author: BECK, Judge: POPOVICH, Judge,

text:
    582 A.2d 1326
    COMMONWEALTH of Pennsylvania, v. Troy STRUNK, Appellant.
    Superior Court of Pennsylvania.
    Argued June 13, 1990.
    Filed Dec. 3, 1990.

      Mark S. Love, Mt. Pocono, for appellant.
    Gregory D. Anthony, Asst. Dist. Atty., Warren, for Com., appellee.
    Timothy P. Wile, Asst. Counsel, Harold H. Cramer, Asst. Chief Counsel, John L. Heaton, Chief Counsel, Harrisburg, for Department of Transportation, amicus curiae.
    Before BECK, POPOVICH and HESTER, JJ.
   BECK, Judge:

On appeal we consider whether a state imposing a 90-day driver’s license suspension based upon an underaged defendant’s conviction of merely possessing an alcoholic beverage, violates the defendant’s substantive due process rights or the prohibition against cruel and unusual punishment, where the violation was not connected to the possession or operation of a motor vehicle. We conclude that the imposition of the 90-day license suspension did not violate either the defendant’s substantive due process rights or his right to be free from cruel and unusual punishment.

On July 21, 1989, a police officer observed appellant, Troy Strunk, then 19 years old, standing outside, at the top of a stairwell at a residential property in Stroudsburg, with a 12-ounce bottle of beer in his hand. At that time the officer issued Strunk a citation for the underage possession, consumption, transportation and purchase of an alcoholic beverage. 18 Pa.Cons.Stat.Ann. § 6308 (Purdon 1983). Strunk pled guilty before a district justice to the section 6308 violation. He subsequently filed a timely appeal with the Court of Common Pleas of Monroe County.

Judge Ronald E. Vican conducted a de novo trial and found the defendant guilty of possessing and consuming alcoholic beverages in violation of section 6308. Thereafter, the defendant filed timely post-verdict motions which the trial court denied. The trial court suspended the defendant’s operating privileges for a period of 90 days, pursuant to 18 Pa.Cons.Stat.Ann. § 6310.4 (Purdon Supp.1990), and ordered Strunk to pay $100.00 and prosecution costs. The defendant appeals this sentence.

On appeal, the appellant challenges the constitutionality of section 6310.4 on both substantive due process and cruel and unusual punishment grounds. After careful consideration and extensive research we reject both of these claims.

Appellant’s first contention is that the 90-day license suspension based upon his conviction of merely possessing and consuming alcoholic beverages, unconnected with his operation or possession of a motor vehicle, violates his substantive due process rights under both the Pennsylvania and United States Constitutions. Specifically, appellant claims that because his violation of section 6308 was not in any way connected to the operation or possession of a motor vehicle, the 90-day license suspension bore no rational relationship to promoting the state’s interest in the safe operation of motor vehicles and, therefore, violates his right to due process.

Initially, we must determine the appropriate standard to utilize in evaluating the constitutionality of the challenged statute. Appellant suggests that an individual’s right to retain his or her driver’s license is fundamental in nature and, therefore, that we should analyze the constitutionality of the statute under the “strict scrutiny” standard. However, while an individual’s right to possess a driver’s license is considered a “privilege” in the constitutional sense, the right to do so is not fundamental. Therefore, it would be improper to elevate the suspension of a driver’s license to a level requiring strict scrutiny. See Mays v. Scranton City Police Dept. 503 F.Supp. 1255, 1261 (M.D. Pa.1980); see also Commonwealth v. Gassoway, 199 Pa.Super. 479, 481, 185 A.2d 671, 672 (1962) (license to operate motor vehicle on public highways is a privilege; Commonwealth possesses authority to limit privilege to those who are able to exercise the privilege with a reasonable degree of safety). In deciding cases relating to this privilege, Pennsylvania courts have uniformly evaluated driver’s license suspensions or revocations under the “reasonable basis” standard, under which the privilege of possessing a driver’s license can be granted, denied or limited by our legislature based upon any reasonable basis. Appeal of Deems, 39 Pa.Commw. 138, 395 A.2d 616 (1978); Commonwealth, Dept. of Transp., Bureau of Traffic Safety v. Lemon, 31 Pa.Commw. 133, 375 A.2d 857 (1977); Sheehy Motor Vehicle Operator License Case, 196 Pa.Super. 122, 173 A.2d 752 (1961). See Sharon v. Larson, 650 F.Supp. 1396 (E.D.Pa.1986); Sheakley v. Commonwealth, Dept. of Transp., 99 Pa.Commw. 328, 513 A.2d 551 (1986), allocatur denied, 515 Pa. 586, 527 A.2d 546 (1987). We, therefore, must utilize the “reasonable basis” test as our analytical tool in evaluating the instant constitutional challenge.

At the outset, we note that legislative enactments enjoy a strong presumption of constitutionality. United States v. Getter, 560 F.Supp. 1309 (E.D.Pa.1983), aff'd, 745 F.2d 49 (3d Cir.1984); James v. Southeastern Pennsylvania Transp. Auth., 505 Pa. 137, 477 A.2d 1302 (1984). See 1 Pa.Cons.Stat.Ann. § 1922(3) (Purdon Supp.1990). The party challenging a statute’s constitutionality bears the burden of establishing that no rational relationship exists between a statute and a legitimate state interest. Morris v. Commonwealth, Public School Employes’ Retirement Sys., 114 Pa.Commw. 369, 538 A.2d 1385 (1988), appeal denied, 521 Pa. 615, 557 A.2d 345 (1989); Commonwealth v. Finnegan, 280 Pa.Super. 584, 421 A.2d 1086 (1980). An enactment of the legislature will be deemed to be constitutional unless the challenging party advances evidence that the statute clearly, palpably and plainly violates the Constitution. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986); O’Donnell v. Casey, 45 Pa.Commw. 394, 405 A.2d 1006 (1979). Any doubts regarding the constitutionality óf a challenged statute are to be resolved in favor of the statute’s constitutionality. Getter, 560 F.Supp. 1309. We now apply these principles in evaluating the challenged statute under the rational relationship test.

The rational relationship test evaluates whether a particular statute is “rationally related to furthering a legitimate state purpose.” Meier v. Anderson, 692 F.Supp. 546, 552 (E.D.Pa.1988), aff'd, 869 F.2d 590 (3d Cir.1989). “It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Id. (quoting Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 488, 75 S.Ct. 461, 464-65, 99 L.Ed. 563 (1955)). Thus, the rational relationship test mandates a two-step analysis. The first step is to consider whether the challenged statute seeks to promote any legitimate state interest or public value. Meier, 692 F.Supp. at 552; Mays, 503 F.Supp. at 1261 (quoting Malmed v. Thornburgh, 621 F.2d 565 (3d Cir.), cert. denied, 449 U.S. 955, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980)). The second prong of the analysis mandates an evaluation of whether the statute is reasonably related to accomplishing the articulated state interest or interests. Meier, 692 F.Supp. at 552. See, e.g., Maurer v. Boardman, 336 Pa. 17, 20-23, 7 A.2d 466, 471 (1939), aff'd sub nom. Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969 (1940) (as long as legislature acts neither arbitrarily nor capriciously, it may enact any regulation it believes is necessary to protect life, limb or property on the Commonwealth’s roadways). We turn now to the arguments appellant asserted in his brief to establish his contention that the statute is arbitrary and irrational.

Appellant contends that section 6810.4 is unconstitutional because it bears no rational relationship to a conviction for the possession or consumption of alcoholic beverages which did not involve the operation or possession of a motor vehicle. Initially, we note that appellant mischaracterizes the focus of our inquiry. Under a substantive due process analysis regarding the constitutionality of section 6310.4, we are not concerned with whether section 6310.4 is rationally related to section 6308. Rather, our inquiry is limited to whether section 6310.4 is reasonably related to achieving a legitimate state interest. Under this analysis, clearly we need not evaluate whether a nexus exists between the challenged section (section 6310.4) and an unchallenged section (section 6308). Thus, while appellant contends that a license suspension may only result from a violation that is directly related to the operation or possession of a motor vehicle, no per se rule exists to support this bold proposition. Rather, as noted above, a legislative enactment will be sustained where: 1) any legitimate state interest exists, and 2) it is reasonable to conclude that the subject legislation provides a rational way to promote that state interest. Meier, supra.

First, we consider whether the punishment contained in section 6310.4 promotes any legitimate state interest. In this case appellant asserts that the state interest is the promotion of public safety on the roadways. Appellant contends that there is no rational relationship between the challenged statute and public safety. While this may or may not be a valid assertion, public safety is just one of many state interests the legislature may have sought to promote when it enacted section 6310.4.

Indeed it is quite plausible and even probable that the legislature may have intended section 6310.4 to promote the goals of deterrence and punishment, i.e. to discourage the possession and consumption of alcohol by underaged individuals. It is undisputed that underage drinking and driving results in a high number of fatalities in the United States each year. See Rosenthal, The Minimum Drinking Age for Young People: An Observation, 92 Dick.L.Rev. 649, 657 (1988). It follows, therefore, that if underage drinking could be eliminated, thousands of lives could be saved each year. With these premises in mind, we note that prior to section 6310.4’s enactment, those under 21 years of age convicted of possession or consumption of alcoholic beverages were often subject only to a fine, in some cases as low as $25.00. The legislature may have believed that in many cases such fines were either paid by the violator’s parents or were so minimal as to serve neither punitive nor deterrent functions. Thus, the legislature may have sought to impose a penalty which would deter and punish any offender, regardless of the financial penalty involved. Clearly, the penalty of a 90-day license suspension advances both of these goals.

We find, therefore, that both deterrence and punishment represent legitimate state interests, and indeed may have constituted the legislative goals underlying the challenged enactment. Deems, 39 Pa.Commw. at 139-41, 395 A.2d at 617 (deterrence interest is a valid state interest); Lemon, 31 Pa.Commw. at 134-35, 375 A.2d at 858 (deterrence constitutes a legitimate state goal). We emphasize that the rational relationship test does not require definitive proof that a particular goal was in fact considered by the legislature. Rather, as long as a legislative enactment promotes a legitimate state interest, the mandates of this prong will be found to have been satisfied. Appellant has failed to show that deterrence and punishment are not legitimate state interests. However, our inquiry does not end here.

