author: CERCONE, Judge:

text:
    580 A.2d 840
    COMMONWEALTH of Pennsylvania v. Karen PHILLIPS a/k/a Karenanne Phillips, Appellant.
    Superior Court of Pennsylvania.
    Argued June 5, 1990.
    Filed Sept. 26, 1990.

      Charles J. Cunningham III, Philadelphia, for appellant.
    Deborah Fleisher, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from a judgment of sentence entered after a jury found appellant, Karen Phillips, guilty of murder in the first degree, and possession of an instrument of crime. We affirm.

In an opinion filed January 22, 1990, the learned Judge Joseph D. O’Keefe has aptly and comprehensively summarized the facts underlying the instant case. We will not repeat those gruesome details here. After the jury found appellant guilty, post-trial motions were timely filed but were denied by the lower court. Appellant was subsequently sentenced to serve a term of life imprisonment for murder with a concurrent term of two and one-half (2V2) to five (5) years incarceration for possession of an instrument of crime. This timely appeal ensued in which appellant raises a total of sixteen issues and sub-issues:

I. Whether the prosecutor’s improper summation so prejudiced the jury that a new trial should be granted in that he,
a) testified to facts not of record
b) vilified appellant and her defense
c) played to the jurors’ sympathies
d) expressed his own opinions as to credibility and guilt?
II. Whether appellant was denied a fair trial by Det. Patricia Brennan testifying that appellant told her that appellant had a “prior criminal record” but that “she would not say for what”?
III. Whether appellant was denied a fair trial by the prosecutor’s questions to several witnesses eliciting testimony that appellant,
a) had received psychiatric treatment in the past
b) had a drug habit
c) had thrown temper tantrums in the past
d) had demonstrated violent behavior in the past and,
e) how she supported herself?
IV. The court improperly denied appellant’s challenge for cause against prospective juror Charles McMonigle who,
a) was a retired Philadelphia police detective;
b) knew the assistant district attorney trying the case;
c) knew some of the detectives who were testifying;
d) was a current, active member of the Fraternal Order of Police.
V. The court improperly instructed the jury on the definition of malice by telling them that it was the same as the intent to kill.
VI. That appellant was denied a fair trial by the prosecutor eliciting testimony from one of the interrogating detectives that, in his opinion, appellant’s statement to police was an untruthful account of what took place and that he had additional evidence not testified to, that appellant’s intent was to rob the deceased [sic] drug money.

We shall address these claims seriatim.

The first contention raised is that the prosecutor’s improper summation so prejudiced the jury that a new trial is required. Appellant argues that during summation, the prosecutor effectively testified to facts not of record, vilified her, “played to the juror’s sympathies” in an unwarranted manner, and expressed his own opinions as to appellant’s credibility and guilt. We note initially that every inappropriate remark made by a prosecutor does not necessitate a new trial. Commonwealth v. Maxwell, 505 Pa. 152, 166, 477 A.2d 1309, 1317 (1984), cert. denied., 469 U.S. 971, 105 S.Ct. 370, 83 L.Ed.2d 306 (1984), reh’g denied, 472 U.S. 1033, 105 S.Ct. 3516, 87 L.Ed.2d 644 (1985). The lower court is required to grant a new trial only when the prosecutor’s remarks inevitably prejudice the jury to such a degree that they are prevented from weighing the evidence and rendering a true verdict. Id. “[C]omments by a District Attorney do not constitute reversible error unless ‘the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.’ ” Commonwealth v. Marshall, 523 Pa. 556, 570, 568 A.2d 590, 597 (1989), quoting Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). When reviewing prosecutorial remarks, the statements must be evaluated in the context in which they occurred. Commonwealth v. Maxwell, supra; Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980). Mindful of this standard of review, we will consider the specific claims which appellant preserved in her post verdict motions. These are as follows:

