author: TAMILIA, Judge: POPOVICH, Judge, MELINSON, Judge,

text:
    568 A.2d 540
    Richard C. FUISZ v. Margaret FUISZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 17, 1989.
    Decided Aug. 28, 1989.

      Thomas P. Stitt, Easton, for appellant.
    April L. Cordts, Easton, for appellee.
    Before TAMILIA, POPOVICH and MELINSON, JJ.
   TAMILIA, Judge:

This is a timely appeal by defendant Margaret Fuisz of a final decree entered on November 17, 1988 following the trial court’s denial of her exceptions to a decree nisi entered after a non-jury trial on this matter. We affirm.

This action for specific performance of an oral “agreement” to convey real property was commenced on February 5, 1987 by appellee, appellant’s son. Appellant responded on March 5, 1987 by filing an answer and new matter denying the existence of an agreement and averring that damages were an adequate remedy and raising the affirmative defense of the statute of limitations. A bench trial was held on January 27, 1988, in which the trial judge reserved judgment pending the filing of briefs. On September 22, 1988, the trial judge entered an adjudication and decree nisi granting appellee’s demand for specific performance. Appellant’s exceptions to the decree nisi were denied and dismissed and the decree nisi was made final on November 17, 1988. This timely appeal followed.

In rendering its adjudication and decree nisi, the trial court found the following facts to be undisputed by the parties:

[Appellant] and her husband, Anton Fuisz, purchased fifty (50) acres of land in Lower Nazareth Township. When the land was acquired in the 1930’s, it contained a house that became the family dwelling. Later, in the 1960’s, appellant and her husband gave various parcels from the tract of fifty (50) acres to their two sons, Richard and Robert Fuisz. These earlier gifts included fully executed deeds of conveyance. In 1972, [appellee], Richard Fuisz, built a separate home on the Lower Nazareth tract. It was located on acreage not previously deeded to him. Instead, with the full knowledge and approval of his parents, [appellee] constructed his personal residence on a portion of the tract still owned by his mother and father. In addition to permitting their son to expend money for improvements, [appellant] assisted him in his dealings with various contractors and material-men. In 1982, a deed was prepared for the [appellee’s] home-site, however, he refused to accept the instrument as tendered because it did not include a right-of-way to his parents’ driveway or the use of their barn. Since 1982, no renewed offer to convey has been made; and, therefore, plaintiff still lacks legal title to the land on which he erected his personal residence.

(Slip Op., Franciosa, J., 9/22/88, p. 2.)

On appeal appellant has raised five issues: 1) the trial court acted improperly in granting appellee relief on grounds other than those pled by appellee’s complaint; 2) the court erred in its application of the law of specific performance to this case; 3) the court erred in failing to grant appellant’s motion for a nonsuit at the conclusion of appellee’s case; 4) the court erred in failing to find a violation of the statute of limitations; and 5) the court erred in failing to find appellee could be adequately compensated in damages.

We are constrained by a narrow standard of review and are bound by the trial court’s determination pertaining to the credibility of the witnesses and the weight to be accorded the evidence:

[A]ppeilate review of equity matters is limited to a determination of whether the chancellor committed an error of law or abused his discretion. The scope of review of a final decree in equity is limited and will not be disturbed unless it is unsupported by the evidence or demonstrably capricious.

Hostetter v. Hoover, 378 Pa.Super. 1, 6, 547 A.2d 1247, 1250 (1988) (citations omitted).

We find no merit to appellant’s first claim that the trial court erred or acted outside its authority in granting appellee relief, when the court ruled that an oral contract as pled by appellee was not present for lack of consideration. The trial court ruled that appellee was not entitled to specific performance because of the existence of any oral contract, but, instead, found that the facts pled and proven at trial constituted the existence of a parol inter vivos gift of real estate from appellee’s parents to himself. In so finding the court, sitting in equity, acted within its authority. Although appellee did not ask the court to find a gift, “[w]here equity assumes jurisdiction for one or more purposes, it will retain jurisdiction for all purposes to give complete relief and to do complete justice between the parties. This may include an award of equitable relief not covered by the original prayer.” Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 513, 351 A.2d 207, 213 (1976); Friday v. Friday, 311 Pa.Super. 17, 20, 457 A.2d 91, 92 (1983).

Next, appellant argues the evidence was insufficient to show either an oral contract or a gift for the transfer of real estate. We find little merit in this argument due to the clear testimony of appellee that his parents gave him access to the land and expressed their intention he would receive it; in reliance on this belief he built his home with their full knowledge and cooperation. Appellant’s entire claim, as to this argument, boils down to her disagreeing with the findings of the trial court. Upon careful review of the testimony, we find the court committed no abuse of discretion in finding donative intent on the part of appellee’s parents and that a gift was made. Similarly, we find no merit in appellant’s third issue that the court erred in denying her motion for nonsuit at the end of the appellee’s case.

Next, appellant claims the four year statute of limitations of 42 Pa.C.S. § 5525(3), concerning contracts not founded upon an instrument in writing, applies to prohibit appellant’s cause of action. We find this argument to be without merit. The statute of limitations is not an affirmative defense in equity actions, the proper defense is a claim of laches. Ritter v. Theodore Pendergrass Teddy Bear Productions, 356 Pa.Super. 422, 514 A.2d 930 (1986). Laches can only be found in clear cases, when the party asserting laches shows a delay arising from the other party’s failure to exercise due diligence and prejudice from the delay. Estate of Marushak, 488 Pa. 607, 413 A.2d 649 (1980); Leedom v. Thomas, 473 Pa. 193, 373 A.2d 1329 (1977). Furthermore, laches will not be imputed to one constantly in possession of premises the title of which is in controversy. Fitzpatrick v. Fitzpatrick, 346 Pa. 202, 29 A.2d 790 (1943). Here, there is no clear claim to laches. Appellee clearly moved onto the property at the time the gift was made and no prejudice can be shown by appellant. Moreover, appellee has held constant possession of the property in controversy since 1972.

Lastly, we find specific performance is a proper remedy under these circumstances. Due to real estate’s unique character the remedy of specific performance in equity is particularly appropriate, especially when substantial improvements have been made to the land. See Concorde Investments, Inc. v. Gallagher, 345 Pa.Super. 49, 497 A.2d 637 (1985).

Order affirmed.

POPOVICH and MELINSON, JJ., concur.

POPOVICH, Judge,

concurring:

While I agree with the majority’s opinion, I write separately to reiterate our Supreme Court’s position on the Statute of Frauds’ effect on a parol gift of land. In Rarry v. Shimek, 360 Pa. 315, 316-20, 62 A.2d 46, 47-48 (1948), and again in In re Yarnall’s Estate, 376 Pa. 582, 590, 103 A.2d 753, 758 (1954), our Supreme Court stated:

The requisites for the creation of a valid parol gift of land notwithstanding the Statute of Frauds of March 21, 1772, 1 Sm.L. 389, sec. 1, 33 P.S. § 1, have been clearly defined in a multitude of cases. Those requisites are (1) that the evidence of the gift be direct, positive, express and unambiguous; (2) that possession be taken in pursuance of the alleged gift at the time or immediately after it is made, and that such possession be exclusive, open, notorious, adverse and continuous; (3) that the donee make valuable improvements on the property for which compensation in damages would be inadequate, (footnotes omitted)

Cases involving a parol gift of land have not appeared before the courts of our Commonwealth since YarnalVs Estate. Accordingly, I believe it is important to note the continued authority of the aforementioned decisions. As applied instantly, the parol gift of land by the appellant meets the requirements of Rarry and Yarnall's Estate, and thus, the gift does not run afoul of the Statute of Frauds.

MELINSON, Judge,

concurring:

As indicated by Judge Popovich in his concurring statement, the elements for a creation of a valid parol gift of land are set forth in Rarry v. Shimek, 360 Pa. 315, 62 A.2d 46 (1948), and In re Yamall’s Estate, 376 Pa. 582, 103 A.2d 753 (1954). These are: “(1) that the evidence of the gift be direct, positive, express and unambiguous; (2) that possession be taken in pursuance of the alleged gift at the time or immediately after it is made, and that such possession be exclusive, open, notorious, adverse and continuous; (3) that the donee make valuable improvements on the property for which compensation in damages would be inadequate.” Rarry, 360 Pa. at 317-318, 62 A.2d at 47-48; Yarnall’s Estate, 376 Pa. at 590, 103 A.2d at 758 (footnotes omitted). I agree with Judge Popovich that the record adequately demonstrates that these elements have been met. I write separately to emphasize that our review of this case is controlled by the requirements of Rarry and Yarnall’s Estate. Only one of these elements, that of donative intent, is treated in the majority’s analysis. Accordingly, I concur with, rather than join, the majority.

      . In 1979, plaintiff was divorced from his wife. Since that time, he has not lived on the property. His ex-wife and the children continue to live there.


source: Caselaw Access Project

author: CAVANAUGH, Judge: BROSKY, Judge,

license: Public Domain

text:
    563 A.2d 891
    Christine W. GRAHAM, Executrix of the Estate of Charles H. Graham, Deceased, and Brent L. Miller and Josephine A. Miller, Husband and Wife v. SKY HAVEN COAL, INC. v. James E. RICOTTA. Appeal of Christine W. GRAHAM, Executrix of the Estate of Charles H. Graham, Deceased. James E. RICOTTA and Joan K. Ricotta, Appellant, v. SKY HAVEN COAL, INC. Christine W. GRAHAM, Executrix of the Estate of Charles H. Graham, Deceased and Brent L. Miller and Josephine A. Miller, His Wife v. SKY HAVEN COAL, INC. v. James E. RICOTTA. Appeal of Brent L. MILLER and Josephine A. Miller.
    Superior Court of Pennsylvania.
    Argued Feb. 27, 1989.
    Filed Aug. 4, 1989.