Next we must consider whether 6310.4 is rationally related to the goals of deterring and punishing underage possession and consumption of alcoholic beverages. We reiterate that in order to satisfy this second requirement we need only find that a particular problem exists and that the legislative enactment was a rational way to remedy the problem. Meier, 692 F.Supp. at 552. The corollary to this requirement is that in order to satisfy its burden, a party challenging a statute must establish that the statute is “arbitrary” and “irrational”. Here we consider whether it was rational to believe that the enactment of section 6310.4 would further the goals of deterrence and punishment. We point out that the state is not required to introduce empirical evidence of a statute’s proven deterrent or punitive effect. Rather, as long as the Pennsylvania legislature could reasonably have believed that section 6310.4 was a rational means of deterring and punishing underage possession and consumption of alcoholic beverages, we must find the statute constitutional.

We find that the appellant has failed to introduce any evidence to establish that the statute is either arbitrary or irrational. Section 6310.4 indeed represents a rational means of deterring and punishing underage consumption and possession of alcohol. We recognize that a license to drive a car is an important privilege to youths. Their social status, their psychological and physical independence, and their ability fully to participate in peer group activity may all be implicated if this privilege is suspended. Furthermore, a driver’s license suspension may affect a youth’s economic welfare by limiting his ability to travel to and from a place of employment. For these reasons, a license suspension, while indeed disruptive to those under 21 years of age, provides a far more effective deterrent than a monetary fine.

We conclude that section 6310.4 does not violate appellant’s substantive due process rights under either the Pennsylvania Constitution or the United States Constitution.

Appellant’s second contention is that a 90-day driver’s license suspension for the mere possession and consumption of alcoholic beverages violates the Pennsylvania and United States Constitutions’ proscriptions against cruel and unusual punishment. Specifically, appellant asserts that section 6310.4’s imposition of a 90-day license suspension is a disproportionate penalty for the offenses of possession and consumption of alcoholic beverages, where the violations were not linked to the possession or operation of a motor vehicle.

We reiterate that a party challenging the constitutionality of a legislative enactment bears the burden of overcoming the enactment’s presumption of constitutionality. Commonwealth v. Blystone, 519 Pa. 450, 462-64, 549 A.2d 81, 87 (1988), aff'd sub nom. Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990); Commonwealth v. Middleton, 320 Pa.Super. 533, 543-45, 467 A.2d 841, 846 (1983) (citation omitted). Any doubts regarding a statute’s validity are to be resolved in favor of the statute’s constitutionality. Blystone, 519 Pa. at 462-64, 549 A.2d at 87.

The United States Constitution provides that “[ejxcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII. The eighth amendment prohibits “barbaric” punishment, as well as punishments “that are ‘excessive’ in relation to the crime committed.” Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977). A punishment is considered “excessive” and therefore unconstitutional if it either “(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground.” Id. at 592, 97 S.Ct. at 2866. In the case sub judice, appellant challenges the validity of section 6310.4 on the second ground articulated by the Supreme Court in Coker.

We commence our analysis by highlighting the oft-stated principle that the scope of the protections afforded by the prohibition against cruel and unusual punishment is not static. Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). We cannot, therefore, evaluate whether a particular punishment is invalid based on its disporportionality to the severity of a crime in a vacuum. Nor can we base such an evaluation upon our own subjective notion of what constitutes cruel and unusual punishment. Rather, we must focus our evaluation upon “evolving standards of decency” in order to identify objective factors to utilize in evaluating a statute’s validity. Id. These objective indicia include, but are not limited to, public attitudes, history and precedent, and legislative attitudes. These factors, and others that may be applicable in a particular case, help courts to ascertain the citizenry’s views regarding a particular punishment for a given offense, in order to provide courts with an objective framework within which to evaluate the validity of a criminal sanction. Thus, it is a court’s duty “to identify the ‘evolving standards of decency’; to determine, not what they should be, but what they are." Stanford v. Kentucky, 492 U.S. 361, 378, 109 S.Ct. 2969, 2979, 106 L.Ed.2d 306, 323 (1989).

Applying these principles to the appellant’s constitutional challenge, we underscore that while no sentence is to be considered per se constitutional, courts are instructed to grant the legislature substantial deference in delineating types and limits of penalties. Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009-10, 77 L.Ed.2d 637 (1983). We also observe that successful challenges to a criminal penalty are extremely rare where the penalty is something other than capital punishment. Id. at 289-90, 103 S.Ct. at 3009-10.

The issue before the court then, is whether the penalty of a 90-day license suspension is so disproportionate to the offense of underage possession and consumption of alcoholic beverages as to offend “evolving standards of decency or a balanced sense of justice.” Commonwealth v. Carr, 375 Pa.Super. 168, 175, 543 A.2d 1232, 1235, allocatur denied, 520 Pa. 618, 554 A.2d 506 (1988).

First we will examine the nature of the prohibited offense. We will then consider whether the required penalty of a 90-day license suspension for a violation of this offense is disproportionate under current public notions of justice and fairness.

In evaluating the nature of the prohibition against underage possession and consumption of alcoholic beverages, while we are cognizant that this violation is certainly not as serious as murder, rape or other felonies, it is by no means to be considered a trivial offense. The legislature’s enactment of sections 6308 and 6310.4 evinces a recognition of: (1) the problems inherent in underage alcohol possession and consumption, (2) the possible safety hazards posed by the combination of underage drinking and the operation of a motor vehicle, and (3) the ineffectiveness of punishing underage drinking by the more traditional penalty of the imposition of a monetary fine. In addition, the steady increase in alcohol related automobile fatalities has generated a powerful anti-drunk driving movement. See Rosenthal, supra note 5, 92 Dick.L.Rev. at 657 (alcohol-related traffic deaths were number one killer of fifteen to twenty-four-year olds according to 1980 statistics). While we have no empirical evidence that establishes a link between underage alcohol consumption and highway fatalities, we cannot ignore the obvious conclusion that the two are related. See Rosenthal, supra note 5, 92 Dick.L.Rev. at 657 (“Young drivers who drink are highly dangerous to themselves as well as to everyone else.”); See also Cal.Veh.Code § 13202.5 historical note (Deering Supp.1990) (“Individuals who abuse drugs or alcohol demonstrate a dangerous disregard for the safe legal operation of motor vehicles. The risk is particularly acute for individuals under the age of 21”). Based on the proliferation of the anti-drunk driving movement throughout this state and the nation, we cannot say that the citizenry views underage alcohol possession and consumption as trivial offenses. Rather, we find that the general public views underage alcohol possession and consumption as serious offenses that must be punished in a way that will deter future violations. See Zettlemoyer, 500 Pa. at 74-76, 454 A.2d at 968 (enactments of our legislature provide the most accurate indicators of evolving standards of decency).

The next step in our analysis is to consider whether the penalty imposed is disproportionate to the offense. We note that while the legislature could have substituted lesser penalties for the 90-day license suspension, there is no constitutional requirement that the legislature impose the least severe penalty. We also point out that an important goal of punishment is the protection of the public. Com monwealth v. Howard, 373 Pa.Super. 246, 248-50, 540 A.2d 960, 961 (1988). By eliminating or reducing the incidence of underage alcohol consumption, the number of alcohol-related traffic fatalities will be reduced, thus contributing to the goal of protection of the public. These principles in conjunction with the seriousness of the offenses of underage alcohol possession and consumption, lead us to conclude that a 90-day driver’s license suspension is not an excessive penalty for a section 6308 violation under “evolving standards of decency”. A person receiving a license suspension penalty retains the freedom to move from place to place, with only a three-month limitation on his means to do so. Given the challenged statute’s presumption of constitutionality and the substantial deference we must extend to the Pennsylvania legislature in this area, we simply cannot find that this penalty violates the proscription against cruel and unusual punishment by imposing a penalty that is grossly disproportionate to the underlying offense.

Judgment of sentence affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting opinion:

I dissent. Upon thorough review of the record and statutory provisions herein relevant, I disagree, first, with the majority's characterization of the test of “rational relationship” under the substantive component of the Due Process Clause. Second, armed with the improper test, the majority thereupon undertook a misguided analysis and in so doing creates dangerous, if not boundless, precedent.

The thrust of the majority opinion can be found in the conclusion that the test for “rational relation” as derived from the substantive implications of the Due Process Clause compels that the penalty (here, suspension of driver’s privileges), need be related to the crime (here, the crime of underage drinking), only so far as the legislature might have rationally believed that it serves a “deterrent function.” Hence, the majority considers the constitutional test fully satisfied if the penalty, however arbitrarily arrived at, is rationally related to achieving any state interest.

Under a substantive due process analysis regarding the constitutionality of section 6310.4 [mandated termination of driver’s licence for conviction under § 6308], we are not concerned with whether 6310.4 is rationally related to section 6308 [violation for person under 21 years old to, inter alia, possess brewed beverages].
a rational relationship need only exist between the state interest(s) (deterrence and punishment) and the challenged legislation (section 6310.4).

Ante 582 A.2d at 1328-29 & n. 6.

I find this suggestion unpersuasive, as both incomplete on the law and dangerous as a matter of precedent. Yet, in no way do I seek to denigrate the sense of public urgency and social concern associated with underage drinking. Thus, I find it well within the bounds of rationality that the legislature considered removal of a driver’s license as “deterring” youthful drinking. The majority, however, cites not one United States Supreme Court, Pennsylvania Supreme Court or Pennsylvania Superior Court decision in support of this singular “deterrence” approach to judicial scrutiny under the Due Process Clause. Contrarily, I find judicial inquiry properly framed under the Due Process Clause as demanding that we consider the rationality, or irrationality, of suspending operator’s privileges where a minor is convicted of underage drinking and where a motor vehicle is not implicated.