A new trial should be awarded because the Court improperly overruled defense objections to the District Attorney’s closing argument, wherein the District Attorney,
a) invented facts not of record with regard to the victim’s physical condition, saying that she may not have walked as fast and may not have been as lucid as she once was;
b) described to the jury how the tire iron precisely fit the sketch drawn by Sergeant Snyder, although no evidence had been introduced that the sketch was drawn to the exact measurements of the victim;
c) argued to the jury that the defense did not have the facts, the law, or right on their side, as demonstrated by the cliché told to him by an old law professor;
d) attempted to arouse the sympathy of the jury by going outside the record and talking about his own grandmothers, so as to compare them to the victim in this case, who was the grandmother of [appellant];
e) invented facts not of record testifying for the victim, “what are you doing with that,” (indicating the tire iron), “don’t hit me with that”;
f) repeated the detectives’ opinion and then gave his own opinion as well that [appellant’s] statement to the police was not believable;
g) argued to the jury that [appellant] had thrown away the Bill of Rights when she committed this crime; and
h) had kept up a running theme throughout his speech about fear from crime and violence in the city streets and concluded his argument to the jury that if they came back with less than first degree murder he would have to find another place to live, implying that the streets of Philadelphia would not be safe.

See Appellant’s post-verdict motions, filed 4/20/89.

We have carefully inspected the certified record in the instant case and find no indication that the prosecutor invented facts not of record. In the context of describing the personal characteristics of Lucy Martin, the murder victim, the prosecutor made the following comments:

We talk about the least members of society and then we talk about quote, for it is written, whomever do this to the least of thine breathren they do unto me [sic]. Who are the least of these? Maybe they are the Lucy Martins of the world, the five foot three inch, seventy-one year old ladies who may not have walked as fast as she used to walk, she may not have been as lucid as she once was. She was suffering from some form of arterial schlerosis [sic], she got her monthly check, and she was deathly afraid of, if you believe the neighbors to be alone at night and she didn’t let anybody in.

N.T. 4/12/89 at 75. The statements by the prosecutor regarding the victim’s physical condition are fully supported by the testimony of the medical examiner, Dr. Robert L. Catherman. N.T. 4/11/89 at 22. As the learned trial judge correctly ruled, “These statements were confined to the evidence and the legitimate inferences drawn therefrom.” Trial court opinion at 18.

The record also belies appellant’s claim regarding the prosecutor’s description of the effect that contact with a tire iron had on the victim’s skull. The record indicates that the Commonwealth introduced sketches of the victim at trial rather than actual photographs because of the gruesome nature of the victim’s injuries. See, e.g., Commonwealth v. Crawley, 514 Pa. 539, 526 A.2d 334 (1987) (sketches which were neutral and noninflammatory were properly admitted as a visual aid to assist the jury in understanding the nature of the wounds inflicted on the victims). In commenting on defense counsel’s summation and the nature of the wounds inflicted on the victim, the prosecutor stated:

[Defense counsel] stood up here and he told you that we didn’t even show that this tire iron was used, and I found that to be incredible.
If you pay close attention to Sergeant Snyder’s sketch and you look at the right jaw, right down to the sprocket end it fits, blood on the shaft and all.

N.T. 4/12/89 at 75-76. These statements are consistent with and reflect Dr. Catherman’s testimony regarding the victim’s physical condition as illustrated by the police sketches and photographs, and his medical opinion regarding the cause of her death. N.T. 4/11/89 at 10-19; 25. As the prosecutorial remarks are supported by the record, we find no error.

Appellant’s claim of vilification rests upon the following statements made by the prosecutor:

[Defense counsel] is standing up asking questions and making his point, that’s his job. But he reminds me of an old law school professor that I had at the University of California in Los Angeles, a wise old man. He had retired and he once said, if you have the facts on your side, son, you argue the facts. If you have the law on your side, you argue the law. When you have right on your side, you argue right. And when you have neither, you stand up and you raise questions.

N.T. 4/12/at 76. Appellant does not explain the precise manner in which the contested comments created such bias and hostility in the minds of the jury as to preclude their ability to hinder their objective view of the evidence. As there is no per se rule in this Commonwealth prohibiting the prosecution from referring to legal adages, saws or maxims, we are unable to grant appellant relief on this claim. See Commonwealth v. Maxwell, supra.

Next, appellant claims that the district attorney improperly attempted to arouse the sympathy of the jury by going outside the record and talking about his own grandmothers, and by comparing them to appellant’s grandmother, the victim in the instant case. The defense raised the theory that appellant was guilty only of voluntary manslaughter because the victim provoked the incident by hitting her granddaughter. The prosecutor responded to this theory by discussing the nature of the relationship that normally obtains between grandparent and grandchild and by inviting the jury to reflect whether the response to grandmotherly chastisement would reasonably include bludgeoning an elderly woman to death with a tire iron. N.T. 4/12/89 at 78-80. We find no reversible error stemming from the fact that the prosecutor illustrated a more traditional view of the relationship between grandparent and grandchild with memories of his own youth.

