author: CAVANAUGH, Judge: McEWEN, Judge, CIRILLO, Judge,

text:
    487 A.2d 830
    COMMONWEALTH of Pennsylvania, Appellee, v. Leroy COTTON, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1984.
    Filed Dec. 21, 1984.
    Reargument Denied Feb. 21, 1985.
    Petition for Allowance of Appeal Denied July 30, 1985.

      A. Charles Peruto, Jr., Philadelphia, for appellant.
    Thomas Quinn, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, McEWEN and CHULLO, JJ.
   CAVANAUGH, Judge:

This is an appeal from a judgment of sentence imposed by the Common Pleas Court, Philadelphia County on June 29, 1982. After a non-jury trial, appellant, Leroy Cotton, was found guilty of murder in the second degree, robbery, and criminal conspiracy. On appeal, Cotton maintains that the evidence was insufficient to show the causation element of second degree murder. Appellant contends that as a matter of law, the Commonwealth’s evidence was insufficient to show that the victim’s death occurred from his conduct while in the commission of an alleged robbery. Appellant also claims that the evidence was insufficient to support the robbery conviction thus nullifying the basis for the felony murder conviction. In addition, appellant argues that both trial and post-trial counsel provided ineffective assistance. These claims include failure to preserve meritorious issues for appellate review, failure to call character witnesses, and calling appellant to the stand before other defense witnesses. We disagree with appellant’s contentions and, therefore, affirm the lower court.

The convictions arise from events that transpired on March 20,1980 near 16th and Blavis Streets in Philadelphia. An eyewitness, Shirley Brockington, saw appellant, Leroy Cotton, and two other males in an altercation with Mr. Longin Markiw. Miss Brockington testified that the two unnamed men were standing on either side of Mr. Markiw while appellant struck the victim in the chest. The two men wrestled Mr. Markiw to the ground. One of the three men ripped a rear pocket on Mr. Markiw’s trousers. After the assailants fled the scene, Miss Brockington went to give assistance to the victim. She testified that Mr. Markiw appeared to be sick and that he was holding his chest and his pants pocket. Miss Brockington then walked the victim first to her house and then to his own home. Shortly thereafter, the police arrived at Mr. Markiw’s home. Another policeman, Officer Kiefer, arrived to transport Mr. Markiw to Northwest Detectives. At trial, one of the officers described Mr. Markiw as “ashen faced.” Officer Kiefer testified that Mr. Markiw appeared to be perspiring and in pain “all around his chest.” As a result, he took the victim to Temple University Hospital. At the emergency ward, staff members told the officer that the victim might be having a heart attack. Mr. Markiw was admitted to the hospital where he died five days later.

Kenneth E. Carpenter, M.D., testifying for the Commonwealth, stated that the stress of the incident aggravated Mr. Markiw’s heart disease, triggering a heart attack causing his death and stated his opinion with “reasonable medical certainty.” He also testified that the cause of death was heart disease aggravated by assault and robbery. On the autopsy report, Dr. Carpenter indicated that Mr. Mark-iw had suffered a heart attack anywhere from four to eight days prior to his death.

Dr. Carpenter’s testimony and his autopsy report were the only direct evidence offered by the Commonwealth to prove causation. Appellant claims that this was insufficient to show that Mr. Markiw’s death resulted from the alleged robbery. In deciding an insufficiency claim, this Court is bound to view all evidence in the light most favorable to the Commonwealth and to draw all reasonable inferences in its favor. Commonwealth v. Keblitis, 500 Pa. 321, 456 A.2d 149 (1983); Commonwealth v. Martin, 481 Pa. 515, 393 A.2d 23 (1978). We also note that circumstantial evidence is sufficient to convict beyond a reasonable doubt. Commonwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003 (1980).

Once the Commonwealth submitted evidence of causation, it was for the factfinder to determine if that evidence proves the element of the crime charged beyond a reasonable doubt. Merely because Dr. Carpenter’s opinion was cast in terms of a reasonable medical certainty, this Court cannot say, as a matter of law, that causation was not proved beyond a reasonable doubt. As pointed out by Justice O’Brien.

It was not necessary, as appellants contend, that the witness state it was his conclusion beyond a reasonable doubt ... “beyond a reasonable doubt” is a legal standard. Medical causation and legal causation are qualitatively different in their application ... whether the Commonwealth’s evidence is sufficient to warrant a finding of causal connection is initially a legal question for the court, but whether it is persuasive beyond a reasonable doubt is for the jury to say.

Commonwealth v. Webb, 449 Pa. 490, 496, 296 A.2d 734, 737 (1972). Furthermore, it would be an undue burden to require the Commonwealth’s medical experts to state their opinions that death resulted from a specific cause “beyond a reasonable doubt.” That concept is a legal standard that the factfinder must use in determining guilt.

Dr. Carpenter’s opinion finds support in the record and the hypothetical question asked of him was proper. It conformed to the facts as supported in the record, and the appellant will not now be heard to complain that the hypothetical question failed to conform to the facts as he made no objection to that effect at trial. P.L.E. Appeals § 110. We shall not presume to invade the jury’s traditional fact finding function and hold that the opinion based on this hypothetical question was improper. Dr. Carpenter’s testimony showed that the cause of death was heart disease aggravated by the assault and robbery. The Commonwealth also provided testimony regarding the victim’s condition immediately after the incident. In view of this, we cannot say, as a matter of law, that the factfinder had

428 Pa. 279, 236 A.2d 802 (1968) where a physician testified to "a reasonable degree of medical certainty” that a heart attack was caused by stress occasioned by a purse snatching and ensuing struggle. In both cases, causation was found to be lacking. A reading of the Pennsylvania cases leads to the conclusion that the broad language of Embry is of doubtful precedential value especially in light of the Webb decision. For example, in the following cases Embry and/or Radford were distinguished and in no other case has the requirement been made that the expert medical testimony be couched in terms of "beyond a reasonable doubt." Commonwealth v. Roberson, 485 Pa. 586, 403 A.2d 544 (1979); Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Commonwealth v. Green, 477 Pa. 170, 383 A.2d 877 (1978) ; Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978); Commonwealth v. Vogel, 468 Pa. 438, 364 A.2d 274 (1976); Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Nole, 448 Pa. 62, 292 A.2d 331 (1972); Commonwealth v. Amato, 449 Pa. 592, 297 A.2d 462 (1972); Commonwealth v. Odom, 448 Pa. 474, 295 A.2d 331 (1972); Commonwealth v. Lomax, 291 Pa.Super. 635, 436 A.2d 680 (1981); Commonwealth v. Alston, 269 Pa.Super. 573, 410 A.2d 849 (1979); Commonwealth v. Rawls, 270 Pa.Super. 432, 411 A.2d 796 (1979) .
Most recently, in Commonwealth v. Floyd, 499 Pa. 316, 453 A.2d 326 (1982), our Supreme Court concluded that the opinion of a medical examiner expressed in terms of a reasonable degree of medical certainty was adequate evidence in the record of causation for the finder of fact to conclude beyond a reasonable doubt that the cause of death was a criminal act. Importantly, Floyd can be read as having overruled Embry. In reaching its conclusion it followed Commonwealth v. Webb, supra, and added: “We believe that the Webb court was in error in distinguishing Embry." 499 Pa. 316 at 320, 453 A.2d 326 at 328.

insufficient evidence to establish the cause of death beyond a reasonable doubt.

To hold otherwise would be a judicial usurpation of the jury’s function. Also, the evidence of robbery in this case was clearly sufficient to support appellant’s conviction.

In considering appellant’s claims of ineffectiveness of trial and post-trial counsel for failing to preserve issues for appellate review, this Court uses a two-step analysis. First, we must determine if the issues not preserved were of arguable merit, and if so, we then determine if counsel’s decisions had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980); Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983). Obviously, counsel will not be ineffective for failing to preserve a baseless claim. Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Appellant’s initial claim of ineffectiveness is that both trial and post-trial counsel failed to preserve for review a motion to dismiss pursuant to Pa.R. Crim.P. 1100. Considering that appellant’s trial began 378 days after the complaint was filed, a Rule 1100 motion to dismiss may have been appropriate. On the other hand, a defendant may waive his right to a speedy trial and this is precisely what appellant did on two occasions. The colloquy conducted by the Honorable Paul Ribner at both proceedings, demonstrates that appellant made an informed and voluntary decision. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976). Consequently, neither trial or post-trial counsel were ineffective for failing to preserve a Rule 1100 motion.

Appellant also alleges that trial and post-trial counsel were ineffective for failing to preserve for review the decision to waive a jury trial. In reviewing the record, it is clear that appellant made a knowing, voluntary and intelligent waiver of his jury trial right. The record shows that the waiver colloquy was in accord with the standards set forth in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973).

