author: ROWLEY, President Judge:

text:
    648 A.2d 1222
    COMMONWEALTH of Pennsylvania v. James JUDGE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 6, 1994.
    Filed Oct. 26, 1994.

      Charles R. Witaconis, Asst. Public Defender, Scranton, for appellant.
    Michael J. Barrasse, Dist. Atty., Scranton, for the Com., appellee.
    Before ROWLEY, President Judge, and CAVANAUGH and WIEAND, JJ.
   ROWLEY, President Judge:

James Judge appeals from the judgment of sentence entered on March 16, 1994. After a bench trial, appellant was sentenced to twelve to twenty-four months incarceration and fined $300.00 for violating 75 Pa.C.S.A. § 3731(a)(4) (driving a motor vehicle while the amount of alcohol by weight in' the blood ... is .10% or greater).

Appellant claims on appeal that the trial court erred in admitting evidence of his blood alcohol content (BAC) because the Commonwealth a) failed to establish a proper chain of custody, and b) failed to establish a proper foundation regarding the qualifications of the laboratory and personnel who conducted appellant’s BAC test. Appellant also claims that there was insufficient evidence to establish his BAC at the time he was driving to sustain his conviction under § 3731(a)(4). We find these claims to be without merit and affirm the judgment of sentence.

Appellant was stopped for speeding by a Scranton police officer at 6:40 A.M. on November 3, 1991. The officer testified that appellant exhibited a strong odor of alcohol, as well as slurred speech and staggered walk. Although the officer did not cite appellant for the speeding violation, he suggested that appellant lock his vehicle and find another way home. At approximately 7:05 A.M., the same officer again observed appellant driving. He stopped appellant a second time, having learned in the meantime that appellant was driving with a suspended license. The officer testified that appellant still exhibited an odor of alcohol, slurred speech, staggered gait, and “very poor” balance. Notes of Testimony (N.T.), 2/7/92 at 18-19. When appellant refused to consent to a field sobriety test, he was placed under arrest. He was then transported to a local hospital, where he consented to having his blood drawn at approximately 7:40 A.M. Subsequent test results determined appellant’s BAC to be .16%.

With respect to appellant’s first claim, a review of the record supports the trial court’s finding that the Commonwealth met its burden of proof with regard to the reliability of appellant’s BAC test and that the results were properly admitted into evidence.

In Commonwealth v. Sullivan, 399 Pa.Super. 124, 129, 581 A.2d 956, 958-959 (1990), testimony provided by the director of the laboratory regarding the qualifications of the personnel and procedures used to determine the defendant’s BAC, along with testimony from a police officer and the laboratory’s director regarding the chain of custody, was sufficient to defeat the defendant’s challenge to admissibility. It is well-settled that the Commonwealth need not establish the sanctity of its exhibits beyond all moral certainty; all that is required is a reasonable inference that the identity and condition of the exhibits remain unimpaired until surrendered to the court. Commonwealth v. Hudson, 489 Pa. 620, 631-632, 414 A.2d 1381, 1387 (1980); Commonwealth v. Welshans, 397 Pa.Super. 439, 445-446, 580 A.2d 379, 381-382 (1990), affirmed sub nom. Commonwealth v. Voshall, 529 Pa. 571, 605 A.2d 1222 (1992).

In appellant’s case, an officer assisting in the arrest testified to transporting appellant to the hospital for his blood test. The officer also observed the technician withdraw a sample of appellant’s blood, and testified to observing the lab technician who drew appellant’s blood sample hand the sample to the arresting officer for transportation to police headquarters.

The arresting officer testified to receiving appellant’s blood sample from the hospital technician and transporting it to the police station for storage. He testified to the normal procedure followed by the police in storing the samples at the station, and the method used to transport blood samples to the clinical laboratory which conducted the BAC analysis. The associate director of the laboratory then testified to the lab’s normal procedures, and verified that he was responsible for the lab’s reports and records, and, moreover, that he personally received appellant’s blood sample and wrote the analysis results. This testimony was sufficient to enable us to conclude that the trial court did not abuse its discretion in finding the chain of custody sufficient to admit appellant’s BAC results as reliable. Hudson, 489 Pa. at 632, 414 A.2d at 1388.

Appellant’s argument regarding the Commonwealth’s failure to establish a proper foundation regarding the qualifications of the laboratory conducting his BAC test is equally devoid of merit. When asked to determine whether blood alcohol test results are properly admitted, the trial court’s primary concern lies in assessing the qualifications of personnel and equipment used in testing, Commonwealth v. Zelinski, 392 Pa.Super. 489, 573 A.2d 569 (1990), and determining whether the laboratory was licensed by the Department of Health in accordance with § 1547(c)(2), and whether a proper chain of custody protects the blood sample provided by the defendant. Sullivan, 399 Pa.Super. at 129, 581 A.2d at 959; Commonwealth v. Kravontka, 384 Pa.Super. 346, 357, 558 A.2d 865, 871 (1989); Commonwealth v. Dungan, 372 Pa.Super. 323, 330-332, 539 A.2d 817, 820-821 (1988), appeal denied, 522 Pa. 573, 559 A.2d 34 (1989). In Commonwealth v. Leib, 403 Pa.Super. 223, 238-239, 588 A.2d 922, 930 (1991), testimony of the director of the facility conducting a defendant’s blood test was alone sufficient to enable this Court to support a finding that the Commonwealth met its burden of proof under § 1547(c) in establishing the qualifications of the laboratory, equipment, and personnel.

In appellant’s case the record demonstrates that the associate director of the laboratory testified extensively on direct examination concerning his qualifications as a toxicologist, described the procedure followed by the laboratory for processing BAC tests in detail, and confirmed that his facility had been inspected by the state within the past few months and that proper licensure was displayed in the facility’s office. N.T. 2/7/92 at 51-56. For these reasons, we conclude that the Commonwealth established a proper chain of custody and provided a proper foundation for the admission of appellant’s BAC results into evidence.

Before addressing appellant’s claim that the evidence was insufficient to sustain his conviction under 75 Pa.C.S. § 3731(a)(4), we must determine if appellant has waived this claim by failing to raise it with specificity in his post-trial motions, filed March 27, 1992. We note that the trial court issued an order on March 30, 1992, granting appellant the right to request permission to file additional reasons in support of his motion for a new trial. While appellant’s initial motion did not raise an insufficiency of the evidence claim, both the brief appellant filed on October 13, 1993, to support his motion for a new trial, and the Commonwealth’s brief, filed on November 10, 1993, in opposition thereto, discussed the merits of appellant’s claim that the Commonwealth failed to provide expert testimony relating appellant’s BAC results to the time when he was actually driving his car; without this relation-back testimony, appellant argued, the evidence was insufficient to find him guilty of violating 75 Pa.C.S. § 3731(a)(4). Appellant’s counsel then filed a supplemental motion in arrest of judgment on December 3, 1993, in which he added the insufficiency of the evidence claim to those claims originally raised. The Commonwealth’s brief in opposition to appellant’s supplemental post-verdict motions, filed on December 7, 1993, urged the trial court to find that appellant had waived this issue. After stating that appellant had waived the issue, however, the trial court proceeded to discuss the merits of appellant’s claim extensively in its opinion, filed January 5, 1994.

In light of this Court’s decision in Commonwealth v. Sopota, 403 Pa.Super. 1, 8-9, 587 A.2d 805, 808 (1991) (proper course on appeal is to consider all issues raised in supplemental post-verdict motions in all cases where trial court addresses merits of the issues), appeal denied, 528 Pa. 629, 598 A.2d 283 (1991), as well as Pa.R.Crim.P. 1123 (only those issues raised in pretrial proceedings or at trial may be considered, unless the trial judge allows otherwise), and Pa.R.Crim.P. 1124 (defendant may challenge sufficiency of the evidence by demurrer at close of Commonwealth’s case-in-chief), we find that appellant has not waived this claim. See also Commonwealth v. Metz, 534 Pa. 341, 633 A.2d 125 (1993) (issue waived if not raised at all at post-trial stage and trial court fails to address merits).

Having determined that appellant has not waived the issue, we find two recent Supreme Court decisions dispositive of appellant’s claim that the Commonwealth was required to produce expert testimony relating appellant’s blood alcohol content back to the time when he was actually driving his car: it was not required to do so. Commonwealth v. Yarger, 329 Pa. 538, 648 A.2d 529 (1994) (holding, inter alia, that BAC test results significantly over .10% when taken shortly after suspect stopped creates strong inference of guilt; that Commonwealth is not required to produce expert testimony to prove BAC level at time of driving, although defendant free to do so; that BAC level over .10% establishes prima facie case under § 3731(a)(4)), and Commonwealth v. Petrovich, 538 Pa. 369, 648 A.2d 771 (1994) (holding, inter alia, that it was not an abuse of trial court’s discretion to grant motion in limine disallowing expert testimony based on conjecture; Commonwealth not required to produce expert testimony to establish suspect was driving with BAC at or above .10% at time of offense).

