author: MONTEMURO, Judge.

text:
    680 A.2d 1181
    HANOVER PLUMBING SUPPLY, INC., Appellee, v. Lynn RUSSELL and Vicki Russell, Appellants.
    Superior Court of Pennsylvania.
    Argued June 12, 1996.
    Filed Aug. 7, 1996.

      Judith K. Morris, Hanover, for appellants.
    John M. Crabbs, Hanover, for appellee.
    Before TAMILIA, JOHNSON and MONTEMURO, JJ.

       Retired Justice assigned to Superior Court.

   MONTEMURO, Judge.

This is an appeal from the Order of the Court of Common Pleas of York County denying Appellants’ request for liquidated damages under 42 Pa.C.S. § 8104.

Appellant Lynn Russell (Mr. Russell), doing business as Russell Mechanical Contractors (Russell Mechanical), opened a company account with Hanover Plumbing Supply (Hanover Plumbing) with a line of credit of $5,000.00. The account was to be used for purchases of equipment and supplies for Russell Mechanical. Over time, the account accumulated arrearages of over $40,000.00. On June 16, 1993, Hanover Plumbing obtained a judgment against Mr. Russell and his wife, Appellant Vicki Russell (Mrs. Russell), in the amount of $42,984.08.

In September of 1993, the Russells went to the Bank of Hanover and Trust Co. (Bank), seeking a loan to pay off the judgment entered against them. As a condition of the loan, the Bank required Hanover Plumbing to guaranty the loan. Hanover Plumbing agreed, and by letter dated September 21, 1993, Hanover Plumbing notified the Russells that receipt of $44,239.73 would constitute payment in full and that they would issue a credit on the Russells’ company account in the amount of $1,941.78, against which Russell Mechanical could charge future purchases. On September 22, 1993, the Russells signed a promissory note and a mortgage for $44,239.73, and the Bank issued a check payable to the Russells and Hanover Plumbing jointly. The Russells endorsed the Bank’s check, and $44,239.73 in cash was given to Hanover Plumbing, who then issued a credit to the Russell Mechanical account.

At this point, the Russells were under the assumption that the judgment against them was satisfied and that Hanover Plumbing was going to remove the judgment from the docket. Hanover Plumbing, on the other hand, was under the assumption that the judgment was not satisfied, as it was required to guaranty the loan used to pay the balance on the account.

It was not until March of 1995 that the Russells discovered that the judgment had not been removed. On March 16,1995, they forwarded a written request for satisfaction to Hanover Plumbing. No additional money was tendered with this letter.

On May 15, 1995, the Russells filed a petition for liquidated damages against Hanover Plumbing for failure to enter satisfaction. The judgment was eventually marked satisfied on July 7, 1995, without any additional payment by the Russells. A hearing on the liquidated damages petition was held on July 24, 1995. In an Order dated July 31, 1995, the court found that Hanover Plumbing’s contingent liability on the loan from the Bank did not relieve it of its responsibility to enter the satisfaction of judgment. It also found that the Russells had not triggered the statutory remedy for liquidated damages, as they failed to tender the fee for the entry of satisfaction with their written request for satisfaction. This appeal followed.

Section 8104 of Title 42 is a punitive statute aimed at encouraging the timely removal of satisfied judgments from the court dockets. It provides:

§ 8104. Duty of judgment creditor to enter satisfaction
(a) General rule. — A judgment creditor who has received satisfaction of any judgment in any tribunal of this Commonwealth shall, at the written request of the judgment debtor, or of anyone interested therein, and tender of the fee for entry of satisfaction, enter satisfaction in the office of the clerk of the court where such judgment is outstanding, which satisfaction shall forever discharge the judgment.
(b) Liquidated damages. — A judgment creditor who shall fail or refuse for more than 30 days after written notice in the manner prescribed by general rules to comply with a request pursuant to subsection (a) shall pay to the judgment debtor as liquidated damages 1% of the original amount of the judgment for each day of delinquency beyond such 30 days, but not less that $250 nor more than 50% of the original amount of the judgment. Such liquidated damages shall be recoverable pursuant to general rules, by supplementary proceedings in the matter in which the judgment was entered.

42 Pa.C.S. § 8104.

The entitlement to liquidated damages is dependent upon the receipt of satisfaction by the judgment creditor. First Nat'l Consumer Discount Co. v. Fetherman, 515 Pa. 85, 95, 527 A.2d 100, 104 (1987) (citing Busy Beaver Building Ctr., Inc. v. Tueche, 295 Pa.Super. 504, 442 A.2d 252 (1981)). Satisfaction requires payment in full of the underlying debt. Id. Therefore, we must determine whether receipt of the proceeds of the loan from the Bank was payment in full, despite Hanover Plumbing’s part as guarantor of that loan.

As previously mentioned, the Russells sought to satisfy the judgment against them by obtaining a loan in the amount of $44,239.73. However, before approving the loan, the Bank required Hanover Plumbing to guaranty the loan. Hanover Plumbing was not forced to co-sign this loan, rather it had the choice of guarantying the loan and receiving the cash immediately or maintaining its current position with hopes that the Russells would secure the cash by some other means.

Hence, we find that Hanover Plumbing’s decision to act as guarantor does not alter the effect of the receipt of $44,239.73 in cash, an amount in excess of the original judgment for $42,984.08. Receipt of cash sufficient to cover the full value of the judgment is payment in full. As for the guaranty, we find that Hanover Plumbing voluntarily assumed the position as a guarantor of a loan secured by a mortgage. Should the Russells default on this loan and Hanover Plumbing be called to fulfill its obligation, Hanover Plumbing will step into the shoes of the Bank and will have the right to seek a judgment against the Russells. Therefore, we find that the trial court did not err in finding the judgment satisfied.

Based on this determination, we must now decide whether the Russells are entitled to liquidated damages for Hanover Plumbing’s delay in entering the satisfaction of judgment. As previously noted, in order to have triggered the statute for liquidated damages, the Russells must have submitted a written request for satisfaction to the judgment creditor and must have tendered the fee for the entry of the satisfaction. There is no question that the Russells made a proper written request to Hanover Plumbing. The issue is whether they properly tendered monies to cover the filing fee.

Hanover Plumbing argues, and the trial court agreed, that the Russells failed to tender the fee, as they did not include payment with their written request. The Russells, however, argue that Hanover Plumbing received excess monies in September of 1993, and that Hanover Plumbing should have deducted any necessary filing fee from this amount. They further argue that the failure to do so results in the waiver of this defense.

While we acknowledge the fact that Hanover Plumbing received cash in excess of the original judgment which it could have used toward payment of the filing fee, mere possession of these funds was insufficient to satisfy the requirement that the Russells tender the filing fee for the entry of satisfaction of judgment. Although the statute does not require the filing fee to be tendered simultaneously with the request for satisfaction, we believe that it must be clear that the fee was actually tendered. Therefore, the Russells needed to enclose payment with their written request for satisfaction or, at least, to direct Hanover Plumbing to deduct any fee from the excess funds it received.

Accordingly, the Order of the trial court is affirmed.

      . A review of the record reveals that the original judgment was for $42,984.08 and that Hanover Plumbing received $44,239.73. At the very least, it received an excess of $1,255.65. More notably, Hanover Plumbing voluntarily waived three months of service charges totalling $1,941.78 and credited the Russells' account for this amount. The Russells were then free to charge purchases against this account.


source: Caselaw Access Project

author: POPOVICH, Judge.

license: Public Domain

text:
    680 A.2d 1184
    COMMONWEALTH of Pennsylvania, Appellee, v. Raymond CHILDRESS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 1, 1996.
    Decided June 26, 1996.
    Reargument Denied Sept. 3, 1996.

      Sally A. Frick, Pittsburgh, for appellant.
    Scott A. Bradley, Assistant District Attorney, Pittsburgh, for appellee.
    Before POPOVICH, EAKIN and HESTER, JJ.
   POPOVICH, Judge.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Allegheny County following appellant’s conviction on four counts of aggravated assault and one count of criminal conspiracy. Herein, appellant contends the following: 1) He was denied due process when the trial court denied his request to sever his trial from co-defendant William “Ricky” Boyd’s trial; 2) The trial court erred in admitting certain evidence because it was so expansive and prejudicial as to invalidate a fair trial; 3) The trial court erred in restricting his cross-examination of a Commonwealth witness; 4) The trial court erred in permitting Commonwealth witnesses Tom Easley, Kevin Williams and Kelly Bell to testify that their plea agreements with the federal government contained a provision that they would testify truthfully; 5) Extrajudicial remarks made by the trial judge during trial adversely affected his fight to a fair trial; and 6) The trial judge abused his discretion by sentencing him improperly in the aggravated range. We affirm.