      John D. Briggs, Centre Hall, for Graham, appellant (at No. 1247) and appellee (at No. 1249) and participating party (at No. 1248).
    Girard N. Evashavik, Pittsburgh, for Ricotta, appellant (at No. 1248) and appellee (at Nos. 1247 and 1249).
    John E. Wall, Pittsburgh, for Sky Haven Coal, Inc., appellee (at Nos. 1247, 1248 and 1249).
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, McEWEN, OLSZEWSKI, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   CAVANAUGH, Judge:

The primary issue in this appeal is whether the trial court properly instructed the jury on the duty of the possessor of land to one who enters the land, and whether a new trial should have been granted to the plaintiffs below, who are the appellants in this court.

The evidence presented at trial established that a strip mining operation in Clearfield County, Pennsylvania, conducted by Sky Haven Coal, Inc. had experienced a series of thefts at the site during December, 1982. There was an access road leading from a state road to the mining operation. As a result of vandalism and thefts, the owner of the mine endeavored to close off the access road when the mine was not in operation. Joseph Owens, who owns Sky Haven Coal, Inc., instructed his foreman to place a cable across the road to prevent vehicles from entering the area during non-operating hours. Ditches were also dug along each side of the access road to prevent unauthorized trucks from entering the site. The cable was about %" in diameter and was attached to two steel poles placed about 26 feet apart. The poles were on each side of the road, and when the strip mining operation was shut down during the early hours of the morning, the cable was stretched across the road and secured with a padlock. The cable was rusty and had fluorescent plastic streamers on it. It was hung at a distance about 3 feet to 4 feet from the ground. There were no trespassing signs posted on the property through which the access road ran, and also a sign at the entrance of the access road that stated in part: “BLASTING AREA. KEEP OUT.” The cable was placed across the access road about 1,000 feet in from the state road.

On the evening of February 8, 1983, James E. Ricotta, who lived near the strip mine, was expecting a friend, Brent L. Miller, and an acquaintance, Charles H. Graham, to visit him. The weather was very cold and windy, and it was snowing very hard. When the two men did not arrive at Mr. Ricotta’s house as expected, he went to bed. About midnight, Miller and Graham arrived and had something to eat. The three then went for a ride in Ricotta’s car and subsequently went for another ride, notwithstanding the extremely bad weather, in a vehicle which Mr. Ricotta built himself and which he called a “work buggy.” Their destination was the nearby strip mine to watch the nighttime operations of the mine which they thought were then being conducted.

Mr. Ricotta’s “work buggy” was constructed to be an oversized wheelbarrow. The front half of the vehicle was constructed from a 1967 Chevrolet truck and the rear was made from a 1963 Cadillac. The vehicle was open and had no windshield. A bench was located behind the engine on which the operator and a passenger could sit. The back of the vehicle was built as a dump truck. The vehicle had two headlights which Mr. Ricotta described as follows: “One had a light in it that was a light bulb off a fire truck which gave it real bright light, and the other was a fog-light type light.”

The three men set off in the “work buggy” with Ricotta driving, Mr. Graham seated on the bench beside him and Mr. Miller on the back of the vehicle in the bed of the dump truck. They drove through the snowstorm to an airport and then around a friend’s house and then on a macadam road where they turned off at the access road leading to the mining site. Mr. Ricotta was aware of the sign which stated that it was a blasting area and to “keep out.” He proceeded up the access road at a speed of 10-15 miles per hour, and the time was then about 2:30 in the morning of February 9th. The strip mining was not operating at that time, as it was closed from 1:00 A.M. until 6:00 A.M. on the date in question. Mr. Ricotta did not see the cable across the road and struck it with his “work buggy”. The cable hit the radiator of the vehicle, pushed it back about four inches, and then struck Ricotta, knocking him temporarily unconscious. His two passengers were also struck by the cable. Mr. Graham died shortly afterwards and Mr. Miller was injured.

The Executrix of the Estate of Charles H. Graham commenced an action for wrongful death and a survival action against Sky Haven Coal, Inc., and Anamae Pezzula and Alta F. Albert, Executrices of the Estate of Frank Albert. Brent L. Miller and Josephine A. Miller joined in the suit against the same defendants. James E. Ricotta and Joan K. Ricotta, his wife, commenced separate actions against Sky Haven Coal, Inc. and the Estate of Frank Albert. James E. Ricotta was joined as an additional defendant. All of the actions were consolidated for trial and on appeal.

Following a jury trial before Reilly, P.J., a verdict was entered in favor of Sky Haven Coal, Inc. and against additional defendant, John E. Ricotta, but awarded no damages against Ricotta. The plaintiffs’ motions for a new trial were denied and they have appealed to this court.

The decision of the trial court in denying a new trial is within its sound discretion and will be sustained on appeal unless the appellate court determines that the trial court palpably abused its discretion. Leslie v. Pennco, Inc., 323 Pa.Super. 23, 470 A.2d 110 (1983). A motion for new trial does not test the verdict itself, but rather the legal proceedings resulting in the verdict, and the basis of a new trial motion is not that the verdict is unsupported by sufficient evidence, but that an alleged trial error affected the verdict. Dorn v. Stanhope Steel, Inc.,, 368 Pa.Super. 557, 534 A.2d 798 (1987), appeal denied, 518 Pa. 656, 544 A.2d 1342 (1988). Review of an order denying grant of a new trial imposes on an appellate court the duty to review all the evidence. Klyman v. Southeastern Pennsylvania Transportation Authority, 331 Pa.Super. 172, 480 A.2d 299 (1984); Seewagen v. Vanderkluet, 338 Pa.Super. 534, 488 A.2d 21 (1985); Leslie v. Pennco, Inc., supra. The appellants allege that the trial court erred in its instruction concerning wanton misconduct and in refusing to charge the jury on the instructions which they submitted.

There was evidence that recreational vehicles had used the strip mining site at all hours of the day and night. Mr. Ricotta testified that he had gone on the site for many years and had encountered employees of the mining company who did not tell him to leave. Mr. Ricotta also acknowledged, as stated above, that he was aware of the sign at the access road which stated that the site was a blasting area and to keep out. Also, the property was posted with “No Trespassing” signs.

The appellants contend that the following excerpts from the charge confused the jury and constitute the basis for granting a new trial:

If you find from the evidence that the plaintiffs here were trespassers, if you find that they were on this property without consent, without permission, then the standard of care or the duty would be as follows: In that event if they are trespassers, if the defendant knew or if the defendant had reason to know of the plaintiffs’ presence, the defendant’s only duty to the plaintiffs was to refrain from wanton or reckless conduct which would necessarily cause injury to the plaintiff.
If they were trespassers, the defendant — and if the defendant knew or had reason to know of the plaintiffs’ presence, the defendant’s only duty to the plaintiffs was to refrain from wanton or reckless conduct which would necessarily cause injury to the plaintiff or plaintiffs.
Negligence — and we’ll be going over ordinary negligence in just a moment. But negligence consists of inattention or inadvertence. Whereas wantonness exists where the danger to the plaintiff, the plaintiffs, though realized, is so recklessly disregarded that even — even though there be no actual intent, there is at least a willingness to inflict injury. A conscious indifference to the perpetration of the wrong.

We must read the charge as a whole and not isolated portions to determine whether it correctly sets forth the law. Slavish v. Ratajcyzak, 277 Pa.Super. 272, 419 A.2d 767 (1980). A determination must also be made by the appellate court whether error was prejudicial to the complaining party, if it existed. Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985).

The appellants contend that the excerpts quoted from the charge unequivocally conveyed to the jury that in order to impose liability on Sky Haven Coal, Inc. for wanton misconduct, it would have had to foresee that these particular plaintiffs, Messrs. Ricotta, Graham and Miller, would be likely to trespass on its land. The appellants argue that “the trial court erroneously instructed the jury that the defendants [Sky Haven Coal, Inc.] could only be liable if it knew of the presence of these particular plaintiffs.” (Appellant Graham’s brief, p. 8) We do not read the charge in that way. A fair reading of the charge indicates that when the court referred to the defendant knowing or having reason to know of the plaintiffs’ presence, it was referring to plaintiffs in the sense of “persons”. No reasonable jury would conclude the court meant that in order to impose liability, the defendant had to know, or have reason to know of the specific presence of the individual plaintiffs.

The court proceeded to charge the jury as follows:

And finally, wantonness or recklessness means that the Defendant has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it. And so great as to make it highly probable that harm would follow. It is usually accompanied by a conscious indifference to the consequences.
That, members of the jury, is reckless or wanton conduct. And if you find that the plaintiffs were at the time and place of the accident trespassers upon the property of the defendant, then the defendant would have been required to refrain from reckless or wanton conduct. And if you find that his conduct on that occasion in the surrounding circumstances of the condition of the land was reckless and wanton, then under those circumstances, the defendant would have to answer to the plaintiffs for the damages sustained.
If you find that the plaintiffs were trespassers and that the defendant’s conduct at that time did not rise to the level of reckless and wanton conduct, then the Defendant would not be responsible to the plaintiffs in damages for the injuries sustained. (Emphasis added.)

