author: TAMILIA, Judge: POPOVICH, Judge,

text:
    575 A.2d 620
    COMMONWEALTH of Pennsylvania v. Jorge ECHEVARRIA, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 6, 1990.
    Filed May 24, 1990.
    See also, 393 Pa.Super. 320, 574 A.2d 631.

      Arthur T. McDermott, Carlisle, for appellant.
    Syndi L. Norris, Asst. Dist. Atty., Carlisle, for Com., appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

Appellant Jorge Echevarria appeals judgment of sentence entered August 15, 1989. After a jury trial, appellant was found guilty of unlawful possession with intent to deliver a Schedule II. controlled substance, cocaine, and unlawful possession of drug paraphernalia. The facts which gave rise to this case may be summarized as follows.

On September 22, 1988, police executed a search warrant at 149 North Bedford Street in Carlisle, Pennsylvania, appellant’s residence. As a result of the search, the police seized 95.24 grams of cocaine laced with inositol, as well as various drug paraphernalia and records detailing drug transactions. The basis for the search warrant was a confidential informant whom appellant knew personally, and who conducted two controlled purchases of cocaine from appellant on behalf of the police on September 14, 1988 and September 20, 1988.

Appellant was taken to the Carlisle police station after the search of his residence, where he waived his Miranda rights and volunteered to arrange a cocaine purchase for police from a dealer in Philadelphia. The police accepted this offer, and upon being given his telephone book, appellant made three telephone calls to a Philadelphia number listed in his book, which he consented to permit the police to record. These conversations resulted in appellant negotiating to purchase two kilos of cocaine for $36,000. Philadelphia police subsequently arrested the seller and seized 1636.85 grams of cocaine.

On appeal, appellant first argues the search warrant was invalid as based on insufficient evidence to establish probable cause.

In determining probable cause, Pennsylvania has adopted the “totality of the circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and followed in Commonwealth v. Gray 509 Pa. 476, 503 A.2d 921 (1985). The test now utilized for analyzing warrants is as follows:
The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding] that probable cause existed.”
Commonwealth v. Melilli, 521 Pa. 405, 419, 555 A.2d 1254, 1261 (1989) (citation omitted), quoting Gates, supra at 237-38, 103 S.Ct. at 2332.

Commonwealth v. Karns, 389 Pa.Super. 58, 60, 566 A.2d 615, 616 (1989).

Applying the above standard to the instant case, we find the affidavit established probable cause for the issuance of the search warrant.

The police informant on two prior occasions, just before the issuance of the search warrant, had made controlled purchases of cocaine from appellant, and on both occasions Detective Michael F. Strine was the control officer who was present and received the drugs from the informant. Detective Strine referred specifically to the two prior purchases in his affidavit of probable cause. While appellant w;ould have the affidavit set forth various other specific facts, we find the affidavit as presented allowed the issuing magistrate to conclude there was a fair probability cocaine would be found at appellant’s residence. We find the magistrate had a substantial basis for concluding probable cause existed, and this claim is therefore without merit.

Appellant next argues the state police criminologist who testified at trial was not competent to testify as an expert witness in the area of identification of controlled substances.

The qualification of expert testimony lies within the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion. Further, such expert testimony may be based on knowledge acquired through practical experience rather than academic training. Commonwealth v. Ellis, 354 Pa.Super. 11, 510 A.2d 1253 (1986).

In light of the above standard, we cite with approval the Opinion of the trial court, and find this claim by appellant without merit.

The Pennsylvania State Police criminologist who identified at trial the substances obtained by the informant, the substances seized at defendant’s residence on September 22nd, and the substances seized by the Philadelphia detectives, as cocaine, had a college degree in biology with a minor in chemistry. She subsequently received further training in the identification of illegal drugs and substances at both the Pennsylvania State Police laboratory and at a seminar conducted by the Federal Drug Enforcement Agency. She had performed drug analysis duties at the Pennsylvania State Police laboratory for two years, during which time she performed between five hundred and one thousand tests on substances suspected to be cocaine. She has been qualified and testified as an expert witness in numerous courts on many occasions.

(Slip Op., Bayley, J., 7/10/89, p. 5.)

Appellant’s next argument is the trial court erred in allowing testimony by Detective Strine regarding the two controlled purchases of cocaine by the informant on September 14 and September 20, 1988, both of which sales Detective Strine monitored personally, as well as appellant’s negotiation to purchase two kilos of cocaine for Philadelphia police after his arrest.

Although evidence of prior bad acts or uncharged crimes is generally inadmissible, exceptions exist to prove motive; intent; absence of mistake or accident; common scheme, plan or design; or to establish the identity of the person charged with the commission of crime on trial. Commonwealth v. Slyman, 334 Pa.Super. 415, 483 A.2d 519 (1984). Nevertheless, even where evidence is within one of the above exceptions its probative value must still outweigh its prejudicial effect. Commonwealth v. Brozik, 364 Pa.Super. 80, 527 A.2d 161 (1987).

Appellant was charged with possession with intent to deliver 95.24 grams of cocaine seized in his home on September 22, 1988. Testimony by Detective Strine that an informant, who had been strip searched by the police and had no contraband on his person and no money except that provided by police, was able to purchase cocaine from appellant on two occasions in the days leading up to appellant’s arrest for a third sale, was directly relevant to the charge of possession with intent to deliver cocaine. This testimony, as well as testimony regarding appellant’s arranged purchase of $36,000 worth of cocaine from his Philadelphia source, was probative of appellant’s status as a cocaine dealer.

Any possible prejudicial effect of the testimony was cured by the court’s instruction to the jury that in considering whether appellant possessed cocaine on September 22, 1988 with intent to deliver, it should consider:

Whether defendant on other occasions had ever sold or delivered such a substance; whether the defendant had any sources of supply for the substance; any voluntary statements you believe defendant made to police regarding controlled substances allegedly found in his possession; and any other evidence presented in this case which you determine is relevant on the issue of whether this defendant possessed a controlled substance, cocaine, with the intent to deliver it.
The defendant is not charged in this case with the alleged controlled sales to the informant on September 14, 1988, and September 20, 1988, and he is not charged nor could he be charged with respect to the arrangements which came in on the testimony that he made by phone after his arrest on the 22nd while acting at the behest of the police in setting up a sale of cocaine in Philadelphia which led to the seizure by detectives in the Philadelphia District Attorney’s Office of what is claimed by the Commonwealth in this case to constitute 1636.85 grams of a Schedule II Controlled Substance, cocaine.
The Commonwealth admitted this evidence from which it asks you to draw an inference that defendant is a cocaine dealer and, therefore, asks you to consider that in determining whether he was on September 22, 1988, in possession of cocaine with intent to deliver it. That’s the charge you must decide.

N.T., 1/27/89, pp. 230-31.

The police promised appellant that his cooperation after arrest would be noted to the sentencing court. Though appellant argues to the contrary, this Court finds no promise by the police, however, that his cooperation would not be used against him at trial. The trial court allowed testimony to this effect, but instructed the jury that they had to be satisfied appellant’s conduct and statements to the police were voluntary before considering them as evidence against him (N.T. 1/27/89, pp. 231-34).

The dissent strongly urges that a promise by the police to advise the court at sentencing of appellant’s cooperation in securing a purchase, implied that the procurement of a sale by appellant should not be used against him at trial to aid in making out a case that he was a dealer. The dissent would find the cooperation had probative value favorable to the Commonwealth, in relation to appellant’s drug dealing charges and in justice should not be used against him during trial. We disagree. The drug enterprise is manned by the most ruthless, sociopathic and destructive persons in our society. They extract a toll in human lives and diminish the quality of life for all of us. It is unquestionable that to save themselves from incarceration drug dealers will cooperate with the police to obtain the best deal possible. It is incontrovertible that a person who, with three phone calls, can secure a purchase of three kilos of cocaine worth $36,000, is established as a major dealer and a “big fish” if not the biggest. Under these circumstances, appellant was convicted of a crime for which he was charged and any consideration for his cooperation was properly given him at the time of sentencing. Unquestionably, he could not have been charged with any of the crimes involved in the cooperation with police. However, the evidence of that cooperation, so long as it was voluntary, is relevant to the ongoing police investigation. If we are to eliminate in every case the details of cooperation of a witness which corroborates his previously charged and independently proven criminal activity, rather than having a “chilling effect” on reaching the “bigger fish,” police will be hampered in landing even the smaller fry. I believe the dissent would tilt the already precarious battle against drug dealers in favor of the dealers. It is between the actor and the police to what extent his cooperation will be a mitigating factor. The police, in cooperation with prosecutors, have an extensive range of procedural and legal avenues, such as recommendations to the sentencing judge, negotiated pleas and grants of immunity to work up the ladder to more important dealers.