The trial court summarized the facts in this case as follows:

Beginning in 1987, [appellant’s] co-defendant, William “Ricky” Boyd, was the leader of a narcotics trafficking organization which included Childress, Kelly Bell and Will Smith among his inner circle. Members of the organization possessed firearms and used violence to further the aims of their narcotics business. In early 1990, Boyd’s organization had a conflict with a rival organization headed by Eric “E-man” Jefferies. Other members of the Jefferies gang included Tom Easley, Ron Ashby, Terrell Bush and George Hilliard.
In the spring of 1990, Boyd learned that Eric “E-man” Jefferies had been purchasing cocaine from individuals other than him. In order to teach Jefferies a lesson for this “disloyalty,” Boyd and Bell “ripped off’ Jefferies for a large amount of cocaine. This episode prompted a full fledged turf war between the Boyd and Jefferies organizations.
In the early morning hours of December 29, 1990, Ron Ashby, a member of the Jefferies organization, shot William Boyd in the back outside of the Hollywood Club in Home-wood. From this point forward, Bell, Childress and Will Smith began actively seeking members of the Jefferies organization to retaliate for the shooting of Boyd. As a part of this effort, Bell enlisted the help of his jailhouse friend, Kevin Williams.
On December 30, 1990, Bell, Childress, Williams and Smith went to the apartment of George Hilliard, another member of the Jefferies organization. Bell fired several shots through Hilliard’s door, but no one was injured. Immediately thereafter, Bell, Childress, Williams and Smith went to visit Boyd in the hospital. Boyd was informed about the shooting that day. Boyd instructed the foursome to “keep taking care of business,” i.e., to continue to seek out and shoot anyone from the Jefferies organization. William Boyd was released from the hospital on January 4, 1991.
During the evening of January 8, 1991, Boyd and Childress went to the home of Kevin Williams and picked him up. There, in private before they left, Boyd offered Williams $5000 to kill Eric Jefferies and his associates. Boyd and Childress then took Williams into the car and drove around Lawrenceville, East Hills and Penn Hills pointing out to Williams the different homes and apartment buildings in which Jefferies and his associates lived.
On January 11, 1991, Boyd and Williams staked out the residence of Jefferies in Penn Hills.... While Boyd was taking his turn as the “lookout,” Tom Easley, in his car, entered the driveway and parked. Boyd opened fire on Easley, hitting him several times. Boyd and Williams then drove away.
On January 22, 1991, Boyd and Williams returned to the Hilliard residence. After staking out the apartment for several hours, they saw several individuals getting into a car that they recognized as being Hilliard’s. Williams and Boyd both shot at the vehicle, shooting three men and a child.
[Appellant] was arrested on December 28, 1992, and was charged with one count of criminal conspiracy, one count of violation of the Uniform Firearms Act and four counts of aggravated assault. Following a trial by jury, [appellant] was found guilty on the conspiracy and aggravated assault charges. He was acquitted on the firearms charge. [This appeal followed.]

Appellant’s first allegation is that he was denied due process when the trial court denied his request to sever his trial from that of his co-defendant William Boyd. We disagree.

“It is well established that a motion for severance is addressed to the sound discretion of the trial court, and that its decision will not be disturbed absent a manifest abuse of discretion.” Commonwealth v. Jones, 530 Pa. 591, 610 A.2d 931, 936 (1992). Where, as was the case here, the crimes charged grew out of the same acts and much of the same evidence is necessary or applicable to all defendants, joint rather than separate trials are to be preferred. Commonwealth v. Thomas, 346 Pa.Super. 11, 498 A.2d 1345 (1985). Severance may nevertheless be proper where a defendant can show that he will be prejudiced by a joint trial. Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991). See Pa.R.Crim.P. 1128.

Appellant argues that his motion to sever should have been granted because his own defense was antagonistic to Boyd’s defense, and, accordingly, he was prejudiced by the joint trial. We disagree.

Although the possibility of conflicting defenses is a factor to be considered in deciding whether to grant severance, it is clear that more than a bare assertion of conflict is required .... [T]he mere fact that there is hostility between defendants, or that one may try to save himself at the expense of another, is in itself not sufficient grounds to require separate trials. Further, defenses become antagonistic only when the jury, in order to believe the essence of testimony offered on behalf of one defendant, must necessarily disbelieve the testimony of his co-defendant.

Jones, 610 A.2d at 936 (citations omitted).

Applying these principles to the present case, we conclude that the essence of Boyd’s defense was one of his own non-participation in the crime rather than the involvement of appellant. At trial, Boyd’s defense was one of alibi while appellant relied on his presumption of innocence. Boyd’s alibi witnesses testified in support of Boyd’s alibi defense and did not in any way implicate appellant. It was not even alleged by Boyd that appellant was present at the shootings. Accordingly, we find that appellant and his co-defendant’s defenses were not antagonistic to one another. It was not necessary for the jury to disbelieve the testimony offered on behalf of appellant in order to believe the testimony of Boyd, or vice verse. Therefore, appellant was not entitled to severance on this basis.

Appellant also argues that his motion for severance should have been granted because of the “spillover effect” of the evidence admitted against Boyd. We disagree.

Appellant and Boyd were charged with conspiracy. Almost all of the evidence presented at trial pertained to both of the defendants rather than just one. A severance would not have insulated appellant from most of the evidence presented at trial. Although appellant argues that a number of conversations and statements made by Boyd which were outside the scope of the conspiracy were admitted at trial, we find that any prejudice which may have resulted was cured by the lower court’s jury instruction that “although there are two defendants, you should consider each defendant separately as if he were on trial on his own.” N.T. 4/26/94 pp. 1251-1252.

In addition, we note that the trial in this case was a lengthy one. It consisted of ten days of testimony and argument before a verdict was reached. Forty-four witnesses testified at trial and a large record was produced. “To have conducted separate trials for each defendant would have placed a heavy burden upon the judicial system as well as the public. Accordingly, since appellant cannot show the level of prejudice required for us to find that the trial court abused its discretion in denying his motion for severance, this claim must fail.” Jones, 668 A.2d at 502.

Appellant’s next contention is that the trial court erred in admitting evidence which was so expansive and prejudicial as to invalidate a fair trial. Specifically, he alleges that the trial court erred in permitting the prosecutor to make references to his involvement in a “drug organization” which was ran by Boyd. Appellant argues that any such references were prejudicial because he was not charged with “dealing drugs.” We note that appellant has failed to identify specifically which comments or evidence he found to be improper. However, after a careful review of the record, we find that any such references to appellant’s involvement in Boyd’s “drug organization” were properly admitted to establish motive and to show the chain or sequence of events which became a part of the history of the case and formed a part of the natural development of the facts. See Commonwealth v. Rogers, 419 Pa.Super. 122, 615 A.2d 55 (1992) (general rule is that evidence of other offenses are inadmissible, but such evidence is legally relevant when it has the tendency to establish motive); Commonwealth v. Murphy, 346 Pa.Super. 438, 499 A.2d 1080 (1985) (evidence admissible to show chain or sequence of events). We further note that the lower court did not abuse its discretion in concluding that the probative value of the “drug organization” evidence outweighed any tendency to prejudice the jury. See Commonwealth v. Scarfo, 416 Pa.Super. 329, 611 A.2d 242 (1992) (in determining whether to admit evidence of other crimes, the trial court must balance the probative value of the evidence against its prejudice). Finally, any prejudice which may have resulted because of the admission of evidence regarding appellant’s involvement in Boyd’s “drug organization” was cured by the trial court’s detailed cautionary instructions providing the jury with the limited purposes for which such evidence could be used. N.T. 4/14/94 pp. 111-114; N.T. 4/26/94 pp. 1277-1279.

Appellant’s next argument is that the trial court erred in restricting his cross-examination of Commonwealth witness Kevin Williams regarding his attempted escape from the Indiana County Jail in July of 1993. Appellant argues that Williams’ attempted escape was relevant to his credibility as a witness because it showed that “he, in effect, lied to authorities in executing his plea agreement because he then used every means to escape once he was in federal custody.” Appellant’s Brief p. 21. We find this claim meritless.

The scope and manner of cross-examination of a ■witness are within the discretion of the trial judge whose decisions will not be overturned absent an abuse of discretion. Commonwealth v. Toro, 432 Pa.Super. 383, 638 A.2d 991 (1994). Here, appellant was prevented from attacking Keith Williams’ character by eliciting testimony on cross-examination concerning his alleged attempted prison escape. “A witness’s credibility may not be impeached by prior acts of misconduct which have not led to a conviction.” Commonwealth v. Parker, 387 Pa.Super. 415, 564 A.2d 246, 250 (1989) (citation omitted). The United States Marshals conducted an investigation into Williams’ alleged attempted escape. However, no charges were ever filed against him, and he was never convicted for the alleged attempted escape. Moreover, we note that the purported evidence of misconduct was entirely collateral and had the potential to cause confusion to the jury. See Commonwealth v. Tyler, 402 Pa.Super. 429, 587 A.2d 326 (1991) (“The court has an obligation to keep the testimony focused on the issues in the trial and to not allow the entry of collateral matters.”). Accordingly, the lower court did not abuse its discretion in refusing to permit appellant to cross-examine Williams about this matter.

Appellant’s next allegation of error is that the trial court improperly permitted Commonwealth witnesses Tom Easley, Kevin Williams and Kelly Bell to testify that their plea agreements with the federal government contained a provision which stated that they would testify truthfully. We disagree.

In Commonwealth v. Bricker, 525 Pa. 362, 581 A.2d 147 (1990), our supreme court held that it is inappropriate for the trial court to permit a prosecutor to send plea agreements out with the jury during deliberations. However, our supreme court further held that “it is appropriate for the Commonwealth to reveal the existence of the [plea] agreements, and the [perimeters] thereof, through the testimony of the witnesses [who had entered the agreements].” Bricker, 581 A.2d at 155. See Commonwealth v. Sattazahn, 428 Pa.Super. 413, 631 A.2d 597 (1993) (applying the rules of Brieker, the court found that it was appropriate for the witness to testify that he was to be given a stated sentence for giving truthful testimony).

Here, the Commonwealth did not submit the witnesses’ plea agreements to the jury. Rather, the Commonwealth questioned the witnesses regarding the existence of their plea agreements and the general provisions contained therein. Such a course of conduct is consistent with the supreme court’s holding in Bricker. Therefore, we hold that the witnesses’ testimony that they were to be given a stated sentence for giving truthful testimony was not error. Sattazahn, supra.

Appellant’s next contention is that extrajudicial remarks made by the trial judge, the Honorable Jeffrey A. Manning, during trial adversely affected his right to a fair trial. We find that appellant has failed to preserve this issue for appeal.

On April 16, 1994, Judge Manning was a speaker at the Allegheny County Police Chiefs’ Association Banquet. During his speech, the Judge made the following remarks: “I started a case on Monday that involved a bunch of people in what we call drive-by incorporated. Ricky Boyd and Raymond Childress, a bunch of people who want to shoot everybody up. And all the witnesses are drug dealers, and all the Defendants are drug dealers.” Neither appellant nor his counsel became aware of Judge Manning’s remarks until after the trial was completed with the entry of the guilty verdict. Upon learning of the Judge’s remarks, appellant’s counsel, the district attorney and Judge Manning, met in the judge’s chamber on June 29, 1994. After discussing the content of his speech, Judge Manning asked appellant’s counsel if he wished to make a motion in regard to the remarks. He replied in the negative. Appellant was then sentenced.

