author: HUDOCK, Judge: MONTEMURO, Judge, BECK, Judge,

text:
    582 A.2d 1093
    In the Matter of Jelbert HUFF, Jr., a minor. Appeal of Jelbert HUFF, Jr.
    Superior Court of Pennsylvania.
    Argued March 30, 1990.
    Filed Nov. 21, 1990.
    Petition for Allowance of Appeal Granted March 5, 1991.

      Thomas D. Heberle, Corry, for appellant.
    D. Sherwood Jones, Asst. Dist. Atty., Erie, for Com., participating party.
    Before CIRILLO, President Judge, and WIEAND, McEWEN, MONTEMURO, BECK, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   HUDOCK, Judge:

On April 26, 1987, the Appellant, who was then 17 years old, was involved in an automobile accident in which the vehicle he was driving struck and killed a seven-year-old boy. On May 14, 1987 the Pennsylvania State Police issued two citations charging the Appellant with reckless driving and driving at an unsafe speed. A hearing was held June 2, 1987, on the two summary traffic offenses before a district justice. At the conclusion of the hearing, the Appellant was found guilty of both summary offenses. On July 15, 1987, the Erie County Juvenile Probation Department filed a delinquency petition charging the Appellant with one count of homicide by vehicle. The petition was later amended to include an additional allegation of aggravated assault. The Appellant claims that the Commonwealth is prevented from proceeding on the petition on the grounds of double jeopardy and collateral estoppel. The trial court held that the Commonwealth was not barred. We affirm.

The issue before this Court can be summarized as follows: Whether the concepts of double jeopardy or collateral estoppel as embodied in the Fifth Amendment to the United States Constitution prevent the Commonwealth from proceeding against the Appellant in juvenile court on charges of homicide by vehicle and aggravated assault following his prior conviction of two summary traffic violations before a district justice.

We note at the outset that a recent panel of this Court in Commonwealth, v. Evers, 381 Pa.Super. 568, 554 A.2d 531 (1989), held that “the constitutional protections of the double jeopardy clause are not implicated where a felony or misdemeanor prosecution is preceded by a conviction before a district justice, whether by summary trial or guilty plea for a summary offense”. That court reached its conclusion based on dicta in Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), later repeated in Commonwealth v. Taylor, 513 Pa. 547, 522 A.2d 37 (1987), stating, “The disposition of a summary offense in a traffic matter prior to the trial of a misdemeanor or felony does not present the type of government harassment of a defendant that would offend double jeopardy concerns.” In Commonwealth v. LaBelle, 397 Pa.Super. 179, 579 A.2d 1315 (1990) (en banc), we found the Evers court’s reliance on this language misplaced because both Taylor and Beatty involved the application of 18 Pa.C.S.A. § 110 and the compulsory joinder rule of Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) (“Campana IT’). Neither case purported to deal with the constitutional protections of the double jeopardy clause as applicable to summary offenses. Finding the decision was based on this misinterpretation of Beatty and Taylor, we overruled that decision in LaBelle, holding that the “double jeopardy clause of the Fifth Amendment may indeed serve to bar prosecution of a more serious offense once a defendant has been convicted on a summary charge, if the requirements of case law are met.” LaBelle at 189, 579 A.2d at 1320.

It is well settled that the constitutional prohibition against double jeopardy is applicable to juvenile proceedings. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), In the Interest of R.R., supra, In the Interest of George S., Ill, 286 Pa.Super. 217, 428 A.2d 650 (1981). See also Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).

In deciding whether the double jeopardy clause would bar an adjudication of delinquency in the present case, we are guided by the recent decision of the United States Supreme Court in Grady v. Corbin, — U.S.-, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). In that case, two traffic citations were issued to the defendant; one charging driving while intoxicated and the other charging failing to keep to the right. Three days later an assistant district attorney began gathering evidence for a homicide prosecution but failed to inform the town court of that investigation or ascertain when the defendant was scheduled to appear for trial on the summary offenses. The defendant later pled guilty to the two traffic offenses. When a grand jury brought back an indictment two months later charging the defendant with reckless manslaughter, second degree vehicular manslaughter, and criminally negligent homicide, the defendant sought a writ of prohibition barring prosecution on all counts of the indictment claiming double jeopardy barred the prosecution. In upholding his claim, the Supreme Court held that in determining whether or not subsequent prosecution is barred by double jeopardy, the court must first apply the traditional test first enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). “If application of the test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred”. Grady at-, 110 S.Ct. at 2090, citing Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The test for determining whether an offense is a lesser included offense is whether each and every element of the lesser offense is necessarily an element of the greater offense. Commonwealth v. Thomas, 376 Pa.Super. 455, 546 A.2d 116, app. den. 520 Pa. 616, 554 A.2d 509 (1988); Commonwealth v. Pemberth, 339 Pa.Super. 428, 489 A.2d 235 (1985); Commonwealth v. Williams, 299 Pa.Super. 278, 445 A.2d 753 (1982). The court in Grady also found that this is not the only standard for determining whether violations of the double jeopardy clause exist. “[T]he double jeopardy clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted”. Grady at-, 110 S.Ct. at 2093. “The critical inquiry is what conduct the state will prove, not what evidence the state will use to prove that conduct”. Id.

Applying the analysis employed by the Supreme Court in Grady to the present case, we must first determine whether the intended prosecution would violate the parameters announced in Blockburger, supra. The offense of reckless driving is defined in Section 3714 of the Motor Vehicle Code as follows: “Any person who drives a vehicle in careless disregard for the safety of persons or property is guilty of reckless driving, a summary offense.” 75 Pa.C.S.A. § 3714. The driving vehicle at safe speed provision provides, inter alia:

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead.

75 Pa.C.S.A. § 3361. A technical comparison of the elements necessary to prove these two summary offenses with the elements of aggravated assault fails to demonstrate that the Commonwealth is attempting to prosecute the Appellant for a lesser included offense under Blockburger, supra. Aggravated assault, as alleged by the Commonwealth in the instant case; requires proof that a person “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702. While both reckless driving and driving at an unsafe speed require proof that the Appellant was driving a vehicle, aggravated assault does not. Additionally, aggravated assault requires proof that the Appellant attempted to inflict serious bodily injury or that serious bodily injury occurred; an element of proof not required for either of the summary charges here involved. Since aggravated assault and the two summary charges each require an element of proof which the other does not, they are clearly not the same offense.

Homicide by vehicle requires the Commonwealth to prove that (1) the Appellant drove in a manner that violated the Motor Vehicle Code, (2) the Appellant knew or should have known that his conduct violated the law and (3) the death was the probable result of the Motor Vehicle Code violation. Commonwealth v. Uhrinek, 518 Pa. 532, 544 A.2d 947 (1988); See also In the Interest of Hyduke, 371 Pa.Super. 380, 538 A.2d 66 (1988). Since evidence of a speed violation is not always necessary to prove a charge of homicide by vehicle, 75 Pa.C.S.A. § 3361 is not a lesser included offense. In the Interest of R.R., supra.

It appears however, that reckless driving is properly considered a lesser included offense of homicide by vehicle. The only proof necessary to establish reckless driving is that the Appellant drove a vehicle in careless disregard for the safety and property of others. Commonwealth v. Glassman, 359 Pa.Super. 230, 518 A.2d 865 (1986), app. den. 515 Pa. 574, 527 A.2d 535 (1987). The mens rea of reckless driving, “careless disregard”, implies “less than willful or wanton conduct ... [but] ... more than ordinary negligence or the mere absence of care under the circumstances____” Commonwealth v. Podrasky, 250 Pa.Super. 57, 378 A.2d 450 (1977). Likewise, in order to prove homicide by vehicle, the Commonwealth must prove more than ordinary negligence, Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575 (1987), and there must be proof that the defendant’s conduct was “criminally negligent” or “reckless”. Commonwealth v. Heck, supra; Common wealth v. Scheuing, 517 Pa. 407, 537 A.2d 1370 (1988). Since both elements of reckless driving, i.e., the actus reus of driving a vehicle and the mens rea of careless disregard, will necessarily be proven in a prosecution for homicide by vehicle, we conclude that reckless driving is a lesser included offense of homicide by vehicle. Thus, absent an exception to the applicability of the double jeopardy clause, prosecution of the homicide by vehicle charge would be barred under Blockburger, supra.

Although we concluded earlier that neither failure to drive at a safe speed nor reckless driving were lesser included offenses of aggravated assault, our inquiry does not stop. As instructed by the Supreme Court in Grady v. Corbin, supra, we must next look to determine whether the Commonwealth, in supporting the delinquency petition, is attempting to reprove conduct which formed the bases for the Appellant’s convictions on the summary offenses. While the Commonwealth is not prevented from using any of the evidence presented in the first prosecution, or presenting new evidence, no evidence may be introduced which would prove conduct constituting an offense for which the Appellant had previously been convicted. From the opinion of the trial court, it appears that the Commonwealth concedes that it would rely on the Appellant’s summary convictions in proving the allegations of delinquency. Notably, the Commonwealth does not dispute this fact. Thus, based on the record before us, it would appear that proceeding on the petition would violate Grady’s “same conduct” test. It is the Commonwealth’s assertion however, that a jurisdictional exception to the double jeopardy clause should be recognized since no single court had jurisdiction over both the summary offenses and the delinquency proceeding.

