author: POPOVICH, Judge:

text:
    596 A.2d 827
    COMMONWEALTH of Pennsylvania, Appellant, v. Gerald PRITCHARD, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Brian PRITCHARD, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Donald RUDOLPH, Appellee.
    Superior Court of Pennsylvania.
    Argued April 24, 1991.
    Filed Aug. 16, 1991.

      Daniel G. Spengler, Asst. Dist. Atty., Bath, for Com.
    G. Pritchard, pro se.
    B. Pritchard, pro se.
    D. Rudolph, pro se.
    Brian M. Monahan, Easton, for participating party. (Submitted).
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This case of first impression involves the interpretation of Pa.R.Crim.P. 133. Herein, we are presented with the Commonwealth’s appeal from an Order of the Court of Common Pleas of Northampton County which permitted the filing of a private criminal complaint without the approval of the Attorney for the Commonwealth.

The Commonwealth argues that approval of the private criminal complaint by the District Attorney was required in the present case and that the trial court was in error in concluding that the charges constituted a “clear and present danger” within the meaning of Rule 133, thus obviating the need for the approval of the district attorney before issuance of process.

Upon review, we find that the instant case does not present circumstances which constitute a “clear and present danger” within the meaning of Rule 133. Consequently, we reverse and remand for the trial court to determine whether to approve the private criminal complaint, pursuant to Pa. R.Crim.P. 133(b)(2). The facts of this case were summarized by the trial court in the opinion and order of July 23, 1990, as follows:

On December 9, 1989, an altercation occurred in Bush-kill Township between petitioner, various members of his family, and the three men named in the complaints. Petitioner contends that the three individuals appeared at his residence and remained on the premises after actual communication against their presence was made by him, thus, the three individuals committed defiant trespass as defined in 18 Pa.C.S.A. § 3503(b)(l)(i). Additionally, petitioner alleges that the three men kicked and punched him attempting to cause serious bodily injury and thus, they committed simple assault under 18 Pa.C.S.A. § 2701(a)(1) and aggravated assault under 18 Pa.C.S.A. § 2702(a)(1). Finally, petitioner claims that the men’s actions constituted harassment under 18 Pa.C.S.A. § 2709(1).
Chief Kostenbader was called to the scene of the incident for other reasons. After arriving at petitioner’s residence, Kostenbader testified that he separated everyone involved and had everyone go to the police station so that he could get their statements. Kostenbader did not press charges against anyone involved. Subsequently, petitioner and his mother submitted private criminal complaints under Pa.R.Crim.P. 133____ The assistant district attorney declined to prosecute believing that the cases lacked prosecutorial merit. The petitioner now seeks independent review of that decision from this court.

(Trial Court Opinion, pp. 1-3).

On July 23, 1990, the trial court permitted the complaints to be filed without approval of the attorney for the Commonwealth, concluding that the complaints constituted charges that involved a “clear and present danger to any person or to the community” under Rule 133(a). This appeal followed.

First, we must determine whether the trial court erred in concluding that a “clear and present danger to any person or to the community” existed within the meaning of Pa.R.Crim.P. 133(a) under the facts of this case. Pa. R.Crim.P. 133 states in pertinent part:

(a) When the affiant is not a law enforcement officer and the offense(s) charged include(s) a misdemeanor or felony which does not involve a clear and present danger to any person or to the community, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove without unreasonable delay.
(b) If the attorney for the Commonwealth
(1) Approves the complaint, the attorney shall indicate this decision on the complaint form and transmit it to the issuing authority;
(2) Disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter the affiant may file the complaint with a judge of a Court of Common Pleas for approval or disapproval; ...

Instantly, the assistant district attorney declined to prosecute this action stating that the case “lacked prosecutorial merit.” The affiant was then entitled to an independent review of that decision by the Court of Common Pleas as provided in Rule 133(b)(2). As stated in the trial court’s opinion, the District Attorney’s decision not to prosecute was based upon:

... his belief that petitioner was not really hurt, since he left the hospital before being treated; Kostenbader’s contention that the incident was a “mutual free for all” and no one was assaulting anyone; statements of various witnesses were in conflict; the three alleged assailants cooperated by providing full written statements; and the fact that the police decided not to prosecute.

(Trial Court Opinion, p. 3).

The trial court determined both that the testimony of the affiant and witnesses established a prima facie case of aggravated assault and that this was “a charge involving a clear and present danger to a person.” The court found support for its decision in Justice Larsen’s concurring opinion in Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764.

Benz involved the accidental shooting of an individual by an off-duty police officer during a scuffle. A coroner’s jury recommended that Officer Benz be charged with voluntary manslaughter. The District Attorney did not file charges because the evidence supported the claim that the shooting was accidental. Judicial review was sought and the court denied approval of the complaint concluding that the district attorney did not abuse his discretion by not prosecuting. The Supreme Court reversed finding that there was sufficient evidence to establish a prima facie case.

Justice Larsen, in his concurring opinion, stated that:

[T]he approval of a private criminal complaint by a district attorney or a judge of the court of common pleas is only necessary where the offense charged does not involve a clear and present danger to any person or to the community. In all other cases, i.e., those involving charges that present a clear and present danger to any person or to the community, the district attorney does not act as a buffer between the private complainant and the issuing authority. Thus, upon the filing of a private criminal complaint involving acts which constitute a clear and present danger to any person or to the community, the issuing authority must conduct a preliminary hearing. As this case involves a charge of homicide, the approval of the district attorney pursuant to Rule 133 was not necessary.

Benz, 523 Pa. at 211-212, 565 A.2d at 769.

This seems to have implied that the crime of homicide necessarily involves a “clear and present danger.” However, the concurring opinion does not provide a working definition of the phrase. It would be impractical to con-elude from the above paragraph that any crime involving violence constitutes a “clear and present danger” and is therefore an exception to the rule requiring approval of the attorney for the Commonwealth. Such an interpretation would effectively usurp the prosecutorial discretion of the District Attorney in deciding when to prosecute an action.

The District Attorney’s function is to represent the Commonwealth in criminal prosecutions. The District Attorney exercises this responsibility by first evaluating complaints to determine whether criminal charges should be brought against an individual. See Petition of Piscanio, 235 Pa.Super. 490, 490, 344 A.2d 658, 660 (1975). The private prosecutor, even if he or she was the victim, “has no legitimate interest, other than as a member of the general public, in seeing a violator of the laws brought to justice by the Commonwealth and punished for his misdeeds. If a private prosecutor feels individually harmed his remedy is a civil suit for damages.” Id., 235 Pa.Superior Ct. at 496, 344 A.2d at 661-62. It would make little sense to grant to the attorney for the Commonwealth broad prosecutorial discretion in his role as advocate for the Commonwealth, only to allow private affiants the ability to file complaints without the approval of the District Attorney whenever an alleged victim makes out a complaint involving some type of violent act.

Our task, then, is to determine under what circumstances a “clear and present danger to any person or to the community” exists and when approval of the attorney for the Commonwealth need not be sought. The phrase “clear and present danger” was coined by Justice Holmes in Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, 473 (1919). It was used in the context of government restraint on the freedom of speech and required a determination of “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” Schenck, 249 U.S. at 52, 39 S.Ct. at 249.

Justice Holmes’s test required a weighing of the evil threatened against the Constitutional right which would be abridged. The risk of harm must, therefore, be substantial. In discussing the line of cases which have applied the “clear and present danger” test, the Supreme Court, in Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941), stated that “[w]hat finally emerges from the ‘clear and present danger’ cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.” Bridges, 314 U.S. at 263, 62 S.Ct. at 194. The use of this phrase was clearly intended to convey a sense of urgency.