Appellant also alleges ineffectiveness for failure to preserve several evidentiary questions for appellate review. First, appellant contends that counsel should have preserved an objection to hearsay testimony. Specifically, this concerns the testimony of two police officers who were at the hospital shortly after Mr. Markiw arrived. The officers testified that they were told by hospital personnel that the victim was suffering a heart attack. However, this testimony related to facts not capable of dispute and could not have prejudiced appellant. Secondly, appellant maintains that counsel should have preserved an objection to the lower court’s restriction of cross-examination. The trial judge did not permit cross-examination that would have required Dr. Carpenter to speculate whether Mr. Markiw would have suffered a heart attack absent the robbery. In view of the fact that counsel was permitted to strenuously cross-examine the Commonwealth’s witnesses, we find no abuse of discretion where the court prevented this kind of speculation. See Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Commonwealth v. Paskings, 447 Pa. 350, 355, 290 A.2d 82 (1972). Lastly, appellant contends that counsel should have preserved an objection to Dr. Carpenter’s conclusion regarding the manner of death. This issue is without merit, because the opinion of an expert may be based on the facts admitted or proven or on reports admitted into evidence. Commonwealth v. Haddle, 271 Pa.Super. 418, 413 A.2d 735 (1979). The record indicates that Dr. Carpenter’s opinion was based on admitted evidence.

After a careful review of the record with regard to the remaining issues appellant claims should have been preserved, we find that these issues are without merit and trial counsel and post-trial counsel were not ineffective for failing to preserve them.

In addition, appellant raises two issues of trial counsel’s ineffectiveness. These claims are waived, however, since new post-verdict counsel failed to raise them. Commonwealth v. Lee, 254 Pa.Super. 495, 386 A.2d 59 (1978).

Lastly, appellant alleges that post-trial counsel was ineffective for failing to raise the ineffectiveness of trial counsel. This claim is not supported by the record, since post-trial counsel did in fact raise the ineffectiveness of trial counsel in post-verdict motions.

Judgment of sentence affirmed.

McEWEN, J., files concurring opinion.

CIRILLO, J., files concurring and dissenting opinion.

McEWEN, Judge,

concurring:

The able and certain expression of view provided by our esteemed colleague Judge James R. Cavanaugh quite perceptively distinguishes between the concept of reasonable medical certainty and the legal notion of reasonable doubt before concluding beyond question that there was sufficient evidence that robbery was the cause of the homicide to enable a jury to conclude that appellant was guilty of murder. I share that conclusion and write simply to provide emphatic rejection of this particular assertion of appellant.

The word “prey” is defined by Webster as one who is helpless or unable to resist attack. It was shortly after darkness had fallen that the victim, a 70 year old man measuring just over five feet and 145 pounds, became prey for three predators, all of them young men and one of them appellant. The victim, as has been noted, had been suffering from arteriosclerotic heart disease and the postmortem reveals that the cause of death was arteriosclerotic heart disease aggravated by assault and battery.

The argument of appellant would permit the very disability which caused the victim to become prey to be the basis by which the predator escapes responsibility for the killing. The disability of the victim was the trigger for the crime. We cannot permit it to be the excuse for the crime.

When a gun is fired and causes a death during the commission of an armed holdup, the law declares the killing to be a felony-murder and rejects the protests of the robber that he had no intention to kill, since such a killing was a clearly foreseeable result of an armed holdup. The death of an elderly victim in the choke of a mugger is every bit as foreseeable and, therefore, no less a felony murder.

I agree there is no merit to the remaining contentions of appellant and would affirm the judgment of sentence.

CIRILLO, Judge,

concurring and dissenting:

I respectfully differ with the majority in that I would find the evidence insufficient to prove beyond a reasonable doubt that appellant caused Mr. Markiw’s death, and would therefore reverse appellant’s conviction for second-degree murder. I would affirm the sentence for conspiracy and remand for resentencing on the robbery conviction, since the sentence for robbery merged with the life sentence for second-degree murder.

The test for sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Keb-litis, 500 Pa. 321, 456 A.2d 149 (1983).

In a criminal homicide case, an essential element the Commonwealth must prove beyond a reasonable doubt is that the defendant’s criminal acts caused the victim’s death. Commonwealth v. Hicks, 466 Pa. 499, 353 A.2d 803 (1976); Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). It is not sufficient that death probably resulted from a criminal agency. Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1968).

Furthermore, the Commonwealth must prove a direct causal relationship between the defendant’s acts and the victim’s death; tort concepts of “proximate cause” have no place in a prosecution for criminal homicide. Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961).

I believe the evidence did not establish beyond a reasonable doubt a direct causal relationship between appellant’s admittedly reprehensible acts and Mr. Markiw’s unfortunate death. Witnesses testified that shortly after the assault Mr. Markiw appeared “ashen faced,” and was perspiring and holding his chest, where he had been hit by one of the robbers. However, he was still fully conscious and ambulatory when, owing to a policeman’s solicitude, he was driven to Temple University Hospital. A conspicuous hiatus in the Commonwealth’s evidence follows, for there is nothing in the record concerning Mr. Markiw’s state from the time he entered the hospital until he died five days later. No doctor testified that Markiw exhibited symptoms of a heart attack when he arrived at the hospital; no medical witness described Markiw’s course of treatment or the process of his physical deterioration. The Commonwealth attempted to fill this gap in the evidence with the testimony of the medical examiner who performed an autopsy on the body. This witness, Dr. Carpenter, stated that Mr. Markiw had suffered from severe heart disease, and was at the time of the attack “an already compromised human being.” He further testified that the cause of death was a heart attack occurring four to eight days before death. In response to a hypothetical question involving the facts of the robbery, the witness stated his opinion to a reasonable degree of medical certainty that the incident had induced stress so severe as to result in Markiw’s death.

This case is virtually indistinguishable from Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971), where a seventy-one-year-old woman with a long history of coronary artery disease and prior heart attacks became the victim of a purse-snatching and died of a heart attack. The expert witness who had performed the autopsy opined to a reasonable degree of medical certainty that the victim’s struggle with the robbers produced stress which caused the heart attack, but testified he was not convinced of this beyond a reasonable doubt. The Supreme Court held there was insufficient evidence of causation: “when only one witness is presented by the Commonwealth to establish causation and that witness cannot do so beyond a reasonable doubt, a necessary element of the proof of that crime is missing.” Id., 441 Pa. at 186, 272 A.2d at 179. Accord, Radford, supra.

It is true, as the majority points out, that an expert medical witness need not state his opinion about the cause of death in terms of “beyond a reasonable doubt.” Commonwealth v. Webb, 449 Pa. 490, 296 A.2d 734 (1972). An expert witness need only entertain a reasonable degree of medical certainty for his conclusions. Commonwealth v. Floyd, 499 Pa. 316, 453 A.2d 326 (1982); cf. Commonwealth v. Richardson, 307 Pa.Super. 191, 452 A.2d 1379 (1982) (citing Embry for this principle). However, it remains a legal question for the court whether the Commonwealth’s evidence is sufficient to warrant a finding of causal connection, Webb supra, and it remains the Commonwealth’s burden to prove this causal connection beyond a reasonable doubt. Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978).

Here the only thing about Mr. Markiw’s death established beyond a reasonable doubt was heart attack as the cause. It was shown, and undisputed, that Markiw had suffered from severe heart disease. The autopsy revealed scarring of the heart, presumably indicating that the heart attack leading to Markiw’s death had not been his first. However, the record is absolutely silent as to Markiw’s condition or treatment either immediately before the assault or after his admission to the hospital. Therefore, Dr. Carpenter’s professional opinion that Markiw’s fatal heart attack occurred between four and eight days prior to death is of little use in establishing the assault as the cause of the heart attack. Taking this opinion into account, the evidence would support the inference that Markiw’s heart attack arose from natural causes before or after the robbery just as easily as it would support the inference that it arose contemporaneously with the robbery and because of it. There is, indeed, nothing in the record but conjecture to rule out the inference that this “already compromised human being” suffered his heart attack prior to and independently of the mugging. At most, the evidence establishes that the assault “probably” caused the heart attack; to conclude that the assault in fact was the cause, the fact finder would have to engage in speculation. Nevertheless, on this evidence Dr. Carpenter was allowed to superimpose his own opinion that the assault had caused the seizure. Whereas Dr. Carpenter’s opinion that death was due to a heart attack was based directly on his own observations, his opinion as to the cause of the heart attack was based on a hypothetical version of the facts of the robbery supplied by the district attorney. No matter that Dr. Carpenter expressed this latter opinion in terms of a “reasonable medical certainty”; in my view this was nothing more than the doctor substituting his own speculation and conjecture for that of the fact finder.

