author: CERCONE, Judge:

text:
    658 A.2d 395
    COMMONWEALTH of Pennsylvania v. Terri CHAMBERLAIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 13, 1995.
    Filed May 2, 1995.

      Theodore J. Krol, Asst. Public Defender, Hollidaysburg, for appellant.
    Douglas J. Keating, Asst. Dist. Atty., Hollidaysburg, for Com., appellee.
    Before McEWEN, POPOVICH and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgment of sentence entered by the trial court on August 23, 1994. We affirm.

A jury found appellant guilty of driving under the influence. The court entered a guilty verdict on the summary offense of failing to drive on the right side of roadway. Appellant filed post-sentence motions which the trial court denied. After sentencing, appellant filed the instant timely appeal purportedly from the trial court’s order denying post-sentence motions. See Notice of Appeal filed September 23, 1994.

The post-sentence procedure in this case is governed by Pennsylvania Rule of Criminal Procedure 1410, 42 Pa. C.S.A. (effective January 1, 1994). New Rule 1410 provides:

(a) The defendant in a court case shall have the right to make a post-sentence motion. All requests for relief from the trial court shall be stated with specificity and particularity, and shall be consolidated in the post-sentence motion, which may include:
(i) a motion challenging the validity of a plea of guilty or nolo contendere, or the denial of a motion to withdraw a plea of guilty or nolo contendere;
(ii) a motion for judgment of acquittal;
(iii) a motion in arrest of judgment;
(iv) a motion for a new trial; and/or
(v) a motion to modify sentence.

Pa.R.Crim.P., Rule 1410B(1), 42 Pa.C.S.A. Thus, a criminal defendant may, at his discretion, file post-sentence motions or proceed directly with an appeal to the Superior Court.

If the defendant elects to file post-sentence motions, “the trial judge shall decide the post-sentence motion, including any supplemental motion, within 120 days of the filing of the motion. If the judge fails to decide the motion with 120 days, or to grant an extension as provided in subsection (3)(b), the motions shall be deemed denied by operation of law.” Pa.R.Crim.P., Rule 1410B(3)(a), 42 Pa.C.S.A. Once post-sentence motions are denied, the defendant has 30 days within which to file an appeal to the Superior Court. However, Rule 1410 does not specify whether the defendant takes his appeal from the order denying post-sentence motions, or from the judgment of sentence previously imposed by the trial court.

The comments to Rule 1410 supply the necessary guidance in this matter:

Under Subsection B(3)(a), on the date when the court disposes of the motion, or the daté when the motion is denied by operation of law, the judgment becomes final for the purposes of appeal. See Judicial Code, 42 Pa.C.S. §§ 102, 722, 742, 5105(a) and Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).

Comments to Rule 1410, 42 Pa.C.S.A. (emphasis added). According to the comment set forth above, the order denying post-sentence motions acts to finalize the judgment of sentence for purposes of appeal. Thus, the appeal is taken from the judgment of sentence, not the order denying post-sentence motions.

We also note that new Rule 1410 does not relieve the trial court of its obligation to file an opinion in criminal cases. Pennsylvania Rule of Appellate Procedure 1925 specifically provides:

Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, or for the rulings or other matters complained of, or shall specify in writing the place in the record where such reasons may be found.

Pa.R.A.P., Rule 1925(a), 42 Pa.C.S.A. Criminal Rule 1410 in no way conflicts with or modifies Appellate Rule 1925. See Commonwealth v. Donnelly, 439 Pa.Super. 70, 653 A.2d 35 (1995) (discussing the trial court’s continuing responsibilities under Pa.R.A.P. 1925).

Whether an appeal is taken following disposition of post-sentence motions or directly from the judgment of sentence, a trial court must comply with Appellate Rule 1925(a) and file an opinion setting forth the reasons for its rulings. The Supreme Court provides trial courts with the appropriate mechanism for determining the issues raised on appeal. Appellate Rule 1925(b) authorizes the trial court to enter an order directing appellant to file a Concise Statement of the Matters Complained of on Appeal. In light of the changes to post-trial procedures, the need for trial courts to utilize this authority cannot be understated.

Here, appellant presents two issues for our consideration:

I. WHETHER THE COURT ERRED IN INSTRUCTING THE JURY ON THE MISSING WITNESS ADVERSE INFERENCE THAT CAN BE DRAWN.
II. WHETHER THE COURT ERRED IN INSTRUCTING THE JURY ON THE MISSING WITNESS ADVERSE INFERENCE THAT CAN BE DRAWN WHEN THE MISSING WITNESS WAS THE SPOUSE OF THE DEFENDANT?

We shall address these issues in order.

. Appellant first argues that the trial court improperly instructed the jury that an adverse inference may be drawn from appellant’s failure to call her husband, Richard Lykens, as a witness. Specifically, appellant contends that (1) Mr. Lykens was equally available to both the prosecution and the defense; (2) there was a satisfactory explanation as to why the witness was not available when called; and (3) it was not within the defense’s ability to have Mr. Lykens testify.

In Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603 (1993), cert. denied, — U.S.—, 114 S.Ct. 2123, 128 L.Ed.2d 678 (1994), our Supreme Court set forth the “missing witness” inference rule as follows:

[W]hen a potential witness is available to only one of the parties to a trial, and it appears this witness has special information material to the issue, and this person’s testimony would not be merely cumulative, then if such party does not produce the testimony of the witness, the jury may draw an inference it would have been unfavorable.

Id. at 366, 635 A.2d at 610 (quoting Commonwealth v. Jones, 455 Pa. 488, 495, 317 A.2d 233, 237 (1974) (citations omitted)). However, the missing witness inference does not apply where:

1. The witness is so hostile or prejudiced against the party expected to call him that there is a small possibility of obtaining the unbiased truth;
2. The testimony of such a witness is comparatively unimportant, cumulative, or inferior to that already presented;
3. The uncalled witness is equally available to both parties;
4. There is a satisfactory explanation as to why the party failed to call such a witness;
5. The witness is not available or not within the control of the party against whom the negative inference is desired; and
6. The testimony of the uncalled witness is not within the scope of the natural interest of the party failing to produce him.

Commonwealth v. Sparks, 342 Pa.Super. 202, 208, 492 A.2d 720, 723 (1985).

Our review of the record in the instant case discloses that defense counsel objected to the missing witness instruction solely on the basis of Mr. Lykens’ equal availability to the Commonwealth. N.T. 6/17/94 at 128, 129, 130. Thus, appellant waived any other objection to the issuance of a missing witness instruction. See Pa.R.Crim.P., Rule 1119(b), 42 Pa. C.S.A. (no portion of jury charge may be assigned as error unless appellant raises specific objection to charge).

In Commonwealth v. Dorman, 377 Pa.Super. 419, 547 A.2d 757 (1988), this court discussed the term “available” as it applies to the missing witness instruction. This court opined:

For the negative inference to be inappropriate, as appellant argues, the missing witness must not just be “available” to the Commonwealth, but equally so. Secondly, the Commonwealth should not be required to subpoena an alibi witness, who, because of his relationship with the defendant, would naturally be expected to testify favorably toward the defendant. Obviously, it would not be in the best interest of the Commonwealth to procure such a potentially hostile witness.

Id. at 434, 547 A.2d at 764. Our holding in Commonwealth v. Dorman applies where the missing witness would present an alibi for the defendant. Although appellant in the instant case did not present an alibi defense, we find the similarities between an alibi defense and the defense presented by appellant to be striking.

An “alibi” is “a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for [her] to be the guilty party.” Commonwealth v. Roxberry, 529 Pa. 160, 163, 602 A.2d 826, 827 (1992) (citations omitted).

If the defendant presents evidence which covers the time period when the crime was committed and which puts [her] at a different location than that of the crime scene, [she] has presented an alibi. See Commonwealth v. Jones, 529 Pa. 149, 150-54, 602 A.2d 820, 821-22 (1992) (acknowledging alibi charge to jury as accurately stating the law: “whether the testimony given covers the entire time the offense is shown to have been committed and whether it precludes the possibility of defendant’s presence at the scene”). The evidence presented, taken as true, must make it impossible for the defendant to have committed the crime. Id., 529 Pa. at 152-54, 602 A.2d at 822[.]

Commonwealth v. Repaci, 419 Pa.Super. 591, 594-95, 615 A.2d 796, 798 (1992). According to appellant, Mr. Lykens would have testified that she was not in the driver’s seat at the time of the infraction. Instead, Mr. Lykens’ testimony would place appellant in the passenger seat at the crucial point in time. Although Mr. Lykens’ testimony would place appellant at the scene of the infraction, his testimony precluded the possibility that she was driving the vehicle.

As in Dorman, Mr. Lykens would naturally be expected to testify favorably toward his wife. In his opening statement, defense counsel confirmed the nature of Mr. Lykens’ testimony. Obviously, it would not be in the best interest of the Commonwealth to procure such a potentially hostile witness. For this reason, we find no error by the trial court in determining that Mr. Lykens was not equally available to the Commonwealth. See id. (citing Commonwealth v. Leonard, 499 Pa. 357, 453 A.2d 587 (1982) in which the Supreme Court implicitly rejected the equal availability exception to missing witness inference when defendant asserts alibi defense and testifies to named alibi witness).

Appellant next argues that the trial court improperly issued a missing witness instruction because the missing witness is her spouse. As noted supra, appellant did not object to the missing witness instruction on the basis of spousal privilege. Accordingly, appellant cannot be afforded relief on this basis. See Pa.R.Crim.P., Rule 1119(b), 42 Pa.C.S.A. (no portion of jury charge may be assigned as error unless appellant raises specific objection to charge).

