author: CAVANAUGH, Judge: McEWEN, Judge,

text:
    486 A.2d 410
    John ACKERMAN, Appellant, v. Ronald M. DELCOMICO.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1984.
    Filed Dec. 12, 1984.
    Reargument Denied Jan. 28, 1985.
    Petition for Allowance of Appeal Denied June 18, 1985.

      Henry E. Rea, Jr., Pittsburgh, for appellant.
    John W. Blasko, State College, for appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order of the Court of Common Pleas of Centre County, sitting en banc, denying appellant’s Motion for New Trial, and entering judgment on the verdict in favor of appellee. In his suit, appellant, Ackerman, a pedestrian, sought damages from appellee, Delcomico, a motorist, as a result of accidental injury.

Ackerman contends that the lower court erred in: (1) allowing the introduction of evidence on the issue of intoxication of appellant, and, (2) charging the jury on 75 Pa.C.S. § 3550, when there was no evidence that the appellant was a “hazard” under that section. We agree with appellant that the lower court erred in its charge to the jury on 75 Pa.C.S. § 3550, insofar as it expressly incorporated the presumption under 75 Pa.C.S. § 1547(d)(3), which was unduly prejudicial to appellant. We therefore reverse and remand for a new trial.

The record reveals the following. Appellant, who was on foot, was struck by a vehicle operated by appellee at an intersection in State College, Pennsylvania. The accident occurred on March 4, 1979 at approximately 11:00 P.M. The night was foggy and rainy. The only witness to the accident were the two parties herein and Janet Zoller, appellant’s girlfriend. Ackerman testified that he had no independent recollection of the events in question. Appellee testified that he did not see appellant until after he had hit him. Therefore, Zoller was the only witness able to observe and testify to appellant’s conduct before being struck.

The accident occurred as Ackerman and Zoller, who was walking five feet behind appellant, proceeded to cross Atherton Street, at its intersection with Westerly Parkway. The street is approximately forty feet wide, and has two lanes running south and one running north. When they first stepped off the curb, thus entering the northbound lane, the green light for the traffic was in their favor, and they started to cross the street. About the time Zoller reached the double yellow line, she looked up and noticed appellee coming down the downgrade of Atherton Street towards them, in the far southbound lane, that is, the lane closest to the curb. At that time she also looked at the traffic signal and noticed that the light had changed, so that they were then crossing against the light. Appellee testified that he saw Zoller from about a distance of twenty yards from the intersection, but did not see Ackerman. Zoller testified that she saw appellant glance in the direction of appellee’s car, but that he continued to walk at the same rate of speed. Appellant was struck approximately three feet from the curb.

Zoller and Martin Brown, appellant’s roommate, testified that appellant had been drinking beer since late in the afternoon on the day of the accident. Appellee testified, as did the medical personnel who treated appellant after being struck, that appellant’s breath smelled strongly of beer. In addition, a blood alcohol content of .195 was read into the record from appellant’s hospital record. Additional evidence from appellant’s hospital record was read into the record which revealed that appellant admitted drinking heavily that afternoon, and that after the accident he had slurred speech and an unusually low level of alertness. Notably, however, Zoller testified that before the accident, appellant was not slurring his speech, staggering, or swaying in his gait or exhibiting any type of conduct evidencing an intoxicated state.

The issues on appeal are whether the court erred: in admitting into evidence certain testimony proffered for the purpose of proving appellant was intoxicated; and, in its charge to the jury.

There are several statutory provisions pertinent to our consideration:

75 Pa.C.S. § 3550. Pedestrians under influence of alcohol or controlled substance

A pedestrian, who is under the influence of alcohol or any controlled substance to a degree which renders the pedestrian a hazard shall not walk or be upon a highway except on a sidewalk.

75 Pa.C.S. § 1547, Chemical testing to determine amount of alcohol or controlled substance, in effect at the time of trial, provided in pertinent part:

(c) Test results admissible in evidence. — In any summary proceeding or criminal proceeding in which the defendant is charged with driving a motor vehicle while under the influence of alcohol, the amount of alcohol in the defendant’s blood, as shown by a chemical analysis of his breath or blood, which analysis was conducted with equipment of a type approved by the Department of Health and operated by qualified personnel, shall be admissible in evidence.
(d) Presumptions from amount of alcohol. — If chemical analysis of a person’s breath or blood shows:
(3) That the amount of alcohol by weight in the blood of the person fested is 0.10% or more, it shall be presumed that the defendant was under the influence of alcohol.

To facilitate our discussion of this case, we have distilled the analysis into three distinct parts.

1. Evidence of Intoxication Regarding A Pedestrian Allegedly Under the Influence of Alcohol

There has been scant case law involving an allegedly intoxicated pedestrian who has been struck by a motor vehicle. In Kriner v. McDonald, 223 Pa.Super. 531, 533-34, 302 A.2d 392, 394 (1973), the court stated:

evidence tending to establish intoxication on the part of a pedestrian is inadmissible unless such evidence proves unfitness to be crossing the street. Pennsylvania courts have gone to great lengths to enforce this rule. Consequently, no reference should be made to a pedestrian’s use of alcohol unless there is evidence of intoxication or copious drinking on the part of the pedestrian; for example, evidence that the injured party was staggering or had liquor on his breath gives support to such an inference.
(Emphasis added.)

In Sentz v. Dixon, 224 Pa.Super. 70, 73, 302 A.2d 434, 436 (1973), the court said:

Although the allegedly intoxicated party here was a pedestrian, rather than the driver of an automobile, the question of intoxication still relates to his recklessness or carelessness in conducting himself at the time he was struck by appellee’s vehicle. The factual issue involved is similar to that in the cited motor vehicle collision cases, e.g., was appellant intoxicated to a degree showing recklessness or carelessness which might relieve appellee of liability due to appellant’s contributory negligence.

In the case at bar, there is evidence which could reasonably establish that appellant was intoxicated, so as to make it necessary to place before the jury the issue of whether he was so influenced by alcohol to be a “hazard.” There was corroborated testimony that appellant had been drinking heavily in the late afternoon and evening before the accident. There is also corroborated testimony that appellant had a strong odor of alcohol and slurred speech after the accident. Looking at all the evidence, there is much more than a suggestion of intoxication and, therefore, we conclude that the evidence of appellant’s intoxication was properly admitted, and was not prejudicial as determined in Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969) and Vignoli v. Standard Motor Freight, Inc., 418 Pa. 214, 210 A.2d 271 (1965) (when carelessness or recklessness is at issue, mere fact of consuming alcohol not admissible, being unfairly prejudicial, unless it reasonably establishes intoxication).

2. Is Evidence of Blood Alcohol Content Admissible Under These Circumstances?

Neither Kriner nor Sentz, supra, consider whether blood alcohol content of a party should be admissible under the circumstances. The sole statutory provision concerning blood alcohol content is in 75 Pa.C.S. § 1547, relating to criminal prosecution for driving under the influence. However, in related contexts, civil cases pursuant to the Dram Shop Act, 47 P.S. § 4-493(1), where a party was allegedly served alcohol while visibly intoxicated, and, civil motor vehicle cases where the driver of a motor vehicle was allegedly intoxicated, our courts have addressed this issue. We have permitted evidence of blood alcohol content in civil cases where visible intoxication or recklessness or carelessness of a driver is sought to be proved. Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980) (Spaeth, J. concurring in the result, Van der Voort, J. dissenting); Cusatis v. Reichert, 267 Pa.Super. 247, 406 A.2d 787 (1979); Schwarzbach v. Dunn, 252 Pa.Super. 454, 381 A.2d 1295 (1977) (blood alcohol content generally admissible, but not when given three hours after accident). Cf. Billow v. Farmers Trust Co., 438 Pa. 514, 266 A.2d 92 (1970) (breathalyzer result was sole evidence of alleged intoxication and therefore inadmissible). Likewise, we have recently permitted such evidence in a case where the issue was whether a visibly intoxicated person was served intoxicating beverages. Suskey v. Moose Lodge No. 86, 325 Pa.Super. 94, 472 A.2d 663 (1984).

It should be noted that in cases involving civil suits, that is, service to a visibly intoxicated person and unfitness to operate a motor vehicle, evidence of alcohol consumption may be admitted only if there is evidence of the conduct of the party which fairly suggests that he was intoxicated. However, we are careful to underscore that only in criminal prosecutions under the Motor Vehicle Code has the “presumption” of intoxication under 75 Pa.C.S. § 1547(d)(3) been permissibly, charged to the jury.

The theory behind allowing a blood alcohol level to be admitted into evidence in a civil case' is that it is relevant circumstantial evidence relating to intoxication. However, blood alcohol level alone may not be admitted for the purpose of proving intoxication. There must be other evidence showing the actor’s conduct which suggests intoxication. Only then, and if other safeguards are present, may a blood alcohol level be admitted. Cusatis v. Reichert, supra; Couts v. Ghion, supra (test must be given within a reasonable time after accident); Schwarzbach v. Dunn, supra (test results, where test given three hours after accident, may not be extrapolated by expert who will testify as to probable blood alcohol level at time of accident).

Under the circumstances of this case and based upon existing authority, where there was independent evidence of intoxication, we believe that appellant’s blood alcohol content was relevant circumstantial evidence relating to his alleged intoxication. The evidence as to Ackerman’s alcohol consumption, his demeanor and appearance would, under these cases, appear to be sufficient to present the issue of intoxication for jury consideration of whether or not he was so influenced by alcohol to be a “hazard”. Under prior authority, Sentz, supra, and Kriner, supra, in which allegedly intoxicated pedestrians were involved, we believe that evidence of intoxication and blood alcohol content are relevant and admissible when it shows á pedestrian’s unfitness in crossing the street. See also Cook v. Philadelphia Transportation Co., 414 Pa. 154, 199 A.2d 446 (1964).

However, in determining that the admission of blood alcohol level was proper, we would nonetheless underscore the concern of this Court in Suskey v. Moose Lodge No. 86, 325 Pa.Super. 94, 472 A.2d 663 (1984), of admitting into evidence a blood alcohol level without explanatory expert testimony in a civil case. Although the admission of the blood alcohol content has been condoned by this court in both Dram Shop Act cases and civil motor vehicle cases where there is a fair inference of intoxication already established, and we felt compelled to follow these precedents in Suskey as well as presently, we remain skeptical as to the value of this evidence to the jury. Without explanation, the blood alcohol content has little meaning to factfinders and quite possibly great potential for resulting prejudice to the party against whom it is used. However, for the above reasons, we find that the court below did not err in allowing the introduction of evidence, including appellant’s blood alcohol level, on the issue of intoxication of appellant.