In a homicide case, where the life or liberty of a citizen is at stake, and where the guilt of the accused must be established beyond a reasonable doubt, the causal connection between the death of the decedent and the unlawful acts of the respondent cannot be supported on mere conjecture and speculation.

Fine v. State, 193 Tenn. 422, 428, 246 S.W.2d 70, 72 (1952) (quoting State v. Rounds, 104 Vt. 442, 457, 160 A. 249, 254 (1932)).

Where it is equally possible and probable that the death resulted from one cause as from another cause and the defendant is not responsible for one of the causes, then any determination of the cause of death can only be speculative and. conjectural and the evidence will be held insufficient to support a guilty verdict.

Rucker v. State, 174 Tenn. 569, 573, 129 S.W.2d 208, 210 (1939).

My learned colleague Judge Stephen J. McEwen, Jr., cogently makes the point that it is no excuse to criminal homicide that the victim’s life was fragile even before the defendant’s criminal assault extinguished it. I don’t dispute this; it is a settled principle that an assailant must take his victim as he finds him. As stated in Commonwealth v. Hicks, 483 Pa. 305, 313, 396 A.2d 1183, 1187 (1979),

An accused may not escape criminal liability on the ground that, prior to the criminal act, his victim was not in perfect health, or the blow he inflicted was not mortal, or the immediate cause of death. If his blow started the chain of causation which led to the death, he is guilty of homicide. Commonwealth v. Hicks, 466 Pa. 499, 505, 353 A.2d 803, 805 (1976).

However, the fact that the victim had poor health does not dispense with the need to establish beyond a reasonable doubt a “chain of causation” leading from the defendant’s crime to the victim’s death. “In a death as distinguished from a ‘killing,’ the prosecution must prove an absence of natural causes. That is, the first step is to prove the victim died because he was killed.” Welch v. State, 45 Ala.App. 657, 235 So.2d 906, 907 (1970).

A comparison of various cases in which heart attack deaths were prosecuted as homicides will serve to illustrate what is and what is not an adequate “chain of causation” to establish that the victim was killed. In Commonwealth v. Hicks, 483 Pa. 305, 396 A.2d 1183 (1979), the victim collapsed and fell unconscious immediately after wrestling strenuously with Hicks, who in a craze had broken into the victim’s house and accosted him. The victim never regained consciousness, and died of “acute cardiac failure due to a pre-existing arteriosclerotic heart disease which was aggravated by the severe stress of his struggle with [Hicks].” 483 Pa. at 309, 396 A.2d at 1185 (emphasis added). The Supreme Court rejected a challenge to the proof of causation, saying it was “clear” the defendant’s attack had cause the victim’s cardiac failure. Id., 483 Pa. at 313, 396 A.2d at 1186. See also State v. McKeiver, 89 N.J.Super. 52, 213 A.2d 320 (1965) (evidence sufficient where victim dropped dead in bar during armed holdup).

With the immediate and clear chain of causation in Hicks, compare that in Stevens v. United States, 249 A.2d 514 (D.C.App.1969). There the decedent was afflicted with “developing” arteriosclerosis. He was injured in an automobile accident caused by the defendant, and hospitalized. Five weeks later he died in the hospital of a heart attack. There was expert medical testimony that the debility caused by the accident could have precipitated the heart attack from which the decedent died. The court found the proof of causation insufficient, noting that the Government had produced no testimony from an attending physician or expert who had knowledge of the decedent’s condition while in the hospital. The defendant’s conviction for negligent homicide was reversed.

Certainly the present case bears a closer resemblance to Stevens than to Hicks or McKeiver, in that Mr. Markiw did not die immediately, but spent a period of time in the hospital before succumbing. As in Stevens, the decedent’s condition during the period of hospitalization went totally unexplained on the record. The victim in Stevens lingered five weeks before dying, whereas in this case the period was five days. However, the length of time between incident and death is only one factor to consider in deciding the overarching question: whether the prosecution has sufficiently established a chain of causation.

In at least one case, our Supreme Court has found the evidence insufficient to prove causation where death was immediate. Commonwealth v. Embry, supra. See also Hubbard v. Commonwealth, 304 Ky. 818, 202 S.W.2d 634 (1947). In Hubbard, the defendant was arrested for drunkenness, but resisted the decedent’s efforts to lead him to jail. The would-be jailer, Dyche, struggled with Hubbard until Dyche fell to the ground. As others subdued the defendant, Dyche, who suffered from a heart condition, sat on the ground with his hand on his chest. Rather than continue to sit and rest, however, Dyche got down on the ground and “rolled and tumbled” until he died about half an hour later. Despite opinion testimony from three physicians that the scuffle and its attendant stress precipitated Dyche’s death, the Court of Appeals of Kentucky held the evidence insufficient to support Hubbard’s homicide conviction:

In the present case the misdemeanor of the defendant must be regarded as too remote — not in time, to be sure, but as the cause. The failure of the man’s diseased heart was the cause. Livingston v. Commonwealth, 14 Grat., Va., 592.... It is, at least, speculative to say that the act of the defendant in this case was sufficiently proximate to impose criminal responsibility upon him for the unfortunate death. We are of opinion, therefore, that the court should have directed an acquittal.

304 Ky. at 822, 202 S.W.2d at 637.

Regardless of the time span involved, the principle is clear that the Commonwealth must establish a direct and unbroken chain of causation between the defendant’s criminal acts and the victim’s death. See, e.g., Commonwealth v. Roberson, 485 Pa. 586, 403 A.2d 544 (1979) (beating to head leading to fatal pneumonia); Commonwealth v. Green, 477 Pa. 170, 383 A.2d 877 (1978) (gunshot wound required removal of kidney; victim died in hospital of vomit sucked into lungs); Commonwealth v. Stafford, 451 Pa. 95, 301 A.2d 600 (1973) (victim beaten in head died ten days later after brain surgery); Commonwealth v. Odom, 448 Pa. 474, 295 A.2d 331 (1972) (victim died of head injuries sixty-seven days after beating); Commonwealth v. Jefferson, 445 Pa. 1, 281 A.2d 852 (1971) (stabbing led to blood clots causing death); Commonwealth v. Cartagena, 272 Pa.Super. 485, 416 A.2d 560 (1979) (stabbing leading to paralysis and death).

Here there is an important link missing from the chain: proof that appellant’s acts started the process leading to death. Dr. Carpenter’s opinion in response to a hypothetical question that the robbery caused the heart attack may establish a possible, even a probable, causal relationship between the two. However, this opinion evidence was not sufficient to establish a causal relationship in this particular case beyond a reasonable doubt. Given the paucity of evidence upon which the opinion was based, I would hold it insufficient regardless of the degree of certainty with which the expert expressed it. Cf. Commonwealth v. Rawls, 270 Pa.Super. 432, 411 A.2d 796 (1979) (defendant punched victim in head; victim died of subdural hemorrhage; evidence sufficient despite medical examiner’s inability to say with certainty that fist punch in fact caused hemorrhage). Although it is of course possible that appellant Cotton caused Markiw’s death by heart attack, I believe the evidence was too tenuous and speculative to establish this causal connection, or to visit upon Cotton the consequences of murder.

      . 18 Pa.C.S. §§ 2502, 3701, 903.

      . It is true, as the dissent points out, that our Supreme Court in Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971), stated that "when only one witness is presented by the Commonwealth to establish causation and that witness cannot do so beyond a reasonable doubt, a necessary element of the proof of that crime is missing.” The Embry decision relied on an earlier case, Commonwealth v. Radford,

      . Appellant argues that counsel should have preserved an objection to the sufficiency of the bill of information charging him with murder. However, we find that the bill in question did serve to notify the accused of the charges against him. Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982). Appellant also alleges that counsel should have preserved a challenge to the Commonwealth’s failure to provide putative exculpatory material. However, we find that no prejudice would have resulted from this since trial counsel used the information from this material to impeach a Commonwealth witness. Similarly, appellant’s contention that counsel should have preserved an objection to the court’s granting a continuance is without merit. The granting of a continuance is within the discretion of the trial judge and we do not find that Judge Stout abused her discretion. Commonwealth v. Rainey, 271 Pa.Super. 240, 412 A.2d 1106 (1979).

