author: HOFFMAN, Judge:

text:
    540 A.2d 537
    COMMONWEALTH of Pennsylvania, Appellant, v. Terrence McCRACKEN, Jr. COMMONWEALTH of Pennsylvania v. Terrence McCRACKEN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 16, 1987.
    Filed March 1, 1988.
    Reargument Denied May 12, 1988.

      Dennis C. McAndrews, Assistant District Attorney, Wayne, for Com., appellant (at 318PHL87) and appellee (at 777PHL87).
    John G. McDougall, Philadelphia, for appellant (at 777PHL87) and appellee (at 318PHL87).
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

These are cross-appeals from the order below that (1) granted appellee and cross-appellant Terrence McCracken a new trial, and (2) directed that McCracken’s counsel “shall be available as a witness at the new trial ... and shall not represent [McCracken] at the new trial.” Appellant, the Commonwealth, contends that the court erred in granting McCracken a new trial because the evidence upon which the court’s order was based (1) was inadmissible hearsay, and (2) did not fulfill the legal standards governing after-discovered evidence. Cross-appellant McCracken contends that the court erred in ordering trial counsel not to represent him at the new trial. For the reasons that follow, we find that the evidence introduced at the after-discovered evidence hearing (1) was admissible under the declaration against penal interest exception to the hearsay proscription, but (2) did not warrant the granting of a new trial under the standard governing after-discovered evidence. Accordingly, we reverse the court’s order granting McCracken a new trial, reinstate the jury verdict, and remand the case for sentencing. Because we reverse the order granting a new trial, we need not address cross-appellant’s contention regarding the propriety of the court’s order directing present counsel not to represent McCracken at his new trial.

On October 25, 1983, following a jury trial, appellee Terrence McCracken was found guilty of murder in the second degree, two counts of robbery, and one count of criminal conspiracy. Appellee filed post-verdict motions in four stages: Motion for New Trial and/or Arrest of Judgment, Motion for New Trial based on After-Discovered Evidence, Amendment to Motion for New Trial and/or Arrest of Judgment, and Supplemental Post Verdict Motion for New Trial Based on After-Discovered Evidence. The trial court heard extensive testimony on the post-verdict motions on numerous occasions between April 6, 1984 and September 25, 1986. On January 16, 1987, the court granted appellee a new trial based on after-discovered evidence, and denied appellee’s other post-verdict motions. This Commonwealth appeal followed.

In an Opinion dated March 13, 1987, the trial court made clear that the sole basis for its granting a new trial was the testimony of appellee’s counsel, John G. McDougall. Trial Court Opinion at 10-11. McDougall testified that, after appellee’s trial, appellee’s alleged co-conspirators, William Verdekal and John Robert Turcotte, had made statements to McDougall that both implicated themselves in the robbery and murder and exonerated McCracken. The court concluded that (1) the statements that Verdekal and Turcotte made to McDougall were declarations against penal interest, and were thus admissible as exceptions to the hearsay rule; and (2) McDougall’s testimony met all of the requirements governing after-discovered evidence. See id. at 10-12. The Commonwealth challenges each of these conclusions, contending that (1) the statements made to McDougall did not fall within the declaration against penal interest exception to the hearsay rule; and (2) even if the testimony were admissible, it is legally insufficient to meet the established test governing after-discovered evidence. We shall consider these contentions seriatim.

I. HEARSAY CLAIM

We note, preliminarily, that “[i]t is universally agreed that hearsay may not be received unless the declarant is unavailable as a witness.” Commonwealth v. Pompey, 248 Pa. Superior Ct. 410, 414, 375 A.2d 163, 165 (1977). Cf. Commonwealth v. Brinkley, 505 Pa. 442, 453, 480 A.2d 980, 986 (1984); Commonwealth v. Colon, 461 Pa. 577, 583, 337 A.2d 554, 557 (1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976). Here, the Commonwealth concedes that John Robert Turcotte was unavailable, as he stated his intention to refuse to testify pursuant to his fifth amendment privilege against self-incrimination. The parties agree, however, that William Verdekal was available to testify, and, in fact, did testify during post-trial proceedings. Brief for Appellant at 19; Brief for Appellee at 8. Accordingly, McDougall’s testimony regarding statements made by Verdekal is inadmissible, and we must limit our review to a consideration of the statements that Turcotte made to McDougall.

In Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983), our Supreme Court restated the law governing the admissibility of statements that are alleged to be declarations against penal interest:

In Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975), this Court recognized the “declaration against penal interest” exception to the hearsay rule, but noted that “it is not the statement that must be against interest, but the fact stated.” 461 Pa. at 583-84, 337 A.2d 554, quoting Wigmore, 5 Wigmore, Evidence § 1462, at 337. Accordingly, we held that “the fact stated in that portion of Hernandez’s [Colon’s accomplice] confession which exculpated any possible accomplices was not against interest and hence that portion was inadmissible.” 461 Pa. at 584, 337 A.2d 554. Furthermore, that portion of Hernandez’s statement which did state facts against penal interest {i.e., that Hernandez committed the crime) was deemed inadmissible because it was irrelevant to the case. Id., 461 Pa. at 585, 337 A.2d 554. In Colon, the prosecution had proceeded on an accomplice theory, i.e., that both Hernandez and Colon had acted in concert to commit the burglary/homicide, “[t]hus Hernandez’s statement admitting his role in the crime was not inconsistent with the Commonwealth’s theory of the crime. As such, his confession did not meet the test of relevancy because it would not tend to make the inference that Colon did not participate in the crime more likely.” Id., 461 Pa. at 585, 337 A.2d 554. See also Commonwealth v. Garland, [475 Pa. 389, 380 A.2d 777 (1977) ].

Id., 501 Pa. at 289, 461 A.2d at 215. Thus, under Anderson and Colon, we first must distinguish between those parts of the out-of-court statement that inculpate the declarant and those parts that merely exculpate another person. Secondly, we must determine whether the portions of the statement that are inculpatory are relevant to the case at bar.

We have carefully reviewed McDougall’s testimony from the April 11, 1984 after-discovered evidence hearing. The portions of Turcotte’s statement, as reported by McDougall, which might tend either to exculpate McCracken or inculpate Turcotte, are the following:

THE WITNESS [McDougall]: ... John Robert Turcotte indicated he wanted to talk to me about Terry [McCracken]____ He said “he [McCracken] is looking bad to me. I think he is badly depressed and I am concerned.”
And Turcotte said, “I don’t know if the kid is going to make it. I have one life on my conscience. I don’t want another.” He went on to testify — excuse me — state to me that Terry had not done anything but Turcotte wanted to help him out but did not want to stick his head into a noose____
[Turcotte said] “I want to help Terry. I don’t want to stick my neck in a noose. He didn’t do it. We both know that.”

N.T. April 11, 1984 at 23-25.

THE WITNESS [McDougall]: Turcotte called me again in my office on the telephone sometime in the month of December____
[Turcotte said] “I will give a statement to the District Attorney’s office.”
“Indicating all that I know in my part in the homicide....”
I received later calls from Mr. Turcotte____
... John Turcotte said, “I want to clear Terry. I don’t want to stick my neck in a noose.” ...
... I asked him, “Would you plead guilty?”
“Would you plead guilty to homicide and all of the robberies with which you have been charged in return for a single sentence of life imprisonment?” ... He said, “Yes.”

Id. at 27-29.

THE WITNESS [McDougall]: One night I was home and it had to be within 9:30 and 10:00 o’clock and I received a call from John Robert Turcotte from the Pris-' on. He was inquiring as to the acceptability [of Turcotte’s pleading guilty in return for a sentence of life imprisonment] again.
... I said to John that I had respected what he was doing but that in pleading guilty ... there would have to be some factual representation from him in order to substantiate the plea of guilty.
John replied—
[that] He had been doing $6 or $700 worth of coke and methamphetamine around the period of the commission of the crime. That he had been sleeping only 20 hours a week. That he remembers the whole incident. This was our conversation on the deli killing. “I remember the whole thing. It was like a dream. I was so stoned but I can’t remember the man’s face. ■ The gun went off accidentally.”

Id. at 29-31.

The bulk of Turcotte’s communication to McDougall involves broad assertions that McCracken did not commit the robberies and homicide. These portions are clearly inadmissible as they are not declarations against Turcotte’s penal interest. See, e.g., Commonwealth v. Anderson, supra; Commonwealth v. Colon, supra.

The more troublesome portion of Turcotte’s statement is his assertion that, “I remember the whole thing. It was like a dream. I was so stoned but I can’t remember the man’s face. The gun went off accidentally.” This statement was clearly against Turcotte’s penal interest. See Commonwealth v. Weaver, 274 Pa. Superior Ct. 593, 603, 418 A.2d 565, 570 (1980) (statement is against penal interest if it admits facts revealing participation in crime) (citations omitted). Moreover, unlike the situations presented in Anderson and Colon, we cannot conclude that Turcotte’s admission was irrelevant to the case against McCracken.

In both Commonwealth v. Anderson, supra, and Commonwealth v. Colon, supra, the prosecution proceeded under an accomplice theory, alleging that the co-defendants were present and acted together during the commission of the crime. See Commonwealth v. Anderson, supra 501 Pa. at 279-80, 461 A.2d at 210 (evidence demonstrated that three men entered residence together; murder, robbery, and related offenses committed thereafter); Commonwealth v. Colon, supra 461 Pa. at 580, 585, 337 A.2d at 556, 558 (evidence demonstrated that co-defendants acted in concert in committing murder and burglary). Thus, in both cases, the inculpatory part of the co-defendant’s statement — admitting that co-defendant’s presence and participation in the crime — was consistent with the Commonwealth’s theory of prosecution. Accordingly, as the Colon court recognized, the co-defendant’s “confession did not meet the test of relevancy because it would not tend to make the inference that [the accused] did not participate in the crime more likely.” Commonwealth v. Colon, supra, 461 Pa. at 585, 337 A.2d at 558. See also Commonwealth v. Anderson, supra, 501 Pa. at 289, 461 A.2d at 215.

