source: Caselaw Access Project

author: CERCONE, President Judge:

license: Public Domain

text:
    480 A.2d 1035
    COMMONWEALTH of Pennsylvania v. James Clarence DAVIS, a/k/a Dickey, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 24, 1983.
    Filed June 22, 1984.
    Petition for Allowance of Appeal Denied Oct. 29, 1984.

      Susan C. DeYoung, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CIRILLO and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellant was arrested, charged, and convicted of possession of a controlled substance with intent to manufacture or deliver. Post-trial motions were filed and subsequently denied. Appellant was sentenced to a term of incarceration of three (3) to six (6) years. He then filed this appeal raising four issues, which actually represent nine claims.

The first contention raised is that the suppression court erred in not suppressing the fruits of a search conducted pursuant to a search warrant. Appellant argues that the affidavit of probable cause was inadequate to justify a search and that the premises to be searched were not described with “sufficient precision.” Additionally, appellant complains that the police in executing the warrant violated the “knock and announce” rule. We find that the affidavit of probable cause was adequate and sufficiently precise to justify the search of appellant’s residence and that the execution of the warrant was proper in the circumstances of this case.

The affidavit of probable cause read as follows:

Received information from an informant who has given truthful information concerning drugs to the affiant in the past. This informant was sent to said address after being searched by Hbg. Police Officers, observed going to and from said address where a $100 purchase of heroin was made. Said informant also observed more drugs on the premises. Informant was observed leaving the premises and again searched by Hbg. Police Officers. James Davis has been arrested on previous drug charges on 7-18-72 N.Y. City possession of dangerous drugs, 10-23-75 Pa. possession of heroin, 12-6-75 N.Y. possession of controlled substance, 12-8-78 N.Y. drug paraphanalia, [sic] 7-14-79, Hbg. Pa. heroin. The affiant on several routine surveillance observed persons addicted to controlled substances entering and leaving said residence. Below is a list of the serial numbers of the monies used to make said purchase.

In particular appellant complains that while the police alleged that a controlled buy had occurred at the described premises, they did not allege that it had been made from appellant. Additionally, he argues that the trustworthiness of the informant was not established and the allegations of the most recent previous drug involvement were three months old and had not resulted in a conviction. Finally, he contends that there was no indication of when the affiant had observed the coming and going of addicts from appellant’s residence.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court adopted a “totality of the circumstances” approach in evaluating affidavits of probable cause used to support the issuance of search warrants. This court has followed the Supreme Court’s lead. See Commonwealth v. Price, 318 Pa.Superior Ct. 240, 464 A.2d 1320 (1983); Commonwealth v. Sorrell, 319 Pa.Superior Ct. 103, 465 A.2d 1250 (1983). Applying the “totality of circumstances” approach to the affidavit at hand, we find that the affidavit did not rely upon the unproven credibility of the undisclosed informant and that it did establish probable cause for the issuance of the search warrant.

The issuing authority was advised by the affiant of the controlled buy, of appellant’s arrest record, and of the observation of known drug addicts visiting appellant’s apartment. Each such factor is a proper consideration in assessing an application for a search warrant. See Commonwealth v. Gullett, 459 Pa. 431, 329 A.2d 513 (1974) (probable cause established in part by prior related arrests); Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974) (may consider prior arrests and association with known violators); Commonwealth v. Norwood, 456 Pa. 330, 319 A.2d 908 (1974) (may consider encounters with individuals previously known as result of drug violations); Commonwealth v. Ensminger, 325 Pa.Superior Ct. 376, 473 A.2d 116 (1984) (controlled buy by informant); Commonwealth v. Bable, 286 Pa.Superior Ct. 203, 428 A.2d 643 (1981) (police may consider prior criminal record). It is the combination of these various considerations which distinguish this case from others like Commonwealth v. Tolbert, 492 Pa. 576, 424 A.2d 1342 (1981); Commonwealth v. Demchak, 251 Pa.Superior Ct. 253, 380 A.2d 473 (1977); and Commonwealth v. Davis, 225 Pa. Superior Ct. 242, 310 A.2d 334 (1973).

In Tolbert, the Commonwealth relied upon a Stale observation by an informant and recent observations of conduct equally consistent with drug trafficking or innocent activity. Probable cause was found not to exist because the informant’s first hand observation was not current and could riot make innocent conduct suspect. Here we have a recent controlled purchase as well as visits by known drug users; the police here did not rely heavily upon the initial tip to support the warrant. In Demchak probable cause was not present, as while the police were aware of the defendant’s prior arrest, his subsequent suspicious conduct was too dissimilar to the prior conduct to justify an intrusion into his privacy. Here the informant’s purchase of heroin was consistent with appellant’s background.

Probably most similar to appellant’s situation, yet clearly distinguishable, is Davis, supra. There the basis for the search warrant were observations of reputed narcotic dealers coming and going from the defendant’s residence. The defendant himself had a reputation as a drug pusher and had recently been arrested on such charges. Questionable activity was observed near his house. Such information did not afford a reasonable inference of criminal conduct. However, in appellant’s situation we have the additional fact of a recent controlled buy.

Nor do we find merit to appellant’s objections that the affiant’s failure to indicate when he observed the known drug users coming and going and the staleness of appellant’s prior arrests, prevented the issuing authority from finding probable cause present. For as we held in Commonwealth v. Ryan, 300 Pa.Superior Ct. 156, 170, 446 A.2d 277, 284 (1982); “Properly recited facts indicating activity of a protracted and continuous nature make the passage of time less significant. Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981).” Prior conduct of a party can not alone support the issuance of a search warrant, however, such fact can be considered along with other available information so long as the prior conduct bears a sufficient similarity to the acts in question. Commonwealth v. Gullett, 459 Pa. 431, 329 A.2d 513 (1974); Commonwealth v. Bable, 286 Pa.Superior Ct. 203, 428 A.2d 643 (1981).

In the case at hand the issuing authority could quite properly look at the alleged controlled purchase in light of appellant’s prior arrests and the surveillance at an unknown time and find that it was probable that illicit drugs had been over a period of time and were currently being dispensed from appellant’s residence. It is only the probability of criminal conduct, and not a prima facie case, of criminal activity that need be demonstrated. Commonwealth v. Mazzochetti, 299 Pa.Superior Ct. 447, 445 A.2d 1214 (1982). Here we find that the affidavit did set forth the probability that narcotics were being distributed from appellant’s residence.

In regards to the description of the premises, appellant submits that the row house had been converted into two units and had the police checked with his landlord they would have discovered such. In fact he contends the police should have been aware of this from their own informant’s visit to the premises. The trial court accepted the police officer’s testimony to the effect that from the outside there appeared to be only one residence and that according to their information, appellant and his girlfriend were the only occupants. The landlord testified that appellant rented the whole house.

In Commonwealth v. Andujar, 264 Pa.Superior Ct. 326, 399 A.2d 1074 (1979) this court held that where a row house had been converted into two units, but the description in the warrant evidenced only one unit, such description was sufficiently specific where diligent efforts of the police had not disclosed the existence of the internal subdivision. Similarly in Commonwealth v. Chamberlain, 277 Pa.Superior Ct. 503, 419 A.2d 1261 (1980) we stated that if there is cause to believe the premises covered by the warrant are being used as a single unit, the warrant directing the search of more than one unit is permitted. In the absence of evidence as to any exterior features which would have indicated the presence of more than one unit, a warrant will not be invalidated because it authorizes a search of an entire house, although the house consists of two units. Commonwealth v. Yucknevage, 257 Pa.Superior Ct. 19, 390 A.2d 225 (1978).

The current case clearly falls within the scope of the above cases and therefore we find that the search warrant did adequately describe the premises. As the police testified they were under the impression, which was correct, that appellant and his girlfriend were the sole occupants of the structure. Visual observations of the exterior of the building did not raise a question as to the unitary occupancy. Therefore we can not find a fatal flaw in the description of the premises.

Appellant’s final challenge to the search is that in executing the warrant the police violated the “knock and announce” rule. When police officers approached the rear of the row house, they observed a black man, other than appellant, who, upon seeing the officers, fled into the row house. The police officers approached the rear door, knocked, and yelled “police”. When they received no response within ten seconds, or so they forcibly entered the rear of the building. Another contingency of officers, after being advised by radio of the rear entry, then entered, unannounced through the front door. Once inside, the police encountered a locked door leading to the second floor. They knocked on the locked door, yelled “police” and were requested to wait a minute. They waited several minutes, heard scampering upstairs and pried the door open and ascended the stairs to the second floor. Appellant would have us hold that since there was no announcement of purpose and only a very brief delay before force was used, the initial entry was improper. Similarly, he contends that the entry to the second floor was improper because the police failed to announce their purpose and no exigent circumstances were present to justify the forced entry. We are not persuaded.

Our Supreme Court addressed the “knock and announce” rule in Commonwealth v. Norris, 498 Pa. 308, 313-14, 446 A.2d 246 (1982) and there held:

We are satisfied in this case that the officers’ partial noncompliance with the “knock and announce” requirement was justified by the presence of exigent circumstances. We recognize that only a limited number of circumstances can be considered to excuse compliance with this Fourth Amendment protection. Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); United States v. Wylie, 462 F.2d 1178, 1186 n. 53 (D.C.Cir.1972); Commonwealth v. Beard, 282 Pa.Super. 583, 423 A.2d 398 (1980). These are (1) “when the officers may in good faith believe that they or someone within are in peril of bodily harm.” Miller v. United States, 357 U.S. 301, 309, 78 S.Ct. 1190, 1196, 2 L.Ed.2d 1332 (1958); (2) when the officers have a basis for assuming that a suspect is “armed or might resist arrest.” Sabbath v. United States, 391 U.S. at 585, 88 S.Ct. at 1759; (3) when there is “some affirmative indication to support a belief that evidence is being destroyed.” Commonwealth v. Clemson, 234 Pa.Super.Ct. 191, 194 n. 1, 338 A.2d 649, 650 N. 1 (1975); Miller v. United States; Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968); (4) when there are similar indications that “the person to be arrested is fleeing.” Miller v. United States, 357 U.S. at 309, 78 S.Ct. at 1196; Commonwealth v. Newman; or (5) when “the facts known to officers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture.” Miller v. United States, at 310, 78 S.Ct. at 1196; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Commonwealth v. Newman; Commonwealth v. Fisher, 223 Pa.Super. Ct. 107, 296 A.2d 848 (1972).

