author: HOFFMAN, Judge:

text:
    549 A.2d 140
    COMMONWEALTH of Pennsylvania v. Louis DeFUSCO, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 16, 1988.
    Filed Aug. 25, 1988.
    Reargument Denied Oct. 24, 1988.

      Mary DeFusco, Conshochocken, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from a judgment of sentence for violating § 3362 of the Pennsylvania Motor Vehicle Code, 75 Pa.C. S.A. § 101 et seq. Appellant contends that 1) the Delaware River Port Authority has promulgated and implemented a regulation permitting the use of electronic speed devices by its officers in contravention of a state law that limits the use of electronic speed devices to the Pennsylvania State Police, 75 Pa.C.S.A. § 3368(c); 2) the lower court erred in admitting evidence of his speed based upon the reading from the electronic device employed by the Delaware River Port Authority police officer; and 3) the Delaware River Port Authority exceeded the scope of its jurisdiction by monitoring traffic on a state highway. For the reasons set forth below, we reverse the judgment of sentence.

On October 6, 1986, a Delaware River Port Authority (DRPA) officer, positioned in Pennsylvania approximately one mile west of the Walt Whitman Bridge, observed appellant’s vehicle exiting the bridge. The DRPA officer, using an electronic speed-timing device, determined that appellant was traveling at a speed of fifty-nine miles per hour in a posted forty-five mile per hour zone. Appellant was issued a citation for speeding in violation of 75 Pa.C.S.A. § 3362(a)(3). After a hearing in Philadelphia Traffic Court, appellant was convicted of the violation and sentenced to pay a fine. Appellant appealed the summary conviction to the Court of Common Pleas. Following a de novo trial, appellant was adjudged guilty of violating § 3362(a)(3). Post-trial motions were filed, argued, and denied. Appellant was then sentenced to pay a fine. This appeal followed.

Appellant initially contends that the lower court improperly admitted into evidence a reading that was obtained through the use of an electronic speed device employed by a DRPA officer. Appellant argues that the DRPA has implemented a regulation that permits its officers to use electronic speed devices even though the state legislature has enacted a statute specifically restricting the use of such equipment to the Pennsylvania State Police. According to appellant, this action is directly contrary to express legislative intent. Appellant argues that the DRPA has circumvented the legislature’s intent by promulgating a rule that extends the use of electronic speed devices to its officers, even though it is clearly evident that § 3368(b) prohibits the use of electronic speed devices to other than Pennsylvania State Police. Because the arresting officer was not a member of the State Police, appellant contends the use of the radar unit was unauthorized and requires that his conviction be reversed. We agree.

In determining the effect of an administrative regulation promulgated by the DRPA, we must ultimately review the administrative regulation in question to ensure it is in accordance with the enabling statute. It is well-settled that an administrative regulation must be consistent with the statute under which it was promulgated. Wiley House v. Scanlon, 502 Pa. 228, 237, 465 A.2d 995, 999 (1983) (Department of Education regulation not inconsistent with Public School Act); Commonwealth, Dep’t of Pub. Welfare v. Forbes Health Sys., 492 Pa. 77, 81, 422 A.2d 480, 482 (1980) (Department of Public Welfare’s medical assistance regulations consistent with enabling statute). Moreover, when there exists an apparent inconsistency or conflict between a statute and a regulation promulgated thereunder, the statute must prevail. Tiani v. Commonwealth, Dep’t of Pub. Welfare, 86 Pa.Cmwlth. 640, 642, 486 A.2d 1016, 1017 (1985) (regulation purporting to implement statutory provisions not conflicting with enabling statute).

In interpreting a statute, we are guided by the Statutory Construction Act, 1 Pa.C.S.A. § 101 et seq. Section 1921 of the Statutory Construction provides that “[w]hen words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b). Thus, if the language of a statute is clear and unambiguous, a court must read its provisions in accordance with their plain meaning and common usage. Commonwealth v. Becker, 366 Pa.Super. 54, 58, 530 A.2d 888, 890 (1987) (en banc).

Aside from statutory interpretive guidelines, we may also look to general principles of statutory construction. One such principle is encompassed in the legal maxim, expressio unius est exclusio alterius: that which is not included in the law shall be understood as excluded in the law. Grant v. Riverside Corp., 364 Pa.Super. 593, 599, 528 A.2d 962, 965 (1987); Commonwealth ex rel. Maurer v. Witkin, 344 Pa. 191, 196, 25 A.2d 317, 319 (1942). Under this principle of interpretation, there is an inference that all omissions from a statute should be regarded as designated exclusions. Commonwealth v. Tilghman, 366 Pa.Super. 328, 336, 531 A.2d 441, 445 (1987) (en banc).

Here, we are called upon to interpret two apparently conflicting sections of the Motor Vehicle Code, 75 Pa.C.S.A. § 101 et seq. The Motor Vehicle Code is a comprehensive statutory enactment governing traffic, roadways, and the manner and circumstances under which vehicles may be operated on the roadways in the Commonwealth. The primary purpose of the Motor Vehicle Code and its amendments is to protect and promote public safety and property within the Commonwealth. Commonwealth v. Arnold, 215 Pa.Super. 444, 449, 258 A.2d 885, 887 (1969); Commonwealth v. Irwin, 345 Pa. 504, 506-07, 29 A.2d 68, 69 (1942). Therefore, every provision of the Code should be interpreted in light of that intent. Commonwealth v. Arnold, supra.