3. Was It Proper to Charge the Jury With Respect to the “Presumption” of Being Under the Influence of Alcohol?

The next contention appellant makes is that the court committed reversible error in instructing the jury.

The court’s charge was as follows:

Now, in this case you are instructed that from our Motor Vehicle Code, Section 1547, there are certain presumptions, one of which applies here. If chemical analysis of a person’s breath or blood shows: That the amount of alcohol by weight in the blood of the person tested is 0.10 percent or more, it shall be presumed that the defendant was under the influence of alcohol. You are instructed that that applies in this case.

We agree with appellant that the court’s charge was erroneous, causing sufficient prejudice to appellant so as to warrant a new trial.

We believe that the charge without more, even if it were given in a criminal prosecution under the Motor Vehicle Code, is erroneous. We base this belief on two prior Pennsylvania cases which discuss the presumption of 75 P.S. 1547(d)(3). See Commonwealth v. DiFrancesco, 458 Pa. 188, 329 A.2d 204 (1974); Commonwealth v. Gearhart, 253 Pa.Super. 238, 384 A.2d 1321 (1978). In Commonwealth v. DiFrancesco, supra, the court, using 75 P.S. § 624(1)(c), the precursor of the statute in effect at the time of trial, held:

What the statute refers to as a “presumption” is, strictly speaking, only a standardized permissible inference. Although the terms “inference” and “presumption” are often used interchangeably, this Court has adhered to the prevailing view among legal commentators, and drawn a distinction between these two concepts. See Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974); Commonwealth v. Shaffer, 447 Pa. 91, 105-106, 288 A.2d 727, 735 (1972). See generally McCormick’s Handbook of the Law of Evidence § 342 ff. (2d ed. E. Cleary 1972); 9 J. Wigmore, Treatise on Evidence § 2490 ff. (3d ed. 1940). According to this view, an inference is merely a logical tool which permits the trier of fact to proceed from one fact to another. A presumption, on the other hand, is a procedural device which not only permits an inference of the “presumed” fact, but also shifts to the opposing party the burden of producing evidence to disprove the presumed fact. Failure to meet this burden of production will normally result in binding instructions on the issue of the presumed fact’s existence in favor of the party invoking the presumption. But the notion of a directed verdict against a criminal defendant is contrary to accepted tenets of criminal justice. Placing the burden of production on a defendant under the threat of such a sanction would run afoul of the presumption of innocence, see Commonwealth v. Bonomo, 396 Pa. 222, 229-230, 151 A.2d 441, 445-446 (1959), as well as the defendant’s privilege • of declining to testify. Thus, where the presumed fact comprises an element of the crime charged, the inference authorized by a presumption can never be compelled by' the court. See generally Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974).
From this perspective, it is apparent that virtually all so-called “criminal presumptions” are really no more than permissible inferences. Subsection (c)(3) of § 624.1 is no exception. Our lower courts have so construed it; see, e.g., Commonwealth v. Thompson, 27 Som. 241 (1971), aff’d 221 Pa.Super. 824, 292 A.2d 425 (1972) allocatur refused, which contains a thorough and scholarly discussion of the question. See also, People v. Guilford, 20 App.Div.2d 192, 245 N.Y.S.2d 781 (1964); cf. State v. Cooke, 270 N.C. 644, 155 S.E.2d 165 (1967).
Of course a permissible inference may affect the burden of production in the practical sense that it increases the risk that a defendant who fails to produce countervailing evidence may suffer an adverse verdict. In this sense, the evidence forming the basis of a statutory inference functions no differently from the other evidence in the prosecution’s case: the stronger the evidence against a defendant the greater will be the pressure on him to come forward with evidence in his own defense. It is in this loose, practical sense that courts and legislatures occasionally speak of shifting a burden to the defendant in a criminal case. See, e.g., Barnes v. United States, 412 U.S. 837, 845-846, nn. 9, 11, 93 S.Ct. 2357 [2362-2363, nn. 9, 11], 37 L.Ed.2d 380, 387-388 (1973); Tot v. United States, 319 U.S. 463, 469-470, 63 S.Ct. 1241 [1245-1246], 87 L.Ed. 1519, 1525 (1943); DeWoody v. Superior Court, 8 Cal.App.3d 52, 56-57, 87 Cal.Rptr. 210, 212-213 (1970), construing California Vehicle Code § 23126.

Id. 458 Pa. at 193-94 n. 3, 329 A.2d 207-08 n. 3.

This decision was rendered as a result of an attack by appellant on the constitutionality of § 624.1 of the Motor Vehicle Code.

Section 624.1(b) provides:

“(b) In any summary proceeding or criminal proceeding in which the defendant is charged with driving a motor vehicle or tractor while under the influence of intoxicating liquor, the amount of alcohol in the defendant’s blood, as shown by a chemical analysis of his breath, his blood, or his urine, which analysis was conducted with equipment approved by the secretary and operated by qualified personnel, shall be admissible in evidence.
“(c) If chemical analysis of a person’s breath, blood or urine shows—
(3) That the amount of alcohol by weight in the blood of the person tested is ten one-hundredths (0.10) percent or more, it shall be presumed that the defendant was under the influence of intoxicating liquor.

The precise issue before our Supreme Court was whether § 624.1(c)(3) was an infringement upon appellant’s constitutional rights because of its provision that a person whose blood alcohol indicant was 0.10 per cent or more “shall be presumed” to be under the influence of intoxicating liquor. The Supreme Court held that § 624.1 was not unconstitutional because the “ ‘presumption’ raised is really no more than an inference which the jury may accept or reject in light of all the evidence in the case.” Commonwealth v. DiFrancesco, 458 Pa. at 199, 329 A.2d at 211, quoted with approval in Commonwealth v. Gearhart, 253 Pa.Super. 238, 244, 384 A.2d 1321, 1324 (1978) (footnote omitted). As stated in Gearhart, although the statute at issue herein passes constitutional muster, “a simple reading of the statute to the jury is not acceptable. The trial judge must bring home to the jury the non-compulsory nature of the inference.” Id., 253 Pa.Superior Ct. at 244, 384 A.2d at 1324.

The court in the present case did qualify the presumption. However, since we find that there should have been no reference to the statutory presumption we need not decide the sufficiency of the court’s explanation.

Although we do not agree with appellant that the blood alcohol content was inadmissible, it is clear that the correlative presumption under 75 Pa.C.S. § 1547(d)(3) is not relevant or admissible in regard to the question of whether a pedestrian is under the influence of alcohol to a degree which renders him a hazard under § 3550, that is, legally unfit to walk upon the highway.

It is noteworthy that in the statute, Pedestrians under the influence of alcohol or controlled substance, 75 Pa.C.S. § 3550, there is no mention of measuring blood alcohol content or applying any presumption arising therefrom which is similar to the provisions of 75 Pa.C.S. § 1547. The express provisions in the Motor Vehicle Code under § 1547(c), (d), designed for the purpose of determining whether one was driving while under the influence in a criminal prosecution pursuant to 75 Pa.C.S. 3731, are specifically related to motor vehicle operation and should not, absent clear legislative authority, be borrowed by or read into the Pedestrian Statute (§ 3550). We, therefore, conclude that the use of the presumption is inappropriate in a hazardous pedestrian case. In Suskey v. Moose Lodge No. 86, 325 Pa.Super. 94, 472 A.2d 663 (1984), we held that the presumption of legal intoxication pursuant to § 1547(d)(3) shall not be charged where the issue is visible intoxication. The functions of operating a motor vehicle, appearing to be visibly intoxicated and walking upon a public street are so unrelated that charging the presumption of intoxication under § 1547, even as modified to be understood as a permissible inference, in either of the latter two cases is not logical and causes undue prejudice to the appellant.

As previously discussed in Suskey v. Moose Lodge No. 86, supra, there has been much confusion generated by the court’s use of the presumption of intoxication where a party’s blood alcohol level is greater than or equal to .10. This presumption was not intended by the Legislature to be used, and should not be used, in cases involving visible intoxication as in Suskey, or a hazardous pedestrian under § 3550. In addition, it is nowhere authoritatively stated or implied that the use of the presumption in § 1547(d)(3) shall apply to a civil case. We therefore hold that the court below erred in its charge to the jury regarding 75 Pa.C.S. § 3550, which referred to § 1547(d)(3) and therefore order a new trial.

Reverse and remand for a new trial. We relinquish jurisdiction.

McEWEN, J., filed a dissenting opinion.

McEWEN, Judge,

dissenting:

I agree with the conclusions of the majority, first, that the evidence of the intoxication of appellant was properly admitted and was not prejudicial and, second, that the trial court properly allowed the introduction of evidence upon the issue of the intoxication of appellant, including the blood alcohol level of appellant. I am not, however, convinced that the “presumption” of 75 P.S. § 1547(d)(3) should not be applied in a civil case. It is, nonetheless, unnecessary to analyze and address my hesitation to accept this conclusion of the majority for the reason that even if, arguendo, the trial court erred in its charge to the jury that the presumption of § 1547(d)(3) was applicable to the pedestrians referred to in 75 Pa.C.S. § 3550, the error was, in my opinion, harmless.

The author of the majority opinion has in his usual fashion provided a careful analysis as well as a most persuasive expression of view for holding that a new trial is necessary. Since, however, the jury returned a specific finding that the defendant driver was not negligent, surely, as the distinguished trial judge declared, the error found by the majority in but a quite limited portion of the charge is harmless. Moreover, I am convinced that however favorably to the plaintiff or unfavorably to the defendant the trial judge may be forced to alter his charge, ninety-nine out of one hundred juries would render a verdict against this plaintiff.