We agree with the dissent that if a specific promise not to use the cooperation at trial was established on the record, it would have been error to use it. However, the “inherent” promise, as assumed by the dissent, is substituting a judicial surmise for matters not of record and in the face of the jury’s determination that his actions were voluntary. We should not tread on their domain and we are bound by that determination.

Appellant next argues the Commonwealth failed to disprove beyond a reasonable doubt that the informant did not plant the cocaine in appellant’s house.

In a criminal case, the Commonwealth has the burden of proving each element of the offense beyond a reasonable doubt. Commonwealth v. Lenhart, 520 Pa. 189, 553 A.2d 909 (1989). In the instant case, the trial court instructed the jury to this effect, setting forth each element of the crimes charged, as well as instructing the jury it must be satisfied beyond a reasonable doubt the informant had not planted the cocaine in appellant’s house. As this was a proper charge, the verdict was a question of fact within the province of the fact finder.

Appellant also argues the court erred in failing to give a missing witness instruction to the jury concerning the police informant, although the informant was not called to testify by either party. This claim is without merit, and we again cite with approval the Opinion of the trial court.

When a potential witness is: (1) available to only one of the parties to a trial, and (2), and it appears this witness has special information material to the issue, and (3), the witnesses testimony would not be merely cumulative, then if that party does not present the testimony of the witness, the jury may draw an inference that such testimony, had it been presented, would have been unfavorable to that party. Commonwealth v. Manigault, 501 Pa. 506 [462 A.2d 239] (1983). Defendant maintains that we should have charged the jury on this inference because the informant was available only to the Commonwealth at trial. However, defendant admitted that he knew the informant. His name was testified to at trial. Defendant had hired him to do repair work in his home. Defendant testified that the two transactions prior to September 22nd had involved his loaning the informant money and receiving repayment, not the sale of cocaine. On this record the informant was just as available to defendant as he was to the Commonwealth. When defendant fails to subpoena a witness who is known and available to him, even if that witness has special information material to the issue which would not be cumulative, he is not entitled to the “missing witness” charge.

(Slip op. at 10-11.)

Appellant’s final argument is the trial court erred in admitting the transcript of appellant’s telephone conversation in Spanish with an alleged drug dealer in Philadelphia.

This Court consistently has held only issues specifically raised in post-verdict motions will be preserved for appeal and can be considered, and issues raised for the first time in appellate briefs in support of those issues may not be considered. Hreha v. Benscoter, 381 Pa.Super. 556, 554 A.2d 525 (1989). Our review of the record in this case does not indicate appellant specifically raised the issue of the transcript in his post-verdict motions, and it must now be considered waived on appeal. Our review of the record, however, convinces us the issue is without merit.

Officer William Meneses testified at trial he was fluent in Spanish, he listened to the telephone conversations as they were being made, he identified the tape used to record the conversations, and the English transcript was an accurate description of the entire conversation (N.T., 1/26/89, pp. 20-24). We find the officer’s authentication of the transcript provided the proper foundation for its admission into evidence.

Judgment of sentence affirmed.

Dissenting opinion by POPOVICH, J.

POPOVICH, Judge,

dissenting:

I dissent and would hold that appellant should be granted a new trial.

Instantly, the Commonwealth offered evidence of appellant’s cooperation with the authorities after his arrest on the charge of possession with intent to deliver cocaine as evidence of his guilt. The majority found this evidence probative of appellant’s status as a cocaine dealer. The majority also found that the record is devoid of any evidence which demonstrated a promise by the Commonwealth not to use his cooperation against him at trial. However, such a promise would seem to this jurist to be an inherent and inextricable condition of such an agreement, and my sense of justice is offended by the Commonwealth’s actions.

It is specious to argue that the lack of an affirmative promise not to use a defendant’s subsequent cooperation against him permits its admission as probative evidence of his propensity to commit the crime charged. If such is the case, I must question why a defendant would ever again cooperate with authorities or, for that matter, why a defendant’s counsel would ever advise or permit such cooperation. At a time when we desire to encourage accused drug dealers to assist law enforcement officers in apprehending “bigger fish,” the majority’s decision will no doubt have a “chilling” effect on such cooperation by the accused.

Upon review of the transcripts, it is obvious that a significant portion of the case against appellant was based on his actions as a “special agent” of the Commonwealth after his arrest. The Commonwealth offered, over objection, an audio tape of appellant setting up a controlled buy of $36,000 worth of cocaine for the Commonwealth and the 1636.85 grams of cocaine seized as a result of appellant’s cooperation to prove his status as a drug dealer. The prejudice to the appellant is obvious, and, certainly, any benefit that a defendant’s cooperation yielded at the time of sentencing was more than offset by the extremely prejudicial effect of its admission at trial.

In sum, I would find that the police breached their inherent promise not to use appellant’s actions as an agent of the Commonwealth as evidence against him in the present action. Therefore, in light of the Commonwealth’s actions and the extremely prejudicial effect of the evidence in question, I would award appellant a new trial. Cf., Commonwealth v. Nellom, 388 Pa.Super. 314, 565 A.2d 770 (1989) (trial court’s allowing Commonwealth to impeach defendant’s character witness as to her knowledge of defendant’s robbery conviction, which arose out of same incident that gave rise to charges for which defendant was on trial, was reversible error).

      . 35 Pa.S. § 780-113(a)(30).

      . 35 Pa.S. § 780-113(a)(32).

      . I note that the current charge of possession with intent to deliver was wholly unrelated to the drug purchase arranged by appellant in exchange for which the Commonwealth promised to bring appellant's cooperation to the sentencing court’s attention.

      . While I agree wholeheartedly with the majority that “The drug enterprise is manned by the most ruthless, sociopathic and destructive persons in our society”, and that "They extract a toll in human lives and diminish the quality of life for all of us”, I do not believe that precluding the police from inducing a defendant to commit additional criminal acts and then using the very acts solicited against the defendant "would tilt the already precarious battle against drug dealers in favor of the dealers". Rather, such a rule would simply effect the common and, more importantly, just understanding in this situation, that being your solicited cooperation with law enforcement officers will not be used against you at your trial on charges pending at the time of your assistance.

      . I note that appellant made his decision to aid police without the advice of counsel, and I would surmise that such is the usual situation when a defendant’s aid is solicited by the Commonwealth.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    575 A.2d 626
    James JACKSON Appellant v. PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN and the Travelers Insurance Company v. James MCQUILLAR and Rodney Gardner, Jr. and Verna E. Burke.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1989.
    Filed May 29, 1990.

      T.J. Scully, Philadelphia, for appellant.
    Michael Senoyuit, III, Glen Mills, for Pennsylvania Financial and the Travelers Ins., appellees.
    Before BROSKY, WIEAND and JOHNSON, JJ.
   OPINION

PER CURIAM:

In this action for uninsured motorist benefits, the trial court determined that the vehicle allegedly responsible for the claimant’s injuries was not uninsured and entered summary judgment in favor of the assigned carrier. The claimant has appealed.

James Jackson was injured while riding as a passenger in a vehicle being driven by James McQuillar when it was struck in the rear by a vehicle driven by a third person who identified himself as “Rodney Gardner, Jr.” Jackson filed an action against the Pennsylvania Assigned Claims Plan and Travelers Insurance Company, the designated carrier, for first party and uninsured motorist benefits. Travelers paid first party benefits in the amount of five thousand ($5,000.00) dollars but denied liability for uninsured motorist benefits.

The vehicle being driven by Gardner was traced by registration number to Verna Burke, and she was joined as an additional defendant in the action. She, however, denied that her vehicle had been involved in the accident and asserted further that her vehicle had not been out of her possession at the time of the accident. Her vehicle, moreover, was insured. The parties have agreed that the other vehicle either bore registration number HLH 144 and was owned by Verna Burke, or it was unidentified.

An unidentified vehicle is uninsured if it “causes an accident resulting in injury providing the accident is reported to the police or proper governmental authority and the claimant notifies his insurer within 30 days, or as soon as practicable thereafter, that the claimant ... has a legal action arising out of the accident.” 75 Pa.C.S. § 1702(3).

The trial court determined that the vehicle which struck the McQuillar vehicle was not an uninsured vehicle. If the vehicle was owned by Burke, the vehicle was insured. If it was not a vehicle owned by Burke, the vehicle was unidentified. Because it was admitted that the accident had never been reported to the police, however, the court held that it would not qualify as an uninsured motor vehicle under the statute. Because the language of the statute was clear, the court said, Jackson was not entitled to recover uninsured motorist benefits from the assigned carrier.