Here, the evidence introduced at trial, as summarized by the trial court, indicated that

a man entered Kelly’s Deli with a cover over his face and armed with a handgun. The man forced the owner, her daughter, and two (2) customers into a walk-in refrigerator. Thereafter, three (3) customers came in and the man forced the three (3) of them at gunpoint to the rear room of the Deli. A fourth customer, Charles Johnston, came in and was shot. The man, after taking money from the cash register, left the Deli. As he was leaving the Deli he was observed by two (2) customers who were about to enter the Deli. None of the people in the Deli or about to enter it were able to identify Defendant as the man who committed the robbery and shooting. All of them gave descriptions of the man and what he was wearing.
About an hour or so after the robbery and shooting Officer James Clifton saw Defendant standing in the street. The clothes that Defendant was wearing, except his hat, met the description of that given to police by the witnesses and the Defendant also met the description. The hat Defendant was wearing when Officer Clifton saw him had a brim. All witnesses had indicated that the man who committed the crimes wore a dark knit hat.
Defendant agreed to the performance of a gunshot residue test which was performed. Also found in Defendant’s home, among other things, was a dark knit cap.
At the trial the person who performed the gunshot residue test testified that in his opinion there was gunshot residue on Defendant’s left hand.
One (1) witness, Michael Aldridge, was the only witness who identified Defendant. He testified that he saw the Defendant enter and leave the Deli. Aldridge has known Defendant for years and had gone to school with him. When questioned shortly after the incident he said he did not recognize the person he saw enter and leave the store.
On March 21, 1983 (three days after the incident) Aldridge gave another statement to the police. In that statement he stated that Defendant was the person that he saw enter and leave the Deli.
On April 7, 1983 (about three weeks after the Kelly’s Deli incident) John Robert Turcotte, Jr. and William V. Verdekal were arrested in the Borough of Clifton Heights, Delaware County, Pennsylvania during the commission of a robbery. Turcotte had a handgun and tests on the handgun indicated that the bullet that killed Charles Johnston had been fired from the handgun that was in Turcotte’s possession.
The Commonwealth connected Defendant with Turcotte and Verdekal by testimony that Defendant was a helper of Turcotte’s in Verdekal’s furniture delivery operation just before the Christmas holidays.
The Commonwealth charged Defendant, Verdekal and Turcotte in the Kelly’s Deli case. The cases were severed for trial. Turcotte would fit the description that was given by witnesses of the man who committed the robbery and shooting at Kelly’s Deli.
The defense was alibi and that Turcotte committed the crime. The explanation of the residue found on his hand was that he had been helping a friend work on an automobile. Turcotte had been charged with other robberies and Defendant presented some witnesses in those cases to show modus operandi and to show that the handgun had been in Turcotte’s possession for some time____

Trial Court Opinion at 2-4.

The evidence introduced at trial thus showed that but one man entered the delicatessen, robbed the customers, and shot the victim. The Commonwealth’s theory was that McCracken was that one man. Turcotte’s admission, which suggests that he was the man in the delicatessen, and that the gun then went off accidentally, was inconsistent with the Commonwealth’s proof regarding the identity of the shooter. Moreover, the admission corroborated the defense theory that it was Turcotte, and not McCracken, who committed the crime. Because the Commonwealth alleged that McCracken’s only role in the conspiracy was as the man who entered the delicatessen and actually committed the robbery and murder, Turcotte’s admission would tend to make the inference that McCracken did not participate in the crime more likely. See Commonwealth v. Anderson, supra; Commonwealth v. Colon, supra. Accordingly, on this record, we must conclude that Turcotte’s admission is relevant to McCracken’s case, and thus would be admissible. We still must determine, however, whether a new trial is warranted by this after-discovered evidence.

II. AFTER-DISCOVERED EVIDENCE CLAIM

A new trial must be granted on the basis of after-discovered evidence only if the evidence

(1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted.

Commonwealth v. Colson, 507 Pa. 440, 469, 490 A.2d 811, 826 (1985) (quoting Commonwealth v. Valderrama, 479 Pa. 500, 505, 388 A.2d 1042, 1045 (1978)). See also Commonwealth v. Buehl, 510 Pa. 363, 393, 508 A.2d 1167, 1182 (1986).

Our review of the record convinces us that the after-discovered evidence offered by appellee did not meet the above standard for two reasons. First, the evidence offered was merely corroborative of and cumulative to appellee’s theory at trial. At trial, appellee introduced extensive evidence that tended to show that Turcotte had committed four other robberies in Delaware County, employing the same modus operandi and the same gun that were used in the instant case. The inference sought, of course, was that Turcotte also committed this crime. This theory, presented in such detail, and which the trial court aptly characterized as “believable”, was in fact unanimously disbelieved by the jury. Because Turcotte’s admission was merely corroborative of and cumulative to evidence already capably presented at trial, we cannot conclude that it, alone, would be likely to compel a different result. See, e.g., Commonwealth v. Tervalon, 463 Pa. 581, 588, 345 A.2d 671, 675 (1975).

Second, and more importantly, Turcotte’s admission was not of such a nature and character that its introduction at a retrial of McCracken would likely compel a different verdict. Preliminarily, we note that the content of Turcotte’s admission undermines its reliability. Turcotte never actually stated that he was in the delicatessen, or that he fired the gun. Indeed, the statement contains no detail, but merely implies Turcotte’s presence and culpability. Moreover, we note that the circumstances attending the admission undermine its reliability. Turcotte made the admission to McDougall while he was attempting to get McDougall to intercede on his behalf in securing a plea arrangement with the Commonwealth. N.T. April 11, 1984 at 27-30 (quoted supra). Because the statement was made to McDougall while charges related to the killing were still outstanding against Turcotte, and because it apparently was made, at least in part, in return for McDougall’s intercession on Turcotte’s behalf, the statement “was not unlike that of ‘a co-conspirator who is already in prison and realistically has little to lose by attempting to free his partner.’ ” Commonwealth v. Tervalon, supra (quoting Commonwealth v. Mosteller, 446 Pa. 83, 91, 284 A.2d 786, 789 (1971)). Accordingly, we must view Turcotte’s admission, made under circumstances where he had little to lose, with great caution. See Commonwealth v. Tervalon, supra. See also Commonwealth v. Scott, 503 Pa. 624, 630, 470 A.2d 91, 94 (1983) (post-verdict accomplice testimony should be considered with caution); Commonwealth v. Treftz, 465 Pa. 614, 630, 351 A.2d 265, 272-73 (1976) (citations omitted) (when confession is not such as would put declarant in position where further criminal prosecution might occur, confession must be viewed with great caution).

Because we find that Turcotte’s admission was merely corroborative of and cumulative to evidence introduced at appellee’s trial, and because we find that it was not of such a nature and character that it would be likely to produce a different result if introduced at a new trial, we conclude that it was not such after-discovered evidence as would warrant a new trial. Accordingly, we must hold that the trial court erred in granting appellee McCracken a new trial.

For the foregoing reasons, we reverse the trial court’s order granting appellee a new trial, reinstate the jury verdict, and remand the case for sentencing.

Order reversed. Jury verdict reinstated. Case remanded for sentencing.

      . We emphasize that the trial court granted a new trial based solely on the testimony of McDougall, and not on the independent post-trial testimony of Verdekal. See Trial Court Opinion at 11 (“We concluded that only the testimony of John G. McDougall, Esq., met the after-discovered evidence and reliability tests____’’). McCracken has not challenged the court’s decision to limit the basis of its ruling to McDougall’s testimony alone. Accordingly, we need not determine whether Verdekal's testimony was of such a nature as to warrant the granting of a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    540 A.2d 543
    COMMONWEALTH of Pennsylvania v. Charmaine PFENDER, Appellant.
    Superior Court of Pennsylvania.
    Submitted October 26, 1987.
    Filed April 4, 1988.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before WIEAND, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for murder in the first degree, aggravated assault, unlawful restraint, criminal conspiracy, and violation of the Uniform Firearms Act, 18 Pa.C.S.A. §§ 6101-6120. Appellant contends that the trial court (1) erred in denying her motion to change venue, and (2) abused its discretion when sentencing her on the non-homicide charges. For the reasons that follow, we affirm the judgment of sentence for murder, we vacate the judgment of sentence for the remaining charges, and we remand the case for resentencing on the non-homicide charges.

In August, 1984, appellant was arrested and charged with the above-stated offenses. On March 27, 1985, following a jury trial, appellant was found guilty of all charges. Post-verdict motions were filed and denied. On October 25, 1985, appellant was sentenced to a life term of imprisonment on the murder charge, to be followed by consecutive terms of five-to-ten years for aggravated assault, two-to-four years for unlawful restraint, two-and-one-half-to-five years for criminal conspiracy, and one-to-five years for violation of the Uniform Firearms Act. Appellant filed a motion to modify sentence, which was denied. This appeal followed.

Appellant first contends that the trial court erred in denying her motion to change venue. Appellant argues both that (a) she was actually prejudiced by the pre-trial publicity related to her case, and (b) the publicity in the community was so pervasive and inflammatory that we need not find actual prejudice, but should presume that she was prejudiced.