The Legislature enacted a specific provision within the Motor Vehicle Code that provides for the operation of speed timing devices to monitor the speed of vehicles. 75 Pa.C. S.A. § 3368(c). The Motor Vehicle Code differentiates between “electronic” and “mechanical or electrical” speed timing devices and further designates those branches of traffic enforcement permitted to use such devices to monitor vehicle speed. Previously, § 3368(c) provided in relevant part:

(c) Mechanical, electrical and electronic devices authorized.—
(1) the rate of speed of any vehicle may be timed on any highway by police officer using a mechanical or electrical speed timing device.
(2) electronic devices such as radio-microwave devices (commonly referred to as electronic speed meters or radar) may be used only by members of the Pennsylvania State Police.

75 Pa.C.S.A. § 3368, 1976, June 17, P.L. 162, No. 81, § 1, eff. July 1, 1977 (emphasis added).

In 1986, the legislature amended the Motor Vehicle Code by adding Subsection (c)(3) which permits any officer to use a hybrid type of an electrical and electronic speed device. Section 3368(c)(3), as amended, now provides in pertinent part:

(1) Except as otherwise provided in this section, the rate of speed of any vehicle may be timed on any highway by a police officer using a mechanical or electrical speed timing device.

(2) Except as otherwise provided in paragraph (3), electronic devices such as radio-microwave devices (commonly referred to as electronic speed meters or radar) may be used only by members of the Pennsylvania State Police.

(3) Electronic devices which calculate speed by measuring elapsed time between measured road surface points by using two sensors and devices which measure and calculate the average speed of a vehicle between any two points may be used by any police officer.

75 Pa.C.S.A. § 3368(c), as amended by P.L. 71 No. 24, § 2 (March 27, 1986) (emphasis added). Despite the fact that the Code expressly states that only State Police may employ “electronic” devices, the DRPA promulgated a regulation authorizing its officers to use radar devices. The regulation provides, in relevant part:

Mechanical, electrical and electronic devices authorized:

(2) Electronic devices such as radio-microwave devices (commonly referred to as electronic speed meters or radar) may be used by DRPA police____

Delaware River Port Authority Rules and Regulations, Section 3, 3.2(c)(2), Revised October 15, 1986. The apparent authority for issuing this regulation is contained in 75 Pa.C.S.A. § 6111. Section 6111 of the Motor Vehicle Code provides:

Regulation of traffic on bridges under authority of interstate commissions
(a) General rule.— The provisions of this title apply to any bridge under the supervision and control of the Delaware River Joint Toll Bridge Commission, the Delaware River Port Authority and the New York-Pennsylvania Joint Commission on Bridges over the Delaware River unless specifically modified by rules and regulations which shall become effective only upon publication in accordance with law____

75 Pa.C.S.A. § 6111.

The issue that we must resolve is whether the DRPA’s regulation promulgated under the authority granted by § 6111, is in contravention of § 3368 of the Motor Vehicle Code. An analysis of the central purpose behind § 3368, as well as the legislative history, convinces us that it is. A review of the legislative history underlying the enactment of § 3368(c) provides guidance into ascertaining the Legislature’s intent in restricting the use of electronic speed devices by State Police. See Fireman’s Fund Ins. Co., v. Nationwide Mut. Ins. Co., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983). When the Legislature amended the Motor Vehicle Code in 1976, the House and Senate engaged in lengthy debates on the various amendments. Of particular importance are the references to the reasons behind the restriction of electronic speed devices to the State Police. As summarized by our Supreme Court in Commonwealth v. DePasquale,

[M]embers of the legislature cited the following reasons for their desire to restrict the use of electronic devices to the State Police: that the proponents of radar in municipalities are concerned more with revenue raising than with safety ... that radar has not improved safety on the roads but has only helped the district justices and the arresting mills; ... that when radar is available to the police, the number of arrests for speeding increases dramatically; ... and that is is unfair to allow municipalities to use radar when the speed limits have not been updated to keep pace with the new developments in transportation.

Commonwealth v. DePasquale, 509 Pa. 183, 190, 501 A.2d 626, 631 (1985) (citations omitted).

The legislative history clearly evidences an intention on the part of the Legislature to restrict the use of electronic speed measuring devices to our State Police. Moreover, the reasons proffered by the legislature were well grounded in consideration for the safety and welfare of the general public. In keeping with the spirit and purpose of the Motor Vehicle Code, the Legislature stated clearly and concisely that the use of electronic speed detection devices is most effectively reserved for the State Police in order to serve the interests of the general public. Such a reading of the legislative history is necessary to “effectuate the intention of the general assembly ...” 1 Pa.C.S.A. § 1921(a), 1922(2); see also Fireman’s Fund Ins. Co., v. Nationwide Mutual Ins. Co., supra. To do otherwise, would be to disregard the plain and unambiguous language of § 3368(c) of the Motor Vehicle Code. Commonwealth v. Becker, supra.

Our analysis is further buttressed by the enactment of the 1986 amendment to the Motor Vehicle Code, wherein the Legislature extended to “any officer” permission to use a particular type of electrical/electronic speed measuring device to calculate vehicle speed. Had the legislature intended to enlarge the scope of the use of all electronic speed devices, it had an opportunity to do so at that time. We find a more expansive interpretation of the statutory language unwarranted. We can only regard the inaction of the legislature as a purposeful intent to continue the restriction of the use of electronic speed devices to the State Police. See Grant v. Riverside Corp., supra.