Isolated portions of the charge may not be read to form the basis of a new trial, if the charge as a whole correctly sets forth the law. Reilly v. Southeastern Pennsylvania Transportation Authority, supra; Murphy v. Publicker Industries, 357 Pa.Super. 409, 516 A.2d 47 (1986). If the plaintiffs were trespassers, then the legal obligation to them was to avoid willful or wanton misconduct. Evans v. Philadelphia Transportation Company, 418 Pa. 567, 212 A.2d 440 (1965). The Supreme Court in Evans, supra, quoting from Prosser, Torts § 33 at Page 151 (Second Ed.1955) described wanton misconduct as intentionally doing an act of unreasonable character in disregard of a known risk or a risk so obvious that one must be presumed to have been aware of it, and a risk so great as to make it highly probable that harm would follow, and such conduct is usually accomplished by a conscious indifference to the consequences. The charge to the jury followed the rule of Evans, supra.

The appellant’s rely on Antonace v. Ferri Contracting Company, Inc., 320 Pa.Super. 519, 467 A.2d 833 (1984) to support their theory that the court erred because it added the element that knowledge of the specific plaintiffs’ presence was required. In Antonace, supra, a sixteen-year old boy trespassed on property while operating a dirt bike. He struck a steel cable placed across the roadway, which flew up striking him in the neck, resulting in his death. The case was tried before Zappala, J., now Justice Zappala, who properly charged the jury concerning wanton misconduct at the outset of the charge, but thereafter, the court spoke solely in terms of negligence, including contributory negligence, when discussing liability. We noted at 320 Pa.Super. at 528, 467 A.2d at 838:

Just prior to dismissing the jury for deliberation, the trial court described the possible verdicts which it could reach. All six described spoke solely in terms of negligence. (R. 445a-447a). Nowhere was willful or wanton misconduct mentioned.
A verdict form with special interrogatories was used. All questions spoke in terms of negligence. Once again, there was no mention of willful or wanton misconduct.

In our discussion of the trial court’s refusal to grant a new trial, we held the charge to be erroneous because the court essentially submitted the matter to the jury as a negligence case. In the case sub judice, the appellants introduced evidence to establish that they were not trespassers, but were licensees instead. They submitted evidence that the property was not posted and that it was the custom in Clearfield County that one could use unposted private property for recreational purposes as hunting and operating dune buggies and snowmobiles. The charge properly delineated to the jury the discrete obligations owed by a possessor of land to a licensee and a trespasser. The appellee, Sky Haven Coal, Inc., would owe a higher duty to the appellants if they were licensees than if they were trespassers, and the charge concerning licensees could not have prejudiced the appellants.

The appellants would have us find error in the failure of the court below to adopt its fourth point for charge which read as follows:

4. For you to find wanton misconduct on the part of the defendant, actual prior knowledge of the danger to the plaintiffs need not be established. Antonace v. Ferri Contracting Company, Inc., 320 Pa.Super. 519, 467 A.2d 833 (1983). If you find that the defendant realized, or at least had knowledge of sufficient facts to cause a reasonable man to realize the danger existed, and that the defendant could have taken reasonable measures to avoid the accident, then the defendant was guilty of wanton misconduct by recklessly disregarding the danger posed by the cable.

The requested instruction is not more accurate than the instructions given. The court in its charge correctly described wanton conduct and the liability that attaches to such conduct if directed at a trespasser.

The appellants also contend that the court erred in not granting an instruction under § 335 of the Restatement (Second) of Torts as requested in the points for charge submitted by the Executrix of the Graham Estate. We find no error in refusing to specifically charge under § 335. The purpose of the trial court’s charge to the jury is to apprise the members of the jury of the legal principles by which they must decide the case and this does not require the trial court to use any prescribed language, provided the applicable law is fully conveyed. Hawthorne v. Dravo Corp., Keystone Division, 352 Pa.Super. 359, 508 A.2d 298 (1986); Seewagen v. Vanderkluet, 338 Pa.Super. 534, 488 A.2d 21 (1985); Berman v. Radnor Rolls, Inc., 374 Pa.Super. 118, 542 A.2d 525 (1988). The duty owed to trespassers by a property owner is only to refrain from willful or wanton misconduct. Krivijanski v. Union Railroad Co., 357 Pa.Super. 196, 515 A.2d 933 (1986).

Finally, the appellants argue that the court below erred in allowing the testimony of Anamae Pezzula concerning the purchase and posting of “No Trespassing” signs on or near the property leased to Sky Haven Coal, Inc. by the Albert Estate, and newspaper notices that trespassing on the property was prohibited. The basis for the objection is that the plaintiffs had no notice of this testimony and exhibits that were entered, and they were prejudiced as a result. This argument lacks merit as Mrs. Pezzula was a party to the lawsuit and could have been subject to discovery under Pa.R.C.P. 4005 and 4007.1. The defendants did not conceal her identity, and she was obviously known to the plaintiffs as she was a defendant in the actions brought in the court below. The appellants’ contention that they were surprised by her testimony and exhibits introduced concerning the newspaper notices and the purchase of “No Trespassing” signs is of no avail. Mrs. Pezzula was a co-executrix of the estate that owned the land and was a party to the litigation. The plaintiffs had ample opportunity to discover, by way of deposition or interrogatories, her knowledge concerning the land. The admission of evidence is peculiarly within the discretion of the trial court. Bessemer Stores, Inc. v. Reed Shaw Stenhouse, Inc., 344 Pa.Super. 218, 496 A.2d 762 (1985). We will reverse the ruling of the trial court concerning the admission of evidence, only if there is an abuse of discretion. Durkin v. Equine Clinics, Inc., 376 Pa.Super. 557, 546 A.2d 665 (1988). It would be too drastic to exclude the testimony of a witness unless the facts made it clearly necessary. Feingold v. Southeastern Pennsylvania Transportation Authority, 339 Pa.Super. 15, 488 A.2d 284 (1985), order affirmed by Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986). The court below manifestly did not abuse its discretion in admitting the objected to testimony and evidence.

Judgment affirmed.

BROSKY, J., files concurring and dissenting opinion in which JOHNSON, J., joins.

BROSKY, Judge,

concurring and dissenting.

I concur in the majority holding that the Pezzula testimony, and the documents from which she testified, were properly admitted into evidence. I also concur in the position that it was unnecessary for the trial court to read verbatim Section 335 of the Restatement (Second) of Torts in the jury charge.

However, I cannot agree that the jury charge on wanton misconduct was not ambiguous and misleading. Rather, I would grant appellant Graham a new trial based upon the inadequacy of this part of the charge.

The primary purpose of the trial court’s charge to the jury is to apprise the members of the jury, in an understandable fashion, of the legal principles by which they must decide the case. It is well settled that this does not require the trial court to use any prescribed language, such as that requested by a party, to perform this function, provided the applicable law is fully conveyed. See Hawthorne v. Dravo Corp., Keystone Div., 352 Pa.Super. 359, 508 A.2d 298, 302-03 (1986); see also Seewagen v. Vanderkluet, 338 Pa.Super. 534, 488 A.2d 21, 26 (1985). Moreover, not every misstatement of the law is grounds for reversal. The charge must be viewed in its entirety against the background of the evidence to determine whether or not error was committed, and whether that error was prejudicial to the complaining party. Elder v. Orluck, 334 Pa.Super. 329, 483 A.2d 474, 481 (1984). Normally, for a party to be entitled to a new trial on the basis of prejudicial error flowing from the charge, the instructions complained of must be fundamentally in error, and it must appear that the erroneous instructions might have been responsible for the verdict. However, a new trial is also appropriate where the instructions, although perhaps not erroneous, are somehow ambiguous such that the jury may have been misled or confused. Hawthorne, supra.

The majority quotes a portion of the charge below, and, upon finding that portion to contain no fundamental error per se in its recitation of the applicable law, concludes that a new trial is not warranted. This approach, however, does not take the totality of the charge into account, for it ignores the problems created by that part of the charge directly preceding the quoted portion. It is the preceding part which appellant Graham contends misled the jury:

____ Once you have determined what the status was of these plaintiffs, you will then know what standard of care to apply to the defendant.
If you find from the evidence that the plaintiffs here were trespassers, if you find that they were on this property without consent, without permission, then the standard of care or the duty would be as follows: In that event if they are trespassers, if the defendant had reason to know of the plaintiffs’ presence, the defendant’s only duty to the plaintiffs was to refrain from wanton or reckless conduct which would necessarily cause injury to the plaintiffs?
If they were trespassers, the defendant — and if the Defendant knew or had reason to know of the plaintiffs’ presence, the defendant’s only duty to the plaintiffs was to refrain from wanton or reckless conduct which would necessarily cause injury to the plaintiff or plaintiffs.
Wanton or reckless conduct. That has been defined by the Court as follows: Wanton conduct is something different from negligence, however gross. Different not merely in degree but in kind and evincing a different state of mind on the part of the Defendant.
Negligence — and we’ll be going over ordinary negligence in just a moment. But negligence consists of inattention or inadvertence. Whereas wantonness exists where the danger to the plaintiff, the plaintiffs, though realized, is so recklessly disregarded that even — even though there be no actual intent, there is at least a willingness to inflict injury. A conscious indifference to the perpetration of the wrong____
(Graham R.R., pp. 513a-514a.) (Emphasis supplied.)