Since we are, of course, precluded from reliance upon such instinct or odds, but are obliged to attempt an erudite articulation of position, I will simply reiterate the rationale for upholding jury verdicts that I earlier expressed in a dissenting opinion in Saylor v. Rose, 319 Pa.Super. 560, 568-569, 466 A.2d 686, 690-1 (1983):

The right to a trial by a jury is zealously guarded because the benefits of a trial by jury are not simply theoretical but have through the centuries proven so real as to become self-evident. As a result, our trust in the value of the jury verdict in resolving the type of factual issue here presented — as distinguished from a verdict upon a complex question of medical or product liability— should be near absolute. The founders concluded that a band of the citizenry — peers, says the Magna Carta — is naturally suited to the task of resolving factual disputes, whether the difference in testimony be innocent or influenced by personal interest; in addition, of course, it is an obvious and certain fact that the court room cause— whether it be of an accused or of a litigant — is, if not prudently never left to the sovereign, always more wisely entrusted to the people than to the government of any of its branches.
Once we acknowledge that the value of the jury system is not mere premise but fact, it naturally follows that the verdict of a jury should be considered to be controlling and final. While it is undisputed that a safety valve is necessary and that a trial judge should be able to reject a verdict, that safety valve should be triggered only when there is a gross disparity between the verdict and the evidence or there has been gross and harmful error. Neither of those tests are here met.
* * * * * *
The fundamental purpose of the instructions by a court is to express to the jury in general, survey fashion a basic outline of the applicable principles of law so that the jury might have the benefit of certain essential rules as the members assort the testimony, reflect upon the evidence and assemble a verdict____ If the charge of the court is to achieve the goal of assisting the jury and is not to be considered as a credit balance available for redemption in the event of an adverse verdict, then a verdict should be final, absent a gross shortcoming in the trial — specifically, as earlier noted, unless there is a gross disparity between the verdict and the evidence or there has been gross and harmful error.

It cannot reasonably be asserted that there is here a gross disparity between the verdict and the evidence and, for my part, there has been neither gross nor harmful error. Therefore, the verdict should stand.

      . We disagree with the conclusion of the court below that because the jurors answered question #1, "Was the defendant Ronald M. Delcomico negligent?”, on a special verdict form, in the negative, any error in the admission of evidence relating to appellant’s alleged intoxication or in the charge relating to 75 Pa.C.S. § 3550 is harmless.
      We do not believe that the use of special interrogatories could circumvent the prejudice caused by the erroneous charge or trial court error. We note that the charge, which we find caused reversible error, was prejudicial to appellant’s case in that it embodied a presumption of intoxication of appellant based on the evidence. We believe that Pennsylvania caselaw proscribes the use of a presumption where the fact is properly to be found by the jury. Richmond v. A.F. of L. Medical Service Plan of Philadelphia, 421 Pa. 269, 218 A.2d 303 (1966). The determining consideration is, ”[i]f erroneous fundamental instructions may have been responsible for the complained of verdict, a new trial is mandatory.”. Id., 421 Pa. at 271-72, 218 A.2d at 304; Vaughn v. Philadelphia Trans. Co., 417 Pa. 464, 209 A.2d 279 (1965); Pedretti v. Pittsburgh Railways Co., 417 Pa. 581, 209 A.2d 289 (1965). See also Criner v. Greco, 190 Pa.Super. 316, 154 A.2d 294 (1959).
      Moreover, the erroneous charge involved the presumption of intoxication of appellant under the Motor Vehicle Code. The issue in the case is not whether appellant was fit to operate a motor vehicle, but whether he was under the influence of alcohol to a degree which rendered him a hazard when walking upon the highway. What the lower court did, in effect, was to charge that appellant was, for the purposes of the pedestrian statute, presumed to be intoxicated according to his blood alcohol indicant. If the jury believed none of the evidence pertaining to appellant’s consumption of alcohol that night, except for the blood alcohol indicant, and followed the judge’s instructions, it would have found appellant to be intoxicated for the sole purpose of driving a car, not walking upon a highway. We believe that due to the potentially inflamatory effect of evidence having to do with the consumption of alcohol, see e.g., Suskey v. Moose Lodge No. 86, 325 Pa.Super. 94, 472 A.2d 663 (1984); Billow v. Farmers Trust, 438 Pa. 514, 266 A.2d 92 (1970); Cusatis v. Reichert, 267 Pa.Super. 247, 406 A.2d 787 (1979); Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980), the judge’s charge of the presumption of intoxication based on the evidence of blood alcohol content was highly prejudicial and may have been responsible for the appealed-from verdict. While a jury found that the appellee was not negligent, this does not remove the prejudice to the appellant by the error in the charge. The error pertaining to the "presumption" of appellant’s intoxication permeated the entire charge and we cannot say that the jury’s finding that the appellee was not negligent is unrelated to the erroneous charge pertaining to appellant's intoxication. “The primary duty of the trial judge in charging a jury is to clarify the issues so that the jury is able to comprehend the questions they are to decide.” Carrender v. Fitterer, 310 Pa.Super. 433, 437, 456 A.2d 1013, 1015 (1983). We must look to the charge in its entirety against the background of the evidence in order to determine if there was prejudicial error. Berry v. Friday, 324 Pa.Super. 499, 472 A.2d 191 (1984); Jacob Kline Cooperage, Inc. v. George W. Kistler, Inc., 286 Pa.Super. 84, 428 A.2d 583 (1981); Smith v. Chardak, 291 Pa.Super. 173, 435 A.2d 624 (1981); Hargrove v. Frommeyer & Co., 229 Pa.Super. 298, 323 A.2d 300 (1974). The key is whether the jury has been misled, and to determine this we must consider the entire charge. “Unless the charge as a whole can be demonstrated to have caused prejudicial error, we will not reverse for isolated inaccuracies." Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 576, 475 Pa. 1314, 1316 (1984). In this case, the error in the charge went to the very important issue, the degree of appellant's intoxication. In the instant case, the charge could well have misled the jury to the extent that it found the appellee was not negligent. In our opinion, the error was not harmless, and in the light of the evidence presented at trial, was sufficiently prejudicial to warrant a new trial.

      . 75 Pa.C.S. § 1547, as amended, (amended December 15, 1982, effective January 15, 1983), provides in pertinent part:
      (c) Test results admissible in evidence. — In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant’s blood, as shown by chemical testing of the person’s breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.
      (d) Presumptions from amount of alcohol. — If chemical testing of a person's breath, blood or urine shows:
      (3) That the amount of alcohol by weight in the blood of the person tested is 0.10% or more, this fact may be introduced into evidence if the person is charged with violating section 3731.
      Of particular note is the fact that in § 1547(d)(3), the language has been changed significantly with the 1982 amendment. There is presently no language regarding a presumption if a blood alcohol content is greater than or equal to .10. Cf. 75 Pa.C.S. § 1547(d)(3), prior to the 1982 amendment, supra at 412, 413.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    486 A.2d 419
    Michael GRIFFIN, Appellant, v. Carmen C. TEDESCO and Rose Tedesco Individuals and t/a Cricket Bar and Carmen Joseph Tedesco.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1984.
    Filed Dec. 12, 1984.

      Allen L. Feingold, Philadelphia, for appellant.
    George H. Knoell, III, Norristown, for appellees.
    Before McEWEN, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Montgomery County denying the appellant’s, Michael Griffin’s, “Petition To Proceed In Forma Pauperis.” We reverse.

The facts, in contrast to the conclusions of law to be drawn therefrom, are not in dispute and consist of the following: In June of 1975, the appellant filed a complaint against the appellees (Carmen C. Tedesco and Rose Tedesco, individually, and t/a Cricket Bar, and Carmen J. Tedesco) for injuries sustained in an altercation at the appellees’ place of business.

A default judgment was entered against the appellees, but thereafter, by agreement of all the parties, was lifted and the matter was placed on the August 1980 trial list. However,, for failure on the part of the appellant to comply with appellees’ request for discovery, a court order was entered precluding the appellant from introducing the information sought at trial, i.e., the appellant’s medical records.

The case proceeded to trial in April of 1982, and, upon the appellees’ motion, the court granted a compulsory nonsuit for the appellant’s “failure to set forth a cause of action in negligence and/or in intentional tort for assault and battery because of conflicts in [the appellant’s] testimony which raised questions of credibility.” (Lower Court Opinion at 2)

The appellant filed a timely motion to strike, set aside and vacate the compulsory nonsuit. The matter was set down for argument. Prior thereto, the appellant filed a petition claiming that his “financial condition [rendered him] unable to pay the fees and costs of prosecuting this action, as well as the Notes of Testimony from the trial of this case.” In particular, the petition recited that the appellant was employed and took home $860.00 per month. He had no other assets nor did his wife and two children (aged 12 and 18 months) have any other source of income. His debts and obligations were itemized as follows:

Mortgage: None
Rent: $310.00 per month
Loans: Owes mother $700.00, makes payments of $50.00 per month:
Expenses per month: Electric — $95.00
Phone — $52.00
Transportation — $5.00 a day
Health and other Insurance — $27.00
Food — $300.00
The bills outstanding for this incident are Bryn Mawr Hospital, $53.10; Dr. Noone, $75,00; Dr. Rasansky, $555.00, and Dr. Steinberg, $55.00.

The appellant also made mention of money owed to Bryn Mawr Hospital for in-patient treatment received for “a severe cerebral concussion ... and surgery for a torn medial meniscus of his knee.” However, no dollar value was affixed for these alleged services. In addition, in the record is reproduced a letter from the court reporter estimating that the cost of transcribing the notes of testimony would be $570.00, the commencement of which would occur only upon receipt of the amount stated and not before.

In conclusion, the appellant pleaded his inability to meet his monthly expenses and still be able to incur the costs of pursuing the suit, and he attached an affidavit in support of his allegations.

The petition was summarily denied and is the subject of the present appeal.

No one questions, nor do we dispute, the finality of the order appealed since the lower court’s denial of the appellant’s petition prevents him from having the merits of his motion to strike, set aside and vacate the compulsory non-suit addressed. Thus, the appellant is effectively “out of court” because of his claimed inability to provide the costs and fees necessary to pursue the matter below. Thompson v. Garden Court, Inc., 277 Pa.Super. 460, 463 n. 3, 419 A.2d 1238, 1240 n. 3 (1980), citing Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978) and Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975).

The issue posed for our review is framed by the appellant as one in which the lower court erred at law and abused its discretion in denying, without a hearing, his petition. We agree.