In interpreting the intent of the legislature, we are also guided by the legal maxim of statutory construction, ex-pressio unius est exclussio alterius: that which is not included in the law shall be excluded in the law. See Grant v. Riverside Corp., supra. The only possible inference to be drawn from the Legislature’s failure to include local enforcement or other designated agencies in the group permitted to use electronic speed devices is that the omission of those not so enumerated are to be designated as exclusions. See id.; Commonwealth v. Tilghman, supra. Certainly, had the legislature wished to accord the DRPA the privilege to use electronic speed devices, it would have included the DRPA in § 3368. See Grant v. Riverside Corp., supra; Commonwealth v. Tilghman, supra. We cannot but deem that omission to be of significance. Accordingly, under this statutory principle, because the DRPA was not given express authority to use electronic speed devices in the Motor Vehicle Code, we cannot now enlarge the scope of § 3368 to extend a function to the DRPA that the the legislative never intended.

We turn now to the question whether the DRPA was vested with authority to promulgate a regulation in contravention of the express provisions of the Motor Vehicle Code. This requires us to examine § 6111 which empowers the DRPA to modify the Motor Vehicle Code. Section 6111 of the Motor Vehicle Code binds the DRPA to the provisions of the Code and vests with the DRPA the authority to promulgate rules and regulations modifying the code. 75 Pa.C. S.A. § 6111. An analysis of the DRPA’s delegated power to promulgate regulations must be examined in light of the legislative framework under which it was created. The DRPA was originally created by interstate compact between the Commonwealth of Pennsylvania and the State of New Jersey to be a public corporate instrumentality of both states and to exercise an essential governmental function. Yancoskie v. Delaware River Port Auth., 478 Pa. 396, 400, 387 A.2d 41, 43 (1978); accord Bell v. Bell, 83 N.J. 417, 416 A.2d 829 (1980)

The purpose of the DRPA was expanded from the operation of a single interstate bridge to embrace the development and improvement of the lower Delaware port district from Philadelphia south to the Pennsylvania-Delaware border, 36 Pa.C.S.A. § 3503, Arts. 1(a), XII-A(l), XII-B(l). The Authority is charged with the development and improvement of port facilities in this area. Id. Art. 1(c), (k). The powers granted the DRPA by virtue of the compact are commensurate with its broad purposes.

Nardi v. Delaware River Port Authority, 88 Pa.Cmwlth. 558, 560, 490 A.2d 949, 952 (1985).

Consistent with its broad purpose and delegated authority, the DRPA’s powers were further delineated when the legislature enacted § 6111 in the Motor Vehicle Code that, a provision that binds the DRPA to follow the provisions of the Code unless the DRPA promulgated regulations modifying the Code. We believe that the legislature, consistent with the purpose of the enabling statute, envisioned that § 6111 would confer upon the DRPA the authority to modify the sections of the Motor Vehicle Code for the purpose of promoting safety and efficiency on the bridges. We do not believe, however, that the legislature intended to grant the power to the DRPA to promulgate rules and regulations that directly contravene matters expressed in the Motor Vehicle Code.

To interpret § 6111, we look to the clear and unambiguous language of the statute and read it in accordance with the plain meaning and common usage of its terms. See Commonwealth v. Becker, supra. Here, it is readily apparent that the DRPA is bound to follow the provisions of the Motor Vehicle Code. Moreover, it is equally clear that the DRPA may only modify the provisions of the Code by duly promulgating a rule or regulation. The word “modify” has been defined as altering or changing in incidental or subordinate measures. Black’s Law Dictionary 905 (5th ed. 1979). In light of the plain meaning of the word “modify”, it follows that the legislature did not vest with the DRPA the authority to promulgate rules and regulations that go beyond the perimeters of the Motor Vehicle Code. If the contrary were true, the legislature need not have expressly stated that all the provisions of the Motor Vehicle Code apply to the DRPA. See 75 Pa.C.S.A. § 6111 (“provisions of this title apply to any bridge under the supervision and control of the [DRPA]”). Because the DRPA was not expressly granted the statutory right to use electronic speed devices within their jurisdiction, the DRPA cannot promulgate a regulation in accordance with its delegated authority that conflicts with the enabling statutory scheme. See Wiley House v. Scanlon, supra. The DRPA, therefore, can not enforce a regulation, which overrides legislative intent and extends beyond the statutory scheme. See id. The intent of the legislature was to permit the DRPA to “modify” the Motor Vehicle Code in accordance with its broad purposes and not to empower the DRPA to create new law. We can find no indication that the legislature intended to enact a broader grant of authority to the DRPA than is otherwise specified in clear and unambiguous terms in the Motor Vehicle Code.

The legislature has sounded its message: Only State Police are to employ electronic speed measuring devices. See 75 Pa.C.S.A. § 3368(c)(2). See also Commonwealth v. DePasquale, supra; Commonwealth v. Schmitzer, 286 Pa. Super. 138, 428 A.2d 610 (1981). We, therefore conclude that the DRPA’s regulation granting its officers the right to use electronic equipment is not an acceptable exercise of delegated authority. A contrary interpretation of the legislative language would give effect to an administrative regulation inconsistent with the statute under which it was promulgated. See Wiley House v. Scanlon, supra. Accordingly, where as here, there is an apparent conflict between a statute and a regulation promulgated thereunder, the statute must prevail. See Tiani v. Commonwealth of Pennsylvania, Department of Public Welfare, supra.

Because we have determined that the regulation at issue is not consistent with the enabling statute and must, therefore, fail; the use of electronic speed devices by DRPA officers is unlawful. Consequently, in the instant case, evidence of appellant’s speed based on information from the use of an electronic speed device should not have been admitted at trial. See Commonwealth v. Schmitzer, supra.

