that Lee achieved only four acts of penetration. This, in our opinion, violates the proscription against imposing multiple sentences for identical crimes.

Although there has been much dispute in our caselaw regarding multiple sentences for concurrent convictions of rape and IDSI, it cannot be disputed that the double jeopardy clause prohibits the imposition of cumulative punishment for the same offense. Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Adams, 296 Pa.Super. 24, 442 A.2d 277 (1982).

“[T]he criminal prosecution is for the injury done to the Commonwealth, and not for the injury done to the person who may, if entitled, obtain redress through a civil action. Where there is but one act of cause of injury, or death of a number of persons, there is but one injury to the Commonwealth, but where the acts or causes are separate, they are separate injuries to the peace and dignity of the Commonwealth.”

Walker, supra, 468 Pa. at 331, 362 A.2d at 231 (quoting Commonwealth v. Veley, 63 Pa.Super. 489, 496 (1916)). Moreover, “[i]t has long been understood that separate statutory crimes need not be identical—either in constituent elements or actual proof—in order to be the same.” Adams, supra, 296 Pa.Super. at 32, 442 A.2d at 281 (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977)). Our review of the rape and IDSI statutes involved in this case reveals that not only are they similar in intent and application, but they are identical in every case involving forcible male on male intercourse. As such, imposing two sentences for one act of penile penetration is illegal under the double jeopardy clause of the United States Constitution.

Our Crimes Code defines rape as follows:

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(3) who is unconscious,
(4) who is so mentally deranged or deficient that such person is unable to give consent.

18 Pa.C.S.A. § 3121. Sexual intercourse under § 3121 “in addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required.” Id. at § 3101. IDSI, similarly, is defined as follows:

A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(3) who is unconscious;
(4) who is so mentally deranged or deficient that such person is incapable of consent; or
(5) who is less than sixteen years of age.

Id. at § 3123. Deviate sexual intercourse is “sexual intercourse per os or per anus between human beings who are not husband and wife, and any form of sexual intercourse with an animal.” Id., § 3101.

Reading the definitions of “sexual intercourse” and “deviate sexual intercourse” together, it is abundantly clear that, as between non-married persons, any act of forcible oral or anal sex is proscribed by both the rape and IDSI statutes. In fact, there are only two differences between rape and IDSI: (1) rape proscribes non-consensual sexual intercourse in “its ordinary meaning” (vaginal intercourse) or “traditional rape,” and (2) IDSI proscribes deviate sexual intercourse with any person under sixteen. Otherwise, the statutes are identical. As applied to male on male forcible “intercourse,” moreover, there is absolutely no difference between the two. Every time a man has forcible intercourse with another man (necessarily per anus or per os), he has both raped and committed involuntary sexual deviate intercourse. It is impossible for him to rape another man without committing IDSI, nor can he commit IDSI without raping him. The two crimes are identical.

Our courts, in an apparent effort to maintain some type of meaningful distinction between rape and IDSI, have been reluctant to acknowledge the clear import of the statutes’ language. In Commonwealth v. Romanoff, 258 Pa.Super. 452, 392 A.2d 881 (1978), a jury convicted defendant of rape and IDSI. The evidence indicated that although defendant forced his victim to perform oral sex, he unsuccessfully attempted to have vaginal intercourse. The trial court arrested judgment on defendant’s rape conviction, but allowed the IDSI conviction to stand. Defendant argued that the IDSI conviction violated double jeopardy because the rape and IDSI statutes are virtually identical:

Although novel, appellant’s argument misses the mark. He was not placed in double jeopardy because he was alleged to have committed upon the complainant two different acts: “involuntary deviate sexual intercourse” by placing his penis inside her mouth, and “rape” by allegedly forcing his penis into the vagina. The proof of rape failed to establish penetration, and it was clearly correct for judgment to have been arrested as to the verdict of guilty of rape. We are not impressed by appellant’s refusal to acknowledge that deviate sexual intercourse differs from sexual intercourse, as it is considered in its ordinary meaning, because of its aspect of deviateness. What may be an ambiguity in the definitions of actions made criminal will not cloud our applying common sense understanding to the facts. It was not error for appellant to have been indicted and tried for the instant two crimes, albeit that proof of the rape charge did not sustain conviction on that charge.