Perhaps the dearth of case precedent in support of the majority’s position bespeaks the inherent weakness of the doctrine and the subsumed illogic thereof. The test of judicial scrutiny under the substantive component of the due process clause is not a unidirectional or unidimensional one looking exclusively at the state end—here, preventing underage drinking—and simply asking whether the statute at issue serves a deterrent function with respect to the crime. I suggest the test of rationality is not so narrowly confined, and that there must also be a “rational relationship” or nexus between the end and the means so as not to make selection of the particular means entirely arbitrary as a matter of penology.

There exists within our penal system a rationality such that a fine or penalty should reflect the gravity or moral reproachability of a particular crime. One might wonder, and rightly so, why the legislature singled out underage drinking as deserving of a truly “special” penalty, whereas other offenses committed by juveniles such as vandalism, shoplifting, disorderly conduct, loitering, etc., receive a much different penalty. Indeed, if the focus is on the intractable nature of juvenile deterrence, then removal of one’s license might serve the much-needed deterrent function with respect to each of these crimes, yet there appears no rational reason to afford one crime, but not the other, separate treatment. Perhaps most troublesome is that when selection of a penalty is arbitrary, the public, as well as the individual offender, is more prone to perceive the penal system as arbitrary in punishing for offenses not committed. Moreover, the offense of driving while intoxicated already commands a significant penalty which presumably serves a considerable deterrent function. Thus, without an indication that the crime of underage drinking was accompanied by the operation of a motor vehicle, the mere fact that drinking is associated with driving in the abstract will not suffice to supply the requisite rationality.

The two Pennsylvania Commonwealth Court cases relied on by the majority in defense of the “deterrent” interest are, at least, inapposite; at most, they argue against rather than for the majority position. In both cases the means utilized by the state (suspension of driver’s license), was rationally related to a violation of the motor vehicle code. In Lemon, supra, the defendant was convicted of 75 Pa.C. S.A. § 211(a) for possession of a forged inspection certificate; in Deems, supra, the defendant was convicted of 75 Pa.C.S.A. § 304 for the sale of a vehicle with defaced numbers. Thus, while the state might have had a deterrence interest in preventing such activity, the suspension of a driver’s license was entirely reasonable since the crimes involved the unlawful operation or sale of a motor vehicle.

Instantly, while the majority found a “deterrent” interest supported by the penalty of license suspension, I am hard-pressed to fathom a penalty which, assuming the appropriate severity, does not serve a similar function. With this as the standard, I see no standard at all. Moreover, our task, contrary to the majority’s interpretation, is not to ignore the express relationship offered by the legislature and immediately hypothesize as to possible rational relationships. A plain interpretation of the statute confirms a relationship as between the offense of underage possession of brewed beverages and the penalty of, inter alia, suspension of operator’s privileges. Our task must be to ascertain whether the relationship was reached in an arbitrary manner. To be sure, ignoring the rationality of the relationship might be to further to some degree a serious problem with juvenile crime. But without a coherent limiting principle, the doctrine announced by the majority today has much graver implications beyond the facts at bar. I fear that the majority, by offering its imprimatur, sanctions judicial tolerance of arbitrary forms of penology and thereby paves the way for analogous laws. The potential of breeding public distrust and lack of confidence in the soundness of law enforcement is manifest. As a result, I cannot join the majority opinion and would hold 18 Pa.C.S.A. § 6310.4 an arbitrary legislative enactment since violation may occur irrespective of the operation of a motor vehicle, and yet the statutory penalty includes suspension of operator’s privileges.

      . Section 6310.4 provides that "[w]henever a person is convicted or is adjudicated delinquent or is admitted to any preadjudication program for a violation of ... section 6308 ... the court ... shall order the operating privilege of the person suspended.” 18 Pa.Cons.Stat.Ann. § 6310.4 (Purdon Supp.1990). The duration of the suspension for a first offense is 90 days. Id. at 6310.4(b)(1).

      . The Pennsylvania Constitution provides that in criminal prosecutions the accused cannot “be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land.” Pa.Const. art. I, § 9.

      . The Due Process Clause of the Fourteenth Amendment of the United States Constitution establishes that "[n]o state shall ... deprive any person of life, liberty, or property, without due process of the law...." U.S. Const, amend. XIV, § 1.

      . While appellant challenges the statute’s constitutionality under both the Pennsylvania Constitution and the United States Constitution, because the rational relationship test applicable to claims of violations of substantive due process rights is virtually identical under both constitutions we will not separately analyze each. For this reason, we have cited to federal cases which analyze substantive due process challenges.

      . In fact, we highlight two Commonwealth Court decisions which support the opposite proposition. See Deems, 39 Pa.Commw. at 139-41, 395 A.2d at 617 (affirmed trial court’s revocation of defendant operator’s license for violation of statute which prohibits the sale of a motor vehicle with effaced serial numbers; despite revocation’s lack of connection to increasing road safety, revocation deters illegal sale of vehicles with defaced numbers; deterrence interest is a valid state interest); Lemon, 31 Pa.Commw. at 134-35, 375 A.2d at 858 (upheld revocation of license based upon defendant's having violated Pennsylvania statute which prohibits the possession of a forged inspection certificate).

      . We reiterate that in his brief the appellant mischaracterizes the appropriate focus of our inquiry. Appellant contends that a relationship must exist between the violation of section 6308, based upon possession and consumption of alcoholic beverages, and the suspension of a driver’s license under section 6310.4. However, there is no requirement that such a relationship be established. Rather, where a party challenges the constitutionality of a statute based upon an alleged substantive due process violation, a rational relationship need only exist between the state interest(s) (deterrence or punishment) and the challenged legislation (section 6310.4).

      . Almost 20 years ago the New Jersey Supreme Court confronted an analogous set of facts and a similar constitutional challenge. In State v. Smith, 58 N.J. 202, 276 A.2d 369 (1971), the defendant challenged the suspension of her driver’s license on substantive due process and equal protection grounds based upon her conviction for a single unlawful use of marijuana which was not in any way connected with the operation of an automobile. Addressing the due process claim, the New Jersey Supreme Court found that the legislative interests of punishment, deterrence and rehabilitation were both legitimate and rationally related to the penalty of license suspension for marijuana use. Id. at 212-13, 276 A.2d at 374. For example, the Smith court explained that the goal of deterring drug users from driving on roadways is clearly sensible. Id. at 212-13, 276 A.2d at 374. In addition, the court predicated its decision on the legislature’s legitimate goal of promoting highway safety. The court concluded that the aforementioned legislative goals and their rational relationship to the penalty of license suspension were neither irrational nor arbitrary, and, the statute therefore, was constitutional. While we are in no way bound by this decision, we find the Smith court's reasoning to be both persuasive and correct, and cite it as further support for our finding that punishment and deterrence rationally underlie the challenged enactment.

      . Generally, where a challenged enactment imposes a criminal penalty, the presumption of the constitutionality of the enactment required under the rational relationship analysis is very difficult to overcome.

      . We note that as the New Jersey Supreme Court noted in Smith, section 6310.4 might also be thought of as a rational means of deterring underage alcohol users from driving on the highways.

      . The eighth amendment, which embodies the proscription against cruel and unusual punishment, was applied to the states through the fourteenth amendment’s due process clause. Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988).

      . The guarantee against cruel and unusual punishment contained in the Pennsylvania Constitution's article one, section 13, provides no broader protections against cruel and unusual punishment than those extended under the United States Constitution. Commonwealth v.

        Zettlemoyer, 500 Pa. 16, 72-74, 454 A.2d 937, 967 (1982), cert. denied sub nom. Zettlemoyer v. Pennsylvania, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh’g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983).

      . In California, for example, in the historical note to a similar provision providing for a one year license suspension, the California legislature attempted to justify the penalty, stating that "[t]he increased potential for teenage deaths in vehicle collisions and other nondriving accidents, homicides, and suicides, while being under the influence of drugs or alcohol, requires special attention in order to reduce the statewide youth fatality rate and to control unlawful and unsafe driving practices." Cal.Veh.Code § 13202.5 historical note (Deering Supp.1990).

      . Analogous laws have met with mixed responses in the state courts. Compare People v. Lindner, 127 I11.2d 174, 535 N.E.2d 829 (1989) (irrational and arbitrary for state to punish crimes of sexual assault, where an automobile was not implicated, with suspension of operator’s privileges) and 4 Op. Idaho Att'y Gen. 1, 5 (1984) (concluding that “[l]oss of a driver’s license for violation of a law unrelated to driving amounts to an arbitrary forfeiture of a state created property interest without justification.”) with Matter of Maricopa County, 160 Ariz. 90, 770 P.2d 394 (1989) (announcing that Arizona legislature considered suspension of driver’s license to serve as a deterrent of underage drinking is sufficient under due process inquiry) and with State v. Smith, 58 N.J. 202, 276 A.2d 369 (1971) (law requiring suspension of driver’s license for narcotics conviction rationally related to state interest in highway safety and deterrence of narcotics usage).

      . Appellant pleaded guilty to charges under section 6308(a) of underage purchase, consumption, possession or transportation of brewed beverages. Section 6308(b), the penalty provision, provides:
      In addition to the penalty imposed pursuant to section 6310.4 (relating to restriction of operating privileges), a person convicted of violating section (a) ... [may be sentenced to pay a fine]. Section 6310.4 provides:
      Whenever a person is convicted [of section] ... 6308 ... the court ... shall order the operating privilege of the person suspended.

      . The test of “rational relationship” as defined by the “deterrence” rationale is not logically cabined solely to the offense of underage drinking or offenses committed by minors. Consider a legislature desirous of deterring juvenile vandalism. Under today’s rationale, and owing to the intractable nature of juvenile deterrence, the legislature might rationally consider suspension of operator’s privileges as an effective deterrent. Following like reasoning, the legislature might penalize public drunkenness or disorderly conduct or loitering with suspension of operator’s privileges. To be sure, these are but a few examples. Troublesome with the "deterrence” rationale is that its limits are largely defined by the ingenuity of legislators, not by the test of rationale relationship under the substantive component to the Due Process Clause.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    582 A.2d 1335
    Kenneth R. BRITTON, Appellee, v. Ruth F. BRITTON, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1990.
    Filed Dec. 3, 1990.