Justice Brennan, in his concurring opinion in Ashe v. Swenson, 397 U.S. 436, 457 n. 7, 90 S.Ct. 1189, 1199 n. 7, 25 L.Ed.2d 469 (1970), recognized three exceptions to the double jeopardy clause, one being the jurisdictional exception. Simply stated, if no single court has jurisdiction over all the alleged crimes, an exception to the double jeopardy clause would exist. See Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912) (Jeopardy cannot extend to an offense beyond the jurisdiction of the court in which the accused is tried); Daniel v. Warden, State Correctional Institution at Huntington, Pa., 794 F.2d 880 (1986). While the United States Supreme Court has neither explicitly accepted nor rejected the exception, we find compelling reasons justifying the express recognition of such an exception in instances where juvenile adjudications are preceded by a disposition of summary offenses before a district justice.

Our legislature has created a separate legal system for the adjudication of juvenile offenders. The Juvenile Act, 42 Pa.C.S.A. §§ 6301, et seq., (the Act), grants jurisdiction to the juvenile court over proceedings in which a child is alleged to be delinquent or dependent. Id. at § 6303. Under the Act, “delinquent act” is defined as “an act designated a crime under the law of this Commonwealth ... [but] ... shall not include: (ii) summary offenses____” 42 Pa.C. S.A. § 6302. As for district justices, 42 Pa.C.S.A. § 1515 provides that “[ejxcept as otherwise prescribed by general rule adopted pursuant to § 503 (relating to reassignment of matters), district justices shall, under procedure prescribed by general rule, have jurisdiction of all of the following matters: (i) Summary offenses____” Finally, the Motor Vehicle Code provides that “[a]ny person over the age of 16 years charged with the violation of any provisions of this title constituting a summary offense shall have all the rights of an adult and may be prosecuted under the provisions of this title in the same manner as an adult.” 75 Pa.C.S.A. § 6303.

The juvenile court, then, is without jurisdiction to hear summary offenses. The basis for this division in jurisdiction lies in the divergent goals sought to be achieved by the criminal and juvenile court systems. Cf., In the Interest of Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1981) (plurality). While at least one of the purposes of the criminal justice system is to punish individuals who fail to obey the law, the purpose of juvenile proceedings, on the other hand, is to “seek treatment, reformation and rehabilitation, and not to punish.” Id. 436 A.2d at 687. Moreover, while criminal courts employ the adversarial process to secure a conviction of the defendant, there is no provision for “convicting” an adjudicated juvenile of a “crime”. See, In the Interest of Wilson, 367 Pa.Super. 321, 532 A.2d 1167 (1987), allocatur denied Petition of Commonwealth, 520 Pa. 594, 552 A.2d 249 (1988), app. den. 520 Pa. 598, 552 A.2d 252 (1988). The juvenile court system simply “adjudicates” the juvenile, eliminating many of the consequences which would normally result from a criminal conviction. The Act specifically addresses the effect of an adjudication of delinquency. “An order of disposition of other adjudication in a proceeding under this chapter is no t a conviction of crime and does not impose any civil disability ordinarily resulting from a conviction or to operate to disqualify the child in any civil service application or appointment.” 42 Pa.C.S.A. § 6354(a) (Emphasis added). By design, the two systems are separate and are clearly intended to serve different functions.

Recognizing a jurisdictional exception to the double jeopardy clause will allow each system to operate without detriment to the functioning of the other. Under the present architecture of the judicial system, since the jurisdiction of the district justice is not co-extensive with that of the juvenile court, and neither the district justice nor juvenile court can adjudicate both summary and more serious offenses arising out of the same incident, the Commonwealth would necessarily be forced to forego one of the prosecutions. Clearly, our legislature did not intend to place prosecutors in this type of dilemma when it sought to provide an alternative to the treatment of juvenile offenders as criminals.

Recognition of this exception does not run afoul of the rule announced in Grady because the Grady court specifically reaffirmed its recognition that application of its traditional double jeopardy analysis is not without exception. Grady at-, n. 7, 110 S.Ct. at 2090, n. 7, quoting, Brown v. Ohio, supra 432 U.S. at 169 n. 7, 97 S.Ct. at 2227 n. 7. (Citations omitted.) Although the exception first acknowledged in Brown was premised on the absence of facts necessary to sustain the more serious charge, we believe that the unique circumstances presented by this case compel the equal recognition of an exception to the application of the traditional double jeopardy analysis based on the want of co-extensive jurisdiction by the two courts involved. Such an exception fully comports with the spirit of Brown and the protections which the double jeopardy clause was envisioned to afford the criminally accused and, yet, is sensitive to the fact that the Commonwealth was unable to go forward with both the delinquency petition and the trial on the Vehicle Code violations in a single proceeding.

Additionally, this decision is in full accord with our recent decision in Commonwealth v. LaBelle, supra, interpreting Grady v. Corbin, supra. Neither LaBelle nor Grady addressed the applicability of a jurisdictional exception, nor would such an exception be necessary since both of those cases involved situations where the lesser and greater offenses could have been joined, thereby enabling a single prosecution.

Having adopted this jurisdictional exception, we hold that the double jeopardy clause does not bar the Commonwealth from proceeding with the delinquency petition, despite the fact that the Appellant was found guilty of vehicle code offenses in a prior proceeding held before a district justice.

The order is affirmed and the case is remanded for further proceedings. Jurisdiction is relinquished.

MONTEMURO, J., files a concurring statement.

BECK, J., files a dissenting opinion, WIEAND, J., joins.

MONTEMURO, Judge,

concurring statement:

While I agree with the Majority’s ultimate resolution of appellant’s claim, I write separately to express my belief that because of the singular focus of this case on the interaction between juvenile and criminal courts in relation to double jeopardy, those prior cases which involve only the criminal system, viz., Commonwealth v. LaBelle, 397 Pa.Super. 179, 579 A.2d 1315 (1990) (en banc); Commonwealth v. Evers, 381 Pa.Super. 568, 554 A.2d 531 (1989), are in fact jurisdictionally and factually irrelevant. As the Act makes clear, delinquency specifically excludes summary offenses. 42 Pa.C.S.A. § 6302. Therefore, unlike the situation obtaining in the cited cases, joinder was understood to be an impossibility.

BECK, Judge,

dissenting:

On June 2, 1987, 17 year old appellant Jelbert Huff, Jr., stood trial and was convicted of reckless driving and driving at an unsafe speed. Today this court concludes that, because of perceived statutory limitations on the courts in which he was and will be tried, appellant can be tried once again for the same offense. In my view, the majority’s holding is an unwarranted violation of appellant’s fundamental guarantee against double jeopardy. I respectfully dissent.

The constitutional guarantee respecting double jeopardy embodies three protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). In the instant case we are particularly concerned with the second of these protected interests. With respect to that protection, the Supreme Court has emphasized:

The constitutional prohibition against “double jeopardy” was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense____ The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957).

Last term, in Grady v. Corbin, — U.S.-, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548, 564 (1990), the Supreme Court explained that, “the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of the offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” In Grady v. Corbin, in a fact pattern similar to the instant case, the defendant pled guilty to traffic charges of driving while intoxicated and failing to keep right of the median. The charges arose from a fatal automobile accident. Two months after the guilty pleas had been entered, the defendant Corbin was indicted on charges of vehicular manslaughter, reckless assault and negligent homicide. The New York Court of Appeals held that double jeopardy barred the second prosecution because the State intended to rely on the prior traffic offenses to prove the homicide and assault charges. The United States Supreme Court affirmed, stressing that the successive prosecution was barred by double jeopardy because the conduct the state would prove in the second trial was concededly and indisputably conduct for which Corbin had already been prosecuted. As such it constituted the “same offense” for purposes of double jeopardy analysis.

The majority correctly recognizes that Grady v. Corbin would govern the result in this case and, once applied, would bar reprosecution had appellant been an adult at the time the offenses were committed. See also Commonwealth v. LaBelle, 397 Pa.Super. 179, 579 A.2d 1315 (1990) (en banc). However, the majority avoids the impact of Grady v. Corbin and denies to this defendant the full extent of double jeopardy protection by carving out a wholly unwarranted “jurisdictional exception” to the- operation of the double jeopardy guarantee.

The majority arrives at this conclusion by what is, in my view, a strained and unnecessarily technical reading of various statutory provisions governing the adjudication of summary offenses and of delinquency petitions in juvenile court. However, even if I agreed with the majority’s conclusion that “no single court had jurisdiction over both the summary offenses and the delinquency proceeding”, I nevertheless would find this prosecution barred. Double jeopardy protection against multiple trials for the same offense cannot be eroded by the statutory device of creating courts of limited jurisdiction within a single sovereignty.

As the majority acknowledges, the “jurisdictional exception,” upon which it bases its denial of double jeopardy protection to this defendant, has never been expressly articulated or adopted by the Supreme Court outside the context of “dual sovereignty.” Simply stated, the “jurisdictional exception” which had, in some instances, constituted an exception to the general application of double jeopardy principles is that if a defendant has been convicted of a lesser offense in an inferior court which had no jurisdiction over the greater offense, that defendant may be tried for the greater offense and double jeopardy will not bar the subsequent prosecution. Whatever brief life the “jurisdictional exception” enjoyed in Pennsylvania in the guise of Commonwealth v. Evers, 381 Pa.Super. 568, 554 A.2d 531 (1989), has now fully been put to rest in this court’s en banc decision in Commonwealth v. LaBelle, supra. The majority acknowledges this in the first section of its opinion.