Judgment of Sentence is Affirmed.

POPOVICH, J., concurs in the result.

      . 75 Pa.C.S.A. § 3731.

      . Our interpretation of Rule 1410 is supported by both the language of Rule 1410 and the comments to the rule. Rule 1410 provides, in pertinent part:
      Issues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion on those issues.
      Pa.R.Crim.P., Rule 1410B(l)(c), 42 Pa.C.S.A. The comments to this portion of Rule 1410 provide:
      Because the post-sentence motion is optional, the failure to raise an issue with sufficient particularity in the post-sentence motion will not constitute a waiver of the issue on appeal as long as the issue was preserved before or during trial. See subsection B(a)(c).
      Comment to Rule 1410, 42 Pa.C.S.A. This language precluding waiver of issues not raised in post-sentence motions implicitly requires an appeal to be taken from the judgment of sentence, not the order denying post-sentence motions.
      An appeal from an order denying post-sentence motions would necessarily challenge only those issues raised in the motion. However, Rule 1410 permits a defendant to raise additional issues on appeal. An appeal taken from the judgment of sentence permits the Superior Court to review all properly preserved issues raised by the defendant.

      . In the instant case, the trial court properly filed an opinion disposing of appellant’s post-sentence motions. Fortunately, appellant chose not to raise additional issues in his appeal from the judgment of sentence. We take this opportunity to caution trial courts that pursuant to Rule 1410, a criminal defendant may raise additional issues on appeal thereby necessitating a second opinion by the trial court.


source: Caselaw Access Project

author: HUDOCK, Judge:

license: Public Domain

text:
    658 A.2d 399
    Peggy L. LOBDELL, Appellant, v. Frank E. LEICHTENBERGER, Jr. and Carl Leichtenberger and Barbara L. Leichtenberger, Appellees (Two Cases).
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1995.
    Filed May 5, 1995.

      James C. Blackman, Warren, for appellant.
    Thomas E. Africa, Warren, for Frank E. Leichtenberger, appellee.

      Before TAMILIA, JOHNSON and HUDOCK, JJ.
   HUDOCK, Judge:

This consolidated appeal is from two orders of the trial court following the dismissal of a petition to appoint a board of viewers to open a private road. Respondents filed preliminary objections, including a demurrer. After argument, the court granted the demurrer stating that petitioners failed to state a cause of action for which relief could be granted. This appeal followed. We reverse.

The underlying facts of this matter taken from the pleadings involve a tract of land which at one time was under common ownership. It was split in the late 1800’s causing the tract involved herein to be landlocked. Access to this landlocked tract was provided through a right-of-way which ran along a creek. This right-of-way was the subject of litigation in 1975 because the right-of-way was blocked by the dominant landowner. As a result of that litigation, the right-of-way was again opened. Appellant is a successor owner of the landlocked property. She brought an action for the opening of a private road alleging the creekside right-of-way is narrowed and dangerous due to erosion from the creek and could result in her injury or death. She therefore suggested a new route to be accessed by the opening of the private road as proposed. Appellant’s petition for the appointment of viewers was denied by the trial court based upon the preliminary objections of the dominant landowners who averred that Appellant failed to allege that such a private road was a “necessity.”

Appellant raises the following issue in her appeal: DID THE COURT ERR IN FAILING TO APPOINT A BOARD OF VIEWERS PURSUANT TO 36 P.S. 2731, AND DID THE COURT USURP THE AUTHORITY OF THE BOARD OF VIEWERS TO DETERMINE WHETHER OR NOT SUCH ROAD WAS NECESSARY PURSUANT TO SECTION 36 P.S. 2732, WHICH STATES IN PART “IF IT SHALL APPEAR BY THE REPORT OF VIEWERS TO THE COURT DIRECTING THE VIEW THAT SUCH ROAD IS NECESSARY, THE SAID COURT SHALL DIRECT WHAT BREADTH THE ROAD SO REPORTED SHALL BE OPENED, AND THE PROCEEDINGS IN SUCH CASES SHALL BE ENTERED UPON THE RECORD AS BEFORE DIRECTED, AND THENCEFORTH SUCH ROAD SHALL BE DEEMED AND TAKEN TO BE A LAWFUL PRIVATE ROAD.”

Appellant’s Brief at p. 2.

The standard of review this Court applies when reviewing a grant of preliminary objections in the nature of a demurrer is quite strict.

A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law. In order to sustain the demurrer, it is essential that the plaintiffs complaint indicate on its face that his claim cannot be sustained, and the law will not permit recovery. If there is any doubt, this should be resolved in favor of overruling the demurrer.

Gekas v. Shapp, 469 Pa. 1, 6, 364 A.2d 691, 693 (1976) (citations omitted).

Appellant’s petition under review here was brought pursuant to 36 P.S. section 2731 which reads as follows:

The several courts of quarter sessions shall, in open court as aforesaid, upon the petition of one or more persons, associations, partnerships, stock companies, or corporations, for a road from their respective lands or leaseholds to a highway or place of necessary public resort, or to any private way leading to a highway, or upon the petition of the chief executive officer of any executive or administrative department of the State Government for a road from any public highway across any lands of any person, association, or corporation to the boundary line of any lands owned, controlled, or administered by the Commonwealth, direct a view to be had of the place where such road is requested, and a report thereof to be made, in the same manner as is directed by the said act of thirteenth June, one thousand eight hundred and thirty-six. [referring to the same procedure as followed in public road openings].

36 P.S. § 2731 (footnote omitted). Section 2732 is also pertinent to this action and reads:

If it shall appear by the report of viewers to the court directing the view, that such road is necessary, the said court shall direct what breadth the road so reported shall be opened, and the proceedings in such cases shall be entered on record, as before directed, and thenceforth such road shall be deemed and taken to be a lawful private road.

36 P.S. § 2732. Pertinent portions of Appellant’s amended petition to appoint a board of viewers and open a private road read as follows:

1. [Appellant] is the owner of oil, gas and mineral rights located on tract 369, Sheffield Township, Warren County, Commonwealth of Pennsylvania, as are more fully set forth in a description contained in a certain deed from Peggy L. Lobdell to Peggy L. Lobdell dated April 15, 1985 and recorded in the Recorder’s Office of Warren County in Record Book 12, page 170, and deed to be recorded.
2. That contained within the said deed is reference to a fifteen foot right of way, granting access from the State Highway, being S.R. 948 to the said Tract 396, for the purpose of ingress and egress to obtain oil, gas and minerals from the premises in Tract 396, set forth above.
3. That until the early 1960’s, [Appellant’s] predecessers [sic] in title were permitted the free use of a certain right of way from Route 948 to the premises above described, in the description attached, hereto, made a part hereof, and marked as Petitioner’s Exhibit A.
4. That [Appellant’s] only means of ingress and egress to their oil property consists of a dangerous and narrow roadway which is adjacent to the east branch of the Tionesta Creek, and is located in the southerly portion of lands of Frank E. Leichtenberger, Jr.
5. That [Appellant’s] must obtain all-weather access to their oil and gas lease over and upon the right of way set forth in Exhibit A, which is the easiest and best access to [Appellant’s] oil and gas property from the said S.R. 948 to their property.
6. That the continued use of the narrowed right of way along the southerly boundary of lands of Frank E. Leichtenberger, Jr. and along the northerly banks of the East Branch of the Tionesta Creek constitutes a hazard to [Appellant] and the general public which could result in injury or death to [Appellant] and environmental damage caused by the erosion of the said roadway.

Amended Petition, at pp. 1-2. The preliminary objections filed by Appellee, Frank E. Leichtenberger, Jr., read in pertinent part as follows:

COUNT I — DEMURRER
1. That to obtain the relief sought, the Petitioner must plead and prove “necessity.”
2. That the crux of the instant Petition is found in paragraph 5 wherein the Petitioner asserts that the proposed (new) private road would be “... the easiest and best access to (her) ... property ...”
WHEREFORE, this Respondent requests that the Amended Petition be dismissed as being insufficient as a matter of law.

Preliminary Objections, at p. 1.

As we stated in Application of Little, 180 Pa.Super. 555, 558-59, 119 A.2d 587, 589 (1956):

The Act provides for this Board [of viewers] to determine the necessity of the road ... and ordinarily this is a factual matter to be determined by actually viewing the premises and if necessary, by holding hearings. To determine what in fact is necessary the Board naturally has to know as a matter of law what the Act requires, and in this sense, the Board must interpret the law____
This legislation, allowing the appropriation of private property for private use is at the very least in the nature of eminent domain legislation and must therefore be strictly construed.....The word necessity, the key to this entire Act must likewise be given a strict interpretation.
While the Act does not require an absolute necessity, such as being completely landlocked, the mere inconvenience in the use of an existing road is not enough. Pocopson Road, 16 Pa. 15, 17. The existing road must be of a limited privilege, Stewart’s Private Road, 38 Pa.Super. 339, 342, or “extremely difficult and burdensome” in its use, Brecknock Twp. Road, 1874, 2 Woodw. 437, to warrant the appropriation of another more convenient course. In short, the Act is said to require the “strictest necessity.” Plumcreek Twp. Road [¶] Pa. 544, 548, 1 A. 431; In re Private Road in Redstone Twp., 112 Pa. 183, 184, 5 A. 383.