We hold that the results of appellant’s blood analysis for alcohol content, at .16%, is sufficient as a matter of law to support appellant’s conviction for violating § 3731(a)(4). In accord with Yarger, this evidence, without more, creates a prima facie case that appellant was operating his vehicle while the alcohol content in his blood was .10% or greater. Appellant produced no evidence to rebut the Commonwealth’s case. The evidence was legally sufficient, therefore, for the trial court to find appellant guilty beyond a reasonable doubt.

For the reasons stated above, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . On appeal, appellant questions the accuracy of his BAC level because the analysis was performed approximately twenty-five hours after the sample was drawn. At trial, however, appellant’s counsel declined to question the toxicologist on the condition of appellant’s blood sample, and objected to the Commonwealth pursuing this subject on re-direct. N.T. 2/7/92 at 75. The trial court allowed the following testimony by the toxicologist who performed appellant’s BAC analysis:
      A: [W]e are mandated by all our certifications to only do tests on proper samples. If a sample is not acceptable, we will determine right on the report that this is a nonacceptable sample and that no analysis will be performed.

        Id. This Court has rejected attempts to increase the Commonwealth's burden with respect to validating test results in DUI cases. See Commonwealth v. Brown, 428 Pa.Super. 587, 631 A.2d 1014 (1993); Sullivan, 399 Pa.Super. 124, 581 A.2d 956; Commonwealth v. Kravontka, 384 Pa.Super. 346, 558 A.2d 865 (1989). Appellant’s counsel was free to “convince the [trial] court that even though a lab has state approval, the circumstances surrounding his or her test result were such that the results are not reliable.” Brown, 428 Pa.Super. at 595, 631 A.2d at 1018 (emphasis supplied). Appellant’s counsel failed to do so, and, in the absence of any specific allegation, we decline to speculate how or in what way appellant's blood sample might have been rendered inaccurate on the basis of the timing of the analysis.

      . The “implied consent” statute, 75 Pa.C.S. § 1547(c), reads, in pertinent part:

        (c) Test results admissible in evidence. — In any ... criminal proceeding ... [for] violation of section 3731, ... the amount of alcohol ... shown by chemical testing ..., which tests were conducted by qualified persons using approved equipment, shall be admissible.
      sf; s¡í sfs s¡t # ❖
      (2) Chemical tests of blood ... shall be performed by a clinical laboratory licensed and approved by the Department of Health for this purpose using procedures and equipment prescribed by the Department of Health. For purposes of blood ... testing, qualified person means an individual who is authorized to perform those chemical tests under [The Clinical Laboratory Act, 35 P.S. § 2151 et seq.]. (See also, 28 Pa.Code § 5.103).

      . At the conclusion of the Commonwealth’s case-in-chief, appellant demurred to the evidence and presented no testimony.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    648 A.2d 1227
    John C. PADEN, Appellant, v. BAKER CONCRETE CONSTRUCTION, INC., Carlson Mid-Atlantic, Inc., Sae Americon, Mid-Atlantic, Inc., and Sae America, Inc., Appellees, v. CLAREMONT PAINTING AND DECORATING, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued May 10, 1994.
    Filed Aug. 31, 1994.
    Reargument Denied Nov. 9, 1994.
    Petition for Allowance of Appeal Granted February 6, 1995.

      Thomas P. Lang & Leah B. Graff, York, for appellant. Peter J. Speaker, Harrisburg, for Baker Concrete, appellee.
    Theodore A. Adler, Harrisburg, for Carlson Mid-Atlantic, Sae Americon, Mid-Atlantic & Sae Americon, Inc., appellees.
    Dennis J. Bonetti, Harrisburg, for Claremont Painting, appellee.
    Before WIEAND, SAYLOR and CERCONE, JJ.
   WIEAND, Judge:

John C. Paden was injured when, on May 1, 1991, he fell through a hole in the second floor of a construction site. Paden filed a praecipe for summons against SAE Americon and, after being ruled to do so, a complaint in which it was alleged that Carlson Mid-Atlantic Inc. was the general contractor and SAE its parent corporation. On April 30, 1993, one day before the statute of limitations expired, Paden filed an amended complaint in which he also named as a party defendant the alleged flooring sub-contractor, Baker Concrete Construction, Inc. (Baker). This amended complaint was filed without leave of court and without the written consent of the remaining parties. Baker thereupon filed preliminary objections alleging that the amended complaint had been improperly filed, that Baker had been joined improperly, and requesting that Baker’s joinder as a party defendant be stricken. The trial court agreed, sustained the preliminary objections and struck the joinder of Baker as a party defendant. Paden appealed.

Pa.R.C.P. 1033 permits a party at any time to file an amended pleading, “either by filed consent of the adverse party or by leave of court....” Similarly, Pa.R.C.P. 2232(c), authorizes a court, “[a]t any stage of an action,” to “order the joinder of any additional person who could have joined or who could have been joined in the action and may stay all proceedings until such person had been joined.” However, the rule does not elaborate on the means by which such joinder shall be accomplished. This was observed by the Supreme Court in Lower Frederick Township v. Clemmer, 518 Pa. 313, 543 A.2d 502 (1988), when it said:

The Rules of Procedure do not contain specific provisions outlining a procedure where a plaintiff is required to add another person as a party defendant. In the absence of a mandated procedure, trial courts have adopted various methods to effect a proper joinder of an additional party under circumstances other than the traditional situation of a defendant adding an additional defendant which is covered by Rules 2251, et seq. See 7 Goodrich Amram § 2232(c):1.1, pp. 563-64. Among the methods approved by the lower courts is the kind of procedure adopted by the Township and approved by the chancellor in this case, namely, adding an additional party by petition and rule. 7 Goodrich Amram § 2232(c):1.1, supra.

Id. at 326-327, 543 A.2d at 509 (footnote omitted). However, whatever method is followed, “the plaintiff may not join additional parties after the commencement of the action without the leave of the court.” 3 Standard Pennsylvania Practice 2d, § 14:150 (footnote omitted). See also: Blume v. Western Airlines, 230 Pa.Super. 111, 326 A.2d 443 (1974); Kukich v. McNeil Laboratories, 43 D. & C.3d 373 (1986); Goodrich Amram 2d, § 2232(c):3.

This rule was not intended to benefit a party such as Baker who was joined as a party defendant in the present action. Baker, or a party similarly situated, could always have been sued in a separate action without prior leave of court. The rule, rather, was intended to protect those who were already parties to the action against delay and to permit the court to supervise the orderly progression of the action. Neither a plaintiff nor a defendant should be subjected to undue delay or other potential prejudice which may result from a change of direction caused by an unexpected amendment to join one or more additional parties.

In the instant case, it is clear that Baker could have been joined as a party defendant in Paden’s initial action. Pa.R.C.P. 2229(b). It is equally clear that a separate action against Baker, if appellant had pursued such a course, would not have been barred by the statute of limitations on April 30, 1993. Instead of these permissible courses, Paden’s lawyer elected to ignore the applicable procedural rules, run roughshod over the rules intended to guarantee orderly proceedings and play the game according to his or her own dictates. Where this has occurred, the law clearly permits a trial court to strike an amended complaint which attempts to join an additional person as a party defendant without leave of court.

However, while the trial court could exercise its discretion to dismiss the amended complaint against Baker, it could also approve the joinder nunc pro tunc and deny the motion to dismiss the action against Baker. Because of the unusual circumstances of this case, the court was required to weigh the consequences of its decision for the several parties. In this case, the trial court denied the joinder. It is now for this reviewing court to determine whether the trial court abused its discretion.

The record discloses not one iota of prejudice to any of the original parties to the action from the joinder of Baker as a party defendant. There is no suggestion that the joinder of Baker as a party defendant would prolong the action unreasonably or render the action unnecessarily complex or unmanageable. Baker, of course, objects to the joinder because it does not wish to be sued, although this is hardly a consideration sufficient to prevent joinder if the joinder is otherwise proper. The trial court dismissed the joinder solely because the rule requiring prior court approval had been violated. It did so without considering the consequences its decision would have on the parties.

By striking the joinder of Baker, the court caused serious prejudice to the plaintiff who, because of the erroneous procedure adopted by his lawyer, will never be able to assert a claim against Baker. Baker was sued within the period allowed by the statute of limitations, and immediate notice was given to Baker by prompt service. Thus, a substantively proper party defendant was joined and made a party within the time allowed by the applicable statute of limitations. Although substantively proper, the joinder was procedurally defective because of the failure of plaintiffs counsel to seek court approval which, under the circumstances of this case, would in all likelihood have been granted.

Under these circumstances, we are constrained to conclude that it was an abuse of discretion to strike the joinder and thereby forever bar the assertion of Paden’s cause of action against Baker. The trial court should have followed the advice of Pa.R.C.P. 126, which sagely teaches that “[t]he court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.”

Reversed and remanded for a determination of Baker’s remaining preliminary objections and for such further proceedings as may be consistent with the foregoing opinion. Jurisdiction is not retained.

      . SAE was designated in the pleadings under three different corporate names.

      . The trial court, having stricken the amended complaint, did not decide Baker’s preliminary objections in the nature of a demurrer.