Appellant also complains that it was improper for the assistant district attorney to invent testimony on behalf of the victim. In the course of commenting on why the victim opened her door to her granddaughter, the prosecutor made the following statement:

Lucy Martin made a mistake that night and she died for it. She was dead wrong for letting [appellant] into her apartment, if you believe that. She was dead wrong to care for her enough to wonder what she was doing out that time of night, and maybe in her words, hey, what are you doing with that, don’t hit me with this.

N.T. 4/12/89 at 82. We are unable to conclude that this brief speculation regarding the victim’s possible reaction upon being accosted by her granddaughter, who was armed with a tire iron, rises to the level of “inventing testimony.” Nor are we able to discern the manner in which the prosecutor’s fleeting remark could possibly have created such bias or hostility in the jury as to require the grant of a new trial.

The next claim of error raised by appellant is that the prosecutor improperly repeated an opinion expressed by a police detective and then gave his own opinion that appellant’s response to the police officer was not believable. N.T. 4/12/89 at 83. The background to the prosecutor’s comment transpired during the direct and cross-examinations of defense witness Detective John Szymczak. This witness had interviewed appellant shortly after her arrest and was aware of the extent of the victim’s injuries. Detective Szymczak testified that appellant initially reported that a black man had broken into the victim’s apartment and committed the crime; that he told the appellant that he did not believe her story; and that appellant eventually changed her explanation of how the victim died and admitted that she killed her grandmother. N.T. 4/11/89 at 106-08; 114-18. During summation, the prosecutor referred to the fact that although the police caught the accused “red-handed,” literally covered with the victim’s blood, she lied to the police regarding the identity of her grandmother’s assailant. N.T. 4/12/89 at 83. After making that comment, the prosecutor immediately said, “You can believe all, some, or none of the statement.” Id.

When viewed in context, it is evident that the assistant district attorney was not attempting to convince the jury that appellant was non-credible because of her demeanor or because she had a “bad character.” The evidence properly before the jury showed that appellant’s initial statement to the police was not entirely truthful. She first informed the police that an unknown black man killed her grandmother. She then admitted perpetrating the murder herself, but claimed that she hit her grandmother with her hands and not with a weapon. The record shows that the victim’s head was beaten until her brain was exposed, that pieces of her scalp were scattered on her living room floor, and that blood and hair were found on a tire iron at the scene. Based on this evidence, the detective clearly had reason to believe that appellant lied about hitting her grandmother only with her hands. The prosecutor’s reference to the detective’s conclusion that appellant lied in her statement was based on evidence properly before the jury, not on the prosecutor’s personal opinion, and was instantly followed by a reminder that the jury was responsible for making up their own minds regarding the truth or falsity of a witness’ statements. Under these circumstances, we find no error in the trial court’s refusal to grant a new trial. See Commonwealth v. McNeal, 456 Pa. 394, 319 A.2d 669 (1974) (it was not reversible error for the prosecutor to employ the terms “lie” or “lying” when referring to inconsistencies and contradictions between the accused’s testimony and prior statements made to the police).

The lower court has aptly and correctly addressed appellant’s contentions regarding both the prosecutor’s comment that she had thrown away the Bill of Rights and regarding a prosecutorial “theme” harping on crime and violence in the streets of Philadelphia. As appellant has conceded that “[m]uch of what the prosecutor argued to the jury was empty rhetoric,” we are somewhat at a loss to understand why appellant believes the prosecutor’s remarks entitle her to a new trial. See Appellant’s brief at 8. Finding no indication in the record that the prosecutor’s comments could have created the type of bias or hostility that would preclude the jury from performing its proper function, we affirm on the basis of the lower court opinion with regard to these two issues. See trial court opinion filed 1/22/90 at 19.

