author: BECK, Judge:

text:
    464 A.2d 1270
    COMMONWEALTH of Pennsylvania v. Nicholas KATSAFANAS, a/k/a Nick Perry. COMMONWEALTH of Pennsylvania v. Edward PLEVEL.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1982.
    Filed Aug. 5, 1983.
    Petition for Allowance of Appeal Denied Dec. 8, 1983.

      Thomas A. Livingston, Pittsburgh, for Katsafanas, appellant (at No. 103).
    Thomas R. Ceraso, Greensburg, for Plevel, appellant (at No. 111).

      James J. West, Assistant District Attorney, Harrisburg, and Henry G. Barr, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   BECK, Judge:

Appellants Nicholas Katsafanas, a/k/a Nick Perry, and Edward Plevel, convicted of conspiracy, theft by deception, criminal mischief, rigging a publicly exhibited contest , and perjury in connection with the Pennsylvania State Lottery fraud of 1980 bring this appeal from the denial of their post-trial motions for a new trial and in arrest of judgment. They raise ten issues in this appeal, of which the first poses a question of first impression: in what county or counties is it proper to try offenses in which a computer was essential to the furtherance of the criminal acts? Perry and Plevel claim that they were erroneously brought to trial in Dauphin County (the locus of the computer) because none of the manipulation of the lottery equipment used to select the winning numbers took place in Dauphin County.

Perry and Plevel’s scheme to enrich themselves by the means of the computer-run state lottery was this: They first decided that the winning number combination (always one with three numerals) for the draw of April 24, 1980 would consist of only the numerals four (4) and six (6). There are eight possible three digit number combinations using only 4 or 6. The conspirators or their agents purchased lottery tickets for all the possible number combinations from retail ticket vendors at various locations. The rigging, or “fix”, took place in the studio of WTAE in Pittsburgh, Allegheny County, by means of placing counterfeit balls in the machines used in the drawing. When the winning number combination, 666, was drawn, Plevel telephoned Michael Keyser, an administrative officer in the Lottery Bureau in Harrisburg, Dauphin County. Keyser programmed 666 into the computer, and the conspirators or their agents subsequently cashed in their winning tickets.

This appeal, challenging the venue of a trial for crimes which made use of a computer-based operation, requires an examination of ancient rules of law in light of today’s technology. The common law adopted a territorial theory as the basis of jurisdiction over crimes. Jurisdiction is concerned with the authority or power of a court to entertain a case. A state has the power to make certain conduct criminal if that conduct, or its results, occurs within the state’s territorial limits. The rules of venue determine the place of trial within a jurisdiction. Issues relating to venue address the criteria for holding a trial in a particular court among several which may be jurisdictionally correct. The law1 relating to venue limits the general territorial rule by the concept that each crime has its own situs or locus which determines the correct place within the jurisdiction for the trial to take place.

Two provisions of the United States Constitution govern the place of criminal trial. Article III section 2 requires that trials shall be held in the state where the crimes were committed, and the Sixth Amendment guarantees the accused “a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed.”

The Pennsylvania Constitution, Article 1, section 9 provides:

Right of accused in criminal prosecutions

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land.

This section of the Constitution of the Commonwealth, like the Sixth Amendment, relates to vicinage rater than venue; i.e. it guarantees the right to be tried by jurors summoned from the county where the crime occurred. The historical importance of venue (the place of the trial) and vicinage (the geographic origin of the jurors) is traced to the original function of the medieval juries, both the grand jury of presentment and the trial, or petit jury. Medieval jurors’ primary responsibility was to provide information about the accused and the crime based on their own knowledge. They served the function which is today served by witnesses. It was therefore important that jurors be local, so that the facts of the case would be ascertainable by the court. Even after the role of the jury changed from its early purpose to its modern one, listening to evidence presented and reaching a conclusion based on that evidence, the local quality of criminal justice remained important as an element in assuring a fair trial.

Prior to the American Revolution, the colonists cherished the principles of venue and vicinage to guard against transportation of criminal defendants out of the area to England or to some distant place for trial. Provisions guaranteeing local trials eventually became part of the constitutional provisions of the various states.

While these older concerns are no longer in issue, we still recognize the importance of venue in criminal procedure. The Third Circuit has recently reaffirmed its importance in United States v. Passodelis, 615 F.2d 975 (1980), which recognizes the public policy fostered by the rules of venue designed to protect the accused from being forced to stand trial far from home or far from the place where the crime was committed. Venue guarantees also safeguard criminal defendants from unfairness resulting from “forum shopping” by government prosecutors.

We turn now to the charges brought against Perry and Plevel, arising from transactions using computer terminals in various locations, resulting in criminal activity in several counties. When, as in the instant case, a presentment is returned by a multicounty investigating grand jury, the pertinent statutory authority is 42 Pa.C.S. § 4551(c)(d):

(c) Prosecution by Attorney General.—Whenever multicounty investigating grand jury returns a presentment against any person the Attorney General or his designee shall, with respect to the alleged criminal activities, be authorized to prosecute the person on behalf of the Commonwealth by instituting criminal proceedings in the county of appropriate venue. The Attorney General or his designee shall take the oath of office required by law to be taken of district attorneys, and shall be clothed with all the powers and subject to all the liabilities imposed upon district attorneys by law.
(d) Venue.—In any case where a multicounty investigating grand jury returns a presentment the supervising judge shall select the county for conducting the trial from among those counties having jurisdiction. (Emphasis added).

Perry and Plevel argue that the supervising judge’s authority to select the county for trial in 4551(d) is limited to the counties of appropriate venue (c), and that Dauphin County is inappropriate because neither the crimes charged nor any of their essential acts were committed there. They claim that any connection between the crimes and Dauphin County was merely “incidental.” We believe the connection between the criminal enterprise and Dauphin County was more than “incidental,” and we agree with trial court which found appellant’s argument without merit.

We reject Perry and Plevel’s position that the Commonwealth has failed to establish that any act that was a basis of the crimes charged took place in Dauphin County. Appellants are in error in maintaining that the sole connection with Dauphin County was a telephone call to Michael Keyser, pertinent to the conspiracy charge. Keyser was the “Daily Numbers Officer” in the Lottery Bureau, who was in charge of the administrative functions of the lottery. He monitored the drawing from headquarters in Harrisburg, maintaining direct contact with stations broadcasting the drawing by means of a conference telephone call (R. 259).

At trial, the operation of the computer-based lottery was explained by Donald Frank, director for administration of the Bureau of State Lotteries. He described the operation of the “Daily Numbers Game.” Essentially, an on-line system connected the approximately 1400 ticket vending terminals to a central computer located in Harrisburg. When a wager was placed, all the wagering information was punched into one of the retail vending terminals located throughout the Commonwealth. The dollar amount of the bet, the number being bet, and the drawing date were punched into a terminal. An electronic message was transmitted to Harrisburg where the information was processed and stored. A return message was transmitted to the retail terminal which caused the terminal printer to issue a lottery ticket. The computer assigned each transaction an individual and unique control number, carried by no other ticket. The Harrisburg computer also recorded the exact time that each transaction occurred. After a studio draw, the winning number was telephoned to Harrisburg. Thereafter, when a winning ticket was presented to any one of the 1400 retail agents, the vendor sent an electronic message to Harrisburg where the computer researched the number and ordered the terminal at the agent’s location to print a “pay” ticket (R. 88a-95a).

During Frank’s testimony, the following exchange took place:

Q. Now, if for any reason the computer system in Harrisburg were not functioning, would it be possible for a retail vendor to sell a ticket to a customer?
A. No, Sir. (R. 94a).

Clearly, the functions of the Harrisburg computer were the essential operations in obtaining tickets and cashing them in. Every purchase of a ticket and every validation of a win occurred in and by the operation of the Harrisburg computer. The informations filed against Perry and Plevel charge them with purchasing lottery tickets and causing others to make purchases for them. Much more than the telephone call from Pittsburgh to Harrisburg was at stake, and the locus of the computer in Harrisburg makes Perry and Plevel’s statement that Harrisburg was “incidental” to the crimes erroneous.

We are influenced in our analysis of proper venue in the case at bar by another case of first impression, State ex rel. Meyer v. American Community Stores Corp., 193 Neb. 634, 228 N.W.2d 299 (1975) which concerned the use of Electronic Funds Transfer Systems (EFTS). Computer terminals installed in retail stores performed services such as depositing and withdrawing funds and cashing checks for the convenience of the stores’ customers. The question for the court was whether the stores were engaged in unauthorized branch banking operations, and the Nebraska Supreme Court held that they were not. The stores’ EFTS were merely intermediaries between the customers in the store and the bank itself, where the central computer was located. All banking operations took place at the bank, not at the sites of the EFTS. Rejecting a claim of the state that American Community Stores were engaged in banking, the Nebraska Court held that to take the prosecution’s approach was “to disregard ... the facts of electronic technology” (at 302). In the instant case, the computer in Harrisburg was central and essential to the operation of the lottery. Like the central bank’s computer in Meyer, it was the mechanism without which the lottery operation could not function.

In Meyer, venue was not in issue. The question for the court was the place of the banking operations, not the place of trial. We do not read that case to mean that the place of the central bank computer would be the only place where a trial relating to the operation of the system could take place. In the instant case we do not hold that Dauphin county, essential as the computer was to the lottery operations, is the only county where venue could lie.