We note initially that Appellant’s petition states that access to the property is currently via a right-of-way adjacent to the Tionesta Creek through Appellee Frank Leichtenberger Jr.’s land. Therefore, Appellant has not pled that the property is completely landlocked, and according to Application of Little, supra, 180 Pa.Super. 555, 119 A.2d 587, she need not so plead. The crux of this appeal, therefore, is to determine whether she has pled sufficient facts to warrant the appointment of a board of viewers, who will then determine whether a private road is “necessary.”

In Application of Little, supra, 180 Pa.Super. 555, 119 A.2d 587, a board of viewers was appointed by the trial court to determine the necessity of an additional private road based upon a petition alleging that the petitioner sought to subdivide her property with access over the respondent’s land to a state route. The board of viewers found that the private road was not necessary. The trial court dismissed the petitioner’s exceptions to the board’s report. On appeal, we affirmed, holding that necessity must be based upon the present facts, not on some contemplated future use. The factual posture of the present matter is distinguishable from Application of Little because Appellant is not seeking a determination of contemplated future use, but rather present use. In holding that the private road should not be appropriated in Application of Little, we agreed that the present roadway was “adequate for the present use and enjoyment of her land.” Id. Appellant’s assertion in the matter before us essentially is that the present road is inadequate for the present use and enjoyment of her land, and is dangerous.

Appellant’s burden in her petition was to plead that she is more than merely inconvenienced in her access, but rather that the existing access is extremely difficult and burdensome in its use and warrants the appropriation of another more convenient course. We hold that, based upon our standard of review, the petition meets this requirement in that Appellant states that the present access road has been eroded by the adjacent Tionesta Creek, making it dangerous and narrow.

      . As we stated in In re Laying Out And Opening A Private Road, 405 Pa.Super. 298, 302-03, 592 A.2d 343, 346 (1991):
      We agree, the laying out and opening of a private road is clearly a taking of private property which could not occur absent the statutory empowerment of the condemnor by the government. The opening of such a road provides access to a public highway, and also provides access to the condemnor's property under certain circumstances. “Eminent Domain” has been defined as “The power to take private property for public use by the state, municipalities, and private persons or corporations authorized to exercise functions of public character.” Black’s Law Dictionary, 5th Ed., p. 470 (citation omitted). Eminent domain is a technical phrase which must be construed according to its peculiar and appropriate definition. 1 Pa.C.S.A. § 1903(a). We hold today that appeals from petitions for the laying out and opening of private roads are eminent domain proceedings within the exclusive jurisdiction of the Commonwealth Court pursuant to 42 Pa.C.S.A. § 762(a)(6). Nonetheless, as no party has raised the jurisdictional issue, we will consider the merits of this appeal in the interests of judicial economy as per 42 Pa.C.S.A. § 704, Pa.R.A.P. 741.

      . Appellees Carl and Barbara Leichtenberger did not file briefs in this appeal.

      . The trial court states in its opinion in support of the grant of the demurrer that Appellant must plead an absolute necessity. This is not the proper standard to be applied to actions for laying out of a private road. Likewise, the trial court’s conclusion that the action sought by Appellant is one for a public road is not supported by the record, which clearly shows in the petition for appointment of viewers that the action is brought pursuant to 36 P.S. section 2731, not section 1781. We therefore find that the trial court’s conclusions of law are not supported by the record.


author: HESTER, Judge:

text:
    658 A.2d 404
    Melinda MURRAY, Appellant, v. Kathleen B. McCANN, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1994.
    Filed May 8, 1995.

      Joseph M. Fioravanti, Media, for appellant.
    M. Gerard Bradley, Media, for appellee.
    Before OLSZEWSKI, JOHNSON and HESTER, JJ.
   HESTER, Judge:

Melinda Murray appeals the March 25, 1994 judgment entered in her favor in the amount of $2,338.80. The judgment was entered against Kathleen McCann, appellee, following a nonjury trial. The first issue presented is whether the trial court used an incorrect standard in determining whether appellant suffered “serious impairment of a bodily function” for purposes of allowing her to recover for non-economic loss against appellee’s insurer under 75 Pa.C.S. § 1705. The second issue presented is whether the trial court, sitting as fact finder, erred in concluding appellant had not suffered serious impairment of bodily function. We affirm.

Appellant instituted this personal injury action against appellee on January 29, 1991, alleging that on December 13, 1990, at approximately 6:20 p.m., appellant was crossing North Morton Avenue, Morton, Delaware County when she was struck by the Subaru automobile driven by appellee. Appellant, who was seventeen years old at the time, was taken by ambulance to Taylor Hospital, where she was examined, xrayed, and released. All x-rays were normal, and there was no bleeding. She was bed-ridden for two weeks, returned to work, and then underwent physical therapy for four months. Thereafter, she consulted an orthopedic surgeon for pain in April, 1991, and August, 1991. Appellant ceased medical treatment after August, 1991. Appellant incurred $7,338.80 in medical bills: $5,000 of those were covered under her first-party coverage.

Appellant’s mother had chosen a limited tort option under her policy of insurance. This limited appellant’s right to recover for non-economic loss against appellee’s insurer. 75 Pa.C.S. § 1705. The case proceeded to trial before a judge on December 7, 1993. The parties entered into a stipulation that the judge, as trier of fact, was to determine whether appellant suffered “serious impairment of bodily function” which would allow her to recover for pain and suffering. Notes of Testimony, 12/7/93, at 6. Thus, after the evidence was presented to the judge, it was stipulated that he would “decide the case from that single issue.” Id. The parties agreed that appellee’s policy limits were $15,000. The trial court had two options: an award of non-economic loss in the amount of $15,000 or an award of only economic loss.

Appellant testified as follows. At the time of the accident, she resided at 512 Morton Avenue, with her mother and sister. She was crossing that street when she was struck by the car. She indicated that her head hit the hood of the car, and she then fell onto the pavement onto her right hip. She stated that she was unconscious after her head struck the hood of the car but also stated that she screamed as soon as she hit the surface of the road. Appellant was released from the hospital after a “few hours” and was confined to the couch “for about a week.” Id. at 16. She missed work for two and one-half weeks. She treated with her family physician for four months, undergoing physical therapy “at least twice a week.” Id. at 17.

During this four-month period, appellant experienced pain in her legs, back, neck, and right hip. After four months, the pain in her hip and legs ceased, but the neck and back pain continued. Since therapy aggravated the pain in those areas, she went to see Dr. John H. Chidester in April, 1991, who recommended an exercise routine. She consulted him again in August, 1991, when she ceased all medical intervention since the exercise aggravated her pain.

Appellant still experiences shoulder and neck pain. The extent to which this has interfered with her daily activities was established through her testimony, as follows. Appellant has two jobs and attends college. Prior to the accident, appellant did not engage in vigorous physical exercise because she suffers from athletic asthma. Her neck and back are stiff in the morning and also become stiff at work. Appellant also testified that she suffers from the following symptoms:

A. Sitting, just watching TV, I have to change positions very often. If I go to the movies, it hurts my back and my neck. Even when I take a shower in the morning, I’ll — I bought a special showerhead that’s adjustable, it has four settings to aim on points at my neck.
Q. Does that help you loosen up for your day?
A. A little, yeah. It’s temporary, though.
Lifting anything heavy, doing the wash, running the vacuum cleaner, getting groceries, lifting the cat litter, that is painful. When I drive, especially in reverse, it’s hard to turn my head all the way around.

Id. at 29.

A reading of appellant’s testimony establishes that with only two exceptions, she engages in all activities which she enjoyed prior to the accident. Those activities are miniature golf and roller skating. With respect to all other activities, she does experience stiffness and pain, but the pain does not stop her from engaging in those activities. She also indicated that the pain is not significant enough to require breaks at work.

The evidence also revealed the following. At both the April, 1991, and August, 1991, examinations with Dr. Chidester, appellant had full range of motion in her neck and back. She told Dr. Chidester in August that she was “doing well.” Id. at 38. She has taken no medication other than ibuprofen for her pain.

After appellant testified, the depositions of Doctor David Willner, the defense’s medical expert, and Dr. Chidester, the plaintiffs medical expert, were admitted into evidence as exhibits. Those depositions indicate the following.

Dr. Chidester first examined appellant on April 24, 1991. He diagnosed her with cervical, dorsal, and lumbar strain syndrome. He indicated that her MRI studies showed that she had one bulging disc, but he was not able to say whether the bulge was related to the accident. He described the disk bulging as “minor or small” and determined that it could be related to normal physiologic variance. Deposition of John H. Chidester, 12/3/93, at 19. He noted that appellant’s neck and shoulder blades were tender and that she was not able to “lead a normal life without a measure of pain.” Id. at 15. In his opinion to a reasonable degree of medical certainty, the pain during her normal activities will be chronic. He recommended an exercise regimen for treatment.

Dr. David L. Willner testified that he reviewed appellant’s medical records and examined her on July 9,1992. Appellant exhibited tenderness in the shoulder and neck areas, and her range of movement in her neck and head areas was “a bit tight at the extremes.” Deposition of David L. Willner, 11/29/93, at 16. He asked appellant to bend forward and laterally and those tests were “within the normal limits.” Id. His examination of her arms and legs revealed “normal function throughout and my clinical neurological examination was entirely normal.” Id. Nerve function, muscle strength, sensation, and reflex function tests also yielded normal results. In Dr. Willner’s opinion, appellant suffered muscle strain and bruises in the accident, and her injuries will not be permanent.