The decision whether to grant or deny a motion for a change of venue rests within the sound discretion of the trial court. See Commonwealth v. Holcomb, 508 Pa. 425, 442, 498 A.2d 833, 842 (1985) (plurality opinion); Commonwealth v. Pursell, 508 Pa. 212, 220, 495 A.2d 183, 187 (1985); Commonwealth v. Romeri, 504 Pa. 124, 131, 470 A.2d 498, 501 (1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984); Commonwealth v. Casper, 481 Pa. 143, 150, 392 A.2d 287, 291 (1978). The reason for vesting this decision within the trial court’s discretion is that the court “is in the best position to assess the community atmosphere and judge the necessity for a venue change.” Commonwealth v. Pursell, supra, 508 Pa. at 220-21, 495 A.2d at 187. We may reverse the trial court’s denial of a motion to change venue only when there is an abuse of discretion. Id., 508 Pa. at 221, 495 A.2d at 187. Moreover, “[i]n reviewing the trial court’s decision, the only legitimate inquiry is whether any juror formed a fixed opinion of appellant’s guilt or innocence as a result of the pretrial publicity.” Commonwealth v. Kichline, 468 Pa. 265, 274, 361 A.2d 282, 287 (1976).

In Commonwealth v. Casper, supra, our Supreme Court noted that claims deriving from alleged prejudicial pre-trial publicity are of two types.

Normally, one who claims that he [or she] has been denied a fair trial because of prejudicial pre-trial publicity must show actual prejudice in the empaneling of the jury____ But this rule is subject to an important exception. In certain cases there “can be pretrial publicity so sustained, so pervasive, so inflammatory, and so inculpatory as to demand a change of venue without putting the defendant to any burden of establishing a nexus between the publicity and actual jury prejudice,” ... because the circumstances make it apparent that there is a substantial likelihood that a fair trial cannot be had.

481 Pa. at 150-51, 392 A.2d at 291 (citations omitted). See also Commonwealth v. Holcomb, supra; Commonwealth v. Romeri, supra.

Here, the voir dire covered some two hundred sixty-eight pages of transcript. During the voir dire, the trial court carefully questioned all prospective jurors regarding their awareness of the case. The court mentioned the name of the victim, and the fact that the victim was a student of Turkish origin. The court then asked each juror whether he or she remembered reading or hearing anything about the case in the news media. Compare Commonwealth v. Nahodil, 462 Pa. 301, 307, 341 A.2d 91, 93 (1975). Whenever a prospective juror indicated a familiarity with the case, however vague, the court questioned the juror to determine exactly what he or she remembered about it. The court then asked each juror whether he or she had formed any opinion as to appellant’s guilt or innocence. See, e.g., N.T. March 18-19, 1985, at 83, 178, 205-06. No juror was seated who indicated that he or she had formed such an opinion. In addition, in response to further questioning by the court, each juror who was later actually seated assured the court that he or she would decide the case based on the evidence, and not on outside media influences. Moreover, defense counsel was given an opportunity to question each juror. Finally, we note that the court made continuing efforts during the trial to ensure that the jury was not exposed to any publicity related to the trial, and to ensure that nothing at trial brought back memories of pre-trial publicity. See id. at 1253. On this record, we cannot conclude that the jury empanelled was actually prejudiced against appellant as a result of pre-trial publicity.

Turning to appellant’s presumptive prejudice claim, we note preliminarily that the fact of pre-trial publicity alone “does not necessarily preclude a fair trial” in the relevant community. Commonwealth v. Casper, supra, 481 Pa. at 152, 392 A.2d at 292 (quoting Commonwealth v. Powell, 459 Pa. 253, 260-61, 328 A.2d 507, 510 (1974)). See also Commonwealth v. Romeri, supra, 504 Pa. at 132, 470 A.2d at 502. “Instead, once the fact of pre-trial publicity is determined, the inquiry then turns to the nature of the publicity and its effect on the community.” Commonwealth v. Romeri, supra. In Commonwealth v. Pursell, supra, our Supreme Court noted that pre-trial prejudice may be presumed if

(1) the publicity is sensational, inflammatory, and slanted towards conviction rather than factual and objective; (2) the publicity reveals the accused’s prior criminal record, if any, or if it refers to confessions, admissions, or reenactments of the crime by the accused; and (3) the publicity is derived from police and prosecuting officer reports. [ (4) ] The publicity must be so extensive, sustained and pervasive without sufficient time between publication and trial for the prejudice to dissipate, that the community must be deemed to have been saturated with it.

508 Pa. at 221, 495 A.2d at 187-88 (citation omitted). See also Commonwealth v. Romeri, supra; Commonwealth v. Bradfield, 352 Pa. Superior Ct. 466, 481-82, 508 A.2d 568, 576 (1986).

This case was originally highly publicized in the Pittsburgh area. The charges stemmed from the August, 1984 slaying of Engin Aydin, a Turkish graduate student attending Point Park College in Pittsburgh, and the shooting and wounding of Suat Erdogan, another Turkish student. Appellant and a second woman, Sara Mae Richardson, were arrested in connection with the attacks. According to appellant, the media coverage attending this case was inherently prejudicial because

the media portrayed the women as “man-haters” and members of an “anti-male cult”. “They were members of an all women softball team before.” ... Most importantly, the media reported the fact [that] the chief investigating detective believed it was a case of “pre-meditated murder”. He related how the women had attempted to purchase hand gun ammunition on the day of the incident. Such coverage existed on all radio, television, and newspaper media in Allegheny County. The incident was played as an international incident.

Brief for Appellant at 16.

In the trial court, appellant, in support of her motion to change venue, introduced numerous newspaper articles, transcripts from radio broadcasts, and replays of television broadcasts, all concerning the coverage of the shootings. The trial court, in ruling on appellant’s motion, noted that it had the benefit of “replays of all the news media broadcasts from August of 1984 [as well as] radio and newspaper exhibits provided by counsel.” Trial Court Opinion at 3. After reviewing this evidence, the court concluded that

There is no doubt in my mind that there has been and was a great amount of publicity at the time this thing occurred.
What I call to counsel’s attention is that almost four months have passed since that deluge, you can describe it, of publicity and also it will be three more months before we attempt to get a jury in this case. It has been my experience as a lawyer and on the bench that the general public’s memory of what occurs — with no disrespect to the news media, but what occurs in the news media doesn’t last very long. I have sat on cases before where we have had a lot of publicity, and it was astounding when we came to pick the jury how few, if any, people remembered what they had seen or read.
If it becomes apparent between now and March or during the selection of the jury that it is impossible for us to get an unbiased jury, then proper steps can be taken by this Court to ensure it be done____

N.T. December 13, 1984 at 8-10. See also Trial Court Opinion at 3-4. The court then noted that the actual voir dire confirmed its position that the pre-trial publicity was not so extensive and pervasive that its prejudicial effect could not dissipate prior to trial. The court observed that

An examination of the voir dire of the jury showed that only a small number of prospective jurors were aware of the incident and even fewer remembered anything that could be characterized as prejudicial. In each instance that a juror had heard and recalled any detailed accounts of the killing or revealed a recollection of any prejudicial information, a challenge for cause was granted to the defense. A review of the transcript revealed that of the thirty-seven jurors interviewed, only seven were dismissed as a result of a challenge for cause [relating to pre-trial publicity]____

Trial Court Opinion at 4.

We have carefully reviewed the voir dire transcript, and we find that the responses of the individual venirepersons fully support the trial court’s conclusion that whatever prejudicial pre-trial publicity existed in August, 1984 had dissipated by the time of trial some seven months later. Compare Commonwealth v. Holcomb, supra; Commonwealth v. Bradfield, supra. Accordingly, on this record, we cannot say that the August publicity was so sustained or pervasive as to require a change of venue based on a presumptive prejudice theory. See Commonwealth v. Holcomb, supra. We thus hold that the trial court did not abuse its discretion in refusing appellant’s motion.

Appellant next contends that the trial court abused its discretion in sentencing her on the non-homicide charges. Appellant notes that the trial court stated that it imposed sentences of incarceration consecutive to appellant’s mandatory life sentence because the court erroneously believed that appellant otherwise would be eligible for parole within fifteen to twenty years. See N.T. Sentencing, October 25, 1985, at 15. Appellant further maintains that the trial court erroneously focused only upon the circumstances of the crime and the seriousness of the offense; appellant argues that the court failed to consider other relevant sentencing factors, such as appellant’s remorse, and the fact that she had been subjected to “family abuse”. Appellant concludes that both the court’s erroneous understanding of the effect of a life sentence, as well as its failure to consider all relevant sentencing factors, renders the consecutive sentences it imposed an abuse of discretion. We agree.

The imposition of a proper sentence is a matter vested in the sound discretion of the trial court, and a trial court's judgment of sentence will not be disturbed on appeal unless an abuse of discretion is shown. Commonwealth v. Meo, 362 Pa.Superior Ct. 328, 332, 524 A.2d 902, 904 (1987); Commonwealth v. Peters, 358 Pa.Superior Ct. 94, 96, 516 A.2d 1197, 1198 (1986); Commonwealth v. Rooney, 296 Pa.Superior Ct. 288, 292, 442 A.2d 773, 774 (1982). However, “a sentencing court must consider the history, character, and condition of the defendant and not only the nature and circumstances of the crime” in imposing a sentence of total confinement on the defendant. Commonwealth v. Peters, supra, 358 Pa.Superior Ct. at 96, 516 A.2d at 1198-99; Commonwealth v. Arent, 352 Pa.Superior Ct. 520, 523, 508 A.2d 596, 597 (1986); 42 Pa.C.S.A. § 9725. Additionally, as a general rule, the sentencing court is required by statute to consider the rehabilitative needs of the defendant and the need for the protection of the public, in addition to the gravity of the offense. 42 Pa.C.S.A. § 9721(b). See also Commonwealth v. Peters, supra, 358 Pa.Superior Ct. at 96-97, 516 A.2d at 1199; Commonwealth v. McCall, 320 Pa.Superior Ct. 473, 480, 467 A.2d 631, 634 (1983). Moreover, “the evidence upon which a sentencing court relies must be accurate. If the court relies on improper considerations or information, the sentence imposed is illegal and new sentencing is required.” Commonwealth v. Cowan, 275 Pa.Superior Ct. 341, 343, 418 A.2d 753, 753 (1980). See also Commonwealth v. Gaskin, 325 Pa.Superior Ct. 349, 353, 472 A.2d 1154, 1156 (1984) (if it appears that trial court relied in whole or in part on impermissible factor, sentence may be rendered invalid). “This is so because the court violates the defendant’s right to due process if, in deciding upon the sentence, it considers unreliable information.” Commonwealth v. Karash, 306 Pa.Superior Ct. 229, 231, 452 A.2d 528, 528 (1982). Finally, we note that “[a] statement by a sentencing court in its opinion that it considered all of the appropriate factors does not cure its failure to do so during sentencing.” Commonwealth v. Peters, supra, 358 Pa.Superior Ct. at 97, 516 A.2d at 1199. See also Commonwealth v. Holler, 326 Pa.Superior Ct. 304, 308, 473 A.2d 1103, 1106 (1984).