Another case which influences our view of the question is United States v. Seidlitz, 589 F.2d 152 (4th Cir.1978), cert. denied 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979). Seidlitz was convicted of fraud by wire in violation of 18 U.S.C. § 1343. He had been a project director at a computer facility in Rockville, Maryland which performed services for the Federal Energy Administration. Seidlitz subsequently left that post and established his own computer firm in Alexandria, Virginia. He maintained contact with the Rockville computer illegally, using code words he knew from his former employment. Ultimately he was brought to trial in the United States District Court for the District of Maryland, although he himself was in Alexandria when he performed the criminal acts, and had fraudulently taken information from the computer by using the telephone. The court reasoned that Seidlitz’s telephonic signals to the computer were acts of intruding and trespassing upon physical property, “as if he had broken into the Rockville facility and instructed the computer from one of the terminals directly wired to the machines” (at 160).

Thus, venue may lie at the location of the central computer, whether the crime involved direct manipulation of the computer itself, as in Seidlitz, or whether the crime involved use of the central computer as an essential part of the plan or scheme giving rise to the criminal activities as in the instant case.

We find ample reason for concluding that acts of crime occurred in Dauphin County, where the number 666 was programmed into the state computer and where all the computer-based data relating to purchases, odds, and authorization of payments originated. In the lottery fraud, criminal activity occurred in numerous places throughout the state. Essential to the entire operation was the functioning of the computer in Dauphin County. Since we regard appellants’ argument that only the conspiracy charge and only the telephone call to Keyser in Harrisburg have any relationship to Dauphin County as specious, we find it unnecessary to respond to their contention that all of the offenses charged against Perry and Plevel have been “piggy-backed” onto that single event. If the computer is essential to and part and parcel of the crime, then the locus of the computer is one of the places where venue lies. We therefore hold that venue in Dauphin County was correct for the charges of conspiracy, theft by deception, criminal mischief and rigging a publicly exhibited contest.

We turn now to the perjury count relating to the testimony of Perry and Plevel at the grand jury in Philadelphia. The substance of the testimony concerned the charges in the other counts. If venue was proper in the other charges, as we hold that it was, the perjury committed before the grand jury was so intertwined with the other offenses as to require joinder. As the lower court points out, any connection between Philadelphia and the perjured testimony occurred because of the fortuitous choice of the situs of the grand jury, which by virtue of 42 Pa.C.S. 4541 et seq., has statewide jurisdiction to facilitate the investigation of complex, multicounty crime. In view of the statewide effect of the lottery fraud, the close connection between the perjury and the other acts charged, and judicial economy, we hold that venue in Dauphin County was correct for the perjury charge as well, and the claim of error on this issue fails.

The second issue which we consider is whether the trial court erred in refusing to grant severance to Perry and Plevel. Both men were charged with conspiracy, rigging a publicly exhibited contest, theft by deception, criminal mischief and perjury. All of the charges related to the episode of the April 24, 1980 manipulation of the lottery.

Severance is discretionary and the decision of the trial court will be reversed only upon a showing of manifest abuse of discretion or a showing of substantial prejudice and clear injustice to the accused. Commonwealth v. Rose, 265 Pa.Super. 159, 401 A.2d 1148 (1979). Perry claims that he was substantially prejudiced by the admission of testimony establishing that two men, one a business associate and one a friend of Plevel, purchased winning lottery tickets. He also claims that evidence of Plevel’s perjury was prejudicial to him (R. 924a-931a). Plevel claims prejudice from the admission of statements made by Perry to other conspirators (R. 611a-613a, 631a-632a). Although Perry and Plevel played different roles in the lottery fraud, with Perry’s function that of the studio announcer and Plevel’s function that of the state officer in the Lottery Bureau, the criminal enterprise was identical. Each man relied on assistance from the other in plotting and perpetrating the fraud, and each made use of the assistance of other co-conspirators.

The standard for determining joinder was explained in Commonwealth v. Rose, supra. Generally, joinder is proper when crimes arise from a single fact pattern; the likelihood of confusion or prejudice in the minds of the jury is outweighed by considerations of expediency and judicial economy; and evidence relevant to the crimes of one defendant is admissible in the trial of the other (as tending to prove “motive, intent, absence of mistake or accident, a common scheme, plan, or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others.” Commonwealth v. Lasch, 464 Pa. 573, 586, 347 A.2d 690, 696); Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981). The charges against Perry and Plevel meet the standard of proper joinder enunciated in these cases.

In addition to these general considerations, special arguments support the joinder of defendants in conspiracy and perjury charges. It is well established practice in a trial for conspiracy for co-conspirators to be tried together. Commonwealth v. Schwartz, 210 Pa.Super. 360, 233 A.2d 904 (1967), aff'd 432 Pa. 522, 248 A.2d 506, cert. denied 398 U.S. 957, 90 S.Ct. 2161, 26 L.Ed.2d 541 (1970). As to the perjury charge, defendants may be tried together. The standards for joinder are found in Commonwealth v. Weitkamp, 255 Pa.Super. 305, 386 A.2d 1014 (1970), petition for allowance of appeal denied. Joinder was upheld in that case because the appellants shared a common motive, the evidence of fact necessary to prove the falsity of their testimony came from a closely related group of witnesses, and the crimes charged grew out of the same acts. We believe the criteria of Weitkamp apply to Perry and Plevel.

In challenging a trial judge’s discretionary ruling that severance will not be permitted, the appellant has the burden of showing that the trial judge exhibited a manifest abuse of discretion or that his decision created a clear injustice, i.e. substantial injustice resulted from the refusal to sever. The assertion of a better chance of acquittal if tried separately does not meet this burden. Commonwealth v. Iacino, 265 Pa.Super. 375, 401 A.2d 1355 (1979); Commonwealth v. Shriner, 232 Pa.Super. 306, 332 A.2d 501 (1974). The court correctly instructed the jury that testimony incriminating Plevel was to be used only against him, without drawing inference against the other defendant, and vice versa (R. 729a, 1014a-1015a, 1059a-1060a). Our review of the record reveals no substantial prejudice to either Perry or Plevel from the joinder. Accordingly, we find no abuse of discretion on this issue.

Perry also claims error in the court’s charge. First, he claims it was error for the court to have made reference to Frank’s testimony regarding the operation of the computer, and also it was error for the court to have read a section of the statute on criminal mischief. Perry argues that these segments of the charge violate the constitutional protection guaranteed by Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887) and Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) which forbid broadening, variation or expansion of an indictment or information on the part of the trial court. We find this contention totally devoid of merit.

The court gave Perry’s requested point for charge on the conspiracy count in the wording that Perry requested (R. 1001a), and added a reference to Frank’s testimony because it was relevant to the Commonwealth’s position regarding venue in Dauphin County, discussed above, pp. 4 et seq.

In no way did the court expand or change the substance of the information, and the challenged passages bear no discernible relationship to the issue in Stirone (in which the court’s charge added an element not contained in the indictment) or Bain (where the court ordered some specific words stricken from the indictment in order to allow conviction without proof of those particular allegations).

Perry cites no case which supports his position that it is error to read a section of a statute when the accused is on trial for violating that statute. The court explained that it was reading part, rather than all of the statute on criminal mischief for purposes of clarity (R. 1052a). The statute itself is named in Perry’s information. We find this claim completely lacking in merit.

Perry also claims that the trial court erroneously refused to give a requested charge relating to Plevel’s testimony, which Perry characterizes as “significant exculpatory testimony” (Appellant’s brief, at 32). The requested charge was:

“2. I further charge you that, to the extent if any, you find the testimony of an accomplice tends to exculpate a defendant, that is, it tends to show the defendant to be not guilty, you may consider such testimony by an accomplice and find the defendant not guilty based on it. In other words, if you find that the testimony of Edward Plevel, an alleged accomplice, tends to show that Nick Perry was not involved in the crimes charged, you may find Mr. Perry not guilty based upon this testimony. This exculpatory testimony of an accomplice need only be proven by a fair preponderance of the evidence in order to raise a reasonable doubt.
I charge you that incriminating evidence must be proven beyond a reasonable doubt before you can convict a defendant. However, exculpatory evidence need only be proven by a fair preponderance of the evidence to raise a reasonable doubt and serve as a basis for a not guilty verdict.” (R. 1083a)

Perry argues that refusal to give the requested charge violated the holding in Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972). In Cool, unlike the instant case, the defendant had relied on exculpatory testimony of an accomplice who admitted his own guilt. The trial court, over the defendant’s objections, instructed the jury that the accomplice testimony should be disregarded unless the jury was convinced that it was true beyond a reasonable doubt. The Supreme Court found the challenged instruction unconstitutional. No such instruction was given in Perry and Plevel’s trial, so there can be no violation of the Cool holding.

In this trial, Plevel’s testimony regarding the activities of Perry was as follows:

Q. Would you tell us, sir, all that you know about Mr. Perry’s involvement in the rigging of the Pennsylvania State Lottery on April 24, 1980?
A. I don’t know any involvement.
Q. Will you tell us how you know about Nick Perry’s role in any conspiracy with [co-conspirators] Mr. Mara-gos, Mr. Luman, Mr. Bock, or with yourself, with reference to the rigging of the Pennsylvania State Lottery on April 24, of 1980?
A. I don’t know anything about it. (R. 936a).