The Commonwealth points out in its brief that similar language has been used in other Pennsylvania statutes which may guide us in defining “clear and present danger” in the context of Rule 133. The Statewide Municipal Police Jurisdiction Act, 42 Pa.C.S.A. § 8953(a)(5), permits an officer who is on official business to enforce the laws of the Commonwealth beyond his territorial limits where an act, among other things, “presents an immediate clear and present danger to persons or property.” A similar requirement is also set forth in the Protection from Abuse Act, 35 P.S. § 10181 et seq. Under this Act a court must conduct an ex-parte proceeding where a plaintiff petitions for a temporary order for protection from abuse and alleges “immediate and present danger” of abuse to the plaintiff or minor child. Both Acts authorize immediate action where the threat of harm is imminent and the normal process would not prevent the harm in a timely manner.

Similar language can also be found in the Mental Health Procedures Act, 50 P.S. § 7101 et seq., which provides for the involuntary emergency examination of a person where “he poses a clear and present danger of harm to others or to himself.” 50 P.S. § 7301(a). Clear and present danger is defined in that statute as being shown

“... by establishing that within the past 30 days the person has inflicted or attempted to inflict serious bodily harm on another and that there is a reasonable probability that such conduct will be repeated____ For the purpose of this section, a clear and present danger of harm to others may be demonstrated by proof that the person has made threats of harm and has committed acts in furtherance of the threat to commit harm.”

50 P.S. § 7301(b) (emphasis added).

The phrase again is used in provisions of the Public Employee Relations Act, 43 P.S. § 1101.101 et seq. This Act provides that a strike by employees may only be enjoined “if the court finds that the strike creates a clear and present danger or threat to the health, safety or welfare of the public.” 43 P.S. 1101.1003. Unless, however, a strike presents such a danger, it shall not be prohibited. Several cases have sought to define the phrase “clear and present danger” (See Jersey Shore Area School Dist. v. Jersey Shore Education Ass’n, 519 Pa. 398, 548 A.2d 1202 (1988)). Perhaps, the most helpful definition appears in Armstrong School Dist. v. Armstrong Education Ass’n, 5 Pa.Cmwlth. Ct. 378, 291 A.2d 120 (1972), where the Court stated that:

The ‘clear’ in that epigram is not limited to a threat indubitably etched in every microscopic detail. It includes that which is not speculative but real, not imagined but actual. The ‘present’ in the epigram is not restricted to the climatically imminent. It includes that which exists as contrasted with that which does not yet exist and that which has ceased to exist. [Communist Party of the United States v. Subversive Activities Control Board, 223 F.2d 531, 544 (1954), reversed on other grounds, 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003 (1956).]
In this light the determination of whether or not a strike presents a clear and present danger to the health, safety or welfare of the public must, therefore, require the court to find that the danger or threat is real or actual and that a strong likelihood exists that it will occur. Additionally, it seems to us that the ‘danger’ or ‘threat’ concerned must not be one which is normally incident to a strike by public employees.

Armstrong School District, 5 Pa.Cmwlth. 378, ——, 291 A.2d 120, 123-4. See also, Teachers Local 4531 v. Temple University, 135 Pa.Cmwlth. 426, 582 A.2d 63 (1990) (Affirmed Chancellor’s conclusion that the deprivation of a complete semester of work for those students affected by the strike constituted a clear and present danger or threat to health, welfare and safety of the public.)

Finally, Blacks Law Dictionary defines the phrase “clear and present danger” as:

Immediately serious violence is expected or advocated or past conduct furnishes reason to believe such advocacy is contemplated.

Blacks Law Dictionary 317 (4th Ed. 1968) (citation omitted).

What seems to emerge from the manner in which the phrase is used in the above discussed statutes and interpreted by the various courts is that such language is intended to provide a remedy or result which is an exception to the normal process. Such circumvention of the normal process is necessary because of some threat or danger that is imminent and requires an immediate remedy before the threatened harm can come to fruition. The facts as presented in the instant case show that an altercation occurred. However, there is no allegation that, after the fight, the petitioner was threatened with or fearful of further attack. There is no indication in the complaint that the affiant was in any imminent danger which would have required immediáte intervention. The acts described in the private criminal complaint are that the affiant was kicked and punched all over his body and face. The description of the events of that evening does not include any allegations of threats of a continuing nature or indication that any of the parties involved in the altercation were fearful of another attack. The charges as stated in the private criminal complaint cannot be interpreted to constitute a “clear and present danger” to the affiant.

The issuing authority is authorized to issue a summons or warrant of arrest where prior submission to an attorney for the Commonwealth is not required. Pa. R.Crim.P. 134(a)(3) and (b)(1) & (2). As discussed above, Rule 133(a) requires submission of a private criminal complaint to an attorney for the Commonwealth for approval only where the charges do not involve a “clear and present danger to any person or to the community”. It is therefore the responsibility of the District Justice to determine whether the complaint as submitted constitutes such a danger. He must decide whether the immediacy, imminence and magnitude of the alleged danger presents a “clear and present danger”. If not, he is without authority to issue process. See, Pa.R.Crim.P. 134(a)(3).

In sum, we conclude that the language, “clear and present danger” as it is used in Pa.R.Crim.P. 133 is not meant to circumvent the District Attorney’s approval of a complaint anytime a violent act is alleged. The language, in our view, is intended to provide a remedy under circumstances which present a threatened, imminent or continuing harm which is of such an urgent nature that it is inappropriate or impractical to await approval of the complaint by the District Attorney, thus warranting immediate filing of the complaint with the District Magistrate. This is not the case here.

Under the circumstances as presented, it was appropriate to seek approval of the attorney for the Commonwealth. If the appellee believes that the District Attorney was in error in disapproving his complaint, his remedy as stated in Rule 133 is to submit the disapproved complaint to a Judge of a court of Common Pleas. The judge’s independent review of the complaint serves as a check and balance of the district attorney’s decision and protects against the possibility of error. Piscanio Appeal, 235 Pa.Super. 490, 492-496, 344 A.2d 658, 660-2 (1975).

The trial court, in its independent review of the complaint, should not interfere with the exercise of prosecutorial discretion unless it is determined that there has been a “gross abuse of discretion”. In Re Wood, 333 Pa.Super. 597, 601, 482 A.2d 1033, 1036 (1984); Commonwealth v. Eisemann, 276 Pa.Super. 543, 546, 419 A.2d 591, 593 (1980). Although the trial court determined that a prima facie case did exist, there has been no determination as to whether the Commonwealth should be obliged to prosecute in this instance. Accordingly, we reverse and remand for approval or disapproval of the private complaint by the trial court.

Order reversed and remanded in accordance with this Opinion. Jurisdiction relinquished.

      . The private criminal complaint was submitted to the District Attorney, and it was disapproved by him.

      . Additionally, the Commonwealth asserts that because the private affiant initially requested the approval of the District Attorney and did not request immediate issuance of the complaint, he has waived the issue of the existence of a "clear and present danger.”
      The "clear and present danger” issue was raised with the trial court, and therefore, no waiver has occurred. The Commonwealth cited Commonwealth v. Benz in support of its position. In Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989), an issue similar to that raised herein had been waived. However, in that case, the issue was raised for the first time on appeal. Benz, 523 Pa. at 211-212, 565 A.2d at 769 (Larsen, J., concurring). Cf., Pa.R.Crim.P. 86(f) & (g) ("When a defendant appeals after conviction by an issuing authority in any summary proceeding, ... the case shall be heard de novo by the appropriate division of the court of common pleas____"); Commonwealth v. Patterson, 25 Pa.D. & C.3d 202, 204 (1983) (The issue of a defect in the proceeding not raised before the district justice was not waived on appeal of a summary conviction in the Court of Common Pleas.)