The “jurisdictional exception” has fared no better elsewhere. In fact, the case upon which the majority relies for its bald assertion of a “jurisdictional exception”, i.e. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912), can no longer be thought to have much, if any, vitality in the face of double jeopardy jurisprudence that has developed since Diaz was decided. See Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) (a municipal court and a state court cannot place defendant on trial twice for the same criminal conduct despite argument that they constitute distinct sovereignties); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Grady v. Corbin, supra. The rejection of the “jurisdictional exception” by many states and federal courts in recent years in the wake of Waller, etc., is based on the sound, indeed compelling, rationale that the double jeopardy guarantee is not so fragile as to be dependent upon the jurisdictional limitations states may choose to impose within a multifaceted judicial system.

I find persuasive the court’s reasoning in Commonwealth v. Norman, 27 Mass.App. 82, 534 N.E.2d 816, 820, aff'd, 406 Mass. 1001, 545 N.E.2d 1155 (1989):

If ... the constitutional law of the land forb[ids] successive prosecutions for the same criminal act, that doctrine ought not to be subverted because courts of limited jurisdiction ha[ve] been established within the same sovereign. For the defendant obliged to run the gauntlet more than once, the ordeal would not be less painful because the several courts he was haled before had discrete jurisdiction.

The majority attempts to revive the deteriorated so-called “jurisdictional exception” in the instant case by drawing two distinctions, neither of which persuades me to deprive appellant of his double jeopardy protection. First, the majority emphasizes that, due to its interpretation of the jurisdictional limits of district justice court and juvenile court, the charges in the instant case could not have come before a single tribunal. Therefore, in order that the prosecution not be forced to forego either the summary offense prosecution or the delinquency adjudication, the appellant’s double jeopardy rights may be sacrificed through the imposition of successive trials for the same offense. Putting aside for a moment the majority’s too narrow statutory interpretation on the jurisdictional limits involved here, my response to this position is simple. The courts of this Commonwealth are part of a unified, state judicial system, the jurisdictional limits of which are set by a single sovereign through legislative action. Commonwealth v. Downs, 334 Pa.Super. 568, 483 A.2d 884, 887 (1984). Both the district justice court and the juvenile court derive their power and authority from the same source. The Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution guarantee to our citizens, adults and juveniles alike, that they will be free from successive prosecutions for the same offense. Our legislature cannot escape this constitutional mandate by creating courts with mutually exclusive jurisdiction over greater and lesser criminal offenses. The integrity of the jurisdictional scheme created by the legislature surely cannot take precedence over the fundamental constitutional rights embodied in the double jeopardy clause. I agree with the court in Salaz v. Tansy, 730 F.Supp. at 373, which stated: “When the state controls prosecutions in its multilevel judicial system, the double jeopardy clause is a defendant’s only protection.” Defendants cannot be stripped of this protection by manipulating the jurisdiction of the courts through which they must suffer their multiple trials.

Further, I cannot agree with the majority that its denial of double jeopardy protection to this appellant is justified because of “the divergent goals sought to be achieved by the criminal and juvenile systems”. Nor can I conclude that because the juvenile court system “simply ‘adjudicates’ the juvenile” that therefore he is entitled to only a diluted form of double jeopardy protection. These assertions by the majority fly in the face of the realities of the juvenile court process, and more importantly, contravene the long-standing constitutional guarantees fashioned by the Supreme Court.

The arguments posited by the majority are precisely those rejected by the Supreme Court when it first applied double jeopardy protection to juvenile delinquency proceedings. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). There, too, the state argued that since the purposes of the juvenile justice system were benign and not intended to be punitive, the policies underlying the double jeopardy protection were not implicated. The Court emphatically rejected this suggested approach. Pointing to recent decisions in which the Court had extended various constitutional guarantees to juveniles, the Supreme Court noted that they were motivated by the recognition that, “there is a gap between the originally benign conception of the [juvenile justice] system and its realities”. Breed v. Jones, 421 U.S. at 528, 95 S.Ct. at 1785. Moreover, the Court emphasized that the double jeopardy guarantee was not meant only to protect against multiple criminal punishments. It was and is intended to spare citizens the ordeal of multiple trials. With respect to the “trials” involved in that case, the Court said: “[T]here is little to distinguish an adjudicatory hearing such as was held in this case from a traditional criminal prosecution. For that reason, it engenders elements of ‘anxiety and insecurity’ in a juvenile, and imposes a ‘heavy personal strain’.” 421 U.S. at 530, 95 S.Ct. at 1786. The Breed Court concluded that, twice being subjected to that burden, twice being put to the task of defending against the same charges brought by the state and twice experiencing the “heavy personal strain” of being tried for the same offense, is exactly the plight the double jeopardy guarantee assures against. 421 U.S. at 533, 95 S.Ct. at 1787. Finally, the Supreme Court rejected the argument which the majority here apparently embraces, i.e. that extending the double jeopardy guarantee to juvenile proceedings would somehow diminish the flexibility and informality of the juvenile justice system. It concluded instead that: “[T]he burdens that [the state] envisions appear to us neither qualitatively nor quantitatively sufficient to justify a departure in this context from the fundamental prohibition against double jeopardy.” 421 U.S. at 537, 95 S.Ct. at 1789. Therefore, on the basis of Breed, a denial of double jeopardy protection to this juvenile cannot be supported by the distinction between a juvenile delinquency proceeding and an adult criminal trial.

Finally, to the extent that the majority’s conclusion today is dictated by its reading of the statutory jurisdictional scheme at work here, I suggest that it is erroneous. As the majority points out, various jurisdictional provisions operate to define in which courts and under what procedural circumstances summary offenses and delinquency petitions may be adjudicated. In particular, the majority notes that 42 Pa.Cons.Stat.Ann. § 1515 (Purdon 1981) gives district justices jurisdiction over summary offenses. Moreover, the Motor Vehicle Code provides that juveniles between the ages of 16 and 18 who are charged with summary motor vehicle offenses have the rights of an adult and “may be prosecuted under the provisions of this title in the same manner as an adult.” 75 Pa.Cons.Stat.Ann. § 6303 (Purdon 1977). In addition, juvenile court jurisdiction, which is defined in the Juvenile Act, extends to “proceedings in which a child is alleged to be delinquent or dependent” and to “transfers under section 6322 (relating to transfer from criminal proceedings)”. 42 Pa.Cons.Stat.Ann. § 6303(a)(1) and (2) (Purdon 1982). The final statutory provision which applies to today’s inquiry is the definitional portion of the Juvenile Act which states that a “delinquent act” does not include “summary offenses.” 42 Pa.Cons.Stat.Ann. § 6302 (Purdon 1982). With very little case law to guide it, the majority concludes that, based on its reading of these statutes together, “neither the district justice nor juvenile court can adjudicate both summary and more serious offenses arising out of the same incident.” I disagree.

I would hold that the above-described statutory scheme does not preclude bringing within a single proceeding before the juvenile court, both the delinquency petition alleging a delinquent act and the summary offenses. I arrive at this conclusion by a straightforward reading of the statutory language. In addition, unless the statutes are so interpreted senseless anomalies arise from the case law which discusses original and transfer jurisdiction of juvenile court over summary offenses.

While the Juvenile Act precludes the use of summary offenses as the basis for an adjudication of delinquency, nothing in the act deprives the juvenile court of jurisdiction to adjudicate summary charges which are filed as part of a proceeding in which a child is alleged to be delinquent. The Act specifically gives juvenile court jurisdiction over such proceedings. In the instant case, for example, the delinquency petition charged appellant with aggravated assault and homicide by vehicle. Only these charges could form the basis of a finding of delinquency and its attendant consequences. Yet during the same proceeding, the juvenile court is not without power to hear the summary charges. Nothing inherent in the nature of the juvenile court deprives it of the power to adjudicate summary charges.

This is plain because the juvenile court has been held to have jurisdiction over a summary offense alone (without the filing of a delinquency petition) if the summary offense is transferred to juvenile court under section 6322 after an appeal de novo has been taken to the court of common pleas from a summary conviction. Thus, in Commonwealth v. Alan D., 291 Pa.Super. 298, 435 A.2d 1231 (1981), a 12 year old juvenile appealed from a summary conviction of criminal mischief. His de novo appeal was taken to the Court of Common Pleas of Berks County. The trial judge transferred the case under section 6322 to the juvenile court. The juvenile court then found the defendant guilty beyond a reasonable doubt of the summary charges and imposed a fine and ordered restitution. On the other hand, the juvenile court found that since the defendant had not committed a delinquent act within the meaning of the statute, he could not be adjudged a delinquent child. This court affirmed the actions of the courts below. Accord, Commonwealth v. Kirk J., 293 Pa.Super. 487, 439 A.2d 680 (1981). Given Alan D. and Kirk J., I fail to see how the majority can conclude that “juvenile court, then, is without jurisdiction to hear summary offenses.” Clearly, this is not the case.