      Mary A. Etter Dissinger, Marysville, for appellant.
    Samuel L. Andes, Lemoyne, for appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Ruth F. Britton appeals from two orders of the Court of Common Pleas of Cumberland County granting bifurcation and a decree in divorce under Section 201(d) of the Divorce Code, 23 P.S. § 201(d). Appellant presents the following issues for determination: (1) whether appellant and appellee lived separate and apart for the required three-year period in order to justify the entry of a decree in divorce under § 201(d) of the Divorce Code, and (2) whether appellee’s allegations in his complaint in divorce are in compliance with the requirements of § 201(d) of the Divorce Code. We reverse the trial court’s order granting divorce.

Appellant Ruth F. Britton and appellee Kenneth R. Brit-ton separated from marriage in July of 1985. The marital home was sold, and the parties continued separate residences until April of 1987. During April of 1987, the parties discussed a possible reconciliation; and in May of the same year, appellant moved into appellee’s residence. While the parties were in the process of exploring the possibility of reconciling, they entered into their own “Memorandum Of Understanding,” which stated, inter alia, that if the reconciliation would fail and the parties were to separate before November 1, 1987, the parties would agree to revert to the bargaining position enjoyed by each party prior to the date of reconciliation. The parties’ attempt at reconciliation did in fact fail, as appellant moved out of appellee’s residence in late July of 1987.

In July of 1987, appellee commenced an action in divorce; and in August of 1988, he filed a § 201(d) affidavit alleging the parties had lived separate and apart for three years. In response to appellee’s complaint, appellant filed an answer and counterclaim in August of 1987. In September of 1988, appellant filed a counter-affidavit, raising the issue as to whether the parties had lived “separate and apart,” as that term is defined in the Divorce Code and required for a divorce under § 201(d)(1). A master was appointed, and hearings on this issue were conducted. It was determined that the parties had. not lived separate and apart for the required three-year period (due to the three-month reconciliation attempt); and on this basis, the master recommended that a divorce not be entered under § 201(d)(1). Appellee filed an exception to this recommendation, which was sustained by the trial court. The trial court held that the parties had lived separate and apart for a period in excess of three years and, upon reviewing appellee’s petition for a bifurcated divorce decree, entered a final decree in divorce. The trial court based its finding on the parties’ Memorandum of Understanding from which the court found that the parties had not intended to assume those rights and duties attendant to a marital relationship during their reconciliation attempt.

Of utmost importance is the standard by which this Court is to review the present case. Appellee contends that the trial court’s findings of fact may not be disturbed if supported by evidence in the record. Even if this were the proper standard of review, we would still be unable to find evidence in the record to support the trial court’s findings. In reviewing a divorce case, however, it is our responsibility to make a de novo evaluation of the record and to determine independently of the lower court whether a legal cause of action exists. Mackey v. Mackey, 376 Pa.Super. 146, 150-52, 545 A.2d 362, 364 (1988), citing Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156, 158 (1985); Vajda v. Vajda, 337 Pa.Super. 573, 487 A.2d 409 (1985); Jones v. Jones, 311 Pa.Super. 407, 457 A.2d 951 (1983).

We must, then, apply the Divorce Code § 201(d) to the facts before us. Section 201(d)(1) of the Divorce Code reads:

It shall be lawful for the court to grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and an affidavit has been filed alleging that the parties have lived separate and apart for a period of at least two (2) years, and that the marriage is irretrievably broken, and:
(i) the respondent does not deny the allegation set forth in the affidavit or
(ii) the respondent denies one or more of the allegations set forth in the affidavit, but after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least two (2) years and that the marriage is irretrievably broken.

Thus, in order for appellee to be entitled to a divorce under § 201(d)(1), the parties must have lived “separate and apart” for a period of three years because the parties separated prior to the effective date of the 1988 amendments to the Divorce Code. Appellant contends that the trial court’s determination that the parties lived separate and apart for a period of three years was not supported by the evidence.

Under the Divorce Code, “separate and apart” is defined as the “complete cessation of any and all cohabitation.” 23 Pa.S.A. § 104. In Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945, 948 (1984), this Court held “cohabitation” to mean “the mutual assumption of those rights and- duties attendant to the relationship of husband and wife.” See also, Miller v. Miller, 352 Pa.Super. 432, 508 A.2d 550 (1986); Mackey v. Mackey, 376 Pa.Super. 146, 545 A.2d 362 (1988).

In the Mackey case, supra, we found that the parties lived “separate and apart” despite the fact that the parties resided in the same home. We considered to be critical the fact that the parties had private living quarters, no longer had a public social life together, and ceased sexual relations.

In the present case, the record indicates that during the three-month period in which the parties attempted reconciliation, they resumed living together and ceased to maintain separate residences. In addition, they jointly purchased a townhouse, shared the same bedroom and resumed sexual relations, shared a joint checking account, and had a social life as husband and wife. Clearly, upon these facts, one can hardly say that the parties were living “separate and apart,” as defined by the Divorce Code and interpreted by the above cases.

To the contrary, the trial court found that the parties had a “joint specific intent not to assume those rights and duties attendant to a marital relationship.” The court based its decision on the memorandum of the parties dated April 26, 1987, wherein the parties reserved unto themselves the “bargaining position” enjoyed by each prior to the date of reconciliation if the reconciliation should fail. The court interpreted this to mean that the parties did not intend to assume the rights and duties attendant to the relationship of marriage when they attempted reconciliation for three months. Appellee urges this Court to agree with this analysis; however, we find it to be unconvincing.

Appellee, as did the trial court, loses sight of the fact that the legislature of this state has expressly provided that the parties must live “separate and apart” in order for a divorce to be granted under § 201(d)(1). Additionally, the legislature has even defined “separate and apart” as “the complete cessation of any and all cohabitation, whether living in the same residence or not.” The statute does not provide the parties with the power to circumvent its requirements by a separate written agreement, which has been attempted in this case. It is simply not within the power of the parties, nor this Court, to rewrite the Divorce Code. Appellee contends that the policy of the Commonwealth in encouraging reconciliation will be furthered by an opposite result in this case. While this reasoning is appealing, we cannot disregard express statutory language for the sake of public policy. If statutory language conflicts with the policy of the Commonwealth, it is for the legislature to correct.

Our opinion is limited in application to those provisions of the Divorce Code which enumerate the grounds upon which a court may grant a divorce. In no way should our holding be understood to compromise the well-established rights of parties to enter into contracts affecting other aspects of the marital institution. Clearly, the rights and obligations of the parties in many areas affected by the dissolution of a marriage can be determined and altered by private agreement despite the existence of specific statutory provisions which would operate in the absence of such agreements. For instance, while this Court has found that the Divorce Code does not authorize the award of alimony to extend past the payor’s death, the parties may voluntarily agree otherwise. Chaney v. Chaney, 343 Pa.Super. 77, 86-87, 493 A.2d 1382, 1387 (1985). See also Myers v. Myers, 375 Pa.Super. 351, 544 A.2d 506, 508 (1988) (parties can contract to have support obligation of payor spouse survive him and bind the estate). Likewise, separation agreements which make no provision for the cessation of alimony payments upon cohabitation with the opposite sex by the recipient spouse cannot be avoided by the payor spouse despite the fact that the Divorce Code would have “awards of alimony” terminate upon such an occurrence. 23 Pa.C.S.A. § 507 (Purdon Supp.1990). Moreover, although the Divorce Code clearly manifests a policy against “double support” in § 507, that policy will not overcome the validity of an otherwise unimpeachable separation agreement. See VanKirk v. VanKirk, 336 Pa.Super. 502, 504-06, 485 A.2d 1194, 1196 (1984); Litwack v. Litwack, 289 Pa.Super. 405, 409-11, 433 A.2d 514, 516 (1981).

Furthermore, parties can, by stipulation, exclude certain property from what would otherwise be considered part of the marital estate under the statute. See Barner v. Barner, 364 Pa.Super. 1, 527 A.2d 122 (1987); Sutliff v. Sutliff, 361 Pa.Super. 504, 522 A.2d 1144 (1987). Finally, agreements extending, limiting or even waiving support and alimony regularly are enforced despite the extent to which the statute would have enabled the recipient to argue for considerably greater or lesser amounts. Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (Pa., 1990); Laub v. Laub, 351 Pa.Super 110, 505 A.2d 290 (1986). These cases reflect the recognition that generally parties have great latitude in directing the resolution of disputes upon the dissolution of marriage. Assuming that there is no evidence of fraud or overreaching, courts are extremely tolerant of a variety of separation and other agreements affecting marriage and divorce.

On the other hand, there are certain incidents of marriage and divorce which the parties are powerless to alter or control. In particular, the parties cannot privately agree as to when and on what grounds it shall be lawful for the court to enter a decree of divorce. The grounds for divorce are created by and specifically enumerated in the Divorce Code. 23 Pa.C.S.A. § 201 (Purdon Supp.1990). Section 201 is the exclusive and exhaustive grant of power to the courts describing when “it shall be lawful” to grant a divorce. However fairly and freely the parties enter into a private agreement, they cannot confer power on the court to grant a divorce on grounds other than those enumerated in the statute. To tolerate this would transform what is purely a legal function over which only a court has jurisdiction (i.e., the entry of a decree of divorce) into a private act. The parties cannot agree between themselves to be divorced except by establishing the grounds and following the procedures mandated by statute. Nor can they decide that grounds other than those enumerated in section 201 empower the court to grant a divorce. Parties cannot, in a Memorandum of Understanding or in any other agreement, stipulate to matters which affect the “jurisdiction and prerogatives of the court.” Foley Bros., Inc. v. Commonwealth, 400 Pa. 584, 589, 163 A.2d 80, (1960); see also Lyall v. Lyall, 240 Pa.Super. 649, 361 A.2d 367, 369 (1976); cf. Magee v. Magee, 360 Pa.Super. 66, 519 A.2d 994 (1987) (parties cannot confer jurisdiction by their own action).