The court gave instructions that four prosecution witnesses, who had admitted their part in the lottery fraud, were subject to the corrupt source criterion. The court also explained that all witnesses, including Plevel, were to be judged by credibility standards. The court repeatedly instructed the jury that the Commonwealth had the burden of proving the accused’s guilt beyond a reasonable doubt. All these instructions were correct. Commonwealth v. Jones, 490 Pa. 599, 417 A.2d 201 (1980); Commonwealth v. Cayton, 300 Pa.Super. 417, 446 A.2d 924 (1982); Commonwealth v. Fodero, 273 Pa.Super. 278, 417 A.2d 648 (1979). Given the content of Plevel’s testimony, the refusal to give additional special instructions on exculpatory accomplice testimony as to Plevel was not error. Rather than exculpate Perry, Plevel, in his testimony, stated he knew nothing about Perry’s involvement.

The fifth issue on appeal is a claim of error in the trial court’s denial of Perry’s motion for a mistrial. The Commonwealth, in its closing argument, said of certain grand jury testimony of Perry and Plevel, “We know that was a lie” (R. 972a-973a). Since defense counsel did not request a transcript of the closing argument we cannot review the prosecution’s statement in context. The judge who heard the closing argument stated, “In the Court’s view, and the context in which it was presented, the Court does not view the comment as a personal opinion.... ” (R. 973a).

We find no abuse of discretion in the trial court’s characterization of the remark. The prosecutor himself, after a side-bar conference, assured the jury that his remark reflected no personal opinion on his part (lower court opinion, 29). Perry’s cited authority, Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492 (1971) states that where the District Attorney’s language is intemperate or improper, a new trial is required. However, not every injudicious comment by a prosecutor necessitates a new trial.

The language must be such that its “unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968).

See also Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). We conclude that the remarks here, with the accompanying admonition, do not constitute grounds to warrant a new trial.

Four claims of error relate to the conduct of the trial. Perry raises two. The first of these is a contention that Perry’s counsel was improperly denied an opportunity to present rebuttal to the jury following the Commonwealth’s closing argument. Although P.R.Crim.P. 1116(b) clearly gives the Commonwealth the right to present the last argument, Perry argues that under Federal Rules of Criminal Procedure 29.1 the defense is entitled to follow the prosecution and that without this procedural guarantee he was denied his Sixth Amendment right to effective assistance of counsel, as well as the Due Process and Equal Protection guarantees of the Fourteenth Amendment. His contention flies in the face of law and logic. Commonwealth v. Toney, 439 Pa. 173, 266 A.2d 732 (1970) and Commonwealth v. Brown, 470 Pa. 274, 368 A.2d 626 (1976) both uphold the constitutionality of Rule 1116, rejecting a challenge that it in effect shifts the burden of proof from the Commonwealth to the defense.

Perry claims that he needed an opportunity to respond to unanticipated Commonwealth closing arguments concerning the final drawing, two payoffs, and character testimony. Since the drawing and the payoffs were prominent in the testimony of Commonwealth witnesses, and the defense decided to put Plevel’s character in issue, we conclude that closing arguments on these topics could not have been a surprise to the defense. We dismiss this claim of error.

Perry’s second claim of error relating to the conduct of the trial is that the defense’s cross-examination of Commonwealth witness Peter Maragos, one of the conspirators, was improperly restricted. Ordinarily, cross-examination of witnesses is limited to matters brought out on direct examination, with the exception that questions outside the scope of direct are permitted to show bias on the part of the witness. Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968); Commonwealth v. Ervin, 262 Pa.Super. 322, 396 A.2d 776 (1978); Commonwealth v. Dawson, 486 Pa. 321, 405 A.2d 1230 (1979) (relying on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 [1974]). Here the court prevented an attempt to elicit impeachment testimony in the form of questioning Maragos about failure to grant pre-trial interviews to the defense. Perry contends that the questions were necessary to prove bias on the part of Maragos.

Our standard of review of the scope of cross-examination is a determination of whether the trial court abused its discretion in its ruling. Commonwealth v. Marker, 231 Pa.Super. 471, 331 A.2d 883 (1974); Commonwealth v. Lane, 492 Pa. 544, 424 A.2d 1325 (1981). The record shows that both defense counsel were given extensive opportunity to cross-examine Maragos on his plea bargain with the Commonwealth, his possible animosity to those accused, and other matters relating to possible prejudice (R. 671a-691a). Perry has no claim that he was denied an opportunity to elicit bias, as in Ervin, supra, and Dawson, supra. The lower court’s determination that Maragos’ refusal to grant a pre-trial interview to the defense was lacking in relevancy was not an abuse of discretion.

Plevel also presents charges of error in the conduct of the trial. The first relates to the denial of severance, discussed above, pp. 14 et seq. Plevel argues that after denying his request for severance, the court should not have refused his request to call Perry to the stand as a witness, nor refused to allow Plevel’s counsel to address the jury on Perry’s not testifying. Plevel’s authority is DeLuna v. United States, 308 F.2d 140 (5th Cir.1962), reh. denied 324 F.2d 375 (5th Cir.1963) which, he maintains, protects his absolute right to draw the jury’s attention to Perry’s silence. We believe Plevel misinterprets DeLuna. In that case (in distinction to the instant one) two co-defendants presented mutually antagonistic defenses. One defense counsel commented on the other defendant’s refusal to testify. The court thereupon ruled that under the factual circumstances and the nature of the defenses presented, the proper remedy was severance. In fact, the DeLuna court specifically upheld the accused’s right of silence, and the obligation of the trial court, under the Fifth Amendment, to protect that silence from adverse comment. We do not read DeLuna to support Plevel’s contention that he had a right to comment on Perry’s refusal to take the stand.

United States v. Addonizio, 451 F.2d 49 (3rd Cir.1972) rejected the remedy of DeLuna and adopted an approach first enunciated in United States v. Kahn, 381 F.2d 824 (7th Cir.1967) on the need for severance when one defendant chooses not to testify:

The question as we see it is how essential is it to a fair and complete defense, an attribute of a fair' trial, that défendants be permitted to comment upon a co-defendant’s exercise of his right against self-incrimination. The procedural difficulties and the complication of joint trials arising from the rule suggested by dicta in DeLuna are so great that we cannot say that there is an absolute right, without reference to the circumstances of defense at trial, for a defendant to comment on the refusal of a co-defendant to testify. We think there must be more to justify the disintegration of a trial, such as a conspiracy trial, in which there is a cohesion of crime alleged, defendants charged, and proof adduced. There must be a showing that real prejudice will result from the defendant’s inability to comment. (Emphasis supplied) (Addonizio, 451 F.2d at 63).

The Addonizio court held that the accused did not have a clear right either to severance or the right to comment on his co-defendant’s silence, because Addonizio and his co-defendant had not presented mutually antagonistic defenses; i.e. the jury did not have the situation in which believing one defendant forced them to reject the defense of the other. Moreover, the court explained that the accused, while prevented from commenting on his co-defendant’s silence, was free to comment at length on his own willingness to testify.

Plevel made no showing that he was prejudiced by Perry’s silence, as required by The Addonizio rule. It is well established that Plevel could not compel Perry’s testimony. The constitutional right of a defendant not to testify at the behest of a co-defendant remains his right even if the trials are severed. United States v. Somers et al., 496 F.2d 723 (3d Cir.1974), cert. denied 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); United States v. Provenzano, 688 F.2d 194 (3d Cir.1982). We therefore believe that the trial court was well within its discretion in refusing to allow Plevel to comment adversely on Perry’s opting not to take the stand.

Plevel’s final claim of error is that the Commonwealth was improperly allowed to cross-examine him on his knowledge of how many winning tickets had been purchased by Primo Pacy, a business partner and social friend (R. 924a) and about a ticket in the possession of another friend, Robert Santori (whose fingerprints had been found on a winning ticket) (R. 930a-932a). Plevel took the stand himself and offered a general denial of everything related to the lottery fix (R. 866a, 869a, 872-3a, 902a).

When a defendant chooses to take the stand, the scope of cross-examination in a criminal case is broad. Commonwealth v. Williams, 270 Pa.Super. 27, 410 A.2d 880 (1979), Petition for allowance of appeal denied, 1980; Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974); Commonwealth v. Dreibelbis, 217 Pa.Super. 257, 269 A.2d 387 (1970) (on the wide latitude in cross-examination of accomplices). The law is clear that the trial court’s ruling on the scope of cross-examination will not be overruled absent a showing of abuse of discretion, Commonwealth v. Sisco, 484 Pa. 85, 398 A.2d 955 (1979), and we conclude that once Plevel made a general denial of his participation in the fix the Commonwealth’s questions on winning tickets held by Plevel’s associates was admissible. There has been no showing of abuse of discretion on this issue.

Finally, Plevel maintains that he was convicted of perjury, theft by deception, criminal mischief, and rigging upon insufficient evidence. Appellate review of sufficiency of the evidence requires that this Court accept as true all the evidence upon which a trier of fact could properly reach its verdict, giving the Commonwealth the benefit of all reasonable inferences to be drawn from that evidence. We then ask whether these facts and inferences are sufficient to establish beyond a reasonable doubt that the accused was guilty of the crimes charged. Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979). We agree with the trial court that the Commonwealth produced considerable and exhaustive evidence, including videotapes as well as witness testimony, of all the charges.