Accordingly, for the foregoing reasons, we reverse the decision of the lower court and vacate judgment of sentence.

Judgment of sentence vacated and charge dismissed.

      . We note that appellant, within his argument, raises the question of the procedural constitutionality of the DRPA’s actions in promulgating the regulation at issue, § 3(c)(2) of the DRPA’s Rules and Regulations. Appellant contends that the DRPA was bound to publish its proposed regulation pursuant to 75 Pa.C.S.A. § 6111, in accordance with 45 Pa.S.A. § 1201-02 (Supp.1987). Appellant argues that the language in § 6111 requires that an agency’s proposed regulations must be published in order for them to be given the force and effect of law. By failing to publish the proposed regulations in the Pennsylvania Bulletin prior to their implementation, appellant contends that the DRPA’s regulations, specifically, § 3(C)(2), are invalid. Because of the disposition of appellant’s first contention, we need not address the procedural constitutional issue or reach the merits of appellant’s other contentions.

      . Although the statements and views voiced by the legislators during the floor debates are not controlling in ascertaining legislative intent, they are a legitimate aid in construing a statute and warrant due consideration. See Young v. Kaye 443 Pa. 335, 348 n. 3, 279 A.2d 759, 765 n. 3 (1971) (legislative comments accorded weight in interpreting legislative intent behind statute). But see Martin v. Soblotney, 502 Pa. 418, 424 n. 5, 466 A.2d 1022, 1025 n. 5 (1983) (views of legislators not relied on to ascertain legislative intent).

      . We note that the only evidence introduced by the Commonwealth at appellant’s trial as to the speed at which appellant was traveling was the testimony of the DRPA officer based on information provided to him by the use of his radar equipment. Because the DRPA officer offered no personal observation of appellant’s speed, there is no other evidence to consider and appellant’s sentence is properly vacated.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    549 A.2d 145
    COMMONWEALTH of Pennsylvania, Appellee, v. John C. GRABOWSKI, Appellant.
    Superior Court of Pennsylvania.
    Argued May 5, 1988.
    Filed Aug. 22, 1988.
    Reargument Denied Oct. 24, 1988.

      Frank W. Ittel, Jr., Pittsburgh, for appellant.
    Edward M. Clark, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and BECK and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgments of sentence entered by the Allegheny County Court of Common Pleas, Criminal Division. On March 5,1987, the appellant, John Grabowski, was sentenced on four counts of theft by receiving stolen property. We affirm.

For the first time on appeal through his newly-appointed counsel, the appellant asserts that he was denied effective assistance of trial counsel on three grounds: 1) Trial counsel erroneously failed to file post-trial motions attacking the sufficiency of the evidence; 2) Trial counsel erroneously failed to object to the charge to the jury; and 3) Trial counsel erroneously failed to object to the admission of incompetent opinion evidence. Having reviewed the record and the parties’ briefs, we find that the appellant has failed to prove his allegations of error.

The record reveals the following pertinent facts: On February 5, 1986, the appellant, who operated Superior Auto Body, an automobile repair business in Pittsburgh, was evicted from his place of business. During the eviction process, the Allegheny County Deputy Sheriff, who was supervising the eviction removal of the appellant’s equipment and automobile parts, was told by one of the moving crew, Mark Loveland, that the vehicle serial numbers (VIN) had been removed from numerous inventory items. Mr. Loveland suspected that some of the parts may have been stolen. Accordingly, the Sheriff directed Mr. Loveland to contact the Pittsburgh Police Department.

At approximately 2:00 p.m. the same day, two Pittsburgh police detectives arrived at the body shop to investigate. Outside Superior Auto Body, the officers observed a flatbed truck loaded with automobile doors. Upon closer inspection, the detectives noticed that the VINs were removed from most of the doors. Believing removal of VINs to be a violation of federal law, the detectives entered the body shop to investigate further.

While inside the building, the investigators uncovered packing slips from inside automobile seats and from between the space between automobile roof and the cloth ceiling thereof. These packing slips reported the VINs of the cars upon which the seats and roofs were originally installed. The police also recorded the serial number of a word processor found on the premises. The VINs and the computer serial number were entered in the police computer. The results indicated that some of the VINs were from vehicles that had been reported stolen, and the word processor had also been reported stolen. Search warrants were then obtained, and the police seized the stolen parts and the word processor.

Several days later, the police were contacted by Charles Wilker, an investigator from the Erie Insurance Exchange. Wilker informed the police that a Pittsburgh parking citation had been issued to a Chevrolet Celebrity insured by Erie which had been reported stolen. Upon investigation, police determined that the citation was issued only hours after the reported time of the theft and the car was cited while parked within a block of Superior Auto Body. In addition, Wilker provided the police with a set of keys to the stolen car. The police then tried the keys in a Chevrolet Celebrity door and trunk that had been removed from Superior Auto Body and found that the keys opened the locks.

As a result of the investigation, the appellant was charged with six counts of theft by receiving stolen property: four counts involved auto parts found on the premises of Superior Auto Body; one count involved the door into which the keys fit; and one count involved the word processor. Demurrers were sustained as to two of the counts; involving auto parts seized at Superior Auto Body and the appellant was convicted of the remaining four. Post-trial motions were filed and denied. Mr. Grabowski was then sentenced to a term of incarceration totalling two to four years, and this appeal followed. Present counsel commenced his representation after notice of appeal had been filed.