      . This general authorization is subject to the limitation that a party defendant cannot be joined after plaintiff’s action against said defendant has been barred by the statute of limitations. See: Goodrich Amram 2d, § 2232(c):7; 3 Standard Pennsylvania Practice 2d, § 14:151.


author: HUDOCK, Judge:

text:
    649 A.2d 129
    COMMONWEALTH of Pennsylvania, Appellee, v. Robert C. OWENS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 22, 1994.
    Filed Oct. 13, 1994.

      David Crowley, Bellefonte, for appellant.
    Mark S. Smith, Asst. Dist. Atty., Bellefonte, for Com., appellee.

      Before ROWLEY, President Judge, and HUDOCK and SAYLOR, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed after Appellant was convicted in a jury trial of two counts of indecent assault. Timely filed post-trial motions were denied and Appellant was sentenced to concurrent terms of not less than six months nor more than one year for the first count, and not less than one year nor more than two years for the second count of indecent assault. This direct appeal followed. We affirm the Appellant’s convictions, but vacate the judgment of sentence on Count I, and affirm the judgment of sentence of Count II.

The record sets forth the following relevant facts: On January 29, 1991, Trooper Robert Snook of the Pennsylvania State Police filed an affidavit of probable cause alleging that on several occasions, between October and November of 1990, Appellant indecently assaulted his thirteen-year-old paper boy. Based on Trooper Snook’s affidavit, Magistrate Robert A. Shoff found sufficient probable cause to issue a warrant for Appellant’s arrest. Following a preliminary hearing on February 27,1991, before Magistrate Ronald J. Horner, Appellant was held for trial on two counts of indecent assault and released on a $2,500 bond. The Commonwealth filed a criminal information on March 21, 1991, charging that “between September and November 1990”, Appellant had indecent contact with the victim who was under fourteen years of age. The information listed two separate counts of indecent assault and cited three subsections of the indecent assault statute, 18 Pa.C.S. Section 3126, as alternative bases of liability. Count I alleged that 1) the victim did not consent to such indecent contact; and, 2) Appellant knew that the victim suffered from a mental disease or defect which rendered him incapable of appraising the nature of his conduct. Count II alleged that Appellant had indecent contact with the victim who was under fourteen years of age. On May 5, 1992, a jury convicted Appellant of both counts of indecent assault. Appellant filed a post-trial motion in arrest of judgment, as well as a supplemental motion for a new trial, arguing that he found new evidence that Magistrate Robert A. Shoff had a personal family relationship with the victim, thus warranting a new trial. An evidentiary hearing was held on March 23, 1993 to determine if Appellant was entitled to a new trial based on the claim that Magistrate Shoffs son, Scott Shoff, lived with the victim’s mother, Joanne May Ertwine. On July 1, 1993, the trial court denied Appellant’s post-trial motion and motion for a new trial.

Appellant asserts the following issues for our review:

I. WAS THE VERDICT AGAINST THE EVIDENCE AND THE WEIGHT OF THE EVIDENCE?
II. DID THE FAMILY AND PERSONAL SITUATION OF MAGISTRATE SHOFF, VIS-A-VIS THE ALLEGED VICTIM AND HIS MOTHER, INVOLVE A VIOLATION OF APPELLANT’S RIGHTS TO HAVE THE EXISTENCE OF PROBABLE CAUSE BE DECIDED BY A NEUTRAL AND DETACHED MAGISTRATE?
III. DID THE TRIAL COURT ERR IN LIMITING APPELLANT TO THREE (3) REPUTATION WITNESSES?
IV. DID THE TRIAL COURT ERR IN CHARGING THE JURY, AS REQUESTED BY THE COMMONWEALTH, THAT CONSENT IS NO DEFENSE TO A SEXUAL ASSAULT?
V. WAS THE IMPOSITION OF TWO (2) CONCURRENT SENTENCES FOR CONVICTIONS OF DIFFERENT SUBSECTIONS OF THE INDECENT ASSAULT STATUTE AN ILLEGAL SENTENCE?

Appellant first alleges that the verdict was against the weight and the sufficiency of the evidence. Although Appellant addresses this question as one issue for review, Appellant has raised two separate issues. We will first address Appellant’s claim that there was insufficient evidence to sustain the guilty verdict.

In reviewing a challenge to the sufficiency of the evidence, we must determine “whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth [as verdict-winner], the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. den., 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). The facts and circumstances established by the Commonwealth “need not be absolutely incompatible with defendant’s innocence, but the question of any doubt is for the jury unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977) (quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943)).

Appellant claims that the Commonwealth failed to produce sufficient evidence to prove beyond a reasonable doubt that he indecently assaulted the purported victim. Appellant claims that the victim’s testimony is unreliable due to the fact that he suffers from a brain stem injury and exhibits apparent learning difficulties. Appellant contends that the victim was “quite confused” when subject to direct examination. Appellant’s Brief, at p. 16. Appellant implies that the victim may have confused him with another criminal defendant, Mr. Thomas Schnars. The record reveals that on December 17, 1990, Mr. Schnars entered a plea of guilty and was sentenced to jail for involuntary deviate sexual intercourse involving the same young boy who is the alleged victim in this case. Furthermore, Appellant argues that the direct testimony of the victim’s mother, Joanne May Ertwine, and Trooper Robert Snook reveals that the victim had difficulty clearly describing the alleged acts of indecent contact which led to Appellant’s arrest and subsequent conviction. Appellant argues that even if the victim was found competent to testify by the trial judge, the factfinder is not free to believe all of his allegations and accusations. He submits that “competence to testify does not end all inquiry ...” Appellant’s Brief, at p. 20.

Appellant is correct in his assertion that a witness’ competency to testify is a separate issue from the witness’ credibility. “[I]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.” Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). Contrary to Appellant’s assertion, once a witness is adjudicated competent to testify, the factfinder is free to believe all of his testimony, despite the fact that the witness has difficulty communicating or suffers from a learning disability.

Upon review, the record reveals sufficient evidence to sustain Appellant’s conviction of indecent assault. The victim testified that on several occasions Appellant touched and rubbed his “private area” without permission. N.T., 5/5/92, at p. 7. Contrary to Appellant’s belief that the victim falsely accused him for acts that Thomas Schnars committed, he made it explicitly clear that he was not confusing the two men and the two criminal acts. The record reveals the following exchange during redirect examination of the victim.

THE COURT: ... as you remember what happened with Mr. [Schnars] and you have testified to what happened with [Appellant] you’re sure that there were different things that happened, some things by Mr. [Schnars] and some by [Appellant]?
[VICTIM]: Yeah.
THE COURT: Now think very carefully.
[VICTIM]: They did two different things. He did a little different. He didn’t do the same things the other one did.

N.T., 5/5/92, at p. 24.

The record reflects that the victim and Appellant gave conflicting versions of what occurred when the victim delivered the newspaper to Appellant’s house. The victim accused Appellant of making indecent contact with his genitals, while Appellant denied any criminal acts. The jury was free to believe either witness’ account of the story. On appeal we may not disturb it’s determination as to credibility. Commonwealth v. Payton, 258 Pa.Super. 140, 145-47, 392 A.2d 723, 726 (1978). Furthermore, in a prosecution for sex offenses, a guilty verdict may rest on the uncorroborated testimony of the victim. 18 Pa.C.S. § 3106; Commonwealth v. Cody, 401 Pa.Super. 85, 89, 584 A.2d 992, 993 (1991), alloc. den., 527 Pa. 622, 592 A.2d 42.

We next examine Appellant’s claim that the verdict was against the weight of the evidence. A motion for a new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict. It contends, nevertheless, that the verdict is against the weight of the evidence. Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984). The trial judge has discretion to grant a new trial on this basis, and his decision will not be reversed on appeal “unless there has been an abuse of discretion.” Id. A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Commonwealth v. Murray, 408 Pa.Super. 435, 436-37, 597 A.2d 111, 112 (1991), alloc. den., 529 Pa. 668, 605 A.2d 333 (1992).

Applying these standards to the instant case, we cannot conclude that Appellant’s guilty verdict shocks one’s sense of justice such that it is against the weight of the evidence. The record supports the jury’s finding of guilt.

We will next address Appellant’s claim that he was denied due process because the district magistrate who determined that there was probable cause to arrest Appellant was not “neutral and detached.” Appellant alleges:

the Magistrate had a son with a long-term relationship with the victim’s mother and the Magistrate participated in that relationship to the extent of being family with the boy and his mother.

Appellant’s Brief, at p. 31. Appellant claims that the close association between the magistrate’s son, Scott Shoff, and the victim disqualified Magistrate Shoff from participating in Appellant’s case. Appellant contends that as a result of Magistrate ShofPs personal relationship with the victim, we must “set the legal process back to the point where the problem of the lack of a neutral Magistrate occurred and send the legal process forward from that point.” Appellant’s Brief, at p. 31.