(Footnote omitted.)

The initial entry here was justified when the police encountered the third party who ran into the row house, locking the door behind him, and failing to respond to the announcement of the police. It has long been the rule in this Commonwealth that where the police are reasonably certain that the occupants are aware of their presence and purpose, the police need not knock and announce to give the occupant’s a reasonable opportunity to surrender the premises. Commonwealth v. Yucknevage, supra, Commonwealth v. Early, 236 Pa. Superior Ct. 60, 345 A.2d 197 (1975); Commonwealth v. Clemson, 234 Pa.Superior Ct. 191, 338 A.2d 649 (1975). Where an occupant sees the police and immediately retreats back into the premises, as is the case here, the duty of the police to knock, announce, and wait is obviated. Compare, Commonwealth v. Williams, 316 Pa.Superior Ct. 100, 462 A.2d 813 (1983).

We also find no impropriety in the entrance to the second floor. The police knocked and announced their identity, though not their purpose, appellant requested they wait a minute. While waiting to be admitted, the police heard shuffling over head, but no indications that they were going to be admitted. Since the focus of the search warrant was narcotics, which could readily be destroyed, the police officers were justified in breaking in as it appeared appellant was stalling for time to destroy the drugs. Commonwealth v. Pugh, 223 Pa.Superior Ct. 112, 296 A.2d 864 (1972). Such a holding is especially appropriate here where the other individual, who first observed the approach of the police, had time to warn the upstairs occupants.

Appellant next contends that trial counsel was ineffective in failing to move for dismissal of the information which had been approved with a rubber stamp facsimile of the district attorney’s signature; failing to object to testimony given by police officers that went beyond their qualifications; failing to object to testimony concerning guns found on the searched premises; and failing to object to the court’s charge. In reviewing a claim of ineffectiveness a two step analysis must be employed:

It is well settled that “[wjhen confronted with a claim of ineffectiveness assistance of counsel, we must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit, and if so, it must be determined whether the course chosen by counsel had some reasonable basis to effectuate his client’s interest.” Commonwealth v. Pittman, 295 Pa.Super. 234, [237], 441 A.2d 436, 437 (1982) (citations omitted). See also Commonwealth v. McKnight, [307] Pa.Super. [213], 453 A.2d 1 (1982); Commonwealth v. Bossick, [305] Pa.Super. [196], 451 A.2d 489 (1982).

Commonwealth v. Lewis, 314 Pa.Superior Ct. 298, 303, 460 A.2d 1149, 1151 (1983). In reviewing claims of ineffectiveness we must also keep in mind that there is a presumption that counsel is effective and it is a defendant’s burden to demonstrate otherwise. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Adams, 296 Pa.Superior Ct. 24, 442 A.2d 277 (1982). We find that appellant has failed to carry his burden of proof.

Appellant relies upon Commonwealth v. Emanuel, 285 Pa.Superior Ct. 594, 428 A.2d 204 (1981), to support his claim that a rubber stamp signature does not comply with the signature requirement of Rule 225(b), Pennsylvania Rules of Criminal Procedure. However, the Supreme Court has overruled this court’s decision in Emanuel. Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983), finding that a rubber stamp facsimile does satisfy Rule 225(b). Accordingly appellant’s first claim of ineffectiveness is without merit.

In his second claim appellant argues that while two detectives were qualified as experts in “drug paraphernalia,” they went beyond the scope of their qualifications in testifying concerning field tests done on drugs and normal drug usage. He claims counsel was ineffective in not objecting to such testimony.

Both of the detectives complained of, testified as to their experience and training in the field of narcotic investigations and prosecutions. Both were explicitly qualified as experts in drug paraphernalia. Reviewing the voir dire of the qualifications of both witnesses, we have little difficulty in concluding that the witnesses could have also been qualified as experts in normal drug use practices and on the scene testing. See Commonwealth v. Waters, 276 Pa.Superior Ct. 584, 419 A.2d 612 (1980). Therefore, had counsel protested, he would not have been successful. Counsel will not be held to have been ineffective in failing to pursue a meritless issue. Commonwealth v. Green, 315 Pa.Superior Ct. 564, 462 A.2d 736 (1983).

Appellant next complains of counsel’s failure to object to testimony referring to guns found in the row house. He contends that the jury could improperly infer from the presence of the guns that he was engaged in criminal conduct, as the weapons were in no way relevant to the prosecution at hand, he insists such reference was improper.

It is a fundamental principle of the criminal jurisprudence of this Commonwealth, that the Commonwealth may not introduce evidence of a defendant’s prior criminal activity as substantive evidence of his or her guilt on the current charges. However, the testimony here, while it may be irrelevant, did not amount to evidence of criminal conduct. In Commonwealth v. Rivera, 470 Pa. 131, 367 A.2d 719 (1976), evidence of habitual drug use was determined not to raise an inference of prior criminal conduct as by itself drug use was not a crime. Relying on Rivera, this court in Commonwealth v. Bey, 284 Pa.Superior Ct. 210, 425 A.2d 777 (1981) found that testimony of an observation of syringes in the defendant’s apartment did not indicate criminal activity. Therefore, here we find that reference to the presence of guns in one’s residence, when such is not illegal in and of itself, is not indicative of criminal conduct. Since we find no prejudice arising from such reference, counsel may not be deemed ineffective in not raising an objection, however as in Rivera we take this opportunity to note that such irrelevant evidence should be avoided.

Appellant’s final claim of ineffectiveness is that counsel should have objected to the court’s charge which was not objective and unbiased. Where a charge to the jury adequately states the law and creates no likelihood of confusion, counsel will not be deemed ineffective in failing to oppose the charge. Commonwealth v. Rowles, 501 Pa. 514, 462 A.2d 619 (1983). In reviewing a jury’s instruction we must look to the whole charge, and not just isolated excerpts therefrom. Commonwealth v. Waller, 322 Pa.Superior Ct. 11, 468 A.2d 1134 (1983). After reviewing the trial court’s entire charge, we find that it accurately and fairly reflected the law as it applies to the facts of the case at hand.

Appellant further alleges that the trial court erred in sua sponte charging on the lesser-included offenses of simple possession. A trial court need not charge concerning a lesser-included offense unless there is a rational basis for acquitting the defendant of the offense charged but finding him or her guilty of the included charge. Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977).

Here the trial court distinguished between simple possession; 35 P.S. § 780-113(16), and possession with intent to deliver, Id. § 780-113. This was proper as the Commonwealth was required to first show possession and then that such possession was with the intent to deliver to another. Commonwealth v. Cardona, 316 Pa.Superior Ct. 381, 463 A.2d 11 (1983); Commonwealth v. Herman, 288 Pa.Superior Ct. 219, 431 A.2d 1016 (1981). Hence, the court was not only permitted to charge on simple possession but was required to, in describing the crime of possession with intent to deliver. Therefore, no error was committed in the court’s sua sponte addition of the simple possession charge. See Commonwealth v. Franklin, 306 Pa.Superior Ct. 422, 452 A.2d 797 (1982).

The final contention appellant raises is that the evidence was inadequate to prove beyond a reasonable doubt his guilt of possession with intent to deliver. He argues that it was not shown that he had exclusive control over the first floor where most of the drugs and the drug paraphernalia were found. As to the second floor, the police, according to appellant, found only a small quantity of drugs and money, as well as the presence of a second person. Again he urges us to find that exclusive control was not shown. He suggests also, that the only drugs that may have been found to be within his control was a small amount retrieved from the commode on the second floor.

When reviewing such a claim we must keep in mind that:

In deciding the sufficiency of evidence, we must accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth as verdict winner, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Stasiak, [305] Pa.Super. [257], 263, 451 A.2d 520, 523 (1982); Commonwealth v. Banahasky, 250 Pa.Super. 495, 499, 378 A.2d 1257, 1259 (1977).

Commonwealth v. Pagan, 315 Pa.Superior Ct. 7, 9, 461 A.2d 321, 322 (1983). In reviewing the evidence here in such light we may summarize the facts of this case in the following fashion. Upon their entry into the row house the police found two known addicts present on the first floor of the residence. The police subsequently located various controlled substances and drug paraphernalia, identified as being used in the distribution and sale of drugs, on the first floor.

The authorities entrance to the second floor revealed appellant exiting from a bathroom where a flushing commode was heard. The police recovered a small amount of heroin from the commode. Further inspection revealed considerable sums of money, including $1,300 in a wallet bearing appellant’s identification, $1,000 in a suit apparently belonging to appellant, and $301 in the pants appellant was wearing at the time of the search. Though appellant contended that the first floor and second floor were separate apartments, with his girlfriend occupying the first floor and he the second, at the time the search warrant was executed, the second floor kitchen appeared to be not in service as a kitchen and the girlfriend was sharing the second floor bedroom.

If the Commonwealth is unable to prove that a suspect had a controlled substance on his person, the Commonwealth may show constructive possession of illicit drugs, and such may be demonstrated by showing that a defendant had power of control over and intended to exercise such control of such substance. Commonwealth v. Davis, 308 Pa.Superior Ct. 431, 454 A.2d 612 (1982); Commonwealth v. Thompson, 286 Pa.Superior Ct. 31, 428 A.2d 223 (1981). All facts and circumstances surrounding possession of drugs or narcotics are relevant in making a determination of whether contraband was possessed with the intent to deliver. Commonwealth v. Fisher, 316 Pa.Superior Ct. 311, 462 A.2d 1366 (1983). In addition to the quantity of drugs possessed, in determining whether there was an intent to deliver, the courts have also considered the presence of paraphernalia used in the narcotic trade as well as the presence of inordinately large sums of cash. Fisher, supra; Commonwealth v. Bundridge, 303 Pa.Superior Ct. 267, 449 A.2d 681 (1982); Commonwealth v. Smith, 250 Pa.Superior Ct. 460, 378 A.2d 1239 (1977). In light of the above evidence, the jury could reasonably find or infer that the row house was being used as a single household and appellant and/or his girlfriend were in possession of various illicit drugs intending to sell them to others.