The law in Pennsylvania presumes that trial counsel was effective. Commonwealth v. Quier, 366 Pa.Super. 275, 278, 531 A.2d 8, 9 (1987); Commonwealth v. Norris, 305 Pa.Super. 206, 210, 451 A.2d 494, 496 (1982). Consequently, the burden of proving counsel’s ineffectiveness rests upon the appellant. Quier, 366 Pa.Superior Ct. at 278, 531 A.2d at 9; Commonwealth v. Iverson, 358 Pa.Super. 1, 5, 516 A.2d 738, 740 (1986). Recently, our Supreme Court, in Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988), reiterated the analysis to be performed when reviewing a claim of ineffectiveness.

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying . claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Davis, 518 Pa.Superior Ct. at 83, 541 A.2d at 318.

First, we will dispose of the appellant’s contention that he was denied effective assistance of counsel due to counsel’s failure to file a post-trial motion attacking the sufficiency of the evidence. Initially, we must determine whether the appellant’s underlying claim is meritorious, i.e., whether the evidence presented was legally sufficient to support a guilty verdict. After reviewing the record, we find that the evidence presented was sufficient to support the guilty verdict.

In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the verdict winner and give the verdict winner the benefit of all reasonable inferences arising from the evidence. The test is whether the evidence is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Stark, 363 Pa.Super. 356, 360, 526 A.2d 383, 385 (1987), citing Commonwealth v. Campbell, 353 Pa.Super. 178, 181, 509 A.2d 394, 395 (1986); Commonwealth v. Meadows, 417 Pa. 201, 369 A.2d 1266, 1268 (1977).

The offense of receiving stolen property is defined in the Pennsylvania crimes code as follows:

18 Pa.C.S.A. § 3925. Receiving Stolen Property (a) Offense defined. — A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

Instantly, the appellant does not dispute that the property at issue were stolen or that he had the pilfered items in his possession. Instead, the appellant alleges that the evidence presented was insufficient to prove he possessed “guilty knowledge”. “In order to establish the mens rea element of the crime of receiving stolen property, the Commonwealth must prove that the accused possessed property with ‘guilty knowledge’, i.e., knowing that it has been stolen, or believing that it has probably been stolen. 18 Pa.C.S. § 3925(a).” Commonwealth v. Dunlap, 351 Pa.Super. 43, 47, 505 A.2d at 255, 257 (1985). Upon review of the record, we are convinced that the Commonwealth met this burden.

A permissible inference of guilty knowledge may be inferred from the unexplained possession of recently stolen goods as well as from the surrounding circumstances. Whether possession is recent and whether it is unexplained are normally questions for the trier of fact. Commonwealth v. Williams, 468 Pa. 357, 362 A.2d 244 (1976). Commonwealth v. Dunlap, 351 Pa.Superior Ct. at 47, 505 A.2d at 257; Commonwealth v. Worrell, 277 Pa.Super. 386, 419 A.2d 1199, 1201 (1980). Relevant considerations include but are not limited to the accused’s conduct at arrest and conduct while in possession; the time elapsed between the accused’s possession and the theft; the type of property; the situs of the theft and the situs of the possession; the value of the property and the price paid for the property; and the quantity of the property. Commonwealth v. Dunlap, 351 Pa.Superior Ct. at 47, 505 A.2d at 257; Commonwealth v. Worrell, 277 Pa.Superior Ct. at 391, 419 A.2d at 1201; Commonwealth v. Simmons, 233 Pa.Super. 547, 557-558, 336 A.2d 624, 629-630 (1975).

At trial, the jury was presented with the following evidence upon which to base its decision. The auto parts in question were removed from three automobiles: a Oldsmobile Toronado stolen on November 12, 1985, less than three months prior the initiation of the investigation on February 5, 1986; a AMC Eagle stolen on December 20, 1985, approximately one and one-half months prior to the investigation; and a Chevrolet Celebrity stolen on January 17, 1986, only nineteen days prior to the investigation. The computer in question was stolen on July 28, 1984, approximately one year and six months prior to the investigation of the appellant.

The appellant admitted that he removed the VINs from the stolen automobile parts, and testimony at trial revealed that this practice, although not illegal, was not standard practice in the industry. Significantly, the appellant conceded that he did not have receipts or invoices for the auto parts in question, and he could not recall from where or whom he acquired the parts. The appellant thought he may have purchased them from his major supplier, but he was uncertain nonetheless. Upon cross-examination, the appellant admitted that he was aware that his major supplier was indicted because, in his words, “They were running a chop shop operation.” (TT 461-462, 472) However, the appellant admittedly neither checked his business records to see if he had purchased any suspect parts from the supplier nor curtailed his purchases from the supplier.

Notably, the appellant was also unable to reveal the identity of the barter club member from whom he received the stolen computer in exchange for auto repair work, except by the name “Joe.” Again, the appellant was unable to produce any records or receipts of the transaction, explaining that he did not keep a record of that transaction to avoid paying taxes on the in-kind income. The appellant testified that he performed approximately $1000.00 worth of auto repairs on Joe’s car in exchange for the computer, and testimony elicited at trial revealed the computer’s value to be $10,000.00. The appellant, however, was unable to explain the great disparity between the value of his work and the compensation he received.

Finally, the appellant was unable to explain his possession of the red trunk and red door from a red Chevrolet Celebrity which was stolen nineteen days prior to the initial investigation of the appellant by the police. The police were able to determine that, on the same day as theft was reported and hours after the theft had occurred, the auto was issued a parking citation on the block where the appellant’s body shop was located. Moreover, keys obtained from the insurer which operated the stolen auto opened the red Celebrity door and trunk which were in the appellant’s possession.