Immediately following the sentencing hearing, appellant’s counsel viewed Judge Manning’s speech which was videotaped. At this time, neither appellant nor his counsel made any post-sentence motion concerning the Judge’s remarks and his alleged appearance of impartiality. In fact, even though appellant did file post-sentence motions, the issue concerning the Judge’s remarks and alleged appearance of impartiality was not raised by appellant until he appealed to this Court. The Commonwealth argues that appellant has waived this issue on appeal by failing to file a post-trial motion for a new trial on the basis of after-discovered evidence. We agree.

In Reilly v. Southeastern Pennsylvania Transportation, 507 Pa. 204, 489 A.2d 1291, 1300 (1985) our supreme court held that “[o]nce [a] trial is completed with the entry of a verdict, a party is deemed to have waived his right to have a judge disqualified, and if he has waived that issue, he cannot be heard to complain following an unfavorable result.” (citation omitted). However, in Reilly, our supreme court noted an exception to this rule for those cases where evidence concerning a judge’s bias or impartiality was not discovered until after verdicts or judgements of sentence were decided. In Reilly, the supreme court stated that “rules have developed for the overturning of verdicts and judgments for after-acquired evidence. In our view, recusal motions raised after verdict should be treated no differently than other after-acquired evidence situations....” Id., 489 A.2d at 1301. Accordingly, we shall treat appellant’s discovery of Judge Manning’s remarks as after-discovered evidence.

Pennsylvania Rule of Criminal Procedure 1410(C) indicates that “[a] motion for a new trial on the ground of after-acquired evidence must be filed in writing promptly after such discovery. If an appeal is pending, [when the evidence is discovered], the judge may grant the motion only upon remand of the case.” (emphasis added). We note that the legislature specifically excluded the motion for a new trial based on after-discovered evidence from the optional post-sentence motion list of Pa.R.Crim.P. 1410(B).

Here, prior to sentencing, appellant and his counsel discovered that Judge Manning made remarks in public concerning appellant’s case. After bringing the remarks to the Judge’s attention, the Judge inquired as to whether appellant’s counsel wished to file a motion in regard to the remarks. Appellant’s counsel replied in the negative, failed to ask for a continuance to allow for the viewing of the Judge’s speech and failed to file a motion for a new trial based on after-discovered evidence. Following sentence, appellant’s counsel immediately viewed the videotape of the Judge’s speech. Again, appellant failed to file any post-trial motion seeking a new trial based on after-discovered evidence, and did not raise the issue until he appealed to this Court. Accordingly, we find that appellant has waived this issue on appeal. See Commonwealth v. Boyle, 533 Pa. 360, 625 A.2d 616 (1993).

Appellant’s final contention is that the trial judge abused his discretion by sentencing him in the aggravated range.

As this is a challenge to the discretionary aspects of sentencing, appellant [was] required to include in his brief a separate concise statement demonstrating that there exists a substantial question as to the appropriateness of the sentence under the Sentencing Code. Appellant has included a separate concise statement in his brief as is required.
We will now consider whether appellant has demonstrated the existence of a substantial question that the sentence imposed is inappropriate under the Sentencing Code. Whether a substantial question exists must be determined on a case-by-case basis. It is only where a party can articulate reasons why a particular sentence raises doubts that the sentencing scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.
We will be inclined to find that a substantial question has been put forth where an appellant advances a colorable argument that the trial court’s actions were inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process.

Commonwealth v. Hlatky, 426 Pa.Super. 66, 626 A.2d 575, 583 (1993) (citations omitted).

Appellant argues that the trial court relied upon an impermissible reason in sentencing him in the aggravated range on his convictions. Specifically, he argues that the trial court improperly considered his involvement in drug trafficking because he was not charged with that offense. We conclude that appellant’s claim presents a substantial question. Hlatky, supra. However, we also conclude that the trial court did not abuse its discretion.

Appellant’s involvement in drug trafficking was not the sole basis for sentencing him in the aggravated range. The transcript of the sentencing hearing and the sentencing court’s order denying appellant’s motion to modify sentence make clear that the sentencing court considered all statutory sentencing factors, the sentencing guidelines, appellant’s character and rehabilitative needs, as well as the seriousness of the offenses and their impact on the community. See Commonwealth v. Dotter, 403 Pa.Super. 507, 589 A.2d 726 (1991). Moreover, the court had the benefit of and fully considered a pre-sentence report. In addition, we note that appellant’s involvement in drug trafficking was a reasonable consideration in determining his sentence. There was overwhelming evidence at trial that appellant was involved with drug trafficking and that such activity was the basis for the shootings at issue. Accordingly, the sentencing judge did not abuse his discretion when he considered appellant’s involvement in drug trafficking.

For all of the foregoing reasons, we affirm the lower court’s judgment of sentence.

Affirmed.

      . While we do not condone Judge Manning's conduct, we find that even if appellant had preserved this issue for appeal, it would be meritless. "After-discovered evidence is the basis for a new trial when the evidence ... is of such nature and character that a different verdict will likely result if a new trial is granted.” Boyle, 625 A.2d at 622 (citation omitted). Appellant has failed to allege how the outcome of his trial would have been different had Judge Manning recused himself. "Nothing in the record indicates that appellant’s trial was conducted other than in an unbiased manner. Furthermore, appellant was tried by a juty which was responsible to evaluate the testimony and arrive at a verdict.” Reilly, 489 A.2d at 1302. Since appellant is unable to point to any partial rulings by the trial court which might have improperly affected the jury, we find his claim of judicial impartiality to be meritless.


text:
    681 A.2d 181
    Janet Susan Selden WILLIAMS, Appellee, v. Ronald K.M. WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 27, 1996.
    Filed July 8, 1996.
    Reargument Denied Sept. 18, 1996.

      Ronald K.M. Williams, Philadelphia, pro se.
    Mark Momjian, Philadelphia, for appellee.
    Before CAVANAUGH, TAMILIA and MONTEMURO, JJ.

       Retired Justice assigned to Superior Court.

   MONTEMURO, Judge.

The Appellant, Ronald K.M. Williams, Esquire, appeals pro se from judgment of sentence for summary criminal contempt entered in the Philadelphia Court of Common Pleas, Domestic Relations Branch (Braxton, J.). For the following reasons, we reverse judgment of sentence.

The facts and relevant procedure are as follows: Appellant and Janet S. Selden Williams, Esquire, are divorced. On November 27, 1993, the parties were engaged in a custody hearing concerning their son, R.W. During the hearing, Appellant, an attorney proceeding pro se, became upset when the trial court sustained an objection to one of his questions. At that time he remarked, “[h]e’s such a fucking asshole”, in reference to the trial judge. (N.T. 11/27/93 at 170). Mr. Momjian, Ms. Williams’ attorney, alerted the court to the comment, and the trial judge called two witnesses to confirm what Appellant said. The trial court found Appellant guilty of summary criminal contempt, sentencing him to three days imprisonment, and this timely appeal followed.

Appellant raises the following questions for our consideration.

I. Did the lower court abuse its discretion when it convicted the Appellant of criminal contempt?
II. Did the lower court abuse its discretion when it convicted the Appellant of criminal contempt on insufficient evidence of such an offense?
III. Did the lower court err when it refused to recuse itself from the hearing on the criminal contempt?
IV. Did the lower court err by failing to provide Appellant due process rights before convicting Appellant of criminal contempt?

It is regrettable that our court’s time must be spent considering a matter of this nature. Our system of justice requires that judicial proceedings be conducted with dignity and decorum that are conducive to a rational and dispassionate determination of the facts at issue. This is particularly important in a custody case where the outcome greatly affects the life of a child. Unfortunately, because of Appellant’s conduct, this atmosphere was not maintained. Nevertheless, we are constrained to conclude that while Appellant’s statement was insolent and reprehensible, it did not rise to the level of criminal contempt.

In Pennsylvania, trial courts have an inherent power to impose summary punishment for contempt of court. This power is, however, restricted by 42 Pa.C.S.A. § 4132, which provides in relevant part:

The power of the several courts of this Commonwealth to issue attachments and to impose summary punishments for contempts of court shall be restricted to the following cases:
(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.

In order to sustain a direct criminal contempt citation, there must be proof of four elements beyond a reasonable doubt: 1) misconduct; 2) in the presence of the court; 3) committed with the intent to obstruct the proceedings; 4) which obstructs the administration of justice. In re Adams, 435 Pa.Super. 202, 206, 645 A.2d 269, 271 (1994), alloc. denied, 539 Pa. 686, 653 A.2d 1225 (1994) (citing Commonwealth v. Martorano, 387 Pa.Super. 79, 86-7, 563 A.2d 1193, 1197 (1989), alloc. denied, 529 Pa. 630 and 632, 600 A.2d 950 and 952 (1991)). When reviewing a contempt conviction, much reliance is given to the discretion of the trial judge. Accordingly, we are confined to a determination of whether the facts support the trial court’s decision. Id. at 206, 645 A.2d at 271-2.

Initially, we must determine whether the first element, misconduct, is present. Misconduct is behavior that is inappropriate to the role of the actor. Adams, 435 Pa.Super. at 207, 645 A.2d at 272 (citing Commonwealth v. Garrison, 478 Pa. 356, 372, 386 A.2d 971, 979 (1978)). Language such as that indulged in by Appellant in this instance is inappropriate and unacceptable behavior for an attorney or any other person handling business in a courtroom. Therefore, this element has been satisfied.

The second element, that the misconduct occur in the presence of the trial judge, has also been fulfilled. While Appellant denies having made the remark in reference to the judge the evidence demonstrates otherwise, as Appellant’s comment was recorded by the court reporter in the official transcript and overheard by opposing counsel and another witness. (N.T. 11/27/93 at 170-73).

The third element is an intent for the misconduct to disrupt the proceedings. There is wrongful intent if the contemnor knows or should reasonably be aware that his conduct is wrongful. Adams, 435 Pa.Super. at 207, 645 A.2d at 272 (citing Garrison, 478 Pa. at 372, 386 A.2d at 979 (1978)). As a member of the bar, Appellant should have reasonably known that his conduct was wrongful. Accordingly, this third prong has been met.