The trial court held an evidentiary hearing on March 23, 1992, after the trial court entered its verdict, to determine the nature of the relationship between Magistrate Shoff and the victim. However, the court did not address the issue of whether Magistrate Shoff was “neutral and detached” in' its opinion. Rather, it summarily dismissed Appellant’s claim as “without merit.” Trial Court Opinion, 7/1/93, at p. 5. The trial court cited Commonwealth v. Tyler, 402 Pa.Super. 429, 433, 587 A.2d 326, 328 (1991), for the proposition that “[o]nce appellant has gone to trial and been found guilty of the crime, any defect in the preliminary hearing is rendered immaterial[.]” In that case, the appellant, Terry Tyler, appealed from a judgment of sentence entered after a jury found him guilty of possession and delivery of a controlled substance. The appellant claimed that his preliminary hearing was constitutionally inadequate because the Commonwealth established its prima facie case by the hearsay testimony of a confidential police informant. This Court rejected the appellant’s claim and held that “[sjince the Commonwealth met its burden of proving appellant guilty beyond a reasonable doubt at trial, even if the Commonwealth had failed to establish a prima facie case at the preliminary hearing, it is immaterial.” Id. (citations omitted).

In the case sub judice, Appellant does not claim that his preliminary hearing was defective. He alleges that the magistrate who approved the arrest warrant was not “neutral and detached” as required by the Fourth and Fourteenth Amendments of the United States Constitution. However, the analysis set forth in Tyler is applicable to Appellant’s case. Even if we were to assume that Magistrate Shoff was not “neutral and detached”, which is arguable based on the record, this does not guarantee that Appellant is entitled to a new trial.

In Commonwealth v. Murray, 348 Pa.Super. 439, 502 A.2d 624 (1985), alloc. den., 514 Pa. 642, 523 A.2d 1131 (1987), this Court examined a similar issue. In that case the appellant argued that it was reversible error for the trial judge to permit his preliminary hearing to be held in the Holmesburg State Correctional Institution and not in a courtroom open to the public. The appellant argued that the closed preliminary hearing violated his due process rights and his right to a public.trial under the Sixth Amendment of the United States Constitution and Article One, Sections 9 and 11 of the Pennsylvania Constitution. This Court agreed that the trial court improperly closed the preliminary hearing. However, we did not agree that this necessitated a new trial since, “the remedy must be closely fashioned to suit the harm.” Murray, 348 Pa.Super. 451, 502 A.2d at 630 (citing Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)). Before a remedy was fashioned in Murray, we first had to determine if “the error was cured at the trial which followed the preliminary hearing.” Id. at 629. Despite the violation of the appellant’s sixth amendment right to a public trial, we held that ordering a new trial would be an “empty and futile” remedy. Id. at 348 Pa.Super. 451, 502 A.2d 630. We explained:

Logically, a new preliminary hearing is foolish once the evidentiary trial is completed without reversible error____ We see no reason to believe that the constitutional infirmity of the preliminary hearing infected the remainder of the trial.

Id.

The analysis in Tyler and Murray applies to defeat Appellant’s argument that we must “set the legal process back” to the point prior to when Magistrate Shoff approved the warrant for his arrest. Any harm that Appellant may have suffered as a result of Magistrate Shoff s personal relationship with the victim and the victim’s mother was cured at the subsequent preliminary hearing and jury trial. Appellant does not assert that he did not receive a full, fair and impartial trial. The only involvement Magistrate Shoff had with Appellant’s case was at the initial stage of issuing an arrest warrant. Magistrate Shoff did not preside at the preliminary hearing or the jury trial. Furthermore, the jury, acting as factfinder, evaluated the testimony, assessed the credibility of the witnesses, and determined that Appellant was guilty as charged. Once the guilty verdict was entered, Appellant’s argument that Magistrate Shoff should have been disqualified becomes moot.

Appellant’s next argument involves the number of reputation witnesses that he was permitted to call at trial. Appellant argues that by limiting him to three reputation witnesses, he “was injured in that he could not show the full scope of his good reputation in the community of his residence and the jury could possibly thereby draw adverse inferences as to the nature of his reputation.” Appellant’s Brief, at p. 22.

Before any evidence is admissible in a criminal proceeding, it must be competent and relevant. Commonwealth v. Davis, 381 Pa.Super. 483, 491, 554 A.2d 104, 108 (1989), alloc. den., 524 Pa. 617, 571 A.2d 380. As far as relevancy is concerned, the admissibility of evidence is a matter left to the sound discretion of the trial court. It may only be reversed on appeal if the trial court abused its discretion. Id. “The decision whether or not to admit evidence which, though relevant, is merely corroborative of other substantive evidence requires a balancing test.” Id. “Corroborative evidence may be excluded if its probative value is outweighed by its potential prejudicial effect,” including the needless repetition of cumulative evidence. Id.

The record reveals that Appellant called three witnesses who all attested to his reputation in the community as a peaceful, law abiding citizen. In fact, one of Appellant’s character witnesses was a retired minister from the Philips-burg Presbyterian Church. Appellant has failed to demonstrate that he was prepared to present additional witnesses to attest to his good reputation. Appellant has not made an offer of proof specifying which additional witnesses he would have called and what their testimony would have revealed. Furthermore, any additional reputation evidence would have been cumulative. Therefore, we do not find that the trial court abused its discretion in limiting Appellant to three reputation witnesses.

Next we examine Appellant’s argument that the trial court erred when it charged the jury that consent is not a defense to a sexual assault. Appellant claims that because he never raised the defense of consent at trial, it was error to charge the jury on such issue. Appellant relies on Commonwealth v. Tervalon, 463 Pa. 581, 345 A.2d 671 (1975), for the proposition that “[a] trial court is not obliged to instruct a jury upon legal principles which have no applicability to the presented facts. There must be some relationship between the law upon which an instruction is required and the evidence presented at trial.” Id. 345 A.2d at 678.

To determine whether the trial court erred in instructing the jury, we must read the jury instructions in their entirety. Jistarri v. Nappi 378 Pa.Super. 583, 588, 549 A.2d 210, 213 (1988). We will not rigidly inspect a jury charge, finding reversible error for every technical inaccuracy, but rather evaluate whether the charge sufficiently and accurately appraises a lay jury of the law it must consider in rendering its decision. Commonwealth v. Prosdocimo, 525 Pa. 147, 149-50, 578 A.2d 1273, 1274 (1990). To constitute reversible error, a jury instruction must be shown to have been not only erroneous, but also harmful to appellant. Jistarri v. Nappi, 378 Pa.Super. 589, 549 A.2d at 213. Furthermore, if a charge is wholly inadequate or unclear, or if it has a tendency to mislead and confuse rather than to clarify issues, a new trial will be granted. Id.

In his charge to the jury the trial judge stated:

With regard to the second count, indecent assault, [victim] under [fourteen], the consent of the victim is not a defense. So because of the ages here of the parties, if [victim], even if you found he consented to an indecent contact that would not be a defense in this charge.

Charge of the Court, 5/5/92, at p. 14.

The trial court rejected Appellant’s contention that the issue of victim’s consent was not applicable to his case. The trial court believed the charge was proper “since the jury might otherwise mistakenly believed [sic] that consent was a defense [to sexual assault when the victim is under fourteen years of age].” Trial Court Opinion, 7/1/93, at p. 5. We agree. In his charge to the jury, the trial judge explained that in order to find Appellant guilty of Count I, indecent assault without consent, they must find that four elements were proven beyond a reasonable doubt. One of these elements was lack of consent by the victim. Once the jury heard that lack of consent was an element of Count I, it is possible that they would mistakenly assume that consent is also an element of Count II, indecent assault where the victim is under fourteen. The trial judge’s instruction was necessary to avoid this mistaken assumption. The trial judge was not introducing a novel defense for Appellant by clarifying to the jury that lack of the victim’s consent was not an element of Count II. Examining the jury instructions in their entirety, we do not believe that the instruction regarding consent misled or confused the jury. Therefore, we find that the trial court did not commit an error by instructing the jury on the defense of consent.

Finally, Appellant argues that the trial court imposed an illegal sentence when it sentenced him to a separate term of imprisonment for each count of the criminal information. The information delineated two separate counts of indecent assault, but listed three subsections of the indecent assault statute as possible grounds for liability. In the charge to the jury and verdict slip, the trial judge delineated the two counts as “indecent assault without consent” and “indecent assault, [victim] under [fourteen].” Jury Charge, 5/5/92, at p. 10. We must determine whether the Commonwealth properly charged Appellant with two separate offenses of indecent assault which may be separately punished, or whether the Commonwealth charged Appellant with one criminal offense subject to one punishment.

If a trial court imposes an illegal sentence, we must correct that sentence sua sponte. Commonwealth v. Lee, 432 Pa.Super. 414, 420, 638 A.2d 1006, 1009 (1994). Appellant’s claim that he has been subject to duplicative sentences stems from the Double Jeopardy Clause of the United States Constitution. This clause prohibits the Commonwealth from punishing an accused twice for the same offense. Commonwealth v. Walker, 468 Pa. 323, 331, 362 A.2d 227, 231 (1976). An individual may only be punished once for a single act which causes a single injury to the Commonwealth. The Supreme Court of Pennsylvania explained:

[T]he criminal prosecution is for the injury done to the Commonwealth, and not for the injury done to the individual who may, if entitled, obtain redress through a civil action. Where there is but one act of cause of injury, ..., there is but one injury to the Commonwealth, but where the acts or causes áre separate, they are separate injuries to the peace and dignity of the Commonwealth.

Id. 332, 362 A.2d at 231 (citations omitted).