      . Even though these issues have been waived, we find that they are without merit. Appellant alleged that trial counsel failed to call character witnesses, but there is nothing to indicate that counsel had knowledge of any witnesses or that they even existed. Commonwealth v. Brinton, 303 Pa.Super. 14, 449 A.2d 54 (1982).


source: Caselaw Access Project

author: WIEAND, Judge: POPOVICH, Judge,

license: Public Domain

text:
    487 A.2d 839
    John MSCISZ v. Carl and Mary RUSSELL, et al. Appeal of Carl RUSSELL and Mary Russell.
    Superior Court of Pennsylvania.
    Argued July 11, 1984.
    Filed Dec. 21, 1984.
    Reargument Denied Feb. 21, 1985.
    Petition for Allowance of Appeal Denied Aug. 9, 1985.

      Howard A. Davis, Philadelphia, for Stanton, appellee.
    Joseph W. Fullem, Jr., Thomas C. Delorenzo and Pamela B. Gagne, Philadelphia, for Geisler, etc., appellees.
    J.S. Lynch, appellee, in propria persona.
    John J. Duffy, Philadelphia, for Albright, appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

John Mscisz sustained injuries when he fell from a motorcycle while riding on a private driveway. He commenced an action against Carl and Mary Russell, alleging that they had caused his fall by failing to maintain in a safe condition that portion of the driveway which abutted their land. The Russells then joined as additional defendants approximately 55 neighbors whose lots also abutted on the private driveway. The Russells contended that each of their neighbors had an equal duty to maintain the driveway in a safe condition. The trial court summarily dismissed the Rus-sells’ complaint against all additional defendants. This appeal followed.

As a general rule, where an easement is used and enjoyed for the benefit of a dominant estate, it is the owner of the dominant estate who is under obligation to keep the easement in good repair; and he may be liable to third persons if he fails to keep the right of way in a proper state of repair. Reed v. Allegheny County, 330 Pa. 300, 303, 199 A. 187, 189 (1938); 25 Am.Jur.2d Easements and Licenses § 85 (1966).

In Borgel v. Hoffman, 219 Pa.Super. 260, 280 A.2d 608 (1971), this Court held that where multiple owners of property which abutted a private driveway extending between two rows of houses enjoyed an easement over the driveway in common with other abutting owners, each owner, in the absence of an agreement to the contrary, was responsible for the maintenance and repair of only that portion of the driveway abutting or located on his land. Therefore, the owners of land in proximity to, but not abutting upon, the defendant’s land on which the plaintiff fell and on which the alleged defect had existed owed no duty of repair and could not be held liable to the plaintiff.

In the instant case, however, an equal duty to maintain the private driveway was imposed upon each abutting owner by a covenant in the deed conveying title to his land. Each deed for land abutting the private driveway contained language similar to the following:

Together with the free and common use, right, liberty and privilege of the aforesaid driveway as and for a driveway, passageway and watercourse in common with the owners, tenants and occupiers of the other lots of ground bounding thereon and entitled to the use thereof at all times hereafter. Subject however, to the proportionate part of the expense of keeping said driveway in good order and repair.

Was this language intended to impose upon each owner of the dominant tenement a duty to keep in repair only that portion of the driveway which abutted or lay upon his lot? We think not. To so hold would result in a patchwork arrangement more likely to defeat than encourage the expressed intention to maintain the driveway in good repair with costs apportioned among all dominant tenants. If all abutting owners had a duty to contribute proportionately to the total cost of maintaining the driveway in a state of good repair, was it not also the intention of the parties that all should share the potential liability to one who has been injured because of a failure to keep the driveway in repair?

Whether the intention of the parties, as expressed in their deed covenants, was to create a joint duty of repair and impose joint liability for failure to keep the driveway in repair is a viable issue. If the language of the covenant is ambiguous, extrinsic evidence may be received to show the manner in which the abutting landowners interpreted the covenant on prior occasions when repairs were needed. Other extrinsic evidence may also be helpful.

On a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, who must be given the benefit of all reasonable inferences. Moreover, any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Lehigh Electric Products Co. v. Pennsylvania National Mutual Cas. Ins. Co., 257 Pa.Super. 198, 202-203, 390 A.2d 781, 783 (1978); Schacter v. Albert, 212 Pa.Super. 58, 62, 239 A.2d 841, 843 (1968).

In this case, it seems clear that the summary judgment was improvidently entered. The deed covenants are not supportive of a summary judgment which holds as a matter of law that the dominant owners did not have a joint duty to keep the driveway in repair.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

POPOVICH, J., filed a dissenting statement.

POPOVICH, Judge,

dissenting:

I dissent. I would affirm on the opinion of the trial court.

      . Some additional defendants filed preliminary objections in the nature of a demurrer to the defendant’s complaint; others filed motions to strike the joinder; still others moved for summary judgment. All additional defendants were included in the trial court’s order which decreed that the defendants' complaint against all additional defendants be dismissed "with prejudice.”


author: MONTEMURO, Judge:

text:
    487 A.2d 841
    COMMONWEALTH of Pennsylvania v. Shawna LORE, a/k/a Magdalene Lore, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 21, 1983.
    Filed Dec. 21, 1984.
    Petition for Allowance of Appeal Denied July 18, 1985.

      Robert T. Panowicz, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

Following trial by jury in the Court of Common Pleas of Luzerne County, appellant, Shawna Lore, was found guilty of the following offenses: criminal conspiracy to commit criminal mischief; criminal mischief; criminal conspiracy to commit abuse of corpse; abuse of corpse; criminal conspiracy to hinder apprehension or prosecution; and hindering apprehension or prosecution.

Appellant’s timely filed motion for a new trial and/or in arrest of judgment was denied and appellant was sentenced by the Honorable Arthur D. Dalessandro to six (6) consecutive terms of imprisonment with a minimum total duration of eleven (11) years and a maximum total duration of twenty-two (22) years.

Thereafter, appellant’s petition to modify sentence was denied following a hearing and this appeal ensued. Appellant has alleged, and we review herein, the following assignments of error: (1) the suppression court’s failure to suppress certain inculpatory statements made by appellant; (2) the suppression court’s limiting appellant’s cross-examination of a witness at the suppression hearing; (3) the suppression court’s refusal to grant appellant a continuance to further develop evidence pertinent to the suppression hearing; (4) the lower court’s refusal to grant appellant’s demurrer and her motion in arrest of judgment, (5) the lower court’s admission into evidence of a picture of the decedent; (6) the lower court’s determination of the grade of the charge of hindering apprehension or prosecution as a felony of the third degree; (7) the lower court’s imposition of consecutive sentences on the separate criminal conspiracy counts; (8) the alleged excessiveness of the sentences imposed by the lower court; (9) the alleged inadequacy of the statement of reasons for the sentences imposed; and (10) the lower court’s reliance on allegedly improper considerations in sentencing appellant.

We affirm in part, reverse as to the convictions for criminal conspiracy to commit criminal mischief and criminal mischief, and vacate as to the sentence imposed for criminal conspiracy to commit abuse of corpse.

This case arose out of the events immediately following the shooting death of John McNulty. In the early morning hours of November 8, 1979, McNulty accompanied the appellant, whom he had met earlier that night, to the residence of George Peters at 61 Carbon Lane in Wilkes-Barre, Luzerne County. Once inside the residence, a dispute ensued between McNulty and Raymond Ziomek, appellant’s boyfriend. Ziomek shot and killed McNulty.

Over the course of the following two days, appellant, George Peters, and John Noss, a friend of Ziomek, assisted Ziomek in the concealment and/or destruction of all evidence of McNulty’s death. At appellant’s trial, the combined testimony of Peters and Noss established the following with regard to appellant’s involvement: (1) appellant helped Ziomek and Peters clean the room in which McNulty had been shot; (2) appellant cleaned the cellar steps of the Peters residence over which McNulty’s body was dragged; (3) appellant accompanied Noss and Ziomek to the Wyoming Valley Mall where they obtained an ax, Drano and lye, and then all three returned to the Peters residence; (4) appellant removed a sheet of plastic covering McNulty’s body as it lay in the cellar of the Peters residence; (5) appellant untied a belt which had been used to bind McNulty’s hands; (6) appellant went through McNulty’s pockets; (7) as Noss and Ziomek dismembered McNulty’s body, appellant held garbage bags open in order for the head, arms and legs to be placed in them; (8) appellant understood that the bags were to be thrown into the Susquehanna River; (9) appellant was in the cellar constantly throughout the dismemberment; (10) appellant cleaned the cellar floor, where the body had lain, with buckets of water and by shoveling dirt; (11) appellant carried bags containing the disassembled components of McNulty’s body up from the cellar; (12) appellant placed the bag containing McNulty’s head into a bucket; (13) appellant carried bags containing body parts out to McNulty’s automobile; (14) after the bags were loaded into the automobile, appellant and Noss accompanied Ziomek as he drove McNulty’s automobile to the Breslau Bridge over the Susquehanna River; (15) Ziomek and Noss tossed McNulty’s torso into the river and appellant threw the remaining bags in; and (16) Ziomek, Noss and appellant then proceeded to a coal stripping area where Ziomek set fire to McNulty’s automobile.

