text:
    469 A.2d 682
    COMMONWEALTH of Pennsylvania ex rel. John C. ERMEL v. Romayne B. ERMEL, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 7, 1983.
    Filed Dec. 30, 1983.

      Kenneth C. Maraño, Wilkes-Barre, for appellant.
    Ettore S. Agolino, Pittston, for appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   ROWLEY, Judge:

This is a direct appeal from an order of contempt entered by the Luzerne County Court of Common Pleas on January 18, 1982. The trial court held Romayne B. Ermel, appellant, in contempt because of her failure to comply with court orders dated November 27, 1978 and December 18, 1979, that granted John C. Ermel, appellee, visitation with and joint custody rights concerning the parties’ minor daughter, Rita Ann Ermel. We affirm.

The matter of custody and visitation rights concerning Rita Ann originated in 1976. At that time Rita Ann was 4 years old. She is now 11, and during the past seven years countless hearings and other proceedings have been held before four different trial judges. The case has been before our court on two previous occasions, resulting in a decision awarding visitation rights to Rita Ann’s father, and a subsequent order affirming an award of joint custody to the child’s divorced parents. Appellant has twice been held in contempt for failing to abide by the court ordered visitation and custody schedule. Appellant was first held in contempt on December 20, 1978, for failing to comply with the November 27, 1978 court ordered visitation ■ schedule. On September 24, 1979, she was remanded to Luzerne County Women’s Detention Center because she failed to purge herself of the contempt. On October 3, 1979, appellant gained her release by posting a $25,000.00 performance bond whereby she guaranteed that she would comply with the court’s orders. . (October 3, 1979 N.T. 31-32) Nevertheless, appellant did not adhere to the court ordered visitation schedule, nor did she comply with the subsequent order of December 18, 1979, awarding joint custody to both parents. Consequently, appellee filed a petition for attachment on October 8, 1981, in order to compel appellant’s compliance. After hearings held October 22, 1981, through November 5, 1981, appellant was again held in contempt by order dated January 18, 1982. The court, in its latest contempt order, before us on this appeal, declared that appellant’s continued noncompliance rendered the performance bond forfeited for payment of appellee’s attorneys fees.

Although appellant’s brief frames two questions, her basic contention on appeal is that the evidence was insufficient to support the trial court’s adjudication of contempt. Upon a thorough review of the exhaustive hearings and other proceedings in this case, we find that appellant has violated the court ordered visitation and custody schedule, and thus we affirm the trial court’s contempt order.

The dominant purpose of civil contempt proceedings is to aid a private litigant by coercing the contemnor into compliance with a court order. Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Woods v. Dunlop, 461 Pa. 35, 334 A.2d 619 (1975); Nemeth v. Nemeth, 306 Pa.Super. 47, 451 A.2d 1384 (1982). The general rule in civil contempt cases is that the complaining party “has the burden of proving noncompliance with the court order by a preponderance of the evidence, and that present inability to comply is an affirmative defense to be proved by the contemnor.” In Re Grand Jury, 251 Pa.Super. 43, 53, 379 A.2d 323, 327 (1977); Barrett v. Barrett, 470 Pa. 253, 263, 368 A.2d 616, 621 (1977). In considering an appeal of a contempt order, we must place great reliance on the sound discretion of the trial judge. In Re Grand Jury, supra 251 Pa.Super. at 50, 379 A.2d at 326; Bata v. Central Penn National Bank of Philadelphia, 433 Pa. 284, 287-88, 249 A.2d 767, 768 (1969).

In the instant case, the court, in its order of November 27, 1978, granted the father visitation on the first and third Saturdays of each month and on the second and fourth Sunday of each month. In its order of December 18, 1979, the court awarded the father additional periods of partial custody on certain annually recognized holidays, for two weeks during the summer months, and expanded the Sunday visitation rights into weekend custody from Friday until Sunday. Testimony at the hearings held October 22 through November 5, 1981, reveals that appellant has repeatedly attempted to frustrate, rather than foster, compliance with the court’s orders as well as development of a normal father-daughter relationship between Rita Ann and her father. Appellee testified that he encountered difficulty in his attempts to see Rita Ann from January 1980 through May 1980. During that period, the testimony indicates that he was denied visitation at least eight times, purportedly because Rita Ann was sick. (October 22, 1981 N.T. 9-13, November 5, 1981 N.T. 14-25, 71-76) On at least two other occasions during those months, appellee was denied custody because appellant had taken the child on vacation. From August 1, 1981, until the latter part of October 1981, appellee saw his daughter only twice, both times on Saturday afternoons. Specifically, he testified that on September 11, 1981, he went to pick up Rita Ann for a scheduled weekend visit and the child refused to go. (October 22, 1981 N.T. 25) He implored appellant to assist him by talking to the child or helping him get her to the car, but appellant said nothing and looked at the ceiling. (October 22, 1981 N.T. 26) He then left. The next weekend he returned for a Saturday visit. Appellant came to the door and again told him that Rita Ann refused to go with him. (October 22, 1981 N.T. 27) This was the last time he made an attempt to see her prior to filing the petition for attachment that is now the subject of this appeal.

In this case, it is evident that appellant has not only violated the court’s orders by making Rita Ann unavailable on certain scheduled days, but furthermore, she has engaged in a course designed to poison her daughter’s mind against her father. After appellant was first held in contempt and placed in a Detention Center, a hearing was held at which she posted a performance bond and promised not to interfere with appellee’s visitation rights. At the hearing, held on October 3, 1979, the following exchange transpired between Romayne Ermel and Judge Arthur D. Dalessandro:

[Dalessandro, J.] Q. There is one great concern that I have. From looking at the record I infer that the child may have deep dislike or possibly hatred for her father. Hate doesn’t grow in children normally. It is usually taught to them. You have the burden of straightening out the child to the fact that this is her father and that there will be visitation. As far as I’m concerned, you, as the person who has custody of the young child, are primarily responsible for her attitudes and her feelings. You are primarily responsible to correct those attitudes and feelings for the best interest of the child. Have I made it clear?
[Romayne Ermel] A. Yes.

(N.T. 40). At the close of the hearing, Judge Dalessandro included the following directives in his decision:

It will be the obligation of Mrs. Ermel to have the child clothed and prepared when Mr. Ermel calls for the child at her residence. Mrs. Ermel is to escort the child to Mr. Ermel’s car which is going to be parked in front of Mrs. Ermel’s residence. It is expected and understood that there may be some initial problems in the physical transfer of the child. The parents are directed to work toward the goal of having Rita Ann placed in her father’s custody for the visitation with a minimum amount of problems ____

(N.T. 41-42). The subsequent order of December 18, 1979, issued by Judge Dalessandro granted joint custody to both parents placing an affirmative duty on appellant to instruct the child that she may enjoy a normal life in the company of her father and that appellant will not be offended if the child shows affection for her father or if she accepts gifts from him or from his family. Appellant was further ordered to instruct Rita Ann to respect her father and his family.

Mrs. Ermel has not assured Rita Ann that appellee is her father. (November 5, 1981 N.T. 69) She claims that she does not remember being instructed to escort her daughter to Mr. Ermel’s car, nor does she remember being told that she has the burden of explaining the schedule to Rita Ann and encouraging her to accept Mr. Ermel as her father. (November 5, 1981 N.T. 68-69, 77) She insists that appellee physically and mentally abused Rita Ann, a contention that has no support on the record except for appellant’s own testimony. (November 5, 1981 N.T. 80-81) In fact, an allegation that John Ermel physically abused Rita Ann has previously been rejected by this court. In this case, the evidence was more than sufficient to support the trial court’s determination that the mother’s conduct fell far short of court directives.

Indeed, appellant admits that she failed to comply with the court ordered visitation and custody schedule, but she argues that it was impossible for her to perform because Rita Ann had a negative attitude toward her father and she refused to go with him. Impossibility is only a defense, however, where the inability to perform is not due to the defendant’s own actions. D.E.R. v. Pennsylvania Power Co., 12 Pa.Commw.Ct. 212, 225, 316 A.2d 96, 103 (1974), affirmed 461 Pa. 675, 337 A.2d 823 (1975). In this case, Rita Ann’s “negative attitude” toward her father is a direct result of appellant’s conduct over the past years. Although the record indicates that the child resisted visitation, it is devoid of any effort on the part of the mother to encourage Rita Ann to spend time with her father, to tell her that he is a good and decent man or to cheerfully escort her to his car and tell, her she has nothing to fear. At the hearings held pursuant to these contempt proceedings, a developmental pediatrician and a psychiatrist testified that Rita Ann experiences stress from visits from her father, that she is fearful, and that she becomes depressed before and after visits with her father. They stated that Rita Ann has refused to see him for these reasons. (October 22, 1981 N.T. 69-83, November 2, 1981 N.T. 41-47) Yet, the record demonstrates that Rita Ann’s relationship with her father has been impeded by the child’s mother in every conceivable manner. Rita Ann has been led to believe that there will be terrible consequences if she begins to enjoy spending time with her father. At the heart of the contempt adjudication in this case is the mother’s continued refusal to foster in Rita Ann a sense of admiration and respect for her father.