The parties in the instant case entered into an agreement which attempted to alter the grounds on which it would be lawful for the court to grant a divorce. Their memorandum of understanding, in essence, sought to exempt them from the requirement of living separate and apart for three years before a court lawfully could dissolve the marriage. Appellee’s argument is that regardless of their actions during the period of reconciliation, all of which establish plain cohabitation, the parties’ private agreement allowed the court to disregard the cohabitation and grant a divorce anyway. The parties, however, were powerless to “waive” the statutory predicate to divorce in this way. They cannot simply erase the period of cohabitation by agreeing that they will act as though it never occurred. The court’s jurisdiction cannot be adjusted with such sleight of hand. Since living separate and apart for three years was a prerequisite to the exercise of power by the court in granting a divorce on this ground, the trial court erred when it dissolved the marriage in this case.

Accordingly, we reverse the trial court’s order granting a decree in divorce.

      . We need not consider appellant’s second issue presented, as we find the first issue dispositive.

      . A three-year requirement was reduced to two years by a 1988 amendment to the Code. Section 7 of Act 13, 1988 provides that the reduced time period in section 201(d)(1) applies to final separations which begin on or after the effective date of this act. For final separations beginning prior to the effective date of the amendment, the three-year time period applies. Therefore, the three-year time limit applies to the case at hand.

      . Similarly, parties cannot avoid the particular procedures mandated in the Divorce Code by which decrees of divorce are to be obtained. Laxton v. Laxton, 345 Pa.Super. 450, 453-55, 498 A.2d 909, 911 (1985).


author: HOFFMAN, Judge:

text:
    582 A.2d 1339
    COMMONWEALTH of Pennsylvania v. Angel Ramon SCHUEG, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 3, 1990.
    Filed Dec. 3, 1990.

      Robert B. Evanick, Public Defender, York, for appellant.
    Gerald A. Lord, Asst. Dist. Atty., York, for Com.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence imposed following appellant’s guilty plea to a charge of involuntary manslaughter. Appellant raises two claims involving the discretionary aspects of the sentence. We affirm.

On March 6, 1989, appellant was arrested and charged with criminal homicide and aggravated assault in connection with the shooting death of a ten-year old boy. On October 12, 1989, pursuant to a negotiated plea agreement, appellant pleaded guilty to involuntary manslaughter, and the Commonwealth nol prossed the aggravated assault charge. There was no agreement regarding a sentencing recommendation. The court below accepted the plea and directed that a pre-sentence report be compiled. Thereafter, on November 30, 1989, appellant was sentenced to a one-and-one-half-to-three-year term of incarceration. Appellant filed motions for reconsideration of sentence on December 8 and December 19. Appellant did not file a timely appeal, however. Appellant’s counsel, the Public Defender, then filed a petition under the Post Conviction Relief Act (PCRA), see 42 Pa.C.S.A. §§ 9541-9546, alleging its own ineffectiveness for failing to perfect an appeal. On January 29, 1990, the court granted appellant the right to appeal from the judgment of sentence nunc pro tunc. Two days later, on February 1, the court denied the motions to modify sentence. This timely appeal followed.

Appellant raises two claims concerning the discretionary aspects of the sentence imposed. Appellant’s brief contains a statement of reasons relied upon for allowance of appeal, and thus it complies with Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). We may now proceed to determine, in our own discretion, whether appellant’s claims present substantial questions for our review.

Appellant first argues that “the lower court erred in failing to place on the record sufficient reasons to justify á sentence of total confinement.” Brief for Appellant at 9. This claim is not preserved for appellate review. Issues regarding the propriety of a sentence are waived unless they are raised before the sentencing court in a motion to modify the sentence. See, e.g., Commonwealth v. Krum, 367 Pa.Super. 511, 515-16, 533 A.2d 134, 135 (1987) (en banc). Here, although appellant claimed in his motion to modify that the court’s statement of “aggravating factors” was inadequate, he did not challenge the adequacy of the court’s statement of its reasons for imposing a sentence of total confinement. Accordingly, the claim is waived.

Appellant’s remaining sentencing claim is that the sentencing court erred in applying a “going rate analysis” in formulating its sentence. In his Rule 2119(f) statement, appellant elaborates on this claim as follows:

[The court’s sentencing theory is] that there is a going rate for certain offenses in this particular jurisdiction, that the Probation Department’s job is to gauge the going rate among all judges and make recommendations that are consistent with the going rate and consistent with what the other judges are doing in other courtrooms, and that the Lower Court’s job is to start his analysis with the going rate that was determined by the Probation Department.
The court expressed a need to conform his sentence to what he believed other judges in his jurisdiction were sentencing similar criminal defendants to.

Brief for Appellant at 8. The apparent gravamen of appellant’s argument is that the sentence was improper because the court relied primarily on the Probation Department’s recommendation and other judges’ treatment of similar crimes, rather than considering his particular circumstances. We are satisfied that this claim presents a substantial question for our review. Pennsylvania has a system of indeterminate sentencing, which carries with it a recognition of the need for individualized sentencing. See Commonwealth v. Devers, 519 Pa. 88, 91-92, 546 A.2d 12, 13 (1988); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). This system necessitates granting broad discretion to the trial judge in the formulation of a proper sentence. See Commonwealth v. Devers, supra; Commonwealth v. Martin, supra. The trial court cannot delegate this authority to any person or group. See Commonwealth v. Bastone, 321 Pa.Super. 232, 237-38, 467 A.2d 1339, 1342 (1983); see also Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980). In light of the importance of individualized sentencing, and the extreme deference that is paid to a trial court’s determination regarding sentencing, a claim that the court improperly delegated the responsibility for formulating a sentence raises a colorable argument that the sentence imposed was an abuse of discretion. Cf. Commonwealth v. Erb, 286 Pa.Super. 65, 81, 428 A.2d 574, 582 (1981) (sentence included restitution; held: court is not free to delegate duty of determining amount of loss or damage caused by defendant’s conduct, what amount of restitution defendant could afford, and how defendant should pay it). Accord Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987) (plurality opinion). Accordingly, we grant allowance of appeal as to this issue.

On the merits of this claim, however, it is clear that appellant is not entitled to relief. Appellant’s claim is based upon comments that the court made during the hearing on the motion to reconsider sentence. At this hearing the court emphasized the importance of the presentence report and the recommendations made by the Probation Department. The court noted that the Probation Department’s recommendation of a sentence can be an important tool in formulating a sentence because:

that figure is valuable because it acts as a—partially as a check and balance in the sense that the Court makes its own evaluation to that extent, and if it comes out to be in the same area or the same ballpark as the recommendation, that’s some indication that it is in fact in the proper ballpark. To this Judge if he is substantially higher or lower than probation, that serves as a warning bell.

N.T. February 1, 1990 at 9. The court further noted that the recommendation could be helpful in that it could give the sentencer a sense of how other judges evaluated similar cases:

these people [defendants] find their way back to probation so that [the probation department] see[s] the sentences in the various courtrooms, and therefore, get[s] an idea of how the judges as a group are sentencing____ So that by having their recommendation I am in effect receiving an indication of what, as I said earlier, is the going rate which brings me in touch with what other judges are doing so that my sentences can be somewhat consistent with them.

Id. at 10. The court was careful to emphasize, however, that it did not allow this “going rate” to substitute for its discretion. The court clearly articulated this point at the outset of its discussion of the issue:

the purpose of the recommendation is not to set the sentence. The purpose of the recommendation is to give the Court a ballpark area that the experienced members of the probation staff feels that the sentence falls into.

Id. at 9. The court further elaborated on the limited role of the “going rate” recommendation, as follows:

However, after receiving all this information and input that I’ve just described, I want to make it clear that the bottom line is that that recommendation is no more than a recommendation and I don’t consider it to be one person’s personal opinion or that they’re being substituted as judge.
I indicated that I take it as an indicator, a barometer, a ballpark indicator, and I consider it along with all the other facts that I have available. If I disagree with it, I do what I think is right, and the recommendation has absolutely no significance beyond that. Therefore, despite any of the testimony this morning, I see absolutely nothing improper in the procedure that was followed. * # * * * *
As long as the judge’s decision is made on all the information available, including the recommendation, and assuming it’s his decision alone, I don’t think there’s anything improper.

Id. at 10-11. These comments indicate that, although the court considered the “going rate” provided by the Probation Department, it did not feel obliged to “conform” to this rate and it in no way delegated its responsibility for formulating an individualized sentence that was consistent with appellant’s background, the gravity of the offense, and the protection of the public. Accordingly, appellant’s claim that the court abused its discretion in this regard is meritless.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.


author: POPOVICH, Judge.

text:
    582 A.2d 1342
    Steven L. DUNKLE, Administrator of the Estate of Senie Dunkle Eyer, A/K/A Senie Eyer, Deceased and Steve L. Dunkle, Administrator of the Estate of Senie Dunkle Eyer, Deceased, on Behalf of Byran Eugene Eyer and Todd Travis Eyer, Minors v. FOOD SERVICE EAST INC., et al. v. Bruce TINDAL, the Pennsylvania State University, et al., Keith A. Berfield, Rubin J. Echemendia and William Hylbert. Appeal of FOOD SERVICE EAST, INC; Food Service East, Inc. T/D/B/A the Cannery Store; the Cannery Store; Dennis James Hull; Richard Paul Whitman and Anthony Robert Castellano.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1990.
    Filed Dec. 3, 1990.