In order to support two criminal sentences, Appellant’s conduct must constitute two separate offenses or injuries to the Commonwealth. To determine the number of injuries the Commonwealth suffered as a result of Appellant’s criminal conduct, we will examine the words of the indecent assault statute. The relevant statute provides:

§ 3126. Indecent Assault
(a) Offense defined. — A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him, is guilty of indecent assault if:
(1) he does so without the consent of the other person;
(2) he knows that the other person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct;
(3) he knows that the other person is unaware that [an] indecent contact is being committed;
(4) he has substantially impaired the other person’s power to appraise or control his or her conduct by administering or employing, without the knowledge of the other drugs, intoxicants or other means for the purpose of preventing resistance;
(5) the other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him; or
(6) he is over 18 years of age and the other person is under 14 years of age.
(b) Grading. — Indecent assault under subsection (a)(6) is a misdemeanor of the first degree. Otherwise, indecent assault is a misdemeanor of the second degree.

18 Pa.C.S. § 3126.

By using the word “or” after subsection (a)(5), it is clear that the legislature contemplated six alternative bases of liability for one harm to the Commonwealth — indecent assault. If an individual violates subsection (a)(6), as opposed to one of the other five subsections of the statute, he may be subject to increased punishment since the legislature classified that subsection as a misdemeanor of the first degree. Even though subsection (a)(6) is a misdemeanor of the first degree, it does not proscribe a distinct crime separate from the other subsections of the indecent assault statute.

The Supreme Court of Pennsylvania applied a similar analysis in Commonwealth v. Shannon, 530 Pa. 279, 608 A.2d 1020 (1992). In that case, Henry A. Shannon was convicted of rape and two counts of involuntary deviate sexual intercourse (IDSI), 18 Pa.C.S. § 3123. Shannon was sentenced to a term of ten to twenty years imprisonment on the rape count, a concurrent term of five to twenty years imprisonment on the first count of IDSI, and ten years probation on the second count of IDSI, which was to commence following the prison sentence. On appeal, the issue presented was, “whether the imposition of separate sentences for convictions on subsections (2) and (5) of 18 Pa.C.S. § 3128 arising from a single act constitutes an illegal sentence.” Id. 282, 608 A.2d at 1021. Our Supreme Court relied on the plain meaning of the statute and observed that the statutory framework provided for alternative means of establishing a single injury. In a plurality opinion, (per opinion of Zappala, J., joined by one Justice with two Justices concurring in result, one Justice dissenting on the sentencing issue, and one Justice not participating), our Supreme Court held, “[t]he imposition of separate sentence for the two counts of [IDSI] arising from a single act was beyond the authority of the trial court.” Id. 287, 608 A.2d at 1024. The Court explained:

We glean from this examination that the fair import of the statute’s terms including its five subsections 18 Pa.C.S. § 3123 reveals a design to proscribe the same harm, involuntary deviate sexual intercourse. Therefore each subsection of the statute provides an alternative basis upon which the crime can be established.

Id. The Court stated that its conclusion was based on the operative word “or” found between subsection (4) and (5). Id.

This Court adopted the analysis used in Shannon when we interpreted the simple assault statute, 18 Pa.C.S. § 2701, in Commonwealth v. Rhoads, 431 Pa.Super. 437, 636 A.2d 1166 (1994). In Rhoads, the appellant was charged and convicted of two subsections of the simple assault statute, 18 Pa.C.S. §§ 2701(a)(1) and (a)(2). After the original sentence was vacated, the trial court' resentenced the appellant to two consecutive periods of incarceration of one to two years for the two different subsections of the simple assault statute. On appeal, this Court vacated the two sentences and held, “[t]he imposition of separate sentences for the two counts of simple assault arising from a single act was an illegal sentence.” Id. 443, 636 A.2d at 1169. Again, the use of the disjunctive “or” within the framework of the simple assault statute suggested that the “legislature intended each separate subsection to establish an alternative basis for culpability rather than each representing the commission of a separate crime for sentencing purposes.” Id. 441, 636 A.2d at 1168. (See also Commonwealth v. Lee, supra, imposition of two sentences for one act of penile penetration was illegal under the double jeopardy clause).

An important distinction must be made before we apply the analysis in Shannon and Rhoads to the present case. Both of those cases involve a single criminal episode. In the instant case, the victim testified that Appellant touched him on approximately ten different occasions. Despite this testimony, the Commonwealth did not specify separate acts of indecent assault in its information. Instead, the information generally charged Appellant with indecent assault between September and November of 1990. The Commonwealth listed three of the subsections of the indecent assault statute as alternative bases of liability, not as separate instances of criminal activity. If each criminal offense is separately charged, each may be separately punished. Commonwealth v. Hitchcock, 523 Pa. 248, 251, 565 A.2d 1159, 1161 (1989). Because the Commonwealth failed to specify separate instances of indecent assault in the information, we find that the rationale of Shannon and Rhoads applies. Therefore, Appellant may only be sentenced for one episode of indecent assault.

The fact that the two sentences were imposed concurrently does not cure the fact that they were illegal. There is no question that concurrent sentences are “cumulative” for purposes of the double jeopardy clause. Commonwealth v. Lee, 432 Pa.Super. 420, 638 A.2d at 1009 n. 3.

Where a correction of sentence is needed, this Court has the option of amending the sentence directly or remanding to the lower court for resentencing. Commonwealth v. Vazquez, 328 Pa.Super. 86, 92, 476 A.2d 466, 469 (1984). We will not remand for resentencing since the sentences in this case are to run concurrently. Instead, we merely vacate the sentence for Count I.

Appellant’s convictions are affirmed. The judgment of sentence for Count I is, vacated. The judgment of sentence for Count II is affirmed.

      . 18 Pa.C.S. § 3126.

      . 18 Pa.C.S. § 3126(a)(1).

      . 18 Pa.C.S. § 3126(a)(2).

      . 18 Pa.C.S. § 3126(a)(6).

      . In Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), the Supreme Court of the United States held that an illegal arrest or detention does not void a subsequent conviction. In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Supreme Court of the United States reaffirmed that rule and held that although a suspect who is presently detained may challenge the probable cause for that confinement, he may not have his conviction vacated on the ground that he was detained pending trial without a determination of probable cause.

      . Appellant claims that he was unaware of the relationship between Magistrate Shoff and the victim until after his guilty verdict was entered. Therefore, he argues that he could not have waived this issue. This fact does not change our analysis that once Appellant received a fair and impartial trial, any alleged defect in the issuing of an arrest warrant is moot.

      . See also United States v. Baysek, 212 F.2d 446 (3rd Cir.1954) (the limitation of witnesses whose testimony will be cumulative of that already received is a matter within the sound discretion of the trial judge).

      . We recognize that in order to preserve for appellate review a claim that the trial judge erred in his instructions to the jury, a party must specifically object to the charge when it is given at trial. “Failure to do so results in a waiver of any claim of error in the charge.” Painter v. Pennsylvania Electric Company, 368 Pa.Super. 334, 336, 534 A.2d 110, 111 (1987), alloc. den., 520 Pa. 576, 549 A.2d 136 (1988). In this case, Appellant alleges that his trial counsel was ineffective for failing to object at trial to the judge’s instruction regarding consent as a defense. Because Appellant has framed it as an ineffective assistance claim, we will consider the merits of his claim.

      . The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states via the Fourteenth Amendment, provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb.” Commonwealth v. Adams, 296 Pa.Super. 24, 28, 442 A.2d 277, 279 (1982) (quoting Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)).

      . We note that Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984), purported to overrule Walker to the extent that it applied to cases where a single criminal act affects multiple victims. Because there is only one victim in this case, the above-quoted language from Walker is still binding precedent. See, Commonwealth v. Lee, supra.


author: OLSZEWSKI, Judge.

text:
    649 A.2d 139
    COMMONWEALTH of Pennsylvania v. Donald Lawrence GAERTTNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 15, 1994.
    Filed Oct. 18, 1994.

      Donald L. Gaerttner, pro se.
    William A. Dopierala, Asst. Dist. Atty., Erie, for Com., appellee.
    Before WIEAND, OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge.

Donald Gaerttner appeals the denial of his petition for post-trial relief. In 1979 Gaerttner, who was in his forties, committed several sex crimes against a twelve-year-old girl, [P.D.]. In 1980 a jury acquitted Gaerttner of the one rape charge, but convicted him on all other counts: promoting prostitution, indecent assault, sexual abuse, and corrupting the morals of a minor. Sentencing was delayed until 1982, and new counsel was appointed. The trial court considered Gaerttner’s admittedly extensive criminal history, and imposed the statutory maximum sentence — 18 to 36 years.

New counsel was again appointed for Gaerttner’s direct appeal to this Court. Gaerttner raised nineteen claims of error, including numerous allegations that his trial counsel were ineffective. A panel of this Court affirmed the judgment of sentence in an extremely detailed memorandum decision. See appellee’s brief at A-7. Our Supreme Court declined review.