I decline to interpret the applicable statutes to arrive at the anomalous result the majority achieves here, whereby juvenile court could adjudicate summary charges when jurisdiction is obtained through the transfer provisions of section 6322 but is without power to adjudicate the same charges when they accompany a petition for delinquency in a proceeding under section 6303(a)(1). No rational purpose would be served by such a result and the majority offers no explanation for the illogical anomaly.

The majority attempts to escape the force of this argument by suggesting that the result it reaches is necessitated by the operation of section 6303 of the Motor Vehicle Code. That section provides that juveniles between 16 and 18 years of age who are charged with summary vehicle offenses “have all the rights of an adult and may be prosecuted under the provisions of this title in the same manner as an adult.” 75 Pa.Cons.Stat.Ann. § 6303 (Purdon 1977). The majority then cites the language of the Juvenile Act regarding transfer of criminal proceedings to juvenile court when it appears that the defendant is a child. 42 Pa.Cons.Stat.Ann. § 6322 (Purdon Supp.1990). In pertinent part, section 6322 provides:

Except as provided in 75 Pa.C.S. § 6303 (relating to the rights and liabilities of minors), or in the event the child is charged with murder or has been found guilty in a criminal proceeding, if it appears to the court in a criminal proceeding, that the defendant is a child, this chapter shall immediately become applicable, and the court shall forthwith halt further criminal proceedings, and where appropriate, transfer the case to the division or a judge of the court assigned to conduct juvenile hearings____

The majority reads the foregoing section as excluding summary offenses from the jurisdiction of the juvenile court. I read it as permitting courts involved in criminal proceedings to retain jurisdiction over summary motor vehicle offenses where the offender is between 16 and 18 years old. As such, section 6303 of the motor vehicle code operates as an exception to the general mandate of section 6322 of the Juvenile Act which seeks to have criminal proceedings against children adjudicated in juvenile court. However, I do not agree that section 6322 either precludes transfer of such cases to juvenile court or, more importantly, denies juvenile court jurisdiction over such offenses if they are filed as part of a delinquency proceeding. The motor vehicle code, using clearly permissive language, provides that juveniles between 16 and 18 may be prosecuted as adults for summary offenses. It does not provide that they shall be prosecuted as such. The motor vehicle provision does not, in my view, strip juvenile court of authority to act if such charges are filed at a delinquency proceeding or are transferred from a criminal proceeding pursuant to section 6322.

It is clear that the legislative policy underlying Section 6303 of the Motor Vehicle Code was to treat juveniles between the ages of 16 and 18 as adults in ordinary cases of summary offenses. The special qualities of the juvenile system were not required for adjudication of summary offenses. However, I can not believe that the legislature intended to deprive the juvenile court of jurisdiction in summary offenses where the juvenile court had jurisdiction generally over the matter. As a matter of policy there is nothing about summary offenses which make the juvenile court an inappropriate forum. Nor is there anything about the functioning of the court system as a whole that makes the juvenile court an inappropriate forum.

Permitting the joint adjudication of both the summary motor vehicle charges and the allegations of delinquency in a single proceeding before the juvenile court would have avoided the double jeopardy question at issue here and would not contravene jurisdictional limits imposed by statute. Moreover, I see no inherent policy considerations which would argue against such a proceeding. However, I wish to re-iterate that even if the legislature had intended to create the mutually exclusive jurisdiction that the majority finds here and even if the Commonwealth would therefore have to forego one or the other prosecution, my response would be the same. Appellant cannot, consistent with the constitutional prohibition against double jeopardy, be forced to submit to successive prosecutions for the same offense. No amount of jurisdictional juggling can deprive him of this fundamental guarantee.

WIEAND, J., joins in this dissenting opinion.

      . 75 Pa.C.S.A. § 3714.

      . 75 Pa.C.S.A. § 3361.

      . 75 Pa.C.S.A. § 3732.

      . 18 Pa.C.S.A. § 2702.

      . Appellant’s collateral estoppel argument is without merit. Collateral estoppel requires that where an ultimate fact has been necessarily established in favor of a defendant in a former prosecution, the issue may not be re-litigated in any subsequent proceeding against the defendant. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). See also In the Interest of R.R., 317 Pa.Super. 334, 464 A.2d 348 (1983). In the present case, the Appellant was found guilty of both summary offenses.

      . There has been some confusion as to whether a court should limit its inquiry to the statutory elements of the offenses alleged, or should consider the factual circumstances of the case in determining if two offenses are the “same offense” under Blockburger, supra. See Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); Illinois v. Vitale, supra. However, in view of the recent holding in Grady v. Corbin, supra, which provides for an examination of the conduct alleged in determining if two offenses are the same for double jeopardy purposes after the application of Blockburger, we find it appropriate to limit our discussion only to a comparison of the statutory elements of the crimes. See generally Commonwealth v. LaBelle, supra.

      . We note that a panel of this court in Commonwealth v. Spurgeon, 285 Pa.Super. 563, 428 A.2d 189 (1981), determined that a prior acquittal of reckless driving would not preclude prosecuting the defendant on a charge of homicide by vehicle. In rejecting the argument that reckless driving is a necessary element of homicide by vehicle, the court held that "(s]ection 3732 does not require a showing of reckless or negligent culpability on the defendant’s part in order to sustain a conviction and creates strict criminal liability without regard to any scienter element.” This decision was overruled however, sub silentio, in Commonwealth v. Heck, supra.

      . In this case, our conclusion that reckless driving is a lesser included offense of homicide by vehicle is further supported by the Commonwealth's concession, discussed more fully infra, that it intends to rely on the convictions of the summary offenses, presumably including the reckless driving conviction, to meet its burden in the delinquency proceeding.

      . We note that New Mexico adopted a jurisdictional exception in State v. Goodson, 54 N.M. 184, 217 P.2d 262 (1950) where the court held that the appellant’s conviction on assault and battery in the justice court did not bar a later prosecution for rape because the justice of the peace did not have jurisdiction to hear the felony rape charge. The New Mexico Supreme Court reaffirmed its position in State v. Manzanares, 100 N.M. 621, 674 P.2d 511 (1983) aff’d sub nom. Fugate v. New Mexico, 470 U.S. 904, 105 S.Ct. 1858, 84 L.Ed.2d 777 (1985), reasoning that because the magistrate did not have jurisdiction over the felony charge, the exception was applicable to a prosecution for homicide by vehicle before a magistrate after conviction of several misdemeanor traffic offenses. The jurisdictional exception which we adopt is necessary because neither the district justice nor the juvenile court had jurisdiction over both matters, unlike New Mexico where only the magistrate lacked jurisdiction over the felony charge.

      . We note that there is authority holding that juvenile court has jurisdiction to hear summary offenses where, at a de novo hearing before the court of common pleas, the child seeks to have his case transferred to juvenile court on the grounds that 75 Pa.C.S.A. § 6303 was not applicable to him because of his age and, based on this section, the court had no jurisdiction over him. Commonwealth v. Kirk, 293 Pa.Super. 487, 439 A.2d 680 (1981). While expressing no opinion as to the propriety of this decision, we note that in the present case, 75 Pa.C.S.A. § 6303 is clearly applicable and Appellant received his rights as an adult under the statute.

      . By virtue of 75 Pa.C.S.A. § 6303, a juvenile charged with a summary vehicle offense has all the rights of an adult. Thus, the juvenile cannot be required to submit to the informality of the juvenile hearing. Moreover, there is no indication that all charges could have been brought in criminal court. 42 Pa.C.S.A. § 6322 provides, "[e]xcept as provided in 75 Pa.C.S.A. § 6303 (relating to the rights and liabilities of minors), if it appears to a court in a criminal proceeding other than murder, that the defendant is a child, the court shall halt further criminal proceedings and, where appropriate, transfer the case to the division or a judge of the court assigned to conduct juvenile hearings----” Clearly then, exclusive jurisdiction over juveniles charged with offenses other than murder or summary vehicle offenses lies with the juvenile court. See Commonwealth v. Zoller, 345 Pa.Super. 350, 498 A.2d 436 (1985).

      . Unlike the "jurisdictional exception” upon which the majority relies, the doctrine of dual sovereignty persists as an exception to the prohibition against double jeopardy. If the two entities which seek successively to prosecute a defendant are separate sovereigns, double jeopardy will not bar reprosecution. The underlying principle upon which dual sovereignty rests is that separate sovereigns have the right to enforce their own laws. A violation of law is an offense against the "peace and dignity” of the individual sovereign and each sovereign retains the right to vindicate the breach of its authority. See United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922). The heart of the concept of dual sovereignty lies in the source of the power and authority in whose name the prosecution is undertaken. See Heath v. Alabama, 474 U.S. 82, 89-90, 106 S.Ct. 433, 437-38, 88 L.Ed.2d 387 (1986). Thus, the doctrine applies to federal and state prosecutions, successive individual state prosecutions, and federal and tribal prosecutions. It clearly has no applicability for successive prosecutions within a single sovereign. See Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970).

      . See, e.g., Culberson v. Wainwright, 453 F.2d 1219, 1220 (5th Cir. 1972); Salaz v. Tansy, 730 F.Supp. 369, 371 (D.N.M.1989) (and cases cited therein); Robinson v. Neil, 366 F.Supp. 924 (E.D.Tenn.1973); Commonwealth v. Norman, 27 Mass.App. 82, 534 N.E.2d 816, 820, affirmed, 406 Mass. 1001, 545 N.E.2d 1155 (1989); May v. State, 726 S.W.2d 573, 577 n. 7 (Tex.Cr.App.1987).