Appellant Graham contends that the above, whether taken in isolation or together with the portion quoted by the majority, was ambiguous and misleading to the jury in that it left the impression that a defendant must either know, or have reason to know, of the presence of the particular plaintiff or plaintiffs at issue to be liable for injuries caused by wantonness or recklessness. Appellant further contends that the supplemental point for charge number four would have cleared up any ambiguity in the court’s charge, but was erroneously refused, thereby making the instruction on wanton misconduct inadequate. I agree.

Under current law, the duty of care owed by a landowner or occupier of land to a trespasser, is to refrain from willful or wanton misconduct. Antonace v. Ferri Contracting Co., Inc., 320 Pa.Super. 519, 467 A.2d 833, 835 (1983); Evans v. Philadelphia Transportation Co., 418 Pa. 567, 212 A.2d 440, 442 (1965).

Willful misconduct means that the actor desired to bring about the resultant harm, or was at least aware that it was substantially certain to ensue; this means that willful conduct requires actual prior knowledge of the trespasser’s peril. Antonace, supra; Evans, supra.

Wanton misconduct, by contrast, means that an actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences, and not a desire to bring them about; as such, actual prior knowledge of the particular injured person’s peril is not required. It is enough that the actor realizes, or at least has knowledge of sufficient facts that would cause a reasonable man to realize, that a peril exists, for a sufficient time beforehand to give the actor a reasonable opportunity to take means to avoid the injured person’s accident; the actor is wanton for recklessly disregarding the danger presented. Antonace, supra; Evans, supra.

The majority’s assertions to the contrary notwithstanding, the Antonace case is strikingly similar to the matter sub judice. The appellant, Ferri Contracting Co., Inc., had leased property for storage of equipment and materials to be used on a sewer project. Due to vandalism problems, Ferri had strung a steel cable across one of three dirt access roadways. The decedent, a dirt bike rider, went biking with friends on that particular road, came into contact with the cable, and was struck in the neck. The injury proved fatal. On the issue of the “knowledge” required for a finding of wanton, as opposed to willful, conduct, our Court reiterated that actual knowledge of a specific trespasser is not required, and continued as follows:

Applying the principles from the foregoing authorities to the case sub judice, it is clear that a jury could conclude that appellant knew dirt bike riders such as the decedent were using the property, and that in view of this knowledge, erection or maintenance of a steel cable, in a position of limited visibility, without markings or warning signs, constituted, “an act of unreasonable character, in disregard of a risk known to him or so obvious that he must have been aware of it, and so great as to make it highly probable that harm would follow.” Prosser, Torts § 33 at 151 (2nd ed 155), quoted with approval in Evans, supra, 418 Pa. at 574, 212 A.2d at 443.

Antonace, supra, 467 A.2d at p. 837. (Emphasis supplied.)

The majority attempts to circumvent the patent applicability of Antonace by asserting that the actual holding of Antonace pertained solely to the trial court’s error in charging only in terms of negligence and contributory negligence upon reaching the liability section of the charge, after giving an essentially correct recitation of the law on wanton misconduct. This, simply stated, is an incorrect characterization of the Antonace holding, for it ignores the fact that the Antonace court was called upon to resolve two separate allegations of error: 1) whether a new trial was warranted based upon the aforementioned problem with the liability section of the charge, i.e. its reference to negligence terminology alone; and 2) whether judgment n.o.v. should have been granted on the basis that the defendant had not known of this particular dirt biker’s presence on the property. Antonace, supra, 467 A.2d at pp. 836-37, 838. Our court found that judgment n.o.v. had been properly denied by the trial court, as a landowner needn’t know of a particular trespasser’s presence to act wantonly.

This portion of the decision, affirming the denial of judgment n.o.v., is no less precedential than the portion of the opinion granting a new trial. The Antonace court was required to resolve the legal sufficiency of the evidence as to the defendant’s knowledge of trespassers; it would have been improper to grant a new trial based upon the inadequacy of the liability charge, if the plaintiff had failed to produce sufficient evidence of knowledge to support a finding of wantonness. The majority may not, and I will not, ignore the clear applicability, and precedential value, of Antonace’s resolution of the knowledge issue in its holding on the n.o.v. question.

Moving, then, to a review of the charge sub judice, I would agree with appellant that the charge was somewhat ambiguous as to the knowledge required for wanton misconduct. As pointed out by counsel at trial, statements such as “if the defendant knew or had reason to know of the plaintiffs’ presence’’, and “where the danger to the plaintiff, the plaintiffs, though realized, is so recklessly disregarded”, are not outright erroneous, but fail to clarify whether an actor must know of a particular plaintiff-trespasser, or must only know of the presence of trespassers such as the plaintiff, in order to be wanton in his behavior.

The supplemental point for charge initially requested by appellant, pertaining to the requisite knowledge for wantonness, and requested again after the charge was given, was as follows:

4. For you to find wanton misconduct on the part of the defendant, actual prior knowledge of the danger to the plaintiffs need not be established. Antonace v. Ferri Contracting Co., Inc., 320 Pa.Super. 519, 467 A.2d 833 (1983). If you find that the defendant realized, or at least had knowledge of sufficient facts to cause a reasonable man to realize the danger existed, and that the defendant could have taken reasonable measures to avoid the accident, then the defendant was guilty of wanton misconduct by recklessly disregarding the danger posed by the cable. (Emphasis supplied.)

This was a clear and accurate statement of the law, and could have remedied the ambiguity created by the trial court’s charge. Furthermore, had the trial court had reservations about reading the point verbatim, it was nonetheless at liberty to act upon the request by Graham’s counsel to, at the least, clarify for the jury that it was “not necessary ... for the defendant Sky Haven to be actually aware of the presence of these specific individuals ...”

Moreover, as the jury did find that decedent Graham, Miller, and Ricotta had been trespassers, but that Sky Haven had not been guilty of wanton misconduct, I cannot accept that this ambiguity could not have contributed to the verdict. While it is possible that the jury, perhaps, felt that Sky Haven could not have appreciated the general danger to trespassers presented by the cable, it is equally possible that the jury felt that Sky Haven could not have possibly known or anticipated the presence of these particular men, and thus, had not acted wantonly.

Hence, while I would affirm the denial of the Ricottas’ post-trial motions, I would reverse and remand for a new trial on the Graham cause of action; such is the only method available to ensure a verdict based upon the applicable law.

      . Sky Haven Coal, Inc. leased the coal mining site, which was known as Allport, from the Estate of Frank Albert, Deceased. The co-executrices of the estate, Anamae Pezzula and Alta F. Albert, were defendants in the court below. Allport is approximately 150 acres in area.

      . The sign in its entirety stated:
      Blasting Area. Keep Out.
      Air Horn Warning Signals.
      Blasting, and then three air horn signals at short intervals.
      All clear, one long horn signal.
      James E. Ricotta testified that “To me, the sign means when you hear the warnings, to keep out. When you hear the whistle for the blasting, that means there’s going to be a blasting coming up soon. To clear the area."

      . Concerning the late arrival, Mr. Ricotta testified:
      From what I remember, they got lost. And plus, with it snowing, the roads look different.

      . Mr. Ricotta drove the "work buggy” on the public highways although the vehicle was not licensed for such operation.

      . On September 9, 1986, the court below entered an order approving the dismissal of Anamae Pezzula and Alta F. Albert, Executrices of the Estate of Frank Albert, Deceased, from the actions. They are not involved in this appeal as parties.

      . None of the parties in the action have challenged the entry of the verdict against Ricotta which did not award any monetary damages against him.

      . Section 335 Restatement (Second) of Torts states:
      § 335. Artificial Conditions Highly Dangerous to Constant Trespassers on Limited Area
      A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if
      (a) the condition
      (i) is one which the possessor has created or maintains and
      (ii) is, to his knowledge, likely to cause death or serious bodily harm to such trespassers and
      (iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and
      (b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.