The “two witness rule” requires the testimony of at least two witnesses to establish perjury, in order to protect the one so charged from his own or another’s good-faith mistake, as well as from harassment by a single grudge witness. Commonwealth v. Broughton, 257 Pa.Super. 369, 390 A.2d 1282 (1978). This requirement has been met. Plevel’s perjury was established by the two senior citizens who participated in the April 24 telecast. Both refuted his sworn statement to the grand jury that a practice draw occurred on that date after 6:30 P.M. (R. 207a-230a). Plevel’s contention that he did not obtain any material benefit from the winning lottery tickets he held is belied by the testimony of Keyser, Dominic Marinucci, Kimberly Martin, and Peter Maragos, who together established that Plevel was active in the planning and perpetration of the scheme (R. 531a-540a; 560a-563a; 568a-570a; 631a-638a). Even if, arguendo, Plevel obtained no cash benefit from holding tickets with the winning combination 666 (a position which we find strains reasonable belief, since many of the tickets purchased for Plevel were redeemed, R. 590a-593a), he could still be found guilty of theft by deception. See Commonwealth v. Posavek, 278 Pa.Super. 265, 420 A.2d 532 (1980) upholding a conviction for theft by deception where the accused did not obtain property directly, but arranged to have it delivered to a third party.

Plevel also argues that his activities do not fall within the reach of 18 Pa.C.S. § 4109(a) because nothing was proved concerning his actual rigging of the lottery machinery. His physical absence from the machinery at a critical time when the lottery equipment was supposed to be guarded, leaving others free to insert and later destroy counterfeit balls, makes him as guilty as if he had himself performed one of those overt acts. Lottery regulations required Plevel’s presence while the lottery machines were outside a locked closet where they were normally stored. His purposeful absence was therefore criminal. Commonwealth v. Howard, 265 Pa.Super. 535, 402 A.2d 674 (1979).

In conclusion, we hold that the jury reasonably found that the Commonwealth met its burden of proving all the elements of the charges against Plevel beyond a reasonable doubt.

Judgment of sentence is affirmed.

      . 18 Pa.C.S. § 903.

      . 18 Pa.C.S. § 3922.

      . 18 Pa.C.S. § 3304.

      . 18 Pa.C.S. § 4109.

      . 18 Pa.C.S. § 4902.

      . LaFave and Scott, Criminal Law (1972), pp. 118 ff. McGinley v. Scott, 401 Pa. 310, 164 A.2d 424 (1960) has a good discussion of the distinction between jurisdiction and venue.

      . For the historical development of venue and vicinage see Kershen, Vicinage, 29 Oklahoma L.Rev., 801 (1976) and 30 Oklahoma L.Rev. 1 (1977); Perkins, The Territorial Principle in Criminal Law, 22 Hastings L., J. 1155 (1971); Blume, The Place of Trial of Criminal Cases: Constitutional Vicinage and Venue, 43 Michigan L.Rev. 59 (1944).

      . This case has received some scholarly attention, although it has not been cited in other jurisdictions. See McDaniel, Banking—Computer Transfer by Retail store, 73 A.L.R.3d 1275, and Odorizzi, Customer-Bank Communication Terminals and the McFadden Act Definition of a "Branch Bank”, 42 U.ChLL.R. 362 (1975). The latter article discuss- ' es a ruling of James E. Smith, Comptroller of the Currency in 1974, that under 12 U.S.C. 36(f) (the "McFadden Act”) computer terminals are not “branches” of a bank and that all transactions by the use of terminals legally occur at the banking house.

      . Plevel was also charged with unsworn falsification to authorities, and acquitted. Perry, but not Plevel, was charged with participation in a rigged public exhibit, 18 Pa.C.S. 4109(c).

      . Rule 1116. Opening Statements and Closing Arguments
      (b) When the evidence is concluded, each party shall be entitled to present one closing argument to the jury. Regardless of the number of defendants, and whether or not a defendant has presented a defense, the attorney for the Commonwealth shall be entitled to make one argument which shall be made last.

      . Rule 29.1 Closing Argument
      "After the closing of evidence the prosecution shall open the argument. The defense shall be permitted to reply. The prosecution shall then be permitted to reply in rebuttal.”

      . § 4109. Rigging publicly exhibited contest
      (a) Offense defined.—A person commits a misdemeanor of the first degree if, with intent to prevent a publicly exhibited contest from being conducted in accordance with the rules and usages purporting to govern it, he:
      (1) confers or offers or agrees to confer any benefit upon, or threatens any injury to a participant, official or other person associated with the contest or exhibition; or
      (2) tampers with any person, animal or thing.


source: Caselaw Access Project

author:
JOHNSON, Judge:
      POPOVICH, Judge,

license: Public Domain

text:
    464 A.2d 1283
    COMMONWEALTH of Pennsylvania v. Charles FRISBIE, Appellant.
    Superior Court of Pennsylvania.
    Submitted December 14, 1982.
    Filed Aug. 12, 1983.
    Petition for Allowance of Appeal Granted for Commonwealth Jan. 19, 1984.
    Petition for Allowance of Appeal Denied for Defendent Jan. 19, 1984.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

This is an appeal from judgment of sentence dated September 24, 1981. Appellant, Charles Frisbie, raises two issues for our consideration. The first issue is whether the trial judge erred in ruling that the evidence presented at appellant’s trial was not sufficient to put appellant’s sanity in issue. The second issue is whether the trial judge erred in sentencing appellant to one year probation on each of nine counts of recklessly endangering another person when these charges arose out of an automobile accident resulting from one unlawful act. Of these two issues, we find only the second to be meritorious. We therefore vacate the sentences imposed below on all counts of recklessly endangering another person and remand for resentencing.

Appellant was arrested on May 2, 1980. The circumstances of his arrest were as follows. At 5:00 p.m., two police officers noticed appellant’s vehicle proceeding west on Tasker Street in Philadelphia in an erratic manner. It seemed that appellant’s vehicle was continually stopping and moving forward in a jerking motion. Upon concluding that something was wrong, one of the officers, Elden Olsten, approached appellant’s vehicle while signaling appellant to pull over. Appellant locked his doors and rolled up his windows. He then reclined in his seat, putting his hands behind his head, and smiled. The appellant drove off. Officer Olsten returned to the police van. Upon his return he indicated to his partner that appellant seemed “spaced out” and that they were going to have trouble with him.

Because of traffic, the officers were compelled to follow directly behind appellant until they reached Broad and Tasker Streets. At this point Officer Olsten approached appellant’s vehicle again, but before he could break the window to gain entry into the interior of the vehicle, appellant propelled his vehicle forward, through a crowd of people in the street waiting for a trolley. Several persons suffered injury.

Appellant then entered the Schuylkill Expressway pursued by a second police van. A high speed chase ensued. On three occasions during the chase, the police officers narrowly avoided colliding with appellant’s vehicle when it veered in front of them. Finally, appellant lost control of his vehicle and it overturned on the expressway. Whereupon, appellant was apprehended.

After several months of delay because appellant was incompetent to stand trial, appellant was tried before the Honorable Alfred J. DiBona, Jr., sitting without a jury, on nine counts of recklessly endangering another person and one count of leaving the scene of an accident involving personal injury. His sole defense at trial was that he was legally insane in accordance with the M’Naghten test, when he committed the offenses charged. After two days of trial, appellant was convicted on all counts. Post-verdict motions were filed and later denied. Appellant was then sentenced to one year probation on each of the criminal counts of which he was convicted. This appeal followed.

I.

Appellant argues that sufficient evidence was presented at his trial to raise the issue of insanity. He argues further that the Commonwealth had the burden of proving his sanity beyond a reasonable doubt; and that it failed to discharge that burden. In light of Commonwealth v. Thompson, 274 Pa.Super. 44, 417 A.2d 1243 (1979), appellant’s arguments must be rejected.

The crux of the problem in the instant case is that the defense presented testimony of appellant’s insanity and the Commonwealth made no effort to present evidence of appellant’s sanity, other than, perhaps, testimony concerning the circumstances of the incident and what it could elicit from cross-examination. Also, the trial judge did not find that appellant’s sanity had been proven beyond a reasonable doubt. Commonwealth v. Thompson, supra, analyzes similar circumstances.

In Thompson, the defendant testified at trial that he had no knowledge of the crime of which he was charged, and that if anyone participated in the crime, it was his “consciousness,” a separate person that died in Bucks County. Notwithstanding his testimony, the trial judge convicted defendant of burglary, robbery, criminal conspiracy, and aggravated assault. On appeal, the defendant argued that his testimony raised the issue of insanity, and accordingly the Commonwealth could no longer rely on any presumption of sanity, rather it had to prove his sanity beyond a reasonable doubt. In an opinion by JUDGE CAVANAUGH, this court said:

[cjertainly it would work an unreasonable mischief if at the conclusion of every case the court on request had to send an insanity issue to the jury on the insistence of the defendant that a view of all the evidence raises the issue and requires a determination of whether the Commonwealth has proved sanity. It appears, then, that there must be a threshold determination by the trial judge to determine if ... the ‘evidence in the case from whatever source’ is sufficient to raise the issue of insanity.

Commonwealth v. Thompson, supra, 274 Pa.Super. at 49, 417 A.2d at 1246. Upon examining the defendant’s testimony, the court in Thompson found the testimony to be sufficiently relevant to a determination of the defendant’s sanity under the M’Naghten test that the issue of insanity had to be considered. JUDGE CAVANAUGH went on to state that:

[o]nce raised the issue becomes one for the factfinder. The initial question must be whether the issue has been creditably raised or whether it is simply an artifice. Of course, if the factfinder decides on initial examination that the evidentiary source of the insanity issue is wholly contrived, that it is a complete sham, the evidence is rejected and there is no insanity issue for the Commonwealth to meet____ In this non-jury case the trial judge in his opinion following post-trial motions stated: “the court found the defendants [sic] insanity testimony to be a complete sham. The story concocted by Thompson demonstrated his intelligence and his awareness of the situation.” This issue was an issue best decided by the factfinder and our examination of the record leads us to conclude that his finding should not be disturbed.