      . The reason given by the district attorney in Benz for his decision not to prosecute was the lack of evidence sufficient to establish a prima facie case. The court was required to determine whether there was in fact sufficient evidence to establish a prima facie case. In doing so, the court noted that because the district attorney’s decision was that no crime had been committed, such a decision is not entitled to the same deference as a decision not to prosecute for policy reasons despite the existence of a prima facie case. Benz, 523 Pa. 203, 208-209, fn. 4, 565 A.2d 764, 767 fn. 4 (1989).

      . Cf. Blacks Law Dictionary 227 (5th Ed. 1979)

      . The appellee urges that interpreting the language in question as it is used in a statute is markedly different from interpreting the same language as it is used in a court rule. It is argued that the acts are designed to regulate conduct by individuals weighed against the interest of society, whereas the Pennsylvania Rules of Criminal procedure are "intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay and as nearly as may be in consonance with the rules of statutory construction.” Pa.R.Crim.P. 2.
      We do not find our analysis or interpretation of the phrase to be inconsistent with or in contravention of Rule 2. The appellee urges an interpretation of “clear and present danger” which would produce an absurd result and would be burdensome to the fair administration of justice.

      . Pa.R.Crim.P. 134 states in pertinent part:
      (a) In any proceeding initiated by complaint, the issuing authority shall ascertain and certify on the complaint that:
      (3) When prior submission to an attorney for the Commonwealth is required, that an attorney has approved the complaint.
      (b) Upon ascertaining the above matters, the issuing authority shall:
      (1) Accept the complaint for filing; and
      (2) Issue a summons or warrant of arrest as the case may be.


source: Caselaw Access Project

author: JOHNSON, Judge.

license: Public Domain

text:
    596 A.2d 834
    COMMONWEALTH of Pennsylvania, Appellant, v. David JOHN, a/k/a David August John. COMMONWEALTH of Pennsylvania v. David JOHN, a/k/a David August John, Appellant.
    Superior Court of Pennsylvania.
    Argued June 19, 1991.
    Filed Aug. 20, 1991.

      Patrick T. Noonan, Asst. Dist. Atty., Greensburg, for Com., appellant (at 175) and for Com., appellee (at 176).
    Annaliese P. Masser, New Stanton, for appellant (at 176) and for appellee (at 175).
    Before POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
   JOHNSON, Judge.

This is a cross-appeal from the judgment of sentence following David John’s convictions for arson, 18 Pa.C.S. § 3301(a)(l)(i), risking a catastrophe, 18 Pa.C.S. § 3302(b), and criminal mischief, § 3304(a)(1). We affirm.

The prosecution resulted from a fire, intentionally started in Apartment No. 1 of 656 Otterman Street, Greensburg, Westmoreland County. This apartment was in a building attached to a bingo hall where the defendant’s wife, Mary John, along with some one hundred other persons, was playing bingo.

On appeal, John presents six issues for our consideration which may be stated as follows:

I. Whether the trial court erred by permitting the Commonwealth to introduce evidence that, after the fire had been set, John pulled a knife on his son.
II. Whether the trial court erred by permitting Mary John’s testimony under an exception to spousal privilege.
III. Whether defense counsel was ineffective for not objecting to Mary John’s testimony nor requiring that she be informed of spousal privilege at the preliminary hearing.
IV. Whether the trial court erred by requiring the in-camera testimony of Mary John in order to determine whether spousal privilege applied.
V. Whether the trial court erred by denying a motion for mistrial based upon a Commonwealth witness’s reference to “Public Defender Caruthers.”
VI. Whether sufficient evidence was presented to support a conviction for risking a catastrophe.

Initially, John contends that the trial court erred by admitting evidence that, while Mary John and several of their children were walking home from the scene of fire, he pulled a knife on Richard, their son. He argues that the incident is unrelated to the instant case and is therefore inadmissible.

John correctly states that evidence of a separate, unrelated crime is generally inadmissible to prove the crime for which the defendant is on trial. Commonwealth v. Hall, 523 Pa. 75, 85, 565 A.2d 144, 149 (1990) {citing Commonwealth v. Morris 513 Pa. 169, 175, 519 A.2d 374, 376 (1986)). Where the evidence is relevant, however, “the mere fact that testimony of another crime may be prejudicial will not prevent its introduction into evidence.” Hall, 523 Pa. at 85, 565 A.2d at 149, {quoting Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1975)). For example, evidence of other offenses or bad acts is admissible where such evidence tends to establish any of the following: 1) motive; 2) intent; 3) absence of mistake or accident; 4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or 5) the identity of the person on trial as the person who committed the crime in issue. Commonwealth v. Bond, 261 Pa.Super. 311, 316, 396 A.2d 414, 416 (1978).

Here, the Commonwealth’s theory of the case was that John was upset that Mary John intended to spend the evening playing bingo rather than drinking with him. The Commonwealth sought to demonstrate that the relationships within this family were, at best, tumultuous. As evidence, the Commonwealth introduced Mary John’s testimony that she and John had entered a Protection From Abuse agreement which, among other things, prohibited John from coming to Mary John’s home. The Commonwealth also sought to demonstrate that the relationship between John and Mary was strained by showing that John entered into the altercation with their son Richard in Mary’s presence, drawing a knife. As the event occurred within half an hour of the fire, it is the Commonwealth’s position that the incident was relevant to show both John’s motive for starting the fire and his state of mind that evening.

John argues that the incident involving the knife is not evidence of malice toward Mary John because the act was directed, not at her, but at their son. In deciding to admit the testimony, the trial court stated that John’s act of “pulling a knife on [Richard] in the presence of [Mary John] evidenced his agitated state of mind, and the malice that he had toward his family including his wife, Mary John.” Opinion at 19.

It is well established that the admission or exclusion of evidence is within the sound discretion of the trial court; we will not overturn that determination absent an abuse of discretion. Commonwealth v. Kubiac, 379 Pa.Super. 402, 409, 550 A.2d 219, 228 (1988) alloc. denied 522 Pa. 611, 563 A.2d 496 (1989) (citation omitted.) “An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality as shown by the evidence or the record.” Id. In Kubiae, we held that the trial court had properly admitted evidence that the defendant allowed a minor child to use illegal drugs, although he was charged with involuntary deviate sexual intercourse and corruption of minors, on the basis that such evidence was relevant to demonstrate the nature of the relationship.

Applying the Kubiae standard, we find no error in the trial court’s determination that the testimony regarding the altercation between John and his son, in the presence of Mary John, was indicative of malice towards Mary John and John’s state of mind that evening. Further, any prejudicial effect that might have resulted from the references to the conflict was minimized when the Honorable Gary P. Caruso instructed the jury as follows:

You have also heard evidence in this case tending to prove that the defendant committed other improper conduct on the night in question. I’m speaking of the testimony to the effect that Mr. John got into a conflict with his son after the alleged fire. This evidence is before you for a limited purpose; that is, for the purpose of tending to show the state of mind of Mr. John at the time that this incident occurred. This evidence must not be considered by you in any way other than for the purpose that I just stated.
You must not regard this evidence as showing that the defendant is a person of bad character or criminal tendencies from which you might be inclined to infer guilt in this case. If you find the defendant guilty, it must be because you are convinced by the evidence that he committed the crimes charged and not because you believe he is wicked or has committed some other improper conduct.

Note of testimony, April 2, 3 & 4, 1990, at 234. Cautionary instructions may suffice to eradicate any prejudice which might result from reference to prior criminal activity by the defendant. Commonwealth v. Morris, 513 Pa. 169, 175, 519 A.2d 374, 376 (1986) (collecting cases). Although the testimony here complained of relates to an incident occurring after the crime, we do not believe that this distinction should yield a different result.