Appellant’s second main argument is that she was denied a fair trial because Detective Patricia Brennan testified that appellant had told the officer she had a prior criminal record but refused to explain what this entailed. We agree with appellant that evidence of other crimes is not admissible against a defendant solely to show his bad character and his propensity for committing criminal acts. Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 497 (1988). However, “[tjhere is no per se rule that requires a new trial for a defendant every time there is a reference to prior criminal activity.” Commonwealth v. Morris, 513 Pa. 169, 176, 519 A.2d 374, 377 (1986). The reference to prior criminal activity “must be prejudicial to the defendant, with prejudice resulting ‘where the testimony conveys to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense.’ ” Id., quoting Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979). Our supreme court has additionally determined that it is possible to eradicate any prejudice resulting from reference to prior criminal activity through an immediate curative instruction to the jury. Id. “[W]here the Commonwealth did not deliberately elicit the reference to a prior unrelated crime, did not exploit the reference, and introduced no evidence of the prior unrelated crime, a prompt curative instruction is sufficient to negate any prejudice which may have resulted.” Commonwealth v. Haag, 522 Pa. 388, 401, 562 A.2d 289, 295 (1989).

The record shows that Detective Brennan, while describing the entire interview process conducted in appellant’s case, testified that she queried appellant about routine biographical information. N.T. 4/11/89 at 52-56. The detective described appellant’s answers to inquiries regarding the appellant’s name, date of birth, place of birth, aliases or nicknames, height, weight, religion, marital status, current address, employment status, social security number, whether she had a driver’s license, had served in the armed forces, or spoke a foreign language. Id. Detective Brennan then stated, “She told me that she does have a criminal record, but she did not state what it was for. And she stated she was not currently on probation or parole at that time.” Id. at 56. The detective subsequently discussed appellant’s responses to a further series of questions relating to the names and addresses of her closest friend, her parents, and her brothers and sisters. The witness also described the condition and characteristics of the clothing and jewelry worn by appellant at the time of this interview. Id. at 56-57. After the witness explained that appellant was not wearing socks with her shoes at the time of her arrest, the prosecutor moved for the admission of an exhibit. At this point, defense counsel requested an interview in chambers. Id. at 57.

During the in-chambers discussion, which was of record, defense counsel moved for a mistrial. The prosecution, however, requested a curative instruction. While the lower court was resolving the better course to pursue, the jury was given a break. Id. at 60-61. Upon investigation, the trial judge ascertained that appellant had no prior criminal record as she had completed ARD subsequent to an arrest for disorderly conduct and the record had been expunged. Id. at 62-65. The lower court was satisfied that the prosecutor had not planned beforehand to present improper information to the jury or to allude to the fact that appellant had a prior arrest. As the Commonwealth made no effort to exploit this testimony in any way, the trial judge determined that it was appropriate to issue a curative instruction rather than to grant a new trial. Id. Immediately upon the resumption of the trial, the lower court judge instructed the jury as follows:

Ladies and gentlemen, there was some testimony from Detective Brennan, she indicated that the defendant had a prior record. That is incorrect. The defendant has no prior record. Do you all understand that she has no prior record, and as every defendant she is presumed innocent from this point up until you begin to deliberate.

Id. at 68 (emphasis added).

Although appellant concedes that a prompt curative instruction obviates the necessity for a new trial, she argues that the instruction given in this case was inadequate. We disagree. The lower court could do no more than explain to the jury that the detective had made an incorrect statement and that the appellant had no criminal record whatsoever. In fact, the trial judge emphasized the importance of the latter fact by repeating it twice to the jury. Under these circumstances, we find no reversible error.

The third group of issues raised by appellant is that she was denied a fair trial because the prosecutor elicited testimony from several witnesses regarding: (a) psychiatric treatment received by appellant; (b) appellant’s drug habits; (c) appellant’s history of throwing “temper tantrums”; (d) previous demonstrations of appellant’s violent behavior; and (e) the manner in which appellant supported herself. The admissibility of evidence is a matter addressed to the sound discretion of the trial court. Commonwealth v. Tedford, 523 Pa. 305, 328, 567 A.2d 610, 621 (1989). We may reverse evidentiary rulings only upon a showing that the trial court abused its discretion. Id., 523 Pa. at 238-39, 567 A.2d at 621. We have carefully considered the parties’ briefs regarding the prosecutor’s questions and the resulting answers. After reviewing the witnesses’ testimony in its proper context, we find that the trial court’s rationale for admitting this evidence demonstrates that no abuse of discretion occurred. We therefore affirm on the basis of the lower court opinion filed January 22, 1990 with regard to this issue.