Id., 274 Pa.Superior Ct. at 50, 417 A.2d at 1246-47. JUDGE CAVANAUGH concluded that there had been no error committed below.

As we read Thompson, the trial judge will first determine that the evidence of insanity is relevant to a determination of the defendant’s sanity under the M’Naghten test. Then, even if the evidence is relevant and the Commonwealth has not introduced independent proof that a defendant was sane, the defendant is not necessarily entitled to be acquitted by reason of insanity. The factfinder upon examining the evidence of insanity and its source must determine if the issue of insanity is creditably raised. It may reject the evidence of insanity, the effect of which is to relieve the Commonwealth from having to adduce proof beyond a reasonable doubt that the defendant was sane. If that determination is amply supported by the record, it may not be disturbed on appeal.

The evidence at appellant’s trial consisted primarily of the Commonwealth’s witnesses, three police officers, and appellant’s sole witness, a psychiatrist, Dr. Perry Berman. Appellant argues that the testimony of two of the police officers and that of Dr. Berman was sufficient to raise the issue of insanity.

One of the police officers described appellant’s appearance as “spaced out” and stated that he had “glazed eyes”. Another testified that he spoke incomprehensibly and was belligerent when finally taken into custody. We acknowledge that their description of appellant lends support to the conclusion of Dr. Berman that appellant suffered from a mental illness when the incident occurred. However, mental illness alone does not constitute legal insanity. Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974). The essence of insanity under the M’Naghten test is a defendant’s ability to know the nature and quality of his actions or know whether they are wrong or right. The testimony of the police officers that appellant appeared “spaced out” with “glazed eyes” and acted belligerently sheds no light on whether appellant knew the nature and quality of his acts or knew they were wrong.

The principal evidence of appellant’s legal insanity was the testimony of Dr. Berman. Dr. Berman opined that at the time of the incident appellant “did not know the nature and quality of his acts nor did he know they were wrong,” because appellant suffered from manic-depressive psychosis. N.T. Volume II at 75 and 76. He testified that appellant was under the delusion that he was being guided by demonic forces, and that appellant believed that the crowd of persons that blocked his way on the date of the incident were not really “flesh and blood” human beings who could be injured or killed.

Judge DiBona in his opinion denying appellant’s post-verdict motions said “[t]his court, sitting as factfinder, found the testimony of the defense concerning the ability of the defendant to differentiate between right and wrong on the date of the incident to be unworthy of belief. Accordingly, there being no insanity issue for the Commonwealth to meet the defendant’s post-verdict motions on this ground was denied.”

Apparently, the trial judge totally discounted the testimony of appellant’s expert witness. In this respect, the instant case is somewhat different factually from Thompson. In Thompson, the trial judge rejected the defendant’s insanity evidence, his testimony, as concocted; whereas, here the evidence of insanity came from an expert, and could not be said to be concocted because it was founded upon a recent past history of mental illness. Nonetheless, we believe that Thompson applies where expert testimony was the principal evidence of insanity and it appears that the validity of the expert’s opinion is questionable in light of facts of record.

Applying the Thompson analysis to the instant case, we have examined the record to determine if it amply supports the trial judge’s decision to discount the testimony of Dr. Berman. We note first that Dr. Berman did not attend appellant near the time of the incident, rather in reaching his conclusions he relied upon reports detailing appellant’s past history of manic-depressive psychosis and appellant’s medical records following the incident, and an interview with appellant and1 others some seven months after the incident. With this information Dr. Berman was able to render an opinion with a strong degree of medical certainty that appellant was unable to know the nature and quality of his actions or know that they were wrong. Dr. Berman testified that appellant believed that the police were sent after him by demons. It appears that Dr. Berman believed that appellant’s delusion was so prevalent in his thinking that it prevented him from regarding the crowd of people who were in front of him, prior to the incident, as a real obstacle to his forward progress. However, during cross-examination Dr. Berman was unable to explain why appellant would be deluded as to the probable consequences of his act of driving into a crowd of people, and seemingly not have the same lack of appreciation of the nature and quality of his actions when shortly before the incident, he drove his vehicle along a busy street with the police directly behind him in pursuit, without striking another vehicle or person. He could not say why appellant could believe that the crowd of people before him were not real and, apparently believe, the automobiles that also impeded his progress for almost a half mile were real enough that he did not drive his vehicle into one of them. N.T., Volume II at 99. Other portions of the record support the conclusion that appellant knew the consequences of driving his vehicle into another object, be it human or an automobile. N.T., Volume II at 39-43. The record of Dr. Berman’s cross-examination further indicates that appellant told Dr. Berman that shortly before the incident, when the police initially attempted to stop him, he knew he had not done anything wrong. N.T. Volume II at 83 and 96. This statement indicates that appellant had the capacity to differentiate between right and wrong only a short time before the incident. Dr. Berman believed that if appellant did have such a capacity, he was unable to use it. We find that these aspects of Dr. Berman’s testimony severely undermined his conclusion that appellant did not know the nature and quality of his actions and that he was not able to differentiate between right and wrong.

As the arbiter of both the law and the facts, Judge DiBona was at liberty to reject the expert opinion of Dr. Berman as insufficient to raise the issue of insanity for it, like any other evidence, is for the trier of fact to consider and to determine what weight, if any, it could be given. See Commonwealth v. Hicks, 483 Pa. 305, 396 A.2d 1183 (1979). We are satisfied that an adequate basis existed in the record to permit the trial judge to discount Dr. Berman’s opinion altogether, thus eliminating the only pertinent evidence of appellant’s legal insanity. See Common wealth v. Norman, 259 Pa.Super. 301, 393 A.2d 837 (1978) (Opinion in Support of Affirmance by Cercone, P.J. joined by Price, J. and Van der Voort, J.)

Absent creditable evidence of appellant’s legal insanity when the incident occurred, the issue of insanity had no substance. With the rejection of Dr. Berman’s testimony, the Commonwealth had no burden of producing evidence that would convince the trial judge that appellant was sane beyond a reasonable doubt.

II.

Appellant’s second issue challenges the legality of the sentences imposed upon him below. Appellant contends that it was error for the trial judge to sentence him to' consecutive one year terms of probation on each of nine counts of recklessly endangering another person, when all of these counts stem from a single unlawful act committed by appellant. Our examination of the Pennsylvania case law leads us to conclude that only one sentence may be imposed upon appellant.

In Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), our supreme court stated that the:

[Ajnalysis of duplicitous sentence questions has traditionally revolved around the concept of injury to the sovereign, in this case the Commonwealth. One of the purposes of the criminal law is to punish offenses against the Commonwealth, as defined by the Legislature, and it follows that, ‘[t]he criminal prosecution is for the injury done to the Commonwealth, and not for the injury done to the individual who may, if entitled, obtain redress through a civil action. Where there is but one act of cause of injury, or death of a number of persons, there is but one injury to the Commonwealth, but where the acts or causes are separate, they are separate injuries to the peace and dignity of the Commonwealth... ’

Id. 468 Pa. at 331, 362 A.2d at 231 (citations omitted). When there has been a single injury to the “peace and dignity of the Commonwealth,” it is beyond the power of a sentencing court to impose multiple sentences upon a defendant. Commonwealth v. Walker, supra; Commonwealth v. Reynolds, 256 Pa.Super. 259, 389 A.2d 1113 (1978); Commonwealth v. Speelman, 235 Pa.Super. 109, 341 A.2d 138 (1975); Commonwealth ex rel. Brockway v. Keenan, 180 Pa.Super. 78, 118 A.2d 255 (1955). See also Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980); Commonwealth v. Lezinsky, 264 Pa.Super. 476, 400 A.2d 184 (1979).

We have determined from the record that the nine counts of recklessly endangering another person lodged against appellant were founded on a single unlawful act committed by appellant. The record reveals that appellant propelled his vehicle forward through a crowd of persons causing injury to numerous persons simultaneously. While this single action of appellant may constitute more than one criminal cause of action for recklessly endangering another person, it may still support but one sentence. See Commonwealth v. Cox, 209 Pa.Super. 457, 228 A.2d 30 (1967). See also Commonwealth v. Speelman, supra. Accordingly, we will vacate the sentences imposed upon appellant for all counts of recklessly endangering another person.

Since we are uncertain whether the trial judge might have sentenced appellant differently had he known that the consecutive probations imposed were illegal, we will remand for resentencing in order to permit the trial judge an opportunity to reconsider sentencing. Commonwealth v. Lezinsky, supra. So ordered. Jurisdiction is relinquished.

POPOVICH, J., files a concurring and dissenting opinion.

POPOVICH, Judge,

concurring and dissenting:

According to the majority’s logic, a drunk driver who crashes into a school bus and kills several children can be sentenced for only one count of involuntary manslaughter, the sentence not to exceed five years imprisonment and a $10,000 fine. Does this punishment fit the crime? Routinely and perfunctorily reiterating an ancient legal cliche, the majority maintains that the defendant cannot be sentenced on the remaining counts because all of the deaths are the result of a “single unlawful act.”

Although the facts of the instant case are, fortunately, not as severe as the above hypothetical, the same rule is applicable in either situation. In the instant case, appellant, prior to engaging in a high speed chase with the police, “propelled his vehicle forward, through a crowd of people in the street waiting for a trolley. Several persons suffered injury.” The majority, in remanding so that sentence can be imposed on only one of the nine counts of recklessly endangering, is blindly adhering to the prior decisions of this Court which prohibit multiple sentences in automobile accident cases. When our Court has bothered to offer a reason for this rule, we invariably cite a line of cases which state that the single act theory has “long been the law of this Commonwealth.” Because no logical reason exists to support the continued viability of the single-act doctrine in cases such as this one, I must vehemently dissent.