It is obvious that Mrs. Ermel has a great deal of influence over her daughter’s ideas and feelings and she is the only one who can undo the damage that has been done. Therefore, her argument that Rita Ann’s refusal to cooperate renders compliance impossible is specious, since appellant alone holds the key to removing that impossibility. It is her affirmative duty to create an atmosphere of love and confidence that will convince Rita Ann that she has nothing to fear from her father who loves her and has proven his devotion by fighting for his right to share in the benefits and burdens of parenthood.

Order affirmed.

      . In Commonwealth ex rel. Ermel v. Ermel, 259 Pa.Super. 219, 393 A.2d 796 (1978), this court reversed an order of the trial court that denied visitation to Rita Ann’s father. The court determined that the presumption of legitimacy had not been rebutted and thus, the trial court erred in finding that John Ermel was not Rita Ann’s father. The court held that visitation was to be reinstated, in order to give the father an "opportunity to re-establish and to deepen his relationship with his daughter.” Id., 259 Pa.Superior Ct. at 229, 393 A.2d at 801.

      . By per curiam order and memorandum opinion in Commonwealth ex rel. Ermel v. Ermel, 297 Pa. 508, 441 A.2d 763 (1982), this court affirmed the trial court’s orders denying the mother’s petition to discontinue the father's visitation and custody rights, and her petition to modify visitation and custody rights.

      . In Commonwealth ex rel. Ermel v. Ermel, 259 Pa.Super. 219, 393 A.2d 796 (1978), the court held that there was not merit to Mrs. Ermel’s charge that Mr. Ermel sexually molested Rita Ann. Id., 259 Pa.Superior Ct. at 226, 393 A.2d at 799.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    469 A.2d 686
    COMMONWEALTH of Pennsylvania, v. Cris WISSLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1983.
    Filed Dec. 30, 1983.
    Petition for Allowance of Appeal Denied May 24, 1984.

      Morrison B. Williams, Hanover, for appellant.
    Sheryl Ann Dorney, First Assistant District Attorney, York, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and CERCONE, JJ.
   WIEAND, Judge:

Is an attempt to assassinate a well known public figure and religious leader an event which mandates the granting of a mistrial in an unrelated armed robbery case then being tried? The trial court denied a defense motion for mistrial when the jury became aware, during the noon recess on May 13, 1982, that Pope John Paul II had been the subject of an assassination attempt. The jury subsequently found Cris Wissler guilty of armed robbery. We find no error in the trial court’s ruling and affirm the judgment of sentence.

A decision to grant or refuse a motion for mistrial is within the sound discretion of the trial judge, and his ruling thereon will not be reversed absent an abuse of discretion. Commonwealth v. Potts, 314 Pa.Super. 256, 275, 460 A.2d 1127, 1136 (1983); Commonwealth v. Dumas, 299 Pa.Super. 335, 344, 445 A.2d 782, 787 (1982); Commonwealth v. Green, 287 Pa.Super. 220, 226, 429 A.2d 1180, 1183 (1981); Commonwealth v. Conti, 236 Pa.Super. 488, 495, 345 A.2d 238, 242 (1975).

The event relied upon by appellant to support his request for a mistrial did not occur in the presence of the jury and was not related, directly or indirectly, to the case then being tried. Appellant cites no cases in which an unrelated event similar in nature to that in the instant case was held to require the granting of a mistrial. Indeed, those few cases which have considered a similar issue support the trial court’s decision to deny the motion for mistrial. Thus, in United States v. Clarke, 224 F.Supp. 647 (E.D.Pa.1963), vacated on other grounds, 343 F.2d 90 (3d Cir.1965), the assassination of President Kennedy was held not to require the granting of a mistrial where the defendant was contemporaneously being tried for trafficking in narcotics. “[T]he complaint that the jury would rationalize a traffic in narcotics with the assassination of a President of the United States, and that no one could get a fair trial in a United States Court where a Government Agent was involved in testimony relating to any crime,” said the Court, was “completely illogical.” Id. at 651. See also: Frayer v. Turner, 296 F.Supp. 1256 (1969). We agree with this reasoning.

It is difficult to comprehend how an attempt on the life of the Pope could bear upon and influence a jury’s determination in an unrelated trial for armed robbery in York County. There was no greater association between these two events than there is between events regularly making headlines in local newspapers and criminal trials being held daily in courts of law throughout the nation. Lacking some association between event and trial, we cannot say that abortion of trial must necessarily follow every occurrence of a newsworthy event.

Appellant also complains because the trial court rejected a negotiated plea of guilty which would have required the court to impose a lesser sentence. In Commonwealth v. Wilson, 234 Pa.Super. 7, 335 A.2d 777 (1975), this Court said: “The decision whether to accept a plea bargain is in the exclusive discretion of the trial judge and is not reviewable. ‘There is no absolute right to have a guilty plea accepted.’ ” Id., 234 Pa.Superior Ct. at 10, 335 A.2d at 778. If, as appellant contends, there are cases in which a defendant may have changed his position irrevocably in reliance upon acceptance of a plea of guilty tendered in exchange for a lenient sentence, it is a sufficient response that this is not such a case. In this case, appellant’s tendered plea of guilty was not accepted by the trial court. Inherent in his negotiations with the District Attorney was the risk that the trial court would reject the District Attorney’s recommendation regarding the sentence to be imposed. When rejection of the plea in fact occurred, appellant was protected by the right to withdraw his guilty plea; he was not entitled to specific enforcement of his plea agreement. Appellant did elect to withdraw his plea of guilty, and upon a subsequent trial his prior plea negotiations were not admissible and had no effect on the outcome. Thus, appellant was not prejudiced by the fact that the court rejected his guilty plea; and he cannot now complain that he was convicted following trial and sentenced to a term of imprisonment greater in duration than that which the District Attorney was prepared to recommend.

The judgment of sentence is affirmed.


author: CERCONE, Judge:

text:
    469 A.2d 687
    COMMONWEALTH of Pennsylvania v. John Michael ZUDER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 21, 1983.
    Filed Dec. 30, 1983.

      Michael R. Muth, Public Defender, Stroudsburg, for appellant.
    Robert C. Lear, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

On January 3, 1979, appellant was convicted by a jury in the Court of Common Pleas of Monroe County of indecent exposure and open lewdness. Following the denial of his post-verdict motions, appellant appeared before the Honorable Harold A. Thomson, Jr. on April 9, 1980 for sentencing. For the crime of indecent exposure, the court ordered appellant to pay a fine of One Thousand Dollars and to undergo incarceration for a period of not less than six (6) months nor more than twenty-three (23) months. Sentence for the offense of open lewdness was suspended.

The Superior Court affirmed appellant’s judgment of sentence in a per curiam order entered on October 16, 1981. See Commonwealth v. Zuder, 296 Pa.Superior Ct. 576, 438 A.2d 642 (1981). Appellant’s petition for allowance of appeal was denied by the Supreme Court on January 29, 1982.

On April 10, 1980, in an entirely unrelated proceeding before the Honorable James R. Marsh of the Court of Common Pleas of Monroe County, appellant was found guilty of criminal trespass. Appellant was sentenced on June 12, 1981 to serve a term of imprisonment of between three (3) and twenty-three (23) months. Appellant was placed on parole on November 3, 1981. Such parole was revoked on February 1, 1982 and appellant was recommitted to serve the unexpired portion of his prison sentence imposed for the criminal trespass conviction. Subsequently, on June 18, 1982, appellant’s parole was reinstated for the balance of his term of imprisonment.

Finally, on January 16, 1982, in yet another unassociated case, this one tried before Judge Thomson, appellant was acquitted of the charge of criminal homicide.

On February 8, 1982, approximately one week after appellant’s parole on the criminal trespass conviction had been revoked by Judge Marsh, Judge Thomson entered the following order pertaining to the sentence he imposed on appellant on April 9, 1980 following appellant’s conviction of indecent exposure and open lewdness:

ORDER
AND NOW, this 8th day of February, 1982, the Prothonotary of the Supreme Court of Pennsylvania having communicated with a statement that the Appeal of the Defendant has been denied, it is the Order of this Court that the Defendant commence serving his previously imposed sentence in this matter upon parole or expiration of his sentence imposed to No. 651-1979 for violation of parole.
BY THE COURT:
/s/ Harold A. Thomson, Jr.
Harold A. Thomson, Jr., J.

Appellant now appeals from that order, contending that insofar as his judgment of sentence had been affirmed by the Superior Court prior to the issuance of the above order, and in view of the fact that the order was entered, without a hearing or even notice of the order afforded to appellant or his counsel, nearly two years after the original sentence was imposed, the lower court lacked any authority to alter the terms of the original sentence by ordering that it be served consecutive to a subsequently imposed sentence. We agree.