Appellant argues that the statute should be applied liberally to permit the recovery of benefits. Therefore, he contends, the statute should be interpreted to require only that drivers of vehicles report to the police accidents involving unidentified vehicles. As such, the statute would have no effect on claims by passengers. This, however, would emasculate the purpose of the statute, for it would make uninsured vehicles of all unidentified vehicles so long as the claimants were not drivers. Such a rule would entail not merely an interpretation of the statute but a rewriting of the statute. The language of the statute is clear. An unidentified vehicle can qualify as an uninsured vehicle only if an accident involving the unidentified vehicle has been reported to the police within thirty (30) days, or as soon thereafter as practical. When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b); Cooke v. Travelers Insurance Company, 350 Pa.Super. 467, 470, 504 A.2d 935, 936 (1986); Mowery v. Prudential Property & Casualty Ins., 369 Pa.Super. 494, 503, 535 A.2d 658, 663 (1988).

Judgment affirmed.

      . Also joined as an additional defendant was Rodney Gardner, Jr., but attempts to effect service on him have been unsuccessful. The address given for such service proved to be non-existent.

      . The purpose of the statute was to prevent fraud and the attempted recovery of benefits in cases where accidents were alleged to have been caused by "phantom” vehicles. See: Ronca, Sloane and Mundy, Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law, § 6.5.


author: TAMILIA, Judge:

text:
    575 A.2d 628
    COMMONWEALTH of Pennsylvania v. Charles Henry GEE, III, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 9, 1990.
    Filed May 24, 1990.

      Charles H. Gee, III, pro se.
    David A. Schroeder, Erie, for appellee.
    Before TAMILIA, HOFFMAN and CERCONE, JJ.
   TAMILIA, Judge:

Appellant Charles Henry Gee, III, brings this appeal from judgment of sentence entered August 17, 1989, after appellant pled guilty to two counts of burglary and one count of criminal conspiracy, and was sentenced a total term of three to six years imprisonment and fifteen years consecutive probation. In addition to the appeal, we have for our consideration a Petition for Leave to Withdraw as Counsel filed by appellant’s counsel, Michael Cauley, which must be decided prior to review of the appeal on its merits.

Mr. Cauley states he has made a review of the record in this case, communicated with his client with respect to issues which might be raised, and now certifies to this Court that an appeal in this case would be frivolous and without arguable merit, and therefore seeks to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

In order to satisfy the requirements of Anders, the following requirements must be met. Counsel must (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or raise any additional points he deems worthy of this Court’s review. Commonwealth v. McFarland, 386 Pa.Super. 91, 562 A.2d 369 (1989).

On January 11, 1990, counsel properly filed a petition with this Court, asserting that he had: communicated with appellant concerning any complaint appellant may have had with the handling of his case; interviewed appellant with respect to the status of his case as well as any issues he would want raised on appeal; reviewed appellant’s responses thoroughly in light of the applicable law and the complete record; and researched all appropriate areas of the law and issues raised. On the basis of the foregoing activity, counsel in his petition further asserted that the instant appeal would be frivolous. Contemporaneously with the filing of his petition to withdraw, counsel also filed with this Court a brief containing any issues in the record which he believed to have arguable merit. He simultaneously furnished appellant with copies of both the petition and the brief enclosed with a letter dated January 10, 1990 advising appellant of his right to retain new counsel or raise any additional points he deems worthy of the Court’s attention.

We have reviewed the matters submitted by counsel and find he has complied with Anders. We are left then to make a full examination of the proceedings and make an independent judgment as to the merits of the case. Anders, McClendon, supra. Having done so, we find no issues of arguable merit and find the case to be wholly frivolous. Anders, supra. As to the sole issue raised by appellate counsel, see discussion infra. Cf. Commonwealth v. Maple, 385 Pa.Super. 14, 559 A.2d 953 (1989) (a collateral appeal in the nature of a PCHA proceeding where this Court held that when appellant has neither filed a pro se brief with this Court nor in any way responded to counsel’s letter advising him of the petition to withdraw, we need consider only the issues raised by counsel).

The proper contents of Anders briefs have been the subject of much confusion in this Commonwealth, due in large part to the conflict perceived by the McClendon Court “between the requirements that counsel seeking leave to withdraw find that an appeal is ‘wholly frivolous’ while filing a brief that referred to ‘anything in the record that might arguably support the appeal.’ Id., 495 Pa. at 471-73, 434 A.2d at 1187-88.” Commonwealth v. Thomas, 354 Pa.Super. 87, 89, 511 A.2d 200, 202 (1986). In the case at bar, however, we find counsel has satisfied the requirements of Anders and its progeny in affording appellant his constitutional right to counsel and providing this Court the basis upon which to decide if the appeal is, in fact, frivolous. Id., 354 Pa.Superior Ct. at 89-90, 511 A.2d at 202-03.

We are left, then, to determine independently the merits of appellant’s claim, inasmuch as counsel’s right to withdraw is dependent upon our finding that the appeal is wholly frivolous. Commonwealth v. Bradley, 320 Pa.Super. 504, 467 A.2d 826 (1983). Appellant’s sole argument on appeal is the sentencing court’s comments during appellant’s plea colloquy indicated a bias and/or lack of impartiality such that the court erred in failing to recuse itself prior to sentencing.

At the plea hearing on July 3, 1989, the following colloquy occurred between appellant and the court:

THE COURT: Do you have a prior record?

MR. GEE: Yes, sir.

THE COURT: As a juvenile?

MR. GEE: Yes, sir.

THE COURT: How about as an adult?

MR. GEE: No, sir.

THE COURT: Didn’t you get the message as a juvenile, Mr. Gee?

MR. GEE: Yes, sir.

THE COURT: It wasn’t that strong though?

MR. GEE: It wasn’t really that.

THE COURT: Well, we’ll try and make it stronger this time, Mr. Gee____

(N.T., 7/3/89, p. 19.)

Appellant argues the foregoing exchange evidenced a predilection by the court to impose a harsh sentence without benefit of viewing the presentence report.

The party asserting a judge must be disqualified bears the burden of producing evidence establishing bias, prejudice or unfairness necessitating recusal. Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1981). Further, it is well established sentencing is a matter within the sound discretion of the trial court and will not be disturbed unless it is outside the statutory limits or manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Semuta, 386 Pa.Super. 254, 562 A.2d 894 (1989). Neither situation exists in the instant case.

Appellant was sentenced within the mitigated range of the sentencing guidelines on the first count, and within the standard range of the guidelines on the second and third counts. 42 Pa.C.S. § 9721. Moreover, the court stated at sentencing:

I have not and I’ll state for the record and did not determine what I was going to sentence Mr. Gee to at the time of the plea colloquy. I did want him to know at the time of the colloquy, which I did, it would be a little stronger than the juvenile courts.

(N.T., 8/17/89, p. 7.)

Based on the above, we find the issue preserved by counsel, while possibly of arguable merit, has not been established by appellant to result in bias or prejudice which would require the judge to recuse himself. Although appointment of new counsel to argue this issue would be permitted under Anders, supra, such an appointment, and subsequent argument, would be of no avail. The sentence was well within acceptable limits and, therefore, cannot be said to be an abuse of discretion.

We, therefore, agree with counsel the appeal is frivolous and permit him to withdraw.

Petition for leave to withdraw as counsel granted.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 3502.

      . Id., § 903.


author: KELLY, Judge:

text:
    575 A.2d 631
    Barbara ODOM and Jerome Odom, Appellant, v. CAROLINA CASUALTY INSURANCE COMPANY and Keystone Insurance Company, Appellee.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1989.
    Filed May 21, 1990.
    Petition for Allowance of Appeal Granted Sept. 4, 1990.
    Robert C. Ward, Erie, for appellant.
    Wallace J. Knox, Erie, for Carolina Cas., appellee.
    John W. McCandless, Erie, for Keystone Ins., appellee.

      Before DEL SOLE, KELLY and HESTER, JJ.
   KELLY, Judge:

Appellants, Barbara and Jerome Odom, appeal from an order issued by the Common Pleas Court of Erie County which granted appellee, Carolina Casualty Insurance Company’s motion for summary judgment and denied defendant, Keystone Insurance Company’s preliminary objections in the nature of a demurrer. We reverse.

The underlying facts of this appeal were accurately set forth in the trial court opinion as follows:

Plaintiff, Barbara Odom, an employee for The Erie Metropolitan Transit Authority (hereinafter EMTA), was injured during the course of her employment on February 4, 1988, when a bus she was driving for EMTA was struck by a hit and run vehicle. The bus was owned by EMTA and insured under a fleet motor vehicle liability insurance issued to EMTA by Defendant Carolina Casualty Insurance Company. As mandated by Section 1731 of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. Section 1731, their policy contained uninsured coverage. Ms. Odom was an insured under that policy. Ms. Odom was also an insured under a motor vehicle liability insurance policy issued to her by Defendant Keystone Insurance Company for her personal vehicles. As mandated by Section 1731, this policy also contained uninsured coverage.
Ms. Odom received workers’ compensation benefits from EMTA’s workers’ compensation insurance carrier for the injuries she sustained in the accident of February 4, 1988. Plaintiffs commenced this matter by filing a Petition to Compel the Defendants to arbitrate their uninsured motorist coverage. Defendant Keystone Insurance Company filed preliminary objections in the nature of a demurrer to the petition on the grounds the policy issued by Defendant Carolina Casualty Insurance Company took priority over its policy by reason of section 1733 of the Motor Vehicle Financial Responsibility Act. Defendant Carolina Casualty Insurance Company filed a motion for summary judgment on the grounds Section 303(a) of the Workman’s Compensation Act, 77 Pa.C.S. Section 481(a), bars Plaintiffs from recovering uninsured benefits under the policy issued to EMTA. Plaintiffs filed a motion for summary judgment against Defendant Carolina Casualty Insurance Company on the grounds they are not barred by Section 303(a) from recovering uninsured benefits.