Based on this evidence, on January 6, 1994, the court rendered a verdict in the amount of $2,338.80 in favor of appellant. On January 19, 1994, appellant moved for judgment notwithstanding the verdict and for a new trial. Judgment n.o.v. was requested on the basis that the trier of fact erred as a matter of law in not concluding that appellant suffered serious bodily impairment since she suffers chronic pain. Appellant also alleged that the court misconstrued section 75 Pa.C.S. § 1705 when it stated that a soft tissue injury never could qualify as a serious impairment of bodily functions. The motion was denied, and this appeal followed.

Appellant raises two issues for our review:

I. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DETERMINED THAT A CHRONIC, DISABLING SOFT TISSUE INJURY COULD NOT BE REGARDED AS A “SERIOUS IMPAIRMENT OF BODY FUNCTION,” AND THEREFORE WAS NOT COMPENSABLE UNDER 75 Pa.C.S.A. § 1702, 1705.
II. THE TRIAL COURT’S VERDICT WAS AGAINST THE CLEAR WEIGHT OF THE EVIDENCE.

On February 7, 1990, the Pennsylvania Legislature amended the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A., § 1701, et seq., and the amendments included section 1705, “Election of Tort Options.” Section 1705(d) (emphasis added) provides in relevant in part:

(4) Limited tort alternative. — Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss____

“Serious injury” is defined in section 1702 as a “personal injury resulting in death, serious impairment of a bodily function, or permanent serious disfigurement.” 75 Pa.C.S. § 1702. The issue presented is whether the trial court used the correct légal standard in determining whether appellant suffered serious impairment of a bodily function since the parties conceded that she had not suffered disfigurement.

After a thorough review of the trial court’s decision, we conclude that while it made isolated remarks that are in error, it did not apply the incorrect legal standard in determining whether appellant suffered serious impairment of bodily function. The Pennsylvania Legislature modeled this law after the Michigan law. In determining the correct definition for the term at issue, the trial court properly turned to guidance from Michigan’s body of case law. The court cited to the leading Michigan case, DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896, 914-15 (1986), and concluded that “the factors” which should be utilized in determining whether a bodily impairment is serious are “the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, [and] the treatment required to correct the impairment.” In addition, any other relevant factor may be utilized under the DiFranco decision.

The trial court also examined the evidence and analyzed how appellant’s injuries interfered with her life. In addition, the trial court reviewed the extent of appellant’s impairment, noting that she performs all normal daily activities. It further determined that no particular body function was impaired due to the fact that appellant did do all her normal activities but did so with minor aches and pains.

Moreover, the trial court considered the amount of medical treatment sought by appellant and observed the following. When Dr. Chidester, the last physician to treat appellant, examined appellant, she had full range of motion of the neck and no low back pain. The trial court noted that appellant participates in everyday activities, albeit with stiffness, and that appellant herself testified that she is able to touch her toes and has full range of motion in her neck. In addition, the trial court observed that appellant never wore a neck or back brace and the only medication she took was ibuprofen.

Furthermore, the trial court observed that appellant never was hospitalized, physical therapy was completed after four months, and thereafter appellant had one additional doctor visit eight months after the accident. Finally, it credited Dr. Willner’s opinion that the slight limitations on appellant’s activities would not be permanent. Trial court opinion, 6/22/94, at 6. In other words, the court examined the evidence on each of the four factors outlined in DiFranco.

Appellant focuses on two, isolated statements in leveling a challenge to the analysis employed. She correctly observes that the trial court stated that serious bodily impairment could not be found in the absence of an injury that was objectively manifested. The trial court also stated, along the same lines, that aches and pains never could result in serious bodily impairment. We agree with appellant that these statements are in error. As noted by the court in DiFranco, there is no wording in the applicable statutory language which limits recovery of non-economic damages to a plaintiff whose injuries can be seen or felt by a clinical test. The issue, in accordance with the language used, is whether the injuries have seriously impaired bodily functioning.

However, in the present case, immediately after it made this improper remark, the trial court indicated that it understood the correct analysis, again citing to DiFranco:

The Court went on to explain that, “the ‘serious impairment of body function’ threshold was designed to eliminate suits based on clearly minor injuries, and those injuries which did not seriously affect the ability of the body, in whole or in part, to function.” DiFranco v. Pickard, 427 Mich. 32, 60, 398 N.W.2d 896, 911 (1986).

Trial court opinion, 6/22/94, at 7.

Thus, we conclude that the trial court used incorrect language at times in its opinion since it is very possible there will be instances where pain is significant enough to interfere seriously with bodily functioning even where only soft tissue injuries have been sustained. However, it also is clear that the two improper statements were not the basis of the trial court’s decision. Rather, it examined the evidence, utilized the factors outlined in DiFranco, and concluded that appellant’s injuries did not seriously impair her functioning. The isolated, incorrect remarks of the trial court do not change the fact that it did outline the factors and discussed the evidence presented on these four factors and then concluded that appellant did not suffer serious impairment of bodily functioning. Indeed, appellant concedes that “the heart” of the trial court’s conclusion is its decision that “plaintiff sustained minor injuries which have not affected her ability to function” which is the correct standard. Appellant’s brief at 14.

We next consider whether the trial court erred when it determined that appellant suffered minor, rather than serious impairment of bodily functioning.

Initially, we note our standard of review in this case. The role of an appellate court in reviewing the trial court’s final judgment is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law; findings of the trial court in a non-jury case must be given the same weight and effect on appeal as a verdict of a jury and will not be disturbed on appeal absent error of law or abuse of discretion. Stahli v. Wittman, 412 Pa.Super. 281, 603 A.2d 583 (1992); Reuter v. Citizens & Northern Bank, 410 Pa.Super. 199, 599 A.2d 673 (1991); Porter v. Kalas, 409 Pa.Super. 159, 597 A.2d 709 (1991). When this court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all evidence and proper inferences favorable to that party must be taken as true and all unfavorable inferences rejected. Short v. Metropolitan Life Ins. Co., 339 Pa.Super. 124, 488 A.2d 341 (1985).

Olmo v. Matos, 439 Pa.Super. 1, 6, 653 A.2d 1, 3 (1994).

Under the above standard, we must view the evidence in the light most favorable to appellee, as verdict winner. That evidence includes Dr. Willner’s opinion that appellant’s pain syndrome will not last. Thus, appellant’s argument is incorrect that the testimony of the three witnesses was “uniform as to the nature of the injury, its functional impact and its long term implications.” Appellant’s brief at 14.

Furthermore, the trial court’s finding is supported by the evidence. We will not question that appellant experiences pain. The issue is whether there has been a serious impairment in her functioning as a result of the pain. Appellant stated that she is stiff and sore and that she experiences pain when she lifts heavy loads, but her testimony also establishes that she still performs all her daily activities fully. She does not have to take breaks from work for the pain. Even her own doctor stated that she will lead a normal life, albeit with “a measure ” of pain. Deposition of John Chidester at 15 (emphasis added). The pain is not significant enough to require anything other than ibuprofen. She never was hospitalized. She ceased medical intervention after eight months, had two medical visits in the last four of those eight months, and told her doctor at her final visit that she was doing well. Thus, the evidence supports the trial court’s determination that she has suffered minor, rather than serious, interference with her daily life.

Judgment affirmed.

      . The Pennsylvania Trial Lawyers Association and Pennsylvania Defense Institute have filed amicus curiae briefs on the issue of whether a jury, rather than the trial court, should have decided if appellant suffered serious impairment of bodily function. However, the record is clear that appellant did not assert in the court below and does not raise on appeal the question of whether a jury should have decided this issue. Therefore, we cannot, as requested by amicus curiae, decide that issue in this appeal.

      . Specifically, appellant argues that the trial court’s finding that she did not suffer serious impairment of a bodily function, in light of her uncontested testimony about her chronic pain, is against the weight of the evidence. However, she requests that we reverse that determination and enter judgment in her favor in the amount of $15,000, the policy limits. Appellant's brief at 15. This clearly is a request for judgment notwithstanding the verdict, and we treat this claim as such, even though it is framed as one involving a weight of evidence claim.

      . We acknowledge that there is nothing in the statute which requires that the impairment be permanent to allow for recovery. However, the length of time an impairment will last is relevant. Therefore, lack of permanency of an impairment, while not dispositive of the issue, may be considered.


author: BECK, Judge:

text:
    658 A.2d 409
    PAINEWEBBER, INC., Appellant, v. Richard DEVIN and Todd Devin.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1995.
    Filed May 10, 1995.

      Francis W. Worthington, Clinton, NJ, for appellant.
    Barbara L. Devenuto, Solebury, for appellees.
    Before BECK, KELLY and HOFFMAN, JJ.
   BECK, Judge:

The issue in this appeal is whether a subpoena duces tecum issued in aid of execution was properly quashed on the basis that the recipient of the subpoena, who was not a party to the original action, did not have any assets of the judgment debtor. We hold that it was error to quash the subpoena. Accordingly, we reverse.

In January 1993, Plaintiff-appellant PaineWebber, Inc. filed a complaint against defendant Richard Devin for breach of contract, unjust enrichment and conversion stemming from an overpayment received by Devin following a sale of stock. On September 8, 1993, summary judgment was granted against Richard Devin in the amount of $18,800.

In attempting to execute on this judgment, PaineWebber garnished the contents of a safety deposit box, but the attachment was dissolved upon notification by the garnishee that the box was registered, not in the name of Richard Devin, but rather in the name of Todd Devin Food Equipment (“TDFE”).