      Paul M. Puskar, Pittsburgh, for appellant.
    Henry A. Goodall, Jr., State College, for Tindal, appellee.
    James M. Horne, State College, for Pa. State, appellee.
    Jerome E. Ornsteen, Philadelphia, for Hylbert, appellee.
    R. Bruce Morrison, Norristown, for Berfield, appellee.
    Before POPOVICH, HUDOCK and MONTGOMERY, JJ.
   POPOVICH, Judge.

This controversial appeal involves the strangulation death of Senie Eyer. What began as a simple action in negligence against the store where Eyer was attacked has now escalated into an attempt to hold the perpetrator’s treating psychologist, counselor and doctor liable in damages for failing to warn the victim of their patient’s propensity towards violence. Our duty is to consider whether the trial court properly determined that the above additional defendants owed no legal duty to protect the plaintiffs’ decedent from their patient’s hostility.

We are cognizant of the extreme importance of this complex issue, as well as the public interest in its resolution. Indeed, whether a psychologist or other health professional owes a duty to one other than his patient, and, if so, under what circumstances, has been a question largely unexplored in our legal precedent. Nevertheless, the appeal before us is from the orders entered in the Court of Common of Pleas of Centre County granting summary judgment in favor of the additional defendants, and thus our function is limited to specific determinations. Since we find that no evidence was presented to create a genuine issue of fact as to the claims asserted against the additional defendants in this case, we must affirm the orders of the trial court.

This Court recently reiterated the correct standard of review when considering an appeal from the grant of a motion for summary judgment. In Vargo v. Hunt, 398 Pa.Super. 600, 581 A.2d 625 (1990), we stated

A determination of whether the grant or denial of a motion for summary judgment is to be upheld requires an appellate court to decide whether the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Overly v. Kass, 382 Pa.Super. 108, 554 A.2d 970, 971 (1989); see also Chiricos v. Forest Lake Council Boy Scouts of America, [391] Pa.Super. [491], 571 A.2d 474, 475 (1990). In making such a finding, we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Furthermore, we shall not disturb the trial court’s ruling unless there has been an error of law or a manifest abuse of discretion. Overly v. Kass, supra.

Id. See also Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986) (“[t]o determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. [....] Summary Judgment is appropriate only in those cases which are clear and free from doubt.”); Pa.R.C.P. 1035.

With these standards in mind, we will briefly set forth the facts and procedural history of this case, as well as the issue on appeal. On March 6, 1987, the plaintiff Steve Dunkle, administrator of the estate of Senie Eyer, instituted an action for damages against the original defendants (hereinafter “the Cannery”). The plaintiffs alleged that the defendants were negligent in failing to maintain a safe place for business and in failing to stop Bruce Tindal from fatally choking Senie Eyer upon their premises. Eyer, Tindal’s live-in girlfriend, died one week after the attack.

Prior to this incident, Tindal had been receiving psychiatric care from Dr. Hylbert. Hylbert had diagnosed Tindal as having schizophreniform disorder. At that time, Tindal was taking medication called Navane to treat his illness. In December, 1983, Hylbert instructed Tindal to discontinue regular use of the drug. After he stopped taking his medication, Tindal’s behavior became “nasty” and “violent.” See Appellants’ brief, at 4; Appellee Hylbert’s brief, at 6. As a result, Hylbert re-prescribed the Navane. As both the appellant (the Cannery) and the appellees acknowledge, “[t]here is nothing in the record to indicate that Tindal expressed any specific tendencies vis-a-vis Eyer.” Id. In December, 1984, Hylbert discharged Tindal and discontinued his medication, instructing him to take Navane on an as-needed basis. Tindal was still under treatment by Keith A. Berfield, a counselor at The Pennsylvania State University.

In March, 1985, Tindal confessed to the Penn State police that he had been stealing property. The police contacted Berfield, who neither confirmed nor denied his association with Tindal. The following day, Tindal and Eyer went to the Cannery to shop. At that location, Tindal and Eyer entered the men’s room and Tindal strangled Eyer, believing her to be a Russian agent.

In June, 1987, the original defendants filed a writ of summons joining the additional defendants. Thereafter, a complaint was filed against the additional defendants. Except for Hylbert and Tindal, the additional defendants filed preliminary objections, contending that the original defendants failed to state a claim upon which relief could be granted. The trial court dismissed the preliminary objections pending Tindal’s deposition. The trial court stated that discovery should be effectuated before it would render a decision regarding the legal issues raised in the preceding pleadings. In particular, the trial court found that it was necessary to depose Tindal before it could determine whether Eyer was a “readily identifiable” victim of Tindal’s attack. Trial court opinion, March 31, 1989. An amended complaint to join was filed subsequently. Answers were timely filed. Ultimately, discovery was completed.

In the final months of 1989, all of the additional defendants filed their respective motions for summary judgment. Specifically, the additional defendants alleged that they owed no duty to the decedent and hence, could not be held liable for her ensuing death. On January 18, 1990, the trial court granted the various motions and dismissed the original defendants’ complaint to join. This appeal followed.

The Cannery raises one issue for our review: Did the additional defendants owe a duty to the plaintiffs’ decedent? In its summary of the argument, the Cannery asserts the following:

The trial Court erred in two respects. First, it held that a duty of a physician to a third-party, non-patient did not exist in this Commonwealth as set forth in Tarasoff v. Regents of University of California, 17 Cal.3d 425 [131 Cal.Rptr. 14], 551 P.2d 334 (1976) and adopted by this Court in Coath v. Jones, 277 Pa.Super. 479, 419 A.2d 1249 (1980). In addition, it made an error in deciding that the case in DiMarco v. Lynch Homes—-Chester County, [384] Pa.Super. [463], 559 A.2d 530 (1989), was not dispositive of the issues raised by this case.

Appellants’ brief, at 6. We have read the record in this case. In addition, we have extensively and thoroughly researched the issue raised by the Cannery. After careful consideration, we find that the trial court properly granted summary judgment in favor of the additional defendants.

The trial court correctly concluded that the additional defendants did not owe the plaintiffs’ decedent any duty at law to protect her from Tindal’s violent act. Although our research has failed to provide us with Pennsylvania caselaw that is directly on point, other jurisdictions have confronted analogous issues.

In Tarasoff v. Regents of University of California, 17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976), the California Supreme Court was faced with the question of whether a cause of action could exist for a psychologist’s failure to warn a third party of his patient’s dangerous propensities. The court concluded that in certain, very limited circumstances, the public’s interest in safety must take precedence over the patient’s interest in confidentiality and therefore, a psychologist may have a duty to protect identifiable, foreseeable victims from a patient’s threats of violence. Id. at 439-40, 551 P.2d at 346, 131 Cal.Rptr. at 26. See also id. at 430-31, 551 P.2d at 340, 131 Cal.Rptr. at 20. Notably, in Tar asoff, the patient actually confided to his psychologist his intent to commit violent acts against a specified target, Tatiana Tarasoff, before he in fact killed her. The court stated that

[although ..., under the common law, as a general rule, one person owed no duty to control the conduct of another ..., nor to warn those endangered by such conduct ..., the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct____

Id. at 435, 551 P.2d at 343, 131 Cal.Rptr. at 23. See also id. at 436-38, 551 P.2d at 344-46, 131 Cal.Rptr. at 24-26 (accord). See Thompson v. County of Alameda, 27 Cal.3d 741, 749-56, 614 P.2d 728, 732-36, 167 Cal.Rptr. 70, 74-78 (1980) (accord). See Sellers v. U.S., 870 F.2d 1098, 1102-03 (6th Cir.1989) (accord).

In the instant case, it is apparent that the additional defendants did not share with Eyer the type of “special relationship” contemplated by the California Supreme Court that would justify the imposition of a duty to warn. Additionally, the record very clearly indicates that Tindal communicated no resolve, nor manifested any inclination to harm Eyer prior to the date that he strangled her. We recognize the additional defendants’ duty to treat Tindal; however, under the factual scenario before us, we decline to extend the duty to protect a non-identifiable (in advance of her death) and arguably non-foreseeable third party victim. The fact that Tindal lived with Eyer did not automatically predispose her to abuse, nor may one infer that by virtue of their cohabitation, Eyer would be the most likely target of Tindal’s possibly violent tendencies. The United States District Court, Middle District of Pennsylvania, previously rejected this argument in Leedy v. Hartnett, 510 F.Supp. 1125 (M.D.Pa.1981).

We echo the trial court’s observation that [t]he case now before us presents an issue similar to that in Leedy rather than in Tarasoff. In their Complaint to Join Additional Defendants, Original Defendants allege in relevant part: (1) Senie Eyer attended “one or more counseling sessions” with Bruce Tindal, provided by Additional Defendants; (2) Bruce Tindal “exhibited signs and symptoms of his deteriorating mental condition, indicating that he presented a danger to himself, and specifically to Senie Eyer;” (3) prior to March 16, 1985, Additional Defendants knew or should have known Bruce Tindal “would present and did present a danger to himself and to Senie Eyer;” (4) Additional Defendants were negligent in failing to warn Senie Eyer of, and protect her from, Bruce Tindal’s dangerous propensities; and (5) Senie Eyer was the foreseeable victim of violent behaviour on the part of Bruce Tindal. [____] Even taking all these allegations as true, for the purposes of summary judgment, Original Defendants have not alleged enough to hold the moving Additional Defendants in this case under Leedy.

Trial court opinion, at 4-5.

The issue in Leedy v. Hartnett, 510 F.Supp. 1125 (M.D. Pa. 1981) was whether VA hospital personnel had a duty to warn the Leedys that Hartnett, a former patient, exhibited violent inclinations when he drank. The personnel, aware that Hartnett intended to stay with the Leedys when he left the hospital, failed to inform them of any potential danger. Subsequently, Hartnett attacked the Leedys.