The lower court takes the position that a review of the appellant’s income/expense statement reveals that he is able to pay the cost of litigation, and, therefore, is “not in poverty” so as to afford him access to the avenue of appeal captioned “in forma pauperis”. This statement is tenuous at best.

The lower court acknowledges that in Pennsylvania “no person should have right and justice denied or delayed by reason of poverty.” 42 Pa.C.S.A. § 1725(a)(1). However, the manner in which it sought to resolve this elemental aspect (“poverty”) is at odds with the accepted path charted by the appellate courts of this Commonwealth.

For example, in cases dealing with a litigant’s petition to proceed in forma pauperis, we have stated the course to pursue as follows:

As noted above, appellant’s petition alleged that her monthly income was fixed at $277.30, that her expenses exceeded that income, and that her net worth was minimal. These allegations constituted a prima facie showing that appellant is impoverished. See Davila v. Soto, [250 Pa.Super. 42, 378 A.2d 443 (1977)]; Gerlitzki v. Feldser, 226 Pa.Super. 142, 307 A.2d 307 (1973). Of course, we do not decide at this stage whether appellant is in fact impoverished. The veracity of appellant’s allegations is a matter for the lower court to determine in the first instance. Smith v. Smith, 245 Pa.Super. 479, 369 A.2d 729 (1977); Tomashefski v. Tomashefski, 246 Pa.Super. 118, 369 A.2d 839 (1976); Schoepple v. Schoepple, 239 Pa.Super. 557, 361 A.2d 665 (1976) (plurality opinion). If for some reason the lower court suspects the truth of the allegations in the petition, it may set the matter down for a hearing, for to deny the petition summarily, without a hearing, would be improper. Davila v. Soto [250 Pa.Super. 42, 378 A.2d 443 (1977)], supra; Howell v. Howell, 245 Pa.Super. 483, 369 A.2d 731 (1977).

Thompson v. Garden Court, Inc., supra, 277 Pa.Super. at 464, 419 A.2d at 1240. Cf. Gerlitzki v. Feldser, 226 Pa.Super. 142, 145, 307 A.2d 307, 308 (1973) (“If for some reason the lower court suspected the truth of the allegations in the petition [to proceed in forma pauperis], it could, ‘after due notice to the other party’, Act of June 16, 1836, [P.L. 202, No. 53, § 2(a)[149], effective June 27, 1980)], conduct a hearing. Since the lower court chose to proceed without a hearing it had no power summarily to disbelieve and so deny the petition.”).

Instantly, the lower court dispensed with the need for a hearing on the petition because it found there was “no reason ... to suspect its truth.”

It will be recalled that the appellant’s income/expense statement, the content of which was sworn to as accurate by affidavit attached thereto, included monies owed to Bryn Mawr Hospital and three doctors totalling $738.10. Although the lower court in the initial portion of its opinion to this Court stated that it did not question the truthfulness of the petition’s content, this statement was contravened later on when it stated:

In denying the petition, the Court properly discounted the petitioner’s medical'bills which he contends arose out of the incident in question. These expenses, for hospitalization at Bryn Mawr Hospital and for treatment by three physicians were part'of plaintiff’s damage claim. Since damages were not proven at trial and taking the evidence in the light most favorable to the verdict winner, the hospital and doctors’ fees were not established with certainty. Even if negligence of the defendant is established, plaintiff still has the burden of proving that this negligence was the proximate cause of injury or damage. Surgent v. Stein, [280 Pa.Super. 142, 421 A.2d 445 (1980)]. As such, the medical expenses have no priority over court costs.

(Lower Court Opinion at 4)

Thus, the lower court’s admitted disbelief (as evidenced by its “discounting”) of appellant’s claimed medical expenses, the effect of which exculpated the appellant from the jaws of impoverishment, warranted a hearing to resolve the discrepancy. See Thompson v. Garden, Inc., supra, and compare with Davila v. Soto, 250 Pa.Super. 42, 378 A.2d 443 (1977); Nicholson v. Nicholson, 247 Pa.Super. 172, 371 A.2d 1383 (1977); Tomashefski v. Tomashefski, 246 Pa.Super. 118, 369 A.2d 839 (1976). Stated otherwise, since the supposed impossibility of ultimate recovery by the appellant for the medical expenses incurred because of the alleged negligence of the appellees is still an open question to be decided in the context of the appellant’s motion to strike, set aside and vacate the compulsory nonsuit entered against him, the resolution of which appears to be intertwined with the appellant’s ability to secure the transcripts in the case, the lower court, in effect, has ruled upon the merits of the appellant’s post-verdict motion without the benefit of argument from either side on the matter. We believe this to be presumptuous, as well as an erroneous practice, on the part of the lower court. See generally Schoepple v. Schoepple, 239 Pa.Super. 557, 561, 361 A.2d 665, 668 (1976).

The result reached is in no way altered by the appellees’ argument that the appellant’s counsel’s failure to file an affidavit certifying that “he is providing free legal services to the party”, as called for by Pa.R.Civ.P. 240(d)(1)(i) (effective April 1, 1983), is “reason alone” to dismiss the appeal.

Rule 240 provides the mechanism by which a party to a suit can avail himself/herself of the right to have his/her dispute judicially resolved where he/she “is without financial resources to pay the costs of litigation..." Pa.R.Civ.P. 240(b).

In the case at bar, save for the certification of “free legal services” by counsel, the appellant’s petition comports in all respects with the form affidavit prescribed in subdivision (h) of Rule 240. Thus, to deny the appellant the opportunity to proceed in forma pauperis because of this procedural defect would be contra the established law in this Commonwealth not to place form over substance. This subject has been amply covered by our Supreme Court in Pomerantz v. Goldstein, 479 Pa. 175, 178, 387 A.2d 1280, 1281 (1978):

It has been our policy to overlook ... procedural errors when a party has substantially complied with the requirements of the rule and no prejudice would result. “Procedural rules are not ends in themselves, but means whereby justice, as expressed in' legal principles, is administered. They are not to be exalted to the status of substantive objectives.” McKay v. Beatty, 348 Pa. 286-87, 35 A.2d 264, 265 (1944). See also Chiara Estate, 467 Pa. 586, 593-94, 359 A.2d 756, 760-61 (1976). The Superi- or Court has succinctly stated the principle: “The niceties of procedure and pleading make fine intelligence games for lawyers but should never be used to deny ultimate justice. This is the reason for our modern approach to rules of civil procedure.” Godina v. Oswald, 206 Pa.Super. 51, 55, 211 A.2d 91, 93 (1965).

Nowhere do the appellees assert how they have been prejudiced by the absence of counsel’s certification of free legal services to the appellant. Moreover, we believe that this matter is more appropriately left in the first instance with the court below, inasmuch as any doubts it may harbor (“suspecting the truth of the petition to proceed in forma pauperis”) can be delved into and resolved at a hearing. See Thompson v. Garden Court, Inc., supra. Such a proceeding, of necessity, can encompass the topic of the manner and method by which legal services are being defrayed, if at all. Therefore, the deletion of the attorney’s certification under Rule 240 cannot and should not be a ground to dismiss summarily a litigant’s petition to proceed in forma pauperis. See generally Pomerantz v. Goldstein, supra; cf. Adkins v. E.I. Du Pont De Nemours & Co., 335 U.S. 331, 69 S.Ct. 85, 93 L.Ed. 43 (1948).

Accordingly, finding that the court below abused its discretion when viewed under applicable case law, we reverse and remand for a hearing to determine whether the appellant is entitled to proceed in forma pauperis.

Jurisdiction is not retained.

      . We cannot help but note that, setting aside the cost owed to the hospital and the doctors, $839.00 of the appellant’s $860.00 monthly income would be absorbed by recurring expenses. This would leave the Griffin household $21.00 in spendable income, and, supposedly, would be the revenue from which the expense of litigation would be defrayed.
      In particular, since we have no tabulation as to the incidental cost in filing fees associated with the instant action, we are limited in our purview to the $570.00 called for by the court reporter to transcribe the notes of testimony. Simple arithmetic reveals that the appellant would have to save for over two (2) years (27 months) to accumulate sufficient funds to pay the court reporter his requested lump sum payment prior to transcription of the notes.
      Even assuming, for the sake of argument, that the $700.00 debt owed appellant’s mother and paid in $50.00 monthly installments was paid, it would have required the appellant to save for eight (8) months to secure sufficient capital to pay the court stenographer. In either instance, we believe the delay to be intolerable. Cf. Schoepple v. Schoepple, supra. Therefore, the reason for the conducting of a hearing is even more paramount in the situation that existed instantly, regardless of whether it was to resolve the matter under Pa.R.Civ.P. 240 or 42 Pa.C.S.A. § 1725(a)(1).


author: CERCONE, Judge:

text:
    486 A.2d 424
    In re ESTATE OF Pearl M. CORNELL, Deceased. Appeal of FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF BUCKS COUNTY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 26, 1984.
    Filed Dec. 12, 1984.
    Reargument Denied Jan. 28, 1985.

      James A. Downey, III, Bristol, for appellant.
    Paul R. Beckert, Jr., Fairless Hills, for appellee.
    Before OLSZEWSKI, POPOVICH and CERCONE, JJ.
   CERCONE, Judge:

First Federal Savings and Loan Association of Bucks County (First Federal) filed an original action in assumpsit and trespass in the Civil Division of the Court of Common Pleas against Jessie Roger Erwin, executor of the estate of Pearl M. Cornell. Preliminary objections to the assumpsit count of the complaint were sustained and, by agreement of the parties, the matter was transferred to the Orphans’ Court Division. There an account was filed on behalf of the estate of Pearl M. Cornell. At the audit, First Federal filed a claim in the amount of $10,528.40, which it claimed was paid in error to the executor on behalf of the estate. After a hearing, the court entered an adjudication concluding that First Federal had not met its burden of establishing that the property in question was not that of the decedent. We disagree with this conclusion of the Orphans’ Court, and because we feel it was error to dismiss the assumpsit claims, we reverse and remand for a hearing on appellant’s claim for restitution. We affirm the court’s adjudication that a conversion was not substantiated.