We note initially that a trial court is not without any authority to alter or modify the terms of a sentence. Under the terms of 42 Pa.C.S.A. § 5505, a court may alter an order, decree, judgment or sentence without the term of court or within thirty (30) days of the date of entry of the original order if the term of court terminates prior to the thirty day period, provided, however, that the court affords the parties with prior notice. See also Commonwealth v. Colding, 482 Pa. 112, 393 A.2d 404 (1978); Commonwealth v. Canady, 297 Pa.Superior Ct. 292, 443 A.2d 843 (1982); Commonwealth v. Leatherbury, 269 Pa.Superior Ct. 194, 409 A.2d 431 (1979); Commonwealth v. Yoder, 249 Pa.Superior Ct. 389, 378 A.2d 350 (1977). Commonwealth v. Reed, 254 Pa.Superior Ct. 461, 386 A.2d 41 (1978); Commonwealth v. Horsman, 239 Pa.Superior Ct. 534, 361 A.2d 433 (1976); and Pa.R.App.P. 1701.

Viewed in light of the prescriptions of 42 Pa.C.S.A. § 5505, the actions of the lower court, which altered the terms of appellant’s original sentence, were improper in that they were undertaken following the expiration of the original term of court as well as the applicable thirty day period, and deprived both appellant’s counsel and the office of the district attorney of any advance notice of the alteration of sentence.

The salient point for purposes of our review of the propriety of the instantly-challenged order, however, is the fact that under the circumstances of the case at bar, § 5505 could never serve as authority for the lower court’s actions, assuming arguendo that they were timely taken upon adequate notice to the parties, since the lower court was stripped of its power to alter the terms of the sentence when appellant perfected his appeal to the Superior Court. As Judge Hoffman ruled in Commonwealth v. Hanlon, 266 Pa.Superior Ct. 456, 405 A.2d 523 (1979):

Section 5505 only empowers the lower court to modify judgments of sentence within 30 days of entry in cases where no appeal is taken. See Commonwealth v. Lauer, 265 Pa.Super. 542, 402 A.2d 678 (1979). Where an appeal is taken and judgment of sentence is affirmed, the defendant must be committed on the terms of his original sentence. Pa.R.App.P. 1763. The lower court on remand has no authority to alter the judgment of sentence where the appellate court has not.
Id., 266 Pa.Superior Ct. at 457-458, 405 A.2d at 524 (Emphasis in original).

Convinced that the lower court acted beyond its authority in ordering that appellant’s sentence for indecent exposure be served consecutively to that subsequently imposed for criminal trespass, we accordingly vacate as void the order of the lower court dated February 8, 1982.

The order of the lower court altering appellant’s sentence is vacated and the judgment of sentence imposed on April 9, 1980 is reinstated.

      . 42 Pa.C.S.A. § 5505 is a substantial reenactment of the Act of June 1, 1959, P.L. 342, No. 70, § 1, 12 P.S. § 1032 (repealed). That statute provided as follows:
      "In any civil, criminal or equitable proceeding in which the court has heretofore been vested with the power, jurisdiction and authority to alter, modify, suspend, reinstate, terminate, amend or rescind, any order, decree, judgment or sentence only during the term of court in which the order, decree, judgment or sentence, was entered of record, the court in addition to such power, jurisdiction and authority, shall hereafter have the same power, jurisdiction and authority to alter, modify, suspend, reinstate, terminate, amend or rescind, the order decree, judgement or sentence for a period of thirty days subsequent to the date of entering of record the order, decree, judgment or sentence, in any instance where the term of court shall terminate prior to such thirty day period: Provided, That all parties in interest, including the district attorney in criminal cases, are notified in advance of such proposed alteration, modification, suspension, reinstatement, termination, amendment or recission."
      42 Pa.C.S.A. § 5505 now states that:
      [e]xcept as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.
      Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 5505 (effective June 27, 1978).

      . Pa.R.App.P. 1701 permits a trial court to alter or modify a sentence within a thirty day period upon the filing of a motion for reconsideration.


author: CIRILLO, Judge: ROWLEY, Judge,

text:
    469 A.2d 1059
    COMMONWEALTH of Pennsylvania v. Richard SYRE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 15, 1983.
    Filed Sept. 2, 1983.
    Reargument Denied Nov. 10, 1983.
    Petition for Allowance of Appeal Granted Feb. 21, 1984.

      F. Fitzpatrick, Jr., Philadelphia, for appellant.
    Eric B. Henson, Assistant District, Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, dated July 9, 1982.

In June of 1980 the appellant, Richard Syre, was a lawyer for Teamsters Local 115, located in Philadelphia. At this time the teamsters were engaged in a campaign to organize workers at the Penn Radio Cab Company. The workers at Penn Radio went out on strike, at the instigation of the union, and set up a picket line. A man by the name of Ezekiel Gibbs opposed the union’s efforts and continued to work while other drivers struck. Gibbs drove a cab through a picket line on June 27, 1980 and allegedly was assaulted by several union members. These individuals were arrested and subsequently brought to trial.

While these criminal charges were pending, Gibbs met with a union official to discuss this strike-related incident. Gibbs had sustained economic losses as a result of injury to his teeth and requested compensation in the amount- of $2000.00. According to the union, the official made it quite clear that settlement was only for.the proposed civil suit which Gibbs had threatened to bring against the union. However, according to Gibbs’ version, the official told him that the settlement was for both the civil liability and the withdrawal of criminal charges.

In any event, Gibbs met with the appellant on several occasions during August and September of 1980 regarding this matter. In September, 1980, Penn Radio became aware that Gibbs was considering the withdrawal of criminal prosecution. Gibbs later testified at trial that indeed he did not wish to proceed with the criminal prosecution and was even seriously considering taking the settlement money and leaving town. Penn Radio prevailed upon him not to drop the criminal prosecution but, instead, to go to the Philadelphia District Attorney^ Office and become part of an investigation concerning certain union officials. Gibbs did so and on September 22, 1980 he agreed to wear a Nagra tape recorder and to tape his conversations with the appellant and others.

After several conversations had been recorded, the appellant was charged with the offense of tampering with a witness. The appellant was tried before the Honorable Stanley L. Kubacki and a jury and was convicted. Post-verdict motions were argued and denied and the appellant was sentenced to 2 years probation. This appeal followed.

The appellant alleges, on appeal, that the lower court erred in refusing to grant his demurrer. We address this issue as a sufficiency of the evidence question. The evidence is sufficient if it supports the verdict beyond a reasonable doubt when construed in the light most favorable to the Commonwealth, with all proper inferences drawn in the Commonwealth’s favor. Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981); Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982).

The offense of tampering with a witness is defined in 18 Pa.C.S.A. § 4907 as follows:

(a) Offense defined. — A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted, he attempts to induce or otherwise cause a witness or informant to:
(1) testify or inform falsely;
(2) withhold any testimony, information, document or thing except on advice of counsel;
(3) elude legal process summoning him to testify or supply evidence; or
(4) absent himself from any proceeding or investigation to which he has been legally summoned.
(b) Grading. — The offense is a felony of the third degree; if the actor employs force, deception, threat or offer of pecuniary benefit. Otherwise it is a misdemeanor of the second degree.

The testimony of Gibbs indicates that before he ever talked to the union official regarding compensation for his injuries, he decided to drop the criminal charges against the union members since he was going to have to work side-by-side with them. Likewise, at the time the parties had reached a settlement figure of $1600.00, Gibbs informed the union official and the appellant of his intention to drop the criminal charges. Moreover, on August 21, 1980, when the appellant gave Gibbs the first $400.00 of this settlement, Gibbs had not changed his mind regarding the criminal charges. Later, Gibbs changed his mind and decided to press the criminal charges. However, Gibbs testified that he never told the union official or the appellant that he changed his mind and wished to bring these charges. Upon reviewing this portion of the record, we are compelled to inquire; why would the appellant pay off Gibbs for not bringing criminal charges when Gibbs had never indicated to the appellant or union official that he was going to bring these charges?

The Commonwealth presented evidence during trial as to the appellant’s true intent under section 4907. The record is replete with segments from the taped conversations between Gibbs and the appellant which convey ambiguous meanings. The Commonwealth claims that these extracts show the appellant’s intent to bribe the witness, whereas the appellant contends that he was merely advising Gibbs based upon the half-truths and misrepresentations made by the witness.

Gibbs testified that he was told by both the appellant and the union official that the settlement was for the civil and criminal actions. Nevertheless, at no point in the taped conversations which had been admitted into evidence did the appellant state that the money was to be paid to drop the criminal charges. To the contrary, several excerpts express that the settlement concerned only the civil liability.

The Commonwealth maintains that on September 22, 1980, Gibbs met with the appellant at City Hall and was advised on how to drop the criminal charges so as to receive his settlement money. However, the record fails to substantiate this claim. In fact, the evidence indicates that the civil settlement money was to be paid no matter what happened to the criminal case.