However, appellant correctly points out that where more than one person has equal access to where drugs are stored, presence alone in conjunction with such access will not prove conscious dominion over the contraband. Commonwealth v. Keblitis, 500 Pa. 321, 456 A.2d 149 (1983); Commonwealth v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977); Commonwealth v. Luddy, 281 Pa.Superior Ct. 541, 422 A.2d 601 (1980). It must also be remembered that knowledge of the location of the narcotics and intent to exercise control over such may be inferred from access to such drugs and the other surrounding circumstances, even though others have equal access thereto. Commonwealth v. Banahasky, 250 Pa.Superior Ct. 495, 378 A.2d 1257 (1977). Even more important to the facts of this appeal is the principle that the Commonwealth may demonstrate constructive or joint constructive possession, from the totality of the circumstances, even though others may have had access to the drugs. Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983); Thompson, supra; Commonwealth v. Harris, 263 Pa.Superior Ct. 110, 397 A.2d 424 (1979). A discussion of Macolino and Harris readily demonstrates the above principles.

In Macolino, contraband was found in a closet located in a bedroom shared by the defendant and his wife. The Supreme Court held that, in light of the additional presence in the bedroom of paraphernalia and other items associated with drug trafficking, a fact-finder could conclude that the defendant was aware of the drugs, that he exercised control over them, and that he intended to possess such contraband. While in Harris, the defendant whose mobility was limited as evidenced by his need of a wheel chair, was found to have shared joint constructive possession with another of drugs found on a windowsill of an adjoining residence. The defendant’s possession and control of drug paraphernalia established the connection with the drugs and his intent to exercise control over the controlled substances. Similarly here, appellant’s actions in attempting to. dispose of the small quantity of heroin, his joint control over the entire row house, and his possession of the large sums of money adequately established his control and intention to control at least some of the drugs, as well as his intention to deliver such to others. Compare Smith, supra (defendant controlled area where drugs and paraphernalia were found and a large sum of money was found under a mattress where a girlfriend was sleeping; evidence was sufficient.)

Judgment of sentence affirmed.

      . While privately retained trial counsel timely filed post-trial motions, they were denied for failure to file a brief in support thereof. Subsequently, the Public Defender’s Office petitioned the trial court for leave to file nunc pro tunc supplemental post-trial motions and a supporting brief. The court granted leave and subsequently denied the supplemental motions.

      . Appellant’s claim, that the affidavit did not establish that he was selling drugs is irrelevant. Probable cause is demonstrated if the facts related in the affidavit reasonably show that the items sought are connected to criminal activity and that they will be found in the place to be searched. Ryan, supra. Who is responsible for the presence of the contraband or evidence is not pertinent to issuing a search warrant.

      . We believe the entry through the front door, shortly after the rear entry, and shortly after those officers at the front were advised by radio to proceed in, should be considered as part of the initial entry through the rear door.

      . While the third party was not a resident of the row house, his actions indicated he had some degree of access to the premises and his conduct was clearly intended to inhibit the police from carrying out their lawful duty. Thus exigent circumstances clearly existed.

      . Appellant contends that the police waited merely 30 seconds, while the Commonwealth contends the officers waited several minutes. In light of the various circumstances of this case we believe even the lesser amount of time was adequate.

      . Of course this rule is subject to a few exceptions, not applicable here, such as when the evidence is admitted to prove common design, scheme, intent or motive.

      . (16) Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the. substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.

      . (30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.

      . Appellant also complains that the court empowered the jury to find him guilty of simple possession, even though he had not been charged with such. We find no need to address this claim as the court gave the jurors the alternative of finding appellant guilty of a lesser charge. Since the jury nonetheless convicted appellant of the greater charge he clearly suffered no actual prejudice.

      . The jury could reasonably have excluded the two known drug users, who were present on the premises, from being responsible for the intended drug trafficking as some of the drugs located on the first floor were secreted in the first floor kitchen and all sizable sums of money were located on the second floor.

      . For the purposes of this appeal it is unimportant whether the two drug users found on the premises and/or appellant’s girlfriend were also involved in drug trafficking as the evidence at a minimum showed beyond a reasonable doubt that appellant was at least in joint constructive possession of the narcotics. See Commonwealth v. Macolino, supra.


author: WIEAND, Judge: JOHNSON, Judge,

text:
    480 A.2d 1046
    COMMONWEALTH of Pennsylvania, Appellant, v. Despina SMALIS, a/k/a Pepe Smalis. (Four cases.) COMMONWEALTH of Pennsylvania, Appellant, v. Ernest SMALIS, a/k/a Anatstasios Smalis. (Four cases.)
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1983.
    Filed June 29, 1984.
    Petition for Allowance of Appeal Granted Aug. 24, 1984.

      Melinda G. Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    Norma Chase, Pittsburgh, for Despina Smalis, appellee.
    Thomas A. Livingston, Pittsburgh, for Ernest Smalis, appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, ROWLEY, WIEAND, JOHNSON and HOFFMAN, JJ.
   WIEAND, Judge:

The trial court in this criminal action sustained defense demurrers to charges of murder, voluntary manslaughter and causing a catastrophe. The Commonwealth appealed. We do not reach the substantive merits of the appeal. Principles of double jeopardy, as interpreted and applied by recent decisions of the Supreme Court of the United States, bar the Commonwealth’s right of appeal and compel us to quash the appeal.

Despina Smalis and Ernest Smalis were the owners of a building in the Oakland section of Pittsburgh which housed a bar and restaurant known as “Chances R” and seven dwelling units. On February 12, 1979, a fire destroyed the building, killing two tenants who were in the dwelling units. The owners were accused of setting the fires or causing them to be set and were charged with criminal homicide, recklessly endangering another person, causing a catastrophe and failing to prevent a catastrophe. Despina Smalis was also charged with theft by deception. The evidence was heard by the court without a jury. At the close of the Commonwealth’s case, the trial court sustained a demurrer to the evidence with respect to the charges of murder, voluntary manslaughter and causing a catastrophe. The court did so because, as the trial court observed in a subsequent opinion, “[a]s the trier of fact and law, the court was not satisfied, after considering all of the facts together with all reasonable inferences which the Commonwealth’s evidence tended to prove, that there was sufficient evidence from which it could be concluded that either of the defendants was guilty beyond a reasonable doubt of setting or causing to be set the fire in question.” The Commonwealth appealed.

Until recent times, a demurrer to the evidence was merely a procedural device, authorized by the Act of June 5, 1937, P.L. 1703, § 1, 19 P.S. § 481 (repealed), by which a criminal defendant might test the sufficiency of the Commonwealth’s evidence at the close of the Commonwealth’s case. See: Commonwealth v. Heller et al., 147 Pa.Super. 68, 83, 24 A.2d 460, 467 (1942). See also: 10A P.L.E. Criminal Law § 617. Under this practice, it was said, an order sustaining a demurrer to the evidence determined no facts and was purely a question of law. Such an order, the decisions uniformly held, was appealable by the Commonwealth. Commonwealth v. Long, 467 Pa. 98, 100 n. 2, 354 A.2d 569, 570 n. 2 (1976); Commonwealth v. Melton, 402 Pa. 628, 629, 168 A.2d 328, 329 (1961); Commonwealth v. Lewis, 299 Pa.Super. 367, 369, 445 A.2d 798, 799 (1982); Commonwealth v. Matsinger, 288 Pa.Super. 271, 273, 431 A.2d 1043, 1044 (1981); Commonwealth v. Barone, 276 Pa.Super. 282, 289 n. 9, 419 A.2d 457, 461 n. 9 (1980); Commonwealth v. Ferrone, 218 Pa.Super. 330, 333, 280 A.2d 415, 417 (1971).

The practice of demurring to the evidence is now governed by Pa.R.Crim.P. 1124(a). This rule equates a demurrer to the evidence with other motions intended to challenge the legal sufficiency of the evidence to support a conviction. The Rule provides:

(a) A defendant may challenge the sufficiency of the evidence to sustain a conviction of one or more of the offenses charged by a:
(1) demurrer to the evidence presented by the Commonwealth at the close of the Commonwealth’s case-in-chief;
(2) motion for judgment of acquittal at the close of all the evidence;
(3) motion for judgment of acquittal filed within ten (10) days after the jury has been discharged without agreeing upon a verdict; or
(4) motion in arrest of judgment filed within ten (10) days after a finding of guilt.

When a court finds the Commonwealth’s evidence legally insufficient under this Rule, the evidence has been found to be so lacking in sufficiency that no rational fact finder could base a conviction thereon. When such a determination has been made, the Supreme Court of the United States has held, principles of double jeopardy bar a second trial.

When a trial judge directs a verdict of acquittal, as under Rule 1124(a)(2), that verdict is final. Because a second trial is barred by principles of double jeopardy, the Commonwealth has no right of appeal from an order directing a verdict of acquittal. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962). See also: Finch v. United States, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977)(dismissal of charges prior to entry of verdict on grounds that stipulated facts did not state an offense held unappealable); In The Interest of R.K.K., 112 Ill.App.3d 982, 68 Ill.Dec. 573, 446 N.E.2d 307 (1983)(“directed verdict” entered at close of state’s case-in-chief based upon state’s failure to prove age of victim in statutory rape case held not appealable); State v. Murrell, 54 N.C.App. 342, 283 S.E.2d 173 (1981)(dismissal of charges on insufficiency grounds at close of trial held not appealable). Cf. People v. Casiel, 41 N.Y.2d 945, 394 N.Y.S.2d 630, 363 N.E.2d 354 (1977), reversing 42 A.D.2d 762, 346 N.Y.S.2d 349 (1973); State v. Winborne, 273 S.C. 62, 254 S.E.2d 297 (1979).