PaineWebber subsequently served upon Todd Devin, son of the original defendant and owner of TDFE, a subpoena duces tecum directing him to appear on December 23, 1993, to testify and to bring with him “any and all documents which refer or relate to ownership interests in Todd Devin Food Equipment, Inc., and any and all documents which refer or relate to any assets of Todd Devin Food Equipment, Inc. and/or Richard Devin.” Todd Devin did not appear for the scheduled deposition, and no documents were produced. However, through counsel Todd Devin provided PaineWebber with an affidavit certifying: 1) that he is the sole owner of TDFE; 2) that Richard Devin is neither an owner nor an employee of TDFE, and; 3) that Richard Devin does not draw any funds from TDFE. PaineWebber accepted this affidavit and agreed to cancel the deposition.

On February 16, 1994, PaineWebber conducted a deposition of Richard Devin in an effort to discover assets. Richard Devin testified that he is an officer of TDFE and performs some services for TDFE, but that he receives no compensation for such services. He further testified that his living expenses are paid for by Todd Devin -with the help of one other person.

Suspicious that Richard Devin was in fact receiving compensation for the services he performed for TDFE, PaineWebber served a subpoena duces tecum on Todd Devin, directing him to appear on April 20, 1994, to testify and to bring with him TDFE’s corporate tax returns for tax years 1988 through 1992, or, in the alternative, authorizations allowing PaineWebber to secure copies of those tax returns from the Internal Revenue Service. Todd Devin refused to produce the tax returns or authorizations and filed a motion to quash the subpoena. The motion was granted on June 2, 1994, and this timely appeal followed.

In its opinion in support of the order quashing the subpoena, the court of common pleas, after reciting the above factual history, stated that the order was entered “on the basis that neither Todd Devin nor TDFE had any assets belong [sic] to the original defendant, Richard Devin.” Appellant asserts that it was error to preclude discovery in aid of execution on the basis that the recipient of a discovery request was not known to possess assets of the defendant. We agree.

Discovery in aid of execution is permitted by Rule 3117 of the Rules of Civil Procedure. It provides, in pertinent part:

Rule 3117. Discovery In Aid of Execution
(a) Plaintiff at any time after judgment, before or after the issuance of a writ of execution, may, for the purpose of discovery of assets of the defendant, take the testimony of any person, including a defendant or a garnishee, upon oral examination or written interrogatories as provided by the rules relating to Depositions and Discovery. The prothonotary of the county in which judgment has been entered or of the county within this Commonwealth where the deposition is to be taken, shall issue a subpoena to testify.

Pa.R.C.P. 3117(a), 42 Pa.Cons.Stat.

Discovery in aid of execution under Rule 3117 should be distinguished from interrogatories served upon a garnishee under Rule 3144 of the Rules of Civil Procedure. Interrogatories to the garnishee under Rule 3144 are procedurally linked to the writ of attachment and are designed to ascertain the property in the possession of a known garnishee. Helms v. Chandler, 423 Pa. 77, 223 A.2d 30 (1966). They may be served only at the time of or after issuance of the writ and only upon a garnishee. Pa.R.C.P. 3144(a), Pa.Cons.Stat. In the context of the attachment proceeding, such interrogatories are analogous to a complaint, and require the garnishee to respond and assert any available defenses or suffer entry of a default judgment. Pa.R.C.P. 3145, 3146, Pa.Cons.Stat. Discovery under Rule 3117, in contrast, is “pure discovery,” intended as an ancillary aid in the discovery of assets. Helms v. Chandler, supra, 423 Pa. 77, 223 A.2d 30.

The language of Rule 3117 makes its broad application clear. Discovery under the rule may be pursued “at any time after judgment, before or after the issuance of a writ of execution.” Discovery in aid of execution thus is not linked to a pending execution or attachment, but rather may be pursued even before issuance of a writ in order to locate assets subject to execution and obtain the information necessary to begin the process of execution or attachment. Moreover, Rule 3117 permits discovery requests to be directed to “any person, including a defendant or garnishee.” Thus, in keeping with the “pure discovery” purposes of the rule, plaintiffs are not restricted to obtaining discovery from defendants or garnishees, but may seek discovery from any person who may have information regarding the location of assets of the judgment debtor.

The range of discovery tools available to plaintiffs under Rule 3117 is also broad. The rule explicitly permits plaintiffs to conduct discovery by oral examination or written interrogatories “as provided by the rules relating to Depositions and Discovery.” Thus the mechanisms and procedures set out in Rules 4004 through 4006 (relating to written interrogatories) and in Rules 4007.1 through 4008 (relating to oral examinations) are available not only in preparation for trial, but also in aid of execution. Where testimony is to be taken by oral examination, Rule 4007.1(d) provides for production by the person to be examined of designated documents and other materials. If the person to be examined is a party, documents may be obtained through a request for production of documents in compliance with Rule 4009. If the person to be examined is not a party, the production of materials specified in the notice of deposition is obtained through issuance of a subpoena duces tecum. Pa.R.C.P. 4007.1(d), 42 Pa.Cons.Stat. Where documents or other materials have been produced at a deposition pursuant to these rules, the moving party is entitled to inspect and copy the documents produced, to require the producing witness to identify them, and to examine the producing witness about them. Woods v. Dunlop, supra, 461 Pa. 35, 334 A.2d 619.

The scope of discovery under Rule 3117, defined by the rule’s purpose of “discovery of assets of the defendant,” is similarly broad. It is not, however, unlimited. Discovery in aid of execution may be restricted if the requested testimony or material is not relevant to the discovery of assets of the defendant. In addition, because Rule 3117 allows written interrogatories and depositions “as provided by the Rules regarding Depositions and Discovery,” use of discovery mechanisms in aid of execution is subject to the provisions of Rule 4011 (“Limitation of Scope of Discovery and Deposition”) and Rule 4012 (“Protective orders”). See Kine v. Forman, 205 Pa.Super. 305, 209 A.2d 1 (1965). Moreover, a subpoena or subpoena duces tecum obtained in aid of execution is, like a subpoena issued for any other purpose, subject to the provisions of Rule 234.4 regarding relief from compliance with a subpoena.

We review the order quashing the subpoena in this matter against the foregoing background and keeping in mind the appropriate standard of review. The Pennsylvania Supreme Court has stated that:

“[whether a subpoena shall be enforced rests in the judicial discretion of the court.” Pennsylvania Crime Commission v. Nacrelli, 5 Pa.Commw. 551, 577 (1972). Cf, Robert Hawthorne, Inc. v. County Investigating Grand Jury, 488 Pa. 373, 412 A.2d 556 (1980) (discretion of grand jury supervising judge regarding enforcement of subpoena). We will not disturb a discretionary ruling of a lower court unless the record demonstrates an abuse of the court’s discretion. So long as there is evidence which supports the lower court’s decision, it will be affirmed. We may not substitute our judgment of the evidence for that of the lower court.

In Re Semeraro, 511 Pa. 584, 587, 515 A.2d 880, 882 (1986). The great deference given to the court’s factual findings and factual conclusions based upon the evidence, however, is not accorded to its conclusions of law. “[T]he trial court’s conclusions of law are not binding on an appellate court, whose duty it is to determine whether there was a proper application of law to the facts by the trial court.” Thatcher’s Drug Store v. Consolidated Supermarkets, Inc., 535 Pa. 469, 477, 636 A.2d 156, 160 (1994).

In the case before us, the trial court found that “Todd Devin certified his sole ownership of TDFE through his counsel,” and that “[thereafter, Plaintiff again served Todd Devin and TDFE with a subpoena duces tecum seeking additional documents from Todd Devin and TDFE.” Trial Court Opinion. Based on these findings, the court made the factual conclusion that “neither Todd Devin nor TDFE had any assets belong [sic] to the original defendant, Richard Devin.” Id. Upon review of the record, we find that this factual conclusion is not supported by the evidence or the court’s factual findings. The certification of ownership made by Todd Devin states only that Richard Devin is not an owner or employee of TDFE and that Richard Devin does not draw any funds from TDFE. It does not negate the possibility that either Todd Devin or TDFE might possess assets belonging to Richard Devin.

Moreover, even if we were to uphold the court’s conclusion that neither Todd Devin nor TDFE possessed assets of Richard Devin, we would be forced to conclude that the court misapplied the law governing discovery in aid of execution in determining that the subpoena duces tecum should be quashed. Clearly, it would defeat the purpose of Rule 3117 “to discover assets of the defendant” if discovery under the rule could be directed only to persons already known to possess assets of the defendant. Further, the “pure discovery” intent of Rule 3117 is sufficiently broad to allow discovery even of persons known not to possess assets of the defendant where such discovery could provide information which would be relevant to the plaintiffs efforts to locate assets.

In opposing the motion to quash the subpoena, PaineWebber asserted that prior discovery provided by Richard Devin had given rise to questions as to whether Devin was receiving compensation from TDFE. Specifically, PaineWebber asserted that Richard Devin’s testimony that he serves as an officer and performs services for TDFE without compensation, but that his living expenses are paid by Todd Devin, gave PaineWebber the belief that payment of Richard Devin’s living expenses may in fact be compensation for services performed for TDFE. PaineWebber seeks review of TDFE’s tax returns to see whether the corporation has taken deductions that could confirm or deny this belief. We find that, as a matter of law, this assertion establishes a sufficient nexus between the discovery sought and the purpose of discovering assets of the defendant to support the subpoena duces tecum. The trial court thus abused its discretion in granting the motion to quash on the basis stated in its opinion.