Id. at 459-60, 392 A.2d at 884-885. This reasoning was followed in Commonwealth v. Pifer, 284 Pa.Super. 170, 425 A.2d 757 (1981), where the defendant, who had forcibly performed vaginal and oral intercourse on his victim, claimed that his convictions for rape and IDSI should merge for sentencing purposes. We rejected his claim:

We once again hold that the language defining the crime of rape refers to sexual intercourse in its ordinary meaning. By forcibly placing his penis in the victim’s vagina, appellant committed the crime of rape, and by forcibly engaging in oral sex with the victim, he committed involuntary deviate sexual intercourse. Appellant’s acts constituted two separate and distinct crimes, and he was therefore properly charged with both rape and involuntary deviate sexual intercourse.

Id. at 184-85, 425 A.2d at 764.

Although these cases are clear in their application—a defendant may be held accountable for separate acts of penetration during the course of one criminal episode—what is not so clear is whether we have chosen to ignore the clear language of 18 Pa.C.S.A. § 8101, which defines “sexual intercourse” as including anal and oral sex, or whether it just never came up. For example, in Pifer, supra, the defendant engaged in one act each of vaginal and oral intercourse. The question there was not whether the act of oral sex could be considered “rape” under the statute, but only whether each act of penetration could be punished separately.

Although the prosecutor in Pifer charged defendant with one count each of rape and IDSI, he could just as easily have charged defendant (under the statute, but perhaps not under the Court’s reasoning) with two counts of rape. Had Pifer insisted that two rape sentences for two acts of penetration violated double jeopardy, our answer would have been the same as it was in the actual case: “no, double jeopardy was not violated because you committed two acts of rape,” or, in terms of the statutory language, two acts of “sexual intercourse by forcible compulsion.” But to suggest that the prosecutor could have charged the defendant with, and sentences could have been imposed for, both rape and IDSI for one act of oral intercourse is not only unfair, but unconstitutional as well. Whatever the Romanoff and Pifer courts meant by insisting that only vaginal intercourse could be “rape,” we cannot question that they would vacate two sentences imposed for the same act.

We draw this conclusion because the distinction between seeking rape and IDSI convictions for different instances of sexual penetration and seeking multiple punishments for the same single act of penetration has not been lost when the issue was in point. In Adams, supra, the defendant committed two acts of oral intercourse and one act of vaginal intercourse on his victim. He was convicted and sentenced for two counts of IDSI and one count of rape. We held that the sentences did not violate double jeopardy: “Although rape and involuntary deviate sexual intercourse may constitute the same crime for purposes of the double jeopardy clause, where the defendant’s actions constitute separate injuries to the ‘peace and dignity of the Commonwealth,’ then each act may be punished separately.” Adams, 296 Pa.Super. at 28, 442 A.2d at 279 (emphasis added). What was foreshadowed in Adams appeared in Commonwealth v. Smith, 313 Pa.Super. 138, 459 A.2d 777 (1983). In Smith, the defendant (or his co-conspirator) penetrated the male victim’s anus with his penis, and the jury found defendant guilty of rape, IDSI, and indecent assault. We held that the evidence was sufficient to sustain the convictions for all three offenses, but held that he could only be sentenced for one:

[t]he same act constitutes the basis for all three convictions. Consequently, we find that the three offenses merge. It is well-established that a conviction for indecent assault will merge with rape. However, for the most part, rape and involuntary deviate sexual intercourse will constitute separate offenses. In the present case only one act was committed, and it is this act which serves as the basis for both convictions. Under these circumstances we would find the two offenses merge.

Id. at 160, 459 A.2d at 788 (citations omitted).