The rule takes its roots from two cases having nothing to do with the legal issues presented in automobile injury cases. In Commonwealth v. Veley, 63 Pa.Super. 489 (1916), three people drowned when a dam broke. The president of the company which owned and constructed the dam was brought to trial on two counts of involuntary manslaughter. The Commonwealth alleged that the defendant’s negligence in the construction and maintenance of the dam caused the drownings. The defendant was acquitted by a jury. Two years later, another involuntary manslaughter charge was brought against the same defendant for the death of the third drowning victim. Finding that the defendant was to be tried for an offense arising out of the same set of circumstances of which he was acquitted, this Court stated:

“Where there is but one act of cause of injury, or death of a number of persons, there is but one injury to the Commonwealth, but where the acts or causes are separate, they are separate injuries to the peace and dignity of the Commonwealth.
The protection afforded by the fifth amendment of the Constitution of the United State [sic], that a person shall not be twice placed in jeopardy for the same offense, is not only to protect against the peril of a second punishment, but is well against being tried a second time for the same offense: Kepner v. United States, 195 U.S. 100 [24 S.Ct. 797] 49 L.Ed. 114.”

Veley, supra, 63 Pa.Superior Ct. at 496.

The first sentence of the above quote is preserved by the majority in the instant case in its quote from Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976). This single-injury-to-the-Commonwealth language was initially produced in Commonwealth v. Ernesto, 93 Pa.Super. 339 (1928), where five defendants were each charged with seven counts of involuntary manslaughter after a still they were operating, in violation of the liquor laws of the time, exploded and ignited a fire destroying the home of one of the defendants and killing his wife and six children. All of the defendants were found guilty and each received five consecutive two-year sentences of imprisonment and two concurrent sentences of two years imprisonment. This Court held that the trial court erred in sentencing each defendant to a total of ten years incarceration. We found that the only difference between Commonwealth v. Veley, supra, and the case at bar was that the deaths in Veley were alleged to have occurred from the doing of a lawful act in a negligent manner and that in Ernesto, the deaths occurred from the doing of an unlawful act. Ernesto, supra, 93 Pa.Superior Ct. at 347. The Ernesto court reasoned:

“The same unlawful act which caused the death of any one of the persons mentioned in the indictment caused the deaths of the others. There was but one injury to the Commonwealth involved in this prosecution and that [sic] neither a malicious nor an intentional one insofar as its unfortunate results are concerned.”

Id., 93 Pa.Superior Ct. at 348.

Accordingly, the case was remanded to the lower court for resentencing so that a sentence no more severe than that authorized for a single act could be imposed.

The first time a drunk driver benefited from the single-act theory was in Commonwealth v. McCord, 116 Pa.Super. 480, 176 A. 834 (1935). Defendant McCord was found guilty of assault and battery, aggravated assault and battery, operating a vehicle on the public highways while under the influence of intoxicating liquor, violation of the Motor Code in failing to stop at the scene of an accident, and involuntary manslaughter. The facts indicated that an automobile, driven by either Mr. McCord or defendant Waggy, struck three young women, killing one, and injuring the other two. McCord was sentenced on all counts except simple assault and battery. This Court, relying on Commonwealth v. Veley, supra, and Commonwealth v. Ernesto, supra, ruled that the trial court had no power to impose sentence for both involuntary manslaughter and aggravated assault and battery from the single act of running into three people. The sentence imposed on the latter count was reversed.

Over the years, it has been consistently held that the courts of this Commonwealth have no power to impose more than one sentence for a single unlawful act. This single-act theory has been used in ca.ses where multiple crimes are committed by a single act, Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980); Commonwealth v. Lezinsky, 264 Pa.Super. 476, 400 A.2d 184 (1979), and where multiple victims are the result of a single act, Commonwealth v. Reynolds, 256 Pa.Super. 259, 389 A.2d 1113 (1978); Commonwealth v. Speelman, 235 Pa.Super. 109, 341 A.2d 138 (1975); and Commonwealth ex rel. Brockway v. Keenan, 180 Pa.Super. 78, 118 A.2d 255 (1955). The latter group of cases, involving multiple victims, most commonly involve auto accidents caused by intoxicated or reckless drivers. As stated previously, the primary reason given for the rule in these cases, which invariably cite McCord, supra, is that such a rule has long been the law of Pennsylvania. However, in Commonwealth v. Reynolds, supra, in response to the Commonwealth’s argument that the enactment of the Crimes Code dictated a new result, it was held that, aside from the fact that Pennsylvania case law in this area is well settled, if the legislature had desired to change the law it would have specifically done so. Id. 256 Pa.Super. at 279-80, 389 A.2d at 1123 (citing Commonwealth v. Miller, 469 Pa. 24, 364 A.2d 886 (1976)). This writer finds that the Reynolds court’s reliance on Miller, supra, was misplaced. In Miller, our Supreme Court held that the legislature, in adopting the Crimes Code, did not intend for the crime of criminal conspiracy to merge with the completed offense which was the object of the conspiracy. The Court reasoned that since the Crimes Code, which was based on the Model Penal Code, did not contain specific provisions mandating such a merger, our legislature did not intend to change the common law rule. Furthermore, the Miller court found that where the legislature intended to preclude multiple prosecutions and convictions, it manifested this intention clearly and precisely. Miller, supra 469 Pa. at 26-29, 364 A.2d at 887, 888.

The Reynolds court held that the legislature did not intend to change the common law single-act doctrine when enacting the Crimes Code because it remained silent on the subject. I find it totally illogical to premise such a decision on the Miller case, which holds that where the legislature has intended to preclude multiple prosecutions and convictions, it has done so clearly and precisely. Nowhere in the Crimes Code has the legislature precluded multiple sentences for multiple violations of a criminal statute when a single act injures more than one person.

“Although a rule of law may have emerged from a case, that does not foreclose its subsequent scrutiny by the Courts in ascertaining whether it is still jurisprudentially sound. Since the law is a ‘living and developing legal system ... rather than ... a static set of rules,’ Estate of Grossman, 486 Pa. 460, 470, 406 A.2d 726, 729 (1979), the policy of stare decisis is not to be adhered to with such blind obedience that one’s constitutional rights, e.g., to a speedy trial, are impinged. The better practice would be to examine the continuing viability of our decisions where the need so.requires.” (emphasis supplied).

Commonwealth v. Daniels, 288 Pa.Super. 69, 76-77 n. *, 431 A.2d 291, 295 n. * (1981) (Popovich, J., dissenting).

The constitutional right protected by this Court in Veley, supra, was the clause of the Fifth Amendment which states, “[n]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb ____” U.S. Const., Amend V. The Ernesto court erred in relying on Veley, supra, when it held that the explosion of an illegal still which leaves seven people dead gives rise to only one punishment. Veley stands only for the proposition that after an acquittal, one cannot be tried again on the same facts for the same offense. “[Tjhere is no constitutional prohibition against legislation which provides for multiple crimes arising from single acts against multiple victims. Ladner v. United States, 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958); People v. Golson, 32 Ill.2d 398, 207 N.E.2d 68 (1965).” State v. Miranda, 3 Ariz.App. 550, 416 P.2d 444, 451 (1966). This Court, in a case such as the present case, is no longer protecting a defendant’s constitutional right not to be tried twice for the same offense. Rather, we are protecting intoxicated and reckless drivers from the obvious consequences of their actions.

I would adopt the more logical approach taken by the State of Arizona, which allows consecutive sentences on multiple involuntary manslaughter charges arising from a single motor vehicle accident. In State v. Miranda, supra, the court interpreted the applicable Arizona statutes:

“The statute under which the defendant was prosecuted is in Ch. 2 of our Criminal Code (Title 13 A.R.S.) which is the chapter on homicide. A.R.S. § 13-156, sub-sec. A, in pertinent parts, reads as follows:
‘Manslaughter is of three kinds:
‘3. In the driving of a vehicle:
‘(a) In the commission of an unlawful act, not amounting to felony, with gross negligence; or in the commission of a lawful act which might produce death in an unlawful manner, and with gross negligence.’
This section is not intelligible unless the prior section is read also:
‘§ 13-455. Manslaughter defined.
‘Manslaughter is the unlawful killing of a human being without malice.’
This language makes sufficiently clear, in the opinion of this court, that the legislature intended that the killing of each human being, under the circumstances described in the code, would constitute a separate offense. Respect for human dignity is of the essence of our way of life. Certainly it is in keeping with this spirit that the wrongful killing of each human being should be treated as a separate offense.”

State v. Miranda, supra 416 P.2d at 451, 452. A contrary result was reached by the Alaska Supreme Court in Thessen v. State of Alaska, 508 P.2d 1192 (Alaska 1973), where the defendant was found guilty of 14 counts of manslaughter for one act of arson and only one sentence could be imposed. The Thessen court found that since the defendant did not intend for anyone to be killed in the fire he set, the focus of punishment “must be on the intent and conduct of the perpetrator rather than on fortuitous results.” Id. at 1197. The courts of this Commonwealth should not be persuaded by such reasoning in cases where a driver recklessly propels his car into a crowd of people or where an intoxicated driver crashes into a school bus. The results of these automobile “accidents” are not fortuitous.

The Pennsylvania statute which defines involuntary manslaughter provides:

“(a) General rule.—A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.”