So, too, after receiving the initial installment of the civil liability settlement, on October 29, 1980, Gibbs signed a Release which stated in pertinent part:

I further acknowledge that the execution of this release concerns the civil liabilities for which I may hold the Union, its agents, and other parties to this agreement accountable. This release does not apply to any criminal proceedings nor does it place me under any obligation whatsoever to refrain from the prosecution of any criminal actions arising from the incident of June 27, 1980.

This evidence clearly indicates that the money given to Gibbs by the appellant was not in an effort to induce Gibbs to forgo criminal prosecution.

Statements, twisted and taken out of context from a tape recording which failed in many instances to capture every word and phrase, may be construed in a variety of ways. The testimony presented by both sides is demonstrative of this analysis. However, we find the evidence does not support the verdict beyond a reasonable doubt, that the appellant attempted in any way to induce Gibbs to testify falsely, to withhold testimony, or to allude legal process. Accordingly, we reverse the conviction and order the appellant discharged.

REVERSED.

ROWLEY, J., files a dissenting opinion.

ROWLEY, Judge,

dissenting:

I dissent.

My review of the record convinces me that the evidence is sufficient to support the jury’s verdict.

First, I note that Gibbs testified that the reason he decided to proceed with the prosecution, in spite of having agreed to drop the charges in exchange for the payment of $1,600.00, was that he was having a “hard time” at work and the union was “playing around with the money that they promised.” (N.T. 140). I find no support in the record for the proposition that Penn Radio “prevailed upon” Gibbs not to drop the charges.

Secondly, the fact that Gibbs indicated he had initially planned to drop the criminal charges is, in my opinion, immaterial. Gibbs’ intentions are irrelevant. Appellant is the one accused of a crime and it is his intent that is on trial. The evidence shows that criminal charges were pending against appellant’s clients and that appellant paid Gibbs with the intention that he drop the charges.

Third, it is true that in the various tape recorded conversations which were admitted into evidence appellant did not actually say that the money was being paid to drop the criminal charges. But it should be noted that the taped conversations took place one month after the money was first offered and accepted. However, on the tapes that were made appellant told Gibbs that Gibbs would have to personally talk to the district attorney in order to get the charges dropped. He then told Gibbs exactly what to say. Appellant later told Gibbs that if the district attorney refused to drop the charges and he was subpoenaed, he did not have to appear, although the Sheriff would be sent after him. If he was found, he would have to take the stand. Appellant then advised Gibbs how to change his story and still avoid a charge of perjury.

Finally, even without the tapes the evidence is more than sufficient, in my opinion, to support the verdict. Gibbs testified that on August 21, 1981, appellant gave him $400.00 in exchange for his agreement to drop the criminal charges. (N.T. 132, 133, 2.64). He also testified that appellant told him he would be paid the rest of the money when the charges were dropped. (N.T. 135, 2.63). The majority agrees that Gibbs’ “version” of the incident was that the money was paid for withdrawal of the criminal charges. The question whether Gibbs’ testimony should have been believed because it was not “substantiated” by the tapes raises an issue of credibility. As such, it is, in my opinion, better left to the fact finder. The jury chose to believe Gibbs rather than appellant. Since it is within the sole province of the jury to pass upon the credibility of witnesses, Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1978), I would affirm the judgment of sentence.

      . Act of December 6, 1972, P.L. 1482, No. 334, Sec. 1, 18 Pa.C.S.A. § 4907. This offense was repealed by the Act of December 4, 1980, P.L. 1097, No. 187, Sec. 2, effective in 60 days. The offense is now captioned "Intimidation of witnesses or victims” and appears at 18 Pa.C.S.A. § 4952. See: Commonwealth v. Vitacolonna, 297 Pa.Super. 284, 288 n. 2, 443 A.2d 838, 840 n. 2 (1982).

      . The appellant frames this issue in terms of whether the trial court erred in not sustaining his demurrer to the evidence. However, he did not rest following this adverse ruling but elected to put in a case in defense. Thus, the correctness of the ruling on demurrer is no longer an available issue. Commonwealth v. McNeal, 493 Pa. 395, 426 A.2d 606 (1981); Commonwealth v. Galloway, supra; Commonwealth v. Kaster, 300 Pa.Super. 174, 446 A.2d 286 (1982). However, we may' treat this question as if it had been properly raised as a challenge to the sufficiency of the evidence. Commonwealth v. McNeal, supra; See also: Commonwealth v. Ilgenfritz, 466 Pa. 345, 347 n. *, 353 A.2d 387, 388 n. * (1976).

      . A typical example is the following quotation:
      SYRE: "Well that’s up to you. We’re paying you, ah, we’re, we’re making a deal to settle the civil liability. Ah, you’re still at the ah, ah, you’re still working there, right?”

      . The Commonwealth’s allegation is based upon the following conversation:
      SYRE: Now you’re gonna have to talk to [the assigned prosecutor]. If you want to drop it, you’re going to have to talk to him.
      ******
      SYRE: Well he’s right in that room there, [the assigned prosecutor]. Now I ... listen I ...
      GIBBS: You gon point him out to me?
      SYRE: I can’t ... I can't go ... I’ll point him out to you but I can’t be involved in that, you know, cause I’m not supposed to be even talking to you- now, that’s up to you. And, and that’s what I'm tell you right now. If you wanna go ahead and prosecute those guys, that's your choice. You know, if ...
      ******
      SYRE: Okay, if you, you know, if it goes to trial or whatever that happens, and, as long as you cooperate, you know, we’re square with you and that’s all we care about. You don’t control the results here, you don’t control the D.A.....

      . The following recorded statement by the appellant supports this conclusion:
      SYRE: ... we got two choices; one is to go to trial, that’s your’s, the other is we can complete this deal, maybe we can sweeten it a little, maybe we can pay you more for dropping the civil liability, uh, blit anyhow, the twelve-hundred dollars is, is fixed, we’re going to give you that, maybe we can give you a little more.

      . The appellant raises a total of nine issues on this appeal, however, since we reverse based upon the lower court’s refusal to grant a demurrer, we need not address the appellant’s other contentions.


author: McEWEN, Judge: HOFFMAN, Judge,

text:
    469 A.2d 1063
    COMMONWEALTH of Pennsylvania v. Charles J. ALLEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1981.
    Filed Nov. 25, 1983.
    Petition for Allowance of Appeal Granted April 24, 1984.

      Kenn Sandoe, Lebanon, for appellant.
    William. L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   McEWEN, Judge:

This is an appeal from an order which denied the omnibus pre-trial motion of appellant wherein appellant had argued that prosecution on charges of criminal trespass, simple assault and rape was barred on double jeopardy grounds. We here consider whether a finding that appellant was in contempt of an order issued pursuant to the Protection From Abuse Act bars subsequent prosecution on charges based on the same conduct which supported the contempt order.

The distinguished Judge John A. Walter, by order of April 18, 1980, enjoined appellant from physically abusing, striking or harassing his wife and minor children. A criminal complaint was subsequently filed on May 16, 1980, charging appellant with simple assault and criminal trespass as a result of an allegation that appellant had forcibly entered the residence of his wife and physically abused her on May 7 and May 8, 1980. As a further result of the incident, appellant was arraigned on contempt charges on May 19,1980. The Common Pleas Court, after a hearing on May 28, 1980; found appellant to be in contempt of court and ordered him to pay costs and a fine of $750.00. A further criminal complaint based upon the incident was filed on June 3, 1980, and charged appellant with rape.

Appellant asserts that the principle of double jeopardy bars prosecution on all three criminal charges since appellant had previously been convicted of contempt. The contentions set forth by appellant require analysis of the provisions of the Crimes Code, 18 Pa.C.S.A., as well as the double jeopardy clauses of the United States Constitution and the Constitution of this Commonwealth. We decide that: (1) the sections of the Crimes Code cited by appellant in support of his position are not applicable to this case; (2) the double jeopardy protection of the federal constitution bars only the simple assault charge; (3) and the state constitutional prohibition against double jeopardy does not bar prosecution on the two remaining charges of criminal trespass and rape.

We begin our study with a determination of whether the applicable provisions of the Crimes Code preclude the second prosecution in this case. See Commonwealth v. Hude, 500 Pa. 482, 488, 458 A.2d 177, 180 (1983) (the court will only consider double jeopardy complaints if it is determined that the statutory provisions of the Crimes Code do not require the grant of the relief requested). Sections 109-112 of the Crimes Code, 18 Pa.C.S.A. §§ 109-112, ban second prosecutions in various instances, but these provisions are not applicable to the facts of this case. Although section 107 of the Crimes Code, 18 Pa.C.S.A. § 107, provides that the provisions of Part 1 of Title 18, which includes sections 109-112, are applicable to offenses defined by Title 18, including all of the offenses here charged, sub-section (c) of section 107 provides a number of exceptions, including the provision that section 107 “does not affect the power of a court ... to punish for contempt ...”. Thus, we proceed to consider the federal and state constitutional prohibitions against double jeopardy since the statutory provisions do not require the grant of the relief requested.