The import of Adams and Smith seems quite clear. Our discussion of whether a defendant may be sentenced twice for one act of penetration, however, cannot end until we have discussed Commonwealth v. Hitchcock, 523 Pa. 248, 565 A.2d 1159 (1989), our Supreme Court’s most recent attempt to tackle the IDSI/rape merger problem. In Hitchcock, the defendant was on trial for rape, IDSI, indecent assault, and corruption of minors. Although the facts are not entirely clear, it is apparent that the defendant sexually molested his daughter. He committed several acts of oral and anal intercourse during the course of doing “everything his sordid imagination could contrive.” Id. at 250, 565 A.2d at 1159. The trial court held that the assaults merged for purposes of sentencing because they were “a bundle of evils.” Our Supreme Court disagreed, holding that “separate penetrations charged on the same occasion may be separately punished.” Id. Although this holding seems uncontroversial, the court’s opinion contains the following language:

The appellant was separately charged and convicted of involuntary deviate sexual intercourse and for that he was properly sentenced. Involuntary deviate sexual intercourse is not a lesser included offense of rape and when there is charged one or more forcible penetrations of a man or woman they are separate offenses under that section.

Id. at 252-53, 565 A.2d at 1162.

It is difficult to tell what this language means, because as we have discussed at length, it is clear that IDSI is not a “lesser included offense” of rape. In the vast majority of cases, most pertinently in cases such as Lee’s here, IDSI is identical to rape. Justice Papadakos, in concurrence, insight-fully explained that despite some of the lingering notions that “rape” is a crime that can be committed only by men against women (the thread that seems to connect some cases from this Court as well as Hitchcock's majority opinion), it is a gender neutral crime that encompasses IDSI in most cases:

First, the crimes of Rape (3121) and Involuntary Deviate Sexual Intercourse are overlapping to the extent that they both include acts of oral and anal sex. There is no gender distinction between them. The distinctions are traditional but not definitional. The act of rape can be committed by penetration however slight by penis or by mouth by either sex upon either sex. A male can rape a female by his penetration of any of the victim’s orifices; a male can rape a male in the same fashion; and, similarly, a female can rape another female or male as well. (In Pennsylvania, regrettably, penetration by an artificial instrument or digit is not rape but does constitute indecent assault).
The only distinction between the two statutes is that under Deviate Sexual Intercourse a victim below the age of 16 cannot consent to the act. Although the overwhelming number of these crimes are committed by penis-vaginal penetration, that is merely a statistical and historical circumstance. The Commonwealth is free to charge under Rape or Deviate Sexual Intercourse. Both are felonies of the first degree. Charges are filed per assault per orifice. We should not be confused by the fact that customary usage of the term “rape” refers to a male committing vaginal penetration of a female, nor by the usual designation of sodomy as a deviate crime.

Id. Given this clarification, we read the majority’s opinion to hold nothing more than we have already determined—a defendant can commit multiple criminal acts during one episode if he commits multiple penetrations. See Commonwealth v. Vanderlin, 398 Pa.Super. 21, 580 A.2d 820 (1990) (punishments for attempted IDSI and attempted rape sustainable when evidence indicates that defendant touched victim’s mouth with penis and told her he intended to rape her). It should not be interpreted, however, to allow multiple punishments for one penetration.

The source of the problem in these cases is that, in practice, most Commonwealth prosecutors charge criminal defendants with rape in cases of vaginal intercourse and IDSI in cases of anal and oral sex. Although this practice is entirely consistent with our statutes and with the broad language in many appellate opinions, courts and prosecutors alike must recognize that what history might designate as “traditional rape” has been modified by the legislature so that rape now includes sexual acts that are also covered by the IDSI statute. Prosecutors should certainly have discretion to charge a defendant with all crimes relevant to his conduct. Prosecutors cannot, however, take advantage of the overlap—perhaps oversight— in the laws to impose multiple punishments on a citizen when he has actually committed only one crime. It is this exploitation which is expressly forbidden by our constitution.

In this case, Lee was accused of having committed two acts each of forcible anal and oral intercourse with Healey. The Commonwealth could have charged Lee with having committed four rapes, four acts of involuntary deviate sexual intercourse, or any combination of the two crimes. Instead, it charged him with four counts each of rape and IDSI; Lee was convicted, and the trial court sentenced him on all eight counts. Since Lee was punished twice for each act of penile penetration, he was sentenced in violation of the double jeopardy clause of the United States Constitution. The IDSI sentences, which were imposed concurrent to the sentences for rape, must be vacated.