Here, because appellant was found guilty of murder in the first degree, the court was required to impose a life sentence on the homicide charge. See 18 Pa.C.S.A. § 1102(a). The issue presented at the sentencing hearing, then, was whether appellant should receive additional sentences on the non-homicide charges, and whether those sentences should run consecutive to the life sentence. A review of the transcript of the sentencing hearing reveals that appellant had no prior criminal record, that she expressed remorse for her acts, and that there had been problems in her home environment, involving abuse and sexual advances made by her father. See N.T. October 25, 1985 at 4-5, 7-8, 10-11, 12. After hearing evidence related to the above, as well as argument from the Commonwealth and appellant’s counsel, the court then stated the following reasons for the consecutive sentences it was about to impose:

THE COURT: Well, this Court intends to treat the homicide and the aggravated assault as two separate and distinct crimes, and it is obvious from the testimony in this case that was heard by the jury that this is what was thought by them by nature of the verdicts that they reached. This was a cold, calculated killing of an individual with absolutely no rhyme or reason for it, and no necessity for it. The Court is very upset by the circumstances of that night, particularly the things that happened thereafter, and the Court can’t fail to take that into consideration at the time we are imposing this sentence.
The fact that this man was shot and killed, these two women then tried to bury him, and then chased the other man through the woods, trying to kill him, like a wild animal. The Court can’t overlook that.
If a life sentence in this state was a life sentence, then I would impose that and I’d stop there. But you know and I know that a life sentence in this state is not a life sentence, but that she would become eligible for parole within — what my experience has been — 15 to 20 years, they would be thinking of paroling them.
This was a wanton killing that arouses no signs of mercy from this Court.

Id. at 14-15 (emphasis supplied). The court then imposed the mandatory life sentence on the murder charge, and consecutive sentences on the aggravated assault (five-to-ten years), unlawful restraint (two-to-four years), criminal conspiracy (two-and-one-half-to-five years), and violation of the Uniform Firearms Act (one-to-five years) charges. Id. at 15-18.

Our review of the sentencing hearing leads us to agree with appellant that the trial court abused its discretion in formulating the consecutive sentences. First, despite being made aware of circumstances related to the history, character, and condition of appellant, the court improperly focused entirely upon the nature and circumstances of the offense. See Commonwealth v. Peters, supra. Second, and more importantly, it appears from the language emphasized above that the only reason offered by the court for ordering that the non-homicide charges be served consecutively to the life sentence was the court’s belief that appellant would otherwise be eligible for parole in fifteen to twenty years. The court’s belief regarding the availability of parole for a person under a sentence of life imprisonment was clearly erroneous, as the court later recognized in its opinion. See 61 Pa.S.A. § 331.21 (Pennsylvania Board of Probation and Parole is authorized “to release on parole any convict confined in any penal institution in this Commonwealth as to whom power to parole is herein granted to said board, except convicts condemned to death or serving life imprisonment____”) (emphasis supplied). Because the information regarding the availability of parole was inaccurate, and because the court expressly relied upon this inaccurate information in formulating the consecutive sentences, we must conclude that appellant’s sentence may have been based on impermissible factors. See Commonwealth v. Cowan, supra. See also Commonwealth v. Gaskin, supra; Commonwealth v. Karash, supra. Accordingly, for both reasons stated above, we conclude that the trial court abused its discretion in sentencing appellant on the non-homicide charges; accordingly, appellant’s sentence on those charges must be vacated and the case remanded for resentencing. We emphasize that our conclusion regarding appellant’s sentence on the non-homicide charges in no way implicates the validity of the mandatory life sentence for murder.

For the foregoing reasons, we affirm the judgment of sentence for murder; we vacate the judgment of sentence for aggravated assault, unlawful restraint, criminal conspiracy, and violation of the Uniform Firearms Act; and we remand the case for resentencing on the non-homicide charges. Jurisdiction is not retained.

Judgment of sentence for murder affirmed. Judgment of sentence for remaining charges vacated and case remanded for resentencing. Jurisdiction is not retained.

      . The docket reflects that post-verdict motions were not filed until April 18, 1985, or some twenty-two days after the verdict. In its brief filed on appeal, the Commonwealth initially argued that, because appellant’s post-verdict motions were untimely filed, her venue argument has not been preserved for appeal. See Pa.R.Crim.P. 1123(a) (defendant has right to file post-verdict motions within ten days after finding of guilt).
      We note, however, that subsequent to the filing of briefs on appeal, appellant and the Commonwealth entered into a stipulation of record pursuant to Pa.R.A.P. 1926. Counsel stipulated that “[t]he current state of the record fails to reveal either an application for an extension of time to file [post-verdict] motions beyond the ten-day limit or an Order of Court allowing such action.” Stipulation of Record, ¶ 5. To correct this error, counsel further stipulated that
      6. [ADA] Mr. Conrad and [appellant’s counsel] Mr. Brennan agree, as evidenced by their signatures at the end of this Stipulation, that Mr. Brennan orally requested of the Court an extension of time within which to file Post-Trial Motions for Ms. Pfender.
      7. Such action was undertaken with the consent and knowledge of Mr. Conrad.
      8. The Court of Common Pleas granted the oral application without further order of court.
      9. Counsel for Ms. Pfender filed the Post-Trial Motions within the time limits prescribed by the Court.
      10. The present Stipulation is intended to rectify this omission from the official record so as to enable the Superior Court of Pennsylvania to review this case based on the merits of the issues presented.

        Id. ¶¶ 6-10. On November 24, 1987, the trial court entered an order pursuant to Pa.R.A.P. 1926 mandating that "the foregoing Stipulation of Record is to be certified as a part of the official record in this case.” Because appellant’s extension request occurred within the original ten-day period required by Pa.R.Crim.P. 1123(a), because the trial court granted the extension request, and because it is agreed that appellant’s post-verdict motions were filed within the time limits prescribed by the trial court, we hold that appellant has not waived her venue argument. Compare Commonwealth v. Sheaff, 365 Pa.Superior Ct. 613, 619, 530 A.2d 480, 483 (1987) (whether defendant can file additional reasons for new trial is matter of discretion with trial court; to file supplemental motions, permission must be requested and granted on record, and in timely fashion).

        . During the selection of alternates, an eighth juror was dismissed as a result of a challenge for cause related to pre-trial publicity.

      . Appellant also contends that the trial court abused its discretion because it failed to state on the record both (a) the reasons for the sentence imposed and (b) that it had considered the sentencing guidelines. Appellant failed to raise this issue both at sentencing and in her motion to modify sentence. Accordingly, appellant has. failed to preserve the issue for appellate review. See, e.g., Commonwealth v. Richards, 317 Pa.Superior Ct. 212, 214, 463 A.2d 1161, 1162 (1983) (citations omitted).
      We note that appellant has not challenged the constitutionality of the Sentencing Guidelines. Accordingly, she is not entitled to relief under Commonwealth v. Sessoms, 516 Pa. 365, 380 n. 2, 532 A.2d 775, 782 n. 2 (1987).

      . The Commonwealth notes that appellant characterizes this argument as a claim implicating the sentencing guidelines. The Commonwealth then argues that "insofar as appellant’s argument can be interpreted as claiming an abuse of discretion on the part of the lower court for failure to consider the sentencing guidelines,” Sessoms precludes relief. We note, however, that the Commonwealth did not argue the constitutionality of the guidelines in the court below; indeed, the Commonwealth’s entire argument consists of a cite to Sessoms, which was filed almost two years after appellant was sentenced.
      Moreover, even though appellant characterizes her claim as implicating the guidelines, she presents no argument regarding how the court failed to follow the guidelines. Instead, as we note in the text above, appellant focuses on the court’s failure to consider factors other than the seriousness of the offense. We interpret appellant’s argument, as opposed to her characterization, to be based on 42 Pa.C.S.A. § 9721(b), which provides that the court, in selecting among sentencing alternatives, “shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense ..., and the rehabilitative needs of the defendant.” Id. Because we understand appellant’s claim to be based on 42 Pa.C.S.A. § 9721(b) and not the guidelines, even if the Commonwealth preserved a Sessoms-type claim, we would find it inapposite to appellant’s contention.

      . We note that appellant has included, in a separate section of her brief, a "Concise Statement of Reasons Relied Upon for Allowance of Appeal with Respect to the Discretionary Aspects of a Sentence.” Brief for Appellant at 13. Appellant’s brief thus complies with Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) and Pa.R. A.P. 2119(f).
      Before we can consider the merits of these claims, however, we must determine whether they present substantial questions for our review. See 42 Pa.C.S.A. § 9781(b); Commonwealth v. Krum, 367 Pa.Superior Ct. 511, 519, 533 A.2d 134, 138 (1987) (en banc). We note that, if either of appellant’s claims proved to have merit, we would be required to remand the case for resentencing. See, e.g., 42 Pa.C.S.A. § 9721(b) (in selecting from sentencing alternatives, court shall follow principle that sentence imposed should call for confinement consistent with protection of public, gravity of offense, and rehabilitative needs of defendant; failure to comply shall be grounds for vacating sentence and resentencing defendant); Commonwealth v. Krum, supra, 367 Pa.Superior Ct. at 514, 533 A.2d at 135 (if sentencing court considers improper factors in imposing sentence, court thereby abuses its discretion). Accordingly, we conclude that each allegation presents a substantial question for our review.