“The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) ‘It protects against a second prosecution for the same offense after acquittal. [ (2) I]t protects against a second prosecution for the same offense after conviction. [(3)] And it protects against multiple punishments for the same offense.’ ” Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228, 235 (1980). Quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). The second of these three guarantees is the focus of our attention in this appeal since appellant contends that the finding that he was in contempt was such a conviction as to bar any prosecution on the charges now pending against him. Any analysis of this contention necessarily involves a determination of whether the contempt proceeding was criminal in nature.

“Contempt” is classified either as civil contempt or criminal contempt. The two types of contempt may be distinguished from one another by analyzing the primary purpose and objective of the court’s order. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980); In Re “B”, 482 Pa. 471, 394 A.2d 419 (1978); Commonwealth v. Feick, 294 Pa.Super. 110, 439 A.2d 774 (1982). “A citation is for criminal contempt if the court’s purpose was to vindicate the dignity and authority of the court and to protect the interest of the general public. If the purpose of the citation is to coerce the contemnor into compliance with the order of the court to do or refrain from doing some act primarily for the benefit of the litigant or a private interest, it is civil contempt. Commonwealth v. Charlett, 481 Pa. 22, 27, 391 A.2d 1296, 1298 (1978); citing Woods v. Dunlop, 461 Pa. 35, 40 n. 2, 334 A.2d 619, 622 n. 2 (1975).” Feick, supra 294 Pa.Super. at 112-13, 439 A.2d at 775. Further, “if the contempt consists solely of a past act, the only allowable judicial response is punitive, and any contempt adjudication must be criminal.” In re Martorano, 464 Pa. 66, 80 n. 19, 346 A.2d 22, 29 (1975); Cipolla v. Cipolla, 264 Pa.Super. 53, 57, 398 A.2d 1053, 1055 (1979).

It seems certain that the citation we examine is one of criminal contempt, not civil, since the dominant purpose of the proceeding was to determine whether appellant had disobeyed the order entered pursuant to the Protection From Abuse Act and, if he had, to punish appellant so as to preserve the authority of the court and to protect the interests of the general public. See Cipolla v. Cipolla, supra.

Two classes of criminal contempt, direct and indirect, are recognized in this Commonwealth. Our Supreme Court has distinguished between the two:

The essence of [direct criminal] contempt is that the misconduct constitutes a direct affront to the dignity and authority of the court____ Where that disobedience or misbehavior occurs in the actual presence of the court or has the capacity of directly affecting the proceeding then in progress, it may be properly classified as a direct or the most grievous type of contempt. All other behavior which may have a more remote impact upon the dignity of the court and its ability to fulfill its responsibilities are classified as indirect criminal contempts.

Commonwealth v. Maurizio, 496 Pa. 584, 587, 437 A.2d 1195, 1196 (1981); quoting Commonwealth v. Marcone, supra 487 Pa. at 579, 410 A.2d at 762-63. Therefore, it seems clear that the wife of appellant here sought a citation for indirect criminal contempt since the conduct that we examine occurred outside the presence of the court. Further, this court in Cipolla v. Cipolla, supra, an opinion authored by our illustrious colleague, Judge John P. Hester, ruled that the contempt displayed by a husband who had violated an order issued pursuant to the Protection From Abuse Act was indirect criminal contempt. And, finally, the Protection From Abuse Act itself dictates that “upon violation of a protective order ... the court may hold appellant in indirect criminal contempt and punish him in accordance with law.” 35 P.S. § 10190(a). Thus, the authority for our conclusion is certain.

The contention of appellant that the prior contempt conviction bars subsequent prosecution for criminal trespass, simple assault and rape, is premised on two separate protections afforded an accused. One focuses on the proof necessary to prove the statutory elements of each offense, Illinois v. Vitale, supra 447 U.S. at 417, 100 S.Ct. at 2265, 65 L.Ed.2d at 235; Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194 (1977), while the other protection was set forth by the Pennsylvania Supreme Court in the Campana decisions and provides that all known criminal offenses arising from the same criminal episode must be concluded in one prosecution.

It is clear from the decisions of the United States Supreme Court that our study of whether the double jeopardy clause of the United States Constitution affords appellant the relief requested requires a determination of whether the elements of the contempt charged includes the same elements as compose the offenses of criminal trespass, simple assault and rape.

In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), we stated the principal test for determining whether two offenses are the same for purposes of barring successive prosecutions. Quoting from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) which in turn relied on Gavieres v. United States, 220 U.S. 338, 342-343, 31 S.Ct. 421, 422, 55 L.Ed. 489 (1911), we held that
“ ‘[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’” 432 U.S., at 166, 97 S.Ct., at 2225.
We recognized that the Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial. Thus we stated that if “ ‘each statute requires proof of an additional fact which the other does not,’ Morey v. Commonwealth, 108 Mass. 433, 434 (1871),” the offenses are not the same under the Blockburger test. 432 U.S., at 166, 97 S.Ct., at 2226 (emphasis supplied); Iannelli v. United States, 420 U.S. 770, 785, n. 17, 95 S.Ct. 1284, 1294, n. 17, 43 L.Ed.2d 616 (1975).

Illinois v. Vitale, supra 447 U.S. at 417, 100 S.Ct. at 2265, 65 L.Ed.2d at 235 (footnote omitted).

As we commence this study, we note that the order of April 18, 1980, issued pursuant to the Protection From Abuse Act provided, inter alia, that appellant refrain from physically abusing, striking or harassing his wife and children. It was on the basis of this order that the Common Pleas Court found at the contempt hearing that appellant had violated the terms of the order in that he “physically abused his wife by attempting to cause or intentionally, knowingly and recklessly causing bodily injury to her, on the late evening hours of May 7th or early morning hours of May 8th, or both; therefore, the court finds Charles J. Allen to be in contempt of court.” (N.T. 5/28/80 at 95).

An examination of the notions expressed by other jurisdictions when confronted with similar or identical issues assists our comparison of those elements necessary to be proved at the contempt hearing with those elements necessary to be proved for each of the three charges which appellant now seeks to dismiss by.

The question of whether the application of the “same evidence” test bars a conviction for indirect criminal contempt and a conviction on the substantive crime when both crimes are based on the same course of conduct has previously been addressed by a number of courts. The Supreme Court of Illinois determined in People v. Gray, 69 Ill.2d 44, 12 Ill.Dec. 886, 370 N.E.2d 797 (1977), cert. denied, Illinois v. Gray, 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 (1978), that where a defendant was tried, convicted and punished for indirect criminal contempt of court for violation of a protective order by striking his wife with a gun and then shooting her, the constitutional guarantee against double jeopardy barred defendant’s subsequent prosecution for aggravated battery arising out of the same conduct. The majority of the court in Gray reasoned that “[cjonsiderations of fairness and finality, the very foundation of the double jeopardy bar, require a non-technical evaluation of the ‘same evidence’ test, and focus upon the similarity of the elements involved in the two proceedings.” Id. 69 Ill.2d at 51, 12 Ill.Dec. at 889, 370 N.E.2d at 800. Thus, the court held that although the contempt conviction required the establishment of an additional element, the prosecution for aggravated battery required no proof beyond that provided for the contempt conviction. The dissent, however, asserted that significantly different elements were involved in the proof of each offense since the criminal contempt in Gray required the element of wilful disobedience of a court order, while aggravated battery required that the defendant (a) intentionally or knowingly caused grave bodily harm, permanent disability or disfigurement or (b) used a deadly weapon. Ill.Rev.Stat.1973, ch. 38, pars. 12-4(a), (b). The dissent then concluded that even though both prosecutions arose from the same course of conduct of the defendant, the application of the Blockburger v. United States, supra, test permitted the two prosecutions. This conclusion of the dissent was based on the view that “contempt retains its distinctive function in specifically protecting our judicial system from abuse” and that “the additional element of wilful disobedience in [the] case is neither immaterial nor insubstantial in distinguishing criminal contempt from ordinary offenses.” Id. at 58, 12 Ill.Dec. at 891, 370 N.E.2d at 803.

In contrast to the approach taken by the majority in Gray, the Supreme Judicial Court of Massachusetts held in Commonwealth v. Gallarelli, 372 Mass. 573, 362 N.E.2d 923 (1977), that where defendants were tried and convicted on a criminal complaint which charged that their conduct had interfered with the administration of justice and also constituted contempt of court, such prosecution was not a bar to subsequent trial and conviction for conspiracy to influence a jury where both prosecutions were based on the same incident. The Massachusetts court reasoned that while the Commonwealth was requested to prove an unlawful agreement for the conspiracy indictment, such proof was not necessary for a conviction for contempt; and while the. Commonwealth had to prove a course of conduct tending to interfere with, impede, and obstruct the proper administration of justice to convict the defendants of contempt, such proof was not necessary for a conspiracy conviction.