The findings of a trial judge in a non-jury case must be accorded the same weight and effect on appeal as the verdict of a jury, and will not be reversed in the absence of an abuse of discretion or a finding of a lack of evidentiary support. Brenna v. Nationwide Insurance Co., 294 Pa.Superior Ct. 564, 440 A.2d 609 (1982). “Abuse of discretion” is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or the result of prejudice, partiality, bias, or ill-will, as shown by the evidence or the record, discretion is abused. Straub v. Tyahla, 274 Pa.Superior Ct. 411, 418 A.2d 472 (1980).

By electing to attempt to settle the instant matter in the Orphans’ Court rather than in the Civil Division, the parties also elected a heavier burden of proof. Fashioned as a claim against a decedent’s estate, First Federal undertook a burden of clear and convincing evidence, Secary Estate, 407 Pa. 162, 180 A.2d 572 (1962), to prove that the estate was wrongfully, albeit inadvertently, paid $10,528.43.

In reviewing a claim regarding sufficiency of evidence, the appellate court must view the evidence in the light most favorable to the verdict winner. Rubinstein v. J.E. Kunkle Co., 244 Pa.Superior Ct. 474, 368 A.2d 819 (1976). The evidence presented at the hearing below established that the decedent, an elderly woman, opened an account at,First Federal on June 29, 1978, in the amount of $10,000. She was issued a certificate bearing the number 3-9-3, with the last digit, 3, representing the actual account number. The saving certificate was numbered 1893. Mr. Louis Persichetti, the bank manager, testified that a few months after she opened her account, it came to his attention that another depositor, upon opening her own $10,000 account, had mistakenly received the same account number as the decedent, i.e., number 3. He testified that he telephoned Ms. Cornell and notified her that she would be receiving a replacement certificate in the mail and that she should destroy the original. Ms. Cornell then died on February 21, 1979.

Subsequently, on March 19, 1979 in his capacity as executor of the estate, Mr. Erwin, the decedent’s grandson, presented the certificate numbered 1893, and 3-9-3, to the bank for payment into the estate. He was given a check for $10,528.40. The executor testified that, in going through the decedent’s papers, he found only one certificate and this was the one he presented on March 19, 1979. Thereafter, he continued to receive monthly interest payments from the bank in his grandmother’s name which caused him to wonder whether there could be another certificate. He then went to the bank on June 4, 1979, and closed what the bank determined to be another account in the decedent’s name. This payment amounted to $10,-658.00. It was not until February 1980, when Mrs. Ribaric discovered through an interest statement issued for tax purposes that her account had been erroneously emptied, that the bank then discovered its own mistake. It rehabilitated Mrs. Ribaric’s account in the amount for which it brought the instant action, $10,528.34. What had actually transpired was that the first certificate which was cashed by the executor in March 1979 was Mrs. Ribaric’s; that which was cashed in June 1979 was in reality the decedent’s account.

The bank was able to present a certificate numbered 1914, account number 3-56-2, labeled “replacement eertificate for No. 1893,” which number 1893 was presented by the executor in March 1979. This new certificate bore a changed account number 2. However, and this fact was emphasized by the trial court, the bank had no record that Ms. Cornell’s first certificate had been cancelled nor was it able to present any evidence that Ms. Cornell was notified about the problem. The bank manager explained only that because of her advanced years and inability to get around, that he waived the bank’s usual policy of asking the custom: er to turn in his or her duplicate certificate before issuing a replacement, and merely talked with her on the phone. The bank manager also presented testimony that he was certain that Ms. Cornell had opened only one account because only one check for $10,000 was received on June 29, 1978, the day she came in to open her account, and even .if she presented cash, the deposit slip for that same day would reflect a $10,000 imbalance, which it did not.

Our consideration of this evidence and the inferences to be drawn therefrom persuades us that the trial court erred in concluding that the bank failed to meet its burden. Contrary to appellee’s contention this determination was a legal, not a factual one, and subject to our review. Minteer v. Wolfe, 300 Pa.Superior Ct. 234, 446 A.2d 316 (1982). While it is true that the exhibits which were introduced only obfuscate what happened, it cannot be gainsaid that they are only additional proof of what is clear from Mr. Persichetti’s testimony, that the bank made a costly mistake. Our consideration of all of the evidence, both oral testimony and exhibits, leads us to reverse the trial court’s finding and remand the case for further proceedings.

Now it must be determined what the further proceedings should be. The evidence was uncontroverted that the executor did not obtain the erroneous account through any deceit. It is true that both he and the bank believed the proceeds of the account closed in March 1979 were the estate’s. Because of this, we agree with the trial court that a case of conversion has not been substantiated below.

A conversion is the deprivation of another’s right of property in, or use or possession of, a chattel, or other interference therewith, without the owner’s consent and without lawful justification.
Baker v. Rangos, 229 Pa.Superior Ct. 333, 348, 324 A.2d 498, 505 (1974).

Despite the bank’s claim that it notified appellee about the mistake prior to his distribution of the erroneously paid proceeds and that, therefore, a conversion has been made out, it is clear that at the time appellee came into possession of the money, it was with the bank’s blessing, albeit mistaken.

However, what the facts elicited at the hearing do present is the basis for an action in quasi-contract, or unjust enrichment for restitution.

Where one person has been unjustly enriched at the expense of another he or she must make restitution to the other. DeGasperi v. Valicenti, 198 Pa.Super 455, 457, 181 A.2d 862, 864 (1962). However, unjust enrichment is the key to an action for restitution. Myers-Macomber Engineers v. M.L.W. Construction Corp., et at., 271 Pa.Super. 484, 414 A.2d 357, 360 (1979). The vehicle for achieving restitution is a quasi-contract, or contract implied in law. “Unlike true contracts, quasi-contracts are not based on the apparent intention of the parties to undertake the performances in question, nor are they promises. They are obligations created by law for reasons of justice.” Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 290, 259 A.2d 443, 449 (1969), quoting Restatement (Second) of Contracts, § 5, comment b. at 24. “Quasi-contracts may be found in the absence of any expression of assent by the party to be charged and may indeed be found in spite of the party’s contrary intention.” Schott v. Westinghouse Electric Corpora tion, supra, 436 Pa. at 290-91, 259 A.2d at 449. To sustain a claim of unjust enrichment, it must be shown by the facts pleaded that a person wrongly secured or passively received a benefit that it would be unconscionable to retain. Brereton Estate, 388 Pa. 206, 212, 130 A.2d 453, 457 (1957); Crossgates Realty, Inc. v. Moore, 279 Pa.Super. 247, 420 A.2d 1125, 1127-8 (1980); Roman Mosaic & Tile Co., Inc. v. Vollrath, 226 Pa.Super. 215, 218, 313 A.2d 305, 307 (1973).
Martin v. Little, Brown and Co., 304 Pa.Superior Ct. 424, 430-1, 450 A.2d 984, 988 (1981).

It is uncontroverted that there was no contract between the parties herein. And it may be possible for the bank to show that, for reasons of justice, an obligation must be created by law between them. The evidence does tend to show that the estate passively retained a benefit that it may be unconscionable to retain. Therefore, this court is of the opinion that appellant should be afforded an opportunity to substantiate its claim under a theory of unjust enrichment.

Therefore, the order of the court is affirmed as to the trespass count, but reversed and case is remanded for a hearing on appellant’s claim of unjust enrichment. Jurisdiction is relinquished.

      . Although appellant’s complaint is styled as "Assumpsit-Trespass," both parties in their briefs and the court in its opinion make reference to the "unjust enrichment” claim. Acknowledging that “scarcely any procedural defect is viewed with greater tolerance by modern courts than errors in the form of the action," Gedekoh v. Peoples Natural Gas Co., 183 Pa.Superior Ct. 511, 515, 133 A.2d 283, 285 we will consider the first count of the complaint to include a claim of unjust enrichment. See also DelConte v. Stefonick, 268 Pa.Superior Ct. 572, 408 A.2d 1151 (1979) (A plaintiff is not obliged to state the legal theory or theories underlying his complaint, but need only allege material facts on which a cause of action is based.) Pa.R.C.P. 1019(a).

      . This depositor’s name was Ribaric. Exhibits entered at the hearing revealed that an account was opened in that name on July 25, 1978, less than a month after Pearl Cornell, decedent, opened her account. It was assigned the number 3-26-3, with the last digit being 3, the same as decedent’s account.

      . This count of complaint was dismissed pursuant to preliminary objections. The opinion of the court does not set forth the reasons for this dismissal, perhaps because another judge took this action before she entered the case. And no immediate appeal was taken from this dismissal since appellants were still able to pursue their trespass count. Thus, this issue is properly raised before us nowi


author: WIEAND, Judge:

text:
    486 A.2d 428
    COMMONWEALTH of Pennsylvania v. Michael William McGINNIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1984.
    Filed Dec. 14, 1984.
    Reargument Denied Jan. 24, 1985.

      John F. Goryl, Carlisle, for appellant.
    Theodore B. Smith, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   WIEAND, Judge:

Michael W. McGinnis was tried by jury and was found guilty of driving a vehicle while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(1). On direct appeal, McGinnis contends (1) that the evidence was insufficient to support the verdict; (2) that the result of a breathalyzer test should have been suppressed because, the police lacked probable cause to arrest; (3) that the result of the breathalyzer test was inadmissible because the breathalyzer used was not properly shown to be accurate and the trial court should not have taken judicial notice that the breathalyzer was an approved device; and (4) that the trial court erred in failing to instruct the jury on the provisions of 75 Pa.C.S. § 3731(a)(4) which make it an offense to drive a vehicle while the operator’s blood alcohol content is .10% or greater. We affirm the judgment of sentence.

On February 16, 1983, at or about 5:00 a.m., in Carlisle, Cumberland County, McGinnis drove his vehicle over a fire hose in such a manner that the undercarriage hooked a coupling of the hose and dragged the hose along the street until McGinnis was stopped by fire police. When Carlisle police requested McGinnis to produce his operator’s license and owner’s card, he became abusive and swore at the police. The police officers detected an odor of alcohol on McGinnis’ breath, observed that his eyes were bloodshot and glassy, and noted that he fumbled through his wallet before producing the cards requested. When he was told that he was under arrest for driving while under the influence of alcohol, McGinnis began screaming and making gestures toward the police. He said that he was going to leave and attempted to enter his car but was restrained by police who placed handcuffs on him and took him to the police station. A breathalyzer test showed a blood alcohol content of .14%.