When a trial court grants a motion for judgment of acquittal after the jury has been discharged without agreeing upon a verdict, as under Rule 1124(a)(3), the defendant cannot be retried. Such a ruling represents a final determination that the prosecution failed to prove facts sufficient to convict. It is the same determination which is made by a court when it directs a verdict of acquittal at the close of the evidence. Because the federal Double Jeopardy Clause bars a retrial, the Commonwealth has no right of appeal from an order directing a verdict under such circumstances. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). See also: United States v. Suarez, 505 F.2d 166 (2d Cir.1974).

Principles of double jeopardy are applicable also when a trial court has granted a post-trial motion in arrest of judgment in a manner similar to that provided for in Rule 1124(a)(4) or where an appellate court has reversed a conviction on grounds that the evidence was so inadequate that no rational fact finder could have voted to convict thereon. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981)(determination by trial court pursuant to post-trial motion that evidence was insufficient to support conviction bars retrial); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978)(determination by appellate court that evidence was insufficient to support conviction bars retrial); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)(determination by appellate court that government failed to introduce sufficient evidence to rebut defendant’s proof of insanity, holding in essence that trial court should have directed a verdict in defendant’s favor, bars retrial). However, where a trial court has found post-verdict that the evidence was insufficient as a matter of law to support the verdict, that determination is subject to appellate review, for an order by an appellate court reversing such a conclusion and reinstating the verdict does not require a second trial. Therefore, there is no violation of principles of double jeopardy. Commonwealth v. Rawles, 501 Pa. 514, 519-520, 462 A.2d 619, 621 (1983). See also: United States v. Singleton, 702 F.2d 1159 (D.C.Cir.1983) (collecting cases at 1161-1162 n. 8); Commonwealth v. Macolini, 503 Pa. 201, 469 A.2d 132 (1983) (Superior Court’s reversal of judgment of sentence on grounds of insufficiency of evidence reversed by Supreme Court).

The legal principle to be drawn from these decisions was articulated in United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) as follows: “A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.” Id. at 91, 98 S.Ct. at 2194, 57 L.Ed.2d at 74 (footnote omitted).

A demurrer to the evidence requires a court to accept as true the evidence presented by the Commonwealth and view that evidence, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth. See: Commonwealth v. Turner, 491 Pa. 620, 622, 421 A.2d 1057, 1058 (1980); Commonwealth v. Wimberly, 488 Pa. 169, 171, 411 A.2d 1193, 1194 (1979); Commonwealth v. Duncan, 473 Pa. 62, 66 n. 2, 373 A.2d 1051, 1052 n. 2 (1977); Commonwealth v. Long, supra 467 Pa. at 100, 354 A.2d at 570; Commonwealth v. Bastone, 321 Pa.Super. 232, 236-237, 467 A.2d 1339, 1341 (1983); Commonwealth v. Cugnini, 307 Pa.Super. 113, 115, 452 A.2d 1064, 1065 (1982); Commonwealth v. Gilliard, 300 Pa.Super. 469, 478, 446 A.2d 951, 955 (1982). The court must then determine whether the Commonwealth’s evidence, when so considered, is sufficient to permit a rational person to base thereon a finding of guilt beyond a reasonable doubt.

The Supreme Court of the United States has not distinguished and set aside for separate treatment those determinations of evidentiary insufficiency which are made mid-trial. See and compare: Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)(pre-verdict acquittal for insufficient evidence, even though caused by erroneous evidentiary ruling, held not appealable); Finch v. United States, supra (dismissal of charges prior to entry of verdict on grounds that stipulated facts did not state an offense held unappealable); Fong Foo v. United States, supra (order directing verdict of acquittal entered during government’s case-in-chief held not appealable). The Supreme Court has said, rather, that in determining whether action taken by the trial court has constituted an “acquittal” for double jeopardy purposes, the form of the judge’s action is not controlling. “[W]e must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged. ” United States v. Martin Linen Supply Co., supra, 430 U.S. at 571, 97 S.Ct. at 1354-1355, 51 L.Ed.2d at 651 (emphasis added). See: United States v. Scott, supra, 437 U.S. at 97, 98 S.Ct. at 2197, 57 L.Ed.2d at 78; Burks v. United States, supra, 437 U.S. at 10, 98 S.Ct. at 2147, 57 L.Ed.2d at 9; United States v. Genser, 710 F.2d 1426, 1427-1428 (10th Cir.1983); United States v. Allison, 555 F.2d 1385, 1387 (7th Cir.1977); Commonwealth v. Ward, 493 Pa. 115, 425 A.2d 401 (plurality opinion), cert. denied, 451 U.S. 974, 101 S.Ct. 2055, 68 L.Ed.2d 354 (1981); Commonwealth v. Tabb, 491 Pa. 372, 421 A.2d 183 (1980), cert. denied, 450 U.S. 1000, 101 S.Ct. 1708, 68 L.Ed.2d 202 (1981); Commonwealth v. Wimberly, supra; Commonwealth v. Dincel, 311 Pa.Super. 470, 457 A.2d 1278 (1983).

In view of recent Supreme Court decisions, a growing number of jurisdictions has held that a judicial determination of insufficient evidence, when made mid-trial, is not subject to appeal. See: Miller v. State, 648 P.2d 1015 (Alaska 1982)(charges dismissed after state’s case-in-chief on insufficiency grounds due to inability of witness to testify held not subject to reinstatement); State v. Smith, 164 Ga.App. 598, 298 N.E.2d 583 (1982)(no right of appeal from “directed verdict” entered at close of case-in-chief); In The Interest of R.K.K., supra (same); State v. Whorton, 225 Kan. 251, 589 P.2d 610 (1979)(dismissal of charges during state’s case-in-chief on sufficiency grounds held unappealable); State v. Shaw, 282 Md. 231, 383 A.2d 1104 (1978)(dismissal of charges upon submitted facts not appeal-able where trial court held that alleged criminal conduct did not constitute crime); People v. Anderson, 409 Mich. 474, 295 N.W.2d 482 (1980), cert. denied, 449 U.S. 1101, 101 S.Ct. 896, 66 L.Ed.2d 827 (1981)(determination that evidence was insufficient to sustain charge of first degree murder after presentation of some, but not all, of state’s case-in-chief held unappealable); State v. Greenwalt, Mont., 663 P.2d 1178 (1983) (no appeal from dismissal of charges on insufficiency grounds after state’s case-in-chief); People v. Brown, 40 N.Y.2d 381, 386 N.Y.S.2d 848, 353 N.E.2d 811 (1976), cert. denied, 433 U.S. 913, 97 S.Ct. 2986, 53 L.Ed.2d 1099 (1977), followed as stated in People v. Key, 45 N.Y.2d 111, 408 N.Y.S.2d 16, 379 N.E.2d 1147 (1978)(same); State v. Musselman, 667 P.2d 1061 (Utah 1983)(same); In the Matter of Dowling, 98 Wash.2d 542, 656 P.2d 497 (1983)(same).

An order sustaining a demurrer to the evidence under current Pennsylvania practice is a mid-trial determination that the prosecution’s evidence is legally insufficient to support a conviction. Pa.R.Crim.P. 1124(a)(1). For double jeopardy purposes it has precisely the same effect as a directed verdict of acquittal. A court has made a determination that upon the evidence presented no rational fact finder could vote to convict the defendant. This is a termination of the trial on a basis related to a factual determination of guilt or innocence. “Under the dispositive [decisions of the Supreme Court] such a ruling of insufficiency, no matter how labeled, represents a conclusion that there has been a failure of proof: that is, there has been an acquittal which is to be accorded the special significance of finality and unreviewability.” Strazzella, Commonwealth Appeals and Double Jeopardy, 4 Pa.L.J. 11, 12 (1981).

In a case in which a trial court based an order granting a demurrer upon a comparison of the relative credibility of witnesses, this Court held that the Commonwealth had no right of appeal. Commonwealth v. Stumpo, 306 Pa.Super. 447, 452 A.2d 809 (1982). Accord: Commonwealth v. Wimberly, supra. We have also held that the Commonwealth has no right of appeal where the trial court has sustained a demurrer to the evidence and, in addition, has entered a finding of not guilty. Commonwealth v. Thinnes, 263 Pa.Super. 79, 397 A.2d 5 (1979). Accord: Commonwealth v. Haines, 410 Pa. 601, 190 A.2d 118 (1963). For double jeopardy purposes, there is no practical distinction to be drawn between the determinations made in these cases and a determination that the evidence, when considered in the light most favorable to the Commonwealth, is so lacking in sufficiency that no rational fact finder can rest a conviction thereon. In either situation, there has been a termination of the trial on a basis related to a factual determination of guilt or innocence. In either situation, a second trial is necessary in the event of reversal.

How, then, can an order sustaining a demurrer to the evidence under Pennsylvania practice be distinguished from other insufficiency determinations which'are not appealable? If it cannot be so distinguished, how can we refuse to follow the decisions of the Supreme Court of the United States which define and apply the Double Jeopardy Clause of the United States Constitution? The answer is that we cannot. Prior Pennsylvania decisions holding that orders sustaining demurrers are appealable by the Commonwealth can no longer be followed. They are at variance with decisions of the Supreme Court of the United States. We hold, therefore, that a mid-trial order holding the evidence insufficient to support a conviction is not appealable by the Commonwealth.

Where the trial court’s determination constitutes an “acquittal” within the definition of Martin Linen, an appeal is barred not only when it might result in a second trial, but also if reversal would translate into “ 'further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged. United States v. Martin Linen Supply Co., supra, 430 U.S. at 570, 97 S.Ct. at 1354, 51 L.Ed.2d at 650, quoting with approval from United States v. Jenkins, 420 U.S. 358, 370, 95 S.Ct. 1006, 1013, 43 L.Ed.2d 250, 259 (1975). See also: United States v. Harvey, 377 A.2d 411, 414 (D.C.App.1977); State v. Shaw, supra 282 Md. at 232, 383 A.2d at 1106; People v. Brown, supra, 40 N.Y.2d at 389-390, 386 N.Y.S.2d at 854, 353 N.E.2d at 818; Commonwealth v. Bolden, 472 Pa. 602, 630, 373 A.2d 90, 103 (1977) (plurality opinion); State v. Musselman, supra at 1066 & n.5. In the instant case, even if it were feasible to resume the pending trial in the event of appellate reversal of the trial court’s determination, further proceedings devoted to the resolution of substantive, factual issues would most certainly be necessary.