Gaerttner then raised the same allegations of error in federal habeas corpus petition. Because almost all of his claims had been litigated and disposed of on direct appeal, his petition was eventually denied. See Magistrate’s Report and Recommendation, appellee’s brief exhibit B. The only new claim Gaerttner raised in his habeas petition was that he received a disproportionately long sentence. The federal court considered this a cognizable habeas claim, but dismissed it because Gaerttner had not yet litigated it in the Pennsylvania courts. Id. at B-8 and B-9.

Gaerttner next brought this petition for post-conviction relief, once again raising all of the same allegations as before. Appointed counsel, attorney William Hathaway, wrote a Finley no-merit letter stating that all of Gaerttner’s claims had been either previously litigated or waived. Appellee’s brief at A-l and A-2. The trial court agreed, granted counsel’s petition to withdraw, and dismissed Gaerttner’s PCRA petition without an evidentiary hearing. This appeal followed.

Because his court-appointed counsel was granted permission to withdraw, Gaerttner has filed an enormous pro se brief with this Court to support his PCRA appeal. It reiterates every allegation ever raised in his case, which he has been litigating for almost 15 years now. It is a considerable task simply to read through it in order to identify which claims have been previously litigated — a task that Gaerttner’s appointed counsel was apparently not up to.

Hathaway’s two-page Finley letter does not make any attempt to list, or even categorize, Gaerttner’s numerous and varied claims. It merely states that all his ineffectiveness of trial counsel claims have been previously litigated or waived. See appellee’s brief at A-2. We would not fault counsel for grouping many of Gaerttner’s claims together for easier disposition, since it is obvious that most of them have been dealt with before. Still, we cannot pretend that Hathaway’s letter even comes close to meeting the requirements for withdrawal set forth in Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). Finley requires counsel to list each issue the petitioner wishes to have reviewed, and explain why the issue is meritless. Id. at 393, 550 A.2d at 215. Hathaway’s purported Finley letter makes no attempt to list, explain, structure or elucidate any of Gaerttner’s myriad claims. Instead of researching his client’s lengthy case, counsel simply punted.

We, however, have taken the time to study Gaerttner’s pro se brief, and separate the wheat of cognizable claims from the previously litigated chaff. Our independent review satisfies us that none of Gaerttner’s claims have merit, so we -will affirm the trial court’s order despite counsel’s failure to present his client’s case.

I.

The bulk of Gaerttner’s 53-page brief is devoted to sentencing issues (pp. 9-21), the allegedly ineffective assistance of his trial counsel (pp. 23-38), and other alleged pre-trial and trial errors concerning district justices, bias, publicity and venue (pp. 40-50). After a careful review of the record, we find that all of these claims have been either previously litigated or are not cognizable under the PCRA.

Gaerttner raised 19 claims of error in his direct appeal, many alleging ineffective assistance of trial counsel. We agree with the Finley letter’s summary conclusion that all claims of ineffective assistance of trial counsel have been previously litigated or waived by this point, since they should have been raised on direct appeal by Gaerttner’s new counsel. See 42 Pa.C.S.A. §§ 9543(a)(3)(iii), 9544(a) and (b); Commonwealth v. Tanner, 410 Pa.Super. 398, 600 A.2d 201 (1991), alloc. denied, 530 Pa. 654, 608 A.2d 29 (1992).

The claims regarding Gaerttner’s sentence are not cognizable under the PCRA, because they do not challenge the sentence’s legality or involve the truth-determining process. 42 Pa.C.S.A. § 9543(a)(2); Commonwealth v. Lewis, 430 Pa.Super. 336, 634 A.2d 633 (1993). The alleged errors at the preliminary hearing are also not cognizable. Commonwealth v. Bond, 428 Pa.Super. 344, 630 A.2d 1281 (1993). The four pages devoted to [P.D.]’s bias were matters which the jury considered and resolved against Gaerttner. The remaining allegations about pre-trial publicity and venue were addressed by this Court in Gaerttner’s direct appeal, so we need not reconsider them. See appellee’s brief at A-8, 9.

Having grouped Gaerttner’s old and unreviewable claims together and addressed them, we may now turn our attention to the few cognizable issues Gaerttner presents.

II.

Page 22 of Gaerttner’s brief alleges that he has been keeping track of similarly situated criminal defendants, and they all have received much shorter sentences than himself. Gaerttner is apparently alleging that his disproportionately heavy sentence (the statutory maximum) constitutes a violation of equal protection. The federal court which dismissed Gaerttner’s habeas petition noted that this was a cognizable habeas claim, but dismissed it nonetheless because it had not yet been litigated in a state court proceeding. See appellee’s brief at B-8, B-9. This claim is cognizable under the PCRA, since it alleges a violation of the Constitution which could require the granting of federal habeas corpus relief to a state prisoner. 42 Pa.C.S.A. § 9543(a)(2)(v).

Gaerttner does not document his claim. Moreover, Gaerttner concedes that his case is not exactly like any other case which he has studied in terms of the “severity and repetitiveness of the crimes committed.” Our review of the record leaves no doubt that the reason Gaerttner was given such a long sentence was because of his exceptionally long rap sheet, and peculiar involvement with child pornography. See sentencing transcript, 1/18/82 at 33^5. Thus, Gaerttner’s punishment was tailored to fit his admittedly unique crimes and criminal history; we see no equal protection violation.

III.

Gaerttner alleges his sentencing and appellate counsel were ineffective for failing to adequately present his claim that the sentencing court relied on an inaccurate pre-sentence report. This Court’s decision on direct appeal only briefly mentioned the underlying issue, noting that it had not been adequately developed. See appellee’s brief at A-26. Thus, this allegation of appellate counsel’s ineffectiveness has not been previously litigated.

The claim, however, lacks merit. Gaerttner challenged the accuracy of his pre-sentence report during his sentencing hearing. Gaerttner’s only claim was that some of the prior convictions listed duplicated each other. The trial court gave him an opportunity to point out which priors were redundant, and accepted his corrections. N.T. 1/18/82 at 37-42. Then to sum up, the trial court confirmed that even as corrected, the pre-sentence report showed that Gaerttner had been steadily involved in crime since 1953. Gaerttner conceded that this was true. Id. at 43. Counsel will not be found ineffective for failing to pursue a meritless claim. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

IV.

This leaves us with the first dozen pages of Gaerttner’s brief to consider. The first six pages are generalizations, claiming that the entirety of the process was defective. Our general impression after reviewing Gaerttner’s brief and record is that there has been no miscarriage of justice. Thus, we look to specific, supported claims of error. Gaerttner gives us two.

He claims that the PCRA court judge who accepted Hathaway’s Finley letter and dismissed his petition should have recused herself, because she had filed some documents as a County Solicitor in a civil case Gaerttner brought eight years ago. Judge Domitrovich could have ruled on Gaerttner’s motion for recusal herself; but to avoid any possible appearance of impropriety, she asked another Erie County judge, the Honorable Jess Jiuliante, to consider the motion. Judge Jiuliante found that Judge Domitrovich could be fair and impartial in this matter, and denied the recusal motion. Gaerttner offers us no reason why Judge Domitrovich’s limited prior court contact with Gaerttner should mandate recusal. Hence, we can find no abuse of discretion in Judge Domitrovich’s decision to adjudicate Gaerttner’s PCRA petition.

Gaerttner also claims that his appointed PCRA counsel, William Hathaway, did absolutely nothing for him: he did not amend Gaerttner’s PCRA petition, review his case files, or discuss the case, but instead filed his Finley letter and motion to withdraw just a few days after being appointed. Gaerttner therefore argues that his case should be remanded because he was essentially denied his right to appointed counsel for his first PCRA petition.

We cannot accept Gaerttner’s claim that his case falls under the rule of Commonwealth v. Tunnicliff, 402 Pa.Super. 294, 586 A.2d 976 (1991) (first time PCRA petitioner had right to appointed counsel; dismissing petition as meritless without appointing counsel was improper). Here, the court did appoint counsel. Rather, we would characterize Gaerttner’s claim, as one of ineffectiveness of his PCRA counsel, a claim which he properly raises in this appeal.

As we noted at the outset, Hathaway’s letter to the court and petition to withdraw fall considerably short of the requirements of Commonwealth v. Finley, supra. We could have thus vacated the lower court’s order granting Hathaway permission to withdraw, and remanded this case with instructions to comply with Finley or file an advocate’s brief. We need not make such a de facto finding of ineffectiveness, though, because Hathaway’s failure clearly did not prejudice Gaerttner. See Pierce, supra. Our review of Gaerttner’s arguments and the available record amply convince us that he can present no claim which would entitle him to post-conviction relief. We therefore affirm the lower court’s order denying Gaerttner’s petition without an evidentiary hearing.

Affirmed.


author: HOFFMAN, Judge:

text:
    649 A.2d 143
    COMMONWEALTH of Pennsylvania v. Jose MARTINEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 11, 1994.
    Filed Oct. 26, 1994.

      John H. Moore, Erie, for appellant.
    Bradley H. Foulk, Asst. Dist. Atty., Erie, for Com., appellee.
    Before OLSZEWSKI, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the January 10, 1994 judgment of sentence for possession of cocaine with intent to deliver and criminal conspiracy. Appellant, Jose Martinez, presents the following issues for our review:

I. Whether the trial court erred in refusing appellant’s timely motion to suppress physical evidence?
II. Whether the trial court erred in refusing appellant’s motion to suppress statements made by appellant at the time of his arrest?