The final question we must consider is whether Appellant’s remarks constituted an obstruction of justice. The courts of our Commonwealth have followed the United States Supreme Court and adopted a narrow definition of what constitutes an obstruction of justice. Commonwealth v. Stevenson, 482 Pa. 76, 95, 393 A.2d 386, 396 (1978) (Manderino, J., dissenting). Conduct is perceived to obstruct the administration of justice “when it significantly disrupts judicial proceedings” Commonwealth v. Cameron, 501 Pa. 572, 575, 462 A.2d 649, 650 (1983) [ (emphasis added) ] (citing Matter of Campolongo, 495 Pa. 627, 633, 435 A.2d 581, 584 (1981)). “[T]hat remarks are injudicious, an affront to the dignity or sensibility of the court or even disrespectful or insulting will not, without more, justify a conviction for summary criminal contempt.” Garrison, 478 Pa. at 373, 386 A.2d at 979 (internal citations omitted).

Moreover, a mere affront to the trial judge is not sufficient to sustain a conviction for criminal contempt. Inappropriate and even ill-mannered conduct which does not obstruct or delay the trial falls short of the misbehavior punishable under 42 Pa.C.S. § 4132(3). Moffatt by Moffatt v. Buano, 391 Pa.Super. 1, 6, 569 A.2d 968, 970 (1990) (citing Commonwealth v. Rubright, 489 Pa. 356, 364, 414 A.2d 106, 110 (1980)).

Appellant’s comment in the present case did not obstruct the administration of justice. While there was a momentary break in the proceedings, the hearing resumed quickly. The entire incident encompassed just three and a half pages of hearing transcript out of three hundred and eighty one transcribed that day. (N.T. 11/27/93 at 170-173). After the trial court verified that the Appellant had made the statement, the custody hearing immediately recommenced. Such a transient delay is not an obstruction of justice.

Similar conduct in other cases has not been considered criminal contempt. See Commonwealth v. Cameron, 501 Pa. 572, 462 A.2d 649 (1983) (appellant’s conduct of twice failing to rise when the trial judge entered the courtroom was insufficient to support a conviction for summary criminal contempt); Commonwealth v. Rubright, 489 Pa. 356, 414 A.2d 106 (1980) (appellant’s derisive remarks toward the trial judge was not criminal contempt when they were momentary in nature and did not impede the progress of the hearing); Commonwealth v. Garrison, 478 Pa. 356, 386 A.2d 971 (1978)(defense attorney’s objection to court’s direction that defendant stand to be identified by a witness, and subsequent inquiry as to whether his client was to be “flagellated” in front of the jury deemed not sufficient to sustain a conviction for criminal contempt); In re Johnson, 467 Pa. 552, 359 A.2d 739 (1976) (attorney not in contempt when improper remarks during closing argument did not delay or disrupt trial); McMillan v. Mountain Laurel Racing Inc., 467 Pa. 266, 356 A.2d 742 (1976) (attorney not in contempt for questioning court’s ruling on cross examination where discussion was not lengthy); Commonwealth v. Restifo, 339 Pa.Super. 225, 488 A.2d 633 (1985) (attorney’s attempt to place on record what he considered inappropriate remarks by the trial judge not contempt). In cases where a conviction for criminal contempt has been sustained there have generally been several instances of misconduct. Commonwealth v. Owens, 496 Pa. 16, 436 A.2d 129 (1981) (defendant repeatedly refused to behave in an orderly manner and interrupted Commonwealth’s closing argument); Commonwealth v. Reid, 494 Pa. 201, 431 A.2d 218 (1981) (defendant’s actions sufficient to sustain conviction for summary criminal contempt when he took off his clothes, sat before the court in socks and jockey shorts and persisted in arguing with the judge); Commonwealth v. Snyder, 443 Pa. 433, 275 A.2d 312 (1971) (defendant repeatedly interrupted the prosecutor’s closing argument despite warnings from the court and refused to behave in an orderly manner); Mayberry Appeal, 434 Pa. 478, 255 A.2d 131 (1969), vacated on other grounds, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971) (appellant continually interrupted the proceedings and called the judge a “hatchet man for the state”, “dirty S.O.B.”, and a “dirty tyrannical old dog”); In re Adams, 435 Pa.Super. 202, 645 A.2d 269 (1994) (appellant’s continued histrionics over a three day trial after several warnings from the trial judge was sufficient to sustain criminal contempt conviction). Appellant’s single remark, however obnoxious, did not constitute an obstruction of the proceedings.

Moreover, Appellant’s use of profanity is not dispositive as to whether his contempt conviction can be sustained. There is nothing to indicate that the use of profane language automatically makes a statement contemptuous. As the Supreme Court stated:

‘The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.’

In re Little, 404 U.S. 553, 555, 92 S.Ct. 659, 660, 30 L.Ed.2d 708 (1972) (quoting Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947)).

In addition, “[j]udges are supposed to be [persons] of fortitude, able to thrive in a hearty climate. Trial courts ... must be on guard against confusing offenses to their sensibilities with obstructions to the administration of justice”. Moffatt, 391 Pa.Super. at 6, 569 A.2d at 971 (quoting Little, 404 U.S. at 555, 92 S.Ct. at 660).

This case is similar to Moffatt by Moffatt v. Buano, supra. In Moffatt, the appellant, an attorney, was called to the judge’s chambers. He asked why the judge wanted to see him when he had no matters pending before the court. He was told the matter would be explained in the courtroom. On the way to the courtroom, a court administrator overheard the appellant call the judge an “asshole”. The judge was told of the remark, and he ordered the appellant to repeat it in the courtroom. When Appellant did so the judge held him in contempt of court.

Our court reversed the conviction for summary criminal contempt concluding that there was no obstruction of justice or intent to obstruct justice. The court reasoned that the judge’s personal offense to the comment could not cause an improper remark to rise to the level of criminal contempt. The same reasoning is applicable here.

Appellant has engaged in behavior warranting firm disapproval and even possible disciplinary action. However, his conduct did not rise to the level of contempt. Attorneys have an obligation to respect the courtroom and those in it. The preamble to the Rules of Professional Conduct states: “[a] lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” Rules of Professional Conduct, Preamble (1995).

An attorney may become frustrated when a judge sustains his adversary’s objection, particularly in an atmosphere as emotionally charged as a custody hearing in which he is personally involved. Notwithstanding this frustration, an attorney may not resort to profanity to express his displeasure. When in court, an attorney has a responsibility to set an example for others.

For the foregoing reasons, we reverse the trial court’s order.

Judgment of sentence reversed.

CAVANAUGH, J., concurs in the result.

      . 42 Pa.C.S.A. § 4132(3).

      . The trial court intimates that other misconduct played a part in Appellant’s summary criminal contempt conviction. However, a review of the record reveals that the charge was based solely on Appellant’s profane comment. At the hearing in question, Appellant was warned several times that his conduct was obstructing justice. However, all of these warnings took place after he had made the obscene remark and was found guilty of summary criminal contempt. (N.T. 11/27/93 at 173). Accordingly, this conduct cannot be used to justify the Appellant's conviction of summary criminal contempt.

      . When considering a similar case, an appellate court in Florida stated: We do not hold that every profane utterance made in the courtroom is automatically contemptuous. By the same token, we do not hold that profanity is an essential ingredient to a conviction for contemptuous statements. The challenged statements must be viewed in the context in which they were made.

        Martinez v. State, 339 So.2d 1133, 1135 (Fla.Dist.Ct.App.1976).

      . Due to our disposition of this issue, we need not reach the balance of Appellant’s contentions.


author: CERCONE, President Judge Emeritus:

text:
    681 A.2d 185
    COMMONWEALTH of Pennsylvania, Appellant, v. Richard BUCK.
    Superior Court of Pennsylvania.
    Argued April 9, 1996.
    Filed July 18, 1996.

      Hugh Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Bradley S. Bridge, Philadelphia, for appellee.
    Before CIRILLO, President Judge Emeritus, BECK, J. and CERCONE, President Judge Emeritus.
   CERCONE, President Judge Emeritus:

This is an appeal by the Commonwealth from a final order granting defendant/appellee’s pretrial motion to quash the Commonwealth’s Notice of Aggravating Circumstances. We reverse and remand for further proceedings.

On February 9, 1994, appellee Richard Buck was arrested and charged with murder, voluntary manslaughter, involuntary manslaughter, possessing instruments of crime, violating the Uniform Firearms Act, and recklessly endangering another person. These charges arose out of a shooting in a Philadelphia bar on that date. On March 2, 1994, the Commonwealth filed a timely Notice of Aggravating Circumstances indicating its intent to seek the death penalty on the following grounds: (1) that appellee committed a killing during the perpetration of a felony, (2) that he knowingly created a grave risk of death to another person in addition to the victim of the offense, and (3) that appellee has a significant history of felony convictions involving the use or threat of violence to the person.

The defense filed a motion to quash the Commonwealth’s Notice, contending that insufficient evidence existed to support the aggravating circumstances alleged in this case. The lower court held a hearing on appellee’s motion. The Commonwealth participated in the hearing solely to contest the propriety of the inquiry. The prosecution declined to present specific arguments on the evidentiary sufficiency. The lower court judge stated that she had reviewed the discovery materials provided to the defense and concluded that, as a matter of law, the Commonwealth would be unable to prove the existence of any aggravating factors. N.T. 1/4/95 at 7-9. Consequently, the motions judge quashed the Notice of Aggravating Circumstances in open court on January 4, 1995. Id. at 9-10. The Commonwealth’s notice of appeal followed on January 25, 1995. The instant appeal presents two issues:

1. May the trial court issue a pretrial order quashing all aggravating circumstances for which the Commonwealth has given notice, thus precluding the Commonwealth from seeking the death penalty in a homicide prosecution?
2. May a homicide calendar judge hold a pretrial hearing to review the “sufficiency of the evidence” for aggravating circumstances?

Appellant’s brief at 2.