The trial court in the instant case granted a defense demurrer to charges of murder and voluntary manslaughter and also to counts of causing a catastrophe. Its decision was based upon a determination that the evidence adduced by the Commonwealth was legally insufficient to enable a rational person to find the defendants guilty of those charges. This was a decision factually related to guilt or innocence. If it were reversed, further proceedings devoted to the resolution of factual issues would be necessary. Such proceedings, however, are barred by principles of double jeopardy. Under these circumstances, the Commonwealth has no right of appeal.

Appeal quashed.

JOHNSON, J., filed a dissenting opinion.

JOHNSON, Judge,

dissenting:

Shall the Commonwealth hereafter be foreclosed from securing appellate review of pure questions of law where the defendant successfully seeks to avoid a full trial by challenging the sufficiency of the evidence by demurrer at the close of the Commonwealth’s case-in-chief? Does appellate review of such a midtrial determination invade any interest protected by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, thereby barring a Commonwealth appeal therefrom? Since I find the answer to both of these questions to be in the negative, I must respectfully dissent.

The majority opinion is clearly correct in observing that a judgment of acquittal may not be appealed and terminates the prosecution when a second trial would be necessitated by reversal. This assertion is entirely consistent with the principal objectives of the Double Jeopardy Clause, and I endorse it completely. In the instant appeal, however, we have neither a judgment of acquittal nor the clear necessity of a retrial assuming reversal.

The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) protection against a second prosecution for the same offense after acquittal, (2) protection against a second prosecution after conviction, and (3) protection against multiple punishments for the same offense. Commonwealth v. Maddox, 307 Pa.Super. 524, 453 A.2d 1010 (1982). Two threshold conditions must be met in order to implicate the prohibition against multiple punishments: (1) the accused must have been placed in jeopardy and (2) there must be a threat of successive prosecutions. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). The constitutional protection afforded by the Double Jeopardy Clause against government appeals in criminal cases attaches only where there is a danger of subjecting the defendant to a second trial for the same offense. United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975).

Both the majority and this writer turn to United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) to ascertain the legal principles to be drawn from the federal cases reviewing the tension between the right of an appeal by the prosecutor and the prohibitions of the Double Jeopardy Clause. We reach different conclusions.

It is worth noting that the majority in Scott determined that “ ‘the lessons of experience’ indicate that Government appeals from midtrial dismissals requested by the defendant would significantly advance the public interest in assuring that each defendant shall be subject to a just judgment on the merits of his case____” Scott, 437 U.S. at 101, 98 S.Ct. at 2199, 57 L.Ed.2d at 80-81. There, the trial court did not grant the motion for dismissal until after the close of all the evidence, disposing of two counts of a three-count indictment. On appeal, the Sixth Circuit, relying on United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975) dismissed the government’s appeal in the belief that any further prosecution was barred by the Double Jeopardy Clause. The Supreme Court, in overruling Jenkins, held that a defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence, suffers no injury cognizable under the Double Jeopardy Clause if the government is permitted to appeal from such a trial court ruling. Scott, 437 U.S. at 98-99, 98 S.Ct. at 2198, 57 L.Ed.2d at 79.

This writer recognizes that Scott involved a motion to dismiss based upon preindictment delay which some might argue presents a clearer case of a basis unrelated to factual guilt or innocence than does the demurrer here involved. I submit, nevertheless, that the action of the trial judge on the instant appeal, in granting the demurrer, did not attempt to reach the factual issue of guilt or innocence — and the rule laid down in Scott is applicable here. I respectfully suggest that the majority misperceives the principle of law involved when it asserts, without citation to any authority, that the decision of the trial court in granting the demurrer was “factually related to guilt or innocence.” (Maj. op., at 319, cf. id. at 318).

I need not take issue with the majority’s extended explication of the rules to be applied when the Commonwealth might seek to appeal from orders granting motions for acquittal, under Pa.R.Crim.P. 1124(a)(2) and (a)(3), since that factual situation is not before us. Nor need I pause to consider the applicability of double jeopardy principles to attempted appeals from orders granting a post-trial motion in arrest of judgment. The plain fact is that neither the United States Supreme Court nor our own supreme court has ever held that the government is barred from taking an appeal from an order granting a demurrer where retrial has not been shown to be necessary.

To the extent that the majority’s holding in this case might be understood as implying that our own supreme court has not been reading the decisions of the Supreme Court, I must distance myself from that view. In Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1979), our supreme court reviewed, by direct appeal, the grant of a demurrer to all charges which had been entered at the conclusion of the Commonwealth’s case. Viewing the trial court action upon the demurrer as being “a de facto judgment of acquittal”, the court dismissed the appeal at 488 Pa. 173, 411 A.2d at 1195, on the rationale that it was “utterly beyond dispute that a judgment of acquittal is not appealable by the Commonwealth.” 488 Pa. at 173, 411 A.2d at 1194.

Nevertheless, the Wimberly court recognized, by way of dictum, that “[i]t is well settled that an order granting a demurrer, properly entered, is purely a question of law and is appealable by the Commonwealth.” Id. (emphasis in original) Justice O’Brien, speaking for our supreme court, cited to United States v. Scott, supra, quoting United States v. Martin Linen Supply Co., supra, for the proposition that an acquittal occurs only when the ruling of the judge actually represents a resolution in the defendant’s favor, correct or not, of some or all of the factual elements of the offense charged.

While the majority acknowledges that this is the legal principle to guide us in resolving this appeal and, in fact, cites to Scott, Martin Linen Supply and Wimberly for this proposition, its analysis, in my view, obliterates the distinction which has long obtained between acquittals and demurrers “properly entered.” After correctly observing that an order sustaining a demurrer “is a mid-trial determination that the prosecution’s evidence is legally insufficient to support a conviction” (Maj. op., at 317) (emphasis added), the majority makes a quantum leap, without citation to any authority, and concludes that “[f]or double jeopardy purposes it has precisely the same effect as a directed verdict of acquittal.” Id.

The majority goes on to compare the instant appeal with cases where the trial court actually compared the relative credibility of witnesses and cases where the trial court had entered a finding of not guilty in addition to sustaining a demurrer to the evidence. The majority then states:

For double jeopardy purposes, there is no practical distinction to be drawn between the determinations made in these cases and a determination that the evidence, when considered in the light most favorable to the Commonwealth, is so lacking in sufficiency that no rational fact finder can rest a conviction thereon. In either situation, there has been a termination of the trial on a basis related to a factual determination of guilt or innocence. In either situation, a second trial is necessary in the event of reversal. (Maj. op., at 318).

I cannot agree. I do not understand why the majority finds no distinction between the alleged legal sufficiency which is before us on this appeal and the factual determinations in the cases upon which the comparison is made. Having read the trial court’s opinion in this case, dated January 28, 1982, and having reviewed the trial transcript, I have found nothing which would lead me to conclude that the trial judge did anything more than consider the legal sufficiency of the Commonwealth’s evidence. The majority does not assist me in my search for some justification for its conclusion inasmuch as the action of the trial judge in the instant appeal is, inexplicably, not discussed in the majority opinion.

Equally disturbing is the bare assertion by the majority that a reversal of the trial court would necessitate “a second trial” and/or “further proceedings.” Clearly, there is nothing in the record to support a conclusion by this court that a second trial would be necessary, were we to reverse. If this court is suggesting that mere passage of time necessarily dictates that the trial be begun all over again, assuming reversal and following remand, I feel that such an assertion should properly be accompanied by whatever reasoning there may be to support such an assertion. Apart from the fact that the record does not contain any evidence that a second trial would be mandatory, a midtrial appeal does not even raise that issue. I am loathe to assume that our trial courts are unable to resolve such an issue, if and when it might properly be presented to them.

In footnote 1, (Maj. op., at 311), the majority disapproves of the trial court’s stay of the remaining charges, pending resolution of this appeal. However, absent authority against the utilization of such a procedure under the instant circumstances, I fail to understand how the majority can hold that retrial should be required on the charges where the demurrers were sustained, in light of the fact that the charges were not dismissed and where the remaining charges were stayed. It would seem that the majority is making a determination on a factual situation that is not before us, namely, where charges have been dismissed pursuant to a demurrer and trial terminated. As that factual situation is not before us, this court cannot then attempt to mold the facts by “disapproving” of a procedure in order to justify a ruling on a set of facts to which its ruling would apply.

The procedural posture of the instant case reveals that no danger of a second trial is present if the Commonwealth is permitted to appeal the instant orders. The trial court merely sustained appellees’ demurrers to the charges. No dismissal of these charges nor discharge of appellees as to these counts occurred. In fact, the remaining charges concerning the Chances R fire were stayed, pending the resolution of this appeal.

It is not the purpose of this court to speculate on what will or might occur upon the return of this case to the trial court, absent clear authority. We cannot and should not speculate as to what the trial judge or the parties may do in such a situation. The extent of the majority’s holding, then, is improper, in my view, as reaching issues not cognizable on this appeal.

As a matter of policy, we should restrict our rulings to the factual and procedural posture of the case as presented to the court. The instant appeal does not entail the threat of retrial because the charges appealed from were not dismissed and the remaining charges stayed. Hence, in my view, the majority’s attempt to apply double jeopardy principles to the instant facts is misplaced, as is any attempt to bootstrap such an application by implying that either the procedure in the instant case was inappropriate, or that future proceedings in this case implicate double jeopardy.

I take no position as to whether the instant appeals would be barred by double jeopardy if retrial were required. However, as retrial is not involved instantly, I cannot concede that the appeals must be quashed in light of the voluminous authority permitting Commonwealth appeals from midtrial orders sustaining demurrers, when the trial court’s ruling properly applied the test long established for such a ruling. See e.g. Commonwealth v. Wimberly, supra; Commonwealth v. Lewis, 299 Pa.Super. 367, 445 A.2d 798 (1982); Commonwealth v. Wydo, 205 Pa.Super. 62, 208 A.2d 12 (1965).