In holding for the defendant, the Leedy court concluded that the patient did not pose a threat to the plaintiffs any greater than the danger he posed to the general public. The court did not positively correlate frequent contact among individuals and their victims with the probability of violence as a result of those associations. Conversely, Leedy stands for the proposition that a victim may not be deemed “readily identifiable” merely because there exists a statistical possibility that increased contact will yield a higher likelihood of an attack. The court stated:

Plaintiffs, recognizing that their case does not fall squarely within the confines of Tarasoff, seek to convince the Court that there exists a material issue of fact as to whether they were part of a readily identifiable group of people to whom Hartnett poses a special risk of danger. They seek to define this group as those who had frequent social contact with Hartnett. The Plaintiffs do not contend that Hartnett ever made any threat against them or that he was more likely to become violent toward people in whose presence he was comfortable. Indeed, the past acts of violence relied on by the Plaintiffs to show that Hartnett was dangerous do not fall into any pattern. At most, they demonstrate that Hartnett was prone to violent behavior and that that tendency was aggravated when he drank. There is no evidence from which it can be concluded that even when he drank Hartnett was more likely to become violent toward the people with whom he was drinking rather than others in the area. Plaintiffs appear to be arguing that since Hartnett had a tendency to commit violent acts, people with whom he had frequent contact would be more likely to be victims of such acts and for that reason a special duty was owed to any such people known to the hospital’s personnel. Assuming that Pennsylvania would adopt a theory of liability similar to that in Tarasoff, the Court is of the view that Pennsylvania would not extend that theory to cover the facts of this case.
In order for the rule of liability announced in Tarasoff to be kept within workable limits, those charged with the care of potentially dangerous people must be able to know to whom to give warnings. When, as in Tarasoff, ... a particular victim can be identified, there is good reason to impose upon psychiatrists or custodians a duty to warn the intended victim of the danger posed by the person under their care. On the facts of this case, however, Hartnett did not pose any danger to the Leedys different from the danger he posed to anyone with whom he might be in contact when he became violent. This is not a case in which it is alleged that the propensity to violence is increased by frequent contacts with the same people; rather, Plaintiffs’ claim that they represent a readily identifiable group rests solely on a statistical probability that the more one saw Hartnett the more likely it is that one would be a victim of any violent outbreak by him. This is not the type of readily identifable victim or group of victims to which the California Supreme Court made reference in Tarasoff....

Id. at 1130.

This Commonwealth has never expressly adopted the California opinion in Tarasoff However, even if we were to accept the Tarasoff holding as law in this jurisdiction, we would not find that decision determinative of the instant appeal. Conversely, we find that the Tarasoff rationale should be confined to the very limited circumstances presented in that case. We narrowly construe the California court’s holding. Contrary to the appellants’ position in the instant case, we will not interpret Tarasoff to mean that, in effect, strict liability should be imposed upon treating physicians for the wrongful acts of their patients where there is any reason to believe that a third party might be endangered by the patient’s possible misconduct and the medical professional fails to inform the third party of same. Such a rule would be unworkable and illogical. More importantly, it would infringe upon other well-established doctrines in our jurisprudence.

We are in agreement with the various appellees’ position that a psychologist (or psychiatrist) owes no duty to warn or otherwise protect a non-patient where the patient has not threatened to inflict harm on a particular individual. To hold otherwise would not only hinder the psychologist’s relationship with the patient and frustrate the psychologist’s ability to properly treat the patient, but additionally, it would infringe upon the psychologist-patient privilege. See 50 P.S. § 7101, et seq. See also Farago v. Sacred Heart Hospital, 522 Pa. 410, 562 A.2d 300 (1989) (discusses the Mental Health Procedures Act). See 42 Pa.C.S.A. § 5944—Confidential communications to psychiatrists or licensed psychologists. See Commonwealth ex. rel. Platt v. Platt, 266 Pa.Super. 276, 404 A.2d 410 (1978); see Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989); Commonwealth v. Dunkle, 385 Pa.Super. 317, 561 A.2d 5 (1989), allocatur granted 524 Pa. 625, 574 A.2d 67 (1990) (discusses the public policies underlying the psychologist-patient privilege); Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987) discussing Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). See Moses v. McWilliams, 379 Pa.Super. 150, 549 A.2d 950 (1988) (en banc).

Moreover, as the Tarasoff court well-noted:

We realize that the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed. Certainly a therapist should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient’s relationship with his therapist and with the persons threatened. To the contrary, the therapist’s obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger.

Id. at 441, 551 P.2d at 347, 131 Cal.Rptr. at 27.

We find no common law rule that imposes a duty on a psychologist or psychiatrist to warn a non-patient of a patient’s dangerous propensities. In Pennsylvania, nor is there a statutory duty to protect a non-patient from similar potential harm. In the absence of legislative directives or reforms that specifically address this problematic issue, we decline to impose such a stringent legal duty on health care professionals under the facts of this case.

Finally, we agree with the trial court that this Court’s decision in DiMarco v. Lynch Homes—Chester County, 384 Pa.Super. 463, 559 A.2d 530 (1989) is inapposite to the instant appeal. In DiMarco, the plaintiff/appellant (Joseph DiMarco) sued the defendants/appellees (physicians) for, inter alia, negligently advising Janet Viscichini, DiMarco’s sexual partner, that she could safely resume sexual activities six weeks after she was exposed to hepatitis. Three months after the fact, Viscichini was diagnosed as having hepatitis. Six months after the fact, DiMarco was informed that he too had contracted the disease. The trial court originally dismissed the complaint, but this Court reversed, stating that the physicians might be liable to DiMarco if he could prove that he knew of the doctors’ advice to Viscichini, detrimentally relied upon that advice, and suffered resulting harm. DiMarco, 384 Pa.Super. at 473-74, 559 A.2d at 535.

The original defendants in the instant case cite DiMarco for the notion that foreseeability is immaterial; a third party victim does not have to be “readily identifiable” for a patient’s treating physician to be liable to the third party who is injured as a result of the physician’s wrongful diagnosis to the patient. However, the DiMarco case is clearly distinguishable on its facts. In addition, this Court was clear in its directive that DiMarco be confined to the circumstances of that case. We stated:

Our decision is limited to the facts of the case presently before us____ We do not hold that [the woman's] physicians had a duty to control her conduct, but only that they had a duty to act reasonably in advising her regarding her ability to transmit her communicable disease. This case is one which involves medical advice, given in the context of a physician-patient relationship, concerning precautions to prevent the spread of a communicable disease by the patient. Importantly, in the case at bar, the third party to the physician-patient relationship claims to have been aware of the medical advice concerning the transmittal of the disease, and to have relied and acted upon this medical advice in interacting with the patient____ Under these circumstances, we are willing to find that the physicians owed a duty of reasonable care to the non-patient.

Id., 384 Pa.Superior Ct. at 474 n. 3, 559 A.2d at 535 n. 3. See also Sellers v. U.S., 870 F.2d 1098, 1103 (6th Cir.1989) (distinguishes a physician’s duty, as opposed to a psychiatrist’s duty, to the public).

As the trial court found in the instant case, “[i]t is nowhere alleged [that] Senie Eyer relied and acted upon advice given by [the] additional defendants to their patient, Bruce Tindal, nor is it alleged [that] she suffered detrimental harm as a result of reliance upon erroneous advice from physician to patient.” Trial court opinion, at 7-8. We agree with the trial court that the DiMarco holding should not be extended to encompass “the completely distinct factual circumstances of the case at bar.” Id.

Here, there was no dispute as to any material facts. See Appellants’ reply brief, at 3 (states that “[the appellees’ argument] ignores the fact that there was no dispute concerning the truly material facts of this case.”). Moreover, no evidence was offered to create any genuine issues of fact regarding the claims against the additional defendants. Clearly, the additional defendants owed no duty to the plaintiffs’ decedent. Thus, summary judgment was properly entered as a matter of law.

Orders affirmed.

      . The orders in question provide:
      AND NOW, this 18th day of January, 1990, it is ORDERED that the Motion for Summary Judgment of Additional Defendants The Pennsylvania State- University, The Pennsylvania State University Department of Psychology, The Psychological Clinic, and Rubin J. Echemendia is GRANTED. Defendants’ Complaint to Join Additional Defendants is DISMISSED as to the movant Additional Defendants. AND NOW, this 18th day of January, 1990, it is ordered that the Motion for Summary Judgment of Additional Defendant Keith A. Berfield is GRANTED. Defendants’ Complaint to Join Additional Defendants is DISMISSED as to the movant Additional Defendant. AND NOW, this 18th day of January, 1990, it is ORDERED that the Motion for Summary Judgment of Additional Defendant William Hylbert, M.D. is GRANTED. Defendants’ Complaint to Join Additional Defendants is DISMISSED as to the movant Additional Defendant.

        . Dunkle filed suit on behalf of the estate and Eyer’s two minor children.

      . Tindal adopted the arguments set forth by the Cannery. See Appellee Tindal’s brief, at 6. We note that Tindal was declared criminally insane by the trial court and is currently a patient at Farview State Hospital. See Trial court opinion, at 2.

      . We discuss this issue more completely, infra.

      . In fact, the Tarasoff court itself recognized
      the difficulty that a therapist encounters in attempting to forecast whether a patient presents a serious danger of violence. Obviously we do not require that the therapist, in making that determination, render a perfect performance; the therapist need only exercise “that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of [that professional specialty] under similar circumstances." Within the broad range of reasonable practice and treatment in which professional opinion and judgment may differ, the therapist is free to exercise his or her own best judgment without liability; proof, aided by hindsight, that he or she judged wrongly is insufficient to establish negligence.

        Id. at 438, 551 P.2d at 345, 131 Cal.Rptr. at 25.

      . The Cannery argues that Tindal's mental history, his relationship with Eyer and his deteriorating mental condition (and the additional defendants’ knowledge thereof) were all germane to the issue of whether the additional defendants had a duty to protect Eyer. The Cannery alleges that “all of these undisputed facts, when taken in the context of the existing state of the law in this Commonwealth, are material to the resolution of whether a duty existed.” Appellants’ reply brief, at 3.