On November 23,1979, appellant was arrested on matters unrelated to the McNulty homicide. However, appellant was thereafter questioned regarding that homicide and on November 28 and 29, respectively, appellant made two inculpatory statements.

As related by Trooper Charles Casey of the Pennsylvania State Police on direct examination at appellant’s trial, the substance of appellant’s November 28, 1979 statement included the following assertions: (1) after arriving at the Peters residence with McNulty, appellant watched as Ziom-ek and Peters argued; (2) Ziomek shot McNulty; (3) Ziomek dragged McNulty’s body into the cellar and covered it up; (4) Noss and Ziomek later dismembered the body and placed it in garbage bags; (5) Noss and Ziomek carried the bags to McNulty’s automobile; (6) Noss, Ziomek and appellant traveled to the Breslau Bridge and the bags were tossed into the river; and (7) Ziomek burned the car.

Appellant’s November 29, 1979 statement was recorded on tape and the tape was subsequently played before the jury at appellant’s trial. This statement included the following additional inculpatory remarks: (1) appellant cleaned the steps and the rug going into the cellar of the Peters residence after Ziomek dragged McNulty’s body over them; (2) appellant accompanied Noss and Ziomek to the Wyoming Valley Mall while they obtained a hatchet, Drano and lye; (3) appellant, Noss and Ziomek later went down into Peters’ cellar and Ziomek announced his intent to dismember McNulty’s body; (4) appellant removed the plastic sheet and the debris covering the body; (5) appellant got garbage bags from upstairs and threw them into the cellar; (6) appellant was upstairs and heard “cutting” noises from the cellar; (7) appellant took a bucket of water into the cellar and poured it over a spot where the body had been laying; (8) after Noss and Ziomek finished dismembering the body, appellant again took a bucket of water into the cellar, poured it over the remaining blood stains, and shoveled dirt over the spot where the body had been dismembered; and (9) appellant threw one of the bags in the river.

Immediately prior to the commencement of appellant’s trial on November 17, 1980, her counsel made the following oral motion:

The second motion that I would make at this time is that this morning from the Public Defenders’ Office, a Judy Kleiman and a Russ Thomas had indicated that at the time that Mrs. Lore had made certain statements to the District Attorney that they had evidence of some needle marks on her arms and that they indicated that she had not slept for a number of days or hours. At this time I would present the Court with an oral motion on a suppression of the statements given by Mrs. Lore. I found that out this morning and I did not have an opportunity to present a written motion to the Court for the suppression of that evidence.

N.T., November 17, 1980, at 16. (Appellant had earlier filed omnibus pretrial motions, however, these did not contain a motion to suppress.) The lower court permitted a hearing to be held on the above motion; at the conclusion of which, the motion was denied.

Appellant’s first assignment of error alleges that the suppression court erroneously denied appellant’s motion to suppress the inculpatory statements made by her on November 28 and 29, 1979. Appellant argues that, because she was tired and experiencing the physical and psychological effects of narcotic withdrawal, her November 28 and 29, 1979 statements were not intelligently, knowingly and voluntarily made and, therefore, were not the product of a constitutionally effective waiver of the rights afforded her under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In reviewing the action taken by the suppression court in admitting appellant’s statements into evidence, we are guided by the standard enunciated in Commonwealth v. O’Bryant, 479 Pa. 534, 388 A.2d 1059, cert. denied, 439 U.S. 990, 99 S.Ct. 589, 58 L.Ed.2d 664 (1978):

[T]his Court must consider only the evidence presented by the Commonwealth and so much of the evidence for the defense as fairly read in the context of the record as a whole, remains uncontradicted____ Where the suppression court’s findings have ample support in the record, they may not be disturbed on appeal.

Id., 479 Pa. at 537, 388 A.2d at 1061; see also Commonwealth v. Taylor, 494 Pa. 399, 403, 431 A.2d 915, 917 (1981).

Moreover, we are mindful of the fact that the admissibility of the challenged statements need not be proven beyond a reasonable doubt. It is sufficient if the Commonwealth satisfies the court by a preponderance of the evidence that the legal requirements for admissibility have been met, that is, that appellant herein waived her constitutional rights voluntarily, knowingly and intelligently. Taylor, supra; Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).

The Commonwealth called three witnesses to testify at the suppression hearing, Trooper Casey, Detective Chester Dudick of the Wilkes-Barre Police Department and Detective Frank Ratchford of the Kingston Police Department, all three of whom had contact with appellant between November 23 and 29, 1979, the former two having been present when appellant made the statements in question. As to the apparent physical and psychological condition of appellant at the time of the November 28, 1979 statement, Detective Dudick testified that appellant appeared normal and at ease. Appellant was coherent and responded intelligently to the questions posed. Detective Dudick testified that appellant did not mention any drug withdrawal symptoms or complain of any discomfort. Trooper Casey essentially reiterated Detective Dudick’s observations regarding appellant’s condition on November 28. As to appellant’s condition at the time of the November 29, 1979 statement, Detective Dudick testified that appellant was asked if she was on drugs and responded negatively. Appellant did not complain of any withdrawal symptoms. Detective Dudick further testified that he felt there was no reason to ask appellant questions concerning any possible sleeplessness because she appeared very alert. Trooper Casey similarly testified that, on November 29, appellant appeared “well-rested.” Detective Ratchford testified that, on the dates when he met with appellant, she did not “shake”, appear “nauseous” or mention any withdrawal symptoms.

Appellant introduced medical records from the Luzerne County Women’s Detention Center, where appellant was incarcerated on the dates in question. These records indicated that, on November 24, 1979, there were “needle marks” on appellant’s arms. During the suppression hearing, appellant exhibited to the court three needle marks, one on the inside of each elbow and one on the back of her right hand. Appellant testified to a long history of drug usage and that, during the week immediately prior to her arrest on November 23, 1979, she was injecting morphine or dem-erol at least every three hours. However, her testimony indicated that her usual drug intake was significantly less prior to that week. After describing the symptoms of morphine and demerol withdrawal as including shaking, muscle spasms, nausea, vomiting and hot/cold flashes, appellant testified that, on the dates in question, she was only “shaky” and “nauseous”. Appellant further testified that between November 24 and 29,1979, her nighttime sleep was fitful.

The suppression court found:

[B]oth statements given by the defendant [appellant] were made voluntarily, intelligently, knowingly and understandingly____ [T]here was no mental or physical disease or disability existing at the times of the giving of both statements. ... Defendant was in full command of her faculties and knew very well what she was doing, what the subject matter was, and what the contents of her statements were and their possible future use.

N.T., November 17, 1980, at 127.

After a careful review of the record and in light of the legal standards set forth above, we find that the suppression court’s admission of appellant’s November 28 and 29, 1979 statements was proper.

Appellant’s next assignment of error contends that the suppression court erred in limiting appellant’s cross-examination of Detective Ratchford regarding the symptoms of withdrawal from various narcotics.

The pertinent portions of the Commonwealth’s direct examination of Detective Ratchford proceeded:

Q. Have you had occasion to experience or have you had occasion to observe people under the influence of drugs?
A. Yes, I have.
Q. Specifically, Demerol and Morphine?
A. Yes, I have.
Q. Based upon that experience, would you tell us whether or not the Defendant [appellant] exhibited any of those symptoms?
A. Not in my opinion, not at all.

N.T. November 17, 1980, at 113.

On cross-examination, Detective Ratchford was asked:

A. I believe—
MR. EICHORN [Assistant District Attorney]: May it please the Court, I asked on direct examination, specifically, Morphine and Demerol.
THE COURT: Objection sustained. You direct the witness to his—
MR. PANOWICZ [Defense Counsel]: Okay. All right. Let’s put it this way—
THE COURT: —reference to Demerol and Morphine. BY MR. PANOWICZ:
Q. Demerol and Morphine as opposed to Cocaine and Heroin and the other ones, the one that you referred to that you were experienced in? How are those symptoms different from the others?
MR. EICHORN: Again, Your Honor, it’s the same question—
THE COURT: Objection is sustained.

Id. at 115-16.