My conclusion that the appeals are not barred by double jeopardy requires me to reach the merits of the appeal.

Upon review of the record and arguments from all parties, I find ample support for the trial court’s conclusion that the evidence presented by the Commonwealth was legally insufficient to support a conviction on the charges of homicide, causing a catastrophe and voluntary manslaughter. I would therefore affirm the order of the trial court sustaining the demurrers to these charges, and remand with a procedendo.

      . Trial on the remaining charges of involuntary manslaughter, recklessly endangering, failing to prevent a catastrophe, and theft by deception, was continued and held in abeyance to permit the Commonwealth to appeal the order sustaining demurrers to the charges of murder, voluntary manslaughter and causing a catastrophe. This procedure is not recommended. After a criminal trial has been commenced, it should not be delayed by piecemeal appeals from orders which do not terminate the proceedings finally. Because we conclude that the Commonwealth in any event has no right of appeal from a mid-trial determination that the evidence is insufficient to sustain a conviction, we do not decide whether the court’s order in this case was interlocutory or sufficiently final to permit appeal.

      . The trial court granted a Commonwealth petition for reconsideration, but after reconsidering, the court confirmed its prior order sustaining the demurrers. The Commonwealth filed a second appeal from this order.

      . This rule has no application to cases where a trial judge has terminated a criminal proceeding favorably to the defendant on a basis not related to factual guilt or innocence (United States v. Scott, supra) or where a retrial has been granted at the instance of the defendant because a court found a verdict of guilty contrary to the weight of the evidence (Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)).

      . Our holding will increase the responsibility vested in trial courts. It should encourage trial judges to exercise even greater care and caution in sustaining defense demurrers to the evidence.

      . The decision in United States v. Jenkins was overruled on other grounds in United States v. Scott, supra, holding that the government has a right of appeal from pre-verdict orders entered pursuant to defense motions for dismissal of charges unrelated to "factual guilt or innocence.” See: Lee v. United States, 432 U.S. 23, 29-30 & n.7, 97 S.Ct. 2141, 2145 & n.7, 53 L.Ed.2d 80, 86-87 & n.7 (1977).


author:
POPOVICH, Judge:
      WIEAND, Judge,

text:
    480 A.2d 1056
    Wilda FANNIN v. Ward CRATTY and Rachel Cratty, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1984.
    Filed June 29, 1984.

      James E. Kerr, Butler, for appellants.
    William C. Robinson, Butler, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by appellants, Ward and Rachel Cratty, from a judgment which was entered in favor of appellee, Wilda Fannin, after a trial involving an auction sale of the Cratty’s house. We affirm.

On Tuesday, June 30, 1981, Wilda Fannin attended the auction of a house owned by appellants and successfully outbid all competing entrants. The property was “knocked down” to her at a price of $45,500, and she immediately posted a 10 per cent downpayment in accordance with the terms of the sale. Prior to the auction, appellee had inspected the house in the company of Blanche E. Miller, attorney-in-fact for and a representative of appellants. During Fannin’s inspection, personal belongings were in the process of being removed from the house. Boxes of assorted paraphernalia were positioned temporarily in a manner which obstructed the view of a deteriorating basement wall.

On Saturday, July 4, 1981, appellee reappeared at appellants’ property and commenced a further tour, accompanied by her insurance agent. At this time, the basement was vacant. Sometime after that visit, appellee demanded the return of her $4,550. Appellee’s insurance agent testified at trial that he refused to insure the property at that time because of the hazard posed by the collapsing basement wall.

After appellee’s request was denied, she commenced suit on July 23, 1981, seeking the return of her downpayment. Appellants filed a counterclaim alleging damages in the amount of $6,500, which represented the difference between the bid price of $45,500 and $39,000, the price subsequently offered to them by a third party. A jury trial commenced on May 19, 1983, which resulted in a verdict for appellee in the amount of $3,500 and against appellants’ counterclaim. Post trial motions were filed and denied. Judgment was entered, and this appeal followed.

Appellants present two issues for our consideration. First, they argue that the trial court erred in instructing the jury on the applicability of the Statute of Frands. They contend that, notwithstanding the oral nature of the contract, either party may seek damages incurred as a result of the other’s breach. Since they claim that appellee breached the oral agreement, they seek damages equal to the loss of their bargain.

Second, appellants argue that the trial court erred in submitting to the jury the question of whether the condition of the defective basement wall was a latent defect. According to appellants, this legal question was an issue to be resolved by the trial court.

Turning to the applicable legal standard which governs the instant case, we recognize that this Court will not reverse the trial court’s order “ ‘absent an abuse of discretion or error of law which controlled the outcome of the case.’ ” Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 521, 229 A.2d 861, 862 (1967); see also, McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 450 A.2d 991 (1982), Litman v. Peoples Natural Gas Co., 303 Pa.Super. 345, 449 A.2d 720 (1982). Moreover, in reviewing the verdict, we must view the evidence in a light most favorable to the verdict winner, the appellee. Our sole duty is to decide where there was sufficient evidence to sustain the verdict. McDevitt v. Terminal Warehouse Co., supra. With the foregoing principles in mind, we must affirm.

To begin with, the Statute of Frauds provides in effect that no agreement for the sale of real estate will be enforced unless it is in writing and signed by the party to be charged. Its fundamental purpose is to prevent assertions of verbal understandings and thus to obviate the opportunity for fraud and perjury. Brotman v. Brotman, 353 Pa. 570, 46 A.2d 175 (1946); Manley v. Manley, 238 Pa.Super. 296, 357 A.2d 641 (1976).

Appellants contend that the Statute of Frauds has no application to the instant case because the relief sought is monetary damages, rather than the alternative equitable remedy of specific performance. Appellants correctly point out that we have held that liability will be imposed for breach of an oral agreement in an action for monetary damages notwithstanding the fact that the Statute of Frauds rendered the oral agreement unenforceable in an action for specific performance. Polka v. May, 383 Pa. 80, 118 A.2d 154 (1955); Weir v. Rahon, 279 Pa.Super. 508, 421 A.2d 315 (1980). However, in order to accept appellants’ contention, the record must establish first that a breach by the buyer has occurred. In view of the jury’s verdict in favor of appellee, the buyer, we may infer that the buyer did not breach the contract, and that she was entitled to rescind the oral agreement because of the existence of the latent defect. See Adams v. Euliano, 299 Pa.Super. 348, 445 A.2d 788 (1982), Shane v. Hoffmann, 227 Pa.Super. 176, 324 A.2d 532 (1974).

In reaching this conclusion, we must set forth the following guidelines:

The Statute of Frauds does not void those oral contracts relating to land which fail to comply with the Statute’s formal requirements. Zlotziver v. Zlotziver, 355 Pa. 299, 49 A.2d 779 (1946). It is to be used as a shield and not as a sword, as it was designed to prevent frauds, not to encourage them. Gerlock v. Gabel, 380 Pa. 471, 112 A.2d 78 (1955).

In the case of a breach of a valid oral contract by a buyer, the Statute of Frauds cannot be employed to recover a downpayment voluntarily made, in the absence of nothing more. Roberts v. Roesch, 306 Pa. 435, 159 A. 870 (1932). Similarly, in the case of a breach by the seller, the Statute has been construed as allowing damages to the buyer of “the money that was paid on account of the purchase”. Polka v. May, supra, 383 Pa. 84, 118 A.2d 156. Moreover, either party who is injured as a consequence of the other party’s breach may recover “the expenses incurred on the faith of the contract.” Polka v. May, supra, 383 Pa. 84, 118 A.2d 156; Weir v. Rahon, 279 Pa.Super. 508, 421 A.2d 315 (1980).

The ease of Weir v. Rahon, supra, is illustrative. In Weir, plaintiffs-appellees entered into an oral contract to purchase a parcel of land in a development owned by defendant-appellant, Elsie Rahon. Appellees believed that the property wag owned by appellant and her sister. In reality, the property was owned by appellant and her husband as tenants by the entireties. Plaintiffs then entered into a real estate listing agreement with a real estate agency. Elsie Rahon signed the listing agreement as the real estate agent. The written agreement provided that the sale of appellees’ house would be contingent upon their purchase of the parcel of land. The appellees had planned on building a house on the land. Rahon’s agency located a willing buyer. The closing for the Weir’s property occurred on December 2, 1978.

Rahon told the Weirs that she preferred to delay the closing on the vacant lot until after the first of the year for income tax purposes. On January 2, 1978, Rahon mailed an agreement of sale to the Weirs which provided for two installments, $2,000 to be paid before the closing and $10,-000 to be paid upon delivery of the deed. The Rahons however did not sign the agreement.

On February 17, 1978, appellees mailed Elsie Rahon $2,000. Three days later, Rahon returned the check to the Weirs stating that she would not sell the property because the Weirs failed to comply with certain time deadlines set forth in the agreement. Plaintiffs filed a complaint in equity seeking specific performance and such other relief as the court deemed appropriate. Appellants raised the statute of frauds as a defense. The trial court denied appellee’s request for specific performance but scheduled another hearing to determine if monetary damages should be granted.

At the second hearing, appellees presented evidence of their expenses which had been incurred after they had entered into the oral contract to sell: (1) $35.00 for digging a septic tank; (2) $40.00 to a Board of Supervisors for a septic tank test; and (3) $2,250.00 for renting a cabin for ten months from December, 1977. Appellees stated that if the sale of the parcel of the land had been completed, they only would have rented the cabin for six months during which time their house was being built. Appellants also stated that they had spent $4,100 for the real estate commission. The trial court entered a verdict in favor of appellees for all the costs incurred except the cabin expenses which the court limited to an amount covering four months.