Clearly, upon review of the record, we are convinced that a jury acting in a reasonable and rational manner could conclude that the appellant possessed guilty knowledge and, therefor, was guilty beyond a reasonable doubt. Commonwealth v. Frank Grabowski, 306 Pa.Super. 483, 452 A.2d 827 (1982) (car stolen 2V2 months prior found in defendant’s possession; conviction affirmed); Commonwealth v. McFarland, 452 Pa. 435, 308 A.2d 592 (1973) (bonds stolen II months prior found in defendants’ possession; conviction affirmed); Commonwealth v. Cohan, 177 Pa.Super. 532, 111 A.2d 182, 187 (1985) (fact that property was worth far more than price paid by defendant suggestive of guilty knowledge).

Having found that the evidence was sufficient to convict the appellant, we find that counsel was not ineffective for failing to file post-trial motion attacking the sufficiency of the evidence since counsel can not be held ineffective for his failure to pursue a meritless claim. Commonwealth v. Parker, 503 Pa. 336, 469 A.2d 582 (1983).

Second, the appellant asserts that trial counsel erroneously failed to object to the jury charge. He alleges the jury charge was erroneous in two respects: first, the judge insufficiently instructed the jurors in regard to the mens rea required, i.e., “guilty knowledge”; second, judge erroneously instructed the juror on the offenses relating to removal of VINs from automobiles as outlined in 75 Pa.C. S.A. § 7102 and 18 U.S.C.A. § 511. Again, we find that the appellant’s allegation lacks merit.

Instantly, the trial judge twice read the text of the receiving stolen property statute to the jury. The courts instruction regarding guilty knowledge was as follows:

As I already indicated, ladies and gentlemen, a defendant can be guilt of theft by receiving stolen property if he believes that the property had probably been stolen. It is not necessary that the defendant know the details of the theft or that he be certain that a theft, in fact, occurred. (TT, p. 571).

In Commonwealth v. Litman, 276 Pa.Super. 114, 419 A.2d 121 (1980), we reviewed a similar jury instruction on receiving stolen property. Therein, we stated: “It was incumbent upon the trial court to direct the attention of the jury to specific relevant ‘surrounding circumstances’ and not leave the jury free to engage in unguided speculation.” Accordingly, we find that the trial judge’s instruction to the jury, which was void of any mention of the surrounding circumstances to be considered, provided insufficient guidance to the jury on the question of “guilty knowledge.”

However, we have previously found that, instantly, the evidence presented at trial was sufficient to prove that the appellant possessed the requisite “guilty knowledge” to sustain a conviction for theft by receiving stolen property. Unlike Litman, supra, where we were able to point out many exculpatory factors which the jury should have been directed to consider, we are presently unable to discern similar exculpatory circumstances. Thus, counsel’s failure to request an instruction which set forth specific factors to be considered did not prejudice the appellant. The facts sub judice would not prompt the jury to engage in “unguided speculation.” To be sure, had the jury instruction been specifically tailored to the evidence, a different result would not have occurred. Therefor, the appellant was not prejudiced by his counsel’s actions. See Commonwealth v. Tyson, 363 Pa.Super. 380, 526 A.2d 395 (1987) (failure to seek instruction on victim’s prior violent acts not prejudicial).

Moreover, we find that the appellant has run afoul of our Supreme Court’s holding in Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1980). Therein, the court stated: “This Court will no longer consider claims of ineffective assistance of counsel in the abstract. Boilerplate allegations ... are insufficient to warrant remand for an evidentiary hearing — ” Instantly, the appellant has failed suggest a jury charge which, if given, would have “... offered a potential for success substantially greater than the tactics actually utilized ...[.]” Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984).

In response to the appellant’s allegation that the court erroneously instructed the jury concerning the state and federal statutes dealing with the removal of VINs from automobiles, we find that this assertion of error also lacks merit. At trial, both prosecution and defense made numerous reference to statutes concerning the removal of VINs. Thereafter, the trial judge read the text of both statutes to the jury in order to enable the jurors to comprehend adequately trial counsels’ arguments. (TT, p. 543).

The appellant argues “that evidence of one crime is inadmissible against a defendant being tried for another crime because the fact that one crime was committed does not prove the commission of the other. Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973).” (Appellants brief, p. 17) While we certainly agree with that proposition of law, we find it clearly does not apply presently. The Commonwealth did not contend nor attempt to prove that the appellant was guilty of any crime associated with removal of VINs. In fact, the Commonwealth’s witness specifically testified that the appellant had not violated the statutes by removing the VINs from the auto parts. Clearly, the appellant was not prejudiced by the courts reading of the text of 75 Pa.C.S.A. § 7102 and 18 U.S.C.A. § 511. Rather, we find that the court read the sections to the jury with the purpose of clarifying the issues so that the jury would understand the questions to be resolved.” See Commonwealth v. Jordan, 407 Pa. 575, 587, 181 A.2d 310, 316 (1962) (primary duty of trial judge when instructing jury is to clarify the issues). Thus, trial counsel was not ineffective for failing to pursue a meritless claim.

Finally, the appellant alleges that trial counsel was ineffective for failing to object to the admission of incompetent opinion evidence. We find that this allegation is merit-less.