We consider next whether Mary John’s testimony fell within an exception to the general rule that a person maintains the privilege of not testifying against his or her spouse. The relevant statutory language states:

§ 5913. Spouses as witnesses against each other
Except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege which he or she may waive, not to testify against his or her then lawful spouse except that there shall be no such privilege:
(2) in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other____

42 Pa.C.S. § 5913(2).

We reject as frivolous John’s argument that the act of setting the building on fire would not constitute an attempted violence against Mary John. Although he concedes that she was in the structure at the time that it was set on fire, he argues that she was sufficiently distant from the fire so as to negate the conclusion that such an act could have been directed against her.

At trial, Mary John testified that John appeared agitated when she chose to spend the evening playing bingo rather than drinking with him. She testified that just before she entered the bingo hall John stated, “That bingo means so much to you, doesn’t it?” She also testified that as she walked home from the fire John approached her and asked, “How do you like my work?” Finally, she testified that John stated, “If it don’t burn down to the ground, I should finish it tonight.” We are satisfied that setting fire to the building that Mary John was in constituted attempted violence against her sufficient to fall within the subsection.

John’s new counsel on appeal also challenges the effectiveness of trial counsel for failure to raise the issue of spousal privilege at the preliminary hearing. In setting forth the criteria by which the ineffectiveness of counsel may be established, our Supreme Court has stated:

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). Under this standard, we hold that trial counsel will not be deemed ineffective for failure to raise the claim of spousal privilege which, as we have held, Mary John was not entitled to assert.

John next contends that the trial court erred by requiring Mary John to testify in-camera regarding her whereabouts at the time that the fire began in order to determine whether § 5913(2) applied. At trial, the Commonwealth called Mary John to testify. The court advised her of the general privilege not to testify that is afforded to spouses. Mary John stated at that time that she did not wish to testify against John. The court dismissed the jury and held an in-camera proceeding, at which time Mrs. John was required to testify as to her whereabouts on the night of the fire. She testified that she had been in the bingo hall that was adjacent to the building that was set afire. The trial court then used this testimony to determine that the exception to the spousal privilege applied. See § 5913(2), supra.

John’s argument that this procedure constitutes reversible error is two-fold: 1) the burden should be placed on the Commonwealth to establish by independent evidence that the privilege did not apply to Mary John, and 2) to force Mrs. John to present evidence which would be used to establish that the privilege she sought to invoke did not exist was contrary to the intent of the statute.

John does not cite us to any authority, nor does he provide us with any compelling argument, for either of these propositions. The trial court noted in its opinion that Mary John was not asked in-camera to divulge any inculpatory information, but merely to state where she was at the time that the fire began. The trial court held that the Legislature intended that those who commit violence against their spouses not be protected by the spousal privilege statute, and that this in-camera proceeding advanced that policy. We agree and, accordingly, find no error.

We also reject John’s argument that the trial court erred by denying his motion for a mistrial when Officer Jerry Hixson, asked to identify the defendant, stated that he was “sitting on the right of Public Defender Caruthers.” John contends that the public defenders’ involvement with the most notorious defendants in Westmoreland County has left it with an unfavorable public image. We agree with the trial court that a single reference to the defense attorney’s status as a public defender does not rise to a level of prejudice which would entitle a defendant to a mistrial. This is particularly so where, as here, there is nothing of record to support a claim of potential negative impact. It is only where the evidence admitted at trial would so prejudice the fact finder that it would be unable to remain impartial, thereby prejudicing the accused beyond a reasonable doubt, that a mistrial is to be granted. Kubiac, supra., 379 Pa.Super. at 410, 550 A.2d at 223 (citation omitted.) The reference here in question, unaccompanied by any support in the record for the claimed negative image, is not of such magnitude.

Finally, John argues that the evidence presented was insufficient to support a conviction for risking a catastrophe. The applicable section of the Crimes Code states:

§ 3302. Causing or risking catastrophe
(a) Causing catastrophe. — A person who causes a catastrophe by explosion, fire, flood, avalanche, collapse of a building, release of poison gas, radioactive material or other harmful or destructive force or substance, or by any other means of causing potentially widespread injury or damage, commits a felony of the first degree if he does so intentionally or knowingly, or a felony of the second degree if he does so recklessly.
(b) Risking catastrophe. — A person is guilty of a felony of the third degree if he recklessly creates a risk of catastrophe in the employment of fire, explosives or other dangerous means listed in subsection (a) of this section.

18 Pa.C.S. § 3302.

John contends that the potential for injury and damage was insufficient to satisfy the requirements of the statute. He argues initially that the fire was set to a building which had but one occupant, although he admits that that building was connected to the bingo hall. This argument is specious. Although there was testimony that the building involved had once been two separate buildings, they were now joined by a common hallway. Officer Kundrick, qualified as an expert in arson investigation, testified that the fire had caused smoke damage that extended as far as the common hallway and that the interior of that hallway was composed of flammable materials. He further testified that the fire could have spread from the apartment area through the hallway into the bingo hall had it not been extinguished. Officer Kundrick’s testimony was uncontradicted at trial. John’s suggestion on appeal that the fire within the apartment area posed no threat to the bingo hall or the people within it is meritless.

John also directs us to Commonwealth v. Hughes, 468 Pa. 502, 364 A.2d 306 (1976), for the proposition that the acts of which he was convicted do not rise to a level of “risking catastrophe.” This argument provides him with no relief.

In Hughes, the defendant had been convicted of recklessly starting a fire which caused the death of two firemen, one police officer and three civilians. The fire also injured thirty-eight firemen, and caused the evacuation of more than one hundred residents from fifty-one homes. The Court held that, as applied to those facts, § 3302(b) was not unconstitutionally vague. Hughes cannot be relied upon for the proposition that an act which risks less harm is necessarily insufficient to constitute “risking catastrophe.” Furthermore, we are not persuaded that setting fire to a building occupied by about one hundred people necessarily amounts to less of a risk than that presented in Hughes, and John’s argument to the contrary is rejected.

The Commonwealth also appeals and presents for our consideration the sole issue of whether the sentence imposed by the sentencing court constituted an abuse of discretion. A challenge to the discretionary aspect of sentencing must be considered a petition for permission to appeal, as the right to appeal from the discretionary aspect of sentencing is not absolute. 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 511, 522 A.2d 17, 18 (1987). Before we can address the merits of the issue raised on appeal, the Commonwealth must demonstrate in its statement of reasons for allowance of appeal that there exists a substantial question as to whether the sentence imposed is appropriate under the Sentencing Code. 42 Pa.C.S. § 9781(b); Commonwealth v. Anderson, 381 Pa.Super. 1, 16, 552 A.2d 1064, 1072 (1988). In Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en banc), we considered the types of allegations which raise a substantial question under 42 Pa.C.S. § 9781(b). Quoting Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987), we stated:

What constitutes a “substantial question” under section 9781(b) must be evaluated on a case by case basis. However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: 1) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to the fundamental norms which underlie the sentencing process.

Commonwealth v. Williams, supra, 386 Pa.Super. at 324-25, 562 A.2d at 1387.

The Commonwealth contends in its statement of reasons for allowance of appeal that, given the prior record score and the offense gravity score before the judge, the sentence imposed was insufficient. It argues “[w]hile the instant sentence places considerable emphasis on the perceived rehabilitative needs of the Defendant it is inappropriate and excessively lenient given the seriousness of the offenses, the criminal history of the Defendant and the need for protection of the public.” Commonwealth Brief at 6.

The Commonwealth does not contend that, in determining a sentence, the sentencing court considered inappropriate factors. Nor does the Commonwealth contend that the court refused to consider appropriate factors. The Commonwealth’s claim is simply that the sentencing court’s conclusion based on the factors considered — i.e., the sentence imposed — was inappropriate. We stated in Commonwealth v. Billett, 370 Pa.Super. 125, 535 A.2d 1182 (1988), that this type of claim, which asks us to substitute our judgment for that of the sentencing court, does not present a substantial question that the sentence imposed was inappropriate under the Sentencing Code as a whole. See also, Commonwealth v. Walker, 390 Pa.Super. 76, 568 A.2d 201 (1989); Commonwealth v. Osteen, 381 Pa.Super. 120, 127, 552 A.2d 1124, 1128 (1989). We therefore deny allowance of appeal.