On appeal, w.e said the following:

“ ‘It is ... elementary that, because of the provisions of the statute of frauds, an agreement for the sale of land cannot be specifically enforced unless in writing signed by the parties to be charged or their agents thereunto lawfully authorized by writing____’ Polka v. May, 383 Pa. 80, 82, 118 A.2d 154, 155 (1955). Our statute of frauds, however, has been construed as permitting recovery of damages for breach of an oral agreement to sell land. See, e.g., Polka v. May, supra; Hertzog v. Hertzog’s Administrator, 34 Pa. 418 (1859); Immel v. Herb, 43 Pa.Super. 111 (1910); Stephens v. Barnes, 30 Pa.Super. 127 (1906); Swayne v. Swayne, 19 Pa.Super. 160 (1902). Generally, the measure of damages in such a case is ‘the money that was paid on account of the purchase and the expenses incurred on the faith of the contract.’ Polka v. May, supra, 383 Pa. at 84, 118 A.2d at 156. See also Corace v. Balint, 418 Pa. 262, 210 A.2d 882 (1955); McCafferty v. Griswold, 99 Pa. 270 (1881); Meason v. Kaine, 67 Pa. 126 (1870). Where the oral agreement has been obtained by fraud, however, the buyer ‘may recover as damages the loss of his bargain ____’ Seidlek v. Bradley, 293 Pa. 379, 383, 142 A. 914, 915 (1928). Such fraud ‘must be actual fraud that reaches back to the original contract.’ Id., 293 Pa. at 382, 142 A. at 915. See also Rineer v. Collins, 156 Pa. 342, 352, 27 A. 28 (1893) (‘According to all authorities, the fraud necessary to entitle the vendee to recover must be such as inheres in the original agreement. A subsequent fraudulent purpose is not enough.’).”

Weir v. Rahon, supra, 279 Pa.Superior Ct. 512-513, 421 A.2d at 317.

In Weir, we held that the buyers did not prove that Elsie Rahon committed fraud at the inception of the contract. Although this Court conceded that Elsie Rahon failed to tell the buyers that her husband jointly owned the property, we said the following:

“There was no evidence, however, that Elsie Rahon intended to mislead plaintiffs. Moreover, there was no evidence that Elsie Rahon planned at that time not to sell the property to plaintiffs. Her later refusal to sell the property to plaintiffs is insufficient to prove fraud at the time the contract was entered into. See Rineer v. Collins, supra. Consequently, because there was no fraud in this case and Elsie Rahon returned the $2,000.00 paid by plaintiffs, plaintiffs are entitled only to damages for ‘the expenses incurred on the faith of the contract. Polka v. May, supra. Id. (Emphasis added)

The appellants did not dispute the propriety of that aspect of the jury’s verdict which awarded damages for the costs incurred in connection with the septic tank. With respect to the other expenses, this Court concluded that appellees could recover the real estate commission since “the plaintiffs paid the real estate commission on the faith of their own oral contract.” Id.

This Court modified the award of $900 for the rental of the cabin and said that because the rental expense was incurred after the appellees learned of the breach, no damages would be awarded for that purpose.

Thus, a fair reading of the case law reveals that the measure of damages appropriate in an action for breach of an oral agreement to sell land is to restore the seller to the status quo which existed at the time that the parties entered into the agreement. A party may be compensated for the loss of a bargain only where the agreement was obtained by fraud. In this case, the record is devoid of any evidence which would support a conclusion that the appellee breached the contract or otherwise secured the contract through the use of fraud.

However, even assuming that appellee breached an oral contract, to award appellants damages representing the difference between the bid price and the price obtained in a later sale to a third party would be to compensate appellants for the loss of their bargain. Such an award would be tantamount to enforcing a contract which is otherwise unenforceable under the Statute of Frauds. This we will not do.

Under this line of reasoning, we agree with the trial court which denied appellants’ counterclaim and granted appellee’s claim for the return of her downpayment.

Appellants also contend that the trial court erred in submitting the question of the existence of a latent defect to the jury with respect to the deteriorating wall. We reject this contention.

We recognize that where the evidence alone would justify an inference of the disputed fact, the issue must be submitted to the jury, no matter how strong or pervasive may be the countervailing evidence. Hawthorne v. Dravo Corp., 313 Pa.Super. 436, 460 A.2d 266 (1983), Heffernan v. Rosser, 419 Pa. 550, 215 A.2d 655 (1966). At trial, conflicting testimony was presented concerning the time and frequency of appellee’s inspection of the property, the exact time when the deteriorating wall became evident, and the degree to which the basement was illuminated. Accordingly, we will not disturb the trial court’s resolution of the issue.

Judgment is affirmed.

WIEAND, J., filed a dissenting opinion.

WIEAND, Judge,

dissenting:

Wilda Fannin was the successful bidder at a public sale of improved real estate owned by Ward and Rachel Cratty. After the property had been “knocked down” to Ms. Fannin for $45,500.00, she. made a deposit of ten (10%) of the purchase price in accordance with the conditions of sale. Less than a week later, she demanded a return of her deposit; and when her demand was refused, she commenced an action in assumpsit to recover the deposit. The sellers filed a counterclaim for the difference between Ms. Fannin’s bid price of $45,500.00 and the price of $39,000.00 which they were able to obtain upon a resale after the original buyer persisted in her refusal to take title and pay the balance of the purchase price.

At trial, the evidence showed that after the real estate had been “knocked down” to Ms. Fannin, she signed an agreement as follows:

The evidence did not establish, however, that the person signing on behalf of the sellers had been authorized in writing to sign the agreement on their behalf.

The trial court instructed the jury which heard the evidence that the buyer could recover her deposit on any one of three possible theories. The first theory presented to the jury was that the buyer, by making a bid, had merely offered to purchase the real estate and that her offer had been withdrawn prior to acceptance by the sellers. The second theory on which recovery could be based was that the sellers had committed a fraud by concealing latent defects in the foundation of the dwelling house. The third theory on which recovery could be effected, the court said, was that the writings evidencing the agreement of the parties failed to satisfy the requirements of the statute of frauds. Thus, the court told the jury “... the third contention of the plaintiff is that the statute of frauds was not completely [sic] within this particular transaction, it being a sale of real estate, and, therefore, since it was not complied with the plaintiff is entitled to receive back the money paid down after the bid at auction.” The court also told the jury that an agreement for the sale of real estate, to comply with the statute of frauds, had to be signed by both buyer and seller. The necessary implication of these instructions was that the buyer should be permitted to recover her down payment and the sellers’ counterclaim should be disallowed unless an agreement had been signed not only by the buyer but also by the sellers or their agent duly authorized in writing. The jury returned a verdict which reimbursed the buyer for part of her down payment, i.e., $3,500.00, and denied recovery on the sellers’ counterclaim. Post-trial motions were denied, and judgment was entered on the verdict of the jury. The sellers appealed.

The sole issue on appeal is defined in appellants’ “Statement of Question Involved” as follows: “Whether the court below erred in instructing the jury that the provisions of the statute of frauds must be complied with where the causes of action pled were for damages incurred as a result of breach of an agreement to sell/buy real property?” Appellants argued orally and in their brief that the trial court’s jury instructions had been incorrect, and had erroneously applied the statute of frauds to the causes of both plaintiff and defendants. This requires that we review the correctness of the trial court’s jury instructions as they pertained to the statute of frauds. Our duty to review the court’s instructions is not curtailed, as the majority contends, by the fact that in preparing their brief the appellants, in compliance with Pa.R.App.P. 2119(a), placed only an abbreviated form of the “question involved” at the head of their argument.

My review of the trial court’s instructions to the jury regarding the statute of frauds discloses that the trial court fell into serious error which requires that a new trial be granted. The statute of frauds is an affirmative defense which limits judicial authority to afford a remedy. Haskell v. Heathcote, 363 Pa. 184, 188, 69 A.2d 71, 73 (1949). It does not render void those contracts relating to land which are oral or fail to comply with the statute’s formal requirements. Zlotziver v. Zlotziver, 355 Pa. 299, 302, 49 A.2d 779, 781 (1946); Allison v. Montgomery, 107 Pa. 455, 460 (1884); Bethlehem Steel Corp. v. Tri State Industries, Inc., 290 Pa.Super. 461, 467, 434 A.2d 1236, 1239 (1981). The purpose of the statute of frauds is to protect landowners and guard them against perjuries in support of alleged oral agreements to convey. Williams v. Moodhard, 341 Pa. 273, 280, 19 A.2d 101, 104 (1941); Sferra v. Urling, 328 Pa. 161, 168, 195 A. 422, 426 (1937); Brodhead v. Reinbold, 200 Pa. 618, 623, 50 A. 229, 230-231 (1901); Tripp v. Bishop, 56 Pa. 424, 429 (1867). The statute of frauds has been designed to prevent frauds, not to encourage them. Gerlock v. Gabel, 380 Pa. 471, 477, 112 A.2d 78, 81 (1955); Haskell v. Heathcote, supra; Haines v. Minnock Construction Co., 289 Pa.Super. 209, 216, 433 A.2d 30, 33 (1981); Lehner v. Montgomery, 180 Pa.Super. 493, 500, 119 A.2d 626, 630 (1956). In Simplex Precast Industries, Inc. v. Biehl, 395 Pa. 105, 149 A.2d 121 (1959), Justice Musmanno stated:

Id., 395 Pa. at 108-109, 149 A.2d at 123. In the same vein, Professor Corbin has said that the purpose of the statute of frauds is “the prevention of successful fraud by inducing the enforcement of contracts that were never in fact made. It is not to prevent the performance or the enforcement of oral contracts that have in fact been made; it is not to create a loophole of escape for dishonest repudiators. ” 2 Corbin on Contracts § 498, pp. 680-681 (1950) (emphasis added).

The law is eminently clear that the statute of frauds cannot be used to support a cause of action to recover a down payment voluntarily made pursuant to a valid oral contract to purchase land. Roberts v. Roesch, 306 Pa. 435, 440, 159 A. 870, 871 (1932). See also: Brunetto v. Ferrara, 167 Pa.Super. 568, 571, 76 A.2d 448, 450 (1950).