At trial, Mark Loveland testified that, when he entered the appellant’s body shop to remove the auto parts pursuant to the eviction notice, the shop appeared to him to be a stockpile of stolen auto parts. (TT, p. 189). The witness then qualified his remarks stating that his observations were based on knowledge he acquired through his personal operation of a body shop and work he performed for federal and state agencies which entailed removal of recovered stolen auto parts. Appellant now argues that Mr. Loveland was not properly qualified as an expert witness. However, we find that Mr. Loveland’s testimony was not expert testimony in the traditional sense. He merely testified to observations he made while removing auto parts from the appellant’s body shop and to matters strictly within his personal knowledge.

“A witness may state relevant facts known to him, because of experience, even though he is not regarded as an expert whose opinion would be admissible on a hypothetical inquiry. Commonwealth v. Bennett, 471 Pa. 419, 423-24, 370 A.2d 373, 375 (1977), quoting Commonwealth v. Harris, 186 Pa.Super. 59, 63, 140 A.2d 344, 345 (1958).” Commonwealth v. Worrell, 277 Pa.Superior Ct. at 392, 419 A.2d at 1202. Accordingly, we rule that Mr. Loveland was competent to testify concerning not only the observations he made while inside the appellant’s body shop but also the conclusion he drew from those observations based upon his personal experience. Consequently, we will not deem trial counsel to be ineffective for failing to pursue a meritless claim.

In conclusion, we find that the appellant has failed to prove any of his allegations of error. Instantly, the evidence presented was sufficient to sustain the guilty verdicts, the appellant was not prejudiced by counsel’s failure to object to the jury instruction and the witness in question was competent to testify as he did. Therefore, counsel was not ineffective, and judgments of sentence are affirmed.

      . 18 Pa.C.S.A. § 3925.


author: DEL SOLE, Judge:

text:
    549 A.2d 151
    Fern J. LEOPOLD, Appellant, v. Donald H. TUTTLE, Appellee.
    Superior Court of Pennsylvania.
    Submitted June 15, 1988.
    Filed Sept. 19, 1988.
    Reargument Denied Nov. 16, 1988.

      Wieslaw T. Niemoczynski, Stroudsburg, for appellant.
    Franklin R. Innes, Townada, for appellee.
    Before CIRILLO, President Judge, and WIEAND and DEL SOLE, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order denying the Appellant’s request that a deed creating a tenancy by the entireties in the Appellee and his wife be set aside as fraudulent and the real estate be declared subject to execution by the Appellant judgment creditor. We affirm.

The relevant facts are as follows: The Appellant, an assignee of the original creditor, obtained three judgments against the Appellee in the State of New York. These judgments were filed in Bradford County. Appellant attempted to satisfy the judgments by executing against real property owned by the Appellee and his wife as tenants by the entireties. The Appellee opposed this execution through a sheriff’s interpleader, arguing that property owned as a tenancy by the entireties was not subject to execution by a creditor of only one spouse. The Sheriff petitioned the trial court for a judicial determination of the interpleader.

In her objection to the third party claim and her answer to the petition, the Appellant averred that the Appellee conveyed the real estate in question with the intent to hinder, delay, and defraud creditors, that the conveyance was fraudulent under the Uniform Fraudulent Conveyance Act, and that the real estate is still subject to execution. The petition for a stay of execution filed by the Appellee did not address these allegations, but merely stated that the title of the real estate was held by him and his wife as tenants by the entireties. The Appellee did not offer proof that the conveyance was not fraudulent, but his petition included the 1980 deed for the conveyance in question. The trial court conducted a hearing. Neither party produced any evidence. Therefore, the trial court’s decision was based on the pleadings. The court determined that the real estate in question was unavailable to satisfy the Appellee’s individual debts. Thereafter, the Appellant filed this timely appeal.

The Appellant sets forth two issues on appeal:

(1) Where uncontroverted pleaded facts show a conveyance of real estate between husband and wife for nominal consideration, does a rebuttable presumption of fraudulent conveyance arise upon challenge of the conveyance by creditors?

(2) Where judgment debtor and his wife fail to meet or rebut the presumption of fraud or otherwise respond to it in their own pleadings, was the judgment creditor entitled to a judgment (based) on the (written) pleadings?

Upon a careful study of the record, we find that the Appellant’s, objection to the claim and answer to the petition failed to state a claim of fraudulent conveyance under the applicable sections of the Uniform Fraudulent Conveyance Act (39 P.S. § 351 et seq.). Because no claim was stated, the burden of proof did not shift to the Appellee and his wife.

Converting property into an estate by the entireties for nominal consideration is perfectly legal and legitimate reasons exist for this type of conveyance. As 39 P.S. § 359(3) states:

Knowledge that a conveyance has been made as a gift or for nominal consideration shall not by itself be deemed to be knowledge that the conveyance was a fraud on any creditor of the grantor, or impose any duty on the person purchasing the property from the grantee to make inquiry as to whether such conveyance was or was not fraud on such creditor.

Thus, the averment of a nominal consideration alone is not enough to state a cause of action. Our court has held that under the Uniform Fraudulent Conveyance Act, a creditor must establish that the grantor was in debt at the time of his conveyance for the burden of proof to shift to the grantee(s). Once the burden shifts to the grantees, only then must they establish that the grantor received fair consideration for the conveyance. Stinner v. Stinner, 300 Pa.Super. 351, 446 A.2d 651 (1982). In short, the creditor must specifically allege the indebtedness of the debtor at the time of the conveyance to create a presumption under the Uniform Fraudulent Conveyance Act. The creditor cannot offer vague conclusions of fact or unjustified inferences of the grantor’s indebtedness, as the trial court will not accept such averments as true in a motion for a judgment on the pleadings. Jones v. Travelers Ins. Co., 356 Pa.Super. 213, 514 A.2d 576 (1986); West Penn Administration, Inc. v. Pittsburgh National Bank, 289 Pa.Super. 460, 433 A.2d 896 (1981).