It is so ordered. Judgment of sentence otherwise affirmed.

HESTER, J., concurs in the result.

      . The record is unclear exactly what Jordan meant when he testified that the letter “was sent to me.” N.T. 1/26/92, at 164. Since both Lee and Jordan were inmates of the same prison, it seems unlikely that it would have been sent through regular mail; we expect that he was referring to an intra-prison mail service.

      . Lee did not admit to asking for the rewrite, but Jordan testified that he did. This is sufficient testimony to authenticate the letter. Whether Lee actually made such a request, of course, was a jury question and would affect the weight the jury would give the evidence, not its admissibility.

      . Although the trial judge imposed the sentences for rape and IDSI concurrently, there is no question that concurrent sentences are "cumulative” for purposes of the double jeopardy clause. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Commonwealth v. Walker, infra.

      . To analogize this scenario to Lee’s case: Pifer committed one act of vaginal intercourse and one act of oral intercourse. If the prosecutor had charged Pifer with rape and IDSI for the oral penetration and another count of rape for the vaginal intercourse, then Pifer would have received three sentences for committing two acts of penetration. Likewise, Lee received eight sentences based on four acts of penetration. This cannot be.

      . Although the Court’s use of the term “merger” is confusing in that merger usually connotes one crime being necessary to prove a greater crime, it was nonetheless proper. "Merger” is also the term employed for cases where multiple punishments are imposed for the same act. Commonwealth v. Artis, 294 Pa.Super. 276, 439 A.2d 1199 (1982). In such a case, sentence is imposed for the crime graded the highest, and the "lesser” sentences are vacated. Id. at 282, 439 A.2d at 1202. Since rape and IDSI are both first degree felonies (further testament that these two crimes are identical) we will vacate Lee’s IDSI sentences because the trial court imposed the IDSI sentences last.


author: DEL SOLE, Judge: JOHNSON, Judge,

text:
    638 A.2d 1013
    COMMONWEALTH of Pennsylvania v. Randolph WOODS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 23, 1993.
    Filed March 16, 1994.

      Christopher L. Blackwell, Washington, for appellant.
    Michael J. Fagella, Asst. Dist. Atty., Washington, for Com., appellee.
    Before CHULLO, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

This is an appeal from a judgment of sentence for the crimes of Criminal Trespass and Firearms Not to be Carried Without a License. Because there was no abuse of discretion or error of law by the trial court, we affirm.

The evidence established that Appellant and his estranged wife were separated but he had consensual visitation with their four children. At some point, his wife stopped the visitation and Appellant petitioned for a custody hearing to reestablish his contact with the children. Frustrated and distraught over his lack of visitation, Appellant went to the marital residence, where his wife was home with the children. Carrying a loaded gun, he beat on the door, gained entry and then fired the weapon. Appellant was charged with Attempted Homicide, Recklessly Endangering Another Person, Criminal Trespass and Firearms Not to be Carried Without a License.

At trial, Appellant maintained that he had entered the residence with the intention of committing suicide in the presence of his wife and children, and that the knife wounds sustained by his wife were the result of her attempts to prevent him from stabbing himself. He also testified that he accidentally discharged his gun before his intended suicide could be completed. The jury apparently found Appellant’s testimony to be credible, as they acquitted him of Attempted Homicide and Recklessly Endangering Another Person.

Appellant was sentenced to seven and one-half to fifteen months imprisonment on the Criminal Trespass conviction, and received a consecutive sentence of four to eight months imprisonment on the Firearms Not to be Carried Without a License conviction.

Appellant raises four issues for our review:

1) Whether the evidence was sufficient to sustain the verdict of guilty of Criminal Trespass?
2) Whether the evidence was sufficient to sustain the verdict of guilty of Firearms Not to be Carried Without a License?
3) Whether the trial court erred in denying Appellant’s demurrer to the charge of Firearms Not to be Carried Without a License?
4) Whether Appellant was denied his constitutional right to representation by a competent attorney?