      . As the majority notes, New Mexico apparently clings to the "jurisdictional exception” to double jeopardy protection, seemingly alone in its resolve to do so. See State v. Fugate, 101 N.M. 58, 678 P.2d 686 (1984) , aff’d sub nom., 470 U.S. 904, 105 S.Ct. 1858, 84 L.Ed.2d 777 (1985) (affirmed by an equally divided Supreme Court). I do not read this affirmance by an equally divided court as a definitive or precedential adoption of the "jurisdictional exception”. In any event, the former Mr. Justice Brennan noted in his majority opinion in Grady v. Corbin, supra, — U.S. at-n. 2, 110 S.Ct. at 2087 n. 2, 109 L.Ed.2d at 557 n. 2, that the double jeopardy issue facing the Court in Corbin had been raised before in Fugate but had been left unresolved. In Corbin the Supreme Court resolved the issue that remained open after Fugate. It found that the double jeopardy clause barred a subsequent prosecution for a greater offense in a court of general jurisdiction if, in order to establish an essential element of that offense, the prosecu.tion would prove conduct for which the defendant had already been tried in traffic court. Both Corbin and Fugate (as well as the case at bar) involved attempted successive prosecutions for charges arising from a fatal automobile accident in which the defendant previously had been tried in traffic court on the traffic offense. Corbin disallowed the type of prosecution at issue in Fugate, and, consequently, impliedly rejected New Mexico’s jurisdictional exception.

      . In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

      . My research has revealed one decision which has addressed the adjudication by juvenile court of summary charges which were filed in a delinquency proceeding in which a child was alleged also to have committed a delinquent act. In re Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1981). In that case a lone member of the panel concluded that summary charges could not be adjudicated in this fashion by a juvenile court sitting for a delinquency proceeding. The two additional panel members concurred only in the result. I find Leonardo unpersuasive. First, its holding reflects the reasoning of only one judge. Second, although Leonardo was filed just a few weeks after Alan D., it makes no reference to it nor does it attempt to distinguish it. In my view, both Alan D. and Kirk I, are inconsistent with the rationale underlying the one panel member’s opinion in Leonardo. Leonardo has never been relied upon for the conclusion that juvenile court is without power to adjudicate summary charges when they are charged along with a delinquency proceeding alleging delinquent acts. Until today, this court has never so held.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    582 A.2d 1106
    Shani GILMORE, a Minor by Her Parents and Natural Guardians Marvin GILMORE and Sheila Gilmore, and Marvin Gilmore and Sheila Gilmore, in Their Own Right, Appellants, v. Victoria K. DONDERO, Appellee.
    Superior Court of Pennsylvania.
    Argued June 13, 1990.
    Filed Nov. 29, 1990.

      Robert M. Nissenbaum, Philadelphia, for appellants.
    Before BECK, POPOVICH and HESTER, JJ.
   BECK, Judge:

The central issue on appeal is whether the trial court abused its discretion in reducing the amount of counsel fees payable out of the proceeds of a compromise of a minor’s claim from the one-third fee agreed to between counsel and the minor’s parents to a one-quarter fee. We find no abuse of discretion and affirm.

On May 20, 1988, Shani Gilmore, then 9 years old, was injured when she was struck by a car operated by Victoria Dondero. Ms. Dondero was insured by Aetna Casualty and Surety Insurance Company for $100,000 liability coverage. Sheila and Marvin Gilmore, Shani’s parents (appellants), had auto coverage including substantial underinsured motorist coverage with Allstate Insurance Company. The Gilmores retained counsel, Nissenbaum & Kaufman (co-appellant), to secure compensation for their daughter’s injuries. Counsel began negotiations with Aetna on January 23, 1989 and filed a writ of summons against Ms. Dondero on January 30, 1989. No complaint was ever filed. Rather, Aetna offered to pay its policy limits almost immediately, in February 1989. The Gilmores promptly accepted this offer, after counsel had secured Allstate’s consent to settle and waiver of its subrogation interests. By February 21, 1989 the settlement was accomplished and, on that date, the Gilmores filed a petition seeking court approval of the settlement pursuant to Pennsylvania Rule of Civil Procedure 2039.

The Petition alleged that the settlement amount was $100,000 and that one-third of the net amount after payment of costs ($33,123.01), plus reimbursement for other costs, should be distributed to Nissenbaum & Kaufman pursuant to their contingent fee agreement with appellants. The petition further requested that $10,000 be distributed to appellants for their “loss of services.” The basis for this request was an allegation that both parents were employed and had lost substantial time at their respective jobs when they were either at the hospital with Shani or at home caring for her. The $10,000 was requested as compensation to the parents for their financial loss as a result of this lost time. The remainder of the settlement proceeds were to be paid into an account for the benefit of Shani.

On March 20, 1989, the Gilmores filed an amended petition for approval of the compromise and proposed distribution of the proceeds. The amended petition reiterated the request for distribution contained in the original petition, but also contained further support for counsel’s contention that it was due the full one-third fee and for the Gilmores’ contention that they were due reimbursement for their financial losses. To the amended petition were appended various detailed affidavits describing the effort and time expended by counsel and outlining the alleged financial losses incurred by appellants. One of the losses allegedly incurred was $1,050.00 in lost earnings of appellants’ other daughter, Dawn Gilmore, during the time that she stayed home to care for Shani. On May 30, 1989, the trial court entered an order approving the. settlement, but directing distribution of the proceeds as follows:

To: Nissenbaum & Kaufman Counsel Fees $ 25,000.00
To: Nissenbaum & Kaufman Reimbursement of Costs $ 531.50
To: Dawn Gilmore for services $ 1,050.00
To: Shani Gilmore, a minor and Marvin and Sheila Gilmore, as parents and natural guardians to be placed in a restricted Federally insured account or certificate to be marked, “Not to be withdrawn until September 7, 1995, or upon further Order of the Court.” $ 63,418.50
TOTAL AWARD: $100,000.00

Appellants immediately filed the instant appeal from this order. The trial court then ordered appellants to file a Concise Statement of Matters Complained of on Appeal, pursuant to Pa.R.App.P. 1925(b). In response to this order, appellants timely filed a statement in which they contested the reduction of counsel fees and raised the following two additional issues:

5. The Trial Court abused its discretion in not awarding Petitioners Marvin and Sheila Gilmore $8,000.00 to pay the outstanding balance of medical bills after insurance payments.
6. The Trial Court abused its discretion in not awarding Petitioner Sheila Gilmore compensation for time lost from her employment, particularly that taken as unpaid leave, as a result of her efforts to care for her injured daughter.

On appeal, appellants attempt to expand the issues by alleging trial court errors not contained in their Rule 1925(b) statement. Appellants argue that the trial court erred in refusing to distribute some of the proceeds to Marvin Gilmore for his alleged lost employment time and that the trial court should not have awarded $1,050.00 to Dawn Gilmore, but rather to Marvin and Sheila Gilmore because they have already paid this sum to compensate Dawn.

Matters not raised in a Rule 1925(b) statement may be considered waived by the appellate court. See Pa.R.App.P. 1925(b); Baum v. Baum, 395 Pa.Super. 182, 576 A.2d 1104 n. 1 (1990); cf. Ryan v. Johnson, 522 Pa. 555, 564 A.2d 1237 (1989). However, since the issue regarding reimbursement of Marvin Gilmore for lost earnings presents the same legal question as the properly preserved challenge to the trial court’s refusal to award Sheila Gilmore reimbursement for her lost earnings, and since the trial court did address this issue in his opinion, we will not exercise our right to consider this issue waived. On the other hand, as to the court’s award to Dawn Gilmore, we note that the trial court did not consider this issue in its opinion because the issue was not raised to that court. The trial court was denied the opportunity to address this issue and correct its own error, if one was made, and we therefore do not have the benefit of the trial court’s rationale in support of its decision in this regard. Thus, we will decline to review this allegation of error.

We begin with the challenge to the trial court’s award of counsel fees in the amount of $25,000. The trial court’s award was made pursuant to Pennsylvania Rule of Civil Procedure 2039, relating to court approval of the compromise or settlement of a minor’s claim, which directs the court reviewing the settlement to consider the question of counsel fees:

(b) When a compromise or settlement has been so approved by the court____the court, upon petition by the guardian or any party to the action, shall make an order approving or disapproving any agreement entered into by the guardian for the payment of counsel fees and other expenses out of the fund created by the compromise, settlement or judgment; or the court may make such order as it deems proper fixing counsel fees and other proper expenses.....

Pa.R.C.P. 2039(b).

We have a limited power of review of court awarded fees. As the Supreme Court has so frequently stated, the responsibility for setting such fees lies primarily with the trial court and we have the power to reverse its exercise of discretion only where there is plain error. See Estate of McClatchy, 492 Pa. 352, 424 A.2d 1227, 1230 (1981); In re Estate of Baker, 485 Pa. 218, 401 A.2d 737 (1979). Plain error is found where the award is based either on factual findings for which there is no evidentiary support or on legal factors other than those that are relevant to such an award. In re Estate of Baker, 485 Pa. at 221, 401 A.2d at 739. The rationale behind this limited scope of review is sound. It is the trial court that has the best opportunity to judge the attorney’s skills, the effort that was required and actually put forth in the matter at hand, and the value of that effort at the time and place involved. Estate of McClatchy, 492 Pa. at 357, 424 A.2d at 1230.