As the trial court correctly noted, the Appellant did not allege in any pleading that the Appellee was or became insolvent at the time of the 1980 deed creating the estate by the entireties. The Appellant merely alleged that the Appellee was indebted to herself and others. Thus, the applicable section of the Uniform Fraudulent Conveyance Act is 39 P.S. § 357 which states:

Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors.

In order to create a presumption and shift the burden of proof under this section, a party must adequately establish the fraudulent intent of the conveying debtor as well as the existence of a present or future creditor at the time of the conveyance.

While the definition of a “present creditor” is self-explanatory, the definition of a “future creditor” is much more ambiguous. In Stauffer v. Stauffer, 465 Pa. 558, 351 A.2d 236 (1976), the Pennsylvania Supreme Court defined a “future creditor” as:

one with a legal claim against a person at the time that person makes a conveyance, even one that has not yet been reduced to judgment or even filed, is a future creditor who is entitled to set aside the conveyance if he can show it was made with actual intent to hinder, delay, or defraud present or future creditors. 465 Pa. at 576, 351 A.2d at 245.

Other Pennsylvania courts have construed the term “future creditor” to mean not only a creditor whose claim has not matured but a creditor whose claim is reasonably foreseen as arising in the immediate future. County of Butler v. Brocker, 455 Pa. 343, 314 A.2d 265 (1974); Iscovitz v. Filderman, 334 Pa. 585, 6 A.2d 270 (1939). In short, a “future creditor” does not exist unless a conveying party can reasonably foresee incurring the costs of a claim or judgment at the time of the conveyance.

In the instant case, the Appellant made no definite allegation in either pleading that the Appellee was indebted to any present or future creditor at the time of the conveyance. She did not claim that any of her assigned judgments were valid against the Appellee at or near the time he conveyed the real estate in question. She failed to specifically allege the existence or the foreseeability of these judgments on October 2, 1980. Furthermore, the Appellant did not allege that the Appellee was indebted to any other party at the time of the conveyance. In her answer to the petition, the Appellant stated that:

Your deponents are unable to make a more detailed or concrete factual showing (of the Appellee’s financial condition) at the present time inasmuch as they are not privy to the pertinent facts, have no idea as to what, if anything, the (Appellee) and his wife will allege in their Answer to the Petition, and have had no chance to inform themselves with regard to the pertinent facts by way of discovery. (Appellant’s answer, p. 4)

The Appellant’s pleadings reveal her uncertainty as to the Appellee’s financial status, and they lack sufficient factual claims indicating the Appellee’s indebtedness or knowledge of future indebtedness at the time of conveyance. Thus, no presumption of a fraudulent conveyance was created under 39 P.S. § 357 as her pleadings failed to aver this important statutory requirement.

In her brief, the Appellant relies on the case County of Butler v. Brocker, supra, in which the Pennsylvania Supreme Court stated:

... that as between husband and wife fraud is presumptively present when the conveyance is for a nominal consideration and is challenged by creditors’ and this rule of law has been held to apply to conveyances covered by [39 P.S.] Section 357. (citations omitted). 455 Pa. at 347, 314 A.2d at 268.

In Brocket, the court engaged in a lengthy discussion concerning the presence of a future creditor at the time of the conveyance in question. The Brocket court looked to the particular facts of the case and noted that the conveying party was aware of the possibility of fines being imposed on him. Also, the conveying party made the actual conveyance four days before committing the fine-inducing action. The Brocket court determined that nominal consideration is one of the many factors to consider in determining a fraudulent conveyance and focused on the presence of a future creditor at the time of the conveyance.

The Appellant also cites the case of Miami National Bank v. Willens, 410 Pa. 505, 190 A.2d 438 (1963), in which the court stated the general case law principle that “as between husband and wife fraud is presumptively present when the conveyance is for a nominal consideration and is challenged by creditors ...” 410 Pa. at 507, 190 A.2d at 439. The Miami Nat. Bank court noted that the bank was a present creditor at the time of the conveyance in question. This court ultimately held that because a question of fact existed as to whether the appellees intended to hinder, delay, or defraud creditors when they conveyed their interest in the property, the appellant’s motion for a judgment on the pleadings should be denied.

As to the second issue on appeal, the Appellant alleges that the Appellee and his wife erred by not responding to the averments in her pleadings. We hold that the Appellee and his wife were under no obligation to respond, nor could their admittance of these averments be implied by their failure to respond. Pa.R.C.P. 3206(b) and 3207(b) specifically deal with a sheriffs interpleader when the sheriff determines for or against the claimant to real estate. The last two sentences of both rules state:

Upon the filing of the objection an interpleader shall be at issue in which the claimant shall be the plaintiff and all other parties in interest shall be defendants. The only pleading shall be the claim, all averments of which shall be deemed to be denied.

Thus, the Appellee’s failure to respond does not entitle the Appellant to a judgment based on the written pleadings as material issues of fact cannot be deemed admitted due to the above rule.

With the above analysis in mind, we find that the Appellant failed to create a rebuttable presumption by not adequately establishing the Appellee’s indebtedness at the time he made the conveyance in question. As the alleged presumption was never created, the burden of proof did not shift to the Appellee and his wife. Therefore, the trial court was warranted in issuing its order based on the written pleadings.

ORDER AFFIRMED.