“The test of the sufficiency of the evidence in a criminal case is whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt.” Commonwealth v. Carter, 329 Pa.Super. 490, 495-496, 478 A.2d 1286, 1288 (1984). The facts proved by the Commonwealth in this case were sufficient to support the jury’s finding that McGinnis had driven a vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving in violation of 75 Pa.C.S. § 3731(a)(1).

Although McGinnis had also been charged with a violation of 75 Pa.C.S. § 3731(a)(4), in a second count of the information, the trial court instructed the jury that McGinnis could be found guilty only if he drove a vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving. McGinnis did not object to the jury instructions regarding the omission of a charge on § 3731(a)(4) despite an opportunity to do so. Therefore, this issue has been waived. See: Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). McGinnis’ failure to object is understandable. The jury instructions were more favorable to the defense than the defense was entitled to receive.

There is no merit in McGinnis’ argument that the police lacked probable cause to arrest him. The trial court’s ruling on this issue was fully reviewed in the opinion of the court en banc, and our review of the record fails to disclose error.

.The most interesting issue raised by appellant pertains to the admissibility of the result of the breathalyzer test. The Commonwealth introduced evidence at trial through Carlisle patrolman Ronald Egolf that the breathalyzer used by the police had been a Smith and Wesson Breathalyzer, Model 1000. The Commonwealth then requested the trial court to take judicial notice that the breathalyzer was an approved device. Defense counsel stated that he would defer an objection until after further testimony had been introduced. Therefore, the trial court took judicial notice that the Smith and Wesson unit had been approved by the Department of Health and received the results of the test. The .14 reading was thus placed before the jury without objection. During cross-examination of Egolf, however, defense counsel was able to show that the approved breathalyzer unit had been modified.- He then objected for the first time to evidence which had already been placed before the jury.

A breathalyzer device uses scientific principles of chemistry to determine the percentage of alcohol present in a person’s breath which, in turn, discloses the amount of alcohol in the person’s blood. McCormick, Handbook of the Law of Evidence § 209 (2d ed. 1972). Generally, the admissibility of scientific evidence depends upon a proper foundation sufficient to show that the scientific data is reliable. See: Commonwealth v. Butler, 213 Pa.Super. 388, 392, 247 A.2d 794, 796 (1968); Commonwealth v. Dilworth, 179 Pa.Super. 64, 67-68, 115 A.2d 865, 866-867 (1955); McCormick, supra at §§ 203, 209. The proponent must persuade the court that the probative value of the test result outweighs any danger that it will confuse or'mislead the jury.

In Pennsylvania, the legislature has provided by statute that the amount of alcohol in a person’s blood as shown by a chemical test of that person’s breath, blood, or urine, which test was conducted by a qualified- person using approved equipment, is sufficiently reliable to be admissible in a criminal proceeding. 75 Pa.C.S. § 1547(c). Chemical tests are an attempt to put objectivity and certainty into an otherwise highly subjective area of the law. Comment, The Drinking Driver: An Approach to Solving a Problem of Underestimated Severity, 14 Vill.L.R. 97, 102 (1968). The statute requires, however, that the tests be conducted by devices approved by the Department of Health. 75 Pa.C.S. § 1547(c)(1). A list of approved testing devices is contained in the Pennsylvania Code at 67 Pa.Code § 77.2 and 28 Pa.Code § 5.102. If a device is there listed, a court may properly take judicial notice that it is an approved device. See: Unangst’s Appeal, 333 Pa. 489, 495, 5 A.2d 201, 204 (1939); Harbor Marine Co. v. Nolan, 244 Pa.Super. 102, 104 n. 2, 366 A.2d 936, 937 n. 2 (1976); Commonwealth v. Slider, 229 Pa.Super. 93, 96, 323 A.2d 376, 378 (1974); 31 C.J.S. Evidence § 14 (1964).

The Smith and Wesson Breathalyzer, Model 1000, is an approved testing device. In this case, however, the Smith and Wesson Breathalyzer, Model 1000, used to test the alcoholic content of appellant’s blood had been modified prior to use. There was no evidence that the Smith and Wesson device, as modified, had been approved by the Department of Health. Nevertheless, as we have already observed, the result of the test administered to appellant was received in evidence without timely objection.

Moreover, the fact that the requirements of the statute were not met did not automatically render the test result inadmissible. In the usual setting it would mean only that the Commonwealth would be required to establish an alternate foundation by showing that the test actually administered was sufficiently reliable to permit the results to have probative value. Cf. Commonwealth v. Gotto, 306 Pa.Super. 434, 442 n. 8, 452 A.2d 803, 807 n. 8 (1982) (test result admissible where device used was approved prior to trial, but after test conducted). Accord: Commonwealth v. Benson, 280 Pa.Super. 20, 31, 421 A.2d 383, 389 (1980). Compare: Commonwealth v. Boerner, 268 Pa.Super. 168, 172, 407 A.2d 883, 885 (1979), appeal dismissed, 491 Pa. 416, 421 A.2d 206 (1980). In this case, the Commonwealth showed that the device used to test appellant had been tested for accuracy sixteen days before use. Moreover, after the trial court rejected defense counsel’s belated objection, the defense called as an expert witness a former employee of Guth Laboratories, the manufacturer of the Smith and Wesson Breathalyzer. This witness testified, inter alia, that a breathalyzer unit modified in the manner in which the unit used to test appellant had been modified would produce .an accurate result.

Under these circumstances, there is no basis on which to reverse the trial court’s denial of the motion for new trial. Appellant was given a fair trial and the rules of evidence were correctly applied. The judgment of sentence, therefore, will be affirmed.

Affirmed.

      . In fact, it was the Commonwealth which objected and called this omission to the attention of the trial judge. Expressing doubt about the constitutionality of 75 Pa.C.S. § 3731(a)(4), the trial judge refused to allow appellant to be convicted unless he were found to have been under the influence of alcohol to a degree which rendered him incapable of safe driving.

      . The amount of alcohol in the brain determines the extent of intoxication. McCormick, Handbook of the Law of Evidence § 209 (2d ed. 1972). Measuring the amount of alcohol in a person’s breath, blood, or urine is a substitute for the analysis of brain tissue. Id.


author: CIRILLO, Judge:

text:
    486 A.2d 431
    COMMONWEALTH of Pennsylvania v. Joseph H. JACKSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1984.
    Filed Dec. 14, 1984.
    Petition for Allowance of Appeal Denied April 17, 1985.

      Norman L. Goldberg, Media, for appellant.
    Francis J. Capaldo, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   CIRILLO, Judge:

This is an appeal by appellant Joseph H. Jackson, from the judgment of sentence entered by the Court of Common Pleas of Chester County. Following a trial by jury, appellant was convicted of murder in the first-degree, robbery, possession of an instrument of crime, and possession of prohibited offensive weapons. Post-trial motions were denied, and appellant was sentenced to life imprisonment on the charge of murder, not less than five nor more than ten years imprisonment to begin at the expiration of the life sentence for the charge of robbery, and to pay the costs of prosecution on the remaining charges.

On direct appeal, appellant raised the following issues as grounds for granting a new trial: 1) refusal of the trial court to grant a request for change of venue; 2) the lack of an impartial jury through exclusion of a select class of persons; 3) the trial court’s exclusion of psychiatric testimony to negate the element of specific intent; 4) a denial of effective assistance of counsel; 5) a ruling on a matter of cross-examination; 6) the hearing court’s refusal to stay proceedings so that appellant could call witnesses at the preliminary hearing; 7) a denial of a demurrer to the charge of possessing prohibited weapons; 8) insufficiency of the evidence to support a conviction of first-degree murder; 9) erroneous sentencing procedures. Pursuant to an order of this Court, the case was remanded to the trial court for an evidentiary hearing on the issue of incompetency of counsel, an issue raised for the first time on appeal. Commonwealth v. Jackson, 267 Pa.Super. 63, 64-65, 405 A.2d 1304, 1305 (1979). Following the trial court’s determination that appellant was not denied effective assistance of counsel, a supplemental appeal was filed and argued before this panel on September 6, 1984. We affirm in part and reverse in part.

The case at bar involves a long and complicated factual and procedural history. Accordingly, a detailed account of the events preceding this appeal is necessary.

I.

On December 14, 1974, the body of Eric Waltz was found on the floor of his place of employment; the cause of death was a gunshot wound to the head. Appellant and Daniel Brisbon were subsequently arrested and charged with the murder as well as robbery, theft, possession of an instrument of crime, possession of prohibited offensive weapons, and theft by unlawful taking.

On February 7, 1975, appellant waived extradition from the State of Delaware, and was returned to Chester County. A preliminary hearing was held, and at the conclusion of the Commonwealth’s testimony, trial counsel for appellant requested a continuance of the hearing in order to subpoena witnesses. This motion was denied.

Subsequent pre-trial motions were filed and denied. Among these was a motion for a change of venue. At the hearing on this motion, a representative selection of news articles was presented to the court. The hearing judge concluded that the news accounts could fairly be “characterized as pretrial publicity lacking in inflammatory content.” The motion was accordingly denied.

On June 19, 1975, Daniel Brisbon was tried before a jury and acquitted. Selection of a jury for appellant’s trial began on July 7, 1975. After the voir-dire examination began, trial counsel moved for a dismissal of the jury panel, alleging that since appellant was black, and the panel in the courtroom contained only two members of the black race, the jury selection process was tainted. The court denied the motion.

Appellant’s trial began on July 9, 1975. The following day, the court sustained demurrers to several charges, but denied demurrers to the rest. Several witnesses were called to testify at trial, among them Daniel Brisbon. He testified that appellant fired the fatal shot. Appellant took the stand on his own behalf and testified that Brisbon had done the killing, and appellant raised his possible indulgence in alcohol on the date of the incident. Trial counsel then made an offer of proof to present psychiatric testimony to negate the element of specific intent required for conviction of first-degree murder, theft, and robbery. The offer was refused by the court.

The jury returned a verdict of guilty on all charges and a verdict finding aggravating circumstances. Motions for a new trial and in arrest of judgment were denied by the court en banc. On August 23, 1977 judgment of sentenced was entered.

II.