On appeal, appellant raises the following issue for our review:

Whether the lower court erred by not requiring the fleet insurance carrier for an employer to provide uninsured motorist coverage for an employee injured in the course of her employment?

(Appellant’s Brief at 3).

The trial court granted the appellee’s motion for summary judgment on the basis of this Court’s interpretation of our Supreme Court’s holding in Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988), where the Supreme Court held that under the since repealed and superseded “no-fault” insurance law that Workmen’s Compensation was the employee’s exclusive remedy against an self-insured employer for injuries sustained in the course and scope of his employment, and hence, an employee could not recover uninsured motorist benefits from an employer for a work-related automobile accident with an uninsured motorist. This Court interpreted Lewis in Azpell v. Old Republic Insurance Company, 382 Pa.Super. 255, 555 A.2d 168 (1989), to also preclude an employee from recovering uninsured motorist benefits from an employer’s automobile insurance carrier as well.

The trial court stated that the holdings in Lewis and Azpell cases was the controlling law in this case and the court was constrained to follow these holdings and grant appellee’s motion for summary judgment. We disagree.

Recently, in an excellent opinion, authored by the learned judge, the Honorable Zoran Popovich, a panel of this Court held in Chatham v. Aetna Life and Casualty Co., 391 Pa.Super. 53, 570 A.2d 509 (1989), that the Motor Vehicle Financial Responsibility Law, which was promulgated subsequent to the Workmen’s Compensation Act and which allows recovery of both workmen’s compensation benefits and uninsured motorist benefits, takes precedence over the Workmen’s Compensation Act, and that an employee who is injured in a motor vehicle accident with an uninsured motorist, while in the scope of his employment, is entitled to recover both workmen’s compensation benefits and uninsured motorist benefits via her employer’s insurance policy.

Judge Popovich based his opinion upon our Supreme Court’s recent endorsement of an employee’s right to secure both workmen’s compensation and uninsured motorist benefits for injuries suffered in a work-related auto accident in Selected Risks Insurance v. Thompson, 520 Pa. 130, 552 A.2d 1382 (1989). In Selected Risks the court stated that under the terms of the new Motor Vehicle Financial Responsibility Law which provides:

The coverages required by this subchapter shall not be made subject to an exclusion or reduction in amount because of any workers’ compensation benefits payable as a result of the same injury.

75 Pa.C.S.A. § 1735; an employee is not barred from recovering uninsured motorist benefits from an employer’s uninsured motorist carrier.

We find that the law set forth in Thompson and Chatham, and not Lewis and Azpell, is controlling in the instant case. Accordingly, we hold that the trial court erred in granting appellee’s motion for summary judgment on the basis that the appellant was not permitted to recover uninsured motorist benefits from her employer’s fleet motor vehicle liability insurance carrier.

Based upon the foregoing, the trial court’s order with regard to appellee’s motion for summary judgment is vacated and the case is remanded for proceedings consistent with this opinion.

Jurisdiction is relinquished.


author: HESTER, Judge:

text:
    575 A.2d 633
    COMMONWEALTH of Pennsylvania v. James B. NESBIT, Appellant.
    Superior Court of Pennsylvania.
    Argued April 3, 1990.
    Filed June 1, 1990.
    Petition for Allowance of Appeal Denied Oct. 17, 1990.

      Thomas A. Thornton, Harrisburg, for appellant.
    John G. Gabriel, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before CIRILLO, President Judge and BECK and HESTER, JJ.
   HESTER, Judge:

James Nesbit appeals from the May 16, 1989 judgment of sentence to pay the costs of prosecution imposed following his conviction of forty-three counts of violating the Medicaid Fraud and Abuse Act and forty-three counts of violating The Dental Law, 63 P.S. §§ 120, et seq. We affirm.

Appellant is a dentist who for the past decade has operated a dental practice dedicated to serving the disadvantaged residents of a poor neighborhood in Harrisburg. Most of appellant’s patients are public assistance recipients for whom the Department of Public Welfare pays for dental services.

After initiating an inquiry into a substandard service complaint received against appellant, the Pennsylvania Attorney General’s Office discovered that appellant had employed unlicensed individuals to perform dental services which must be performed by licensed personnel and that appellant submitted invoices to the Department of Public Welfare for the performance of those services. The total amount billed to the Welfare Department by appellant for the services provided by unlicensed personnel was $586.00 over a six-year period. Appellant was charged with one hundred and sixty counts of medicaid fraud and forty-three violations of The Dental Law. A jury trial was held December 5 to 9, 1988, where the following evidence was presented.

Two of the three individuals employed by appellant as dental assistants testified during the trial that they performed a prophylaxis service on thirty-seven of appellant’s patients identified in the criminal information. They also stated that appellant did not perform any part of the prophylaxis service on those patients to the best of their recollection.

The prosecution also produced two expert witnesses, both dentists, who testified that the service performed by and described at trial by appellant’s dental assistants was indeed a prophylaxis service. They stated that such a procedure must be performed by either a licensed dental hygienist or dentist according to a regulation of the Dental Council and Examination Board (“Board”) set forth at 49 Pa.Code § 33.201 and section 10 of The Dental Law, 63 P.S. § 129(e). The Commonwealth also established that none of the three dental assistants was licensed as either a dental hygienist or a dentist.

Following the close of the evidence, the jury convicted appellant of forty-three of the charges of medicaid fraud and all forty-three violations of The Dental Law. Timely post-trial motions were filed and then denied. This appeal followed.

Appellant argues first that The Dental Law is unconstitutionally vague in its definition of the duties reserved for performance by licensed hygienists. Appellant contends that the language of the statute does not delineate whether the duty of cleaning teeth above and below the gum line is reserved exclusively for a licensed dental hygienist or whether an unlicensed practitioner, for instance, may perform a portion of the hygienist’s functions.

Appellant was convicted of violating section 10 of The Dental Law, 63 P.S. § 129(e), which provides as follows:

(e) It is unlawful for a person practicing dentistry to employ a person as a dental hygienist unless such person is licensed as a dental hygienist as required by this act and the rules and regulations of the board.

A dental hygienist is defined in section 1 of The Dental Law, 63 P.S. § 121, as follows:

One who is legally licensed as such by the said Dental Council and Examining Board to perform those educational, preventive, and therapeutic services and procedures that licensed dental hygienists are educated to perform. Licensed dentists may assign to their employed dental hygienists intra-oral procedures which the hygienists have been educated to perform and which require their professional competence and skill but which do not require the professional competence and skill of the employer-dentist. Such assignments shall be under the supervision of a licensed dentist.... The board shall issue rules setting forth the necessary education and defining the procedures that may be performed by dental hygienists licensed under this Act including those procedures that may be performed under direct and general supervision.

(Footnote omitted). The Board defines the procedures which a dental hygienist may perform.

Dental hygienist — One who is legally licensed as such by the Board to remove tartar, deposits, accretions, and stains from the exposed surfaces of the teeth and directly beneath the free margin of the gums and to make application of medicaments as defined and approved by the Board to the exposed surfaces of the teeth for the prevention of dental caries, in the office of a dentist, in any public or private institutions ... or in state health care under the general supervision of a licensed and registered dentist.

49 Pa.Code § 33.201.

Scaling, root planing, polishing, or any other procedure required to remove tartar deposits, accretions, and stains from the exposed surfaces of the teeth and directly below the free margin of the gums shall be performed by a licensed and registered dentist or dental hygienist.

49 Pa.Code § 33.214.

The role of an unlicensed dental assistant, or “auxiliary” according to the regulations, is not defined by the statute. Section 33.41 of title 49 of the Pennsylvania Code sets forth the following as the permitted functions for an auxiliary:

(a) A legally licensed and registered dentist may delegate to competent auxiliary personnel those procedures for which the dentist exercises direct supervision and full responsibility, except as follows:
(1) Those procedures which require professional judgment and skill such as diagnosis and treatment planning and the cutting of hard or soft tissues, or both, or any intra-oral procedure which would lead to the fabrication of an appliance which when worn by the patient, would come in direct contact with hard or soft tissue and which could result in tissue irritation or injury.
(2) Those procedures allocated by the Act to registered dental hygienists.