Appellee urges us to hold that, even if the trial court stated an improper basis for quashing the subpoena, the subpoena should have been quashed because it sought discovery in bad faith and would cause unreasonable annoyance, burden and harassment. Although we may uphold a decision of a lower court if it can be sustained for any reason, even if the court offered an erroneous reason in support of its action, Commonwealth v. Reidenbaugh, 282 Pa.Super. 300, 422 A.2d 1126 (1980), we cannot find adequate support in this record for the conclusion that the subpoena should have been quashed on the grounds advanced by appellee.

Appellee asserts that PaineWebber’s discovery request is burdensome, harassing and made in bad faith because the information which PaineWebber seeks to glean from the TDFE corporate tax returns has already been made available through prior discovery responses, in particular the affidavit of ownership furnished by Todd Devin and personal tax returns allegedly furnished by Richard Devin. We cannot agree. Nothing in the record bears out appellee’s assertion that Richard Devin has already provided PaineWebber with his personal tax returns for the years in question. Accordingly, we need not address appellee’s arguments premised upon the delivery of such tax returns because “[fjor purposes of appellate review, what is not of record does not exist.” Frank v. Frank, 402 Pa.Super. 458, 463 n. 5, 587 A.2d 340, 342 n. 5 (1991) (citing Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319 (1986); General Accident Fire & Life Assurance Corp., Ltd. v. Flamini, 299 Pa.Super. 312, 445 A.2d 770 (1982); Dile v. Dile, 284 Pa.Super. 459, 426 A.2d 137 (1981)). Further, the affidavit furnished by Todd Devin does not provide the information now sought by PaineWebber, for it merely certifies that Richard Devin does not have an ownership interest in TDFE, is not an employee of TDFE, and does not “draw funds” from TDFE. These certifications do not negate the possibility that Richard Devin receives compensation in kind from the corporation through some relationship other than ownership of or employment by the corporation.

Moreover, even if appellee’s assertions regarding prior discovery requests are accurate, we cannot conclude that PaineWebber should automatically be precluded from again seeking testimony and documents from TDFE. To block farther discovery, appellee must show that the discovery is sought in bad faith or would create unreasonable annoyance, embarrassment, oppression, burden or expense. The trial court made no such finding in this case, and no evidence of record supports such a finding. To the contrary, the record indicates that Todd Devin refused to attend a previously scheduled deposition or furnish requested documents, that his affidavit was accepted in light of this lack of cooperation, and that information subsequently discovered raised additional questions not explicitly addressed in the affidavit. In light of these facts, we cannot conclude that PaineWebber’s subpoena was issued in bad faith or that answering it would cause unreasonable annoyance, embarrassment, oppression, burden or expense to Todd Devin or TDFE.

Accordingly, we hold that appellee was not entitled to relief from the subpoena duces tecum in aid of execution properly obtained by PaineWebber. In the absence of facts supporting a finding that the subpoena was obtained in bad faith or that it would cause unreasonable annoyance, embarrassment, oppression, burden or expense, it was error for the trial court to grant appellee’s motion to quash the subpoena.

Order reversed. Case remanded for further proceedings not inconsistent with this opinion. Jurisdiction relinquished.

      . The language of Rule 3117, providing that the prothonotary "shall issue a subpoena to testify,” might appear at first reading to suggest that a subpoena duces tecum is not available in aid of execution. However, identical language was previously included in Rule 4018, now rescinded, which dealt with the availability of subpoenas to compel testimony at a deposition in preparation for trial. In that context, the Pennsylvania Supreme Court held that "[t]he authority to issue a subpoena ordering a witness to appear for a deposition includes the power to insert within the subpoena a duces tecum clause ordering the witness to produce papers, documents, or other evidence.” Woods v. Dunlop, 461 Pa. 35, 334 A.2d 619 (1975). Because under Rule.3117 the general mechanisms and procedures regarding written interrogatories and oral depositions in preparation for trial are also applicable in conducting discovery in aid of execution, we can perceive no reason that the supreme court's holding in Woods regarding the subpoena power inherent in the phrase "subpoena to testify” should not apply equally in the context of discovery in aid of execution.

      . Rule 4011. Limitation of Scope of Discovery and Deposition
      No discovery or deposition shall be permitted which
      (a) is sought in bad faith;
      (b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party;
      (c) relates to matter which is privileged; or ...
      (e) would require the making of an unreasonable investigation by the deponent or any party or witness; ...
      Pa.R.C.P. 4011, 42 Pa.Cons.Stat.

      . Rule 4012. Protective Orders
      (a) Upon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense, including one or more of the following:

        (1) that the discovery or deposition shall be prohibited;
      (2) that the discovery or deposition shall be only on specified terms and conditions, including a designation of the time and place;
      (3) that the discovery or deposition shall be only by a method of discovery or deposition other than that selected by the party seeking discovery or deposition;
      (4) that certain matters shall not be inquired into;
      (5) that the scope of discovery or deposition shall be limited;
      (6) that discovery or deposition shall be conducted with no one present except persons designated by the court;
      (7) that a deposition shall be sealed and shall be opened only by order of the court;
      (8) that the parties simultaneously shall file specified documents or information enclosed in sealed envelopes to be opened as directed by the court;
      (9) that a trade secret or other confidential research, development or commercial information shall not be disclosed or be disclosed only in a designated way.
      If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery.
      (b) At any time during the taking of a deposition, on motion of any party or of the deponent the court may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in subdivision (a). If the order made terminates the examination it shall be resumed thereafter only upon order of the court. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order and to obtain the court's ruling thereon.
      Pa.R.C.P. 4012, 42 Pa.Cons.Stat.

      . Rule 234.4 Subpoena. Notice to Attend. Notice to Produce. Relief from Compliance. Motion to Quash
      (a) The party serving a subpoena or a notice to attend or a notice to produce may excuse compliance therewith.
      (b) A motion to quash a subpoena, notice to attend, or notice to produce may be filed by a party or by the person served. After hearing, the court may make an order to protect a party or witness from unreasonable annoyance, embarrassment, oppression, burden or expense.
      Pa.R.C.P. 234.4, 42 Pa.Cons.Stat.


author:
      CIRILLO, Judge:
      OLSZEWSKI, Judge,

text:
    658 A.2d 416
    COMMONWEALTH of Pennsylvania v. Frank DeSTEFANIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1995.
    Filed May 11, 1995.

      Francis Recchuiti, Norristown, for appellant.
    Stephen B. Harris, Asst. Dist. Atty., Warrington, for Commonwealth, appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   CIRILLO, Judge:

Frank DeStefanis appeals from a judgment of sentence entered in the Court of Common Pleas of Bucks County following his conviction of two counts of promoting prostitution and one count of conspiracy. We reverse.

On February 16, 1993, Detective Timothy Carroll of the Bensalem Township Police Department went to the Executive Fitness Center in Bristol Borough as part of an undercover operation. Detective Carroll paid Jessica Vanderburg (“Alexis”) $60.00 for a body massage. Ms. Vanderburg massaged Detective Carroll’s feet, legs, arms, back, and chest. Toward the completion of the massage, Ms. Vanderburg asked if Detective Carroll wanted a “hand release.” When Detective Carroll asked about the meaning of a hand release, Ms. Vanderburg indicated that it meant a “hand job.” Detective Carroll determined that she was referring to manual stimulation of the genitals, and inquired about the price of a hand release. Ms. Vanderburg told him that a tip would be appreciated. She also indicated that only a hand release was available, as opposed to oral sex or other sexual activity. Detective Carroll told Ms. Vanderburg that he was not interested in a hand release.

On March 3, 1993, Detective Carroll returned to the Executive Fitness Center and was this time met by a woman who identified herself as “Madison” (Beata Grama). Detective Carroll paid $65.00 and received a massage. After the completion of the massage, Detective Carroll told Ms. Grama that he had spoken to Alexis, and was interested in the availability of specific sexual acts other than a hand release. Ms. Grama indicated that it was the “house rule” that only hand releases would be performed, nothing else. Detective Carroll did not receive a hand release.

On June 23, 1993, Officer Libby Hagger of the Morrisville Borough Police Department went to the Executive Fitness Center and, as part of the undercover investigation, interviewed for a position as a masseuse. There she met Appellant Frank DeStefanis. During the interview, DeStefanis instructed Officer Hagger to put her handbag in an adjoining room, and to remove her clothing to make sure she was not “wired” with a recording device. DeStefanis stated that he did not want to have any problems with the police. Officer Hagger removed her shirt for this purpose. In fact, the conversation was recorded by Detective Robert Potts of the Bucks County District Attorney’s Office using a remote transmitter placed in Officer Hagger’s handbag. The tape was later played for the • jury and transcribed. During their conversation, Officer Hagger asked DeStefanis if “he had a problem with ...” and then made a gesture indicating a hand release. The following dialogue was exchanged:

DESTEFANIS: That’s up to you. You talking about a hand release?
HAGGER:- Yeah.
DESTEFANIS: That’s up to you, but I don’t think anybody’s doing that.
HAGGER: OK. But that is acceptable ... to make more money, that would be one of my options then?
DESTEFANIS: Yes.

DeStefanis also told her that “the rules” included no sexual intercourse (including oral and anal sex). DeStefanis reiterated that there was strictly “no sex” allowed approximately nine times during the taped conversation, and mentioned at least twice that he would be “checking” on Hagger. Additionally, DeStefanis informed Hagger'that she would receive $20.00 for each hour (presumably for each massage), plus tips. When asked by Hagger if she was able to keep her tips, DeStefanis replied, “I don’t touch any of your money---- Everyone keeps their own tips.”