In this case, there is no contention that the trial court based its award on unsupported factual findings. Rather, the argument is that the court committed error of two kinds. First, appellants argue that the court rendered its decision on the basis of a local policy of the Court of Common Pleas for Chester County which provides that twenty-five percent (25%) of the amount recovered in settlement of a minor’s case is a reasonable fee unless it can be demonstrated that a higher fee is justified in the particular case. Second, appellants argue that even if the use of twenty-five percent as a beginning point is permissible, nonetheless a higher percentage was justified in this case.

The Supreme Court has enumerated the factors to be considered in determining if a request for attorney’s fees is reasonable. In LaRocca Estate, 431 Pa. 542, 246 A.2d 337 (1968), the court stated the factors as follows:

... the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money or value of the property in question; the degree of responsibility incurred; whether the fund involved was “created” by the attorney; the professional skill and standing of the attorney in his profession; the results he was able to obtain; the ability of the client to pay a reasonable fee for the services rendered; and, very importantly, the amount of money or the value of the property in question [sic].

Id., 431 Pa. at 546, 246 A.2d at 339.

Although the trial court’s opinion contains a thorough and considered application of the LaRocca factors to this case, appellants argue that the court merely paid “lip service” to LaRocca and actually based its decision on the Chester County court’s policy referred to above, which appellants argue is impermissible. We disagree.

Early in its opinion, the trial court referred to the fact that it had requested an amended petition regarding counsel fees from appellants becausé the first petition requested a one-third fee and Chester County had a local policy providing that in a minor’s compromise case a fee of more than twenty-five percent of the gross amount recovered must be justified. However, after noting this policy, the court then conducted the balance of its analysis in perfect conformity to the mandate of LaRocca, carefully applying each of the listed factors to this case. We do not consider this manner of proceeding an abuse of discretion.

The Chester County policy referred to by the trial court here was more fully described in Edwards v. Downingtown Area School District, 34 Ches.Co.Rep. 346 (1986). There, the Court of Common Pleas for Chester County described its policy as follows:

Preliminarily, we are mindful that counsel certainly have a right to be compensated for their services. But at the same time, when that compensation becomes so handsome as to constitute a patent windfall for a lawyer, to the unfair detriment of the minor, discretion is best exercised by decreasing that fee. Generally, this court is reluctant to poke its judicial nose into contracts between client and counsel, and even with the situation involving the rights of a minor, we are reluctant to be too intrusive, too assertive. But under our Rule 2039 mandate, we have an affirmative duty to be more than a passive, pro forma rubber stamp. The line must be drawn somewhere____ The Board of Judges of this county has considered the question, and we conclude that an appropriate presumptive lodestar for such cases, for suit having been filed, as at bar, should be 25% of the gross amount obtained.

Id. at 347.

By this description, we see that the Chester County court takes its responsibilities under Rule 2039 seriously. In an attempt to fulfill those responsibilities, that court has attempted to find a point at which to begin its analysis of requests for fees in minor’s cases. Clearly the court employed its understanding of prevailing contingent fee standards in the relevant location and its experience with like cases to reach the conclusion that twenty-five percent is a presumptively reasonable base figure. It is peculiarly within the purview of a trial court to develop this sense for what is an appropriate fee in a given locale for a given type of case. Indeed, the very ability of a trial court to develop this knowledge is one reason why our standard of review of attorney’s fee awards is so restrictive. As the Supreme Court has stated, we must rely not only on the peculiar opportunity of the trial court to assess the efforts of counsel in the particular case, but also on its knowledge of “... the rate of professional compensation usual at the time and place, ...” Thompson Estate, 426 Pa. 270, 281, 232 A.2d 625, 631 (1967).

We also stress that the presumption that twenty-five percent is a reasonable fee is a rebuttable presumption that can be overcome by showing justification for a higher fee in a particular case. Id. at 348. In assessing whether such justification has been shown, the court is to employ the factors enumerated in LaRocca. We see no conflict between Rule 2039 and this policy. The rule itself leaves open the question of how the trial court is to decide whether to approve or disapprove a requested fee and nothing in LaRocca in any way suggests that a court may not begin its analysis with a base figure as a starting point. Consideration of any one or a combination of the LaRocca factors may convince the court that a different fee is justified. The burden on counsel is basically the same—counsel must show that the fee requested is reasonable under the test set forth in LaRocca.

We now turn to whether the trial court committed an abuse of discretion in determining that application of the LaRocca factors to the present case led to the conclusion that a $33,000 fee was unreasonable and should be reduced. We need not tarry long on this issue. In a case such as this, where the entire matter took only a few months to resolve, no complaint was ever filed, and the carrier tendered its policy limits promptly, we find no conceivable justification for a fee of $33,000 and no grounds for complaint as to a fee of $25,000.

It is important to note that the burden of justifying the requested fee is on the claimant. Estate of Wanamaker, 314 Pa.Super. 177, 460 A.2d 824, 825 (1983). In this case, Nissenbaum & Kaufman submitted nothing that convinced either the trial court or this court that a fee of $33,000 was reasonable. Of the total of approximately 134 hours allegedly spent by the firm on this case, by far the majority of that time was spent by paralegals and other staff (presumably meaning secretarial time.) Nor was the time spent on particularly demanding activities. As the trial court concluded, this was unquestionably no more than a straightforward personal injury case. In sum, on this record we cannot conceive of an argument that would render $33,000 a reasonable fee.

In so stating, we recognize that this case was not billed on an hourly rate basis. It was a contingent fee arrangement, and that admittedly involves some risk to counsel of no recovery at all for the professional services rendered. See Romano v. Lubin, 365 Pa.Super. 627, 530 A.2d 487 (1987). However, Romano does not change the trial court’s continuing responsibility to guard the interests of the minor and, where necessary, to disapprove the payment of a windfall to counsel from the fund recovered on behalf of the minor. This is clearly the goal that underlies the requirement of Rule 2039 that a court approve settlement of such a claim and specifically review deductions from the fund for attorney’s fees. Wilson v. Bensalem Township School District, 27 Pa.Commw. 609, 367 A.2d 397, 398 (1976). We find that the trial court has admirably shouldered its responsibility under Rule 2039 in this case.

The second issue posed concerns the trial court’s refusal to order that an amount of the fund recovered on behalf of Shani be paid to her parents to compensate them for “financial loss” they incurred when they had to take time off from their respective jobs to care for their injured daughter. The trial court refused to make such an award. The court found that of all the time lost by the parents, only ten and one half hours of that time was taken without pay. The remaining time was either paid vacation or other paid leave. Thus, contrary to the suggestion contained in certain of appellants’ lower court filings, the parents suffered little financial loss as a result of the time they were absent from work. Moreover, even if all of the time lost had been unpaid the value of it would not have approached $10,000.

Appellants cite no case law in which an award of the type suggested here has been made out of a minor’s settlement and we are as unpersuaded as the trial court that such an award is appropriate. We agree with that court’s statement that it is the responsibility of parents to care for their children, without compensation, and certainly without compensation from the fund recovered to compensate the child for his or her personal injuries. We also note that these parents have received more than adequate protection under the trial court’s order. Compensation for services provided by the older daughter, Dawn, has been allowed and $10,000 has been put aside in case it is. required to cover remaining medical expenses. We find no error.

Order affirmed.

      . This allegation of error was abandoned on appeal.

      . In Romano, a panel of this court reversed a trial court determination that a fee of twenty-one percent (21%) of the amount recovered in settlement of a minor’s case was unreasonable and must be reduced to thirteen percent (13%).

      . Apparently the gravamen of appellants’ argument as to the time for which they were paid is that they should be compensated from their daughter's recovery because they had to use up their vacation time or other unpaid leave to care for her and therefore were deprived of their vacation.


author: OLSZEWSKI, Judge:

text:
    582 A.2d 1111
    COMMONWEALTH of Pennsylvania v. Reginald GLOVER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1990.
    Filed Nov. 29, 1990.

      William B. Houston, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, KELLY and BROSKY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from judgment of sentence. The defendant, Reginald Glover, was found guilty after a non-jury trial of possession of a controlled substance with intent to deliver [35 Pa.C.S.A. § 780-113(a)(30) ], possession of drug paraphernalia [35 Pa.C.S.A. § 780-113(a)(32) ], criminal conspiracy [18 Pa.C.S.A. § 903], and possession of an offensive weapon [18 Pa.C.S.A. § 908]. Glover was sentenced to an aggregate term of three to six years.

On appeal, Glover argues that the convictions for possession with intent to deliver and conspiracy are faulty because the trial court failed to suppress illegally obtained evidence and erroneously allowed the admission of hearsay evidence. Alternatively, Glover contends that those verdicts are based upon insufficient evidence and/or are against the weight of the evidence. Finding no merit to Glover’s claims, we affirm.