Ordinarily, cross-examination of an adverse witness is limited to matters brought out on direct examination, with few exceptions. Commonwealth v. Katsafanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983); Commonwealth v. Ervin, 262 Pa.Super. 322, 396 A.2d 776 (1978). Although it is well established that courts must allow latitude as to the scope of cross-examination, Commonwealth v. Thorpe, 270 Pa.Super. 221, 411 A.2d 497 (1979), it is equally well established that, “The scope of cross-examination is largely within the sound discretion of the trial judge, and even if a ruling is erroneous, the error is not grounds for reversal unless it results in apparent injury." Commonwealth v. Donnelly, 233 Pa.Super. 396, 417, 336 A.2d 632, 644 (1975), cert. denied, 424 U.S. 974, 96 S.Ct. 1477, 47 L.Ed.2d 744 (1976).

Appellant’s attempt, on cross-examination, to test Detective Ratchford’s knowledge regarding the symptoms of withdrawal from drugs other than those inquired about on direct examination was clearly beyond the literal scope of the direct examination. The suppression court’s consequent limitation of the cross-examination was therefore well within its discretionary power. In addition, appellant has failed to allege, and we are unable to discover, any manifest injury to appellant’s arguments as a result of that limitation. We therefore find the suppression court’s ruling on the Commonwealth’s objections to have been proper.

Appellant’s third assignment of error challenges the suppression court’s refusal to grant her a continuance to further develop pertinent evidence. We find this refusal to have been entirely proper.

In an attempt to elicit information regarding the physical and mental condition of appellant on November 28 and 29, 1979, appellant called as a witness Judy Kleiman, an employee of the Luzerne County Public Defender’s Office. Appellant questioned this witness concerning her observations of appellant on or about the dates in question. The witness possessed no first-hand knowledge, having not been employed by the Public Defender’s Office at the time. Upon learning this, appellant requested an opportunity to subpoena certain medical records kept by the Luzerne County Women’s Detention Center, which the suppression court denied. The following exchange ensued:

MR. PANOWICZ: Your Honor, we cannot proceed any further.
THE COURT: You have given two names this morning. You’ve given the name of this witness and another person in the Public Defender’s Office. It was my impression that they had observed certain physical characteristics on the arm of the Defendant on November 28th and/or 29th, 1979.
MR. PANOWICZ: Yes, Your Honor, that was my observation, too. Now, I find out the notation of needle marks was not made by this person, individually, but was made from calling up the Women’s Detention Center.

N.T., November 17, 1980, at 73-74.

Appellant asserts that she was afforded an insufficient amount of time to prepare for the suppression hearing. Appellant relies upon Commonwealth v. Ross, 465 Pa. 421, 350 A.2d 836 (1976) and Commonwealth v. Flynn, 248 Pa.Super. 62, 374 A.2d 1317 (1977). We find these two cases to be inapposite in that both concern situations where the individual counsel were afforded a single day or less to prepare for trial. Appellant’s counsel herein had nearly three (3) weeks from the date of appointment, October 29, 1980, to interview witnesses and to assemble any necessary documentation.

Furthermore, we note that the granting of a continuance is discretionary and that the refusal to grant a continuance amounts to reversible error only if there appears to have been an extreme abuse of discretion. Commonwealth v. Andrews, 245 Pa.Super. 547, 369 A.2d 762 (1977). The refusal herein can, by no means, be viewed as amounting to such an “extreme” case, particularly in light of the fact that appellant was later granted an opportunity to telephone the detention center, N.T., November 17, 1980, at 108-09, and obtained the desired records. Pertinent portions were admitted into evidence and considered by the suppression court. Id. at 122-27.

Appellant further assigns as error the lower court’s failure to grant a demurrer at the close of the Commonwealth’s case and appellant’s motion in arrest of judgment. Specifically, appellant argues that, as to all of the charged offenses, the Commonwealth’s evidence was insufficient to support a finding of appellant’s guilt beyond a reasonable doubt.

In assessing the merits of appellant’s sufficiency claims, we apply the standard enunciated in Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983):

The test for sufficiency of the evidence is whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, 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____ [A] claim of insufficiency of the evidence will not be assessed on a diminished record, but rather on the evidence actually presented to the finder of fact rendering the questioned verdict.

Id., 498 Pa. at 669, 450 A.2d at 977 (citations omitted).

After a careful review of the entire record in this case, we find that there was overwhelming support for the denial of a demurrer and for a finding of appellant’s guilt beyond a reasonable doubt on the charges of abuse of corpse, hindering apprehension or prosecution, and related criminal conspiracies.

However, we agree with appellant’s position as to the criminal conspiracy to commit criminal mischief and the criminal mischief charges, arising out of the destruction of McNulty’s automobile, for the following reasons:

The offense of criminal conspiracy is set forth in the Crimes Code as:

Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
The substantive offense of hindering apprehension or prosecution is defined as follows:
Hindering apprehension or prosecution
(a) Offense defined. — A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he:
(1) harbors or conceals the other;
(2) provides or aids in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape;
(3) conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence;
(4) warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law; or
(5) volunteers false information to a law enforcement officer. 18 Pa.C.S. § 5105.
Appellant asserts that the Commonwealth failed to satisfy its burden of proof by not introducing into evidence facts establishing that an earlier crime was indeed committed. Appellant reasons that without proof of an earlier crime, one cannot be held to have violated section 5105. We do not read section 5105 as requiring that such an element be proven.
Evidence is sufficient to sustain a conviction for a violation of section 5105 if the Commonwealth establishes, and a jury so finds, that beyond a reasonable doubt the appellant intended to hinder the apprehension or prosecution of another by performing any of the enunciated acts. This interpretation is wholly consistent with the comments to Model Penal Code § 242.3 (1962), which served as the prototype for section 5105,
The majority of recent codification efforts have agreed with the Model Code position that this offense should be recharacterized as an obstruction of justice and accordingly have dispensed with the necessity that it be shown that the putative offender actually committed a crime and that the person rendering assistance was aware of that fact.
Model Penal Code § 242.3 comment 3 (1980).
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S. § 903(a). It is well established that a criminal conspiracy is a common understanding, either tacit or express, which may be proven inferentially but not by mere suspicion or conjecture. See Commonwealth v. Azim, 313 Pa.Super. 310, 459 A.2d 1244 (1983); Commonwealth v. Volk, 298 Pa.Super. 294, 444 A.2d 1182 (1982).

Insufficient evidence was presented at trial to establish a common understanding between appellant and any of the other actors to engage in, plan, attempt or solicit the crime of criminal mischief. Peters was unable to testify to any of the events occurring after the garbage bags containing the body were loaded into McNulty’s automobile, since he did not accompany Ziomek, Noss and appellant after they left his residence. Appellant’s own statements indicate only that she was a passenger in the automobile and participated in throwing the bags from the Breslau Bridge. Her statements do not indicate that she was cognizant of Ziomek’s intent to also dispose of the automobile. Noss, the only witness capable of proving this charge against appellant, testified on direct examination that he believed that it was understood between Ziomek, himself and appellant, while they were still at the Peters residence, that the automobile would be burned. However, on cross-examination, Noss testified:

Q. ...
Now Mr. Noss, isn’t it true that you did not talk about getting rid of the car at all while you were at 61 Carbon Lane [Peters' residence]?
A. He [Ziomek] said it was to be burned.
Q. Now, did this occur at 61 Carbon Lane?
A. Yes.
Q. Okay. So your best recollection here today is that while at 61 Carbon Lane, Mr. Ziomek said he was going to burn the car?
A. Yes.
Q. And who was present at that time?
A. Myself and George Peters. I believe Shawna was in the other room.
Q. Okay. So Mrs. Lore was not even present at the time that he said this, was she?
A. I don’t believe so.
Q. Okay. But you do recall that he did say something while at 61 Carbon Lane?
A. Yes.

N.T., November 17, 1980, at 313. Noss also testified that he had been responsible for obtaining a jar of gasoline, which was used to burn the automobile, and for placing the jar in the automobile prior to leaving the Peters’ residence.

On the basis of the record before us, there was insufficient evidence for the jury to have found, beyond a reasonable doubt, the existence of a prior agreement, involving appellant, to burn and/or destroy McNulty’s automobile. We therefore reverse the conviction on the charge of criminal conspiracy to commit criminal mischief.

The substantive crime of criminal mischief is defined in the Crimes Code as:

Offense defined. — A person is guilty of criminal mischief if he:
(1) damages tangible property of another intentionally, recklessly, or by negligence in the employment of fire, explosives, or other dangerous means listed in section 3302(a) of this title (relating to causing or risking catastrophe);
(2) intentionally or recklessly tampers with tangible property of another so as to endanger person or property; or
(3) intentionally or recklessly causes another to suffer pecuniary loss by deception or threat.