Appellant, represented by new counsel, appealed, raising ineffective assistance of his trial counsel. However, as we noted earlier, in 1979, the case was remanded for evidentiary hearings on this issue. Commonwealth v. Jackson, supra. Hearings were held before the Honorable Leonard Sugerman, who found no merit to any of appellant’s claims of ineffectiveness. After carefully reviewing Judge Sugerman’s thorough and well-reasoned opinion, we conclude that the trial court adequately addressed the ineffectiveness claims.

We address appellant’s remaining claims seriatim.

III.

Appellant argues that he was denied the right to be tried by an impartial jury when his request for a change of venue was denied. Specifically, he claims that the nature of the pre-trial publicity surrounding this case was so inherently prejudicial that virtually every prospective juror in the county was exposed to it.

“Whether to grant a change of venue is a matter committed to the sound discretion of the trial court, and its discretion will not be disturbed absent an abuse of that discretion.” Commonwealth v. Hamm, 325 Pa.Super. 401, 418, 473 A.2d 128, 137 (1984) (allocatur denied). Accord Commonwealth v. Roberts, 496 Pa. 428, 437 A.2d 948 (1981); Commonwealth v. Daugherty, 493 Pa. 273, 426 A.2d 104 (1981); Commonwealth v. Keeler, 302 Pa.Super. 324, 448 A.2d 1064 (1982). In Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978), the Supreme Court set out the analysis to be employed in reviewing a trial court’s denial of a request for a change of venue:

In reviewing the trial court’s decision, the only legitimate inquiry is whether any juror formed a fixed opinion of [the defendant’s] guilt or innocence as a result of the pre-trial publicity.” Commonwealth v. Kichline, supra, 468 Pa. at 274, 361 A.2d at 287. Normally, one who claims that he has been denied a fair trial because of prejudicial pre-trial publicity must show actual prejudice in the empaneling of the jury. See Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Commonwealth v. Rolison, [473 Pa. 261, 374 A.2d 509 (1977)]; Commonwealth v. Hoss, 469 Pa. 195, 201, 364 A.2d 1335 (1976); Commonwealth v. Pierce, 451 Pa. 190, 195, 303 A.2d 209, cert denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973). But this rule is subject to an important exception. In certain cases there “can be pretrial publicity so sustained, so pervasive, so inflammatory, and so inculpatory as to demand a change of venue without putting the defendant to any burden of establishing a nexus between the publicity and actual jury prejudice,” Commonwealth v. Frazier, 471 Pa. 121, 127, 369 A.2d 1224, 1227 (1977), because the circumstances make it apparent that there is a substantial likelihood that a fair trial cannot be had____
It is clear that the mere existence of pre-trial publicity does not warrant a presumption of prejudice. Similarly, a possibility that prospective jurors will have formed an opinion based on news accounts will not suffice.

Id. 481 Pa. at 150-52, 392 A.2d at 291-92. See also Commonwealth v. Arnold, 331 Pa.Super. 345, 480 A.2d 1066 (1984). Moreover,

even if there has been extensive pre-trial publicity, a fair trial is not necessarily precluded. Instead, once the fact of pre-trial publicity is determined, the inquiry then turns to the nature of the publicity and its effect on the community. Factors to be considered in determining the nature of the publicity include the following:
whether the pre-trial publicity was, on the one hand, factual and objective, or, on the other hand, consisted of sensational, inflammatory and “slanted articles demanding conviction” ...; whether the pre-trial publicity revealed the existence of the accused’s prior criminal record; whether it referred to confessions, admissions or reenactments of the crime by the defendant; and whether such information is the product of reports by the police and prosecutorial officers.

Commonwealth v. Romeri, 504 Pa. 124, 470 A.2d 498, 502 (1983), cert. denied, — U.S. —, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984), quoting Commonwealth v. Casper, supra, 481 Pa. at 152-53, 392 A.2d at 292. “The critical factor ... is the recent and pervasive presence of ‘inherently prejudical’ publicity, the likely effect of which is to render a fair trial impossible.” Casper, supra, 481 Pa. at 154, 392 A.2d at 293.

In light of the Casper analysis, we find no merit to appellant’s contention. At the change of venue hearing, trial counsel indicated he was relying upon the inherently prejudicial nature of the publicity; in support of the motion, evidence consisting of newspaper clippings was presented to the court. No other evidence was offered. The hearing court found that:

Most of the articles appeared shortly after the body of the victim was found at the gasoline station. The early articles involved accounts of the search for possible witnesses. It is apparent throughout the articles that police or law enforcement agents did not release the contents of statements or confessions given by defendant. As a matter of fact, in the investigatory stages the Chief of Police of the township was quoted in one of the news articles as refusing to give any details since “we are guarding our statements to the press so prospective jurors that will be drawn for this case will not be tainted.”
There was no indication that the jury empaneled was less than fair and impartial and certainly no showing of prejudice as a result of the publicity. The record made at the voir dire shows that thirty-nine jurors out of seventy-one questioned had some knowledge of the case gained through the news media. Of those selected, seven never heard or read anything about the case, with one indicating a slight knowledge of it. The others were carefully questioned as to whether they had any fixed opinions. All of these indicated no such opinions.
Under these circumstances the Court properly denied the application for a change of venue, particularly since we find the articles not inherently prejudicial...

We can see no abuse of discretion in the trial court’s decision when viewed in light of Casper.

IV.

Appellant next contends that the procedures utilized for the selection of the jury panel were in violation of his right to be tried by a fair and impartial jury. When trial counsel moved for the dismissal of the panel, several prospective jurors had already been questioned. Apparently the motion was based upon counsel’s observations that the panel contained only two members of the black race.

Such an objection was not timely under Rule 1104(b) of the Pennsylvania Rules of Criminal Procedure. Rule 1104(b) provides:

(b) Unless opportunity did not exist prior thereto, a challenge to the array shall be made not later than five days before the first day of the week the case is listed for trial of criminal cases for which the jurors have been summoned and not thereafter, and shall be in writing, specifying the facts constituting the ground for the challenge.

By failing to timely challenge the jury array, appellant has waived any objection he may have had. See Commonwealth v. Adams, 476 Pa. 91, 381 A.2d 882 (1977); Commonwealth v. Butler, 448 Pa. 128, 291 A.2d 89 (1972); Commonwealth v. Davis, 267 Pa.Super. 370, 406 A.2d 1087 (1979); Commonwealth v. McIntosh, 266 Pa.Super. 425, 405 A.2d 507 (1979) (concurring opinion by Judge Hoffman).

Assuming arguendo that a timely objection was made to the array, appellant failed to show any systematic exclusion of a class of persons as required for dismissal of a jury panel. Commonwealth v. Jones, 465 Pa. 473, 350 A.2d 862 (1976).

V.

Appellant also argues that the trial court erred in sustaining the Commonwealth’s objection to an offer of proof to present psychiatric testimony. Allegedly, this testimony would have negated the element of specific intent required for a conviction of the crimes of first-degree murder, theft, and robbery.

It is clear that the admission or exclusion of evidence is a matter committed to the sound discretion of the trial court. Commonwealth v. Miller, 303 Pa.Super. 504, 450 A.2d 40 (1982); Commonwealth v. Krajci, 283 Pa.Super. 488, 424 A.2d 914 (1981). On appeal, we will not disturb a court’s ruling unless it amounts to an abuse of discretion. Commonwealth v. Miller, supra; Commonwealth v. Krajci, supra. Moreover, it is basic hornbook law that only relevant competent evidence is admissible at trial. “Evidence is relevant if it tends to prove or disprove the matters in controversy.” Commonwealth v. Simp son, 316 Pa.Super. 115, 120, 462 A.2d 821, 823 (1983) (emphasis added); accord Commonwealth v. Doe, 316 Pa.Super. 1, 6, 462 A.2d 762, 765 (1983) (evidence which tends to establish facts material to a criminal prosecution or which tends to make a fact at issue more or less possible, is relevant.); Commonwealth v. Sinwell, 311 Pa.Super. 419, 423, 457 A.2d 957, 959 (1983) (evidence is relevant when it tends to establish facts in issue.)

We fail to see how appellant’s proffered evidence would have in any way advanced the inquiry into matters in issue. When the evidence was offered, there was nothing to show the trial court that appellant was intoxicated at the time- in question. Appellant testified that he had been drinking on the night of the murder but only in the following terms: “Not a lot — But a good considerable amount.” This cannot be construed as evidence of “intoxication”. Commonwealth v. Davenport, 494 Pa. 532, 534, 431 A.2d 982, 983 (1981). Further, the trial court stated that:

Defendant’s testimony about the events of the early morning in question belie the fact that he was intoxicated or even under the influence of alcohol. As a matter of fact, he testified that it was his partner who was “drunk” and that he even had to help him out of the car. His answers to the questions put to him on both direct and cross-examination tend to show a state of sobriety rather than intoxication.

Appellant’s reliance on Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972), and its progeny is misplaced. In McCusker, the Supreme Court allowed an accused charged with murder to offer psychiatric testimony to show he acted in the heat of passion. Subsequent cases permitted psychiatric testimony to show diminished capacity. See, e.g.; Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). The determinative factor in McCusker, Walzack, and the cases that followed, was that the defendant conceded general criminal liability; therefore, the only issue to be resolved by the trier of fact was that of the defendant’s mental state at the time of the charged crime. See, e.g., Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975); Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976); Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982); Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327, reh’g. denied 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). The Supreme Court has specifically stated that:

An accused offering evidence under the theory of diminished capacity concedes general criminal liability. The thrust of this doctrine is to challenge the capacity of the actor to possess a particular state of mind required by the legislature for the commission of a certain degree of the crime charged.

Commonwealth v. Walzack, supra, 468 Pa. at 220-21, 360 A.2d at 919-20. (Emphasis in original).

In the case at bar, appellant never conceded general criminal liability. In fact, appellant’s theory of defense, which was maintained throughout the entire trial, was that Brisbon committed the murder. Introduction of the psychiatric testimony would have in no way aided the jury concerning this issue. At most, this testimony would have put before them extraneous matters, thereby clouding the true matter in controversy. Accordingly, this claim is without merit.

VI.