Judgment of sentence affirmed.


author: BROSKY, Judge.

text:
    596 A.2d 840
    COMMONWEALTH of Pennsylvania v. Chris BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 30, 1991.
    Filed Aug. 28, 1991.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before MONTEMURO, TAMILIA and BROSKY, JJ.
   BROSKY, Judge.

Chris Brown appeals from the judgment of sentence of the trial court following his bench trial convictions of possession of a controlled substance (13.02 grams of cocaine) with intent to deliver and possession with intent to use drug paraphernalia. Pursuant to 18 Pa.C.S. § 7508(a)(3)(ii) appellant was sentenced to a three-to-six year term of imprisonment and ordered to pay a $15,000.00 fine regarding his conviction of possession of cocaine with intent to deliver. Appellant's sentence for possession of drug paraphernalia was “guilty without further penalty.”

Appellant claims on appeal that (1) the trial court erred in permitting a police officer to testify regarding appellant’s intent to deliver the cocaine that he possessed; and, (2) the trial court erred in sentencing appellant pursuant to 18 Pa.C.S. § 7508(a)(3). We affirm the judgment of sentence of the trial court.

The facts adduced at trial are as follows. On April 3, 1990, plainclothes Philadelphia Police Officer Samuel McClain was assigned to investigate possible illegal sales of controlled substances. While standing at the intersection of 54th and Berks Streets in Philadelphia Officer McClain heard and observed a man yell to and approach appellant. Appellant and the other man engaged in a brief conversation. The men also briefly argued about the “pricing of something.” N.T., 11/5/90, at 49. Appellant then handed the other man “a large amount of United States currency.” Id. at 46. The man then handed appellant a plastic bag which contained what was subsequently determined to be 13.02 grams of crack cocaine. A search of appellant revealed the aforementioned crack cocaine, one-hundred pink vial caps, eighteen empty plastic vials, a box of single-edge razor blades and $800.00 in United States currency.

Appellant first claims that the trial court erred in permitting Philadelphia Police Officer John Boucher to give expert testimony regarding appellant’s intent to deliver the cocaine that he possessed. Appellant avers that Officer Boucher’s testimony regarding appellant’s intent to deliver “usurped the function of the fact finder” since said testimony related to “the ultimate issue ... in this case.” Appellant’s Brief at 8. Appellant further avers that the element of intent to deliver in the instant case is “well within the ordinary knowledge and understanding of the average person”, and, hence, no expert testimony was necessary. Id.

Prior to Officer Boucher’s testimony, Officer McClain testified regarding the circumstances surrounding appellant’s arrest. McClain also presented detailed testimony regarding the crack cocaine and drug paraphernalia that were seized from appellant.

Officer Boucher testified as an expert witness regarding appellant’s intent to deliver the crack cocaine that he possessed. Boucher was a narcotics investigator and had participated in approximately 1,600 seizures of cocaine and/or crack-cocaine. He had received extensive training regarding the packaging and distribution of cocaine, crack cocaine and other controlled substances and had served as an expert witness in over 600 cases that involved the “packaging and distribution” of cocaine and/or crack cocaine. N.T., 11/5/90, at 64.

The prosecutor asked Officer Boucher to give his opinion, based upon his expertise regarding the packaging and distribution of crack cocaine and Officer McClain’s testimony describing the cocaine and drug paraphernalia seized from appellant, regarding whether appellant possessed all of the seized items for his personal use or rather with the intent to deliver or distribute the cocaine. Boucher responded that, in his opinion, “the items were possessed with the intent to deliver to others.” Id. at 66. Officer Boucher then proceeded to justify his opinion. Boucher opined that the cost for 13.02 grams of crack cocaine would be approximately $800 to $1000. Id. He stated that if a user, as opposed to a dealer, possessed that amount of cash to spend for crack cocaine “he would buy ... cocaine hydrochloride, which is ... powdered cocaine, and make his own crack.” Id. Boucher stated that this could be accomplished by placing the cocaine hydrochloride and baking soda in boiling water and then collecting the residue through a paper coffee strainer; once the residue cools it constitutes crack cocaine. Id. at 67. This simple procedure allows a user to double the amount of crack cocaine that he has to satisfy his habit. Id. Boucher also stated that a user would not have possessed eighteen empty vials; once a user consumes the contents of a vial he then discards the vial. Id. at 68. Officer Boucher further stated that the razor blades are used by a dealer to cut small chunks from the larger mass of crack-cocaine and place them into individual vials. Id. Appellant contends that Officer Boucher’s testimony invaded the province of the finder of fact since it related to an “ultimate issue.”

Our Court stated in Palmer v. Lapp, 392 Pa.Super. 21, 572 A.2d 12 (1990),

Generally speaking, the admission of expert testimony is a matter left largely to the discretion of the trial court, and its rulings thereon will not be reversed absent an abuse of discretion. If a witness has any reasonable pretension to a specialized knowledge on the subject under investigation she may testify, and the weight to be given to her testimony is for the trier of fact. Although the witness must demonstrate some particular knowledge or skill, there is no requirement that a witness acquire that knowledge as a result of formal schooling; expertise acquired by experience is expertise nonetheless. The determination of whether a witness is a qualified expert involves two inquiries: When a witness is offered as an expert, the first question the trial court should ask is whether the subject on which the witness will express an opinion is so distinctly related to some science, profession, business or occupation as to be beyond the ken of the average layman. If the subject is of this sort, the next question the court should ask is whether the witness has sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth. [Citations omitted.]

Id., 392 Pa.Superior Ct. at 27-28, 572 A.2d at 15-16.

Our Court has confronted the issue of whether a police officer may give expert testimony in regard to whether a criminal defendant possessed drugs with the intent to deliver rather than for personal use. In Commonwealth v. Johnson, 358 Pa.Super. 435, 517 A.2d 1311 (1986), we stated that a police officer, who had qualified as an expert witness, could give opinion evidence that a defendant possessed drugs with the intent to deliver, regardless of whether the defendant was charged with that particular crime. Id. Our Court further stated,

The opinion of the witness[ ] possessing such knowledge is permitted as an aid to the jury. This is true even when the expert expresses an opinion on the ultimate issue before the jury. When opinion evidence is properly admitted, as in the instant [situation], it is then for the jury [or the trial court] to determine its credibility. The jury is free to reject it, accept it, or give it some weight between the two. [Citations omitted.]

Id., 358 Pa.Superior Ct. at 444, 517 A.2d at 1316. A witness may testify to an ultimate issue only in those instances where the admission will not cause confusion or prejudice. Kozak v. Struth, 515 Pa. 554, 531 A.2d 420 (1987). Expert opinion testimony will be admitted only if it is based upon facts which are of record. Commonwealth v. Rounds, 518 Pa. 204, 542 A.2d 997 (1988). This requirement enables the factfinder to determine whether to accept or reject the opinion testimony, based upon, inter alia, whether it believes the facts upon which the opinion is based. Id.

In Commonwealth v. Ariondo, 397 Pa.Super. 364, 580 A.2d 341 (1990), our Court, while addressing a sufficiency of the evidence claim, stated, “Expert opinion testimony is admissible concerning whether the facts surrounding the possession of controlled substances are consistent with an intent to deliver rather than with an intent to possess it for personal use.” Id., 397 Pa.Superior Ct. at 383, 580 A.2d at 350-51. In addition, in Commonwealth v. Robinson, 399 Pa.Super. 199, 582 A.2d 14 (1990), this Court, while addressing a sufficiency of the evidence claim, indirectly stated that a police officer may give expert testimony regarding whether a defendant possessed drugs with intent to deliver rather than for personal use.

In Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978), wherein the defendant was charged with the homicide of a twenty-one year old retarded young man that defendant had subjected to physical abuse, our Supreme Court held that a forensic pathologist did not “usurp the function of the jury” when he expressed an opinion on an ultimate issue. The pathologist stated that, in his opinion, the manner of the decedent’s death was homicide. The Supreme Court stated,

As applied to the expression of an expert’s opinion, the phrase ‘usurping the function of the jury’ is, as Dean Wigmore has well said, normally ‘a mere bit of empty rhetoric.’ VII Wigmore, Evidence § 1920, at 17 (3d ed. 1940). ‘The witness, in expressing his opinion, is not attempting to usurp the jury’s function; nor could he if he desired ... because the jury may still reject his opinion and accept some other view____ Even when the very point in issue is to be spoken to, the jury should have help if it is needed.’ [Citations omitted.]

Id., 480 Pa. at 352, 390 A.2d at 172.

Appellant cited Kozak v. Struth, supra, in his appellate brief. Our Supreme Court reversed and remanded that case for a new trial since an expert witness gave improper testimony before a jury. The Supreme Court stated, “In Pennsylvania, experts have not been permitted to speak generally to the ultimate issue nor to give an opinion based on conflicting evidence without specifying which version they accept.” Id., 515 Pa. at 559, 531 A.2d at 422. The expert witness in that case improperly evaluated the credibility of the victim, improperly implicitly gave an opinion regarding conflicting evidence without stating which version he accepted and also improperly gave opinion testimony based upon irrelevant and prejudicial facts not of record. In contrast, the expert in the instant case testified regarding undisputed facts of record, and, gave no testimony regarding the credibility of appellant. Furthermore, in Kozak, our Supreme Court recognized our Court’s decision to permit expert and lay witnesses to give testimony regarding the ultimate issue in a case, provided that testimony will not cause confusion or prejudice. Id., 515 Pa. at 562, 531 A.2d at 424. Hence, Kozak is not in conflict with the instant case nor the cases cited herein, supra.

Appellant also cites Commonwealth v. Carter, 403 Pa.Super, 615, 589 A.2d 1133 (1991), in which a panel of this Court reversed and remanded for a new trial, based upon the improper expert testimony, before a jury, of two police officers. The officers testified that they observed that defendant converse with three separate individuals, remove an object from a container and “exchange[] something with” each of the individuals. Id. The container was subsequently found to contain twelve balloon packets of heroin.

[T]he [same] officers were offered as experts in order to elicit testimony on the street value of drugs, the habits of users, the quantity that would be purchased or possessed at one time, the usual dosage, signs of abuse, and whether the pattern of activity observed by the police officers was consistent with the usual pattern of narcotics transactions.

Id., 403 Pa.Superior Ct. at 617, 589 A.2d at 1134. One of the officers was asked if, based on his training and experience, he had an opinion regarding what transpired during the interaction between that defendant and the three individuals. The officer responded that, “[I]n his opinion he believed [that defendant] was ‘dealing narcotics.’ ” Id. Our Court found this testimony to be “cumulative and prejudicial [, since] [t]he facts presented were easily assessed by an ordinary layperson, and in making the necessary inferences from these facts, the assistance of one claiming to possess special knowledge upon the subject was not required.” Id. The Court found that, if the officers’ testimony regarding appellant’s actions was found to be credible, then it was obvious to an ordinary person that a drug transaction had transpired, and any expert opinion regarding what had transpired would be prejudicial since it would invite the trier of fact to abdicate its responsibility and defer to the assessment of the expert. Id.

In Carter, our Court recognized that police officers may give expert testimony, based upon a quantity of drugs in possession of a defendant, regarding whether the facts surrounding the possession were consistent with an intent to deliver rather than for personal use. Id. However, our Court stated that if police officers observe a “transaction” and there is testimony regarding the observed transaction, a police expert witness may not opine that the defendant involved in that transaction possessed with intent to deliver. Id.

We find Carter distinguishable from the instant case. First, Carter implicitly only referred to “transactions”. in which a defendant was observed selling drugs; any police testimony heard by a jury regarding a sale by a defendant; coupled with police expert testimony that a defendant possessed with intent to deliver, would be prejudicial, and, depending upon the facts adduced regarding the particular sale, cumulative. However, the police in the instant case testified that they observed appellant buy the drugs; surely this testimony would not prejudice a defendant charged with possession with intent to deliver since the Commonwealth could only rely upon the quantity and packaging of the drug, the presence of paraphernalia, etc. to prove beyond a reasonable doubt that a defendant intended to deliver the drug. The expert’s testimony in the instant case could not have been cumulative since there was no prior testimony regarding any sales of drugs that appellant may have made. Hence, we conclude that any prior testimony regarding a defendant’s purchase of drugs would not preclude subsequent police expert opinion testimony regarding that defendant’s possession with intent to deliver.

Second, the expert testimony in the instant case involved subject matter that is beyond the appreciation of the average layperson, who would not be cognizant of the significance of the quantity and form of the cocaine, the empty vials, the single-edge razor blades and the quantity of United States currency seized from appellant.

Third, the cases cited by appellant, Kozak, supra, and Carter, supra, involved juries. The instant case involved a bench trial. We are confident that a judge, as opposed to a jury of laypersons, possesses the expertise necessary to perceive and discount improper opinion evidence from a police expert regarding a defendant’s intent to deliver. Since none of the errors committed in Kozak and Carter are present in the instant case, we find appellant’s first claim to be without merit.

Appellant’s second claim is that the trial court erred in sentencing appellant pursuant to the mandatory sentencing provision at 18 Pa.C.S. § 7508(a)(3)(h), since the trial court should have only considered the weight of the “substance” (cocaine), rather than the “mixture” (whatever may have been mixed in with the pure cocaine) in determining appellant’s sentence.

First, we note that appellant did not inform us whether the cocaine seized from appellant was pure or constituted a mixture. Regardless, this claim is wholly devoid of merit pursuant this Court’s opinion in Commonwealth v. Lisboy, 392 Pa.Super. 411, 573 A.2d 222 (1990), wherein we held that the weight of a mixture containing cocaine is the proper weight to consider in a determination of whether a mandatory minimum sentence must be imposed.

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(30).

      . 35 P.S. § 780-113(a)(32).

      . Appellant is not challenging Officer Boucher’s qualifications as an expert witness; appellant is only alleging that Officer Boucher should not have been permitted to testify regarding appellant’s intent to deliver.

      . Appellant mistakenly refers to the case as Commonwealth v. Carter.

      . We note that the record contains no indication that appellant sold any drugs; the forgoing reference to any hypothetical sales is for illustrative purposes only.


author: CERCONE, Judge:

text:
    596 A.2d 845
    DAUPHIN DEPOSIT BANK AND TRUST COMPANY, Guardian of the Estate of Rita M. Baxter, an Incompetent, Appellant, v. TOYOTA MOTOR CORPORATION, Toyota Motor Sales USA, Inc., Toyota Distributors, Inc., Hartman Motorcars Company, Commonwealth of Pennsylvania, Department of Transportation, Neptune Lounge, Inc. and Campari USA, Inc. v. Scott J. WITFIELD.
    Superior Court of Pennsylvania.
    Argued April 2, 1991.
    Filed Aug. 29, 1991.

      John A. Statler, Harrisburg, for appellant.
    James M. Beck, Philadelphia, for Campari USA, appellee.
    Before JOHNSON, HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the order sustaining appellee’s Preliminary Objections filed in the nature of a demurrer. We affirm.