(Emphasis added). Thus, it is clear that the unlicensed dental assistant or auxiliary may not perform procedures reserved for the professional expertise of dentists or hygienists.

A vagueness challenge to a statute may be presented in one of two ways: (1) the statute is vague on its face, measured against hypothetical conduct that the language could arguably embrace (facial vagueness) or (2) the language is vague regarding the particular conduct of the individual challenging the statute (vagueness-as-applied). Oppenheim v. Commonwealth, 74 Pa.Cmwlth. 200, 459 A.2d 1308 (1983). Absent the assertion of an infringement of first amendment freedoms, however, the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged. Common wealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976). Since appellant has not claimed a first amendment infringement, we will consider his argument a vagueness-as-applied challenge to The Dental Law.

The Dental Law is undoubtedly a penal statute. Snell v. Commonwealth, 490 Pa. 277, 416 A.2d 468 (1980). In Commonwealth v. Heinbaugh, supra, the supreme court set forth the standard by which a penal statute must be evaluated in a void-for-vagueness challenge. The court stated that the terms of such a statute must be “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Id., 467 Pa. at 5, 354 A.2d at 246. The court continued, “Statutes challenged on the ground of vagueness are not, however, to be tested against paradigms of legislative draftmanship____ Rather the requirements of due process are satisfied if the statute in question contains reasonable standards to guide prospective conduct.” Id., 467 Pa. at 6, 354 A.2d at 246.

A vagueness claim to the same provision of The Dental Law which appellant violated was addressed by the Pennsylvania Commonwealth Court in Oppenheim v. Commonwealth, supra. Though the court in Oppenheim was presented with a challenge to the same statute and regulations as appellant herein attacks, it actually addressed a portion of the regulations in which the Board was silent as to the definition of a term of art, medicament. The court held that a failure to define medicaments did not unconstitutionally jeopardize the parties’ right to adequate notice. More importantly to the instant appeal, however, the court also found that the regulations concerning the duties which auxiliary personnel are prohibited from performing are sufficiently clear. Id., 74 Pa.Cmwlth. at 213, 459 A.2d at 1315. The court stated that “[t]he dental law addresses a specific audience of professionals who must be held to a standard consonant with their training and expertise.” Id., 72 Pa.Cmwlth. at 213, 459 A.2d at 1315. The court further advised that if a person was unsure about the dividing line between permissible and impermissible auxiliary duties, he should consult the Board.

Thus, the very provision of The Dental Law challenged by appellant in his void-for-vagueness argument has been upheld by our commonwealth court. The regulation promulgated by the Board which defines the duties reserved to a licensed hygienist was held to be adequately specific. A dentist clearly violates The Dental Law when he employs an unlicensed assistant to perform those duties expressly reserved for licensed personnel or dentist.

Further, appellant’s argument that the assistants did not perform a complete prophylaxis on the patients and therefore did not engage in the duties reserved for licensed hygienists is contradicted by the sworn testimony of the assistants themselves. They stated that they did clean teeth below the gum line when necessary. Notes of Testimony (“N.T.”), 12/6/88, at 186, 192, 285. Consequently, we find appellant’s vagueness claim to be without merit.

Appellant next contends that the trial court erred in denying him the opportunity to have an attorney present evidence regarding appellant’s state of mind. Appellant states that the evidence he was precluded from presenting was the testimony of an attorney who appellant consulted regarding the nature of duties which legally could be assigned to unlicensed personnel in his office. Appellant argues that the state of mind of the accused is a material element to an offense involving criminal intent which, he notes, the Commonwealth must prove beyond a reasonable doubt.

Appellant raised the same issue with the trial court in his post-trial motions. The trial court rejected his argument, ruling that since appellant was provided with a full opportunity to present the same evidence at trial through his own testimony, his state of mind at the time the offenses were committed was adequately presented to the jury.

We concur with the trial court’s determination. According to the notes of testimony, appellant did testify regarding his attempt to acquire a proper interpretation of the regulations concerning duties of auxiliary personnel. In our view, however, his was the only testimony on the subject which was relevant. The attorney’s opinion rendered to appellant as to how the regulation should be interpreted would have been at best, irrelevant, since he was not qualified to offer an opinion on how his advice affected appellant’s state of mind and at worst, prejudicial. Providing guidance as to how the law should be applied to the facts and evidence presented during the trial is the function of the court alone, not an unqualified witness.

Furthermore, a review of the evidence clearly establishes that the evidence regarding appellant’s criminal intent to commit the violations of the medicaid fraud statute was sufficient to sustain his convictions. The dental assistants testified that it was appellant himself who taught them the complete prophylaxis procedure, that is, the process of cleaning both above and below the patient’s gum line. If appellant instructed the assistants to perform the complete procedure, then he “intentionally” and “knowingly” violated the statute when he permitted them to perform the service on his patients and then submitted bills to the Welfare Department for services which actually were performed by his assistants and not by him. Accordingly, we find that the trial court committed no error in sustaining the Commonwealth’s objection to the introduction of the testimony of appellant’s attorney regarding appellant’s state of mind.

Appellant next contends that the evidence was insufficient to sustain the verdict of guilty to both The Dental Law violations and to the medicaid fraud charges. He first argues that the Commonwealth failed to meet its burden of establishing that the unlicensed dental assistants performed the prophylaxis service both above and below the gum line of the patients identified in the criminal information and therefore produced insufficient evidence to sustain The Dental Law convictions. Second, he argues that the evidence to support the medicaid fraud charges was insufficient on the basis that the testimony of the dental assistants established that appellant performed a portion of the prophylaxis procedure on each patient served by the dental assistants and therefore acted properly in submitting bills to the Welfare' Department for services partially performed by him. Appellant also contends that the evidence produced by the Commonwealth of the correlation between the dental assistants’ initials on patient dental charts and the services performed on the patients identified in the criminal information was insufficient to establish that the dental assistants actually performed those services on the named individuals.

The standard for reviewing sufficiency of the evidence claims is well-established.

Whether, viewing the evidence in the light most favorable to the Commonwealth [as verdict winner], and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt____ The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.... Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered ____

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986); Commonwealth v. Hunter, 381 Pa.Super. 606, 554 A.2d 550 (1989).

Viewing the evidence in accordance with our standard of review, we find that the Commonwealth produced sufficient evidence to support the guilty verdicts to violations of both The Dental Law and the medicaid fraud statute. We also reject appellant’s assertion that a dichotomy exists between the elements of The Dental Law violations and the charges of medicaid fraud.

First, the Commonwealth was not obligated to prove that the dental assistants performed the cleaning procedure both above and below the patients’ gum lines to establish violations of The Dental Law. No such requirement is apparent in a plain reading of the regulation involved, that is, 49 Pa.Code § 33.201, which describes the duties reserved to licensed hygienists. Further, the two dental experts produced by the Commonwealth testified that a prophylaxis procedure does not necessarily involve cleaning both above and below the gum line. Appellant concedes the dental assistants did perform the prophylaxis service above the patients’ gum lines.

Secondly, contrary to appellant’s assertion in his brief, the dental assistants did testify to performing the cleaning procedure below the gum line of the patients involved. During his own testimony, appellant denied permitting the dental assistants to perform the service below the gum line. However, the evidence that he did so was sufficient to support a conviction. The jury simply chose to believe the dental assistants’ testimony. As we stated in Commonwealth v. Stephany, 228 Pa.Super. 184, 323 A.2d 368 (1974), a mere conflict of testimony does not render the evidence insufficient. Thus, even if we were to accept appellant’s argument regarding the two-pronged burden placed upon the Commonwealth to establish violations, the record clearly reveals that the Commonwealth met that burden.

With respect to the medicaid fraud charges, we find that once again, the record fails to support appellant’s argument that appellant performed a portion of the prophylaxis services on the patients involved. In fact, one of the two dental assistants who testified during the trial stated categorically that appellant did not clean the teeth of the patients identified in the criminal information. She supported her recollection by explaining that during the time period when those patients were served, appellant cleaned the teeth of only “very special” patients. The patients identified in trial were not special patients according to the dental assistant. N.T., 12/6/88, at 206-207. The jury again chose to believe the prosecution’s witness. Consequently, the evidence produced by the Commonwealth was sufficient to permit the jury to conclude that appellant billed the Welfare Department for services performed not by him, but by his unlicensed dental assistants, thereby violating the medicaid fraud statute.