In the instant case, appellee voluntarily made a deposit or down payment and signed an agreement to purchase real estate. Even if the agreement failed to meet the formal requirements of the statute of frauds, appellee was not entitled to use the statute of frauds as a sword to recover the down payment thus made. When the trial court instructed the jury otherwise, it fell into error.

The trial court told the jury that the appellee-buyer could recover her down payment on any one of three, separate theories. The jury did not answer special interrogatories but returned a general verdict. Thus, there is no way in which a reviewing court can ascertain whether or not the jury’s verdict was based on the erroneous instruction that recovery could be based on a failure to achieve full compliance with the formal requirements of the statute of frauds. Consequently, a new trial is necessary. Rivera v. The Philadelphia Theological Seminary of St. Charles Borromeo, Inc., 326 Pa.Super. 509, 522-523, 474 A.2d 605, 612 (1984). See also: Fama v. Smith, 303 Pa.Super. 414, 416, 449 A.2d 755, 756 (1982).

The trial court’s instructions were also incorrect as they pertained to the applicability of the statute of frauds to the sellers’ counterclaim. The statute of frauds is found in the Act of March 21, 1772, 1 Sm.L. 389, § 1, 33 P.S. § 1. It does not require a written agreement of sale signed by both parties. The statute requires, rather, that the writing be signed by “the parties so making or creating [the interest in real estate] or their agents, thereunto lawfully authorized by writing.” Id. See: DiBenedetto v. DiRocco, 372 Pa. 302, 305, 93 A.2d 474, 475 (1953); Stevenson v. Titus, 332 Pa. 100, 105, 2 A. 2d 853, 856 (1938); Stephens v. Carrara, 265 Pa.Super. 102, 107, 401 A.2d 821, 823-824 (1979). The purpose of the statute of frauds is to prevent the perpetration of fraud where the owner of real estate has not actually made a conveyance or agreement to sell. Lehner v. Montgomery, 180 Pa.Super. 493, 500, 119 A.2d 626, 630 (1956).

A review of the evidence and pleadings in this case discloses that the buyer admitted making a bid of $45,-500.00. She contended, however, that her admitted bid constituted merely an offer which could be withdrawn before it was accepted. Moreover and in any event, she contended, the sellers had fraudulently concealed the deteriorating condition of “the substructure and foundation of the house.” The appellant sellers similarly admitted the authority of their agent to sell. They argued the existence of a written agreement signed by the buyer and a wrongful failure by the buyer to perform her agreement.

Competent evidence of the foregoing facts was produced and submitted to the jury. If the jury found that appellee’s bid was merely an offer which had been withdrawn prior to acceptance, appellee was entitled to recover her deposit. In that event, there was no agreement, and appellee could have no liability to the sellers. If there was an agreement, appellee could avoid the agreement if the sellers had fraudulently concealed the deteriorated condition of the building. The agreement was not subject to avoidance, however, merely because the auctioneer’s authority to sell had not been evidenced by a prior written agreement signed by the sellers. The sellers, who are the parties intended to be protected by the statute of frauds, have admitted the authority of the auctioneer. The buyer personally signed the agreement of sale. Under these circumstances, the statute of frauds could not be used by the buyer to repudiate a valid agreement which she had executed for the purchase of real estate.

If the agreement for the sale of real estate was legally and properly signed by the buyer but not by the seller, the seller was entitled to enforce the agreement against the buyer even though the statute of frauds may have prevented the buyer from specifically enforcing the contract against the seller. Restatement of Contracts § 372(1) and Illustration 5, now incorporated into Restatement (Second) of Contracts § 363, comment c. See: Driebe v. Fort Penn Realty Co., 331 Pa. 314, 319-320, 200 A. 62, 64-65 (1938); Guzzi v. Czaja, 163 Pa.Super. 597, 600, 63 A.2d. 426, 428 (1949). See also: Erkess v. Eisenthal, 354 Pa. 161, 47 A.2d 154 (1946); 5A Corbin on Contracts §§ 1190, 1192. “Mutuality of obligation is one thing and mutuality of remedy another.” Driebe v. Fort Penn Realty Co., supra, 331 Pa. at 319, 200 A. at 64. Mutuality of obligation is essential to the existence of a contract. A valid contract, however, cannot be avoided merely because the remedies available to the parties are not identical. A contract for the purchase of real estate which fails to comply with the formal requirements of the statute of frauds is a valid contract. In such a contract the obligations of the parties are mutual. The statute of frauds has an effect only on the remedies available to the parties. The law does not require that those remedies be precisely the same for each party.

To summarize, the correctness of the trial court’s jury instructions pertaining to the statute of frauds was properly preserved for appellate review and requires consideration by this court. Those jury instructions, in my opinion, were egregiously in error. Therefore, I would reverse and remand for a new trial. The majority, believing the verdict proper despite erroneous jury instructions concerning the statute of frauds, would affirm. Because the majority, in my judgment, has established bad precedent and has failed to apply the law correctly to the present litigation, I must respectfully dissent.

      . Rachel Cratty is now deceased.

      . Section 1 of the Act of March 21, 1772, 1 Sm.L. 389, 33 P.S.Sec. 1.

      . Contrary to the position reflected in the dissent, appellants do not raise an issue regarding the jury’s verdict to return the hand money to the buyer nor do they claim that the Statute of Frauds was explained incorrectly. Appellants raise only one issue. They claim that "THE STATUTE OF FRAUDS DOES NOT PRECLUDE A SUIT FOR DAMAGES WHERE THE SUCCESSFUL BIDDER AT AUCTION BREACHES AN ORAL AGREEMENT TO PURCHASE REAL PROPERTY.” (Brief for Appellants at 10) (Emphasis added). Thus, they simply assert their claim to damages equal to the difference between the bid price and the proposed sale price, a claim which they argue is not precluded by the Statute of Frauds. It is this issue to which we direct our review.

      . "... it is universally held that sales by auction are within the provisions of the Statute of Frauds to the same extent as any other sale ... relating to land.” Polka v. May, 383 Pa. 80, 83, 118 A.2d 154, 156 (1955).

      . The dissent agrees with appellants and presupposes the existence of a breach by the buyer of a valid oral contract and characterizes the outcome as one where the buyer is given the opportunity to use the Statute of Frauds as a sword. In the instant case, the jury was informed of the three contentions of appellee and the alternative theories of appellants. The judge never implied which was the correct theory but instead apprised the jury of the formal requirements of the Statute of Frauds and the effect of the nondisclosure of a latent defect so that the jury could employ such legal precepts as tools with which to form their verdict, thereby choosing the legally acceptable theory. The judge informed the jury:
      “When there exists in the property, which is the subject of a sale — this is to help you in determining some of these things that you must determine — latent defects or hidden conditions not discoverable on a reasonable examination of the property, the seller, if he has knowledge thereof, is bound to disclose such latent defects or conditions to the buyer, and his failure to do so may be made the basis of charge of fraud, or a basis to rescind the contract. If the condition is readily ascertainable upon a reasonable examination, then the seller is not under a duty to disclose.” (T-145)
      In light of the jury’s findings, the buyer was permitted to avoid the purchase on the basis of the existence of a latent defect. See infra at 5.

      . Appellants’ reliance on Harris v. Dawson, 479 Pa. 463, 388 A.2d 748 (1978) is misplaced as that case involved a written contract for the sale of real estate.
      We note that there is also some question as to whether appellants could successfully prove a direct causal relationship between appellee’s action in rescinding the agreement and the drop in appellants’ sale price.

      . It should be noted that appellee herein was able to avoid the contract through appellants’ fraudulent concealment of a latent defeet. We do not decide whether she could have recovered damages for her loss of the bargain. See, Seidlek v. Bradley, supra.

      . This issue is omitted from appellants’ Statement of Questions Involved. Although normally no point is to be considered which is not set forth, because the issue was raised below, addressed by the lower court and covered at length in appellants’ brief, in the interests of fairness we will dispose of the issue. See Pa.R.A.P. 2116, In Re Davis, 288 Pa.Super. 453, 432 A.2d 600 (1981), Commonwealth v. Jones, 256 Pa.Super. 366, 389 A.2d 1167 (1978).

      . The dissent further asserts that because the jury was instructed that the buyer and seller both must sign an agreement to satisfy the Statute of Frauds, the jury was misled into finding that there was no written contract. On appeal, neither party asserts the existence of a written contract. Thus, the dissent reaches an issue which was not raised by the parties and which has therefore been waived. It should also be noted that the auctioneer’s signature on the Buyer’s Agreement was inserted by his wife.

      . The record does not disclose that the sale was “without reserve.” See: Brereton Estate, 355 Pa. 45, 57, 48 A.2d 868, 873 (1946); Restatement (Second) Contracts § 28(1).

      . This is illustrated by the argument appearing on page 14 of the appellant’s brief that ”[t]he injection of the statute of frauds into the trial of the case, which did not control either the Plaintiffs or the Defendants’ case, was reversible error and a new trial is the only remedy.”

      . The majority’s argument to the contrary appears in footnote 3. (At p. 330).

      . Inasmuch as the sole issue on appeal is the correctness of the trial court’s instructions regarding the statute of frauds, I find it neither helpful nor appropriate to hold, as the majority does, that it "will not disturb the trial court's resolution of the issue” of a latent defect in the basement wall. (At p. 337). Because the issue is not which party should ultimately prevail, I find it also inappropriate to suggest, as the majority does, that it ”agree[s] with the trial court which denied appellant’s counterclaim and granted appellee’s claim for the return of her down payment” (At p. 337) and that "the record is devoid of any evidence which would support a conclusion that the appellee breached the contract or otherwise secured the contract through the use of fraud.” (At p. 336).

      . The failure to make the distinction between mutuality of obligation and mutuality of remedy is evident in Burg v. Betty Gay of Washington, Inc., 423 Pa. 485, 225 A.2d 85 (1966). Lack of authority to contract destroys the mutuality of the parties’ obligations. That situation must be distinguished from the situation where authority exists but has not been put in writing as required by the statute of frauds. Such a contract is valid; only the remedies are limited by the statute of frauds. The contract is not invalidated merely because the remedies of the parties are not mutual.