Certain other decisions have specifically addressed the question of whether the willful intent to disobey an order that is a necessary element for the criminal contempt is an additional element for the purposes of the “same evidence” test. Where defendants had been prosecuted on charges of price-fixing, the court in United States v. United States Gypsum Co., 404 F.Supp. 619 (D.D.C.1975), held that.they could not subsequently be prosecuted on a contempt charge based on violations of an order which specifically prohibited price-fixing. The court concluded that “the addition of the element of a wilful violation of a court decree as present here is not in the Court’s view sufficiently material or substantial to supersede the considerations of fairness and finality which form the basis of the double jeopardy bar.” Id. at 623.

A similar rationale was provided in the foundation for the decision of the District Court in United States v. Haggerty, 528 F.Supp. 1286 (D.Colo.1981). A group of air traffic controllers had filed a motion to dismiss prosecutions on charges of participating in a strike against the government on the grounds that they had previously been convicted of criminal contempt for violating a court order which prohibited them from striking against the government. Even though the additional element of intent to violate the court order had to be proven in order to prove contempt, the court concluded that the court order, which formed the basis of the contempt proceeding, prohibited the strike activities which were the subject of the second prosecution of striking against the government. The court reasoned that since the only additional element that the government had to prove in the contempt proceeding was a wilful violation of the order, it was not necessary for the government to prove any additional facts in the second prosecution, and concluded that the case was not one in which “each statute requires proof of the fact that the other does not”. As a result, the court held that the second prosecution was barred by the double jeopardy clause.

The instant case differs from Haggerty and United States Gypsum Co., supra, since the criminal trespass and rape charges each require proof of facts additional to those which were necessary to secure the contempt conviction. The contempt order in this case directed appellant to refrain from physically abusing, striking or harassing his wife. The charges of criminal trespass and rape each require the presentation of evidence upon elements that go beyond the proof necessary to convict appellant of contempt. Since charges of violation of the “protection” order required proof of a wilful intention to violate that order, a prosecution upon the charges of trespass and rape is not barred under the “same evidence” test. This same analysis demonstrates, however, that the prosecution for assault must be abandoned since, although the contempt conviction required a finding of an additional element, namely, the intent to violate the order, the charge of criminal contempt and the charge of simple assault did not each require proof of an additional fact. Therefore, a prosecution of the charge of simple assault is barred under the double jeopardy clause of the federal constitution.

There remains for study the question of whether the prosecution for the remaining charges of criminal trespass and rape is barred by reason of the protections afforded a defendant by the courts of this Commonwealth. Appellant argues that the prosecution is barred by application of the rule adopted by the Pennsylvania Supreme Court in Campana I and II, supra, which provides that criminal offenses arising from the same criminal episode must be disposed of in one prosecution. This rule of compulsory joinder affords a defendant a different protection from that afforded by the same evidence test, since compulsory joinder permits only one prosecution if the charge arises from the same criminal event, regardless of whether different evidence supports the charges and regardless of whether distinct acts are involved. Our Supreme Court has offered the following rationale for the compulsory joinder rule:

The compulsory joinder rule set forth in Campana I and II and the provisions of section 110 were designed to serve two distinct policy considerations: (1) to protect a person accused of crimes from governmental harassment of being forced to undergo successive trials for offenses stemming from the same criminal episode; and (2) as a matter of judicial administration and economy, to assure finality without unduly burdening the judicial process by repetitious litigation. See Commonwealth v. Stewart, supra 493 Pa. at 29, 425 A.2d at 348; Commonwealth v. Holmes, 480 Pa. 536, 541, 391 A.2d 1015, 1017 (1978); Commonwealth v. Tarver, supra 467 Pa. at 408, 357 A.2d at 542. ‘By requiring compulsory joinder of all charges arising from ... [the same criminal episode], a defendant need only once ‘run the gauntlet’ and confront the awesome resources of the state.’ Commonwealth v. Campana (Campana I), 452 Pa. at 251, 304 A.2d at 440-441.

Commonwealth v. Hude, supra 500 Pa. at 489, 458 A.2d at 180.

Hude specifically states that the determination of whether particular acts constitute a single criminal episode requires a consideration of the temporal sequence of events as well as the logical relationship between the acts. Commonwealth v. Hude, supra, 500 Pa. at 490, 458 A.2d at 181. The temporal relationship between the criminal acts is a factor which frequently determines whether the acts are logically related, but the definition of single criminal episode is not limited to those acts which are immediately connected in time. Id., 500 Pa. at 491, 458 A.2d at 182. Quoting Comment, Commonwealth v. Campana and Section 110 of the Crimes Code: Fraternal Twins, 35 U. of Pitts.L.Rev. 275, 286-87 (1973). The criminal offenses charged against appellant were committed during a course of criminal behavior and violence directed toward and against one victim and within a continuing five hour period. Thus, we conclude that the criminal offenses were temporally and logically related as a part of a continuing scheme of criminal activity. Such a conclusion does not, however, trigger a bar to the prosecution on the rape and criminal trespass charges since we hold that the subsequent prosecution does not here present the type of governmental harassment of a defendant that would offend double jeopardy concerns.

We so hold because the Pennsylvania Supreme Court has made clear that the need for the protection of the accused from governmental harassment is but one of the considerations which inspired it to adopt the compulsory joinder rule. Commonwealth v. Beatty, supra 500 Pa. at 288, 455 A.2d at 1197. Citing Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 (1981); Commonwealth v. Holmes, 480 Pa. 536, 391 A.2d 1015 (1978); Commonwealth v. Tarver, 467 Pa. 401, 357 A.2d 539 (1976). The Beatty court held that neither the compulsory joinder rule nor section 110(l)(ii) of the Crimes Code barred prosecution in the Common Pleas Court for aggravated assault where defendant had previously pleaded guilty to the summary offense of failure to identify himself at the scene of the accident, even though both charges arose out of the same criminal incident. The court reasoned that there is no bar since both prosecutions were not within the jurisdiction of a single court, and proceeded to state, as a further basis for the result, that the second prosecution in the case did “not present the type of governmental harassment of a defendant that would offend double jeopardy concerns.” Id. 500 Pa. at 291, 455 A.2d at 1198.

It would seem, therefore, that Beatty requires consideration of a further notion when this issue arises — a notion which in this case can be stated as — whether a prosecution for rape and criminal trespass following a previous prosecution on an indirect criminal contempt charge, where all charges arose out of the same criminal episode, is the type of governmental harassment that offends the double jeopardy protection afforded by this Commonwealth. The double jeopardy issue posed in this situation is, if not unique, greatly different from the typical factual situation in which the double jeopardy issue is presented. One cannot gainsay the fairness of the principle that government must undertake in one proceeding the prosecution of any and all violations of the Crimes Code that occur during a particular episode, but the behavior with which we are confronted consisted not only of violations of the Crimes Code but also of a bold defiance of the authority of the court — an authority rooted in the natural order and ratified through centuries of jurisprudence. Therefore, we conclude that while, as we have earlier noted, double jeopardy principles apply in indirect criminal contempt proceedings, where the first proceeding is an indirect criminal contempt proceeding, a subsequent prosecution for the crimes which composed the contempt does not present the type of governmental harassment that the compulsory joinder rule of Campana / and Campana II was designed to prevent.

Order reversed in part and affirmed in part. The charge of simple assault is dismissed. Case remanded for proceedings consistent with this opinion on the criminal trespass and rape charges. Jurisdiction is relinquished.

CERCONE, President Judge, concurs in the result.

HOFFMAN, J., files dissenting opinion.

HOFFMAN, Judge,

dissenting:

Having succeeded in having appellant jailed, tried, convicted and fined for his actions of May 7 and 8, the Commonwealth now seeks to try appellant on more serious charges arising out of the same criminal episode. Because I find such a prosecution the “type of governmental harassment of a defendant that would offend double jeopardy concerns,” I dissent.

“[T]he state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity....” Commonwealth v. Hude, 500 Pa. 482, 492, 458 A.2d 177, 182 (1983), quoting Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). Nor can the state be permitted to test the strength of its case and discover a defendant’s trial strategy or defense by first trying him on a lesser charge and then later on the more serious charges. See Commonwealth v. Hude, supra, 500 Pa. at 491, 458 A.2d at 182 (“dry runs” to obtain convictions impermissible). Thus, in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), our Supreme Court “expressly bar[red] a subsequent prosecution for any offense arising from the same criminal episode, where the offense was known to the prosecuting authorities at the time of the commencement of the first trial.” Commonwealth v. Holmes, 480 Pa. 536, 540, 391 A.2d 1015, 1017 (1978).

Here, appellant was charged with simple and aggravated assault three days prior to his arraignment on the contempt charge. Although appellant had been able to post the $1,000 bond required for his release on the assault charges, the lower court set bail for the contempt charge at $5,000, resulting in appellant’s return to Lebanon County Prison until his contempt hearing. Appellant was then subjected to a full adversarial proceeding to determine his criminal culpability. The Commonwealth presented the testimony of appellant’s wife and two police officers while appellant countered with his own testimony. After the lower court found appellant guilty of contempt and fined him $750, the Commonwealth brought yet another charge against him arising from the same incident, rape.