As to the first claim, we cannot agree with the Commonwealth’s contention that a court of common pleas may never consider a pretrial defense motion seeking to prevent the prosecution of a murder as a capital case. The lower court has correctly noted that, according to existing precedent, the opposite is true. For example, in Commonwealth v. Gibbs, 533 Pa. 539, 626 A.2d 133 (1993) (“Gibbs II”), the Pennsylvania Supreme Court reviewed the propriety of a court of common pleas decision regarding this type of pretrial motion. In Gibbs II, the defendant alleged that the Commonwealth’s decision to seek the death penalty amounted to a violation of the defendant’s double jeopardy rights. On appeal, the Court addressed the merits of the defense motion and upheld the trial court’s decision. Our Supreme Court did not indicate that the trial court lacked jurisdiction to consider Mr. Gibbs’ pretrial request to preclude the Commonwealth from seeking the death penalty.

Nevertheless, it is incorrect to characterize Gibbs II as standing for the proposition that a court of common pleas may conduct a pretrial inquiry as to the “legal sufficiency” of the evidence in support of the aggravating circumstances alleged by the Commonwealth. See trial court opinion at 6. In Commonwealth v. Gibbs, 520 Pa. 151, 553 A.2d 409, cert. denied, 493 U.S. 963, 110 S.Ct. 403, 107 L.Ed.2d 369 (1989) (“Gibbs I”), a jury found the defendant guilty of first degree murder. The jury also determined that the aggravating circumstances outweighed the mitigating circumstances and returned a verdict of death pursuant to 42 Pa.C.S.A. § 9711(c)(l)(iv). The Supreme Court vacated the judgment of sentence and remanded for a new trial on the grounds that the defendant’s confession was involuntarily given. Before his second trial, Mr. Gibbs moved to preclude the death penalty based on a claim that the evidence was insufficient at the original trial to sustain the aggravating circumstances alleged by the Commonwealth. According to the defense theory, double jeopardy concerns barred the prosecution from seeking the death penalty upon retrial.

In Gibbs II, our Supreme Court addressed the double jeopardy argument, but did not inquire as to the “sufficiency of the evidence” adduced at the first trial in support of the alleged aggravating circumstances. Rather, the Court held that no matter what aggravating factors the first jury considered, the prosecution was not precluded from seeking the death penalty at the second trial so long as the first jury found that the presence of one or more factors balanced against other circumstances warranted a death sentence. As the trial court notes in the instant case, Gibbs II also addresses other matters such as the correct definition of “peace officer” and whether the Commonwealth may use the common law doctrine of “transferred intent” to establish aggravating circumstances. However, the Gibbs II Court clearly stated that they were not considering the sufficiency of the Commonwealth’s evidence and that they intended to confine their opinion “solely to the question of [the] statutory interpretation of 42 Pa.C.S. § 9711(d)(2).” Commonwealth v. Gibbs, 533 Pa. at 547, 626 A.2d at 137-38.

Pennsylvania law is quite explicit that “the prosecution has no inherent burden to prove pretrial that aggravating factors exist----” Commonwealth v. Buonopane, 410 Pa.Super. 215, 222, 599 A.2d 681, 684 (1991), appeal denied, 530 Pa. 651, 608 A.2d 27 (1992). This is so because the witnesses’ trial testimony often differs from the statements given during pretrial interviews or hearings. Id. at 222, 599 A.2d at 684-85. It is impossible for anyone to know the precise nature of the evidence that will be adduced at trial until after the witnesses have actually testified. Id. Thus, it is inappropriate to issue a pretrial ruling on whether that testimony will be sufficient, at the time of the penalty phase, to establish the factors identified in the Commonwealth’s Notice of Aggravating Circumstances. Id. See also Commonwealth v. Scarfo, 416 Pa.Super. 329, 365-67, 611 A.2d 242, 260-61 (1992), appeal denied, 535 Pa. 633, 631 A.2d 1006 (1993) (discussing Pennsylvania cases decided prior to the effective date of Rule of Criminal Procedure 352 (concerning death penalty notification requirements) and holding that a court of common pleas has no standing to determine before trial whether the prosecution “knew or reasonably should have known” that the aggravating factors upon which the Commonwealth relies might prove insufficient to warrant imposition of the death penalty after the trial has been completed). Because it is improper for a court of common pleas to conduct a pretrial inquiry concerning the sufficiency of the Commonwealth’s proposed evidence regarding the existence of aggravating factors, we must reverse the lower court’s ruling in the present case.

The trial court’s decision is reversed, the order promulgated January 4, 1995 (entered nunc pro tunc May 15, 1995) is vacated, and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . An order granting a defense request to preclude the Commonwealth from proceeding with a murder prosecution as a capital case is final and immediately appealable. Commonwealth v. Buonopane, 410 Pa.Super. 215, 216, 599 A.2d 681, 682 (1991), appeal denied, 530 Pa. 651, 608 A.2d 27 (1992).

      . The trial court held that the Commonwealth’s Notice was timely pursuant to Rule of Criminal Procedure 352. See Trial Court Opinion dated October 30, 1995 at 1; Pa. R.Crim.P., Rule 352, 42 Pa.C.S.A.

      . The certified record indicates that the lower court reduced its oral ruling to writing on May 15, 1995. See Order Nunc Pro Tunc quashing Notice of Aggravating Factors dated 5/15/95.

      . The lower court incorrectly cites Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994) as authority for its conclusion that Buonopane has been overruled. Williams addresses the propriety of a Commonwealth petition to amend its notification of aggravating circumstances on the second day of jury selection. The case has nothing whatever to do with a pretrial motion to quash the prosecution's Notice on the grounds of "insufficient evidence” because the Williams Court did not conduct a "sufficiency” inquiry. Rather, the Supreme Court’s discussion of the evidence alleged by the Commonwealth was confined to ascertaining when the prosecutor learned of the additional aggravating circumstances in order to determine whether the district attorney was diligent in researching the defendant’s prior record. Commonwealth v. Williams provides absolutely no basis for concluding that the court of common pleas may ignore Buonopane's strictures against pretrial inquiries concerning the quantum of evidence the Commonwealth plans to present during the penalty phase of a capital trial.


author: BECK, Judge.

text:
    681 A.2d 188
    COMMONWEALTH of Pennsylvania v. Andrew Eric HUFFMAN a/k/a Eric Draighton, Appellant. COMMONWEALTH of Pennsylvania v. Eric J. GRIER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1995.
    Filed July 18, 1996.
    Reargument Denied Sept. 17, 1996.

      Bruce A. Franzel, Philadelphia, for Andrew E. Huffman.
    Jack L. Gruenstein, Philadelphia, for Eric J. Grier.
    Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   BECK, Judge.

The issue is whether in a double jeopardy pretrial order the trial court correctly determined that upon retrial the Commonwealth is permitted to seek a conviction for first degree murder. We affirm.

In their first trial, appellants were convicted of first degree murder and sentenced to death. The Pennsylvania Supreme Court reversed the murder convictions and remanded for a new trial because the trial court’s instruction regarding accomplice and co-conspirator liability was flawed. The appellants concede that they may be retried for homicide but claim they cannot be retried for first degree murder. They argue that double jeopardy principles bar retrial for first degree murder because in the first trial the Commonwealth failed to prove the specific intent to kill. Appellants insist that under double jeopardy principles, the Commonwealth cannot have a second opportunity to prove specific intent to kill.

In reviewing the trial court’s decision, we focus on the evidence admitted in the first trial as it relates to first degree murder. If the Commonwealth failed to introduce sufficient evidence for the fact finder to conclude that appellants were guilty of first degree murder, then double jeopardy principles preclude a second trial on that charge. However, if the Commonwealth did present sufficient evidence at the first trial, then the bar of double jeopardy does not apply.

The facts of the case, as summarized by the supreme court, are as follows:

On March 13, 1989 at about 8:00 p.m., Andrew Eric Huffman conspired with Eric Grier, to burglarize Grier’s place of employment, the Patterson Dump Truck Company. Grier occasionally lived at the Patterson Dump Truck Company site, in a room next to the victim, who also lived there. Grier had left a door to the office area unlocked the day of the murder. That evening, the conspirators walked together to the office area. One or both of the conspirators entered the office and beat the victim about the head with an iron pry bar. The conspirators took some telephones and a typewriter, left the Patterson Dump Truck Company site, sold the stolen items and bought drugs with the proceeds. Later that night, they returned to the Patterson Dump Truck Company site, did not enter the office area, but instead broke into the garage area, stole tools, left the site, and sold the tools. On March 14, 1989 Edward [sic] Grier turned himself in. On April 13, 1989, Appellant [Huffman] was arrested.
* * * # * *

Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961, 961-62 (1994) (“Huffman I ”).

At trial, the judge gave the following charge:

Thus, in order to find a Defendant guilty of murder in the first degree, you must find that the Defendant caused the death of another person, or that an accomplice or co-conspirator caused the death of another person. That is, you must find that the Defendant’s act or the act of an accomplice or co-conspirator is the legal cause of death of [the victim], and thereafter you must determine if the killing was intentional.

Id. at 198-99, 638 A.2d at 962.

Our supreme court found this instruction “patently erroneous” because it allowed the jury to use the specific intent of the principle to convict the accomplice or co-conspirator of first degree murder. Relying on Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982), cert. denied, 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983), the court held:

[T]he requisite mental state must be proved beyond a reasonable doubt to be one which the accomplice harbored and cannot depend upon proof of the intent to kill only in the principle.

Huffman, supra at 198, 638 A.2d at 962 (emphasis in original) (citations omitted).

In contrast to the defense, the Commonwealth submits that sufficient evidence was presented at the first trial to establish that both appellants possessed the specific intent to kill the victim and, as a result, retrial on first degree murder is appropriate for both appellants. In support of its argument that the evidence was sufficient to establish intent, the Commonwealth directs our attention to Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367, cert. denied, 502 U.S. 959, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991).

In Chester, two men were tried for their participation in the death of another. The men, in an “aggressive and quarrelsome state,” were last seen with the victim in the victim’s car. The victim was beaten severely about the head and then slashed multiple times in the neck. His body was found near his car, which had been set on fire. The evidence at trial revealed that shortly after the attack on the victim, appellants arrived at their friend’s apartment “agitated” and with blood stains on their clothes. The friend assisted them in removing and concealing their clothing. Other witnesses testified to incriminatory statements made by the men that “reflected their complicity in the murder.” Id. at 588, 587 A.2d at 1372. Our supreme court found this evidence sufficient to sustain the guilty verdicts for first degree murder. The Commonwealth asserts that Chester controls this case.