18 Pa.C.S. § 3304(a).

At trial, Noss testified: (1) he obtained a jar of gasoline and placed it in the McNulty automobile prior to leaving the Peters residence; (2) Ziomek was the driver of the automobile from the time they left the Peters residence until they reached the location where the automobile was burned; (3) Ziomek poured the gasoline on the front and back seats of the automobile; (4) Ziomek lit a ball of paper and tossed it into the automobile; (5) appellant had already walked away prior to Ziomek’s burning of the automobile; and (6) appellant had nothing to do with the burning of the automobile. This testimony conforms to appellant’s November 28 and 29, 1979 statements admitted at trial.

With reference to appellant’s sufficiency claim regarding the charge of criminal mischief, we find that the Commonwealth failed to produce even a modicum of evidence of appellant’s guilt on this charge. There was insufficient evidentiary support for the jury’s finding appellant guilty of criminal mischief and we therefore reverse the conviction on this charge.

Appellant’s next assignment of error alleges that the trial court erred in admitting into evidence a picture of McNulty, taken prior to his death. Appellant relies upon Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), for the principle that only evidence which is relevant, i.e., which possesses rational probative value, is admissible and because the supreme court held therein that a picture of the homicide victim with his handicapped daughter “shed absolutely no light on the criminal episode” and was therefore inadmissible.

The lower court found in the case sub judice that the photograph of McNulty was not inflammatory or prejudicial and was relevant to the abuse of corpse charge. We disagree.

The lower court did not set forth, and the Commonwealth has failed to argue, any reasons sufficient to persuade us that the photograph in issue assisted the trier of fact in any material way. Additionally, we note that the photograph of McNulty was identified by, and admitted into evidence during the direct examination of, McNulty’s widow. The prejudice to appellant resulting from these circumstances, combined with the photograph’s lack of probative value, rendered it inadmissible.

However, we find that any error on the part of the lower court in admitting the photograph of McNulty into evidence was harmless beyond a reasonable doubt. Initially, we note that there is nothing in the record or in the briefs before us indicating that the photograph of McNulty was nearly as compelling as the photograph at issue in Story, supra. Furthermore, the uncontradicted evidence of appellant’s guilt on the pertinent charges of abuse of corpse and the related criminal conspiracy was so overwhelming, and the prejudicial effect of the photograph of McNulty so insignificant by comparison, that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict. Id., 476 Pa. at 417, 383 A.2d at 168.

Appellant assigns as error the sentencing court’s determination of the grade of the charge of hindering apprehension or prosecution as a felony of the third degree. The gradation of hindering apprehension or prosecution is directed to be as follows:

Grading. — The offense is a felony of the third degree if the conduct which the actor knows has been charged or is liable to be charged against the person aided would constitute a felony of the first or second degree. Otherwise it is a misdemeanor of the second degree.

18 Pa.C.S. § 5105(b).

Appellant specifically argues that because Ziomek, the individual aided, was charged with homicide, which is inclusive of the classification “involuntary manslaughter”, a misdemeanor of the first degree, the Commonwealth has therefore waived any right to seek a gradation of a felony of the third degree on appellant’s hindering apprehension or prosecution charge. We disagree.

Due to the dearth of pertinent case law, we turn to the comments to Model Penal Code § 242.3, which served as the prototype for 18 Pa.C.S. § 5105. These comments make clear that the drafters’ intent was to depart from the harsh tenets of the common law regarding “accessories after the fact”, whose culpability was derivative from, and equivalent to, that of their principals. The drafters attempted to shift the focus of culpability to the “aider” and away from the “aided”. Therefore, section 242.3 looks to the aider’s state of mind and treats his/her behavior for what it is — obstruction of justice.

The gradation of the aider’s offense is keyed to his/her knowledge of how the aided individual has been, or is liable to be, charged.

Of course, it is not necessary that the defendant know the law of the crime for which the other is sought. For this reason the grading provision for this offense requires only that the aider know that the conduct charged or liable to be charged against the other person is of the sort proscribed by one of the more serious degrees of felony.

Model Penal Code § 242.3 comment 6 (1980).

Appellant’s argument is therefore misdirected. Our concern is not with how Ziomek was ultimately charged, but instead we must concern ourselves with what “the actor [appellant] knows ... is liable to be charged ...” at the time when appellant was acting in violation of section 5105.

The record establishes that appellant was acutely aware that her boyfriend, Ziomek, shot and killed a man. In an effort to protect Ziomek, she assisted in various gruesome acts of concealment at great personal risk of penal sanctions. As stated above, appellant need only have known that Ziomek was liable to be charged with conduct “of the sort proscribed by one of the more serious degrees of felony” in order for her conduct to amount to a felony of the third degree. Appellant’s behavior following the shooting indicated such knowledge.

We, therefore, find that it was not error for the sentencing court to grade appellant’s hindering apprehension or prosecution conviction as a felony of the third degree.

Appellant next challenges as error the sentencing court’s imposition of consecutive sentences on the separate criminal conspiracy counts. Specifically, appellant argues that, on the record, there was only a single continuing conspiracy. As to the sentences imposed for criminal conspiracy to hinder apprehension or prosecution and criminal conspiracy to commit abuse of corpse, we agree.

There can be no question that a conspiratorial relationship developed between Ziomek, Noss, Peters and appellant following the shooting death of McNulty. The criminal objectives of this conspiracy were the disposing of McNulty’s corpse and the concealment of related evidence.

Subsection 903(c) of the Crimes Code addresses this situation:

Conspiracy with multiple criminal objectives. — If a person conspires to commit a number of crimes, he is guilty of only one conspiracy as long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.

18 Pa.C.S. § 903(c).

Section 903(c) articulates a concept which is not new in American jurisprudence, “ ‘The conspiracy is the crime, and that is one, however diverse its objects.’ ” Braverman v. United States, 317 U.S. 49, 54, 63 S.Ct. 99, 102, 87 L.Ed. 23 (1942), quoting Frohwerk v. United States, 249 U.S. 204, 210, 39 S.Ct. 249, 252, 63 L.Ed. 561 (1919). See also W. LaFave and A. Scott, CRIMINAL LAW § 62 (1972) (“An agreement to commit several crimes is but one conspiracy.”) In Braverman, supra, the Supreme Court went on to explain that, “The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute----” Id. 317 U.S. at 54, 63 S.Ct. at 102.

More recently, the parameters of this principle have been further defined:

A single, continuing conspiracy is demonstrated where the evidence proves that the essential feature of the existing conspiracy was a common plan or scheme to achieve a common, single, comprehensive goal____ A single, continuing conspiracy may contemplate a series of offenses, or be comprised of a series of steps in the formation of a larger, general conspiracy____ Therefore, where the evidence at trial is sufficient for the jury to infer that the essential features of the existing conspiracy were a common plan or scheme to achieve a common, single, comprehensive goal or end, then the conclusion that the conspiracy was a single, continuing conspiracy is justified.

United States v. Continental Group, Inc., 456 F.Supp. 704, 716 (E.D.Pa.1978), aff'd, 603 F.2d 444 (3d Cir.1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 703, 62 L.Ed.2d 668 (1980). See also United States v. Hubbard, 474 F.Supp. 64, 71-72 (D.D.C.1979); United States v. DiPasquale, 561 F.Supp. 1338, 1348-50 (E.D.Pa.1983).

Appellant herein relies upon Commonwealth v. Rich-bourg, 260 Pa.Super. 438, 394 A.2d 1007 (1978). In our view such reliance is not misplaced.

In Richbourg, appellant/defendant committed robbery in order to obtain a set of keys to a nearby restaurant, which he later burglarized. Appellant therein was charged with conspiracy to commit robbery and conspiracy to commit burglary in addition to the substantive offenses. Applying section 903(c), this court refused to uphold the separate conviction for conspiracy to commit robbery, concluding that the robbery was a “necessary intermediate step” toward the commission of the burglary, and therefore only a single conspiracy existed.

Although it may be argued that the Richbourg decision is inapposite to the case sub judice because of the “necessary intermediate step” language, we decline to so narrowly limit the holding in that case. Rather, a careful reading of section 903(c) and of Braverman and its progeny leads us to the conclusion that Richbourg must be read as positing a more general principle in line with the literal language of section 903(c).

In the case before us, the co-conspirators’ tacit agreement to embark on a continuous course of conduct, necessitated by the shooting of McNulty, contained within it a common scheme or design, namely, the concealment of all physical evidence of McNulty’s death. The co-conspirators’ acts in their effort to conceal any trace of McNulty’s corpse were the multiple criminal objectives of a continuous conspiratorial relationship and each was a component of the larger common design.