      . The appellants concede that Tindal never threatened nor expressed an intent to harm Eyer. Moreover, the evidence does not suggest that she was a specified or readily identifiable victim.


text:
    582 A.2d 1349
    COMMONWEALTH of Pennsylvania v. Terry L. GALLAGHER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 20, 1990.
    Filed Dec. 3, 1990.

      Charles D. Younger, Asst. Public Defender, Boyertown, for appellant.
    George C. Yatron, Dist. Atty., Reading, for Com.
    Before ROWLEY, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for theft of services. Appellant contends that there was insufficient evidence to convict him. For the following reasons, we agree and, accordingly, vacate the judgment of sentence and order appellant discharged.

On February 23, 1989, Patricia Gallagher, appellant’s mother, and co-owner of 408 Orange Street, Reading, PA, requested the UGI Corporation (“UGI”) to shut off gas service to the premises. N.T. at 78, 79. In response, UGI, on that date, turned off the gas and locked the gas meter at 408 Orange Street. Id. at 41. Subsequently, on April 5, 1989, UGI returned to 408 Orange Street to investigate a report of gas theft. Id. at 52-53. UGI discovered that the security lock on the meter had been removed, and gas was illegally being supplied to the building. Id. at 60. On May 19, 1989, appellant was arrested and charged with theft of services, causing or risking catastrophe, criminal mischief, and two counts of criminal conspiracy in connection with the tampering of the gas meter and gas theft at 408 Orange Street.

A jury trial was held on September 6-7, 1989. At the close of the Commonwealth’s case, appellant demurred on all of the charges. The judge sustained the demurrer on all counts except theft of services. The jury found appellant guilty of theft of services, 18 Pa.C.S.A. § 3926, for fifty dollars ($50.00) or more, but less than two hundred dollars ($200.00). On October 18, 1989, after appellant’s post-verdict motions had been dismissed, the trial court sentenced appellant to two (2) to twenty-four (24) months imprisonment. This timely appeal followed.

Appellant argues that the evidence was insufficient to support his conviction for theft of services. Specifically, appellant contends that the Commonwealth failed to prove beyond a reasonable doubt that appellant obtained gas services improperly. See Appellant’s Brief at 9. Appellant also contends that the Commonwealth presented no evidence placing appellant at the scene when the meter tampering occurred. Even if the Commonwealth showed that appellant lived on the premises periodically, appellant argues, his mere presence is insufficient to support a guilty verdict. We agree.

The test for reviewing a sufficiency claim is well-settled: [WJhether, 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____ This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt____

Commonwealth v. Hardcastle, 519 Pa. 286, 246, 546 A.2d 1101, 1105 (1988) (citations omitted), cert. denied, — U.S. -, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). See also Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1985); Commonwealth v. Brady, 385 Pa.Super. 279, 282, 560 A.2d 802, 804 (1989).

Section 3926 of the Crimes Code, 18 Pa.C.S.A. provides, in relevant part:

(a) Acquisition of services.—
(1) A person is guilty of theft if he intentionally obtains services for himself or for another which he knows are available only for compensation, by deception or threat, by altering or tampering with the public utility meter or measuring device by which such services are delivered or by causing or permitting such altering or tampering, by making or maintaining any unauthorized connection, whether physically, electrically or inductively, to a distribution or transmission line ... or by false token or other trick or artifice to avoid payment for the service.
(2) As used in this section, the word “service” includes ... the supplying of commodities of a public utility nature such as gas, electricity, steam and water, and telephone service. The term “unauthorized” means that payment of full compensation for service has been avoided, or has been sought to be avoided, without the consent of the supplier of the service.
(b) Diversion of services.—A person is guilty of theft if, having control over the disposition of services of others to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto.

Id. § 3926(a)-(b). In addition, § 3926 provides that a person may be inferred to have unlawfully acquired services under the following circumstances:

(d) Inferences.--
(1) Any person having possession of or access to the location of a public utility meter or service measuring device which has been avoided or tampered with so as to inhibit or prevent the accurate measurement of utility service and who enjoys the use of or receives the benefit from the public utility service intended to be metered or measured by the public utility meter or measuring device so avoided or tampered with may be reasonably inferred to have acted to avoid or tamper with the public utility meter or measuring device with the intent to obtain the public utility service without making full compensation therefor.

Id. § 3926(d)(1).

Thus, appellant may be inferred to have unlawfully acquired services if the Commonwealth proves all of the following: (1) that appellant had possession of or access to the location of the meter or measuring device; (2) that the meter or measuring device was avoided or tampered with so as to inhibit or prevent accurate measurement of the utility service; and (3) that appellant enjoyed or received the benefit from the public utility service intended to be metered or measured by the meter or measuring device which was tampered with. Cf. Commonwealth v. LaRocca, 25 Pa.D. & C.3d 620 (1981).

Here, the Commonwealth presented evidence that approximately one and one half months after the gas was shut off at 408 Orange Street, the gas meter had been tampered with and the meter was in use. N.T. at 41, 54. Several gas company employees testified as to their roles in shutting off the gas and discovering the gas theft, but none identified appellant as having been at the scene. Patricia Gallagher, appellant’s mother, also testified as a Commonwealth witness. She stated that appellant had her permission, along with his girlfriend and another friend, to live in the building, and he had lived at 408 Orange Street intermittently between February 23 and April 5, 1989. Id. at 79. However, Ms. Gallagher was unable to affirmatively state that appellant was living at 408 Orange Street on or about the date the meter tampering was discovered. Id. at 80-81. Moreover, on recross-examination she revealed that ten or more people lived on the premises during that time period, and she was not sure who lived there at the relevant time:

Q: Your son wasn’t living at 408 Orange Street on April 5th, 1989, was he?
A: I don’t know. I don’t remember the dates.
Q: So you can’t testify that he was living there at that time?
A: Everybody was in and out so often, you never knew who was livin’ there.
Q: Okay. Well, that’s what I’m saying. You can’t say for sure that he was living there on that date?
A: No.

Id. at 81. The Commonwealth presented no other evidence regarding whether or when appellant resided on the premises, and no evidence tending to show that he tampered with the meter, or aided others in tampering with the meter.

As this review of the evidence reveals, the Commonwealth presented no direct evidence that appellant was responsible for the theft of the gas services. Because there was no direct evidence, the jury apparently convicted appellant by drawing the inference as provided in § 3926(d)(1). In other words, because Patricia Gallagher placed appellant at the scene, the jury may have concluded that appellant had access to the location of the gas meter. See 18 Pa.C. S.A. § 3926(d)(1). The evidence also showed that the meter at 408 Orange Street was tampered with and, thus, prevented an accurate measurement of UGI’s services. See id. However, even if we assume that the statutory inference may have allowed for a finding that appellant was present on the premises, the record contains no evidence to support an inference that he “enjoyed the use of or received the benefit” of the gas service intended to be measured by the meter. See id. The Commonwealth’s evidence, weak at best, merely showed that appellant may have lived at 408 Orange Street from time to time during the weeks between the gas shut-off and the discovery of gas theft. No evidence placed appellant on the premises at the time the meter was tampered with or the gas service was improperly taken, and the benefits of the gas service enjoyed. Without such evidence, there was no basis from which the fact finder properly could infer that appellant tampered with the meter and obtained gas service without paying.

We should note that the trial court apparently recognized the weakness of the Commonwealth’s case. At the close of the Commonwealth’s evidence at trial, the trial judge expressed concern that the case was “highly speculative.” Id. at 122. Outside the hearing of the jury, the court discussed the case with the prosecutor as follows:

THE COURT: That is not enough. Mere presence is not enough in any situation. He was not a tenant in this home as such.
MR. ROOMBERG [Assistant District Attorney]: He was not—
THE COURT: The home was turned over to Kim [appellant’s girlfriend].
MR. ROOMBERG: He was not the lessee, but he was definitely a tenant. And ... he was the boyfriend to Kim. And he did live there, and we do have that testimony.
THE COURT: But the point is that many other people were in and out of the premises and staying there apparently. And she [appellant’s mother] doesn’t even know if her son was there on the date that the damage was discovered.
MR. ROOMBERG: That’s true.
THE COURT: We don’t know when this damage was done except apparently done from the time that the gas was turned off until the time it was discovered.
MR. ROOMBERG: Right.
THE COURT: We don’t know whether it was done the very same day, a week later, or when. We know how much gas was used, but we don’t know how much time it took to use that gas either or whether the thermostat was on or off and so forth. But the whole thing is,—and this concerns me very much—the only thing we have is that he presumably was in the premises from time to time. That’s all.

Id. at 123-24. The Commonwealth itself, in its brief, recognizes the flimsiness of the proof, as it concedes that “the other two people who lived in the premises could be equally culpable.” Appellee’s Brief at 4.

It has long been established that “[although it is true that a conviction for theft can be based on circumstantial evidence, mere suspicion or conjecture will not suffice.” In Re Hawthorne, 374 Pa.Super. 104, 107, 542 A.2d 167, 169 (1988). Moreover, our Supreme Court has stated that “a showing of mere presence at the scene of a crime is insufficient to support a conviction: evidence indicating participation in the crime is required.” Commonwealth v. Keblitis, 500 Pa. 321, 324, 456 A.2d 149, 151 (1983). See also In Re Hawthorne, supra; Commonwealth v. Key, 342 Pa.Super. 31, 492 A.2d 48 (1985). Here, the evidence at trial showed, at best, that appellant had access to the house at some time during the period when gas services were improperly taken. Although we might find appellant’s presence at the scene suspicious, suspicious behavior alone is insufficient to convict someone of a crime. See In Re Hawthorne, supra. Accordingly, we must conclude that the Commonwealth failed to prove beyond a reasonable doubt that appellant was guilty of theft of services.

For the foregoing reasons, we vacate the judgment of sentence and order appellant discharged.

Judgment of sentence vacated; appellant discharged.

      . See 18 Pa.C.S.A. §§ 3926, 3302, 903, 3304.

      . This sentence was imposed consecutively to a sentence appellant is serving on another matter. See N.T. October 18, 1989, Sentencing Proceedings, at 10-11.