It is axiomatic that a person can be convicted of first degree murder even if he or she did not commit the act that directly causes the death of the victim. See 18 Pa.C.S.A. § 306; Commonwealth v. Smith, 480 Pa. 524, 391 A.2d 1009, (1978). The issue in this case however, goes beyond that simple principle of law. In order for a conviction of first degree murder to be sustained, there must be evidence from which a jury can infer that the defendant harbored the specific intent to kill. As is clear from Bachert and Huffman I, the Commonwealth must present sufficient evidence from which the jury can infer that each appellant intended to cause the death of the victim. Each participant’s specific intent to kill must be established.

In order to assess whether at the first trial the Commonwealth presented sufficient evidence from which a jury could infer specific intent to kill, we must do a careful analysis of the evidence presented. Jeffrey Patterson, who owned the Patterson Dump Truck Company (the “Patterson Company”) with his brother, testified that he was at his place of business on the evening of the crime and saw Grier there with another man. He told Grier that he was there to lock the facility, but Grier assured him that it already was locked and so Patterson left without checking the doors himself.

Elaine Moon testified that she saw appellants together on the street shortly before the murder and asked if they had any drugs. They instructed her to wait for them on the corner and she did so. Later, they returned carrying tools and other items. Moon then accompanied the men to a house where they attempted to sell some of the stolen goods. However, the person who was to pay them for the stolen items was not available so they left the items at the house.

An employee of a local variety store testified that he observed Huffman, whom he knew, and Grier enter his store on the night of the crime. Huffman sold the employee an electric planer that had been stolen from the Patterson Company.

Derrick Brazelton testified that he was present at a crack house on the morning after the crime and that he observed appellants there. Brazelton said the men left the house and returned later with drugs. Soon, homicide detectives arrived outside the house and took Grier’s girlfriend to headquarters for questioning. Brazelton watched this from a window with Grier and asked Grier why the police wanted to talk to his girlfriend. Grier responded that he had “gotten a body.” When Brazelton told Grier he must be kidding, Grier replied that he was “serious.”

Juanita Pringle, the mother of Brazelton’s children, testified that she also was present at the crack house with Grier and Huffman the morning after the crime. She said appellants left the house together to pick up money they were owed for stolen goods. They returned later with cash and crack and Pringle got high with them. Pringle testified that Huffman too said “something about a body” while speaking to his girlfriend that morning. Pringle further testified that Huffman told her that he was at the Patterson Company twice the night before and that both times he stole items that were sold for drug money.

Later that same day, Grier turned himself in to police and, ultimately, a warrant was issued for Huffman’s arrest. Pringle testified that after Grier went to police, Huffman changed his clothes and told her that he intended to go into hiding. Huffman did, in fact, elude police for over a week before he was apprehended.

Both appellants gave statements to police which were admitted into evidence. Grier claimed that he went to the Patterson Company to steal items so that he could sell them for money to buy drugs. Huffman made two statements. In the first, he claimed that he never entered the Patterson Company office on the night of the crime, had nothing to do with the murder and left town that evening to visit a sick relative. In the second, he admitted that he went inside the Patterson Company office with Grier but did not steal anything. As noted by the supreme court, the details of the killing were redacted from each appellant’s statements since they were “mutually accusatory.”

Extensive testimony by the medical examiner and police personnel revealed that the victim, who was found in the company office, was brutally beaten about the head with a metal pry bar that was recovered at the scene; his skull was shattered from the intensity of the blows and his blood was spattered on the walls. Numerous items of equipment were taken from the office. The phones were pulled from the walls and an axe was wedged under the office door which prevented the victim from escaping.

Considering our standard of review, that is, viewing all of the evidence in the light most favorable to the Commonwealth, and in light of Chester, we conclude that the evidence presented at the first trial was sufficient to establish the specific intent to kill on the part of both appellants. The nature of the decedent’s wounds, i.e., repeated blows to the head with a metal bar which crushed the skull, allow an inference of an intent to kill. See Chester, supra. Appellants, by their own statements and through the testimony of other witnesses, were present at the time of the murder. Despite the fact that no one testified to seeing the men beat the victim to death, the conduct of appellants before and after the crime, their statements to police and others and the manner of the victim’s death combine to establish evidence from which a jury could conclude the specific intent to kill. We therefore find that the evidence presented by the Commonwealth at the first trial was sufficient for the fact finder to conclude both appellants were guilty of first degree murder. Therefore, no double jeopardy problems arise on retrial on the charge of first degree murder. The Commonwealth is not being afforded a second opportunity to prove specific intent to kill.

Order affirmed; matter remanded for retrial.

      . Appellants were tried together before a jury. They filed separate appeals but due to the common issues presented, we have consolidated the appeals for disposition.

      . The supreme court affirmed the judgments of sentence as to conspiracy, robbery and burglary.

      . The supreme court explicitly declined to address appellants' sufficiency claims on appeal.

       We note that evidence as to the killing itself is quite limited. The conspirators were tried jointly and, exercising their rights under the fifth amendment, both chose not to testify. As the portions of both conspirators’ prior statements regarding the killing itself were mutually accusatory, the trial court redacted all portions of each statement relevant to the actual killing.


author: SAYLOR, Judge:

text:
    681 A.2d 192
    COMMONWEALTH of Pennsylvania v. James F. POWERS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 4, 1996.
    Filed July 19, 1996.

      Charles G. Nistico, Media, for appellant.
    Theresa M. Flanagan, Assistant District Attorney, Media, for Com., appellee.
    Before CAVANAUGH, SAYLOR and HESTER, JJ.
   SAYLOR, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Delaware County after Appellant, James Powers, was found guilty of the summary offenses of failing to obey a traffic control signal and driving while his operator’s license was under suspension. We affirm.

On October 28, 1992, Appellant was operating a motor vehicle when he was stopped by Officer Keith Prorock for disregarding a red traffic light at the intersection of Lancaster and Aberdeen Avenues in Radnor, Pennsylvania. When Officer Prorock asked Appellant to produce a driver’s license, Appellant told the officer that he did not have a license because his driving privileges had been suspended. At this point, Officer Prorock radioed the dispatcher at the police station to check the status of Appellant’s license. After checking the PennDOT computer, the dispatcher told Officer Prorock that he had received verification that Appellant’s license was suspended, non-DUI related. Officer Prorock thereafter issued Appellant citations for driving while his license was under suspension and for disregarding a red traffic light. When Officer Prorock returned to the police station he ordered a copy of Appellant’s driving record from PennDOT which subsequently confirmed that Appellant’s license had been suspended, non-DUI related.

On February 24, 1993, Appellant was found guilty by a district justice of driving under suspension, 75 Pa.C.S.A. § 1543(a) and failing to obey a traffic control signal, 75 Pa.C.S.A. § 3112(a)(3). Appellant appealed the magistrate’s decision, and on December 15, 1993, following a trial de novo, the trial court found Appellant guilty of both charges. Appel: lant filed a post-trial motion for new trial and/or acquittal. Following a hearing, the trial court denied both motions. Appellant then filed a notice of appeal with the Superior Court. Since Appellant had not yet been sentenced, the Superior Court quashed the appeal without prejudice. On October 2, 1995, Appellant was sentenced to pay a fine of $225 plus costs. This appeal followed.

Appellant raises a single issue on appeal:

Did the trial court err in denying the defendant’s motion to dismiss the charge of driving while under suspension (section 1543(a))-, and finding him guilty of said offense where the police officer failed to comply with the mandatory provisions of section 1543(d) of the Pennsylvania Motor Vehicle Code requiring a police officer to obtain a certified driver’s record before filing a citation under section 1543?

Section 1543 of the Motor Vehicle Code provides in pertinent part as follows:

Driving while operating privilege is suspended or revoked

(a) Offense defined — Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.
(b) Certain offenses—
(1) Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731(relating to driving under influence of alcohol or controlled substance) ... shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.
(d) Citation of appropriate subsection-Prior to filing a citation for a violation of this section with the issuing authority named in the citation, the police officer shall verify the basis for the suspension with the department. Upon receiving the verification, the officer shall cite the appropriate subsection of this section on the citation.

Prior to 1982, section 1543 did not differentiate as between the basis for the suspension. In 1982, section 1543 was amended to add subsection (b) which specifically dealt with DUI-related suspensions and imposed a more severe penalty for such suspensions. Subsequently, in 1987, subsection (d) was added to require police officers to verify the basis for the suspension. The purpose of this requirement was to ensure that a violator is properly charged since driving during suspension for DUI is now a discrete offense.

In this case, before issuing the citation, the officer verified the fact and classification of Appellant’s license suspension by contacting the dispatcher at the police station via radio. It is true, as Appellant indicates, that the officer did not receive official verification from the Department of Transportation in the form of a certified driving record prior to filing the citation. Appellant argues that this was a fatal defect requiring dismissal of the charge, citing Commonwealth v. Heckman, 404 Pa.Super. 335, 590 A.2d 1261 (1991). We disagree.

Heckman held that a defendant’s certified driving record is the verification required under subsection (d) in order to prove the suspension. Thus under a strict reading of the statute the officer should have awaited receipt of the official verification of Appellant’s license status from PennDOT before filing the citation; however, there was no prejudice to Appellant as a result of the officer’s failure to do so. There was no question that Appellant’s license was suspended at the time the citation was issued. When stopped, Appellant told the officer that his license had been suspended. Prior to issuing the citation, the officer confirmed the suspension by radio, including the fact that the suspension was non-DUI related. The officer then charged Appellant with the appropriate violation, subsection (a) of section 1543. Most importantly, the officer subsequently procured a copy of Appellant’s certified driving record from PennDOT which verified the status of Appellant’s license.

Since the trial court did not err in refusing to dismiss the charge of driving during suspension, the judgment of sentence is affirmed.


author: CIRILLO, President Judge Emeritus:

text:
    681 A.2d 194
    COMMONWEALTH of Pennsylvania v. Joseph Michael MERIGRIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 1, 1996.
    Filed Aug. 1, 1996.