The next assignment of error by appellant concerns the prosecution’s cross-examination of appellant regarding the racial motivation for the crime. Specifically, the district attorney questioned appellant about possible statements he made which indicated a desire to kill a white person. Over objection from defense counsel, this questioning was permitted; appellant responded by denying ever making such a statement.

The scope and manner of cross-examination are within the sound discretion of the trial court, and rulings by the court will not be overturned unless there was an abuse of discretion or mistake of law. Commonwealth v. Sisco, 484 Pa. 85, 398 A.2d 955 (1979); Commonwealth v. Fulton, 318 Pa.Super. 470, 465 A.2d 650 (1983); Commonwealth v. Katsafanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983). Furthermore, “[ejvidence of motive is always admissible.” Commonwealth v. Costanzo, 269 Pa.Super. 413, 419, 410 A.2d 324, 327 (1979); Commonwealth v. Gwaltney, 497 Pa. 505, 442 A.2d 236 (1982); Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970); Commonwealth v. Gonzales, 297 Pa.Super. 66, 443 A.2d 301 (1982).

The questions posed by the prosecutor were designed to show the motive for the crime charged. They were relevant and within the accepted limits of cross-examination. We cannot agree with appellant that the questions fall within the bounds of Commonwealth v. Tirado, 473 Pa. 468, 375 A.2d 336 (1977), so as to be considered “incompatible with the concept of a fair trial.” Id., 473 Pa. at 473, 375 A.2d at 338.

VII.

Appellant raises another claim of ineffectiveness of counsel in addition to the one addressed in Part II, supra. He argues that trial counsel was ineffective in not raising in post-trial motions an alleged error by the trial court when it overruled a demurrer to one of the charged crimes.

In Commonwealth v. Klinger, 323 Pa.Super. 181, 470 A.2d 540 (1983), we discussed the role of an appellate court when faced with allegations of ineffective assistance of counsel.

Our task in cases of alleged ineffectiveness of counsel encompasses both an independent review of the record and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives. However, our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).
We apply the Maroney test in two steps. We first determine whether the claim which counsel is charged with not pursuing had some reasonable basis. If the claim was baseless, counsel cannot be found ineffective. Only if the foregone claim is of arguable merit do we proceed to the second step of the Maroney standard whether counsel’s decision not to pursue the claim had some reasonable basis designed to protect his client’s interests. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Id. 323 Pa.Super at 181, 470 A.2d at 546.

In reviewing the issue of the demurrer, we are guided by the following principles. Our Court will review only those issues which have been properly preserved for review, i.e., errors which have been raised specifically in written post-trial motions pursuant to Pa.R.Crim.P. 1123(a). Commonwealth v. Bethel, 295 Pa.Super. 312, 441 A.2d 1248 (1982). However, in order to preserve a ruling denying a demurrer, a defendant must rest his case following the adverse ruling. Commonwealth v. McNeal, 493 Pa. 395, 426 A.2d 606 (1981); Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982). If the defendant presents a defense, the issue of the denial of the demurrer cannot be reviewed on appeal. In the instant case, trial counsel elected not to rest, but rather to proceed to present a defense. Nevertheless, we may treat the question as if it were properly framed, i.e., “whether the trial court erred in refusing appellant’s motion in arrest of judgment — whether the evidence was sufficient in law to support appellant’s conviction.” Commonwealth v. McNeal, supra, 493 Pa. at 397, 426 A.2d at 608. See also Commonwealth v. Dussinger, 478 Pa. 182, 386 A.2d 500 (1978); Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Smith, 313 Pa.Super. 138, 459 A.2d 777 (1983).

Appellant challenges the sufficiency of the evidence with respect to the charge of prohibited offensive weapons pursuant to 18 P.C.S. § 908. Section 908 provides in pertinent part:

§ 908. Prohibited offensive weapons
(a) Offense defined. — A person commits a misdemean- or of the first degree if, except as authorized by law, he makes, repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon.
(c) Definition. — As used in this section “offensive weapon” means any bomb, grenade, machine gun, sawed-off shotgun, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

In the case at bar, appellant was in possession of a .22 caliber rifle. A rifle of this type does not fall within the specifically enumerated weapons described in § 908(c). Therefore, for appellant to be convicted under this section, the rifle must be included in the last phrase of § 908(c), an “implement for the infliction of serious bodily injury which serves no common lawful purpose.”

In interpreting § 908 we have stated that:

... it is useful to distinguish between those weapons which are offensive in themselves, meaning that the universal experience within our society has been that these weapons are used only in furtherance of crime, and those that can be used offensively, in the hands of one inclined to do so, but also have recognized uses of a socially acceptable nature.

Commonwealth v. Adams, 245 Pa.Super. 431, 436, 369 A.2d 479, 482 (1976) (emphasis in original). The comment to the Model Penal Code, § 5.07, which § 908 was modeled after, is illustrative of the types of weapons that were intended to be excluded from the “prohibited” status under the statute.

Other weapons like sporting rifles, shotguns and revolvers ... have peaceful as well as lethal potentialities____ Not only must we take account of the desires of sportsmen, farmers, and dealers in hunting equipment, we must also recognize that revolvers and knives are frequently carried for defensive purposes.

The conclusion to be drawn from this discussion is that the statute was intended to apply to weapons which serve no lawful purpose, such as, but not limited to, those weapons described in § 908(c). A rifle of the type used in the instant case is not a weapon serving no lawful purpose. Therefore, the evidence was insufficient to support appellant’s conviction. Trial counsel’s failure to pursue the denial of the demurrer clearly constitutes ineffective assistance of counsel. Accordingly, appellant’s conviction for possessing prohibited offensive weapons must be reversed, and the judgment of sentence vacated.

VIII.

Appellant argues that the evidence was insufficient to sustain a conviction of first-degree murder. In Commonwealth v. Hogan, 321 Pa.Super. 309, 312, 468 A.2d 493, 495 (1983), we set out the test for reviewing insufficiency claims:

“The test of sufficiency of the evidence — irrespective of whether it is direct or circumstantial, or both — is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the [trier of fact] could properly have based [the] verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.” Commonwealth v. Minoske, 295 Pa.Super. 192, 198, 441 A.2d 414, 417 (1982) quoting Commonwealth v. Frye, 433 Pa. 473, 481, 252 A.2d 580, 584 (1969). Accord Commonwealth v. Giles, 500 Pa. 413, [415], 456 A.2d 1356, 1357 (1983); Commonwealth v. Wilcox, [310] Pa.Super. [331], [333], 456 A.2d 637, 639 (1983). In reviewing the evidence, we must consider it in the light most favorable to the Commonwealth, which won the verdict in the trial court. Commonwealth v. Durrant, [501] Pa. [147], [149], 460 A.2d 732, 733 (1983); Commonwealth v. Bachert, 499 Pa. 398, 402-03, 453 A.2d 931, 933 (1982); Commonwealth v. Kennedy, 499 Pa. 389, 392-93, 453 A.2d 927, 928 (1982).

See also Commonwealth v. Kenny, 326 Pa. 425, 474 A.2d 313 (1984).

A review of the record indicates that the testimony of Daniel Brisbon was sufficient to make out each and every element of first-degree murder beyond a reasonable doubt.

While appellant’s testimony was at variance with Brisbon’s, it is well settled that it is within the province of the jury to pass upon the credibility of witnesses and the weight to be accorded the evidence produced; the jury is free to believe all, part, or none of the evidence. Commonwealth v. Shaver, 501 Pa. 167, 460 A.2d 742 (1983).

IX.

The final contention appellant raises concerns the sentencing procedure utilized by the trial court. In reality, his argument is twofold. First, he challenges the consecutive sentence for the robbery conviction as “excessively severe.” The imposition of a sentence is with the sound discretion of the sentencing court. Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984).

An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or illwill, as shown by the evidence or the record, discretion is abused.

Commonwealth v. Miemetz, 282 Pa.Super. 431, 445 n. 12, 422 A.2d 1369, 1376 n. 12 (1980) quoting, Man O’War Racing Ass’n, Inc. v. State Horse Racing Comm’n., 433 Pa. 432, 451 n. 10, 250 A.2d 172, 181 n. 10 (1969). Accord, Commonwealth v. Miller, 303 Pa.Super. 504, 450 A.2d 40 (1982).

We cannot say that the trial court abused its discretion in sentencing appellant. The sentence of five to ten years was well within the limits prescribed by the statute for robbery. See 18 Pa.C.S. §§ 1103, 3701. See also Commonwealth v. Gordon, supra. The court had before it sufficient information for the sentence given: extensive psychiatric testimony concerning appellant’s mentality, background, etc., along with the sentencing recommendations of both counsel for appellant and the Commonwealth.

Appellant’s second challenge involves an alleged lack of reasons on the record for the imposition of the sentence for robbery. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Our review of the sentencing record reveals that the court had the benefit of the information described above, which included a detailed sentencing recommendation by defense counsel. More importantly, the court stated that it felt the sentence was necessary because the correetional treatment afforded appellant while imprisoned would be most effective.

Therefore, we reverse appellant’s conviction for possessing prohibited offensive weapons, and vacate the judgment of sentence. On all other issues, we affirm.

      . In Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976), the Supreme Court was faced with a similar situation:
      Appellant's psychiatrist would have testified that, because of appellant’s alcoholism, he could not have formed that intent if he had been intoxicated. Thus, if appellant had presented evidence that he had been intoxicated at the time of the homicide, the psychiatric testimony may have been admissible because it may have been relevant in determining appellant's actual state of mind.

        Id., 468 Pa. at 284-85, 361 A.2d at 292.

      . Appellant also raises an ineffective assistance of counsel argument concerning the hearing court’s denial of trial counsel's request for a continuance of the preliminary hearing. As found by the Supreme Court, this issue was moot due to the grand jury approving indictments against appellant. Consequently, we need not address this issue. Commonwealth v. Dobson, 302 Pa.Super. 57, 448 A.2d 92 (1982).

      . § 908 was amended in 1983. However, the amendment does not affect the section involved in this appeal.

      . We are mindful that a sporting rifle may be used for criminal purposes. However, we are also aware of the lawful uses to which a rifle may be put. "It is not within the category of a bomb, sawed off shotgun, or the like.” Commonwealth v. Rose, 265 Pa.Super. 159, 180, 401 A.2d 1148, 1159 (1979).