      . Appellants have cited no cases which state that Pennsylvania has adopted § 335 of the Restatement as part of its law. Our research discloses only two cases which refer to § 335. In Franc v. Pennsylvania Railroad, 207 Pa.Super. 70, 73-4, 215 A.2d 303, 304 (1986) this court stated:
      As a trespasser, plaintiff would have us adopt § 335 of the Restatement of Torts and consider the testimony in light of the standard of care suggested there. To do so, we would have to ignore the decisions of our Supreme Court defining the duty owed to the trespasser. This we cannot do. Our Supreme Court has said that the only duty owed to a trespasser by a property owner is the avoidance of wanton or intentional injury in maintaining his property.
      The Supreme Court reversed in Franc v. Pennsylvania Railroad, 424 Pa. 99, 225 A.2d 528 (1967) opinion by Musmanno, J.; dissenting opinion by Jones, J., in which Bell, C.J. joined; concurring opinion by Roberts, J.; Cohen and Eagan, JJ. concurred in the result. The case involved a railroad bridge in which there was a hole in the flooring through which the plaintiff, a trespasser, fell. The lead opinion stated that the railroad company knew or should have known of the defect in the floor of the bridge and it was liable for failing to exercise reasonable care to warn users of the bridge of the condition and the risk involved in crossing the bridge. Factually, the case is not analogous to our own, and in our opinion does not amount to the adoption of § 335 as the law of Pennsylvania. As Justice Jones pointed out in his dissenting opinion, 424 Pa. at 107, 225 A.2d at 531:
      Not only has Section 335 not been adopted by this Court but it is contrary to the long recognized rule in this Commonwealth, i.e. that a plaintiff who is a trespasser can recover only if the defendant is guilty of wanton or willful misconduct.
      Justice Cohen, in his concurring opinion stated that he would reach the same conclusion as Justice Musmanno without reliance on § 335.
      The Restatement (Second) of Torts, Section 335 gives only one illustration of a factual situation to which it applies, as follows:
      1. A, knowing that persons are in the habit of trespassing upon his land at a point close to his unfenced powerhouse, permits a high voltage electric wire, strung at a height of five feet and so concealed by vegetation as to be difficult of observation, to become uninsulated. B, a trespasser, wanders from the adjacent part of the land into the yard of the powerhouse and comes into contact with the wire. The contact causes B’s death. A is subject to liability for B’s death.
      This illustrates that § 335 does not apply to the situation involved in the instant case where the owner of land placed a cable across an access road in an attempt to bar trespassing vehicles from entering its mining site.

      . In its dismissal of this issue as meritless, the trial court opinion states, in part, that all appellants waived this issue by failing to raise objection to this part of the charge in chambers prior to the charge. However, the trial court does not deny, and the record substantiates, that counsel for appellants Graham and Miller made two attempts before the jury retired to preserve their objections, and to have the court read the requested supplemental point, to be discussed at greater length infra. See Graham R.R., pp. 538a, 561a-562a. As the main purpose behind requiring a specific objection to the court’s charge, is to permit the trial court the opportunity to correct alleged errors before the jury retires, see Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114, 116 (1974), we find that their counsel took sufficient action to preserve their objection, and did not waive this issue for purposes of appellate review.
      The Millers, however, have reached a settlement with Sky Haven during the pendency of this appeal.
      The Ricottas, on the other hand, have waived this issue. The Ricottas’ counsel did not raise this objection, and did not join in the objection of co-counsel, at trial. To preserve a specific objection to a portion of the charge, it is settled that "the complaining party or parties must ... make a timely specific objection to the charge as given”. Vernon v. Stash, 367 Pa.Super. 36, 532 A.2d 441, 447 (1987) (Emphasis supplied.) In the absence of some outward indication that counsel joins in the objection raised by co-counsel, the trial court is being asked to guess or infer from the circumstances whether all parties share the same objection to the charge as given. Such speculation is not the trial court’s responsibility; it is counsel’s responsibility to protect the client's interests.
      I am aware of the claim by Ricottas’ counsel that all plaintiffs’ counsel had a pre-trial understanding that the objection of one would act as the objection of all. However, as Ricottas’ counsel freely concedes, that agreement is not of record. Furthermore, the Ricottas’ counsel has not exercised his options, pursuant to Pa.R.A.P. 1926, to have the record corrected or modified to reflect this agreement. We may not consider any averments by counsel that are not supported in the record, see Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833, 838 n. 3 (1983), citing McCaffrey v. Pittsburgh Athletic Assoc., 448 Pa. 151, 293 A.2d 51 (1972).
      Hence, the Ricottas have lost their entitlement to a new trial based on this issue.
      I therefore would be recommending the grant of a new trial for appellant Graham only.

      . Graham R.R., p. 561a.


author: WIEAND, Judge:

text:
    563 A.2d 901
    COMMONWEALTH of Pennsylvania v. Marjorie A. McCOOL, Appellant.
    Superior Court of Pennsylvania.
    Argued March 28, 1989.
    Filed Aug. 7, 1989.

      Howard N. Stark, Allentown, for appellant.
    Robert F. Hawk, Asst. Dist. Atty., Butler, for Com.

      Before WIEAND, DEL SOLE and MELINSON, JJ.
   WIEAND, Judge:

Marjorie McCool was tried by jury and was found guilty of selling obscene materials in violation of 18 Pa.C.S. § 5903(a)(2). She was sentenced to make restitution and undergo imprisonment for not less than three (3) months nor more than six (6) months, to be followed by probation for an additional year. On direct appeal, McCool challenges her conviction on federal constitutional grounds and argues that the evidence was insufficient to sustain the guilty verdict. We find no merit in the arguments which she has advanced and affirm the judgment of sentence.

On September 22, 1986, an undercover state trooper entered the Adult Book Store at 693 Pittsburgh Road, Butler, for the purpose of determining the presence of obscene materials depicting homosexual activity. He purchased from Marjorie McCool, who was employed as a clerk, an eight millimeter film depicting homosexual activity entitled “California Hot Dog, in the Gardener.” At McCool’s trial, the trooper’s testimony established these facts, and the Commonwealth showed the film to the jury. The Commonwealth then rested. McCool offered no evidence, and the jury found her guilty of violating the statute.

In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the Supreme Court established a tripartite test for determining those materials which are obscene and can be prohibited without infringing upon constitutional guarantees of freedom of speech and of the press. That tripartite test has been mirrored by 18 Pa.C.S. § 5903(b), which defines obscene materials as follows:

Any literature, including any book, magazine, pamphlet, newspaper, storypaper, comic book or writing, and any figure, visual representation, or image including any drawing, photograph, picture or motion picture, if:
(1) the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest;
(2) the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this section; and
(3) the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value.

Despite the fact that the Pennsylvania statute is identical to the Supreme Court’s definition of obscenity in Miller v. California, supra, appellant argues that the statute is unconstitutionally vague for failing to state specifically the standard by which the third prong of the test is to be measured.

A criminal statute is unconstitutionally vague when the activity proscribed therein is described in such ambiguous terms that people of ordinary intelligence must guess at its meaning and would differ as to its application. Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987); Commonwealth v. Stenhach, 356 Pa.Super. 5, 514 A.2d 114 (1986). To withstand a vagueness challenge, a statute must set reasonable guidelines for law enforcement officials and courts sufficient to avoid arbitrary and discriminatory enforcement. Commonwealth v. Stenhach, supra. See also: Waters v. McGuriman, 656 F.Supp. 923 (E.D.Pa.1987). A statute is presumed to be constitutional, however, and if the wording thereof supports a construction which would render it constitutional, that construction must be adopted. Hartford Accident and Indemnity Co. v. Insurance Commissioner, 505 Pa. 571, 482 A.2d 542 (1984); Commonwealth v. Trill, 374 Pa.Super. 549, 543 A.2d 1106 (1988).

In Commonwealth v. Hulehan, 338 Pa.Super. 309, 487 A.2d 980 (1985), the Superior Court rejected a general vagueness challenge to the Pennsylvania statute, holding that Miller v. California, supra, was controlling.

Appellant’s argument receives no additional support from the Supreme Court’s later decision in Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987). There the defendant had been found guilty of violating an Illinois statute which had been construed to incorporate the third prong of the tripartite Miller test. The jury, however, had been instructed that the literary, artistic, political, educational or scientific value of an allegedly obscene work was to be determined by reference to community standards. This, the Supreme Court held, had been a constitutional error. The correct inquiry, the Court held, was “whether a reasonable person would find such value in the material, taken as a whole.” Pope v. Illinois, supra, 481 U.S. at 501, 107 S.Ct. at 1921, 95 L.Ed.2d at 445. The Supreme Court, however, did not change the Miller definition or imply that a statute would be unconstitutional for vagueness if it failed to specify the “reasonable man” standard in the third prong.

The absence of a reference to the “reasonable man” standard in the Pennsylvania statute does not render the statute unconstitutionally vague. See: Childress v. State of Texas, 751 S.W.2d 941 (C.A.Tex.1988) (where wording of statute was same as standard in Miller and did not inject community standards in value formulation, the state statute was not impermissibly vague under Pope). The statute specifically defines obscene materials in a manner consistent with the Supreme Court definition in Miller and in a manner sufficient to permit people of ordinary intelligence to ascertain its meaning. This is sufficiently specific. Therefore, we reject appellant’s attack on the constitutionality of the Pennsylvania statute.

Appellant next contends that the decision of the Pennsylvania Supreme Court in Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980), which held invalid a statute making criminal an act of voluntary deviate sexual intercourse between consenting adults, established state-wide standards which permit deviate sexual intercourse between consenting adults. Because the film purchased by the state trooper in the instant case portrayed sexual activity between consenting adult males, she argues, it could not properly be found to violate contemporary community standards. This argument ignores the basis for the Court’s decision in Bonadio.