      Paul R. Kramer, Jr., Stroudsburg, for appellant.
    Mark P. Pazuhanich, District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before CAVANAUGH, J., CIRILLO, President Judge Emeritus, and CERCONE, President Judge Emeritus.
   CIRILLO, President Judge Emeritus:

Joseph Merigris appeals the order of the Monroe County Court of Common Pleas denying his motion to modify his sentence to reflect 302 days credit for time served. We affirm.

On December 23, 1992, Merigris was arrested for burglary. The next day, the United States lodged a detainer against Merigris on an unrelated charge. Subsequently, the Commonwealth also charged Merigris with possession and sale of cocaine for events that occurred on November 24, 1992. Merigris pled guilty to the federal matter and was sentenced to 46 months imprisonment by the United States Court for the Middle District of Pennsylvania on August 20, 1993. The District Court credited Merigris for time served at the Monroe County Correctional Facility as a result of the detainer commencing from December 24, 1992. On October 21, 1993, the Court of Common Pleas for Monroe County sentenced Merigris to imprisonment for three to ten years on the burglary charge to run consecutive to the federal sentence and for one to two years on the drug charge to run concurrent with the burglary sentence. The trial court gave Merigris credit for two months and five days served on the state charges.

On appeal, Merigris raises one issue:

May the sentencing court deny credit for a period of incarceration spent under federal detainer because the federal court gave credit for the same period of imprisonment?

A court must give credit “for all time spent in custody as a result of the criminal charge for which a sentence is imposed as a result of the conduct on which such a charge is based.” 42 Pa.C.S.A. § 9760(1). This court has explained that the principle behind statutory credit is that the defendant should be given credit for time spent in custody before being sentenced for a given offense. Commonwealth v. Shaw, 379 Pa.Super. 491, 499, 550 A.2d 555, 559 (1988), allocatur denied, 524 Pa. 607, 569 A.2d 1366 (1989).

Merigris relies on our opinions in Commonwealth v. Frank, 263 Pa.Super. 452, 398 A.2d 663 (1979) and in Commonwealth v. Hollawell, 413 Pa.Super. 42, 604 A.2d 723 (1992), to support his argument that he should receive credit for time served toward both the federal and the state sentences. Both opinions, however, interpret 42 Pa.C.S.A. § 9760(4) as barring a defendant from receiving credit against more than one sentence for the same time served. Section 9760(4) provides:

If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge that has not been credited against another sentence.

42 Pa.C.S.A. § 9760(4) (emphasis added).

In Frank, the defendant was convicted of a series of crimes committed in Lancaster and Chester counties arising from a single criminal episode. That defendant was tried and convicted first in Lancaster County and then in Chester County. The Frank court stated:

[Cjredit against his Lancaster sentence must be given from the date of his initial incarceration ... It should be noted that this calculation will not allow appellant double credit for the time he served prior to his sentencing in Lancaster County. Once credit is given against his Lancaster County sentence under 18 Pa.C.S.A. § 1360(4), the time appellant has served in custody is no longer “a result of’ the charges that arose in Chester County within the meaning of subsection (1) of that provision, and thus cannot be credited against the sentence received there.

Frank, 263 Pa.Super. at 476 n. 10, 398 A.2d at 675 n. 10. In Hollawell, supra, this court applied the reasoning of the Frank court to a defendant who had been tried and convicted separately for charges arising from two unrelated criminal incidents. As in the instant case, the defendant in Hollawell argued that he should receive credit for the same period of pre-sentencing incarceration against both sentences. In rejecting this claim, the court stated: “[t]he absurdity of appellant’s case is clear. Following his reasoning, appellant would receive a windfall in sentencing for a completely unrelated crime. This court does not deal in Volume discounts.’ ” Hollawell, 413 Pa.Super. at 48, 604 A.2d at 726.

The operative rule, both in Frank and in Hollawell, is that a defendant should receive credit only once for time served before sentencing. Applying this court’s rationale in Frank, we hold that once the federal court credited Merigris for time incarcerated as a result of the federal detainer, appellant’s time in custody at the Monroe County Correctional Facility was no longer “a result of’ the charges brought by the Commonwealth. Frank, 263 Pa.Super. at 475, 398 A.2d at 675. Therefore, Merigris’ motion to modify his sentence to reflect time served was properly denied.

The order of the trial court is affirmed.

      . 35 P.S. § 780-113(a)(30).

      . 18 Pa.C.S.A. § 1360(4) was transferred to 42 Pa.C.S.A. § 9760(4) by § 401(a) of Act 1980, Oct. 5, P.L. 693, No. 142.


author:
CIRILLO, President Judge Emeritus:
      THE COURT:

text:
    681 A.2d 195
    COMMONWEALTH of Pennsylvania v. Marvin BASKERVILLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 10, 1996.
    Filed Aug. 1, 1996.

      Charles P. Mirarchi, III, Philadelphia, for appellant.
    Peter J. Gardner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CIRILLO, President Judge Emeritus, and KELLY and MONTEMURO , JJ.

       Retired Justice assigned to Superior Court.

   CIRILLO, President Judge Emeritus:

Marvin Baskerville appeals from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County following his conviction for third-degree murder, robbery, and criminal conspiracy. We affirm.

On or about the night of March 30,1994, Baskerville and his friend, Baron Simmons, were walking through their West Philadelphia neighborhood when they came upon the co-defendant, John Haynes, and another man, Mark Malloy. Malloy asked Baskerville if he had $100.00 that he owed him. Baskerville, realizing that Haynes had a gun, replied that he did not and began to walk away. Haynes called to Baskerville and asked him if he knew who was sitting in a car that was parked nearby. When Baskerville responded that he did not know, Haynes suggested that they investigate the occupants of the car together. Upon investigation of the auto, Baskerville discovered that he knew both the driver’s side occupant, Darren Williams, and the passenger’s side occupant, David Anderson. After a brief conversation with the occupants, both Baskerville and Haynes walked away from the car.

Upon reaching the street corner, Haynes asked Baskerville whether Williams or Anderson was wearing any jewelry. After Baskerville replied that both men were wearing jewelry, Haynes asked Baskerville to return to the auto and ask the occupants for a cigarette. Baskerville agreed, walked to the car and asked Anderson for a cigarette. Meanwhile, Haynes approached the driver’s side window and demanded Williams’ jewelry at gunpoint. As Williams was handing his watch to Haynes, he tried to push the gun aside and drive away. Once Williams stepped on the accelerator, Haynes shot him four times in the back. The car, driven by Williams, crashed into a nearby, parked car. Williams later died from massive blood loss. The day after the robbery, Baskerville saw Haynes in the neighborhood, where he promised Baskerville $50.00 for keeping quiet about the crime and also forgave Baskerville’s $100.00 debt owed to Malloy.

Baskerville was tried by a jury and convicted of third-degree murder, robbery, and criminal conspiracy. He was sentenced to a term of ten to twenty years in prison for the murder charge, and to concurrent terms of five to ten years for the robbery and two to four years for criminal conspiracy. Baskerville files this appeal in which he raises the following issues for our review:

(1) Did the Commonwealth commit prosecutorial misconduct requiring a new trial when, during closing argument, the prosecutor took off his wristwateh and tried to hand it to the defendants?
(2) Was the evidence presented by the Commonwealth insufficient to sustain a conviction for third-degree murder where there was no malice proved on behalf of the defendant?
(3) Was the evidence presented by the Commonwealth sufficient to prove beyond a reasonable doubt that the defendant did not act under duress?
(4) Was the evidence presented by the Commonwealth sufficient to sustain a conviction for criminal conspiracy to commit murder where the evidence presented only went to show a possible conspiracy to commit robbery?
(5) If the conviction for third-degree murder was premised solely on the conspiracy to commit murder conviction and such a conspiracy was never proved, does not the conviction for third degree murder also fail?

Baskerville first contends that the Commonwealth committed prosecutorial misconduct warranting a new trial when, during closing argument, the prosecutor took off his wristwateh and tried to hand it to the defendants.

This Court has recently defined the standard for ordering a new trial in a case where a prosecutorial statement is deemed improper. Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982). There we concluded that, although a prosecutor’s statement may be inappropriate, a new trial will not be granted unless it is inevitable that the prosecutor’s remark prejudiced the defendant to such a degree that it prevents the jury from weighing the evidence and rendering a true verdict. Id., 497 Pa. at 627, 444 A.2d at 92. See also Commonwealth v. Scarpino, 494 Pa. 421, 431 A.2d 926 (1981) (New trial warranted when unavoidable effect of prosecutorial comment is to deprive defendant of fair trial); Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975); Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973). Furthermore, “[T]he prejudicial effect of the district attorney’s remarks must be evaluated in the context in which they occurred.” Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). However, a reversal is not an automatic formality for every intemperate or improper comment by the prosecution.

Commonwealth v. Chimenti, 362 Pa.Super. 350, 364, 524 A.2d 913, 920 (1987), allocatur denied, 516 Pa. 639, 533 A.2d 711 (1987) (quoting Commonwealth v. Maxwell, 505 Pa. 152, 166, 477 A.2d 1309, 1316-17 (1984), cert. denied, 469 U.S. 971, 105 S.Ct. 370, 83 L.Ed.2d 306 (1984)).

The alleged misconduct occurred during the prosecutor’s closing argument, where the following exchange took place:

MR. CAMERON: ... Darren Williams, a 29 year old man, who is six feet under because of these people. He should be alive. He should be at home with his wife and his mom, whatever. This should have been nothing more than a robbery case, but instead, he is dead. One has to wonder what is going on in this world, in this city, that two young men after work on an evening can’t sit outside of a playground to talk about their day or what happened, but instead have something like this, over a watch, his jewelry, and saying you can have it—
MR. PERRI: I object.
MR. MIRARCHI: Objection. I move for a mistrial.
MR. PERRI: I move for a mistrial also. Let the record reflect that comment was directed at Mr. Haynes.
THE COURT: I will sustain the objection.
MR. CAMERON: They asked for jewelry. The man had a watch. The medical examiner said there was no watch. Robbery was the motive.
MR. MIRARCHI: There was no testimony that Mr. Baskerville said anything. In fact, to the contrary, there was testimony he said nothing.