In determining whether there was sufficient evidence to support Appellant’s convictions, we must view the evidence, and all the reasonable inferences therefrom, in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989). We then must determine whether that evidence would enable the trier of fact to find every element of the crimes proven beyond a reasonable doubt. Id. Moreover, the entire trial record must be evaluated and all evidence actually received must be considered. Commonwealth v. Price, 416 Pa.Super. 23, 610 A.2d 488 (1992). The trier of fact is free to believe all, part or none of the evidence. Id.

Appellant asserts that the evidence was insufficient to show that he knew he was not licensed or privileged to enter the home. The record demonstrates that Appellant and his wife had been estranged and were living apart for some time when the incident occurred. Appellant had to enter the home by force since his wife would not allow him inside. Thus, there is sufficient evidence on the record to support the findings required by 18 Pa.C.S.A. § 3503(a)(1).

In regard to Appellant’s conviction for carrying a firearm without a license, he asserts that the “lack of licensure” element of 18 Pa.C.S.A. § 6106(a) was not adequately proven by the Commonwealth, who bears the burden of proving this element at trial. Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). The only evidence offered by the Commonwealth to prove non-licensure was the testimony of a Deputy Sheriff of Washington County. The deputy testified that Appellant had no license to carry a concealed weapon issued by the sheriff of Washington County. Appellant argues that because the Commonwealth failed to establish non-licensure in the entire state, the evidence was insufficient to support his conviction.

Appellant cites Commonwealth v. Bryant, 341 Pa.Super. 123, 491 A.2d 181 (1985) in support of his contention that mere proof of non-licensure in a specific county is insufficient to satisfy proof of non-licensure. In Bryant, the Commonwealth produced the assistant chief of police for the City of Beaver Falls, who testified that his police ledger revealed that no gun permit had been issued to the defendant. This court held that because the prosecution could easily verify the existence or absence of a defendant’s licensure by contacting the State Police in Harrisburg and requesting a check of its records, there was no justification for the Commonwealth claiming that it need only prove the defendant’s non-licensure in Beaver Falls, the locality where the charge arose. This holding was based upon the fact that at that time, 18 Pa.C.S.A § 6109(a), which provides for the issue of licenses to carry firearms, authorized local officials to issue gun permits not only to residents of the locality, but also to any citizen in the Commonwealth. Thus, to permit the Commonwealth to prove nonlicensure merely by showing non-licensure in the city in which the offense occurred would have rendered ineffectual the language in § 6109(a) authorizing local officials to issue a license to “any person ... within this Commonwealth” without regard to residency.

Since our holding in Bryant, however, § 6109 has been amended to provide that if an applicant for a license to carry a firearm is a Commonwealth resident, the license application must be made to the sheriff of the county of residency or with the chief of police of a city of the first class, if the applicant is a resident of that city. 18 Pa.C.S.A. § 6109(b). Thus, in the instant case, the testimony of the Deputy Sheriff of Washington County, where Appellant resided, concerning Appellant’s non-licensure in that county was sufficient proof of the nonlicensure element of § 6106, since Appellant was required by statute to apply for a license in the county where he resided. Bryant, therefore, is no longer applicable, since the statute upon which its holding was based has been amended to limit the possible issuing authorities, and we now hold that evidence of non-licensure by the appropriate issuing authority of a defendant’s place of residence at the time of arrest meets the Commonwealth’s burden of proof on the element of nonlicensure as required by § 6106.

Our holding today does not shift the burden of proof to establish non-licensure under § 6106(a) to the defendant in violation of McNeil, supra. We are cognizant that non-licensure is the essential element of the crime of carrying a firearm without a license, and that the Commonwealth has the burden of establishing this element beyond a reasonable doubt. In Commonwealth v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979), the defendant was convicted under the Controlled Substance, Drug, Device and Cosmetic Act (CSDDCA), 35 P.S. § 780-113, for possession with intent to deliver heroine. In that case, we discussed our supreme court’s McNeil decision since the defendant in that case relied upon it to support his position that the Commonwealth has the burden of going forward with evidence of non-authorization and the burden of persuasion in every case. The defendant in Sojourner also argued that the non-licensure element in the firearms act and the non-authorization element under the CSDDCA were so similar that McNeil precluded the placing of the burden of going forward with evidence of authorization on him. We disagreed with this contention and explained that defendant’s reading of McNeil was too broad.