The majority’s conclusion that a second prosecution is beyond the parameters of the double jeopardy protections is untenable. The Commonwealth had sufficient knowledge to charge and, in fact, did charge appellant with assault before proceeding with the contempt action. The Commonwealth tested the strength of its case and discovered appellant’s defense in preparation for trial on the greater charges. Appellant will again be subjected to criminal liability, embarrassment, expense and uncertainty for actions for which he has already been tried and convicted. Contrary to the majority, I find forcing appellant to run the gauntlet a second time for the events of May 7 and 8 offends double jeopardy protections. Accordingly, I dissent.

      . 18 Pa.C.S.A. § 3503.

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 3121.

      . An appeal of a pre-trial application seeking discharge on double jeopardy grounds is an appealable order. Commonwealth v. Fields, 491 Pa. 609, 421 A.2d 1051 (1980); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977); Commonwealth v. Beckman, 304 Pa.Super. 239, 450 A.2d 660 (1982).

      . 35 P.S. § 10181.

      . We note that although the rape charge was filed after the other charges, the Commonwealth was aware of the claimed rape at the time the other charges were filed since the affidavits of probable cause for the simple assault and criminal trespass each contained a statement that the complainant had been raped.

      . The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall "be subject to the same offense to be twice put in jeopardy of a life or limb.” The Fifth Amendment guarantee against double jeopardy is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

      . Section 10 of Article 1 of the Pennsylvania Constitution provides that "no person shall, for the same offense, be twice put in jeopardy of life or limb; ...”

      . The protection afforded by these sections are as follows: 18 Pa.C. S.A. § 109 addresses prosecutions barred by a former prosecution for the same offense; 18 Pa.C.S.A. § 110 sets forth conditions when a prosecution would be barred by a former prosecution for a different offense; 18 Pa.C.S.A. § 111 describes that situation when a prosecution would be barred by a former prosecution in a foreign jurisdiction; and 18 Pa.C.S.A. § 112 provides a qualification to §§ 109, 110 and 111.

      . The compulsory joinder rule was promulgated in the two decisions of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973) [Campana I], on remand, Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) [Campana II].

      . Distinguishable are cases where defendants are summarily held in contempt of court. See United States v. Rollerson, 308 F.Supp. 1014 (D.D.C.1970), aff’d., 449 F.2d 1000 (D.C.Cir.1971); State v. Warren, 186 N.J.Super. 35, 451 A.2d 197 (1982); United States v. Mirra, 220 F.Supp. 361 (S.D.N.Y.1963). In summary contempt proceedings the contemnor does not suffer the harassment of separate trials and, therefore, the policies and goals underlying the protection against double jeopardy are not offended.

      . Defendant had been acquitted of attempted murder.

      . The distinguished Justice Robert N.C. Nix, Jr. provided in Commonwealth v. Beatty, 500 Pa. 284, 286, 455 A.2d 1194, 1196 (1983), the following synopsis of the Campana decisions: “[In Campana I, t]he compulsory joinder of all offenses arising from the ‘same criminal episode’ was advanced in a plurality opinion authored by Mr. Justice Roberts and joined by Justices O’Brien and Manderino. Mr. Justice Eagen, in a concurring opinion joined by Chief Justice Jones, urged the adoption of the 'same offense’ test. This writer in a concurring opinion expressed a willingness to accept the ‘same criminal episode’ test as a matter of state law but rejected any implication that such a result was constitutionally compelled under the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. Mr. Justice Pomeroy, dissenting, did not disagree with ‘the same criminal episode’ approach but rather dissented on the grounds that such a rule was not constitutionally mandated.
      However, in Campana II a unanimous Court accepted the ‘same criminal episode’ test for compulsory joinder since Mr. Justice Pomeroy’s dissent did not challenge the validity of the adoption of the same criminal episode rule under the Court’s supervisory powers.”

      . We note that the definition of rape under the Crimes Code, 18 Pa.C.S.A. § 3121, is limited to "sexual intercourse with a person not his spouse, ...” This issue has not been presented for our consideration.


author: CIRILLO, Judge:

text:
    469 A.2d 1072
    COMMONWEALTH of Pennsylvania v. Richard Lee OLDS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 24, 1983.
    Filed Nov. 25, 1983.
    Reargument Denied Feb. 2, 1984.
    Petition for Allowance of Appeal Denied July 24, 1984.

      John A. Halley, Pittsburgh, for appellant.
    Kenneth J. Benson, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

Appellant Richard Lee Olds was tried before the Honorable Samuel Strauss and a jury in Allegheny County and was convicted of second degree murder, robbery and conspiracy in the shooting death of Thomas Beitler. Post-trial motions were denied and appellant was sentenced to life imprisonment. Several issues are raised in this appeal.

Appellant first contends that the trial court erred in failing to grant a demurrer at the close of the Commonwealth’s case. Because appellant’s counsel did not rest following the adverse ruling on the demurrer but instead presented a case in defense, a challenge to the correctness of this ruling on appeal can be considered only as a challenge to the sufficiency of the evidence as a whole. Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976). The verdict winner is entitled to the benefit of all reasonable inferences upon which a jury might have relied, and resolution of factual conflicts will not be disturbed on appeal as long as there is support in the record for the verdict. Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982), cert. denied, 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983).

Reviewed in this light, the record reveals that on the night of October 9, 1979, Claude Bonner, Roderick Todd Allen, and Richard Lee Olds were riding around Pittsburgh, Pennsylvania in Claude Bonner’s car. Bonner asked Allen if he had a pistol and suggested robbing the Fort Wayne Cigar Store, an all-night general store in the vicinity. Allen responded by pointing a pistol at Bonner and saying, “You just get a person coming off down the street.”

At some point after this, Olds told Bonner that he was hungry and wanted to get something to eat. Bonner then drove to the Fort Wayne Cigar Store and parked in a side street. Olds got out of the car, followed closely by Allen, who said on his way out, “I’m going to rob the store.” Olds’s reply to this was “Yeah, right.”

The two young men entered the store together and Olds walked to the back to purchase a bag of potato chips. Allen remained standing by the door until Olds reached the register. Allen then made an unintelligible remark to Olds and walked out the door, immediately preceded by Thomas Beitler, the only other customer in the store.

Eric Shaerer, who was alerted by a shot as he was walking toward the Fort Wayne Cigar Store, saw no one other than Allen and Beitler in the vicinity. Beitler was holding his wallet out toward Allen saying, “Here, take my wallet.” Allen then fired two more shots, point blank, and Beitler staggered backward into the Fort Wayne Cigar Store, still holding the wallet.

Claude Bonner pulled out to drive away after hearing the first shot, but was prevented from leaving when Olds ran out in front of the car. Olds and Allen then got l?ack into the car. After they were both inside Allen said to Olds, “It was your fault I shot him.” Olds denied this and Allen continued, “You was supposed to grab the wallet,” to which Olds made no further response. Taking a circuitous route to avoid the police, Bonner then dropped both boys off together near Olds’s house.

Olds was convicted under Pennsylvania’s felony-murder statute, which defines as second degree murder a criminal homicide which “is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.” 18 Pa.C.S. § 2502(b). “Perpetration of a felony” is further defined in this section as, “The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.” 18 Pa.C.S. § 2502(d). ■

Appellant challenges the evidence in two respects. His first assertion is that the record will not support a finding that he possessed the requisite intent to commit robbery. Since there is no evidence that appellant participated directly in either the robbery or the murder, the validity of these convictions depends upon his responsibility for acts done in furtherance of an alleged conspiracy. See Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979). The existence of such a conspiracy is dependent upon proof of an agreement, or common design, to commit the unlawful act of robbery. Commonwealth v. Sadusky, 484 Pa. 388, 399 A.2d 347 (1979); Commonwealth v. Stasiak, 305 Pa.Super. 257, 451 A.2d 520 (1982). See also 18 Pa.C.S. § 903. Direct proof of an agreement is not required; the conduct of the parties and the circumstances surrounding such conduct may be sufficient to establish an inference of common design. Commonwealth v. Sadusky, supra; Commonwealth v. Stasiak, supra.

Appellant relies on Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975) and Commonwealth v. Mitchell, 270 Pa.Super. 146, 411 A.2d 221 (1979) for the proposition that neither mere presence at the scene of a crime nor mere association with a perpetrator is sufficient to infer participation in the crime or in a plan to commit the crime. This is an accurate statement of the law; however, more than mere presence or association has been shown here. A common design to commit the underlying felony of felony-murder may be inferred from the circumstances or acts committed either before or shortly after the slaying. See Commonwealth v. Bachert, supra.

Among the circumstances which are relevant, but not sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred. Commonwealth v. Carter, 272 Pa.Super. 411, 416 A.2d 523 (1979).