Appellant’s argument that the evidence linking the dental assistants with the patients for whom the cleaning services were provided was insufficient also is unpersuasive. Despite the fact that the prosecution’s witnesses lacked an independent recollection of the individual patients involved, they explained their system of marking the records with their initials upon performance of the procedure. This system and the witnesses’ unequivocal identification of their initials on the records of the patients provide sufficient evidence that the assistants did perform the cleaning procedure on those patients. Furthermore, at least one of the assistants testified that she was certain that she performed the cleaning procedure on those patients since appellant performed none of those services during the relevant period except for a few special patients who were not involved in these proceedings.

We also find appellant’s final contention that the verdict is against the weight of the evidence to be without merit. Appellant failed to establish, in accordance with the standard set forth in Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984), . that the verdict was so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail. On the contrary, the verdict in the present case was consistent with the evidence presented by the prosecution, and however laudable appellant’s efforts to serve the medical needs of the disadvantaged may have been, the jury properly found that he violated both The Dental Law and the medicaid fraud statute in providing those services.

Accordingly, we affirm.

BECK, J., concurs in the result.

      . We note that on June 14, 1989, the Commonwealth’s motion for reconsideration of sentence was granted, and the court amended its sentence to include the payment of restitution in the amount of $586.00.

      . The substandard service complaint received against appellant was ultimately determined to be without merit.


author: DEL SOLE, Judge:

text:
    575 A.2d 639
    COMMONWEALTH of Pennsylvania v. Terry ANDERSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1990.
    Filed June 5, 1990.
    Thomas J. Bonavita, Asst. Public Defender, Warren, for appellant.
    Richard A. Hernán, Jr., Dist. Atty., Warren for Com., appellee.
    Before CAVANAUGH, DEL SOLE and HUDOCK, JJ.
   DEL SOLE, Judge:

Terry Anderson, Appellant, pleaded guilty to a charge of delivery of a controlled substance. He was sentenced to serve thirty days in jail and to pay a fine of $500.00 and the costs of prosecution. He was also ordered to pay restitution to police agencies for the cost of the investigation and to “Crime Stoppers” for the cost it had incurred using an informant to target Anderson’s drug activity. Anderson filed a petition to modify the restitution order. The trial court modified its order so that Anderson would not have to pay the police agencies for the costs of the investigation but only the $20.00 which the police gave the informant to buy the drugs from Anderson. The trial court did not modify, however, the restitution due “Crime Stoppers.” Anderson appeals and we reverse.

The sole issue on appeal is whether “Crime Stoppers” should, be paid restitution for its participation in this criminal action against Anderson. This is a novel question for this court and a thorough review of Pennsylvania’s restitution statute (18 Pa.C.S.A. § 1106) leaves us with only one answer: no.

The general rule to be followed by trial courts when ordering restitution is defined as follows:

Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.

18 Pa.C.S.A. § 1106(a)

The purpose of restitution is to impress upon the defendant that his or her criminal conduct caused the victim’s loss or personal injury and that it is his or her responsibility to repair the loss or injury as far as possible. Commonwealth v. Balisteri, 329 Pa.Super. 148, 478 A.2d 5 (1984).

This court has held that the Commonwealth qualified as a “victim” under § 1106 and therefore money given by the Commonwealth to an undercover agent for the purchase of drugs could be recouped as restitution. Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197 (1986) vacated 517 Pa. 83, 534 A.2d 1050 (1987). Since Mourar was vacated, this court has questioned whether the Commonwealth can qualify as a victim under § 1106 and has contemplated the difficulties involved in determining the injury or loss suffered by the Commonwealth. Commonwealth v. Hainsey, 379 Pa.Super. 376, 550 A.2d 207 (1988). While this court has stretched the definition of “victim” in § 1106 to include the Commonwealth, we have no desire to further elongate the term to include organizations such as' “Crime Stoppers.”

The trial court gave this description of “Crime Stoppers:” Crime Stoppers is a private organization program that pays monetary awards to anonymous tipsters that result in a crime being solved. The identity of the caller is anonymous and the caller receives various amounts of cash, depending on the magnitude of the crime if prosecution is successful on the ‘tip.’
(Trial Court opinion at page 5)

The trial court then went on to reason that the private citizens and businesses who donate money to “Crime Stoppers” are “victims” under § 1106 because they have suffered a loss of property when their money goes to “tipsters” who report on the crimes of others. If the convicted defendant had never committed a crime, reasons the trial court, then the “Crime Stoppers” donors would have never parted with their money. Therefore, says the trial court, these donors are “victims” of the crime committed by the defendant just as the police are and they deserve the same type of restitution. We disagree.

Unlike the police, who have a statutory duty to protect the citizens of Pennsylvania and use the citizens’ money to do so, “Crime Stoppers” is a volunteer organization of people and businesses who willingly give their money to pay people who have information about the criminal activity of others. While the efforts of “Crime Stoppers” have been helpful to the police, these efforts are not mandated by the citizens of Pennsylvania.

“Crime Stoppers” is a private organization acting as it believes good citizens should by helping gather information about criminal activity and by giving such information to the police. Money given to “Crime Stoppers” is not tax money. It is money given freely by people who want to see those who have committed crimes put in jail. Since the funds used by “Crime Stoppers” is voluntarily donated and not public funds, the organization cannot be considered a victim for purposes of restitution. We vacate that portion of the restitution order of the trial court requiring Anderson to pay restitution to “Crime Stoppers.”

Order reversed in part. Jurisdiction relinquished.

      . We note that this court has not unanimously included the Commonwealth in the definition of "victim.” See Judge Johnson’s well-reasoned dissent in Mourar, 349 Pa.Super. at 606, 504 A.2d 197.


author: POPOVICH, Judge. TAMILIA, Judge,

text:
    575 A.2d 914
    Virginia LEIDICH, Appellant, v. David FRANKLIN and Irene Franklin, His Wife, Appellees.
    Superior Court of Pennsylvania.
    Argued March 6, 1990.
    Filed May 16, 1990.
    Reargument Denied July 3, 1990.

      Leslie D. Jacobson, Harrisburg, for appellant.
    James G. Nealon, III, Harrisburg, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge.

This case involves an appeal from the order of the Court of Common Pleas of Dauphin County granting the motion for judgment on the pleadings filed on behalf of the appellees/defendants, David and Irene Franklin, and dismissing with prejudice the complaint of the appellant/plaintiff, Virginia Leidich. We reverse.

“Like all summary judgments entered without a trial judgment on the pleadings may be entered only in clear cases free from doubt where there are no issues of fact, and only where the cause is so clear that a trial would clearly be a fruitless exercise____ The party moving for the judgment on the pleadings admits for the purpose of his motion the truth of all the allegations of his adversary and the untruth of any of his allegations which may have been denied by his adversary.” Goodrich-Amram 2d, § 1034(b)(1).

Beck v. Minestrella, 264 Pa.Super. 609, 611, 401 A.2d 762, 763 (1979).

The defendants were the moving parties. They pleaded the bar of the statute of limitations in new matter to which the plaintiff in answer denied its applicability and set forth the factual basis for her contention. Hence, we read the pleadings as follows:

As a result of a collision between the plaintiffs and defendants’ automobiles in Dauphin County on April 4, 1986, the plaintiff suffered personal injuries. On January 4, 1988, the plaintiff filed a praecipe for the issuance of a writ of summons with the prothonotary of Dauphin County. Payment for the issuance of the writ was made, but on the back of the writ was written: “writ to atty. 1/4/87 RB”. Next in the record is a certificate of service, prepared by an employee for the plaintiff’s attorney, indicating that a copy of the writ was served upon the defendants by first class mail dated January 5, 1988. This was not disputed by the defendants. See Defendant’s Answer With New Matter, Paragraph 23; Defendants’ Motion For Judgment On The Pleadings, Paragraph 2; Defendants’ Brief In Support Of Motion For Judgment On The Pleadings, page 1.

Also, on January 5, 1988, the defendants were served with a notice to appear for deposition on February 2, 1988. Counsel for the defendants, on or about March 3, 1988, objected to the deposition “referencing the Writ of Summons, at which point it was agreed to postpone said deposition indefinitely.” Plaintiff’s Answer To New Matter With Additional New Matter, Paragraph 34.

Nonetheless, from March 15 through April 4, 1988, documentation (which included the plaintiff’s medical bills) was submitted to the defendants’ insurer “with regard to possible settlement of the claim on a ‘policy limits’ basis.” Id. at Paragraphs 36-38.

It was not until after April 4, 1988, that the plaintiff learned that settlement would not occur. Rather, the case was being contested “on technical grounds involving alleged deficiencies in the service of the Writ of Summons.” Id. at Paragraph 39.

After the passage of the two-year period of limitations, the plaintiff filed a praecipe on May 17, 1988, seeking the reissuance of the writ. This occurred and the sheriff served the writ on the defendants the same date. The plaintiff, with the issuance of a rule to do so, filed a complaint. This was followed by the defendants filing an answer with new matter alleging, in Paragraphs 28 and 29, that the plaintiff’s claim was barred by the statute of limitations and the principles enunciated in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976).