Appellant’s next claim of error is that the trial judge improperly denied her challenge for cause against prospective juror Charles McMonigle, a retired police detective. Appellant contends that Mr. McMonigle knew the assistant district attorney trying the case, was acquainted with some of the detectives named as possible witnesses, and was an active member in the Fraternal Order of Police at the time of the trial. The test for determining whether a prospective juror should be disqualified is whether he or she is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence. Commonwealth v. Colson, 507 Pa. 440, 454, 490 A.2d 811, 818 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). This determination must be based on the potential juror’s answers to questions and on his or her demeanor. Id. A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice; or where the potential juror demonstrates a likelihood of prejudice by his or her conduct and answers to questions. Id. However, “[t]he decision on whether to disqualify is within the sound discretion of the trial court and will not be reversed in the absence of a palpable abuse of discretion.” Id.

During voir dire, Mr. McMonigle indicated that he knew nothing about the case, that he would assess the credibility of police witnesses by the same standard he would use for any other witness, that he had no fixed opinion regarding appellants’ guilt or innocence, that he would be fair and impartial and would base his verdict on the law and the evidence and not on sympathy, favoritism or prejudice. N.T. 4/5/89 at 225-30, 276-85. Mr. McMonigle stated that he did not-believe that police officers are more believable than civilians, id. at 279-81, and that his prior contacts with Assistant District Attorney King did not cause him to form any opinion about Mr. King’s credibility or reliability. Id. at 282-284. The potential juror also explained that he would not favor the Commonwealth over the defense in the instant case and that he would be fair regardless of the fact that he was acquainted with people involved in the case. Id. at 285.

Based on the above responses, the trial court refused to remove Mr. McMonigle for cause. Appellant then used one of her peremptory challenges to remove him. Based on the record, we find no indication that the trial court committed a palpable abuse of discretion in denying appellant's challenge for cause regarding Mr. McMonigle. The fact that appellant used all twenty of her peremptory challenges during the course of voir dire is not enough, in itself, to demonstrate palpable abuse on the part of the lower court. See Commonwealth v. Colson, supra.

Appellant also argues that the trial court charged the jury incorrectly on the definition of malice by telling them that it was the same as the intent to kill. Our supreme court has recently set forth the scope of review appropriate for a challenge to a jury charge:

When evaluating jury instructions, the charge must be read as a whole to determine whether it was fair or prejudicial. The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration. Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983).

Commonwealth v. Prosdocimo, — Pa. -, -, 578 A.2d 1273, 1274 (1990). The reviewing court will not find reversible error for every technical inaccuracy so long as the trial judge conveys what the jury needs to know to render its decision. Id., at -, 578 A.2d at 1276. In accordance with the directives of the Pennsylvania Supreme Court, we have carefully scrutinized the entirety of the trial court’s jury charge. We find no error of law, nor do we find any indication that the jury instructions were so lengthy or confusing as to prevent the lay jury from rendering a proper verdict.

The final allegation of error raised by appellant is that she was denied a fair trial because the prosecutor elicited testimony from Detective Szymczak that appellant had given an untruthful account of the events underlying this case and that appellant’s true intent had been to rob the victim to obtain drug money. As discussed supra, the defense had elicited testimony on direct examination to the effect that Detective Szymczak did not believe appellant’s initial statement to the police. As previously pointed out, the detective’s assessment of the truth of appellant’s statements was based on the blatant inconsistencies between her version of events and the nature of the victim’s fatal injuries. The lower court has provided a sufficient rationale for admitting the testimony to which appellant objects. See trial court opinion filed 1/22/90 at 15. We affirm on that basis with regard to this issue.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 2502.

      . Id. § 907.