18 Pa.C.S.A. § 2504.

This statute is invoked when one engages in the conduct proscribed and thereby “causes the death of another person.” Had the legislature intended the single-act theory to be included in the statute, the final phrase would read: “causes the death of one or more persons.” Rather, a person is guilty of involuntary manslaughter when his unlawful or negligent conduct causes the death of one person. The Pennsylvania involuntary manslaughter statute clearly focuses on the individual victim just as, in the instant case, the recklessly endangering section of the Crimes Code is written. This section provides:

“§ 2705. Recklessly endangering another person
A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.”

18 Pa.C.S.A. § 2705.

As was held in Commonwealth v. Miller, supra, where the legislature has intended to preclude multiple prosecutions and convictions, it has expressly done so. It is clear, in the opinion of this writer, that the above statute is written with regard to an individual person being placed in danger of death or serious bodily injury, and that a separate offense is committed for each individual placed in such danger. If the legislature intended a different result, this statute would read: “A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place a person or persons in danger of death or serious bodily injury.” It does violence to the plain meaning of these laws to hold that the legislature, by failing explicitly to overrule a relatively obscure line of cases, intended to incorporate the single-act doctrine into the involuntary manslaughter and recklessly endangering statutes. The fact that our Supreme Court quoted the multiple death language of Veley, supra, in Commonwealth v. Walker, supra, is irrelevant since that case involved different crimes, rape and statutory rape, from a single act against a single victim. The case law which has developed where two or more persons are injured or killed by a single criminal act in the operation of a motor vehicle is not based on sound legal principles and, therefore, must be changed. Appellant’s sentence of nine consecutive one-year terms of probation should be affirmed.

For the above-stated reasons, I dissent. I concur with the majority’s disposition of the first issue raised by this appeal.

      . 18 Pa.C.S.A. § 2705.

      . 75 Pa.C.S.A. § 3742.

      . The M’Naghten test of insanity relieves a defendant of criminal responsibility for his actions if at the time he committed a crime he was under "such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing wrong.” Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98 (1960).

      . Once the insanity issue is raised by evidence from whatever source, the Commonwealth bears the burden of proving beyond a reasonable doubt that a defendant was sane at the time he committed a crime. Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974).

      . Appellant failed to file a motion for reconsideration of sentence. This failure does not result in the waiver of this sentencing issue, because it concerns the lawfulness of the sentence. Commonwealth v. Walker, supra, 468 Pa. at 330 n. 3, 362 A.2d at 230 n. 3; see also Commonwealth v. DeCaro, 298 Pa.Super. 32, 444 A.2d 160 (1982); Commonwealth v. Walls, 248 Pa.Super. 335, 375 A.2d 125 (1977) aff’d, 481 Pa. 1, 391 A.2d 1064 (1978).

      . 18 Pa.C.S.A. § 2504.

      . See 18 Pa.C.S.A. §§ 1101, 1104; 42 Pa.C.S.A. § 9726(b).

      . On this point, the Miller decision cites 18 Pa.C.S.A. § 906, which provides: "A person may not be convicted of more than one offense defined by this chapter [inchoate crimes] for conduct designed to commit or to culminate in the commission of the same crime," and 18 Pa.C.S.A. § 3502, which provides: “(d) Multiplé convictions.—A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglar’s entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.”

      . To the extent that concurrent sentences are not violative of the single act doctrine, see Commonwealth v. Carroll, 131 Pa.Super. 357, 200 A. 139 (1938). However, as the distinction between concurrent and consecutive sentences, with regard to the single act doctrine, is as unsound as a rule against consecutive sentences in these cases, I understand the total disregard of Carroll in Commonwealth v. Speelman, supra, and Commonwealth v. Crocker, supra.


author: JOHNSON, Judge: BROSKY, Judge,

text:
    464 A.2d 1293
    Dana A. CHIESA v. A.M. FETCHKO, M.D., George F. Edmonston, M.D., and Joseph Ragheb, M.D. Appeal of PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE.
    Superior Court of Pennsylvania.
    Argued June 16, 1982.
    Filed Aug. 12, 1983.
    Petition for Allowance of Appeal Granted Nov. 14, 1983.

      Bradford Dorrance, Harrisburg, for appellant.

      William S. Schweers, Pittsburgh, for appellees.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

The Pennsylvania Department of Public Welfare (the Department) appeals the Order of the trial court entered January 19, 1982, denying their Petition to Intervene.

The record indicates that plaintiff Dana A. Chiesa filed a medical malpractice complaint against the defendant doctors in February of 1980 under the Health Care Services Malpractice Act (HCSMA), 40 P.S. § 1301.101 et seq. The action was subsequently transferred to the Court of Common Pleas in December of 1980. Plaintiff, who was receiving both Medicaid and cash assistance from the Department, did not notify the Department of the pendency of this action. By letter dated July 14, 1981, the Department requested information from plaintiffs counsel concerning any personal injury claim and informing counsel of his duty to notify the Department of such a claim. A reply dated September 4, 1981 was sent by plaintiffs counsel to the Department, stating that the HCSMA, specifically section 602, required no notice to the Department, nor was the Department entitled to any right of subrogation.

Following this exchange of correspondence, the claim was settled and, on October 16, 1981, the docket marked “settled and discontinued.” The Department then presented a Petition to Intervene to the court. The trial court ordered the settlement monies, $50,000, placed in escrow. The parties then stipulated to the Department’s claims of $5,807.95 for medical assistance and $3,996.50 in cash assistance. The Department’s Petition was denied by court order entered January 19, 1982.

The Department on appeal seeks review of the trial court’s determination that (1) no irreconcilable conflict exists between section 1409 of the Fraud Abuse and Control Act and section 602 of the HCSMA, (2) that section 602 of the HCSMA prevails over section 1409 of the Fraud Abuse and Control Act and (3) that said section 602 does not conflict with sections 1974 or 1975 of the Support Law.

We must first determine whether the Order appealed from is final or interlocutory.

An order denying intervention is not appealable unless it “would be a practical denial of relief to which the petitioner for intervention is entitled and can obtain in no other way.” Frey’s Estate, 237 Pa. 269, 271, 85 A. 147, 148 (1912). See Annot., 15 A.L.R.2d 33.

Richard Held Builders, Inc. v. A.G. Allebach, Inc., 266 Pa.Super. 101, 103, 403 A.2d 113, 114 (1979); see also Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa.Super. 279, 446 A.2d 614 (1982).

Unless we consider the merits—or “ramifications”—of a case, we cannot tell whether an order denying a petition to intervene is “a practical denial of relief to which the petitioner for intervention is entitled.” See, e.g., Taub v. Merriam, 251 Pa.Superior Ct. 572, 380 A.2d 1245 (1977) (deciding appeal); Richard Held Builders, Inc. v. A.G. Allebach, Inc., 266 Pa.Superior Ct. 101, 403 A.2d 113 (1979) (quashing appeal).

Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa.Super. at 282, 446 A.2d at 615 (footnote omitted).

The record indicates that the trial court ordered the settlement monies placed into escrow and that the parties stipulated to the sums paid to the plaintiff by the Department by way of medical and cash assistance. Therefore, as a practical matter, the undisputed res in controversy is being held by the court pending this appeal. The trial court, pursuant to its opinion dated January 11, 1982, held that the Department was not entitled to the monies as a matter of law. The Order of the trial court denying the Department’s Petition to Intervene is therefore a practical denial of relief.

The second part of the test for appealability is whether the Department can obtain relief by any other method. The Department has the right, under 62 P.S. § 1974, to sue a beneficiary for reimbursement of benefits paid by the Department. See Commonwealth of Pennsylvania, Department of Public Welfare v. Livingood, 22 Pa.Commw. 530, 349 A.2d 816 (1976); see also Shearer v. Moore, 277 Pa.Super. 70, 419 A.2d 665 (1980) (Commonwealth, in furtherance of efforts to obtain reimbursement for medical assistance payments, may sue recipient of assistance in court of common pleas). Also, the Fraud Abuse and Control Act, 62 P.S. § 1409(b)(1), states that the Department may sue a tortfeasor or his insurer directly for recovery of benefits paid on behalf of a beneficiary who has suffered injury. However, as stated previously, the trial court held that the Department was not entitled to recover benefits from the plaintiff in the instant case. We hold that, as a practical matter, the Department has no legal alternative to intervention in the instant case. The order denying the Department’s Petition to Intervene is, therefore, appealable.

We now turn to the issues raised on appeal.

Initially, it must be noted that all three issues raised by the Department involve the force and effect of section 602 of HCSMA. The record indicates the action was transferred to the Court of Common Pleas, pursuant to an Election of Jurisdiction, by the plaintiff. The record also indicates that the controversy was settled after the transfer.

We therefore must initially determine whether section 602 of the HCSMA is applicable in a situation involving the settlement of a malpractice action after transfer of the action from the jurisdiction of the HCSMA to the common pleas court.

It is clear that since the holding in Mattos v. Thompson, supra, the HCSMA no longer has original exclusive jurisdiction over claims for loss or damage, arising from the furnishing of medical services, against health care providers in Pennsylvania. Therefore, where such an action is either originally instituted in the court of common pleas or transferred to said court from the jurisdiction of the HCSMA pursuant to the Opinion of the Attorney General, 15 D & C 3d 585 (1980), certain other provisions of the HCSMA will no longer apply to the action.