In Commonwealth v. Bonadio, supra, the Court held that the criminal statute proscribing deviate sexual intercourse between consenting adults drew an arbitrary and unreasonable distinction between consenting sexual partners who were married and those who were not. Such a classification, the Court said, violated the constitutional guarantee of equal protection. The Court also determined that the statute was an improper exercise of the police power because “[n]o harm to the secular interests of the community [was] involved in atypical sex practice in private between consenting adult partners.” Id., 490 Pa. at 96, 415 A.2d at 50 (emphasis added), quoting Model Penal Code § 207.5 — Sodomy & Related Offenses. Comment (Tent. Draft No. 4, 1955). The Court’s reasoning does not support the argument made by appellant in the instant case. Although holding that deviate sexual acts conducted in private by consenting adults cannot be made criminal, the Court did not prevent the legislature from making it criminal to offer for sale or sell photographic depictions of such conduct to the public. Neither did the Court thereby suggest that acts of deviate sexual intercourse, if depicted in photographs or on film, would be outside the realm of obscenity which is unprotected by the First Amendment of the Constitution of the United States. To accept appellant’s argument would be to hold that sexual conduct which is not punishable when conducted in private must be equally permissible if reproduced and portrayed in public renderings. We reject such an argument.

Finally, appellant argues that the film was directed to a clearly defined deviant group, i.e., homosexuals, and, therefore, expert testimony was necessary to assist the jury in determining whether the material appealed to the prurient interest of homosexuals as a group. Because such a conclusion would be beyond the ken of jurors, she argues, the Commonwealth could not show that the film appealed to the prurient interest without expert testimony. This argument is based on Supreme Court decisions in Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), and Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). In Mishkin, the Court said:

“Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, ... [w]e adjust the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group[.]”

Id. at 508-509, 86 S.Ct. at 963-964,16 L.Ed.2d at 61-62. In Paris Adult Theatre I, the Court expressly reserved judgment on whether expert testimony was necessary to establish prurient appeal where the group to which the material was directed was “such a bizarre deviant group that the experience of the trier of fact would be plainly inadequate to judge.” Id. at 56 n. 6, 93 S.Ct. at 2634 n. 6, 37 L.Ed.2d at 456 n. 6.

In the instant case, the trial court determined that there had been no evidence that the film was directed to a particular sexual group. The film, the court determined, had been available in an area of the adult book store which had been open to the public generally; it had not been placed separately or labeled specifically. The trial court held, therefore, that expert testimony was unnecessary to prove that the film appealed to the prurient interest.

In Commonwealth v. Hulehan, supra, the Superior Court held that expert testimony was unnecessary to establish that a magazine entitled “Staghorn, Volume no. I,” which depicted sexual acts between males, appealed to the prurient interest of a particular group. The Court determined that the content of the magazine alone did not establish that it had been targeted to a specific group; and, therefore, it was within the jury’s ability to make a factual determination without the need for expert testimony. The Court further held that even if the magazine had been directed to a particular group, expert testimony was not necessary. The Court said:

[E]ven were we to find that “Staghorn, Volume no. 1” appeals primarily to the prurient interest in sex of homosexuals, the use of expert testimony would nonetheless not be dictated, in light of the increase in societal awareness and understanding of homosexuality and other sexual preferences in the thirteen years since the Mishkin decision. Based on their own experiences and exposure to literature and other communications discussing sexual practices and attitudes, fact-finders are capable of evaluating the nature of allegedly obscene materials[ ] without the assistance of an “expert.”

Id. at 321, 487 A.2d at 986.

Similarly in the instant case, even if the evidence did indicate that the film was directed to homosexuals as a clearly defined deviant sexual group, expert testimony was unnecessary to aid the jury in determining specifically whether the film appealed exclusively to the sexual interests of a specific deviant group, or whether, more generally, the content of the film was obscene under Miller.

The judgment of sentence is affirmed.

DEL SOLE and MELINSON, JJ. concur in the result.

      . The statutory proscription is as follows:
      No person, knowing the obscene character of the materials involved, shall:
      (2) sell, lend, distribute, exhibit, give away or show any obscene materials to any person 17 years of age or older or offer to sell, lend, distribute, exhibit or give away or show, or have in his possession with intent to sell, lend, distribute, exhibit or give away or show any obscene materials to any person 17 years of age or older, or knowingly advertise any obscene materials in any manner;

        . By the time the case reached the United States Supreme Court, the Illinois statute had been repealed and replaced with a statute identical to the Pennsylvania statute, including in all respects the standard suggested in Miller.

      . The jury was charged in accordance with Pope v. Illinois, supra, that ■ the reasonable man standard was to be applied in determining whether the film sold by appellant was lacking in serious literary, artistic, political, educational or scientific value.


author: MONTEMURO, Judge:

text:
    563 A.2d 905
    COMMONWEALTH of Pennsylvania, Appellant, v. Charles H. SMITH, Appellee.
    Superior Court of Pennsylvania.
    Argued April 24, 1989.
    Filed Aug. 9, 1989.

      Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellant.
    Chris R. Eyster, Asst. Public Defender, for appellee.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   MONTEMURO, Judge:

The Commonwealth appeals from the judgment of sentence rendered against the appellee, Charles H. Smith, claiming that the trial court erred when it refused to impose on the appellee two separate five year mandatory minimum sentences pursuant to 42 Pa.C.S.A. §§ 9712 and 9714.

The appellee’s robbery and criminal conspiracy convictions stem from the armed robbery of Frank’s Jewelry Store on July 20, 1985. While the appellee waited in the car, his two accomplices, posing as a young couple interested in purchasing an engagement ring, entered the store and asked to see some rings. While the man held the owner at gun point, the woman took two trays of rings. Immediately after the couple fled from the store, the owner retrieved his own gun and shot at the armed accomplice as he climbed into the get-a-way car driven by the appellee. The armed accomplice did not return the owner’s fire. At the appellee’s non-jury trial, the Commonwealth offered an eyewitness who identified the appellee as the driver of the get-a-way car. After hearing all of the evidence, the trial court found the appellee guilty as charged. After post-trial motions were filed and denied, the trial court imposed a concurrent five to ten year sentence upon the appellant. On appeal, we remanded the case for resentencing after concluding that the appellee’s claim, that his counsel was ineffective for failing to file a motion to reconsider sentence based upon the trial court’s failure to indicate sentencing factors, had merit. On remand, the trial court sentenced the appellee to serve two concurrent eleven and a half (IIV2) to twenty-three (23) month sentences. It is from this sentence that the Commonwealth appeals.

The Commonwealth first asserts that the trial court erred in failing to apply the weapon enhancement statute, 42 Pa.C.S.A. § 9712, to the appellee’s sentence despite uncontradicted evidence that appellee’s accomplice visibly possessed a handgun during the commission of the robbery. In response, the appellee asserts that this issue has been waived, and, even if not waived, the trial court correctly concluded that the evidence was insufficient to prove that the appellee had knowledge that his accomplice visibly possessed a firearm during the commission of the robbery. Before we address the first issue raised by the Commonwealth, we must address the issue of waiver. The appellee received his second sentence on May 3, 1988. The Commonwealth did not file its motion for reconsideration until May 16,1988; three days after the filing deadline. “A motion to modify sentence shall be in writing and shall be filed with the sentencing court within ten (10) days after imposition of sentence.” Pa.R.Crim.P. 1410. When such motion is not timely filed, the issues presented in the untimely motion are deemed waived. Commonwealth v. Mathis, 317 Pa.Super. 362, 371-372, 464 A.2d 362, 367 (1983). However, such failure will not preclude appellate review where the issues asserted concern the illegality of the sentence. Id., 317 Pa.Superior Ct. at 372, 464 A.2d at 367. The illegality of a sentence is not a waivable issue. Commonwealth v. Wallace, 368 Pa.Super. 255, 259, 533 A.2d 1051, 1052 (1987). Because the Commonwealth asserts that the sentence is illegal, due to the trial court’s refusal to apply the mandatory minimum sentence, we will now address this issue.

The main thrust of the Commonwealth’s argument is that the trial court’s determination, that the appellee did not have knowledge that his accomplice visibly possessed a gun during the robbery, is not supported by the record. Therefore, the trial court erred as a matter of law when it ruled that the mandatory firearm provision was not applicable. Section 9712 provides in pertinent part that:

Any person who is convicted in any court of this Commonwealth of ... robbery ... shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.

42 Pa.C.S.A. § 9712. Before the trial court can apply this section to an unarmed accomplice, it must find that the Commonwealth has established by a preponderance of the evidence that “the unarmed accomplice had knowledge that the firearm was visibly possessed by his co-felon in the commission of the crime.” Commonwealth v. Williams, 353 Pa.Super. 312, 319, 509 A.2d 1292, 1295 (1986). In the instant case, the trial court’s refusal to apply section 9712 was based upon his findings that:

[N]either the jeweler who shot at the car nor the eyewitness who identified the Defendant testified that the accomplice, Mr. Flowers, had his gun visible outside of the store. In fact, Mr. Certo [the jeweler] testified that Mr. Flowers returned the gun to an envelope and put it in his back pocket before leaving the store.

(Trial Court Opinion, October 27, 1988, at 3-4). With this lack of evidence in mind, the trial court then went on to declare that it could not “accept the Commonwealth’s assumption that the Defendant knew that his co-defendant possessed a gun because shots were fired at the get-a-way car.” (Trial Court Opinion, October 27, 1988, at 4). Our review of the record reveals that evidence that the gun was visibly possessed outside the store did exist. Pertinent parts of the jeweler’s testimony are presented below:

DIRECT EXAMINATION:

Q: What happened when they left the store?
A: [I] went out at first to get the license plate of the car, and when the guy turned around, I figured he was going to shoot at me again, so I emptied my gun.
CROSS EXAMINATION:
Q: You went after this man with a gun and you fired shots, is that correct?
A: That’s correct.
Q: Did you see him fire the gun at you?
A: I saw him point the gun.
Q: Was it at the vehicle then that you saw him attempt to aim the gun at you?
A: Right.