On September 2, 1988, police executed a search and seizure warrant for the third-floor apartment of 2436 North Park Ave. Officers at the rear of the building observed Glover toss a green trash bag from a third-floor window (N.T. at 24-27, 140-43). Another male, Andy Evans, tossed a white box from the same window (N.T. at 28, 142). The trash bag contained two fully loaded and operational shotguns (N.T. at 27, 81, 143-44). The white box contained forty-one vials and a 12.8 gram chunk of crack cocaine (N.T. at 72, 173).

Officers reached the third floor and forced the barricaded door (N.T. at 105-06). They found Glover and Evans in the bedroom surrounded by several hundred empty vials, thousands of small packaging bags, an 18” by 12” mirror covered with white dust, twenty-three 12-gauge shotgun shells and a bank safe (N.T. at 113-126). The police also searched the first-floor room where Glover resided. There they confiscated a black book entitled “Record” in which various dates and sums of money were noted (N.T. at 161-65).

Glover’s motion to suppress the evidence seized from his apartment was denied, and he proceeded to trial without a jury. At trial, the Commonwealth offered the black book as circumstantial evidence of the conspiracy and possession with intent to deliver charges. Glover offered the testimony of three character witnesses: his sister, a fellow, tenant, and a friend. All stated that they had never seen. Glover with drugs or guns and testified to his excellent reputation in the community (N.T. at 211-50).

Glover was convicted and sentenced as indicated above. Post-trial motions were timely filed and denied. This timely appeal followed.

Glover initially claimed that the trial court erroneously denied the motion to suppress the evidence seized from his first-floor apartment. In his brief, however, Glover concedes that this issue is frivolous (appellant’s brief at 5). Accordingly, we need not address this issue.

Glover asserts that the introduction of the record book constituted hearsay and that the book’s prejudicial impact outweighed its probative value. The admission or exclusion of evidence is a matter for the sound discretion of the trial judge. Commonwealth v. Shain, 324 Pa.Super. 456, 460, 471 A.2d 1246, 1248 (1984). Absent an abuse of discretion or an error of law, the court’s ruling will not be disturbed. Commonwealth v. Wallace, 522 Pa. 297, 309 n. 15, 561 A.2d 719, 725 n. 15 (1989).

The initial challenge to the introduction of the book argues that the book is classic hearsay. We do not agree. Hearsay is “an out of court statement offered to prove the truth of the matter asserted.” Heddings v. Steele, 514 Pa. 569, 573, 526 A.2d 349, 351 (1987) (citations omitted). In the instant case, the book was not offered to prove the truth of the sums and dates it contained, only that these types of records were kept and were in the possession of Glover (trial court opinion at 3.) A written statement is not hearsay if offered to prove that it was made rather than its truth. Commonwealth v. Cohen, 371 Pa.Super. 558, 564, 538 A.2d 582, 585, alloc. denied, 520 Pa. 581, 549 A.2d 914 (1988). This book was offered to show that it existed and was found in Glover’s room; as offered, it is not hearsay.

Next, Glover asserts that the admission of the book was more prejudicial than probative. Glover argues that since no proof was offered as to who authored the entries in the book, or that those entries referred to particular drug transactions, the jury’s interpretation of the entries is speculation. We do not agree. The book was found in Glover’s apartment placing it in his constructive possession. Commonwealth v. Macolino, 503 Pa. 201, 207, 469 A.2d 132, 135 (1983). To be relevant, evidence need establish only the possibility, not the probability, that the defendant committed the crime. Commonwealth v. Yarris, 519 Pa. 571, 588, 549 A.2d 513, 522 (1988), cert. denied, sub nom., Yarris v. Pennsylvania, — U.S. -, 109 S.Ct. 3201, 105 L.Ed.2d 708 (1989). This book, with entries indicating possible drug transactions, was relevant and therefore had probative value. We do not find that the prejudicial impact of the book so outweighed that value as to rise to an abuse of the trial judge’s discretion. Commonwealth v. Krajci, 283 Pa.Super. 488, 493, 424 A.2d 914, 917 (1981) (citations omitted).

Glover also contends that there is insufficient evidence to support the convictions for possession with intent to deliver and conspiracy. When faced with such a claim, this Court must determine whether all the elements of the crime have been proven beyond a reasonable doubt viewing the record in the light most favorable to the prosecution as verdict winner. Commonwealth v. Hugney, 491 Pa. 222, 227, 420 A.2d 422, 424-425 (1980). With this standard in mind, we review the evidence.

A conspiracy is an agreement to commit an unlawful act; the agreement can be proven by the relation, conduct, or circumstances of the parties. Commonwealth v. Jackson, 506 Pa. 469, 473, 485 A.2d 1102, 1104 (1984). Glover was found at a place well known as a drug manufacturing and sale location (N.T. at 214-15, 218, 241, 251). Glover was found with a person who had attempted to dispose of a large quantity of cocaine. Glover attempted to dispose of incriminating evidence at the same time and place as did Evans. A contemporaneous attempt to dispose of evidence is sufficient to establish a conspiracy. Commonwealth v. Tumminello, 292 Pa.Super. 381, 388, 437 A.2d 435, 439 (1981). Evidence relevant to the drug vending operation, the book, was found in Glover’s apartment. Viewing the record in a light favoring the prosecution, sufficient evidence to support the conspiracy conviction was presented.

All of the facts and circumstances surrounding the possession of a controlled substance must be examined to determine the question of possession with intent to deliver or transfer. Commonwealth v. Davis, 331 Pa.Super., 285, 304, 480 A.2d 1035, 1045 (1984). Here, Glover challenges the evidence establishing his possession. It is true that it was Evans, not Glover, who was seen tossing the drugs from the window; but Glover could be guilty under a theory of constructive possession. The keys to constructive possession are the defendant’s knowledge of the item in question and his intent and ability to control same. Commonwealth v. Carroll, 510 Pa. 299, 302, 507 A.2d 819, 821 (1986). Here, Glover was found in the middle of a drug-packaging operation and had actively participated in an attempt to hide evidence. Clearly sufficient knowledge, intent, and ability are shown.

Glover cites a number of Pennsylvania cases wherein constructive possession was held not to be established. We hold that Glover’s active participation in the attempt to dispose of the evidence is sufficient to distinguish those cases.

Further, as a conspirator, Glover is chargeable with the acts of his co-conspirator. Evans indisputably possessed a large amount of cocaine and paraphernalia sufficient to establish possession with intent to deliver. Commonwealth v. Santiago, 462 Pa. 216, 223-227, 340 A.2d 440, 444-445 (1975). Thus, Evans’ conduct supports Glover’s conviction.

Glover’s final contention is that these two convictions are against the weight of the evidence. We are aware that the Supreme Court has recently stated that a challenge to the weight of the evidence is not appealable. Wallace, supra 522 Pa. at 314, 561 A.2d at 728. Still, as a challenge to the weight of the evidence was not specifically raised in Wallace, this statement may be obiter dicta. Accordingly, we will examine Glover’s claim.

A new trial is only warranted if the verdict is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Hunter, 381 Pa.Super. 606, 616, 554 A.2d 550, 555 (1989). Suffice it to say from our discussion above that we are not shocked.

Nor does the character evidence presented by Glover change this result. Credibility determinations are the sole province of the factfinder, who can believe all, part, or none of the evidence. Jackson, supra 506 Pa. at 473-475, 485 A.2d at 1104-5. We will not disturb the credibility determination of the Honorable Mark I. Bernstein.

Judgment of sentence affirmed.

      . We note in passing that Glover characterizes his witnesses as unimpeached. Nonetheless, the potential bias of the witnesses—one was Glover’s sister, another his friend, the third his neighbor—could properly impact the credibility determination.


text:
    582 A.2d 1115
    COMMONWEALTH of Pennsylvania v. Aaron NELSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1990.
    Filed Dec. 3, 1990.

      Regina B. Gerin, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.
    Before OLSZEWSKI, KELLY and BROSKY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence rendered by the Court of Common Pleas of Philadelphia County following a non-jury trial resulting in appellant’s conviction of robbery, graded as a felony of the first degree; criminal conspiracy; and possession of an instrument of crime. The issues presented on appeal are: (1) whether the trial court erred in denying appellant’s motion to suppress identification testimony, and (2) whether the verdict is supported by the sufficiency of the evidence. As we find the identification testimony to have been properly admitted and the evidence sufficient to sustain the verdict, we affirm the judgment of sentence.

On August 3, 1988, the record shows that appellant and an unidentified gunman entered a bar and announced a “hold up.” Appellant ordered the bartender to “get the money out of the register,” while the gunman herded the patrons to the rear of the bar where he forced them to hand over their jewelry. During the course of appellant’s interaction with the bartender, appellant leaned over the bar and attempted to strike the bartender, who avoided the blow and attempted to strike back. The bartender testified that she then began to wave and shout to get the attention of the owner of the bar, who had just entered the bar and was seated at the end of the bar. The owner testified that upon noticing the argument between appellant and the bartender, he approached the two and asked appellant to leave, to which appellant responded, “Shut up or my boy will take care of you!” The owner testified that he turned around and observed a man pointing a gun at him. The gunman ordered the owner to get on the floor, and the two men fled the premises.

That same evening, the bartender reviewed photographs of potential suspects, but did not identify anyone. Six weeks later, the bartender went to police headquarters, reviewed photographs, and identified appellant as the man who demanded money from the cash register. At trial, both the bartender and the bar owner made in-court identifications of appellant.