In the instant case, appellant should have been sentenced on only a single charge of criminal conspiracy. Accord Commonwealth v. Black, 267 Pa.Super. 598, 407 A.2d 403 (1979). This court may, in its discretion, either modify the sentence imposed or remand for modification. Richbourg, supra, 260 Pa.Super. at 446 n. 6, 394 A.2d at 1011 n. 6.

In our decision to modify the sentence imposed, we are guided by section 905 of the Crimes Code:

Grading. — Except as otherwise provided in this section, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy. An attempt, solicitation or conspiracy to commit murder or a felony of the first degree is a felony of the second degree.

18 Pa.C.S. § 905(a). Of the substantive crimes committed by appellant in furtherance of the conspiracy, the more serious is hindering apprehension or prosecution. Appellant was sentenced to the maximum of three and one-half to seven (3:/2-7) years on the criminal conspiracy to commit hindering apprehension or prosecution.

We affirm this sentence and vacate the sentence imposed on the charge of conspiracy to commit abuse of corpse.

Appellant’s next assignment of error alleges that the sentences imposed were generally excessive in light of her minimal participation and in light of the lesser sentences imposed upon her co-conspirators, Peters and Noss. We disagree.

It is well settled law in this Commonwealth that the sentence imposed upon a charge is within the broad discretion of the sentencing judge, Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. DeCaro, 298 Pa.Super. 32, 444 A.2d 160 (1982), and will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Mead, 300 Pa.Super. 510, 446 A.2d 971 (1982). In order for a sentence to constitute an abuse of discretion, it must either exceed statutory limits or be manifestly excessive. Commonwealth v. Rooney, 296 Pa. Super. 288, 442 A.2d 773 (1982). Appellant has not argued that her sentences exceeded statutory limits.

As to the first branch of appellant’s arguments, i.e., that her participation was minimal, we note only that, after a careful review of the record, we find the evidence adduced at trial to be overwhelmingly to the contrary. We find no manifest excessiveness in the sentence imposed.

As to the second branch of appellant’s arguments, i.e., that Noss and Peters received lesser sentences, we note that it is not an abuse of discretion for co-conspirators, accused of the same or similar crimes, to receive differing sentences. Commonwealth v. Craft, 304 Pa.Super. 494, 450 A.2d 1021 (1982). This is particularly true when, as in the case sub judice, other co-conspirators, e.g., Noss and Peters, have provided valuable assistance to the Commonwealth in the bringing of related prosecutions. We therefore find this second branch of appellant’s arguments to be without merit.

Appellant further alleges that the sentencing judge failed to adequately explain his reasons for the sentences imposed. See Pa.R.Crim.P. 1405(b); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). During the sentencing colloquy, the sentencing judge need not specifically cite or include the language of the Sentencing Code, he must only demonstrate that the court has considered the factors specified in the Code. Commonwealth v. Wilson, 306 Pa.Super. 372, 452 A.2d 772 (1982); Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982).

In light of the Sentencing Code standards and the sentencing guidelines, and after a careful review of the sentencing colloquy herein, we find that the announced reasons were more than adequate. The reasons stated demonstrated the sentencing judge’s prolonged consideration of the salient factors relevant to appellant’s character, prior record, rehabilitative needs, the circumstances of the offenses, and the need to protect the public. See Rooney, supra.

Appellant’s final assignment of error challenges the sentencing judge’s allegedly improper considerations in sentencing appellant. At the sentencing hearing, the judge posed the following question to appellant’s counsel, “Do you think that Mr. McNulty might be alive today if Miss Lore wasn’t the person who set the ultimate events in motion?” N.T. March 31, 1982, at 15. The sentencing judge went on to state, “That concerns me very seriously.” Id., 301 Pa.Superior Ct. at 16, 446 A.2d 1313.

The evidence adduced at trial establishes that appellant was indeed the individual who led McNulty to the Peters residence on that fateful night. She did “set the ultimate events in motion.” We find the sentencing judge’s consideration of that fact to be logical, and not an impermissible factor.

We affirm the judgments of sentence imposed by the lower court on the charges of abuse of corpse, criminal conspiracy to hinder apprehension or prosecution and hindering apprehension or prosecution. We reverse the convictions for criminal conspiracy to commit criminal mischief and criminal mischief, and we vacate the judgment of sentence imposed by the lower court on the charge of criminal conspiracy to commit abuse of corpse.

Affirmed in part, reversed in part, vacated in part.

      . 18 Pa.C.S. § 903.

      . Id. § 3304.

      . Id. § 903.

      . Id. § 5510.

      . Id. § 903.

      . Id. § 5105.

      . Appellant was sentenced to three terms of one (1) to two (2) years on these three convictions.

      . In her brief before us, appellant additionally argues that: (1) the interrogating officers. Trooper Charles Casey of the Pennsylvania State Police and Detective Chester Dudick of the Wilkes-Barre Police Department, gave appellant inadequate constitutional warnings prior to the November 28, 1979 statement and, therefore, appellant’s waiver cannot be viewed as "explicit” under Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979) and Commonwealth v. Nixon, 288 Pa.Super. 78, 431 A.2d 296 (1981); (2) since there was not an explicit waiver of appellant’s constitutional rights preceding the first statement and it therefore was inadmissible, the November 29, 1979 statement, given fifteen (15) hours later, was the by-product of that "primary taint” and was similarly inadmissible; and (3) appellant was never sufficiently informed, prior to either statement, of the crimes for which she was under investigation or which would, or could, be charged against her.
      Appellant’s pretrial motion to suppress did not apprise the suppression court of these specific allegations and, therefore, appellant has not preserved any related arguments for review. See Pa.R.Crim.P. 323(d); see also Commonwealth v. Jones, 487 Pa. 183, 409 A.2d 25 (1979); Commonwealth v. Menginie, 312 Pa.Super. 293, 458 A.2d 966 (1983).

      . Appellant frames her general position as "the verdict was against the weight of the law and evidence." Nevertheless, her supporting arguments go to the sufficiency of the evidence and appellee responds in its brief as if appellant’s claims are directed at the sufficiency of the evidence. We, therefore, have reviewed her arguments as challenging sufficiency.
      Furthermore, this case is not controlled by this court’s decision in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). Therefore, we find that appellant's boilerplate post-trial motion regarding "sufficiency" was properly preserved by her brief and argument before the lower court and by her brief before this court. See Lower Court Opinion, at 10.

      . Due to the novel nature of one of appellant's arguments supporting her general position that the Commonwealth's evidence was insufficient as to the hindering apprehension or prosecution charge, we take this opportunity to articulate our analysis.

      . Appellant makes the related argument that the trial court erred in permitting McNulty’s wife to testify to the quality of her marriage to McNulty. This issue was not properly preserved for our review due to appellant’s failure to include it in her post-trial motions and to the lack of any apparent objection to this testimony at trial. See Pa.R.A.P. 302(a); Pa.R.Crim.P. 1123(a).

      . 18 Pa.C.S. § 2501.

      . Id. at 2504(b).

      . As a result of our earlier disposition regarding appellant’s conviction for criminal conspiracy to commit criminal mischief, we need not reach the merits of appellant’s instant argument as it relates to that sentence.

      . Due to our earlier dispositions of the sentences reviewed herein, we are entertaining appellant’s "excessiveness” arguments only as they relate to the sentences imposed for abuse of corpse, hindering apprehension or prosecution, and criminal conspiracy to hinder apprehension or prosecution.

      . 42 Pa.C.S. § 9701 et seq.

      . Id. at 9721(b).

      . 209 Pa.Code § 303.1 et seq.

      . Appellant’s related assignment of error, i.e., that the sentencing judge failed to consider the minimum sentence necessary for the protection of the public and the rehabilitative needs of appellant, we find to be without support in the record before us.

      . Appellant relies on Commonwealth v. Cowan, 275 Pa.Super. 341, 418 A.2d 753 (1980). However, we find Cowan to be inapposite in that this court therein found it necessary to remand the case due to what may have been inaccurate information relied upon by the sentencing judge. No such inaccuracy is herein alleged and the fact at issue is well supported in the record.

      . In this opinion, we have declined to discuss appellant’s allegations that the court erred in refusing appellant’s requested jury instructions on the issue of duress, on the issue of mere presence at the scene of a crime as insufficient evidence to convict, and on intent. As to the first two of these requested instructions, the lower court concluded that there was insufficient evidence to justify the giving of these instructions. As to the last of these requested instructions, the lower court concluded that its instruction, as given, was adequate and, furthermore, that this particular assignment of error had not been properly preserved. We find that the lower court opinion adequately addresses and disposes of these contentions. See Lower Court Opinion at 7-10.