The provision in question states:

§ 1301.602 Reduction of award by other benefits
The loss and damages awarded under this act shall be reduced by any public collateral source of compensation or benefits. A right of subrogation is not enforceable against any benefit or compensation awarded under this act or against any health care provider or its liability insurer. (Emphasis added)

An award has been defined as the decision or determination rendered by arbitrators or commissioners upon a controversy submitted to them. Black’s Law Dictionary (5th ed. 1979). See also 3 P.L.E. Arbitration § 12 (an award is the final judgment or decision pronounced by the arbitrators in settlement of the controversy submitted to them). Also, it has been held that an award is a judgment of a tribunal selected by the parties to determine matters actually in variance between them. Keiser v. Berks County, 253 Pa. 167, 97 A. 1067 (1916).

In the instant case, the settlement was made while jurisdiction was held by the court of common pleas, not the HCSMA. Although certain provisions of the HCSMA remain in force in such circumstances, we hold that section 602 is inapplicable to the instant case, as no award was involved.

In Marquez v. Hahnemann Medical College and Hospital of Philadelphia, 56 Pa.Cmwlth. 188, 424 A.2d 975 (1981), an action for damages under the HCSMA was settled. Plaintiffs attorneys sought approval of the settlement and the fixing of counsel fees from the court of common pleas, which was granted by order of court. The settlement was then submitted to the Administrator of the HCSMA for approval, pursuant to section 307(b) of the Act, because the action involved a minor. The Administrator declined to approve the settlement until attorneys’ fees were put into conformance with section 604(a) of the Act. On appeal, the commonwealth court held that the court of common pleas had no jurisdiction over the case because the action was within the exclusive jurisdiction of the HCSMA and that the common pleas court’s application of the Rules of Civil Procedure concerning settlement did not apply.

We believe the inverse of this holding to be applicable to the instant appeal; where the court of common pleas has jurisdiction over a medical malpractice claim, those sections of the HCSMA which concern only actions for arbitration within the ambit of the Act are inapplicable.

As set forth in footnote 8 supra, 62 P.S. § 1409(b)(1) clearly gives the Department of Public Welfare the right to recover the reasonable value of benefits provided a beneficiary from a tortfeasor or tortfeasor’s insurer.

Section 1409(b)(5) states:
(5) If either the beneficiary or the department brings an action or claim against such third party or insurer, the beneficiary or the department shall within thirty days of filing the action give to the other written notice by personal service, or certified or registered mail of the action or claim. Proof of such notice shall be filed in such action or claim. If an action or claim is brought by either the department or beneficiary, the other may, at any time before trial on the facts, become a party to, or shall consolidate his action or claim with the other if brought independently.

The instant action never reached trial on the facts. Therefore, section 1409(b)(5). appears to permit the Department to become a party to or to consolidate their action with that of the plaintiff.

Furthermore, section 1409(b)(9) states that “[n]o judgment, award or settlement in any action where the department has an interest, shall be satisfied without first giving the department notice and opportunity to perfect and satisfy his [sic] lien.” (Emphasis added.)

It is clear that the Department of Public Welfare has the right to recover the benefits paid, on behalf of plaintiff, from the defendants or their insurer. Plaintiff was required to notify the Department within 30 days of the institution of the action in the instant case. The Department also had the right to become a party to the action. Because the Department was not given notice of the action, its Petition to Intervene should have been granted.

The Order entered January 19, 1982 is reversed and the case remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I concur in the result. But I differ with the rationale employed in the majority opinion. It concludes that the Health Care Services Malpractice Act (HCSMA) provision in question here, 40 P.S. § 1301.602, is inapplicable to the case sub judice because it uses the word “award” and the case before us was settled. In my view this treatment is unnecessary, creates and undesirable method of deciding future cases in this area, and is used to draw a possibly erroneous conclusion.

First, it is unnecessary to rely upon this difference to reach the conclusion that the provisions of the HCSMA do not apply to actions in the Court of Common Pleas. Absent a clear statutory expression to the contrary, there is no reason to suppose that procedures set up under the HCSMA would have any effect on actions pursued in the Courts of our Commonwealth. In other words, it need not be proven that § 1301.602 does not govern in our courts. Quite to the contrary, the burden would be on the party seeking to establish that § 1301.602 does reach into the courtroom.

The fact that one of the many provisions of the HCSMA may carry over does not alter this basic presumption. There would appear to be quite definite reasons for holding that one of the parts of the HCSMA have currency in malpractice actions in our courts. 40 P.S. § 1301.701(d). This would, however, be the exception to the rule.

Second, I suggest that the majority opinion creates an unfortunate uncertainty as to which of the other provisions of the HCSMA may carry over into the courts, or, indeed, whether this provision would carry over under different facts. It does this by relying upon a specific difference between the HCSMA section in question and the facts of this case to decide that the section was not applicable here. The issue could have been resolved by asking whether there was any indication that HCSMA provisions in general should apply to actions in the courts. This side effect of the majority opinion is all the more regrettable as it is wholly unnecessary to the disposition of the case before us. There is no need for the question before us to be answered by specific arguments supporting the non-applicability of § 1301.602. As noted above, it is its applicability which would require a convincing argument. Without such an argument, its non-applicability would be the inevitable conclusion. In reaching the issue in the manner it has, the majority has utilized not only an unnecessary approach, but also a counter-productive one.

Third, I also have doubts about the accuracy of the implied distinction made between awards and settlements under the HCSMA. If, indeed, the action had remained under the HCSMA and had been settled, it is not at all clear to me that the provisions of § 1301.602 would not apply. The Act itself does not make an explicit distinction between an award and a settlement. Yet the majority opinion would reach such a situation. However, I do not believe that this question is presented by the facts of this case. Therefore, I do not make any firm conclusion myself on this matter; just as I do not think that the majority opinion should reach it.

In conclusion, the majority opinion establishes an unjustifiable procedure of having to establish the non-applicability of HCSMA provisions in court actions. It also makes an unwarranted and possibly erroneous holding as to settlements under the HCSMA.

I concur in the result.

      . Act of October 15, 1975, P.L. 390, No. Ill, as amended.

      . The Department alleged that the provisions of the Fraud Abuse and Control Act, Act of June 13, 1967, P.L. 31, No. 21, as amended, 62 P.S. § 1401 et seq., requires a beneficiary with a claim against third parties for injury to notify the Department of any action taken.

      . 40 P.S. § 1301.602, which states:
      § 1301.602 Reduction of award by other benefits
      The loss and damages awarded under this act shall be reduced by any public collateral source of compensation or benefits. A right of subrogation is not enforceable against any benefit or compensation awarded under this act or against any health care provider or its liability insurer.

      . The docket entries indicate the Petition was filed on November 10, 1981. However, the Department’s Rule to Show Cause why the Department should not be permitted to intervene was signed by the court on November 9, 1981 and responses to the Petition were filed on behalf of the plaintiff on October 28, 1981 and on behalf of two of the defendants on November 5, 1981.

      . Act of June 24, 1937, P.L. 2045, as amended, 62 P.S. §§ 1974, 1975.

      . Neither the parties nor the trial court discuss the appealability of the Order in the instant case. However, this court is empowered to raise the appealability of the Order sua sponte. Davanzo v. Finelli, 293 Pa.Super. 70, 437 A.2d 995 (1981).

      . Chiesa v. Fetchko et al., G.D. 81-004770, Court of Common Pleas, Allegheny County, Civil Action-Law.

      . Section 1409(b)(1) states, in part:
      (b)(1) When benefits are provided or will be provided to a beneficiary under this section because of an injury for which another person is liable, or for which an insurer is liable in accordance with the provisions of any policy of insurance issued pursuant to Pennsylvania insurance laws and related statutes the department shall have the right to recover from such person or insurer the reasonable value of benefits so provided....

      . The record indicates that on March 4, 1982, the trial court ordered those monies held in escrow, in excess of the stipulated sum in controversy, distributed to the plaintiff and her counsel. Although it might be argued that this distribution would then require the Department to seek recovery directly from the plaintiff, as a practical matter it is reasonable to expect that suit brought against the plaintiff for recovery of benefits at this time might well be unsuccessful. Also, as stated supra, the monies in controversy are currently being held in escrow pending the outcome of this appeal. On the facts here involved, we are not prepared to require the Department to pursue conjectural alternatives, where the trial court has already moved to identify an appropriate fund specifically reserved for the resolution of this dispute.

      . Pursuant to the holding in Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (1980), the provision of HCSMA giving the health care arbitration panels exclusive jurisdiction over medical malpractice claims was determined to be unconstitutional. The Opinion of the Pennsylvania Attorney General, 15 Pa.D. & C.3d 585 (1980), stated that any party to a medical malpractice action could elect to have the action transferred to the appropriate court of common pleas.

      . We need not discuss specifically which provisions will remain in force in such a situation, except for section 602. However, it is clear that the provisions relating to professional liability insurance and the catastrophe loss fund will apply, especially after the 1980 amendments to the HCSMA. See, e.g., amendments to 40 P.S. § 1301.701(d) (contingency fund and liability insurance provision amended to apply to all awards, judgments and settlements as a consequence of any claim for professional liability).

      . Section 307(b) states:
      (b) The administrator shall have the power to consider and approve offers of settlement for fiduciaries, minors and incompetent parties at any time prior to the first meeting of the arbitration panel. The fund may be represented at any negotiation or settlement exceeding the basic coverage insurance carrier limit or liability-

      . We need not decide whether plaintiff should have notified the Department of the filing of her action under HCSMA or only upon filing the action in the court of common pleas.

      . As this question is not presently before us, I would not go as far as my learned brothers in declaring that § 701(d) does carry over.