About one month after the interview, officers from the Bristol Borough Police Department arrested DeStefanis, Ms. Yanderburg, and Ms. Grama. Detective Potts interviewed Ms. Vanderburg, who admitted to giving hand releases to a few of her customers. Specifically, she related to Officer Potts how much money she made per week and that she was able to keep her tips. Additionally, Officer Randy Morris spoke with Ms. Grama, who also admitted performing hand releases on some customers, but did not perform oral sex and/or other “full service” sex.

A jury trial was held on December 13, 1993, and DeStefanis was convicted of two counts of promoting prostitution and one count of conspiracy. Post-verdict motions were filed and denied. DeStefanis was sentenced to thirty days to twenty-three months imprisonment, and was directed to pay a $2,500.00 fine. This appeal followed.

DeStefanis raises the following issues for our consideration:
(1) Was the evidence in this case insufficient to establish criminal activity because:
(a) Solicitation and prostitution are separate and distinct offenses and no act constituting prostitution took place?
(b) Masturbation does not constitute sexual activity within the meaning of the prostitution statute?
(c) The evidence was insufficient to connect DeStefanis to any act of prostitution?
(2) Did the court err when it admitted testimony about statements and confessions made by defendants when the corpus delicti of prostitution had not been established?
(3) Did the court err and abuse its discretion in permitting witnesses to express an opinion that a gesture made meant male masturbation, while refusing to permit the gesture to be either shown or described?

In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Jarman, 529 Pa. 92, 94-95, 601 A.2d 1229, 1230 (1992); Commonwealth v. Swann, 431 Pa.Super. 125, 635 A.2d 1103 (1994). “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.” Com monwealth v. Swerdlow, 431 Pa.Super. 453, 458, 636 A.2d 1173, 1176 (1994) (citing Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988)): See also Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9 (1994). Furthermore, it matters not whether the appellant finds a witness’s testimony lacking in credibility; such matters are solely within the province of the jury as trier of fact and, as such, will not be assailed on review by this court. Swerdlow, supra, 431 Pa.Super. 453, 636 A.2d 1173.

In claiming that his verdict was not supported by sufficient evidence, DeStefanis first contends that the offenses in question do not constitute prostitution. The offense of prostitution is defined under 18 Pa.C.S.A. § 5902(a):

(a) Prostitution. — A person is guilty of prostitution; a misdemeanor of the third degree, if he or she:
(1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a business-, ....

18 Pa.C.S.A. § 5902(a)(1), (2) (emphasis added). The offense of promoting prostitution is defined under 18 Pa.C.S.A. § 5902(b):

(b) Promoting prostitution. — A person who knowingly promotes prostitution of another commits a misdemeanor or felony as provided in subsection (c) of this section. The following acts shall, without limitation of the foregoing, constitute promoting prostitution:
(1) owning, controlling, managing, supervising or otherwise keeping, alone or in association with others, a house of prostitution or a prostitution business;

18 Pa.C.S.A. § 5902(b)(1).

In order for the conviction of promoting prostitution to be sustained, this court must be assured that the evidence was sufficient to convince the jury beyond a reasonable doubt that the Commonwealth proved: (1) that there was a prostitution business; and (2) that the accused had a connection with the “running, control, supervision or keeping of the prostitution business.” 18 Pa.C.S.A. § 5902(b). Commonwealth v. Blankenbiller, 362 Pa.Super. 477, 480, 524 A.2d 976, 978 (1987). Thus, in determining whether the evidence is sufficient to sustain DeStefanis’ conviction for promoting prostitution, and since DeStefanis’ conviction is based on the actions of Ms. Vanderburg and Ms. Grama, it is first necessary to determine whether the activities allegedly promoted did indeed rise to the level of a prostitution business.

The prostitution statute, 18 Pa.C.S.A. § 5902, was enacted to provide an ascertainable standard of conduct directed at a defined evil, such evil being the commercial exploitation of sexual gratification. Commonwealth v. Potts, 314 Pa.Super. 256, 273-75, 460 A.2d 1127, 1136 (1983); accord Commonwealth v. Bleigh, 402 Pa.Super. 169, 172-76, 586 A.2d 450, 452-53 (1991); Commonwealth v. Robbins, 358 Pa.Super. 225, 230-32, 516 A.2d 1266, 1269 (1986). Prostitution has persisted since biblical times and has traditionally been viewed as sexual intercourse for hire. Potts, supra, 314 Pa.Super. 256, 460 A.2d 1127; see also Bleigh, supra, 402 Pa.Super. 169, 586 A.2d 450. In the present statute, the legislature did not eradicate the commonly understood definition of prostitution, but, rather, clarified it to include “homosexual and other deviate sexual relations.” Potts, supra, 314 Pa.Super. 256, 460 A.2d 1127; 18 Pa.C.S.A. 5902(f).

Since Potts, the appellate courts of this Commonwealth have made it clear that intercourse is not the only sexual activity condemned by section 5902. In Commonwealth v. Cohen, 371 Pa.Super. 558, 538 A.2d 582 (1988), and Robbins, supra, 358 Pa.Super. 225, 516 A.2d 1266, this court held, after examining the statute’s purpose, that the masturbation of a male by a female for money was sexual activity as a business and, therefore, prostitution. In both Cohen and Robbins, the appellants were owners and/or operators of establishments where massages were performed by women who, in the course of massaging their male clients, performed “hand releases” on the men’s genitalia.

[S]ince the term “sexual activity” is undefined by statute, we are obliged to construe that term according to its common and approved usage. When the term “sexual activity” is examined in light of the statute’s underlying purpose of prohibiting commercial exploitation of sexual gratification and also in light of its common and approved usage, there is no doubt that masturbation for hire falls within the statute’s proscription.

Cohen, 371 Pa.Super. at 563, 538 A.2d at 584 (quoting Robbins, 358 Pa.Super. at 230, 231, 516 A.2d at 1269 (citations omitted)). .

Cohen and Robbins have made it clear that prostitution, or “sexual activity as a business,” includes “masturbation as a business” or, stated otherwise, “manual sexual stimulation for the payment of money” and “masturbation for hire.” Cohen, 371 Pa.Super. at 560-64, 538 A.2d at 583-84; Robbins, 358 Pa.Super. at 228-32, 516 A.2d at 1268-69. Thus, in order for there to be prostitution, there must not only be sexual activity (ie., manual sexual stimulation), but a payment of money as well, in other words, “a prostitution business.” 18 Pa.C.S.A. § 5902(b)(1). “This court has found that a ‘business’ is ‘a commercial activity engaged in for gain.’ ” Blankenbiller, 362 Pa.Super. at 480-82, 524 A.2d at 978 (quoting Potts, 314 Pa.Super. at 271, 460 A2d at 1135). In both Cohen and Robbins, the massages given by the nude or semi-nude female masseuses to the male customers included masturbation of the male genitalia for a set fee; it was part of the “business.” There is no question, therefore, that such conduct satisfied that proscribed by section 5902.

In the instant case, there is no question that a hand release, which constitutes sexual activity under the statute, was available to, at the very least, Detective Carroll. The more uncertain question is whether the actions of Ms. Vanderburg and Ms. Grama constituted manual sexual stimulation for a business. A review of the record indicates that there is insufficient evidence of the existence of a “prostitution business,” (i.e. “sexual activity as a business”) to sustain De-Stefanis’ conviction of promoting prostitution.

Detective Carroll’s testimony reveals that the fitness center charged $60.00-$65.00 up front for a legitimate massage. The evidence further revealed that, after the completion of his first massage, Detective Carroll was made aware that a hand release was available by Ms. Vanderburg. When Detective Carroll inquired about the price of a hand release, the vague response was, “a tip would be appreciated.” Arguably, when a client does not agree to pay for a sexual service up front, the ensuing act constitutes sexual activity between two consenting adults. Ms. Grama, Detective Carroll’s second masseuse, did not even make Detective Carroll an offer of any type of sexual activity; it was not until the massage was completed and Detective Carroll initiated inquiries to Ms. Grama about sexual options that she spoke about hand releases. There can be no assumption, therefore, that a hand release was included in the price of the massage. No price was discussed with Ms. Grama. The fact that DeStefanis indicated to Officer Hagger that providing hand releases was an acceptable way to make “tips” is not probative of a prostitution “business,” nor are the admissions of Ms. Vanderburg and Ms. Grama that they gave hand releases to some of their customers. This evidence, even when viewed in the light most favorable to the Commonwealth, is not sufficient to establish the “business” element of the prostitution statute beyond a reasonable doubt, specifically, that there existed “a commercial activity engaged in for gain.” Jarman, supra, 529 Pa. 92, 601 A.2d 1229. “While a criminal conviction may rest upon wholly circumstantial evidence, it may not be based upon mere surmise or conjecture.” Blankenbiller, 362 Pa.Super. at 481, 524 A.2d at 978 (citing Commonwealth v. Stores, 317 Pa.Super. 109, 117, 463 A.2d 1108, 1112 (1983)). Because no underlying “prostitution business” has been established, DeStefanis cannot be said to have promoted prostitution under section 5902(b) and, therefore, his conviction must be reversed.

By way of dicta, we also find that the evidence was insufficient to prove that DeStefanis had a connection with the “running, control, supervision, or keeping of the prostitution business.” 18 Pa.C.S.A. § 5902(b); Blankenbiller, supra, 362 Pa.Super. 477, 524 A.2d 976. In Blankenbiller, this court found insufficient evidence to sustain a conviction for promoting prostitution. There, the appellant was the president/director of the company that owned the property where prostitution took place. Part of this court’s focus in determining that the appellant did not promote prostitution was the appellant’s lack of earnings from the business. “Though it is clear that a prostitution business was operating at the date and time in question, the Commonwealth did not prove that the appellant received any income from the business.” Blankenbiller, 362 Pa.Super. at 481, 524 A.2d at 978. Here, even had we found that a prostitution business was in place, there was no evidence that DeStefanis received income from such a business. This is especially true in light of DeStefanis’ statements to Officer Hagger that he did not think anyone was providing hand releases, and that he did not share any portion of the employees’ tips.