Appellant’s Brief at iv. For the following reasons, we affirm.

On April 15, 1993, Trooper Anthony Bozich of the Pennsylvania State Police applied for a search warrant for the second floor of a two family home at 304 E. 7th Street in Erie, Pennsylvania. A brief summary of his affidavit is as follows:

1. Your affiant, Trooper Anthony Bozich, has been a police officer for the last twelve and one half years. I am currently assigned to the Pennsylvania State Police Bureau of Drug Law Enforcement Region VII, and have held this position for over ten years.
2. On March 5, 1993, I received information from a confidential informant, who I have previously known to be reliable, that an individual who the informant knows to be a cocaine trafficker in Erie, PA, told the informant that he intended to use a residence at 304 E. 7th Street as a “stash house.”
3. A “stash house” is a residence whose purpose is to secrete and store drugs or money. Stash houses are sometimes vacant or occupied only part time. Efforts are made not to call attention to the residence usually by keeping traffic in and out of the residence to a minimum.
4. On March 31, 1993, I was told by the same confidential informant that cocaine trafficking was occurring at a residence at 1944 Buffalo Road, Erie, PA. The informant also stated that two or more Dominican males were supplying this house with cocaine.
5. Surveillance was conducted by members of the PA State Police, FBI and City of Erie Police Department on 1944 Buffalo Road. On numerous occasions, officers followed three Dominican males, appellant and his co-defendants, identified by the confidential informant as the cocaine suppliers, from the residence at 1944 Buffalo Road to the residence at 304 E. 7th Street, the before mentioned “stash house.” Appellant and his co-defendants would enter the 304 E. 7th Street residence using a key. They would spend only brief periods of time in the residence, lasting anywhere from three to thirty minutes.
6. After they left the residence, officers trailed appellant and his co-defendants to the following locations: (1) the residence back at 1944 Buffalo Road, where the subjects were soon observed meeting with known cocaine traffickers; (2) areas of known open air drug trafficking, where officers observed the subjects meeting with known cocaine traffickers; and (3) an area bar, where officers observed one of the subjects meet with a known cocaine trafficker.
7. Two other instances indicate that the use of this residence was consistent with a “stash house.” On April 15, 1993, another officer contacted the landlord of 304 E. 7th Street, who told the officer that even though a family had supposedly moved into the property on March 31, 1993, she had visited the property recently and it appeared to her that it was unoccupied. Furthermore, on April 6 and April 13, the only two days in which the City of Erie could pick up garbage from the 304 E. 7th Street residence since the family had allegedly moved in, I observed no garbage placed outside for pick up.
8. In the past forty eight hours, I was contacted by the same confidential informant, who stated that he had personally observed one of the Dominican males in question in possession of a significant quantity of crack cocaine.

Affidavit at 1-7.

Based on the following information, the magistrate issued a search warrant for the residence at 304 East 7th Street on April 15, 1993. Later that day, police executed the search warrant on that residence. As appellant and his co-defendants exited the residence, police escorted them back into the property, handcuffed them for security reasons, read them the search warrant and administered Miranda warnings. A search of the house revealed approximately six thousand dollars in cash, cocaine residue in a garbage can, fake identification cards, a manual for a sophisticated scale, and a receipt for a pager. Appellant acknowledged that the money and the bag, where several of these objects were found, were his. Shortly thereafter, the officers observed that one of appellant’s co-defendants was squirming and sweating profusely. Fearing for their safety, the officers performed a Terry frisk and discovered 619.02 grams of cocaine on his person.

Appellant and his co-defendants were charged with possession of cocaine with the intent to deliver and criminal conspiracy. On August 30, 1993, appellant filed a timely omnibus motion to suppress both the physical evidence seized pursuant to the search warrant, and his statement to the police. After a hearing, the trial court denied appellant’s motion and a jury trial was held on November 9, 1993. Following this trial, on November 15, 1993, appellant was convicted of possession of cocaine with the intent to deliver and criminal conspiracy. The trial court denied appellant’s post-verdict motions and subsequently sentenced appellant to two consecutive terms of four (4) to ten (10) years imprisonment and fined him twenty five thousand (25,000) dollars. This timely appeal followed.

Appellant first contends that the facts set forth in the affidavit for the search warrant failed to show that there was probable cause to believe that there was cocaine at the 304 E. 7th Street residence. We disagree.

The courts in Pennsylvania have employed a “totality of the circumstances” test, enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), in determining whether probable cause exists for the issuance of a search warrant. Our Court has stated that:

The magistrate’s determination that probable cause existed must be given deference____ While the inquiry is restricted to the four corners of the affidavit, the affidavit is to be interpreted in a common-sense and realistic fashion.... “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the Veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

Commonwealth v. Singleton, 412 Pa.Super. 550, 552, 603 A.2d 1072, 1073 (1992) (quoting Commonwealth v. Carlisle, 348 Pa.Super. 96, 501 A.2d 664 (1985), affirmed, 517 Pa. 36, 534 A.2d 469 (1987) (citations omitted)). When reviewing the denial of a motion to suppress, it is the duty of this Court to determine whether the magistrate had a “substantial basis for concluding that probable cause existed.” Commonwealth v. Fromal, 392 Pa.Super. 100, 113-14, 572 A.2d 711, 718 (1990).

After a careful review of Officer Bozich’s affidavit of probable cause, we find that there was, in fact, probable cause to support the search of 304 E. 7th Street. First, the officers observed appellant and his co-defendants enter that residence with a key on numerous occasions. This observation supported the inference that they exerted dominion over the property. See Commonwealth v. Davis, 407 Pa.Super. 415, 425, 595 A.2d 1216, 1221 (1991), appeal denied, 530 Pa. 630, 606 A.2d 900 (1992). Second, the officers received information from a reliable informant that the residence at 304 E. 7th Street was going to be used as a “stash house” for cocaine. Police then corroborated this information by: (1) observing that no one appeared to live at the residence; (2) noting that appellant and his co-defendants spent extremely limited periods of time in the residence; and (3) observing on several occasions that appellant and his co-defendants met with known drug dealers immediately upon leaving the residence. Finally, a confidential informant had told Officer Bozich, within forty-eight hours of his application for the search warrant, that he/she had seen one of the three Dominican males in question with a large amount of crack cocaine. Trooper Bozich’s use of the present tense in the affidavit, along -with the fact that the activities of appellant and his co-defendants were occurring up to the day before the issuance of the search warrant, indicated that criminal activity was ongoing and thus, that this information was not stale. See Commonwealth v. Murphy, 427 Pa.Super. 578, 584, 629 A.2d 1020, 1023 (1993), appeal denied, 537 Pa. 648, 644 A.2d 734 (1994) (affiant’s use of present tense indicated that drug activity of defendant was in progress); Commonwealth v. Klinedinst, 403 Pa.Super. 605, 610, 589 A.2d 1119, 1122 (1991), appeal denied, 529 Pa. 618, 600 A.2d 534 (1991) (“a showing that the criminal activity is likely to have continued up to the time of the issuance of the warrant will render otherwise stale information viable”). Thus, based on the facts stated above, we find that the magistrate did not err in granting a search warrant for the residence at 304 E. 7th Street. Cf. Davis, 407 Pa.Super. at 425-26, 595 A.2d at 1222 (issuance of search warrant for house upheld solely on fact that defendant was observed selling drugs within 48 hours of issuance of warrant and also was observed entering home after sale); Commonwealth v. Yucknevage, 257 Pa.Super. 19, 390 A.2d 225 (1978) (observation of defendant exiting house to go to drug meeting, along with his statement that he was short on the drugs, was sufficient to support affidavit of probable cause).

Appellant next claims that his statement to police when they were executing the search warrant should have been suppressed because he gave the statement after the police had unlawfully arrested him. We disagree.

Our Court has previously asserted that when in possession of and when executing a valid search warrant, the police have the authority to detain persons who are on the premises, or who have recently exited and are outside of the premises. Commonwealth v. Carr, 334 Pa.Super. 459, 466-67, 483 A.2d 542, 546 (1984); Commonwealth v. Reicherter, 317 Pa.Super. 256, 463 A.2d 1183 (1983). As appellant was exiting the premises when the officers were executing the warrant, they were entitled to detain appellant.

The officers, however, handcuffed appellant while detaining him. Appellant argues that he had therefore been improperly arrested. The Pennsylvania Supreme Court has defined the test for determining whether an arrest has occurred:

[A]ny act that indicates an intention to take the person into custody and subjects him to the actual custody and will of the person making the arrest____ The test is an objective one, i.e., viewed in the light of the reasonable impression conveyed to the person subjected to the seizure rather than the strictly subjective view of the officers or the persons being seized.