On appeal, plaintiff/appellant raises four issues for our consideration:

1. Did the trial court err in its ruling that the dangers of consumption of alcoholic beverages were so obvious and well known to the consuming public, as a matter of law, as to preclude Plaintiff from proving that Defendant’s [sic] failure to provide adequate directions or instructions regarding the use of its product rendered that product defective for the purposes of Plaintiff’s strict liability in tort and breach of warranty claims?
2. Did the Trial court err in holding that, as a matter of law, the risks associated with alcoholic consumption do not outweigh their social utility?
3. Did the trial court err in ruling that the dangers of consumption of alcoholic beverages were obvious, as a matter of law, so as to preclude Plaintiff from proving that Defendant Campari USA, Inc. negligently failed to provide adequate warnings of the hazards associated with the use of its alcoholic product?
4. As a matter of public policy, should an innocent and injured victim of a drunken driver be permitted to maintain an action for damages against the manufacturer of the alcohol consumed by the drunken driver?

We will address each issue below.

The present case arose out of a motor vehicle accident that took place in January of 1988 wherein Rita M. Baxter suffered severe injuries rendering her an incompetent. Appellant, Dauphin Deposit Bank and Trust Company, Ms. Baxter’s guardian, initiated suit against appellee Campari USA, Inc. (“Campari”) and a number of other defendants. Appellant pleaded causes of action in negligence, strict liability in tort, and breach of warranty against appellee, Campari. In response, Campari filed Preliminary Objections in the nature of a demurrer to all of appellant’s contentions. On May 17, 1990, the parties argued before a panel of the Court of Common Pleas of Dauphin County and on July 6, 1990, the Court by the Honorable Sebastian D. Natale, issued an order sustaining all of Campari’s Preliminary Objections. Appellant subsequently filed this timely appeal.

We note initially that in an appeal from an order sustaining preliminary objections in the nature of a demurrer, the appellate court applies the same standard employed by the trial court: all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purposes of review. Kyle v. McNamara & Criste, 506 Pa. 631, 634, 487 A.2d 814, 815 (1985). However, it does not admit conclusions of law. Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 623, 470 A.2d 86, 91 (1983). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Kyle v. McNamara & Criste, supra. A demurrer should be sustained only in cases where the plaintiff has clearly failed to state a claim on which relief may be granted. Philmar Mid-Atlantic, Inc. v. York Street Associates II, 389 Pa.Super. 297, 301, 566 A.2d 1253, 1254-55 (1989); Wicks v. Milzoco Builders, Inc., supra. A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory of law. Id.

Appellant’s first contention is that the trial court incorrectly determined that the dangers of alcohol consumption are so known and obvious as to preclude it from being considered a defective product. The foundation for appellant’s argument is that recent cases involving the liability of cigarette manufacturers indicate that the Restatement (Second) of Torts Section 402A, comments i and j, do not preempt a strict liability or breach of warranty claim against makers of alcoholic beverages. By analogy to these cases, appellant attempts to argue that Campari’s products are not defective because of their inherent ability to produce an intoxicated state; rather they are defective because they produce this state of mind without an attached label warning customers of the dangers associated with intoxication. We find this argument meritless.

We note that Section 402A has been adopted as the law of Pennsylvania. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). Section 402A imposes strict liability on the seller of any product that is in a defective condition and unreasonably dangerous to the user or consumer. Comment j to § 402A states in substance that the maker of an unreasonbly dangerous product may be required to warn potential users of the product’s dangerous propensities. Comment i to § 402A provides a rough guideline for the courts to use in determining whether a product may be classified as “unreasonably dangerous.” To quote:

The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous.

Restatement (Second) of Torts § 402A, comment i (1965).

Appellant attempts to circumvent the clear language of comment i by first attacking its viability and then arguing that this case is similar to those cases involving suits against cigarette manufacturers. Finally, appellant argues that the recent passage of the Alcoholic Beverage Labeling Act provides support for the contention that people were not aware of the dangers of drinking and driving at the time of this accident.

First, we find absolutely no merit to appellant’s claim that much of comment i has been rejected by the courts of Pennsylvania. On the contrary, we find that Pennsylvania courts have unflinchingly affirmed the mandates provided by section 402A and its accompanying comments. See Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978) (employing 402A and comment i to determine whether product was defective); Hite v. R.J. Reynolds Tobacco Co., 396 Pa.Super. 82, 578 A.2d 417 (1990) (discussing the applicability of a risk/utility analysis in a 402A action); Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590 (1987) (discussing whether evidence of industry standards is properly admissible in a 402A action). We also find appellant’s reliance on cases involving cigarette manufacturers to be misplaced.

Appellant contends that this court’s recent decision in Hite, supra, compels the conclusion that Pennsylvania courts recognize causes of action for failure to warn claims and that the question of common knowledge under § 402A, comment i, is an issue for the jury to decide. While we agree with appellant that our courts recognize such claims, we fail to see how appellant can maintain its allegation that the jury is the proper forum to decide whether the risks of drinking alcohol are of common knowledge. As previously stated, the determination of whether a product is unreasonably dangerous is accomplished by evaluating whether the dangerous propensities of the product are known to the ordinary consumer. Restatement (Second) of Torts § 402A, comment i. If the dangers are known, then the product is not defective and the manufacturer is under no duty to provide a warning. Moreover, “[t]he determinations of whether a warning is adequate and whether a product is ‘defective’ due to inadequate warnings are questions of law to be answered by the trial judge.” Mackowick v. Westing house Electric Corporation, 525 Pa. 52, 56, 575 A.2d 100, 102 (1990). See also Azzarello v. Black Bros. Co., Inc., supra, (it is a judicial function to determine whether recovery is justified under § 402A). By alleging that these questions are all issues for the jury to decide, appellant has ignored the clear pronouncements from the courts of this Commonwealth. Apparently appellant believes that our recent approval and application of a Third Circuit decision interpreting New Jersey law binds this court to apply the law of New Jersey in subsequent cases. See Cipollone v. Liggett Group, Inc., 893 F.2d 541 (3d Cir.1990) cert. granted, — U.S. -, 111 S.Ct. 1386, 113 L.Ed.2d 443 (1991) (discussed infra). This, however, is a misinterpretation of our recent decision and appellant’s claim must therefore fail.

Recently the Third Circuit decided Cipollone v. Liggett Group, Inc., supra, wherein the husband/plaintiff brought suit against various cigarette manufacturers, alleging that their products caused his wife’s death. Plaintiff stated causes of action in strict liability in tort, negligent failure to warn and inadequate warnings on the part of the manufacturers. The main thrust of the case, the part from which this court later relied upon, studied the effects of the Federal Cigarette Labeling and Advertising Act on plaintiff’s claim that certain warnings on cigarettes were inadequate. As to plaintiff’s other issues, the Third Circuit utilized New Jersey law to determine that the Cigarette Labeling Act did not bar the tort claims and the question of defectiveness should be put to the jury.

In Hite v. R.J. Reynolds Tobacco Co., supra, this court was asked to consider claims similar in nature to those presented in Cipollone. We relied on the Third Circuit decision merely to evaluate the effect of the cigarette labeling act on plaintiff’s inadequate warning claim. For plaintiff’s other claims, we relied exclusively on Pennsylvania law. In this case, appellant is attempting to bootstrap the application of New Jersey law into this decision by arguing that Hite implicitly accepted the law set out in Cipollone. Since Hite's reliance on Cipollone is limited to the labeling issue, we do not accept appellant’s argument that Hite requires this court to put the issue of defectiveness to the jury.

We also do not accept appellant’s argument that the Alcoholic Beverage Labeling Act of 1988 clearly indicates that the public was not aware of the dangers of imbibing alcoholic beverages. The lower court correctly indicated to appellant that the legislative history of the Act refutes this argument:

The warning label required by this Act is basically a reminder of what nearly all Americans already know about the problems of alcohol use and abuse. These figures indicate that there is widespread awareness of the health risks associated with alcohol use or abuse----

134 Cong.Rec. S17,301 (daily ed. Oct. 21,1988) (statement of Sen. Ford). Thus the passage of the Labeling Act, in and of itself, does not indicate that the public was not aware of drinking’s ills prior to November 18, 1988. Rather, the law was intended to remind people of that which they were already aware in an attempt to decrease the number of casualties associated with drinking.