In the pleadings that followed, the plaintiff denied that her claim was foreclosed by Lamp, supra, that she acted in “good faith” in pursuing the lawsuit and she “ha[d] done nothing to stall or delay th[e] action.” In the end, the court below granted the defendants’ motion for judgment on the pleadings. It found that the plaintiff’s action (of seeking the issuance of the initial writ and serving it by mail to the defendants) was contrary to the Rules of Civil Procedure (ie.g., Rule 400), local practice and established case law, i.e., Lamp, supra. Thereafter, the plaintiff filed an appeal to this Court.

The plaintiff raises for our consideration but a single issue of whether the court below erred in granting the defendants’ motion for judgment on the pleadings. This one issue, however, is subdivided into seven subsections in the argument section of her appellate brief, six of which distill to the query: Did the plaintiff comply with the “good faith” effort required by Lamp, supra, in effectuating service of the writ of summons upon the defendants by mail, so as to toll the statute of limitations and render her lawsuit viable? Our response to this inquiry will resolve the matter posed for our review, and, as such, dispenses with the need to address the last of the plaintiff’s contentions concerning the claim that defendants’ counsel violated American Bar Association Canons of Professional Ethics by “waiting] to file a motion on the grounds of improper service until the statute [of limitations had expired.]”

All parties concerned, including the court below, look to the Lamp decision to buttress their respective positions. As such, we will examine Lamp and determine whose version is an accurate interpretation of its objective and purpose.

In Lamp, four days before the expiration of the two-year statute of limitations, the plaintiff’s attorney filed a praecipe for a writ of summons against the defendants for injuries sustained in an automobile accident. However, instead of delivering the writ to the sheriff for service, the plaintiff instructed the prothonotary to “issue & hold”. A praecipe for the reissuance of the writ was filed together with a complaint thirty-one months after the date of the accident. Again no service was made, and this time no reason appeared of record. Within two months of the reissuance of the writ, another praecipe for reissuance was filed, and service was effectuated on June 19, 1970.

The defendants filed preliminary objections asserting that the original summons was a “nullity” because of the plaintiffs “issue & hold” instructions to the prothonotary, and, therefore, the action was not brought within the two-year period provided by the statute of limitations.

The trial court sustained the preliminary objections and entered judgment for the defendants. On appeal, the Supreme Court observed that, under Pa.R.Civ.P. 1007, the mere filing of a praecipe to commence an action was sufficient to toll the running of the statue of limitations, and that, pursuant to then Rule 1010(a) (now found at Rule 401(b)(5)), the writ could be reissued at any time after the original issuance during a period equivalent to that permitted by the applicable statute of limitations for the commencement of the action. Further, each valid reissuance gave rise to a new equivalent period during which the writ might again be reissued.

The Court observed that the plaintiff validly commenced her action so as to toll the statute of limitations. Thus, when the writ was reissued, the plaintiffs action was not barred by the statute of limitations. The case did not come to an end at this point. The Court went on to decide whether the “issue & hold” instructions of the plaintiffs attorney rendered ineffectual the original filing. The Court began by reading Rule 1007 allowing no exceptions in providing that an action is “commenced” with the filing of a praecipe, irrespective of whether the prothonotary issues the writ or the sheriff serves it. Stated otherwise, the mere filing of a praecipe, even if a plaintiff deliberately delayed service, was held sufficient to toll the statute of limitations, as stated by the Court in prior rulings. Therefore, the Court held the plaintiff was entitled to rely on these past rulings, and, consequently, the order of the court below holding to the contrary was reversed.

Cognizant of the possible deleterious repercussions flowing from a continuation of such a practice, the Lamp Court altered, for prospective purposes only, such a practice. It did so in the following fashion; to-wit:

... there is too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service.
4s jjc Sfc j(s jfc 5)5
Our purpose is to avoid the situation in which a plaintiff can bring an action, but, by not making a good-faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations.
Accordingly, ... we rule henceforth, [that] ... a writ of summons shall remain effective to commence an action only if the plaintiff refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion. Since the manner in which writs of summons are to be prepared and delivered to the sheriff for service is not covered by our rules ... a plaintiff should comply with local practice as to delivery of the writ to the sheriff for service. If under local practice it is the prothonotary who both prepares the writ and delivers it to the sheriff, the plaintiff shall have done all that is required of him when he files the praecipe for the writ; the commencement of the action shall not be affected by the failure of the writ to reach the sheriffs office where the plaintiff is not responsible for that failure. Otherwise, the plaintiff shall be responsible for prompt delivery of the writ to the sheriff for service.

469 Pa. at 477-79, 366 A.2d at 888-889 (Footnote omitted; Citation omitted).

In applying Lamp, the Commonwealth Court has ruled that filing a petition to review an arbitrator’s award and sending a copy to the opposition by regular mail, albeit not in compliance with Rule 1009’s service by the sheriff, did not justify the lower court’s dismissal of the plaintiff’s petition for review. See Big Beaver Falls Area School District v. Big Beaver Falls Area Educational Association, 89 Pa.Cmwlth. 176, 492 A.2d 87 (1985). In reversing, the Commonwealth Court held that:

... it is our position that the [plaintiff] should be permitted to have its petition for review reissued in order for it to effectuate proper service in accordance with Rule 1009 of the Pennsylvania Rules of Civil Procedure. The [defendant] suggests, however, that, under Lamp, for a reissuance to extend the applicable statute of limitations, the [plaintiff] should have initially arranged for service [by the sheriff] and further that the [plaintiffs] conduct prevented service upon the [defendant] thereby nullifying the commencement of the action. We disagree. The [plaintiff] merely mistakenly used the improper mode of service and thus this case is not typical of the circumstance contemplated by Lamp. We, furthermore, detect no conduct wherein the [plaintiff] sought to stall the legal machinery it set in motion by filing its petition for review.

89 Pa.Cmwlth. at 181-82, 492 A.2d at 90.

In a similar vein, this Court upheld a motion for summary judgment where the appellants had not made any effort, be it “good faith” or otherwise, to notify the defendant a suit had been instituted against him. See Feher by Feher v. Altman, 357 Pa.Super. 50, 515 A.2d 317 (1986). In making our decision, we made some remarks that are instructive; viz.:

When a praecipe is filed but the writ is not served, the burden is on the plaintiff to show that he made a good faith attempt to have the writ served. In this case plaintiffs’-appellants’ counsel had the burden of proving that he took some affirmative action calculated to provide notice of the suit to the defendant, yet he did not present the court with any evidence that he had made the requisite good faith effort. The record reflects ... the [various pleadings and briefs supportive of the respective positions of the parties]____ None of these documents contain [sic] any indication that counsel made an effort to effect service of the original writ____
Thus, although appellants’ counsel did not actively attempt to thwart service of the writ, he also did not take any affirmative action to see that the writ was served and to put the defendant on notice that an action had been filed against him.
******
In fact, appellants’ counsel conceded at oral argument that the reason for not taking steps to have the original writ served was to avoid the additional expense incurred by having the writ served and then at a later time having the complaint served. His argument is without merit____

357 Pa.Super. at 55-56, 515 A.2d at 320 (Emphasis in original).

Lastly, we garner some guidance as to the course we should pursue from the Supreme Court’s ruling in Farinacci v. Beaver County Industrial Development Auth., 510 Pa. 589, 511 A.2d 757 (1986), wherein the Court was reviewing the application of Lamp, supra, to a matter where the plaintiff’s counsel’s inadvertence prevented the service of a writ within thirty days of its issuance.

It appears that the plaintiff’s attorney filed a praecipe for the issuance of a writ with the prothonotary of Beaver County on the last day to commence an action for personal injuries. The plaintiff’s counsel paid for the issuance of the writ and it was issued the next day. The plaintiff’s attorney had intended to instruct and pay the sheriff for service immediately. However, he misplaced the file. The file was found within eight or nine days but the plaintiff’s attorney forgot to take the necessary steps to effectuate service of the writ. It was reissued and the sheriff paid some four weeks after the file was found, and service was made within the next two weeks.

Although the Supreme Court affirmed the lower court’s grant of the defendants’ preliminary objections and dismissal of the plaintiff’s cause of action, it observed, in dictum, that the: “eight or nine days of delay ... was attributable to counsel’s simply misplacing the file ... is not necessarily inconsistent with a finding of good faith.” 510 Pa. at 594-95, 511 A.2d at 759-760. However, the four-week delay being assignable to the plaintiffs faulty memory was held not to be an “explanation for counsel’s inadvertence which could substantiate a finding that plaintiff[] made a good faith effort to effectuate service of the writ.” Id.