In Sojourner, we determined that a defendant who is accused of an offense under the CSDDCA has the burden to come forward with some evidence of authorization before the Commonwealth need disprove authorization beyond a reasonable doubt. We agreed with the Commonwealth’s reasoning that the CSDDCA would become practically unenforceable if the prosecution were required to disprove, in all cases, every possible type of authorization to possess controlled substances which the CSDDCA recognizes; a requirement that the defendant present some evidence of a particular type of authorization in support of his defense would make the Commonwealth’s duty easier and the purposes of the CSDDCA would remain intact. We further noted in Sojourner that, following McNeil, the Supreme Court in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.ED.2d 281 (1977), determined that the burden of going forward with evidence of all elements of a criminal offense does not necessarily lie with the Commonwealth from the beginning, and the defendant may be required to produce some evidence concerning an element of an offense. We also cited with approval the dissent in Patterson by Justice Powell in which he stated:

... even as to those factors upon which the prosecution must bear the burden of persuasion, the State retains an important device to avoid jury confusion and prevent the prosecution from being unduly hampered. The State normally may shift to the defendant the burden of production, that is, the burden of going forward with sufficient evidence ‘to justify [a reasonable] doubt upon the issue.’ Patterson v. New York, 432 U.S. at 230-31, 97 S.Ct. at 2338.

Sojourner, 408 A.2d 1108, 1114.

We concluded in Sojourner that such a procedural device was appropriate for prosecutions under the CSDDCA. Although we recognized in Sojourner that McNeil restrains us from the use of any procedural device for placing the burden of production or going forward with evidence of licensure on the defendant under the firearms act, there was a greater need to place this burden on the defendant under the CSDDCA. We reasoned that the firearms act provides for a central repository for all licenses with the Pennsylvania State Police Commissioner so that in most cases it would not be very difficult for the Commonwealth to obtain proof of nonlicensure. Compared to the numerous types of authorizations to possess, manufacture or deliver controlled substances, drugs, devices or cosmetics under the CSDDCA, the need for having defendant identify his source of authorization to carry a firearm is diminutive. Moreover, the appropriateness of placing the burden on the defendant to go forward with evidence was some what in doubt at the time that our supreme court decided McNeil which preceded Patterson v. New York, supra, by a few years; therefore, McNeil, did not enjoin us in Sojourner from requiring a defendant who has been accused of violating the CSDDCA to provide evidence of authorization.

We are not modifying our rationale in Sojourner to require the defendant to go forward with evidence of licensure, but, since § 6109 of the firearms act has been amended, we find it unnecessary to require the Commonwealth, in every case, to obtain a certified copy of the defendant’s license from the Pennsylvania State Police Commissioner as the exclusive method of establishing beyond a reasonable doubt the element of non-licensure under § 6106. Even though the State Police Commissioner maintains a repository for firearm licenses, and, it may not be unduly burdensome to procure a copy of a license from the State, we do not think that the Commonwealth need go to that extent to prove, beyond a reasonable doubt, that appellant did not have a license to carry a gun. Section 6109(b) mandates that a resident of this Commonwealth apply with the sheriff of a county in which he resides or, if a resident of a city of the first class, to apply with the chief of police of that city for a license to carry a firearm. Thus, when the Deputy Sheriff of Washington County testified that appellant was a resident of that county and no license to carry a firearm had been issued to him in that county, this was sufficient to establish the element of non-licensure beyond a reasonable doubt. If appellant could negate this evidence, then he should have presented the evidence in his defense. The law only requires the Commonwealth to establish the essential elements of a crime beyond a reasonable doubt, not beyond all doubt.