Because we have determined that DeStefanis’ conviction shall be reversed, we need not address the remaining issues on appeal.

Judgment of sentence reversed.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

Since I believe that the evidence was sufficient to support appellant’s conviction, I must respectfully dissent.

In reviewing the sufficiency of the evidence, an appellate court must determine “whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements beyond a reasonable doubt.” Commonwealth v. Howard, 538 Pa. 86, 91, 645 A.2d 1300, 1303 (1994).

The majority found that the evidence was legally insufficient to prove the business element of promoting prostitution. As used in the prostitution statute, the term “business” has been defined as “commercial activity engaged in for gain.” Commonwealth v. Potts, 314 Pa.Super. 256, 271, 460 A.2d 1127, 1135 (1983). Thus, the Commonwealth must produce evidence that will prove the existence of certain activity, commercial rather than personal in nature, that was performed in anticipation of some type of payment or benefit. In each of the two undercover massage incidents in this case, an employee offered a certain sexual service to a stranger/customer along with vague representations about price. In light of all of the evidence and the given context, I simply cannot agree with the majority that this is arguably a consensual sexual act between two adults, rather than a business transaction.

Regarding the first undercover massage, every aspect of this encounter reinforces the notion of a commercial and fee-oriented service relationship. It certainly began as a service relationship when Detective Carroll paid for a massage. After the massage, the masseuse, Ms. Vanderburg, did not indicate that she had any particular affinity for Carroll, or that she was in any way seeking a social relationship. Instead, she continued to act as a provider of services by notifying Carroll that “hand releases” were available. When he inquired about other sexual options, Ms. Vanderburg responded that only “hand releases” were available, as opposed to “full service” or oral sex. She also indicated that a number of other customers took advantage of the “hand release” service. This is simply not the kind of language used by a social partner, but rather is the kind of language used by a provider of services discussing available options.

Ms. Vanderburg’s response to Carroll’s price inquiry, that tips would be appreciated, further reinforced the notion of a service rather than a social relationship. . It is of no consequence that Ms. Vanderburg did not give a specific price or demand payment up front. By responding to the price inquiry with a reference to a type of payment, she clearly indicated that the service was not being performed for free. The facts of this encounter simply do not lend themselves to the conclusion that this was a social relationship between consenting adults; rather the facts indicate that these services were being offered commercially, in anticipation of some type of payment or benefit.

Similarly, the evidence regarding the second undercover massage reveals the same kind of service-oriented relationship. Once again, Detective Carroll paid a stranger for a massage. At the completion of the massage, Carroll asked about additional sexual options. In response, Ms. Grama explained that house rules prohibited any service other than a “hand release,” which was available. In this encounter, there was no discussion of price because Carroll had indicated that he was not interested in the “hand release.” As in the first incident, the masseuse indicated that many customers took advantage of the “hand release” service.

Based on the evidence obtained in these two encounters, I would find that a reasonable inference could be drawn that the two masseuse/employees were regularly and commercially offering a sexual service to customers in anticipation of payment or benefit; stated another way, that they were engaged in commercial activity for gain.

Since the underlying actions constitute a prostitution business, I must next examine appellant’s relationship to that business. One of the statutory definitions of promoting prostitution is “owning, controlling, managing, supervising, or otherwise keeping ... a prostitution business.” 18 Pa.C.S.A. § 5902(b)(1). Citing Commonwealth v. Blankenbiller, 362 Pa.Super. 477, 524 A.2d 976 (1987), appeal denied, 517 Pa. 591, 535 A.2d 81 (1987), the majority found that the evidence was insufficient to establish that appellant owned, controlled, managed, supervised, or otherwise kept a prostitution business. I disagree.

In Blankenbiller, this Court found the evidence insufficient to connect a corporate officer to a prostitution business operating at a party on corporate property. Id. at 482-84, 524 A.2d at 979. In discussing the weakness of the evidence, the Blankenbiller Court noted that although the officer promoted and attended the party, he was not automatically liable for everything that occurred there. Id. Since there was no evidence that the officer planned, arranged, or took part in the illicit activities, or that he received any income from the operation of the business, he could not be found guilty of owning, controlling, managing, supervising, or keeping a prostitution business. Id.

The circumstances of the instant case differ markedly from those in Blankenbiller. As an initial matter, I note that the illicit activity in Blankenbiller occurred at a party, while the activities at issue here were a regular and integral part of appellant’s business. Common sense dictates that we require more oversight and diligence from a business owner running his daily operations than from a party-going corporate officer who attends an event on corporate property.

Secondly, the corporate officer in Blankenbiller did not plan, organize, or otherwise take part in the illicit activity that occurred at the party. In contrast, appellant took a very active part in planning and organizing his business. During the job interview with undercover Officer Libby Hagger, appellant informed her of a detailed set of house rules, the most significant of which was the rule prohibiting intercourse. Appellant made it very clear that he would be checking on his employees to be sure that they followed this rule. In the same interview, appellant explicitly stated that “hand releases” were allowed. These clear rules given to a prospective employee indicate that appellant was actively involved, as a business owner should be, in determining what would and what would not take place in his establishment. Since “hand releases” are no different than actual intercourse under the prostitution statute, however, appellant was making a useless distinction. Pursuant to his own stated house rules, appellant was allowing a prostitution business to flourish at his establishment.

Lastly, appellant was indirectly benefiting from the prostitution business on his premises. As the majority correctly notes, we cannot assume, based on the available evidence, that the “hand release” was included in the price of the massage. Similarly, we have no evidence to suggest that appellant was collecting a portion of the “tips” that his employees received for “hand releases.” Therefore, the Commonwealth has failed to prove that appellant was receiving any direct benefit from the prostitution business. Nevertheless, both masseuse/employees informed Detective Carroll that many men came to the club for the “hand release” service, and that the place was “busy for that purpose.” N.T. 12/14/93 at 16. Thus, even if appellant was not receiving a direct portion of the payments from “hand releases,” he was receiving the indirect benefit of increased business by customers specifically seeking the sexual service.

Therefore, unlike Blankenbiller, we are presently faced with an on-site business owner, who is actively involved in the day-to-day operations of his business, specifically allowing a prostitution business to exist as an integral and profit-enhancing part of his business. While appellant’s “it’s up to you” style may preclude the finding that he managed; supervised, or controlled a prostitution business, I must conclude that his actions do rise to the level of “otherwise keeping” a prostitution business.

Since I would find that the evidence is sufficient to support appellant’s conviction for promoting prostitution, and that appellant’s two remaining claims are meritless,1 would affirm this judgment of sentence.

      . “Sexual activity," as defined in the statute, “[i]ncludes homosexual and other deviate sexual relations.” 18 Pa.C.S.A. § 5902(f) (definitions).

      . Other evils aimed at being abolished by the criminalization of prostitution include the spread of sexually transmitted disease, the corruption of law enforcement agencies, the incentive to exploit women, and criminal organizations living on the proceeds of prostitution. Bleigh, 402 Pa.Super. at 174-76, 586 A.2d at 453; see Commonwealth v. Dodge, 287 Pa.Super. 148, 429 A.2d 1143 (1981).

      . We note that these cases are distinguishable from Bleigh, supra, 402 Pa.Super. 169, 586 A.2d 450, where this court found that dancing girls’ self-masturbation for the sexual gratification of their customers was not prostitution and, therefore, the dancing girls' manager was not promoting prostitution.

      . We note that it is the mere offer that is important for purposes of prostitution; no actual touching need be proven. See Commonwealth v. Danko, 281 Pa.Super. 97, 421 A.2d 1165 (1980).

      . For purposes of this argument, we must assume that there was a prostitution business in place, even though we have already determined that there was not.

      . It is trae, as the majority notes, that Ms. Vanderburg was not clear about whether the "hand release” was included in the price of the massage. For the purposes of finding the existence of an underlying prostitution business, however, it is irrelevant whether the "hand release” service was included or offered "a la carte," so long as it was offered for a fee. .

      . Appellant alleges that certain statements made by Ms. Vanderburg and Ms. Grama were admitted in violation of the corpus delicti rule. This rule requires that “independent evidence, beyond the statement of the accused, suggests that a crime has occurred.” Commonwealth v. Buck, 426 Pa.Super. 26, 29, 626 A.2d 176, 177 (1993). Since I agree with the trial court that the testimony of the undercover officers provided sufficient independent evidence to suggest that prostitution was occurring, I reject appellant’s assertion that the corpus delicti rule was violated.
      Appellant also alleges that the trial court erred in not requiring Officer Hagger to demonstrate the hand gesture she used to indicate male masturbation when she interviewed with appellant. Appellant believes that Hagger impermissibly testified as to her opinion of what the gesture meant. I find this argument totally devoid of merit. The transcript of the interview between appellant and Officer Hagger indicates that immediately after Hagger made the gesture, appellant responded by stating "That’s up to you. You talking about a hand release?" Hagger answered “Yeah." Since both parties clarified their understanding of the gesture in the ensuing conversation, which was captured on tape, Officer Hagger’s trial testimony was not an impermissible opinion, but was merely cumulative evidence of the parties' understanding of the term.