      . As we have noted above, statements in the court’s opinion cannot cure errors made during the sentencing proceeding itself. See, e.g., Commonwealth v. Peters, supra.


author: BECK, Judge: CAVANAUGH, Judge,

text:
    540 A.2d 549
    COMMONWEALTH of Pennsylvania v. Debby OGIN, Appellant. COMMONWEALTH of Pennsylvania v. Glynn WILDONER, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1987.
    Filed April 11, 1988.

      Albert J. Flora, Jr., Wilkes-Barre, for appellants.

      Joseph C. Giebus, Assistant District Attorney, Wilkes-Barre, for Com., appellee.
    Before CIRILLO, P.J., and CAVANAUGH, BROSKY, ROWLEY, WIEAND, McEWEN, BECK, TAMILIA and POPOVICH, JJ.
   BECK, Judge:

This is a consolidated appeal by a mother and father who were convicted by a jury and sentenced for using excessive force against their baby daughter. The issue is whether the evidence adduced at trial supports the jury verdict that appellants are guilty of simple assault and endangering the welfare of children. We find that the evidence is sufficient to establish appellants guilt, and we affirm.

Appellants’ convictions were based on three separate incidents involving their daughter April. Viewed in the light most favorable to the Commonwealth as verdict winner, the facts are as follows.

One day during the summer of 1983, Commonwealth witness Ann Marie Blaine observed appellants’ children April and Glynn Jr. playing outside the building where the family lived. At this time, Glynn Jr. was three years old and April was approximately seventeen months old. Glynn Jr. rode his Big Wheel down to the end of the block and April followed him. Appellant Debby Ogin ran after the children, told them to stay in front of the building, and slapped April pn the rear end. Soon afterward, Glynn Jr. rode down an alley and April again followed him. Debby ran after the children and grabbed April. Blaine testified on direct examination:

A. Debby was dragging April.
Q. You say dragging. Can you describe for the jury what you mean by that?
A. She had her by the one arm and was dragging her. Her feet were touching the ground. She was stumbling to try to walk. And she flung her like an old rag doll against the building. She said, I told you to sit there.
Q. When you say she flung her against the building, please, describe to the jury exactly what Debby Ogin did to her daughter.
A. She had her by the arm. She come around the building with the child by the arm and she threw her up against the building by one arm.
Q. What part of April’s body hit that building?
A. The whole back of her. And she — when she hit the building, she kind of stumbled over and hit the steps. And they’re cement steps there.
Q. What happened after April had been thrown against the wall?
A. The child was screaming for quite a few minutes, and then Debby took her and put her inside the stairway and shut the door.

R. at 25-27. The witness also stated that she observed a small red mark that resembled a brushburn on the side of April’s face.

The second incident occurred the following winter. On December 20, 1983, Debby Ogin took her children to see a Santa Claus at the local firehouse. They were accompanied by Audrey Wampole, a neighbor, and by Ann Marie Blaine. Wampole held April for the first hour they waited and then set her down. April approached her mother and gestured that she wanted to be picked up. Debby Ogin responded by slapping April with the back of her hand causing April to stumble. Ten minutes later, April approached her mother and reached out her arms to be picked up. Debby Ogin again hit April in the face with the back of her hand, this time with “extreme force”. R. 34. April fell and hit her back against a brick wall. Afterward, Blaine noticed a lump on the back of the child’s head.

The third incident took place in February, 1984, and involved Glynn Wildoner, April’s father. Doris Whitmire, Mr. Wildoner’s cousin, testified that she was with his family one evening at dinner time. She saw Debby Ogin take spaghetti off the stove and place it on a plate on the kitchen table. Glynn Wildoner moved the plate in front of April. When April did not eat it, Wildoner reached out, put his hand under the plate, and pushed the hot food up into the child’s face. April began crying. Her face swelled and she sustained small burn marks which dissipated after a few days.

Appellants were tried by a jury empaneled,by the Court of Common Pleas of Luzerne County. Ogin was convicted of two counts of simple assault and two counts of endangering the welfare of children, and was sentenced to two years probation. Wildoner was convicted of one count of simple assault and one count of endangering the welfare of children and was sentenced to two years special probation consecutive to a sentence he was then serving for unrelated criminal conduct. This appeal followed.

Appellants allege that the jury verdict was based on insufficient evidence and was against the weight of the evidence in three respects. ' They contend that the evidence does not establish that they performed acts prohibited by the simple assault statute. They contend that the evidence does not establish that they knowingly violated the endangering the welfare of children statute. And they contend that the evidence does not establish that the force directed at April was anything other than a justifiable form of corporal punishment.

As we noted in Commonwealth v. Taylor:

... In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact; the fact finder is free to believe all, some, or none of the evidence.
A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion. The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.

324 Pa.Super. 420, 424-25, 471 A.2d 1228, 1229-30 (1984) (citations omitted). See also Commonwealth v. Pearsall, 368 Pa.Super. 327, 329-330, 534 A.2d 106, 108 (1987).

With this standard in mind, we review appellants’ claims.

I.

We begin by considering appellants’ challenge to their convictions for simple assault. Section 2701 of the Crimes Code provides that a person is guilty of assault if he “attempts to cause or intentionally, knowingly, or recklessly causes bodily injury to another____” Section 2301 of the Crimes Code defines bodily injury as “[ijmpairment of physical condition or substantial pain.” Appellants argue that April’s injuries were not sufficiently serious to support an inference that appellants either impaired her physical condition or caused her substantial pain. We disagree.

The existence of substantial pain may be inferred from the circumstances surrounding the use of physical force even in the absence of a significant injury. See Commonwealth v. Jorgenson, 341 Pa.Super. 550, 492 A.2d 2 (1985), rev’d on other grounds, 512 Pa. 601, 517 A.2d 1287 (1986). In Jorgenson, this court found that the act of twice striking the victim across the face was sufficient to support a conviction for simple assault. See also Commonwealth v. Bryant, 282 Pa.Super. 600, 608, 423 A.2d 407, 411 (simple assault occurred when assailant threw victim to the ground).

In the case sub judice, the jury was free to believe all of the testimony of Commonwealth witnesses Blaine and Whitmire. This testimony was internally consistent and there is no special reason to believe that it was particularly unreliable. In light of this testimony, one can infer that April suffered substantial pain from the fact: 1) that she was grabbed by the arm and flung against a building and then screamed for several minutes; 2) that she was struck in the face with extreme force causing her to fall against a wall; and 3) that she cried after having hot food shoved in her face. These incidents are serious matters; we are not dealing here with “temporary hurts resulting from trivial contacts which are a customary part of modern day living.” Commonwealth v. Kirkwood, 360 Pa.Super. 270, 275, 520 A.2d 451, 454 (1987). Accordingly, appellants’ argument that the Commonwealth failed to establish the elements of simple assault is without merit. Compare In re J.L., 327 Pa. Super. 175, 475 A.2d 156 (1984) (finding insufficient evidence of simple assault where sixteen year-old defendant pushed two-year-old nephew with elbow and nephew neither cried nor sustained any injury).

II.

Appellants also allege that they were improperly convicted of endangering the welfare of children. Section 4304 of the Crimes Code provides:

A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

Appellants contend that they did not fail to provide a duty of protection. We conclude that this argument is without merit. Section 4304 is a comprehensive provision designed to penalize those who knowingly breach a legal duty to protect the well-being of children who are entrusted to their care. See Commonwealth v. Cardwell, 357 Pa.Super. 38, 515 A.2d 311 (1986); Commonwealth v. Taylor. As we noted in Taylor:

The [Pennsylvania] Supreme Court has said that Section 4304 was drawn broadly to cover a wide range of conduct in order to safeguard the welfare and security of children. It is to be given meaning by reference to the common sense of the community and the broad protective purpose for which it was enacted. Commonwealth v. Mack, 467 Pa. 613, 618, 359 A.2d 770, 772 (1976).

324 Pa.Super. at 426-27, 471 A.2d at 1231.

Parents have a responsibility to advance the physical, mental, and emotional health of their children, and extreme acts or grave omissions which adversely affect a child may come within the scope of the statute. See Card-well. This will sometimes include actions which the parent allegedly undertook in order to punish the child for bad behavior. See Commonwealth v. Moore, 261 Pa.Super. 92, 395 A.2d 1328 (1978). In the instant case, we cannot say that the jury erred by finding that appellants breached a statutory duty to protect their daughter April. April was a very young child when the appellants flung her, struck her, and burned her in the manner graphically described by the Commonwealth witnesses. One may conclude that these incidents were traumatic and created a danger of lasting physical harm notwithstanding the fact that April fortuitously did not sustain serious injury. In short, a jury could find that appellants’ acts were so contrary to “the common sense of the community” as to rise to the level of criminal liability.

Appellants also contend that by failing to provide a duty of protection, they did not knowingly endanger April’s welfare as required by section 4304. The jury reasonably could have found otherwise based upon an assessment of the Commonwealth’s evidence and of appellants’ own testimony at trial. Although defense counsel presented evidence that appellants were of low intelligence and had repeatedly experienced difficulties with raising their children, both Ogin and Wildoner took the stand and insisted that they were capable of fulfilling their parental responsibilities. Appellants denied that they had ever mistreated April in the ways described by the Commonwealth witnesses. They testified that they believed it was wrong to beat children, and that they never disciplined their children except by hitting them on the rear end without great force or by taking away their toys. The jury could have credited the Commonwealth’s version of the events, and could have believed so much of the defense testimony as indicated that appellants knew that the conduct in question posed a threat to a child’s welfare. Thus, the elements of the crime of endangering the welfare of children were established.