In the instant case, the lower court looked to the clear language of § 402A, comment i and determined, as a matter of law, that the dangers of drinking alcohol and driving are obvious. As such, Campari had no duty to warn potential users of that which is known to most people. We find no error in the lower court’s reasoning as the law is clearly stated. Moreover, we find appellant’s reliance on New Jersey law misplaced and its interpretation of the reasons for the Labeling Act incorrect. Accordingly, we affirm on this issue.

Appellant next contends that the trial court erred in concluding that, as a matter of law, the risks associated with alcoholic consumption do not outweigh their utility. Appellant argues that Campari’s promotion of its product diminished the public’s common knowledge of the dangers of alcohol consumption to the point that the product was defective absent some warning provided to re-educate the user about the risks of drinking alcohol. We find this argument meritless.

In Hite v. R.J. Reynolds Tobacco Company, supra, we expressly rejected the application of a risk-utility approach to design-defect cases under § 402A. In that case, we reached our conclusion after undertaking a thorough analysis of Pennsylvania’s strict liability law. We draw appellant’s attention to the reasoning and overview supplied in that case for we again conclude that Pennsylvania courts do not recognize this type of claim in determining whether a product is defective. Thus we find no error in the lower court’s dismissal of this claim and hereby affirm their decision.

Appellant’s third contention is that the trial court incorrectly dismissed its negligent failure to warn claim. The trial court allegedly usurped the jury’s duty by determining, as a matter of law, that the dangers of drinking and driving were so obvious that Campari had no duty to warn consumers of these risks. Appellant attempts to bolster this argument by opining that Campari’s promotional efforts may have diminished public awareness of the risks inherent in drinking and driving. As such, the trial court should have permitted a jury to balance the effect of Campari’s advertisements against the consuming public’s awareness of the dangers associated with drinking and driving. We disagree.

We note that in a products liability suit based on negligence, appellant must prove that the manufacturer owed a duty to appellant; the manufacturer breached that duty; and such breach was the proximate cause of appellant’s injuries. See Toth v. Economy Forms Corporation, supra. We also note that Pennsylvania has adopted the Restatement (Second) of Torts section 388 in cases involving a claim of negligent failure to warn. Incollingo v. Ewing, 444 Pa. 263, 288 n. 9, 282 A.2d 206, 220 n. 8 (1971); Herleman v. Trumbauer Auto Sales, 346 Pa.Super. 494, 499 A.2d 1109 (1985); Ellis v. Chicago Bridge & Iron Co., 376 Pa.Super. 220, 233 n. 13, 545 A.2d 906, 913 n. 13 (1988). Section 388 provides that:

one who supplies ... a chattel for another to use is subject to liability ... for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier:
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied; and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Restatement (Second) of Torts § 388 (1965) (emphasis add- - ed). Comment k to section 388 interprets the requirement of subsection (b) as follows:

One who supplies a chattel to others to use for any purpose is under a duty to exercise reasonable care to inform them of its dangerous character in so far as it is known to him, or of facts which to his knowledge make it likely to be dangerous, if, but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved.

Restatement (Second) of Torts sec. 388, comment k.

Appellant argues that Campari’s promotional efforts so diminished the public’s knowledge of alcohol’s risks that Campari should be required to warn consumers of those dangers. In support of this position, appellant cites cases wherein juries were asked to assess the effects of drug manufacturer’s promotions on their products which had warning labels attached thereto. Incollingo v. Ewing, supra.; Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (1984). We find appellant’s reliance on these cases to be misplaced, however. The critical and fatal difference between the present action and those cited by appellant is that in the latter, the manufacturers had provided warnings on their own products. Thus the manufacturers’ promotional efforts served to diminish the warnings which they had provided. Since the public’s knowledge about the drugs came exclusively from the manufacturer, the manufacturer’s advertising efforts only diminished the effect of the warnings which they had provided.

By contrast, we find that the public is well aware of the dangers of alcohol consumption without a warning provided by Campari. Appellant alleges that the particular driver involved in this accident was not aware of these dangers and thus the issue of duty and breach thereof must be put to the jury. Our research has not disclosed any Pennsylvania cases which have considered whether a liquor manufacturer can be negligent for failing to warn of drinking’s inherent dangers. Therefore, we look to a sister jurisdiction which has decided a case strikingly similar to the present action. In Morris v. Adolph Coors Company, 735 S.W.2d 578 (Tex.App.1987), the Texas Court of Appeals was asked to determine whether a beer manufacturer could be held negligent for failing to warn a consumer of the dangers of drinking and driving. After examining section 388 and comment k, the court concluded that:

[l]ike the strict liability cause of action raised by appellants, the question of whether a duty to warn exists must be evaluated in light of the knowledge of ordinary consumers of the risks inherent in drinking and driving. The dangers inherent in the consumption of alcoholic beverages and its affects on those operating motor vehicles are common knowledge to the ordinary consumer. As such, there is no duty ... imposed on these appellees to warn or inform consumers of such obvious dangers. Since there is no duty imposed on appellees in this case, the imposition of which was a necessary requirement for the negligence theory of liability alleged by appellants, the trial court did not err in dismissing appellants’ cause of action based on this theory.

Id., 735 S.W.2d at 584-85 (citations omitted).

While we are not bound by the decision of the Texas Court of Appeals, we are strongly persuaded by its reasoning. The risks inherent in drinking and driving are so obvious that Campari had no reason to believe that the intoxicated driver in this case would not be cognizant of them. See Restatement (Second) of Torts sec. 388, comment k. As such, Campari was under no duty to warn consumers of these risks. Since we also find the cases relied upon by appellant to be inapposite, we hereby affirm the lower court’s dismissal of appellant’s negligence claim.

Finally, appellant asks us to grant relief based upon public policy notions. Appellant argues that changes in societal thinking allow us to pass the cost of drunk driving accidents onto the liquor manufacturers. Essentially, appellant is fed up with the discouraging number of drunk driving accidents and society’s inability to effectively deal with this tremendous problem. While we share appellant’s emotional outrage towards this menace, we must remind appellant that we are an appellate judicial tribunal, not a legislative body. We, as an intermediate appellate court, are not free to disregard existing law as established by the Supreme Court of this Commonwealth based solely on such generalized allegations of societal changes. Taurino v. Ellen, 397 Pa.Super. 50, 55, 579 A.2d 925, 928 (1990). As such, we may render decisions only on a set of facts which establish a valid cause of action at law. Since appellant has not met this requirement, we must affirm the lower court’s ruling.

Order affirmed.

      . 27 U.S.C. §§ 213-219a (effective November 18, 1988).

      . 15 U.S.C. § 1331 et seq.

      . Even if we were to address appellant’s contentions on their merits, we would feel constrained to affirm the lower court. In order to succeed under 402A, a plaintiff must establish all of the following: 1) a product; 2) the sale of that product; 3) a user or consumer; 4) the product defect which makes the product unreasonably dangerous; and 5) the product defect was the proximate cause of the harm. Toth v. Economy Forms Corporation, 391 Pa.Super. 383, 387, 571 A.2d 420, 422 (1990). We find the "overpromotion” argument to be unpersuasive as its reliance on cases involving prescription drugs is misplaced. We hold that the public’s knowledge of the dangers of alcohol cannot be so diminished by advertising as to render the product defective if sold without a warning. Moreover, appellant has not established a causal link between promotional efforts and the accident in question. Therefore appellant has not met the established burden of proof for sustaining this claim.