It is interesting to note that Justice ZAPPALA, writing for the dissent consisting of LARSEN and McDERMOTT, JJ., would have reversed because there was no finding by the lower court that the plaintiff:

... intended to stall the legal proceedings, and resulted in prejudice to the Appellees. On the contrary, the record reviewed by the trial court does indicate that the Appellees were made aware of the Appellant’s claim within one year prior to the commencement of these legal proceedings. Therefore, this is not a case in which a potential party has no notice of a pending claim until the filing of a writ for the purpose of tolling the statute of limitations. The trial court opinion is also noticeably void of any finding of prejudice suffered by any of the Appellees.

510 Pa. at 596, 511 A.2d at 760.

What is to be gleaned from Lamp and its progeny is that: (1) one’s “good faith” effort to notify a defendant of the institution of a lawsuit is to be assessed on a case-by-case basis; and (2) the thrust of all inquiry is one of whether a plaintiff engaged in a “course of conduct” forestalling the legal machinery put in motion by his/her filings. See Lamp, supra; Jacob v. New Kensington Y.M.C.A., 312 Pa.Super. 533, 459 A.2d 350 (1983). Further, we do not read Lamp, and the cases interpreting and applying it, to espouse a mechanical approach to the “good faith” effort rule such that it allows for no exceptions in the face of an explanation and/or conduct which evidences an unintended deviation from the “notice” requirement. See e.g., Feher, supra; Big Beaver Falls Area School District, supra; Jacob, supra.

At bar, the plaintiffs counsel admits that with the issuance of the writ he took possession of it, instead of allowing the normal course of events under local practice (the prothonotary delivering the writ to the sheriff for service) to take its course, and had delivery to the defendants effectuated by first class mail, the receipt of which the defendants have not disputed. Counsel offers that the course taken was premised upon his “mistaken” belief that, pursuant to Pa.R.Civ.P. 402(b) and with the consent of the defendants’ insurance carrier, service of the writ could be accomplished through regular mail. (See Appellant’s Brief at 11) Also, the plaintiff’s counsel points to the notification of deposing the defendants and the forwarding of medical records to the defendants’ insurer as his continuing belief that objection to the form of notice of instituting the lawsuit was not at issue. In fact, he first learned of the objections from the defendants’ counsel only after the statute of limitations had expired. With this turn of events, the plaintiff’s counsel obtained reissuance of the writ and had it served by the sheriff.

We find that what was written in a similar context is applicable here; to-wit:

We, of course, agree that the rules relating to service of process are important, notice being a constitutional touchstone for the power of the courts to act. However, we do not agree that every aspect of service is equally critical, so that any defect in process is necessarily mortal. Compare, e.g., Peterson v. Philadelphia Suburban Transp. Co., 435 Pa. 232, 255 A.2d 577 (1969). In the instant praecipe, the immediate consequence of which was the issuance of a technically defective writ. Had plaintiffs complied with Rule 1010 [rescinded effective January 1, 1986; current version at Pa.R.Civ.P. 401(b) ] the instant controversy would not have arisen. On the other hand, if we sustain defendants’ objections to service, plaintiffs will be out of court on their trespass action because the two-year statute of limitations and Zarlinsky v. Laudenslager, [402 Pa. 290, 167 A.2d 317 (1961) ], will operate as a bar. In our view, on the facts of the instant case, we cannot permit this to occur. Rule 126 of the Pennsylvania Rules of Civil Procedure requires that we abjure such a rigid application of procedural rules by providing:
“The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.”
We find it impossible to conclude that the defect in service in the instant case affected any substantial rights of the defendants. Although plaintiffs are culpable for the mistake which occurred, it would be unjust to sanction the result which sustaining defendants’ preliminary objections would entail.

Hoeke v. Mercy Hospital of Pittsburgh, 254 Pa.Super. 520, 531-32, 386 A.2d 71, 77 (1978) (Footnote omitted).

As in Hoeke, we find that the defect in service has not affected any substantial rights of the defendants, nor is there any allegation that the defendants were prejudiced by the manner in which they received notice of the lawsuit. See Justice ZAPPALA’s Dissenting Opinion in Farinacci, supra. More importantly, consistent with Lamp’s teachings, we cannot in good conscience equate the plaintiff’s attorney’s actions with a “course of conduct which serve[d] to stall” the machinery of justice. For example, once the writ was mailed to the defendants, communication with and the submission of documents to their liability carrier began. Even the initial stages of discovery (notice of deposing the defendants) were underway before being discontinued at the behest of the defendants’ counsel.

Thus, we do not view the plaintiff’s actions as a “course of conduct” to be condemned under the guise of Lamp (an “issue & hold” case). Yet, we caution that, in reversing the order of the court below, we in no way wish to signal to the bench and bar our approval of a circumvention of the Pennsylvania Rules of Civil Procedure and local practice. We are merely holding that, under the particular facts here, Lamp’s “good faith” effort to notify the defendants was established in tandem with the absence of a “course of conduct” attributable to the plaintiff evidencing a stalling of the machinery of justice.

Order reversed.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting.

I respectfully dissent to the holding of the majority reversing the trial court in this matter as I believe it extends Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986), beyond its holdings and ignores the intent of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976).

In this case, appellant instituted an action in trespass by filing a writ of summons in the prothonotary’s office on January 4, 1988. On the same day, counsel for appellant sent a handwritten note to appellees, by regular mail, enclosing a copy of the Writ of Summons. The writ was subsequently reissued pursuant to Pa.R.C.P. 401(b)(2), on May 17, 1988, and personally served by the sheriff of Dauphin County. However, the two-year statute of limitations had run on April 4, 1988.

The appellant acknowledged that service by regular mail is not permitted either under the Pennsylvania Rules of Civil Procedure or under local rules (except for special circumstances which do not apply here). Construing Lamp and Farinacci in relation to the facts of this case, I believe we are bound by the trial court’s finding. As correctly stated by the majority, Lamp was promulgated to curb an abuse widely prevalent whereby a praecipe would be filed with the prothonotary, to toll the running of the statute of limitations, but the plaintiff would direct the sheriff to not serve the writ. Lamp held that a plaintiff must refrain “from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” Id., 469 Pa. at 478, 366 A.2d at 889. Subsequent cases have held the plaintiff has the burden of establishing a good faith effort to effect service to avoid dismissal under Lamp. Feher v. Altman, 357 Pa.Super. 50, 515 A.2d 317 (1986); Weiss v. Equibank, 313 Pa.Super. 446, 460 A.2d 271 (1983).

In further clarification of Lamp, Farinacci held that the trial court must evaluate each case on its facts, measured against compliance with Supreme Court and local rules to ascertain whether a good faith effort had been made to effectuate service. Lamp held the plaintiff could not obstruct service by directing the sheriff to hold service indefinitely. Here, in the absence of either statewide or local rules, appellant, whether inadvertently or not, obstructed proper service by failing to deliver the writ for service to the sheriff. Had he done so, service would have been made routinely in accordance with the local custom or rule. By retaining the summons and mailing a copy, appellant failed to make proper service and interfered with the process, a practice prohibited by Lamp.

The holding of the majority provides cart blanche right in every plaintiff to select a manner of service, outside that required by the rules, and creates more confusion and uncertainty than that cured by Lamp. Farinacci addressed only the issue of when a good faith effort to effect service within the rules was attempted. It did not consider nor does it approve attempted service outside the rules.

The majority spelled out in detail the contacts between the parties preliminarily, which showed some attempt at notice by reference. This is inadequate to meet the test of Lamp or Farinacci as negotiations may continue for considerable periods of time, and in and of themselves, are not evidence as to notice of commencement of an action for purpose of tolling the statute of limitations.

I believe case law instructs us that, in the absence of a gross abuse of discretion, we are bound by the trial court’s findings of fact in an issue such as the one presented here. I would, therefore, affirm on the basis of the Opinion of Honorable Herbert A. Schaffner.

      1. The opinion of the court below at footnote 1 indicates that the January 4, 1987, date "was an error and was intended to mean 1988.”

      . The original writ was served on the agent of the company insuring the defendants on the same date, and this was done in agreement with the agent and the plaintiffs counsel. See Plaintiffs Answer To New Matter With Additional New Matter, Paragraph 31.

      . In Dauphin County, it has been the practice for the prothonotary’s office to prepare the writ, upon receiving the appropriate praecipe, and then for the prothonotary’s clerk to deliver the writ to the sheriff for service. No act is required of the plaintiff to get the writ to the sheriff, and the Dauphin County sheriff imposes no requirement that its service costs be prepaid. Rather, the sheriff files his return, with an indication of his costs, and the costs are then docketed to the case or billed to the attorney. See Lower Court Opinion at page 4.

      . Now found at Pa.R.Civ.P. 400(a).

      . Rule 402(b) reads in relevant part:
      In lieu of service under this rule, the defendant or his authorized agent may accept service of original process by filing a separate document....