Appellant claims that the trial court erred in denying his motion to suppress the identification evidence, arguing that the photographic array viewed by the bartender was unduly suggestive and that the in-court identifications by the witnesses (bartender and owner) were not credible. We find these assertions to be without merit.

In reviewing an order denying a motion to suppress evidence, a reviewing court has a duty

'... “to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” ... In making this determination, this Court will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.’

Commonwealth v. Harris, 368 Pa.Super. 84, 533 A.2d 727, 729 (1987), quoting Commonwealth v. Lark, 505 Pa. 126, 477 A.2d 857, 859 (1984).

With respect to the photographic array, the trial court’s finding that it was not suggestive is clearly supported by the evidence. The evidence demonstrates that the witness (bartender) was shown photographs of at least eight black males, including appellant, all of whom were similar in age, skin complexion, hair, and general appearance. There was no identifying information on any of the photographs, and the police in no way sought to influence the witness while she was viewing the photographs. No suggestiveness or unfairness was established, and the trial court properly admitted the photographic identification into evidence.

Having found that the photographic array was not suggestive, the trial court properly ruled that the witness’s (bartender) in-court identification was not tainted by the photographic array. See, Commonwealth v. Harris, supra.

Even if the photographic array had been suggestive, it does not follow that the subsequent in-court identification should also have been suppressed. An identification may be admitted if, in considering the totality of the circumstances, the court finds that despite the taint, there is an independent and reliable basis for the identification. “It is the likelihood of misidentification which violates defendant’s right to due process, and it is this which is the basis of the exclusion of evidence.” Commonwealth v. DeMarco, 332 Pa.Super. 315, 481 A.2d 632, 639 (1984), quoting, Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379, 1382 (1979). A court must consider the following factors in determining the likelihood of misidentification:

the witness’ opportunity to view the criminal at the time of the crime; the witness’ degree of attention; the accuracy of the witness’ prior description of the criminal; .the level of certainty demonstrated by the witness at the confrontation; the length of time between the crime and the confrontation.

Commonwealth v. DeMarco, supra 481 A.2d at 639, citing, Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978).

In the present case, the bartender’s in-court identification of appellant as one of the assailants was straightforward and without hesitation. The record is clear that this witness had ample opportunity to observe appellant during the incident. Accordingly, both the photographic and in-court identifications of appellant by the bartender were properly admitted.

Likewise, the in-court identification by the bar owner was also properly admitted, as the record indicates that he too had ample opportunity to observe appellant at the time of the incident. The bar owner testified that he and appellant exchanged words during the incident after he observed appellant arguing with the bartender. Additionally, both witnesses testified that appellant was not wearing a mask and that the bar was well lit. The bar owner also testified that he immediately recognized appellant when appellant entered the courtroom, without any prompting or direction by anyone. Accordingly, this evidence supports the trial court’s finding that the owner’s identification was not the result of a suggestive procedure but was, instead, a reliable and positive identification.

Appellant also attacks the credibility of the witnesses’ in-court identifications. This claim is not properly before this Court because a determination of credibility, “is within the sole province of the trier of fact who is free to believe all, part or none of the evidence.” Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102, 1104-05 (1984); See also, Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689, 695 (1986) (“When faced with conflicting testimony, a suppression court, as factfinder, may pass upon credibility, and these findings will not be disturbed when supported by the record.”). The trial judge, sitting as the fact-finder in this case, was in a better position to evaluate the credibility of the witnesses. Accordingly, appellant’s claim is without merit.

Appellant also alleges that the evidence was insufficient to sustain the verdict. The test for determining the sufficiency of the evidence is

whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.

Commonwealth v. Aulisio, 514 Pa. 84, 91, 522 A.2d 1075, 1079 (1987), citing, Commonwealth v. Syre, 507 Pa. 299, 303, 489 A.2d 1340, 1342 (1985).

With respect to the robbery conviction in the first degree, appellant argues that there was insufficient evidence which would establish that he intended to place his victims in fear of immediate serious bodily injury as required by 18 Pa.C.S. § 3701(a)(l)(ii). Appellant argues that because he was unarmed and the bartender did not demonstrate any fearfulness, the requisite fear of immediate serious bodily injury was lacking. Appellant’s focus on the subjective state of mind of the victim is misplaced. The proper focus under the statute is on appellant’s intent and actions. Commonwealth v. Thomas, 376 Pa.Super. 455, 546 A.2d 116, 118 (1988).

The evidence shows that appellant and his co-felon announced a robbery and brandished a weapon in order to achieve their goal. Additionally, appellant warned the bar owner to “Shut up or my boy will take care of you.” This evidence clearly supports the trial court’s inference that appellant intended to threaten serious bodily injury. See, Commonwealth v. Hurd, 268 Pa.Super. 24, 407 A.2d 418 (1979) (evidence that defendant approached the counter, slammed his fist on the counter, told salesperson to open the door while pointing an unidentified object in his pocket at salesperson was held sufficient for a robbery conviction under § 3701(a)(l)(ii)); Commonwealth v. Davis, 313 Pa.Super. 355, 459 A.2d 1267 (1983) (evidence that the defendant climbed through a store window, told proprietor to get back and proceeded to remove money from the cash register was held sufficient for robbery conviction under § 3701(a)(l)(ii)). The fact that the threat may not have produced the intended fear is irrelevant. See, Commonwealth v. Hurd, supra 407 A.2d at 420 (“It [sic] there is such a threat, it is irrelevant that the victim may not have taken the threat seriously.”). Accordingly, appellant’s conviction under 18 Pa.C.S. § 3701(a)(l)(ii) is affirmed.

Next, appellant challenges his conviction for possession of an instrument of crime on the grounds that the evidence did not establish that he had the intent and ability to control the gun wielded by his co-felon. We disagree. Since appellant was not shown to have actual possession of the gun, the issue is whether the evidence was sufficient to prove his constructive possession.

To prove constructive possession of an item, the Commonwealth must show that the defendant had both the intent and the ability to control the item. Commonwealth v. Hamm, 301 Pa.Super. 266, 447 A.2d 960, 962 (1982), citing, Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968). At the least, the evidence must show that the defendant knew of the existence of the item. Commonwealth v. Hamm, supra 447 A.2d at 962 [citations omitted]. Possession may also be proved by circumstantial evidence. Commonwealth v. Carter, 304 Pa.Super. 142, 450 A.2d 142, 144 (1982). Individually, the circumstances may not be decisive; but, in combination, they may justify an inference that the accused had both the power to control and the intent to exercise that control, which is required to prove constructive possession. Commonwealth v. Carter, supra 450 A.2d at 144 [citations omitted]. In the present case, the circumstances indicate that appellant did in fact have the intent and ability to control the use of the gun. The two assailants entered the premises together, announced a hold up, and appellant’s co-felon brandished a gun. During the course of the robbery, appellant warned the bar owner that “his boy” (referring to the other assailant) would take care of him if he was not quiet. Obviously, appellant knew of the gun’s existence and had the apparent ability and intent to exercise control over its use.

Finally, appellant’s claim that the evidence does not support his conviction for criminal conspiracy is equally without merit. Under 18 Pa.C.S.A. § 903(a)(1),

[a] person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime ...

Under § 903(e), an overt act in furtherance of the conspiracy must be proved. Because it is difficult to prove an explicit or formal agreement by direct evidence, a conspiracy may be proven inferentially by showing the relation, conduct, or circumstances of the parties. Overt acts of alleged co-conspirators are competent as proof of the conspiracy. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102, 1104 (1984), citing, Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927 (1982). In the case at bar, the record indicates that appellant and his co-felon entered the bar together, announced a hold-up, and together proceeded to rob the bar patrons and the establishment itself. They then fled together. These concurrent criminal acts are sufficient to infer that appellant conspired with the second assailant in performing the robbery.

For the foregoing reasons, judgment of sentence is affirmed.

      . We find the Commonwealth’s argument that appellant has waived this second issue for failure to file post-verdict motions in compliance with Pa.R.Crim.P. 1123 and 1124 to be without merit. Appellant’s post-verdict motions improperly address both the weight and the sufficiency of the evidence together; however, the allegations are not boilerplate and address appellant’s claims with ample specificity. Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268, 1273-74 (1983) (en banc). For example, paragraph two of appellant's post-verdict motions states:
      The verdict of guilty to the charge of Possession of an Instrument of Crime was contrary to the evidence, against the law and contrary to the weight of the evidence because the Commonwealth never established beyond a reasonable doubt that the defendant has [sic] possession and/or sufficient control over the weapon to be found guilty.
      This motion clearly addresses the sufficiency of the evidence to support the verdict, and appellant’s brief addresses only the sufficiency of the evidence with respect to the verdict. While appellant’s muddling of the distinction between weight of the evidence and sufficiency of the evidence is improper and presents obvious complications, we do not find that challenges to the verdict are waived as a result, as appellant has specified in what particular respects the evidence was insufficient in both his post-verdict motions and brief to this Court.

      . 18 Pa.C.S. § 3701(a)(1) provides in pertinent part:
      (1) A person is guilty of robbery if, in the course of committing a theft, he:
      (i) inflicts serious bodily injury upon another;
      (ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;

      . The record indicates that the bartender attempted to strike appellant during the course of their exchange, which appellant argues is conclusive of a lack of immediate threat of serious bodily injury.