III.

Appellants’ final argument is that even if their actions would otherwise have been criminal, they are entitled to the defense of justification based upon their status as the victim’s parents. We agree with appellants that parents may not ordinarily be prosecuted for disciplining their children. We do not agree that under the facts of this case appellants’ actions were justified.

It is well-established that parents have a privilege to subject their children to corporal punishment when the children misbehave. See, e.g., Commonwealth v. Moore, 261 Pa.Super. at 97, 395 A.2d at 1330; N.B. v. Commonwealth, Dep’t of Pub. Welfare, 107 Pa.Commw. 26, 527 A.2d 623 (1987). This is so because our society recognizes the primary role of parents in preparing children to assume the obligations and responsibilities of adults, and because there is a need to ensure that the state through its criminal justice system does not unduly interfere with the private realm of family life. Nevertheless, there are limits regarding the type and severity of the corporal punishment which a parent may impose. The law long ago abandoned the view that children are essentially chattels of their parents without independent legal rights. See Commonwealth v. Ludwig, 366 Pa.Super. 361, 375, 531 A.2d 459, 466 (1987) (en banc) (Tamilia, J., concurring). Moreover, it is now clear that child abuse is a serious and widespread problem, Commonwealth v. Allen, 506 Pa. 500, 509, 486 A.2d 363, 367 (1984), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985); the state has a powerful interest in preventing and deterring the battering of children.

In 1972, the legislature balanced these competing interests by adopting section 509 of the Crimes Code. This section provides in relevant part:

The use of force upon or toward the person of another is justifiable if:

(1) The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor or a person acting at the request of such parent, guardian or other responsible person and:
(i) the force is used for the purpose of safeguarding or promoting the welfare of the minor, including the preventing or punishment of his misconduct; and
(ii) the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.

18 Pa.Cons.Stat.Ann. § 509 (Purdon 1983). We conclude that appellants’ conduct was not authorized by this provision.

Appellants contend that the Commonwealth’s evidence showed that they were attempting to discipline April for her misconduct on each of the occasions when they used force. We will assume arguendo that section 509(l)(i) was satisfied. We must therefore consider whether or not the force which appellants employed was in excess of that permitted by section 509(l)(ii). Section 509(l)(i) and (ii) involve independent requirements and appellants are not entitled to a justification defense unless they complied with both standards. This point is underscored by the commentary to section 3.08 of the Model Penal Code. Model Penal Code section 3.08 is virtually identical to Pennsylvania Crimes Code Section 509 and it is the source from which Pennsylvania Crime Code Section 509 was derived. The commentary states:

The law has universally allowed a privilege for the exercise of domestic authority, sometimes articulated in the penal statutes, though often without a definition of its scope. Older decisions tended to treat the motive of the actor as decisive, though extreme measures naturally could be taken to refute benevolent intent. Modern authority has tended towards a more objective test of moderation. The Model Code formulation requires a true parental purpose, while forbidding extreme force however well-intentioned is its use.

Model Penal Code and Commentaries § 3.08 commentary at 140 (Official Draft and Revised Comments 1985) (footnotes omitted). It is thus clear that a defendant’s actions are not legally justified simply because he may sincerely believe that the best way of safeguarding or promoting a child’s welfare is to inflict a cruel and patently excessive punishment.

After considering appellants’ conduct in light of the standard established by section 509(l)(ii), we hold that the evidence is sufficient to support a finding that appellants exceeded their privilege to administer corporal punishment. We note that when applying the justification statute, the court should focus not only on the degree of force exerted by the parent but also on the age and the physical and mental condition of the child who has been disciplined. See Model Penal Code and Commentaries § 3.08 at 140 n. 2 (citing Restatement (Second) of Torts § 150 (1965)). April was two years old or younger when her mother flung her into a building, when her mother struck her with such force that she fell backward into a brick wall, and when her father pushed hot food in her face. Under these circumstances, a jury could have fairly concluded beyond a reasonable doubt that appellants used force which was known to create at least a “substantial risk of ... extreme pain or mental distress” within the meaning of section 509(l)(ii). Therefore, appellants’ defense of justification was properly rejected.

Judgments of sentence affirmed.

CAVANAUGH, J., files concurring opinion.

CAVANAUGH, Judge,

concurring:

Under the evidence in this case I am constrained to concur in the result reached by the majority. I am concerned however that this case be read as a precedent for facile resort to the criminal justice system as a vehicle for enforcement of a prosecutor’s personal notions as to parental responsibility.

If the conduct engaged in by appellants is not condoned by the professionals within our agencies that promote the welfare of children, the means by which that conduct is best altered is not through the imposition of criminal convictions. While the evidence in this case is strongly suggestive that appellants are not fully suited to their parental tasks, I believe that other forms of legal intervention are available to protect the interest of the juveniles involved before invocation of the criminal law and its unavoidably devastating effect on the hope or resolving appellants’ problems in parenting.

Indeed, the appellants were the subjects of frequent intervention by both social workers with the child welfare agency and police personnel after numerous, and often anonymous, reports of child abuse were made regarding them. After a year of reports and visits to the appellants’ household at all hours of the day and night by social workers, accompanied by the chief of police, the agency determined that the reports were unfounded. The pattern of calls to the child abuse hotline, followed by immediate visits which revealed no evidence of abuse, raises considerable suspicion regarding the intent with which the calls were made and the atmosphere in which the appellants were prosecuted.

The record reveals that all three of appellants’ children were removed from the home upon their arrest on the instant charges. The children’s wellbeing, if threatened by living with their parents, was protected through the system that is designed to safeguard their interests. Less than ideal circumstances, resulting from poverty and mental deficiency of their parents, may have caused the children of Debby Ogin and Glynn Wildoner to be among those considered to be less privileged by our society. However, branding her parents with criminal convictions will do no more to improve April’s chances of happiness in childhood and of normal development as an adjusted and secure adult than would a conviction of April herself for being a part of the family unit.

      . 18 Pa.Cons.Stat.Ann. § 2701 (Purdon 1983).

      . 18 Pa.Cons.Stat.Ann. § 4303 (Purdon 1983).

      . Appellant Ogin was acquitted of charges stemming from two other alleged incidents of child abuse.

      . We note that the trial judge made the following observation at sentencing concerning appellant Wildoner’s treatment of his daughter.
      THE COURT: It is not a good thing that happened, needless to say. It should never have been done with a two year old child. The child could have been, in theory, harmed as far as her sight is concerned, or burned in some way by this hot plate of spaghetti being thrust into her face. It was a terrible act. Apparently it was because the child wouldn’t sit. So, if the child doesn't sit, then it gets spaghetti thrown in its face. It makes no sense at all.
      The overall purpose of all these laws is to protect young children who are completely helpless and defenseless. People must understand you cannot do this to someone who cannot even protect themselves.
      Sentencing Hearing Record at 32.

      . This approach is in accord with the majority rule in American jurisdictions.
      Some courts have taken the view that the test of illegality is the infliction of permanent injury by means of the punishment administered, or that it proceeded from malice and was not in the exercise of a corrective authority, and they have accordingly held that a parent, or one in loco parentis, is not criminally liable merely because the punishment inflicted was excessive. The decided preponderance of authority, however, is that a parent, or one in loco parentis, in punishing children, must not exceed the bounds of moderation, and must not be cruel or merciless, and that any act of punishment in excess of such limits is unlawful, and this rule has been incorporated in some statutory provisions.

        Annotation, Criminal Liability for Excessive or Improper Punishment Inflicted on Child by Parent, Teacher, or One in Loco Parentis, 89 A.L.R.2d 396, 400 (1963) (footnotes omitted).


author: JOHNSON, Judge: CIRILLO, President Judge,

text:
    540 A.2d 556
    COMMONWEALTH of Pennsylvania v. William B. MAHANEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1987.
    Filed April 14, 1988.

      Arthur L. Jenkins, Jr., Norristown, for appellant.
    Mary MacNeil Killinger, Assistant District Attorney, Norristown, for Com., appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and JOHNSON, JJ.
   JOHNSON, Judge:

Following a trial by jury the appellant, William B. Mahaney, was found guilty of driving under the influence in violation of 75 Pa.C.S. § 3731(a)(1). Post-verdict motions were denied and a forty eight (48) hour to twenty three (23) month sentence was imposed. Appellant appeals from this judgment of sentence. We affirm.

On January 4, 1986 Officer Theodore McGinley received a call at 1:56 a.m. reporting an accident with injuries on West Ridge Pike, Limerick Township, Montgomery County, Pennsylvania. He arrived at the scene about a minute later. Appellant was standing with two state troopers, both of whom left after McGinley arrived. Their identity is unknown. There were no witnesses to the single car accident.

McGinley testified that appellant's speech was slurred, that he smelled of alcohol and was obviously off balance. Appellant admitted he had been drinking.

At 2:30 a.m. appellant was taken by ambulance to Sacred Heart Hospital for treatment of a cut over his right eye. McGinley remained at the scene to investigate the accident.

Sometime after midnight but before the accident, McGinley had observed a saw-horse barricade with flashing lights five to six feet off the road in the grass. After the accident he found this barricade, along with other debris, in the middle of the road. McGinley found skid marks leading off the road to the right, twenty feet west of the intersection of Ridge and Country Club Road. There were also skid marks through the place where the barricade had been, across Country Club Road, through a mailbox, across four traffic-lanes to the other side and into two cut-off telephone poles which were in the dirt. There was a trail of mud from the two poles back across Ridge Pike onto the premises at 165 West Ridge Pike. The road was otherwise dry.