Commonwealth v. Rodriguez, 532 Pa. 62, 74, 614 A.2d 1378, 1384 (1992) (quoting Commonwealth v. Duncan, 514 Pa. 395, 400, 525 A.2d 1177, 1179 (1987) (citations omitted)). While the officers handcuffed appellant in order to protect themselves, they never told appellant that he was only being handcuffed in order to ensure their safety while they searched the residence. Therefore, the reasonable impression conveyed was that appellant was under the control and within the custody of the officers. Consequently, he was under arrest. Commonwealth v. Frank, 407 Pa.Super. 500, 505, 595 A.2d 1258, 1261 (1991); cf. Rodriguez, 532 Pa. at 74, 614 A.2d at 1384 (reasonable impression of defendant when police officer escorted him to enclosed location at gunpoint was that he was under arrest). Moreover, as the police did not have probable cause to arrest appellant at that time, the arrest was illegal.

Appellant further asserts that as the arrest was illegal, all statements made following the arrest should have been suppressed. However, the Pennsylvania Supreme Court has stated:

[A]ll [statements] made by an illegally arrested person are not per se inadmissible as trial evidence.... [S]everal factors to be considered in scrutinizing an individual case: (1) whether Miranda warnings were given; (2) the “temporal proximity of the arrest and the confession;” (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct.

Commonwealth v. Bogan, 482 Pa. 151, 157, 393 A.2d 424, 427 (1978). In the instant case, Officer Bozich had given appellant Miranda warnings before appellant made his statement to the police, and appellant acknowledged his understanding of these warnings. N.T. 11/10/93 at 188. In addition, appellant’s unlawful arrest was neither purposeful nor flagrant. To the contrary, officers unwittingly arrested appellant in an effort to detain him and in genuine concern for their safety. See Frank, 407 Pa.Super. at 505, 595 A.2d at 1261 (when defendant was handcuffed, arrest occurred because defendant reasonably believed that he was not free to leave and because he was physically restrained by use of handcuffs). Finally, appellant has set forth no claim that his statement was involuntary or that it was coerced due to the arrest. Commonwealth v. McFeely, 509 Pa. 394, 401, 502 A.2d 167, 171 (1985). Thus, based on the facts stated above, we find that the trial court did not err in refusing to suppress appellant’s statement to police. Accordingly, we affirm judgment of sentence.

Affirmed.

      . 35 Pa.S. § 780-113(a)(30).

      . 18 Pa.C.S. § 903.


author: JOHNSON, Judge:

text:
    649 A.2d 453
    COMMONWEALTH of Pennsylvania v. Dean M. TAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1994.
    Filed Nov. 3, 1994.

      Craig H. Alexander, Pittsburgh, for appellant.
    John Christin, Jr., Asst. Dist. Atty., Greensburg, for the Com., appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

Dean M. Taylor appeals from the trial court order denying his statutory appeal following the finding of a district justice that Taylor was guilty of driving while operating privilege is suspended or revoked for an offense related to driving under the influence (DUI). 75 Pa.C.S. § 1543(b). We affirm.

In May, 1990, a police officer stopped Taylor for a traffic violation and cited him for driving while his operating privileges were suspended for a DUI-related offense. Taylor stipulated at trial that he did not produce a valid driver’s license, either when stopped or within 15 days of the citation. Taylor’s license previously had been suspended after an Accelerated Rehabilitative Disposition (ARD) hearing for the DUI-related offense. That earlier, DUI-related suspension was to last for six months and was to commence in January, 1997, after suspensions for other non-DUI-related offenses had elapsed. In April, 1990, notice of this underlying DUI-related suspension was mailed to Taylor at his address.

The district justice found Taylor guilty of driving while his operating privileges were suspended for a DUI-related offense and sentenced him to the enhanced penalties of § 1543(b) of 90 days’ incarceration and a mandatory fine of $1,000. Taylor then filed a statutory appeal with the Court of Common Pleas of Westmoreland County. After a hearing, the trial court denied Taylor’s appeal. This appeal followed.

On appeal, Taylor asserts that the trial court erred in finding that he received actual notice of his underlying DUI-related suspension. Further, he challenges the constitutionality of the holding of Commonwealth v. Nuno, 385 Pa.Super. 6, 559 A.2d 949 (1989). We find that Taylor’s first argument is without merit, and that his second argument may not be properly considered by this Court.

Initially, we note our disagreement with the Commonwealth’s argument that Taylor is precluded from arguing lack of notice pursuant to the holding of Commonwealth v. Dietz, 423 Pa.Super. 366, 621 A.2d 160 (1993), appeal denied, 535 Pa. 634, 631 A.2d 1007 (1993). The Dietz court held that, for a driver to invoke the defense of lack of notice of suspension, “at a minimum it must be established at trial, that a current driver’s license was produced at the time of the offense, or within 15 days thereafter, as provided for in 75 Pa.C.S.A. 1511.” Id., 423 Pa.Super. at 370, 621 A.2d at 162.

The Dietz court essentially concluded that, to uphold a conviction for driving under a non-DUI-related suspension, the Commonwealth can prove notice of the underlying suspension by establishing that the driver failed to produce a license when stopped because that failure demonstrates knowledge of suspension. Here, however, Taylor is charged with violating § 1543(b) for driving under suspension for a DUI-related offense. Failure to possess a license does not demonstrate that a driver knows that the underlying suspension is for a DUI-related offense. Therefore, failure to produce a valid license when stopped does not preclude a driver charged with driving under a DUI-related suspension from asserting that the Commonwealth has failed to prove actual notice of the underlying DUI-related suspension.

Our scope of review in a license suspension case is limited to determining whether the trial court’s findings are supported by competent evidence, whether the trial court committed errors of law, and whether the trial court’s decision constitutes a manifest abuse of discretion. Commonwealth v. Johnson, 144 Pa.Cmwlth. 599, 601 A.2d 1339 (1992). In reviewing Taylor’s claim that the Commonwealth did not prove that he had actual notice of his DUI-related suspension, “we must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine if the trier of fact could reasonably have concluded that all of the elements of the crime were established beyond a reasonable doubt.” Commonwealth v. Yetsick, 402 Pa.Super. 615, 619, 587 A.2d 788, 790 (1991), appeal denied, 529 Pa. 620, 600 A.2d 537 (1991).

Taylor’s first argument is that the trial court erred in finding that he had actual notice of his DUI-related suspension and that he therefore cannot be found guilty of driving under a DUI-related suspension. The burden of proving notice rests with the Commonwealth. Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975). The Commonwealth must prove that a defendant received notice that his license has been or mil be suspended or revoked for a DUI-related offense. Yetsick, supra; Nuno, supra; Commonwealth v. Gamble, 376 Pa.Super. 590, 546 A.2d 681 (1988). We turn, then, to whether there was sufficient evidence for the trial court to find that Taylor received such notice.

The seminal case governing sufficiency of notice is Kane, supra. The Kane court concluded that evidence of mailing, standing alone, is insufficient because “[mjailed letters do go astray for a variety of reasons. Criminal conviction requires proof beyond a reasonable doubt and that standard is not satisfied when one of the elements which must be proven is actual notice, and the only evidence presented is that a notice was mailed.” Id., 460 Pa. at 586, 333 A.2d at 927.

This Court refined the Kane holding in Commonwealth v. Gray, 356 Pa.Super. 299, 514 A.2d 621 (1986), appeal denied, 514 Pa. 638, 523 A.2d 345 (1987). The Gray court held that, “[w]hen notice is mailed to the appellant and additional evidence exists indicating that appellant received notice of suspension, then the evidence can be sufficient to prove actual notice.” Id., 356 Pa.Super. at 301, 514 A.2d at 622 (emphasis added); see also Commonwealth v. Taylor, 390 Pa.Super. 571, 568 A.2d 1320 (1990). In Gray, evidence of notice was deemed sufficient where the Commonwealth showed that notice had been mailed, that the appellant had responded to earlier mailings sent to the same address, and that appellant had not been able to produce a valid license when stopped for a violation.

In the present case, the parties stipulated and the trial court found that notice of the DUI-related suspension had been mailed to Taylor. See Trial Court Opinion, filed January 12, 1994, at 1. In addition, the trial court took judicial notice that Taylor was advised that he would undergo a six-month suspension of his operating privileges when he entered the ARD program. Id. at 2. Following the reasoning of Gray, we find that, based on the these facts, the trial court reasonably concluded that Taylor received actual notice that his license would be suspended for a DUI-related offense. See also Gamble, supra, 376 Pa.Super. at 593-94, 546 A.2d at 683 (finding evidence of notice insufficient where only evidence was of mailing and “the Commonwealth did not establish that [the driver] had ... been informed by either the court, the [arresting] officers ... or the Department of Transportation that [the driver’s] operating privileges would be suspended for one year” for a DUI-related offense). Thus, the trial court’s application of the harsher sanctions of § 1543(b) to Taylor was appropriate.

Next, Taylor challenges the constitutionality of this Court’s holding in Nuno, supra. Nuno permits license suspension, originally non-DUI related, to be treated as DUI-related when a subsequent DUI-related suspension occurs which will commence at a future date after expiration of the non-DUI related suspensions. Taylor contends that this violates his federal and state constitutional rights to due process and equal protection and that it constitutes cruel and unusual punishment. However, this Court, sitting as a panel, is not empowered to overrule Nuno, and, therefore, we do not address this claim.

For the foregoing reasons, the trial court order denying Taylor’s statutory appeal is affirmed.

Order AFFIRMED.