(N.T., April 24, 1986, at 45-56.) Although the trial court incorrectly stated that there was no evidence which established the visibility of the accomplice’s gun outside the store, the existence of this evidence still fails to show that the appellee knew that his accomplice visibly possessed the gun. This case differs from the factual situation in Williams, supra. In Williams the unarmed accomplice rifled through the pockets of the victim, while his accomplice held the victim at gunpoint. Clearly, the unarmed accomplice in Williams knew that the gun was visibly possessed by the accomplice during the commission of the crime. In the instant case, however, there is no evidence to show that the appellee saw or knew that the gun was visible. The appellee was waiting in the car. He may never have seen the gun. On this point, we agree with the trial court’s conclusion that evidence that the owner shot at the car does not establish the appellee’s knowledge of the visible possession of a gun in the hands of his accomplice. No other evidence was presented which would establish knowledge on the part of the appellee. For these reasons, we find no error on the part of the trial court in its refusal to apply section 9712 to the instant case.

The Commonwealth’s second contention is that the trial court’s refusal to impose the mandatory sentence pursuant to 42 Pa.C.S.A. § 9714, despite the uncontradicted evidence that appellee had prior convictions for robbery, was erroneous.

Section 9714 of the Crimes Code, 42 Pa.C.S.A. § 9714, provides in pertinent part that:

(a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of ... robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii) or (iii) (relating to robbery), ... shall, if they have previously been convicted of a crime of violence as specified in section (b), be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
(b) Prior convictions for crimes of violence. — For the purposes of subsection (a), an offender shall be deemed to have prior convictions for crimes of violence if both of the following conditions hold:
(1) The offender was previously convicted in this Commonwealth or any other state or the District of Columbia or in any Federal court of murder, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii) or (iii), arson ..., kidnapping or aggravated assault ... or an equivalent crime in another jurisdiction----
(2) The previous conviction occurred within seven years of the date of the commission of the instant offense, except that any time during which the offender was incarcerated in any penitentiary, prison or other place of detention shall not be considered in computing the relevant seven-year period.

The prior convictions to which the Commonwealth points are appellee’s court-martial convictions. It is the Common-, wealth’s contention that section 9714 applies to appellee’s prior court-martial convictions. The appellee, on the other hand, claims that: (1) this issue has been waived; (2) no evidence of prior convictions was introduced by the Commonwealth at the sentencing hearing; (3) court-martial convictions are not prior conviction within the meaning of the statute; (4) the court-martial convictions, if equivalent to prior convictions, are too remote in time to bring the statute into play; and (5) an order mandating that appellee be resentenced to a higher term of incarceration would violate the Double Jeopardy Clause of the United States Constitution. We will address the appellee’s issues in the order in which they have been presented, and, in so doing, answer the second issue raised by the Commonwealth.

The appellee first claims that the Commonwealth has waived the issue of § 9714’s applicability by its failure to file a timely motion to reconsider sentence. Our resolution of the waiver issue is the same as that stated earlier. The claim of an illegal sentence, i.e., the court’s refusal to apply the mandatory sentence, compels us to consider the second issue raised by the Commonwealth. See Mathis, supra.

The appellee’s second assertion, that the Commonwealth did not introduce any evidence of prior convictions at the sentencing hearing, is without merit. The Commonwealth did present the trial court with a certified copy of the court-martial convictions during the sentencing hearing. Although these convictions were not made a part of the record at that time, this omission was subsequently corrected by the Commonwealth, whose subsequent request to supplement the record was granted by the trial court. In conjunction with this latter issue, the appellee asserts that the court-martial convictions were not authenticated by the Commonwealth. This assertion is also without merit. A copy of an official record which is certified by the legal custodian as true and correct and which bears the seal of his office authenticates itself. See 42 Pa.C.S.A. § 5328. Since the copy presented to the trial court was duly certified as being a true and correct copy by the Clerk of Court, U.S. Army Judiciary, U.S. Army Legal Services Agency, who is the official custodian of these records, and bore the seal of the U.S. of America War Office, we hold that the record of appellee’s court-martial convictions was properly authenticated.

The appellee’s third contention is one of first impression in this Commonwealth. Are the appellee’s military court-martial convictions for robbery prior convictions within the meaning of 42 Pa.C.S.A. § 9714(b)(1)?

Although penal provisions are to be strictly construed, 1 Pa.C.S.A. § 1928(b)(1), it is also presumed that the General Assembly did not intend a result that is absurd. 1 Pa.C. S.A. § 1922(1). In our search for the intent of the Legislature, we must employ a common sense approach. Commonwealth v. Walton, 365 Pa.Super. 147, 151, 529 A.2d 15, 17 (1987), alloc. denied in 517 Pa. 630, 539 A.2d 811. Although the statute does not specifically refer to military courts, to interpret the statute to exclude these determinations would lead to an absurd result.

The purpose behind § 9714 is clear. The legislators sought to keep violent, repeat offenders behind bars for a period of at least five years. Robbery is a violent crime under section 9714. The appellee’s court-martial convictions are clearly equivalent to convictions for robbery under 18 Pa.C.S.A. § 3701(a)(1)(H), as is evident by the record of the appellee’s court martial. The appellee’s court-martial record reveals that the appellee pled guilty to nine separate allegations that he did “by means of force and violence and putting ... [them] ... in fear, steal from the person of ... [his fellow soldiers] ... against ... [their] ... will” money and personal property, and was sentenced to serve seven years of hard labor while confined in the United States Disciplinary Barracks at Fort Leavenworth, Kansas. (General Court Martial Order, July 28, 1978, at 2-3). To conclude that robbery when committed by a civilian constitutes a prior offense under section 9714, but when committed by a member of the armed forces does not, is absurd, especially since the protections afforded to the accused in a court martial proceeding parallel to a large extent those afforded to a civilian in a criminal trial.

The Uniform Code of Military Justice, which was in effect at the time the appellee was being prosecuted, provided a member of the armed forces with the following rights: no person may be apprehended unless the apprehending officer does so upon a reasonable belief that an offense has been committed and that the person apprehended committed it (10 U.S.C. § 807(b)); no person may be arrested or confined except for probable cause (10 U.S.C. § 809(d)); a person arrested or confined has the right to be informed of the accusations brought against him and the right to speedy resolution of those charges (10 U.S.C. §§ 830(b) and 810); an accused has a right to competent counsel (10 U.S.C. §§ 827(a) and 838); no person may be compelled to incriminate himself (10 U.S.C. § 831(a)); no person may be interrogated without first being informed of the nature of the accusation, of his right to silence, and that any statement he may make may be used against him at his court martial (10 U.S.C. § 831(b)); information obtained in violation of § 831 is inadmissible at the court-martial (10 U.S.C. § 831(c)); an accused has the right to cross-examine adverse witnesses, to present a defense, and to a copy of the charges (10 U.S.C. § 832(b)); pre-trial, trial, and post-trial proceedings shall, as far as practical, conform to those principles of law and rules of evidence generally recognized in the trial of criminal cases in the United States District Courts (10 U.S.C. § 836); all court proceedings shall be made a part of the record and shall be in the presence of the accused and counsel (10 U.S.C. § 839(b); no person may be tried a second time for the same offense (10 U.S.C. § 844); the accused may withdraw his plea prior to sentencing (10 U.S.C. § 845); the jury is instructed that the accused is presumed innocent until proven guilty beyond a reasonable doubt and that this burden of proof is upon the United States (10 U.S.C. § 851); the accused has thirty days after sentence in which to request its reconsideration (10 U.S.C. § 860); and the accused has a right to appellate review with the aid of counsel (10 U.S.C. §§ 861 and 870).

We also find support for our conclusion, that court-martial convictions constitute prior convictions under the language of § 9714, in Commonwealth v. Thompson, 389 Pa. 382, 133 A.2d 207 (1957). In that case, one of the questions posed to our Supreme Court was whether evidence of court-martial convictions was admissible, during the course of defendant's trial for first degree murder, under the Act of 1925. Prior to concluding that court-martial convictions are admissible during the trial for the sole purpose of aiding the jury in determining the appropriate sentence, the trial court made the following observations concerning court-martial proceedings:

A court-martial is a military or naval tribunal which has jurisdiction of offenses against the law of the service, military or naval, in which the offender is engaged ... While courts-martial are not a part of the judicial power of the U.S. and not included in the judicial part of the government ... the authority for their creation by the Congress arises under Article I, Sec. 8 of the Constitution ... The decisions of courts-martial are not reviewable by the civil courts except to determine whether a court-martial had jurisdiction or whether it exceeded its powers; the guilt or innocence of the defendants cannot be inquired into ... The judgment of a military court or court-martial, properly constituted, is res judicata, and its proceedings are not open to review in any other court ... Its judgments, when approved as required, rest on the same basis, and are surrounded by the same considerations which give conclusiveness to the judgments of other legal tribunals, including as well the lowest as the highest, under like circumstances.

Id., 389 Pa. at 401-404, 133 A.2d 207, 217-218.