THE COURT:

I will sustain the objection.

From our review of the record, there is no evidence that the prosecutor removed his wristwatch and handed it to Baskerville. Instead, the record indicates that the prosecutor’s remarks were directed at the co-defendant, Haynes, and not Baskerville. Furthermore, Mr. Mirarchi, counsel for Baskerville, appears to be primarily concerned with the prosecutor’s assertion that Baskerville voiced a demand for the jewelry, and not with the prosecutor’s actions which he now attacks.

The failure to include the relevant facts for an analysis of appellate issues precludes this court from conducting a review on appeal. See Pa.R.A.P. 2119 (“[i]f reference is made to ... any other matter appearing in the record, the argument must set forth, in immediate connection therewith ... a reference to the place in the record where the matter referred appears.”). We will only take the facts as presented in the certified record, and will not create unsubstantiated inferences from a party’s assertions in its brief. See Commonwealth v. Rini, 285 Pa.Super. 475, 483, 427 A.2d 1385, 1390 (1981). Accordingly, we find that we are unable to review this issue. See Commonwealth v. Buehl, 403 Pa.Super. 143, 148, 588 A.2d 522, 524, allocatur denied, 528 Pa. 627, 598 A.2d 281 (1991) (only the facts that appear in the official record may be considered by an appellate court); Commonwealth v. Muntz, 428 Pa.Super. 99, 107, 630 A.2d 51, 55 (1993) (it is appellant’s responsibility to offer a complete record for our review). See also Pa.R.A.P. 1911(a).

Baskerville’s next three arguments concern the sufficiency of the evidence presented by the Commonwealth. In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Jarman, 529 Pa. 92, 94-95, 601 A.2d 1229, 1230 (1992); Commonwealth v. Swann, 431 Pa.Super. 125, 635 A.2d 1103 (1994). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime' beyond a reasonable doubt.” Commonwealth v. Swerdlow, 431 Pa.Super. 453, 458, 636 A.2d 1173, 1176 (1994) (citing Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988)). See also Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9 (1994). Furthermore, a mere conflict in the testimony of the witnesses does not render the evidence insufficient because “it is within the province of the fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence.” Commonwealth v. Moore, 436 Pa.Super. 495, 501, 648 A.2d 331, 333 (1994) (citations omitted).

Baskerville claims that the evidence presented by the Commonwealth was insufficient to prove malice in order to sustain his conviction for third-degree murder. The record belies this assertion.

The Pennsylvania Criminal Code defines third-degree murder as all other kinds of murder, other than first-degree or second-degree murder. See generally 18 Pa.C.S.A. § 2502(c). Case law further explains that third-degree murder is a killing done with legal malice but without the specific intent to kill required in first-degree murder. See Commonwealth v. Seibert, 424 Pa.Super. 242, 248, 622 A.2d 361, 364 (1993), allocatur denied, 537 Pa. 631, 642 A.2d 485 (1994) (citing Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979)). In Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981), our supreme court noted that malice may be found where the “actor consciously disregard^] an unjustified and extremely high risk that his actions might cause death or serious bodily harm.” Id. at 228, 431 A.2d at 232.

In the present case, Baskerville entered into a criminal conspiracy to commit armed robbery. At the time of the agreement, Baskerville had knowledge that his co-conspirator, Haynes, possessed a gun. Baskerville also testified that he, himself, was afraid of Haynes and what Haynes might do with this gun. In addition, Baskerville surmised that Haynes planned to rob the occupants of the vehicle. Combining these facts with Baskerville’s actual participation in the crime, where there was an extremely high risk that his actions might cause death or serious bodily harm, it is clear to us that Baskerville acted with malice. He exhibited the type of behavior which presented an unjustifiable risk and reckless disregard for human life sufficient to establish legal malice. See Young, supra (malice may be found to exist in an unintentional homicide where the perpetrator has consciously disregarded unjustified and extremely high risk that his actions might cause death or serious bodily injury).

Further, as a conspirator, Baskerville is chargeable with the acts of his co-conspirator. Commonwealth v. Glover, 399 Pa.Super. 610, 582 A.2d 1111 (1990). Haynes indisputably acted with malice when, in the process of an attempted armed robbery, he shot the victim four times in the back, mortally wounding the victim. See Commonwealth v. Mercado, 437 Pa.Super. 228, 649 A.2d 946 (1994) (malice, as an essential element of third-degree murder, may be inferred from the use of a deadly weapon upon a vital part of the body). Accordingly, the malicious conduct of Haynes supports a finding that Baskerville also acted with malice. Glover, supra; see also Commonwealth v. Bigelow, 416 Pa.Super. 449, 611 A.2d 301 (1992) (malice could be inferred from the defendant’s actions in planning and participating in the crime, even if the killing blows were struck by someone other than the defendant). The evidence was clearly sufficient to establish malice for Baskerville’s third-degree murder conviction. Young, supra.

Baskerville next contends that the evidence proffered by the Commonwealth was insufficient to prove beyond a reasonable doubt that he did not act under duress. We disagree.

“The elements which must be shown to establish a duress defense are: (1) an immediate or imminent threat of death or serious bodily injury; (2) a well grounded or reasonable fear that the threat will be carried out; and (3) no reasonable opportunity to escape the threatened harm except by committing the criminal act.” Commonwealth v. Morningwake, 407 Pa.Super. 129, 140, 595 A.2d 158, 164, allocatur denied, 529 Pa. 618, 600 A.2d 535 (1991). The facts, when viewed in the light most favorable to the Commonwealth, establish that Baskerville owed $100.00 to Malloy, a friend of Haynes. Prior to the robbery, Baskerville also knew that Haynes had a gun in his possession, and was fearful of what Haynes might do with it. These facts alone, however, do not constitute a defense of duress. Baskerville is required to show that there was an immediate or imminent threat of serious bodily harm that impelled him to participate in the robbery. Morningwake, supra. This he has failed to do.

The Commonwealth offered evidence at trial that Baskerville did not voluntarily turn himself in to the authorities. Moreover, it is apparent that there were a number of reasonable opportunities for Baskerville to flee the crime scene and escape any “perceived” harm, however, he consciously failed to do so. Specifically, Baskerville was not forced to acknowledge Haynes when he first called to him; indeed, Baskerville’s friend, Baron Simmons, continued to walk away. In addition, when Baskerville returned alone to the car to ask for a cigarette, he was given another reasonable opportunity to escape. This evidence is especially damaging to Baskerville, in light of his testimony that he believed that Haynes was about to rob the occupants of the vehicle. Based on our review, we find that the evidence presented by the Commonwealth was sufficient to prove beyond a reasonable doubt that Baskerville did not act under duress. See Commonwealth v. Pelzer, 531 Pa. 235, 612 A.2d 407 (1992) (appellant not entitled to a jury charge on duress where appellant failed to withdraw from a conspiracy, despite having numerous opportunities to do so, and where appellant’s own assertions defeated his claim of duress).

Baskerville further contends that the evidence presented by the Commonwealth was insufficient to sustain a conviction for criminal conspiracy to commit murder. We find this argument unpersuasive.

A conspiracy is an agreement to commit an unlawful act; the agreement can be proven by the relation, conduct, or circumstances of the parties. Glover, 399 Pa.Super. at 616, 582 A.2d at 1114. The law in Pennsylvania is settled that each conspirator is criminally responsible for the actions of his co-conspirator, provided that the actions are accomplished in the furtherance of a common design. Commonwealth v. Robinson, 351 Pa.Super. 309, 316, 505 A.2d 997, 1001 (1986); Commonwealth v. Bachert, 271 Pa.Super. 72, 77, 412 A.2d 580, 583 (1979). In addition, despite the fact that an individual co-conspirator did not contemplate to kill, where a killing is a natural and probable consequence of a co-conspirator’s conduct, murder is not beyond the scope of the conspiracy. Commonwealth v. La, 433 Pa.Super. 432, 450, 640 A.2d 1336, 1345, allocatur denied, 540 Pa. 597, 655 A.2d 986 (1994).

In the present case, Baskerville knew that Haynes possessed a gun, Baskerville informed Haynes that Williams and Anderson were wearing jewelry in the car, and Baskerville surmised that a robbery was about to occur. Baskerville approached the passenger-side window and asked Anderson for a cigarette, at Haynes’ request, thus allowing Haynes to approach the car unnoticed. Further, Baskerville positioned himself against the passenger-side door, effectively trapping Anderson inside the car while the robbery was in progress. In addition, as previously discussed, Baskerville participated in the robbery despite having had numerous opportunities to flee the scene. Finally, Baskerville testified that he was relieved of a $100.00 debt owed to a friend of Haynes, and was promised $50.00 to keep quiet about the robbery.

Combining these facts, and the reasonable inferences which may be drawn from them in the light most favorable to the Commonwealth, we conclude that there was sufficient evidence to establish a criminal conspiracy to commit armed robbery between Baskerville and Haynes. Jarman, supra. Since the killing of Williams was done in furtherance of the armed robbery, Haynes’ actions are attributable to Baskerville and make him criminally responsible as well. Robinson, supra; La, supra. Baskerville’s contention, therefore, is entirely without merit. Glover, supra.

Finally, Baskerville contends that if the evidence for third-degree murder was premised solely on the conspiracy to commit murder conviction, and such a conspiracy was never proven, then the conviction for third-degree murder must be reversed. Having already determined that there was sufficient evidence to convict Baskerville of conspiracy to commit murder, Glover, supra; La, supra, we find this argument moot.

Judgment of sentence affirmed.

      . Baskerville testified that prior to approaching the automobile and asking for a cigarette, he believed that the co-defendant, Haynes, planned to rob the occupants.

      . Similarly, Baskerville’s reference to a Philadelphia Daily News article which alludes to the prosecutor's alleged misconduct is not reviewable by this court. See Pa.R.A.P. 1921 (appellate court may only consider the facts which have been duly certified in the record on appeal).