Shortly before 4:00 a.m. Officer McGinley arrived at the hospital, arrested appellant for driving under the influence and obtained permission to test appellant’s blood for alcohol. Appellant submitted to the blood test in McGinley’s presence and the sample was taken to the police station by McGinley. Dr. Paul Schweda, Director of National Medical Services tested the sample and found the blood alcohol concentration to be .17 percent by weight.

According to appellant’s version of the facts he became intoxicated after the accident. While appellant was not sure of the exact time of the accident he assumed it to be around midnight. He was driving east on Ridge Pike when something crashed through his windshield causing him to lose control of his car. (It was later determined that it was the flashing sawhorse barricade). After the accident appellant moved the badly damaged car into a nearby parking lot to inspect it. He attempted to change a tire but did not have a lug wrench. He then walked to a friend’s house where he met Bruce Waters. Appellant and Waters left the house with a six-pack of beer. Waters took one beer and left to search for a tow truck. Appellant returned to the car and drank the other five beers over the next hour while waiting for Waters to return. In the meantime, Officer McGinley arrived on the scene. At trial, appellant admitted drinking the five beers and having two glasses of scotch with dinner, earlier in the evening. Appellant denied being under the influence at the time of the accident.

Appellant was found guilty of driving under the influence of alcohol. In this appeal appellant raises the following issues:

I. DID THE COURT BELOW ERR IN FAILING TO GRANT DEFENDANT’S MOTION FOR A DIRECTED VERDICT BECAUSE THE COMMONWEALTH FAILED TO PROVE THE CRIME OF OPERATING A MOTOR VEHICLE UNDER THE INFLUENCE OF ALCOHOL AS A MATTER OF LAW?
II. DID THE COURT BELOW ERR IN ALLOWING THE TESTIMONY OF AN EXPERT WITNESS WITH RESPECT TO BLOOD TEST RESULTS WHEN THE COMMONWEALTH FAILED TO PRODUCE THE MEDICAL TECHNICIAN WHO TOOK THE BLOOD TEST OR ESTABLISH THE CREDENTIALS OF THE TECHNICIAN BY INDEPENDENT EVIDENCE?
III. DID THE COURT BELOW ERR IN ALLOWING THE MEDICAL EXPERT TO TESTIFY ON THE ISSUE OF BLOOD TESTING WHEN NO PROPER FOUNDATION WAS LAID TO CONNECT THE TEST RESULTS TO THE TIME OF THE ACCIDENT?

Issues I and II both turn upon appellant’s contention that the Commonwealth failed to establish the time of the accident and thus failed to establish the elements of the crime. Therefore, we will discuss the two issues together. Appellant was convicted of Driving Under the Influence of Alcohol, 75 Pa.C.S. § 3731(a)(1) which provides:

§ 3731. Driving under the influence of alcohol or controlled substance
(a) Offenses defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving.

75 Pa.C.S. § 3731(a)(1). Thus, the Commonwealth must show the defendant to be (1) the operator of a motor vehicle when (2) under the influence of alcohol to the degree which renders him incapable of safe driving. Commonwealth v. Slout, 288 Pa.Super. 471, 432 A.2d 609 (1981). Appellant’s motion for a new trial and/or in arrest of judgment raised the issue of whether there was sufficient evidence to find appellant guilty of driving under the influence of alcohol, 75 Pa.C.S. § 3731.

An appellate court, in evaluating the sufficiency of the evidence, must determine whether, reviewing the entire record in the light most favorable to the Commonwealth as verdict winner and making all reasonable inferences in its favor, there was sufficient evidence to find every element of the crime beyond a reasonable doubt. Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718, cert. denied, 469 U.S. 963, 105 S.Ct. 361, 83 L.Ed.2d 297 (1984).

Circumstantial evidence alone can be sufficient to convict a defendant of a crime. Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). However, the constitutional requirements of proving guilt beyond a reasonable doubt must still be met. Commonwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003 (1980).

As to whether the Commonwealth presented sufficient evidence to sustain the conviction, we recognize that in finding appellant guilty of (1) operating a motor vehicle, (2) while under the influence of alcohol, 75 Pa.C.S. § 3731; Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980), it was within the province of the jury to believe “all, part, or none of the evidence.” Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984). Appellant cites the case of Commonwealth v. Lavery, 35 Pa.D. & C.3d 333 (1985) to support his contention that in the absence of evidence of the time at which an auto accident occurred, evidence that a defendant was operating the motor vehicle at the time of the accident and that he was legally drunk at the time of investigation does not establish a prima facie case of driving while intoxicated. After a thorough review of the trial record, the briefs and the trial court opinion, we agree with the trial court that in this case, contrary to Lavery, there was sufficient evidence from which a jury could infer the time of the accident, which is the only point at which appellant’s physical condition is relevant.

Here, we first have Officer McGinley’s observations upon arrival at the scene of the accident at 1:56 a.m. that appellant was visibly intoxicated as evidenced by appellant’s slurred speech, lack of balance, and odor of alcohol. Appellant admitted at this time that he had been drinking. Also, there was expert medical testimony consistent with a jury finding that appellant could have been under the influence of alcohol as early as 12:00 midnight. Next, the mere occurrence of appellant’s accident could be used to draw the inference that appellant was driving under the influence of alcohol. Commonwealth v. Fairley, 298 Pa.Super. 236, 245, 444 A.2d 748, 752 (1982). This was a one car accident. Appellant lost control of his vehicle under dry road conditions, hit a barricade that had been observed after midnight by Officer McGinley 6-8 feet off the side of the road, then skidded extensively across a four lane highway.

The record evidences two additional factors which we view as significant. One, the accident occurred on a routinely patrolled major roadway. Two, a large quantity of debris, including a large saw-horse barricade remained in the middle of the road when Officer McGinley arrived. Taken together these factors strongly suggest that the accident had just happened. This type of debris presented a major safety hazard and the frequent patrols would have already removed it if significant time had elapsed. The physical evidence present at the scene coupled with Officer McGinley’s observations of appellant’s intoxication at that time were strong indications that appellant was driving under the influence of alcohol when the accident occurred.

Finally, since the jurors were aware of appellant’s contention that he drank the alcohol after the accident because he was in pain and was worried, they were required to decide whether appellant’s testimony was credible. Id. “It is a basic tenet of our system of jurisprudence that issues of credibility are properly left to the trier of fact for resolution.” Commonwealth v. Arms, 489 Pa. 35, 39, 413 A.2d 684, 686 (1980) (citations omitted). Here, the jury chose to discredit appellant’s testimony as to when he first became intoxicated. This is a finding of credibility with which we as an appellate court will not tamper. Id.

Viewing the evidence in the light most favorable to the Commonwealth and drawing all such logical inferences therefrom, we conclude that the evidence is sufficient to support a finding of guilt on the charge of driving under the influence of alcohol.

Appellant’s remaining contention is that the trial court erred in allowing testimony concerning the blood alcohol test because the Commonwealth failed to establish the credentials of the technician who drew the blood and failed to produce the technician.

We have reviewed the trial court’s discussion of this issue and agree that 75 Pa.C.S. § 1547(c) and 28 Pa. Code § 5.24 and § 5.1 focus on the qualifications of the person performing the blood testing and the equipment used, not the technician who drew the blood. The qualifications of Dr. Schweda who performed the test and the suitability of the equipment he used were established at trial. (N.T. 10/1/86, at 36, 37, 39, 41, 42). The technician was qualified for his position by the hospital and withdrew the blood under police supervision. Under these facts, the only reason to call the technician who drew the blood would be to establish the chain of custody. However, as the trial court pointed out, when the police observe the technician drawing the blood, the Commonwealth is not compelled to call the technician. Commonwealth v. Arizini, 277 Pa.Super. at 40 n. 4, 419 A.2d at 650 n. 4 (1980). In this case Officer McGinley personally witnessed the technician’s drawing the blood and took immediate possession of the labeled blood. Therefore, there is no chain of custody problem here which would have necessitated the testimony of the technician.

Because we agree that sufficient evidence was presented for the jury to reach its decision that appellant was driving under the influence and that the inferences drawn follow directly from the facts presented, we affirm.

Judgment of sentence affirmed.

CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge,

dissenting:

I respectfully dissent. The Commonwealth’s evidence was insufficient to support the conviction and I would reverse.

The statute Mahaney was charged with violating required the Commonwealth to prove (1) that Mahaney was operating the vehicle, and (2) that while he was operating it, he was under the influence of alcohol to a degree that rendered him incapable of driving safely. One essential element of the Commonwealth’s case was not proven: that, at the time he was operating the vehicle, Mahaney was so impaired as to violate the statute. The Commonwealth was unable to prove beyond a reasonable doubt, either directly or by permissible inference, the necessary relation between when Mahaney was driving and when he consumed the alcohol.

Mahaney did not challenge the admissibility of his pre-Miranda admission that he was operating the vehicle at the time of the accident nor his post-arrest statement that he had been drinking, thereby waiving these issues for purposes of appeal. We note, however, that until the Commonwealth established the commission of a crime through independent evidence, Mahaney’s admissions could not have been used against him. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). In a similar case factually distinguishable from the case at bar, Commonwealth v. DeLeon, 276 Pa.Super. 36, 419 A.2d 82 (1980), the admission of such statements was the dispositive issue. Unlike DeLeon, the facts in this case do not strongly support the inference of an unlawful act as opposed to an accident. I question whether the Commonwealth was able to make out a prima facie case without using Mahaney’s admissions. However, in the posture before us on appeal, I have no doubt that the Commonwealth was unable to prove the crime charged beyond a reasonable doubt.