      . In her "Statement of Questions Involved," appellant's brief sets forth only the first three of the sixteen issues and sub-issues later developed in the “Argument” section of her brief. This is a clear violation of Pa.R.A.P., Rule 2116, 42 Pa.C.S.A. Appellant's brief also lacks legible page numbers and appears to be missing material from the "Argument” section. Although our review of the issues raised on appeal has been hampered by the defects in appellant’s brief, we are not precluded from reaching the merits of appellant’s claims as the lower court has addressed each contention properly preserved by post-trial motion. In consideration of this fact, and because this is an appeal from a conviction for first degree murder, we decline to find waiver in this instance. See Pa.R.A.P., Rule 105, 42 Pa.C.S.A. However, we direct the attention of counsel for appellant to Commonwealth v. Sirbaugh, 347 Pa.Super. 154, 160-61, 500 A.2d 453, 456 (1985) disapproving the practice of filing briefs which contravene the Rules of Appellate procedure and quoting the following remarks made by Aldisert, J. in United States v. Hart, 693 F.2d 286, 287 n. 1 (3d Cir.1982):
      With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two errors. I have said in open court that when I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.
      (Emphasis in the original.) See also Commonwealth v. Klinger, 323 Pa.Super. 181, 470 A.2d 540 (1983) (disapproving failure to comply with the Rules of Appellate Procedure).

      . The victim’s skull had been crushed and bludgeoned to the extent that her brain was exposed to view.

      . The Maxwell court found no reversible error where the prosecutor told the jury:

        There is an old adage in the law if you got the facts on your side, you argue the facts, if you got the law on your side, you argue the law, if you have neither, you blow smoke. And' that is what counsel did for two hours yesterday. By putting me on trial he was blowing smoke.

        Id.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    580 A.2d 848
    COMMONWEALTH of Pennsylvania v. Heriberto PIRELA, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 21, 1990.
    Filed Sept. 26, 1990.

      James S. Bruno, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.
    Before CIRILLO, President Judge, and HOFFMAN and BROSKY, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for second degree murder, robbery, and criminal conspiracy. Appellant contends that: (1) trial counsel was ineffective; (2) there was insufficient evidence to convict him; and (3) the trial court erred in denying a motion for a mistrial after the prosecutor told a witness he would be jailed if he failed to testify. For the following reasons, we affirm.

On July 6, 1983, appellant was arrested and charged in connection with the August 15, 1982 shooting of Ignacio Slafman during the robbery of a pizzeria. After a bench trial with a co-defendant on March 19, 1984, appellant was found guilty of the above-mentioned crimes. On March 21, 1984, post-verdict motions were filed in which appellant reserved the right to file additional reasons to support his claims when the notes of testimony were made available. On March 27, 1985, supplemental post-verdict motions were filed. After denying appellant’s motions, the trial judge sentenced appellant to life imprisonment for murder, and five to ten years imprisonment for criminal conspiracy, those sentences to run consecutively. Although a timely appeal was filed, counsel failed to timely file a brief, and the appeal was dismissed: Subsequently, appellant filed a petition under the Post Conviction Hearing Act and a pro se petition to appoint new counsel. Present counsel was appointed, and, thereafter, appellant sought leave to appeal from the judgment of sentence, nunc pro tunc. The trial court granted the request, and this timely appeal followed.

Appellant contends that trial counsel was ineffective for (1) failing to request permission to file supplemental post-verdict motions; and (2) failing to object to the admission into evidence of co-defendant’s statement, or alternatively, request a severance. We shall address these claims, seriatim.

On appellate review, counsel is presumed to be effective, Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 975 (1987), and the burden rests with appellant to overcome that presumption. Commonwealth v. Jones, 298 Pa.Super 199, 205, 444 A.2d 729, 732 (1982). To prevail on a claim of ineffectiveness, appellant must show that his contention has arguable merit, that trial counsel’s course of action had no reasonable basis designed to serve his interests, and that counsel’s conduct prejudiced him. Commonwealth v. Pierce, supra; see also Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

Appellant first argues that trial counsel’s failure to request permission on the record to file supplemental post-verdict motions rendered his assistance ineffective. We disagree.

If trial counsel fails to request permission on the record to file supplemental post-verdict motions, but the trial court, nonetheless, addresses the issues on the merits, then the issues are not waived. See Commonwealth v. Hewett, 380 Pa.Super. 334, 338, 551 A.2d 1080, 1082 (1988) (characterizing Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (Table) (1988) (per curiam)), appeal denied, 522 Pa. 583, 559 A.2d 526 (1988). Therefore, issues in untimely filed post-verdict motions that were not treated as waived by the trial court will not be considered waived for purposes of appeal. See Commonwealth v. McBride, 391 Pa.Super. 113, 117-19, 570 A.2d 539, 541 (1990); Commonwealth v. Hewett, supra.