Contrary to our previous concerns in Bryant, supra, before § 6109 was amended, we are not rendering the language of the statute requiring that all licenses be forwarded to the State Police Commissioner inoperative. A repository such as the one required by the statute was not created for the sole purpose of retaining evidence for the prosecutor in firearms’ cases. The repository for firearms licenses also functions as an auxiliary in the case that the records maintained by the county sheriff or police chief are destroyed or damaged, and it also provides the state with information on the number of firearms licenses issued, among other reasons. We must acknowledge the difference between the former § 6109 and the amended statute because our Legislature intended that every statute be construed to give effect to all of its provisions. 1 Pa.C.S.A. § 1921. “A change in the language of a statute ordinarily indicates a change in the legislative intent.” Commonwealth v. Pierce, 397 Pa.Super. 126, 579 A.2d 963 (1990), appeal denied, 527 Pa. 609, 590 A.2d 296 (1991). Accordingly, the amended language in § 6109(b), which limits the authorities to whom a person whom apply to receive a firearms license in this Commonwealth, now establishes that sufficient evidence of a violation of the statute will exist where there is evidence of non-licensure from the issuing authority of the defendant’s county of residence.

Appellant’s third contention is that the trial court should have granted his motion for a demurrer because there was no evidence indicating where the gun came from or that it was ever “concealed on or about” his person, as required by § 6106(a). When a demurrer is denied and the defendant proceeds with his case and presents a defense, the defendant cannot challenge the propriety of the the denial on appeal; however, the appellate court may treat the motion on appeal as a challenge to the sufficiency of the evidence. Commonwealth v. Price, supra. Since appellant testified and offered evidence, we next apply this standard of review to his claim of sufficiency of the evidence. Applying this analysis, the record reveals that Appellant carried a firearm in his vehicle. (N.T., 7/18/91, pp. 161, 185.) Also, Appellant testified at trial that the gun was in fact concealed in his pocket as he talked to his children. (N.T., 7/18/91, p. 192.) Thus, contrary to Appellant’s assertion, not only did he carry a loaded firearm in his vehicle without having a license, but he also had the firearm concealed on his person at the time of the incident. Therefore, reviewing this evidence in a light most favorable to the Commonwealth, it was sufficient to find every element of the crime beyond a reasonable doubt.

Appellant’s final contention is that he was denied effective assistance by trial counsel because the post-verdict motions alleging insufficient evidence merely contained boilerplate language and gave no specific reasons in support of the allegations of insufficiency. Accordingly, the trial court denied Appellant’s motions.

In evaluating a claim of ineffective assistance, we must determine whether the underlying argument which counsel has foregone is of arguable merit; whether counsel’s chosen course of action was designed to effectuate his client’s best interests; and whether counsel’s actions resulted in prejudice to the defendant. Commonwealth v. Durst, 522 Pa. 2, 559 A2d 504 (1989); Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). In the instant ease, the evidence on the record demonstrates that Appellant’s sufficiency arguments do not possess arguable merit. Accordingly, Appellant suffered no prejudice by counsel’s omission of specific reasons in support of the allegations of insufficiency. Accordingly, we hold that Appellant was not denied effective assistance of counsel.

Judgment of sentence affirmed.

JOHNSON, J., files a concurring statement.

JOHNSON, Judge,

concurring.

Randolph Woods contends that there was insufficient evidence upon which to convict him of carrying a firearm without a license, 18 Pa.C.S. § 6106(a). The only case authority advanced by Woods to support his contention is Commonwealth v. Bryant, 341 Pa.Super. 123, 491 A.2d 181 (1985). That case was decided prior to the 1988 amendments to the Pennsylvania Uniform Firearms Act.

The evidence presented by the Commonwealth on this appeal was sufficient to establish that Woods had not complied with § 6109(b), requiring application for licensure with the sheriff of the county in which Woods resides. Given the limited argument advanced by Woods, I would leave to another day the consideration of questions which might arise in future, unrelated litigation.

I concur in the conclusion that the argument on sufficiency of the evidence is without merit and the judgment of sentence must be affirmed.