The majority correctly notes that circumstantial evidence is sufficient for a criminal conviction. Inferences are circumstantial evidence. However, inferred facts must follow beyond a reasonable doubt from proven facts. Commonwealth v. Sojourner, 268 Pa.Super. 472, 408 A.2d 1100 (1979). In this case there are too many variables and too few corroborating facts in the evidence to support the inferences necessary to a verdict for the Commonwealth. Mahaney’s conviction rests on an inference that he was intoxicated at the time he was driving the car, specifically at the time of the accident. However, the facts proven do not lead inescapably to this inference and, in fact, do not support it. Therefore, it was not possible for the jury to convict Mahaney beyond a reasonable doubt.

The Commonwealth proved that the accident had occurred by 1:56 a.m. and that it was unlikely to have occurred earlier than midnight. There were no witnesses to the accident or to the manner in which the car was operated. Mahaney admitted to driving the vehicle at the time it was involved in the accident, thus satisfying the first element of the crime. He further admitted that he had consumed two scotches with dinner at approximately 6:30 the previous evening. A blood test taken at 4:00 a.m. showed a blood alcohol level of .17 percent which the Commonwealth’s expert equated with consumption of five to nine ounces of alcohol. It was the expert’s testimony that a blood alcohol level of .17 percent would render the operation of a motor vehicle unsafe. Mahaney did not dispute that he was intoxicated at 2:00 a.m. The foregoing comprised all of the relevant direct evidence presented by the Commonwealth.

The record supports a finding that the accident occurred sometime after the post-midnight patrol of Officer McGinley and before 1:56 a.m. when McGinley was called to the scene. The majority finds an inference that the accident happened shortly before McGinley’s arrival and bases this on two facts: that the highway on which the accident happened was routinely patrolled and that debris remained in the roadway. However, this inference does not follow from the evidence. Officer McGinley, whose job included the routine patrolling of that roadway on the evening in question, made only one pass down the highway, shortly after midnight. There is no indication in the record as to any other patrolling done by any other officer or department. Therefore, if the highway was “routinely patrolled”, the record shows that routine to have encompassed at least a two hour time frame. Further, since it is the police investigating an accident who arrange for accident debris to be removed, the fact that debris remained until after police arrived is not remarkable and only further weakens the argument that the highway was routinely patrolled. Neither of these facts cited by the majority, nor the inference claimed as arising from them, do anything to narrow the nearly two hour range of time established by the record during which the accident could have happened.

To leap from this point to a finding that the issue of whether Mahaney was under the influence while he was operating the automobile is one of credibility effectively substitutes a determination of credibility for proof beyond a reasonable doubt. To say, as the majority does, that “there was expert medical testimony consistent with a jury finding that appellant could have been under the influence of alcohol as early as 12:00 midnight” (emphasis added) evidences speculation, not inference, and cannot legally support a finding of guilt where neither physical condition at the critical time nor the time of the violative act is proven beyond a reasonable doubt. Similarly, the inference of intoxication the majority claims, without citing any support, from the “mere occurrence of appellant’s accident” is not based on proven facts. To find these sufficient to meet the requisite standard of proof in a criminal matter is to improperly raise a determination of credibility coupled with an arguably questionable permissible inference to the level of conclusive proof and relieve the Commonwealth of its burden.

It is undisputed that Mahaney did not drink after 2:00 a.m. and, therefore, according to the rate of dissipation of approximately .02 percent per hour testified to by the expert, the Commonwealth in entitled to the inference that Mahaney’s blood level at 2:00 a.m. was at or about .21 percent. Again according to the expert’s testimony, the two scotches with dinner would have been completely dissipated by 12:30 p.m. and could not have accounted for any part of Mahaney’s blood alcohol level at 2:00 a.m. Therefore, the Commonwealth proved by inference no more than the fact that Mahaney consumed more alcohol than the admitted two scotches with dinner. Mahaney confirmed this in his testimony that after the accident and while waiting for help, he consumed four and one-half twelve ounce beers given to him by a friend whose help he sought following the accident. This friend corroborated Mahaney’s testimony by confirming that he gave Mahaney the beer after the accident and that Mahaney was not intoxicated when he came to the door shortly after the accident.

While the jury, as it was free to do, obviously did not believe Mahaney’s testimony that he drank after the accident, the Commonwealth relied solely on Mahaney’s admissions and produced no evidence to show that he consumed any alcohol at any time. Consumption of the admitted number of beers on an empty stomach would, according to the expert, result in a rapid absorption which would be complete within two hours. Therefore, if the jury accepted Mahaney’s admission of that consumption as it apparently did, it must follow that without knowing when he drank, it was impossible for the jury to allow for any attendant rise in blood alcohol level that might have accounted for some part of the inferred .21 percent level at 2:00 a.m.

In my dissent in Commonwealth v. Slingerland, 358 Pa.Super. 531, 518 A.2d 266 (1986), I observed:

[B]ecause of the “commonly known fact that the percent of blood alcohol is not static but varies constantly according to the time elapsing after initial ingestion,” Commonwealth v. Kostra, 349 Pa.Super. 89, 99-100, 502 A.2d 1287, 1292 (1985), there was no reliable way for the jury to determine beyond a reasonable doubt from the test results what the defendant’s blood-alcohol level was when he drove. Id., 358 Pa.Superior Ct. at 537, 518 A.2d at 269.

Here, as in Slingerland, “no one observed the defendant driving and the only evidence pertaining to that time period was the fact that he had an accident, which by itself was not sufficient to relate his blood-alcohol level back to the time of operation.” Id., 358 Pa.Superior Ct. at 540, 518 A.2d 271 (Cirillo, P.J., dissenting). See also Commonwealth v. Griscavage, 336 Pa.Super. 141, 485 A.2d 470 (1984); Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980).

The Commonwealth proved only that his blood alcohol level two or more hours after the the accident was sufficient to impair his driving had he been operating a motor vehicle at that time. The Commonwealth did not use its expert to show the probable level of intoxication at any time other than 4:00 a.m.; therefore, Mahaney’s probable level of intoxication during the range of time established for the accident was not only not proven, there was no evidence offered on that point. Proof of his level of intoxication at the time of investigation is not proof beyond a reasonable doubt of his intoxication at the time he was driving.

Unlike the situation in Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986), there is in this case no strong contemporaneous evidence corroborating the defendant’s operation of the vehicle while intoxicated. This fallacy in the Commonwealth’s case is fatally compounded by the Commonwealth’s failure to prove when the accident happened. This is the only point at which Mahaney’s condition is relevant and, since no more than a range of time was established, it was impossible to conclude beyond a reasonable doubt that Mahaney was sufficiently impaired at the critical time.

The Commonwealth offered no corroborating evidence that would entitle it to the inference that Mahaney drank before driving. Commonwealth v. Bruder, 365 Pa.Super. 106, 528 A.2d 1385 (1987) (allocatur pending). Similarly, there are no proven facts from which it can, beyond a reasonable doubt, be inferred that Mahaney was intoxicated when the accident happened. This is pure speculation and is an improper basis for the jury’s verdict. A verdict may not be supported where the jury must guess at any essential fact in favor of a party having the burden of proving it. DiGiannantonio v. Pittsburgh R. Co., 402 Pa. 27, 166 A.2d 28 (1960); Cuthbert v. Philadelphia, 417 Pa. 610, 209 A.2d 261 (1965). This is especially true where the burden of proof is greater than by the preponderance of evidence. Koeune v. State Bank of Schuylkill Haven, 134 Pa.Super. 108, 4 A.2d 234 (1939).

The circumstantial evidence presented in this case proves only appellant’s intoxication at the time of investigation, which Mahaney freely admits, not at the time of the accident. The range of approximately two hours established by the Commonwealth for the occurrence of the accident required the jury to guess as to an essential element of the Commonwealth’s case, namely, whether appellant was under the influence while he was operating the vehicle. The fact that the jury disbelieved Mahaney’s testimony and that of his friend does not prove beyond a reasonable doubt that appellant was sufficiently impaired before the accident.

Contrary to the standard in Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980), cited by the trial court, the nexus between consumption of alcohol and operation of the vehicle required to support a violation of 75 Pa.C.S. § 3731(a)(1) was not established in this case. The Commonwealth proved conclusively only that Mahaney was too intoxicated at the time of the investigation to drive safely. However, since the Commonwealth had the burden of proving that while he was operating the vehicle Mahaney was under the influence of alcohol to a degree that rendered driving unsafe, in order to do so it must prove, beyond a reasonable doubt, when he was driving. The majority’s conclusion that the Commonwealth was entitled to the inference that Mahaney was driving while intoxicated clearly reaches well beyond the proven facts and logical inferences therefrom.

Without proving either the time of consumption or the time of operation, the Commonwealth could not prove beyond a reasonable doubt the second element of the offense charged. Even viewed in the light most favorable to the Commonwealth, the evidence in this case is just as consistent with innocence as it is with guilt. Because the Commonwealth could show only that the accident occurred between midnight and 2:00 a.m. and because it could not prove, even by inference, at what point in time Mahaney was drinking, nor how intoxicated he might have been at any given point within that time period, the Commonwealth’s burden was not satisfied and the conviction should be reversed.

      . The issue before this Court is whether the court erred in denying Appellant’s post-verdict motion in arrest of judgment.

      . Accepting the expert’s testimony that .17 percent represented five to nine ounces of alcohol and assuming that one scotch contained one ounce, each of the drinks Mahaney admitted having earlier in the evening would have increased his blood alcohol level between .018 percent and .034 percent when fully absorbed. On a full stomach, such as Mahaney would have had after dinner, these drinks would have been fully absorbed by 10:00 p.m. when his blood alcohol level would have ranged between .036 percent and .068 percent. Using a factor of .02 percent dissipation per hour, Mahaney’s blood alcohol level attributable to these drinks at midnight could have been no more than .008 percent.