Commonwealth v. Lamb, 309 Pa.Super. 415, 429, 455 A.2d 678, 685-86 (1983). In addition, acts of a co-felon as well as acts of a defendant himself may be considered to establish such an inference. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976). It is especially significant that the three participants arrived at the scene together and left together after the crime had been committed. See Commonwealth v. Carter, 271 Pa.Super. 492, 414 A.2d 361 (1979). We find, therefore, that the jury in this case was entitled to conclude that appellant was aware of an incipient robbery and performed acts evidencing an agreement to participate therein. Cf. Commonwealth v. Crow, 303 Pa. 91, 154 A. 283 (1931). “The least degree of concert or collusion is sufficient to sustain a finding of responsibility as an accomplice.” Commonwealth v. Coccioletti, 493 Pa. 103, 109, 425 A.2d 387, 390 (1981). Nor is it relevant whether the plan was to rob the store or to rob a pedestrian outside the store. A common purpose of robbery is enough. Commonwealth v. Tate, supra.

Appellant’s next contention is that, even given the existence of a conspiracy to rob, he cannot be held guilty as an accomplice to felony-murder because the evidence is insufficient to show that the act of Todd Allen in killing Thomas Beitler was performed in furtherance of such a conspiracy.

Under the common law doctrine of felony-murder as applied in Pennsylvania, “the malice necessary to make a killing, even an accidental one, murder, is constructively inferred from the malice incident to the perpetration of the initial felony.” Commonwealth v. Tarver, 493 Pa. 320, 328, 426 A.2d 569, 573 (1981), quoting Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 225, 261 A.2d 550, 553 (1970). In recent years, this doctrine has come under close scrutiny in Pennsylvania as well as in other states, apparently from a sense tht it operates unjustly in certain circumstances. See generally, Annot. 13 A.L.R. 4th 1181 (1982). The requirement that the conduct causing death be in furtherance of the design to commit the underlying felony has received particular attention. In Commonwealth v. Red-line, 391 Pa. 486, 137 A.2d 472 (1958), the Pennsylvania Supreme Court held that the felony-murder rule would not operate to hold a defendant responsible for the death of a co-felon who was shot by police while attempting to flee from the scene of a crime. The rationale was that such killing was merely coincidental with the felony rather than the result of an act committed in furtherance thereof. In Commonwealth ex rel. Smith v. Myers, supra, the same rationale was applied to find that a felon was not responsible for the death of an innocent bystander who was killed by an officer in pursuit of the felon. More recently, in Commonwealth v. Legg, 491 Pa. 78, 417 A.2d 1152 (1980), it was held that a killing could not be felony-murder where the intent to commit the underlying felony was not formulated until after the conduct causing death had occurred. The court reasoned that since there was no involvement in a dangerous felony at the time of the killing, it could not be said that “the actor knew or should have known death might occur from involvement in a dangerous felony.” Id., 491 Pa. at 82, 417 A.2d at 1154.

Finally, the case of Commonwealth v. Waters, 491 Pa. 85, 418 A.2d 312 (1980), upon which appellant relies, supports the proposition that even where two felons have been acting in concert and are still at the scene of a crime, one felon will not be charged with imputed malice where the homicidal act of his co-felon was not directed toward carrying out the particular felony or felonies with which the non-slaying felon is charged.

In the Waters case, appellant Gary Waters accompanied Paul Allen to the apartment of Diane Buck and assisted him in breaking down the door. Waters then personally robbed Terry Brennan, who was in the apartment with Buck. Subsequently, Allen shot Brennan. Waters was no longer in the room at the time of the shooting; later, he shot and killed Paul Allen in an attempt to assist Brennan and Buck. The court stated that “these facts could have supported an inference that Allen’s act [of shooting Brennan] was completely independent of the felony in that it was wholly unconnected to the felony.” Id., 491 Pa. at 95 n. 12, 418 A.2d at 318 n. 12.

The implication of this decision can be better understood by considering the nature of “imputed malice.” The malice required for felony-murder is not a specific intent to kill. It is only the wanton disregard for the fact that death might result which is inherent in the commission of a dangerous felony. Cf. Commonwealth v. Legg, supra. The felony-murder rule thus holds one responsible for the consequences resulting from the malice which accompanies the perpetration of the initial felony. See Commonwealth v. Redline, supra; Commonwealth ex rel. Smith v. Myers, supra. If, in addition to the recklessness or wanton disregard which is imputed to both co-felons, the actual killer also had a specific intent to kill, and the murder flowed from such specific intent rather than from the recklessness, then according to the Waters interpretation, the killing did not result from the perpetration of the felony, but was merely collateral to it.

Although the Waters court noted that the requirement of “an act by the slayer causing death which was in furtherance of the felony,” 491 Pa. at 95, 418 A.2d at 317 (emphasis in original) has always existed in Pennsylvania law, this particular interpretation of the requirement had not previously appeared. Early cases dealing with this phrase have considered it primarily in a temporal sense, focusing on whether or not there has been any break in events which would indicate that the underlying felony had been abandoned or otherwise terminated before the homicide took place. See, e.g., Commonwealth v. Zietz, 364 Pa. 294, 72 A.2d 282 (1950); Commonwealth v. Kelly, 333 Pa. 280, 4 A.2d 805 (1939). Perhaps the most coherent statement of prior Pennsylvania law on the subject appeared in Commonwealth v. Kelly, 337 Pa. 171, 10 A.2d 431 (1940) (Kelly II). In the process of discussing whether or not defendant Kelly could be convicted of felony-murder for shooting a police officer while attempting to avoid arrest for robbery, the court stated:

There is unity of criminal action between the planning of a crime, its execution or attempted execution and the flight from the scene. There may be between the commission of a robbery and the later commission by the same felon, of a homicide, such disunity in time, place and purpose as to make the two felonies distinct, but we have no such situation here.

Id., 337 Pa. at 175-76, 10 A.2d at 433.

Prior cases involving vicarious liability between co-felons for an ensuing murder have simply not considered the possibility of an independent act of the slayer causing death. See, e.g., Commonwealth v. Tate, supra; Commonwealth v. Neal, 447 Pa. 452, 290 A.2d 922 (1972); Commonwealth v. Williams, 443 Pa. 85, 277 A.2d 781 (1971); Commonwealth v. Batley, 436 Pa. 377, 260 A.2d 793 (1970). However, whether Waters is considered to be an extension of existing law or whether it merely focuses on a situation which has not previously arisen, it is distinguishable from appellant’s case. Although the shooting in Waters occurred during the perpetration of a burglary, there was no indication that its purpose was to facilitate the burglary’s commission, nor was there any evidence that it occurred during an attempt to flee the scene. By contrast, in appellant’s case the trial record will easily support an inference that the victim was shot, if not in the course of an effort to obtain his wallet, at least in the process of escaping the scene of an attempted robbery. This is undisputedly “perpetration of a felony” as defined by 18 Pa.C.S. §. 2502(d), supra; see also, Commonwealth v. Williams, 485 Pa. 137, 401 A.2d 331 (1979).

Unquestionably, a distinction could be drawn between the mental states of the two principal actors in this case; however, to do so would virtually eliminate the doctrine of imputed malice in Pennsylvania. Even a fully retroactive application of the Waters decision could not take the defendant this far.

Appellant argues that his case should at least be remanded so that the jury might have the benefit of a specific instruction that the act of the slayer causing death must have been performed in furtherance of the felony. There is no merit to this argument. Appellant neither offered his own jury instructions nor objected to those given at trial as is required by Pa.R.Crim.P. 1119(b). See Commonwealth v. Rineer, 310 Pa.Super. 241, 456 A.2d 591 (1983). The fact that failure to give such an instruction had not been held to be reversible error before the Waters decision did not absolve appellant of his responsibility to preserve this objection for review. See Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982).

Appellant’s final argument is that a new trial must be granted because of a communication which took place between the trial court and the jury outside the presence of both counsel. After the jury had retired to deliberate, the foreman returned with the following question for the court:

“If a defendant is found guilty of robbery and conspiracy with an ensuing murder, can a third degree verdict be found or must it be second degree, according to law?”

The court replied:

“You have the duty to reach a verdict based upon the law and the evidence presented in Court. You have the power to bring in any verdict you see fit.”

Appellant does not allege any prejudice resulting from this exchange, nor can we conceive of any way in which the court’s reply might have interfered with the jury’s function. The mere acknowledgement of a question from the jury, followed by a direction to continue deliberating, has never constituted reversible error in a criminal case. See Commonwealth v. Bamber, 463 Pa. 216, 344 A.2d 799 (1975). Furthermore, the recent decision of the Pennsylvania Supreme Court in Commonwealth v. Bradley, 501 Pa. 25, 459 A.2d 733 (1983) has clarified the law on this subject by specifying that in all future cases, whether criminal or civil, “only those ex parte communications between a court and a jury which are likely to prejudice a party will require reversal.” Id., 501 Pa. at 27, 459 A.2d at 734.

Judgment affirmed.