Other states have also concluded that court-martial convictions are prior convictions for sentence enhancement purposes. See People v. Calderon, 205 Cal.App.2d 566, 23 Cal.Rptr. 62 (1962) (defendant’s prior court-martial for possession of marijuana is a prior conviction for purposes of sentence enhancement under § 11530 of the California Health and Safety Code); Scott v. U.S., 392 A.2d 4 (D.C. App.1978) (court properly sentenced defendant as a prior felon, based upon his 1952 convictions by general court-martial of assaulting a superior officer); People v. Benjamin, 7 A.D.2d 410, 184 N.Y.S.2d 1 (N.Y.Sup.Ct 1959), affirmed in 8 N.Y.2d 812, 202 N.Y.S.2d 320, 168 N.E.2d 389 (N.Y.1960) (court-martial conviction for assault with intent to commit murder may be treated by New York courts as prior felony convictions under the laws of another jurisdiction); Millwood v. State, 721 P.2d 1322 (Okla.Ct.App.1986) (a conviction obtained pursuant to a military general court-martial proceeding may be used for enhancement of punishment). Additionally, several states permit its use to impeach credibility. See Nelson v. State, 35 Ala.App. 179, 44 So.2d 802 (1950) (a conviction by a court-martial is admissible to impeach credibility, provided the offense for which a conviction was had was one involving moral turpitude); People v. Helm, 40 Ill.2d 39, 237 N.E.2d 433 (1968) (the defendant’s military court-martial conviction for robbery was not so lacking in the normal constitutional safeguards that it could not properly be used to impeach his credibility when he took the witness stand at his murder trial); State v. Himmelman, 399 S.W.2d 58 (Mo.1966) (evidence of defendant’s court-martial conviction for murder was properly received for purposes of impeachment); State v. Martz, 8 Wash.App. 192, 504 P.2d 1174 (1973) (AWOL from military service is a “crime” within the statute permitting proof of prior convictions to attack defendant’s credibility).

Three states, when presented with this question, have concluded that court-martial convictions are not to be considered prior convictions for purposes of sentence enhancement. See Frazier v. State, 515 So.2d 1061 (Fla.Dist.Ct. App.1987) (defendant’s military offense of being absent without leave should not have been scored as a misdemean- or, as there is no analogous parallel Florida criminal statute for that offense); State v. Paxton, 201 Kan. 353, 440 P.2d 650 (1968) (a prior conviction by court-martial may not be used to invoke the provisions of the habitual criminal statute under a strict construction of the statute); State v. Mitchell, 659 S.W.2d 4 (Mo. Court App.1983) (insofar as the right to trial by jury is not afforded by court-martial, we find that system of discipline sufficiently foreign from our own system of justice and from that of our sister states and federal government so as to prohibit its use as a threshold predicate of enhanced punishment).

We are unpersuaded by the rationale supporting the decisions in Paxton and Mitchell, To follow the rationale of Paxton would lead us to a result which is absurd. Nor do we agree with the court’s conclusion in Mitchell that court-martial proceedings are so foreign to our own criminal proceedings as to justify the unequal impact which each conviction would make upon an individual’s future sentence for new crimes committed. More persuasive is our own case law and that of California, District of Columbia, New York, and Oklahoma. For reasons stated earlier in this opinion, we conclude that the appellee’s court-martial convictions are prior convictions within the meaning of § 9714.

The appellee’s fourth argument concerns the application of section 9714(b)(2), which precludes the consideration of a prior conviction if it was committed more than seven years from the date of the offense for which the appellant is currently being sentenced. The appellee asserts that the crimes for which he was court-martialed were too remote in time to be considered under section 9714. This was also the conclusion reached by the trial court. We disagree. The robberies which the appellee committed while in the army occurred on February 16, 1978, February 27, 1978, and March 2, 1978. The robbery conviction which is at the center of the instant appeal occurred on July 20, 1985. The total time which elapsed between the crimes was seven years, four months, and eighteen days. Based solely on these numbers, the prior robberies would exceed the seven year limitation set out in section 9714(b)(2). However, excluded from this time period is any period of incarceration in any penitentiary, prison or other place of detention. 42 Pa.C.S.A. § 9714(b)(2). This clearly brings the appellee’s prior robberies within the seven year restriction. The appellee’s court-martial records indicate that he received a seven year sentence. Although the court-martial records fail to indicate whether appellee actually served his entire sentence, the appellee’s notarized bond information form indicates that he was released from incarceration for these charges in October of 1982. When the appellee’s four years of incarceration at Fort Leavenworth are excluded from our computations, the prior convictions are brought within the seven year restriction. Therefore, the trial court’s conclusion, that the appellee’s prior convictions were too remote in time to be considered for sentencing purposes, was erroneous.

The appellee’s final contention is that an order mandating that appellee be resentenced to a higher term of incarceration would violate the Double Jeopardy Clause of the United States Constitution. We disagree. Our decision is based in large part upon the principles enumerated in Commonwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986).

In Sojourner, our Supreme Court held that the judicial imposition of an increased penalty on the Commonwealth’s appeal does not violate the appellee’s double jeopardy rights under the United States or Pennsylvania Constitution, when imposed pursuant to the mandatory sentencing provisions of 75 Pa.C.S.A. § 3731(e) (driving while under the influence of alcohol and/or a controlled substance). In reaching this conclusion, the Court relied upon United States v. DiFrancesco, 449 U.S. 117, 139, 101 S.Ct. 426, 438, 66 L.Ed.2d 328 (1980), wherein the Court held that that where punishment pursuant to a statute is clear and explicit, principles of double jeopardy are not violated where that statute permits authorities to obtain an increased sentence on appeal. It then reviewed the statutory language of § 3731; determined that it expressly provided for appellate review; and concluded that the connotation of finality necessary for offense of double jeopardy rights was not present in the case before it. Like § 3731 of the Vehicle Code, § 9714 of the Crimes Code establishes a mandatory minimum sentence; expressly provides a right of appeal to the Commonwealth if the mandatory sentence is not applied; and directs this Court to remand the case to the sentencing court for imposition of a sentence in accordance with the statute’s provisions. In reliance upon Sojourner, supra, we hold that the judicial imposition of an increased penalty on the Commonwealth’s appeal does not violate the appellee’s double jeopardy rights under the U.S. or Pennsylvania Constitutions when ordered in accordance with the mandatory sentencing provision of § 9714.

Judgment of sentence vacated and remanded to the trial court for resentencing in accordance with this Opinion. Jurisdiction is relinquished.

      . The Commonwealth exercises its right to appeal pursuant to 42 Pa.C.S.A. § 9712(d) and § 9714(e).

      . The court lacks authority to place a convicted offender on probation or suspended sentence, when a mandatory minimum sentencing statute is applicable. Commonwealth v. Wright, 508 Pa. 25, 44 n. 2, 494 A.2d 354, 363 n. 2 (1985), affirmed in 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67.

      . Had the trial court stated that there was no credible evidence establishing the accomplice’s visible possession of a gun outside the store, we would be inclined to find no error with the trial court’s finding on this point. Witness credibility is an issue for the trier of fact, who is free to believe all, part, or none of the testimony. Commonwealth v. Carbone, 375 Pa.Super. 261, 264, 544 A.2d 462, 463 (1988) (citations omitted). However, since the trial court did not make this distinction, we are constrained to find him in error.

      . Section 5328(a) provides:
      (a) Domestic record. — An official record kept within the United States, or any state, district, commonwealth, territory, insular possession thereof, or the Panama Canal Zone, the Trust Territory of the Pacific Islands, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certificate that the officer has the custody. The certificate may be made by a judge of a court of record having jurisdiction in the governmental unit which the record is kept, authenticated by the seal of the court, or by any public officer having a seal of office and having official duties in the governmental unit in which the record is kept, authenticated by the seal of his office.

      . The appellee also contends that the Commonwealth failed to establish that the individual named in the record of the court martial convictions and the appellee were one and the same. In light of the fact that both individuals have the same social security number, we have no trouble finding this issue to be without merit.

      . 18 Pa.C.S.A. § 3701(a)(1) provides:

        la) Offense defined.—
      (1) A Person is guilty of robbery if, in the course of committing a theft, he:
      (i) inflicts serious bodily injury upon another;
      (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
      (iii) commits of threatens immediately to commit any felony of the first or second degree;

      . The Act of 1925 placed in the jury the right to fix the penalty, after a verdict of murder in the first degree, either at life imprisonment or death.

      . The holding in Frazier is clearly inapplicable to the instant case, in that here the appellant’s military offenses parallel a Pennsylvania criminal statute, namely, robbery.

      . 75 Pa.C.S.A. § 3731 provides in pertinent part:
      (e) Penalty.—
      (1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
      (i) not less than 48 consecutive hours.
      (ii) not less than 30 days if ...
      (4) The Commonwealth has the right to appeal directly to the Superior Court any order of court which imposes a sentence for violation of this section which does not meet the requirements of this section. The Superior Court shall remand the case to the sentencing court for imposition of a sentence in accordance with the provisions of this section.

      . 42 Pa.C.S.A. § 9714 provides:
      (a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of ... robbery ... shall, if they have previously been convicted of a crime of violence as specified in subsection (b), be sentenced to a minimum sentence of a least five years of total confinement ...
      (e) Appeal by Commonwealth. — If a sentencing court shall refuse to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for the imposition of a sentence in accordance with this section if it finds that the sentence was impose in violation of this section.