Here, there is no reason for us to conclude that the trial court considered any of appellant’s issues waived. The trial court opinion addressed issues contained in the supplemental post-verdict motions. See Trial Court Opinion at 2. Although the trial court did not write on each claim contained in the supplemental post-verdict motions specifically, the court did consider and deny each issue. Because the trial court addressed the merits of the issues in the supplemental post-verdict motions, the issues are preserved for appeal. Accordingly, appellant’s claim that counsel was ineffective for failing to request permission on the record to file supplemental post-verdict motions lacks arguable merit.

Appellant next contends that trial counsel was ineffective for failing to object to the admission of his co-defendant’s redacted statement or, alternatively, to request a severance. Although appellant’s argument is somewhat confusing, he apparently relies on the United States and Pennsylvania Constitutions to argue that absent a face-to-face confrontation, the use of a co-defendant’s statement, regardless of the sufficiency of redaction, should be precluded. See Appellant’s Brief at 19. We disagree.

As appellant himself acknowledges, a co-defendant’s statement may be sufficiently redacted so as to be admissible. See Commonwealth v. Rawls, 276 Pa.Super. 89, 419 A.2d 109 (1980). Indeed, it is well-established that a co-defendant’s edited statement is admissible if it retains its narrative integrity and yet in no way implicates the defendant. Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977); Commonwealth v. McQuaid, 273 Pa.Super. 600, 417 A.2d 1210 (1980); Commonwealth v. Rawls, supra.

Here, appellant argues that the statement was not properly redacted even though no reference was made to him. See N.T. March 19, 1984 at 7-9. The statement, as read, referred to, and implicated, several people by name, including the co-defendant. The statement also referred to one person as “X”. As the Commonwealth aptly notes, the statement never identified or inculpated appellant. Furthermore, we find no evidence that the statement was introduced against appellant. On this record, we are satisfied that the trial judge, sitting as fact-finder, considered this statement against co-defendant only, and that it could not have worked to prejudice appellant. Therefore, we find no ineffectiveness in trial counsel’s failure to object to the introduction into evidence of co-defendant’s statement.

Appellant next argues that trial counsel was ineffective for not requesting a severance. This claim is meritless. The decision of whether to grant a severance is within the discretion of the trial court, and the trial court’s decision in this regard will not be reversed absent an abuse of discretion. Commonwealth v. Patterson, 519 Pa. 190, 197, 546 A.2d 596, 599 (1988); see also Commonwealth v. Morales, 508 Pa. 51, 61, 494 A.2d 367, 372 (1985). Furthermore, without a showing of real potential for prejudice our general policy is to encourage joinder of offenses. Commonwealth v. Patterson, supra.

In the case at bar, the statement was adequately redacted and admitted against co-defendant, and there is no reason for us to believe that the trial court considered it for an improper purpose. As noted above, the possibility of prejudice to appellant under these circumstances is minimal. Thus, this claim lacks arguable merit, and we find no ineffectiveness by trial counsel for his failure to request a severance.

Appellant’s next contention is that the evidence was insufficient to support his convictions. However, because appellant simply challenges the credibility of a witness, Heriberto Colon, see Appellant’s Brief at 6-8, and does not explain which elements of which offenses were insufficiently supported by evidence, his claim is more properly characterized as a weight of the evidence challenge. We will address it as such.

In reviewing a weight of the evidence claim we look to see if the “verdict was so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative.” Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989) (citations omitted). The decision whether to grant a new trial is within the trial court’s discretion, and we review that decision based upon an abuse of discretion standard. Id. Furthermore, since issues of credibility are left to the trier of fact, the trial court, sitting as fact finder, was free to accept all, part, or none of a witness’s testimony. See Commonwealth v. Farquharson, 467 Pa. 50, 59, 354 A.2d 545, 550 (1976).

In this case, appellant claims that Heriberto Colon’s testimony was “inconsistent” and “unreliable.” See Appellant’s Brief at 7. However, the court’s verdict reflects that it chose to credit Mr. Colon’s testimony. In addition, we note that the Commonwealth presented other witnesses who also implicated appellant and corroborated, in part, Mr. Colon’s testimony on direct examination. See N.T. March 13, 1984 at 4-5, 29-32, 59. Therefore, the trial court’s determination here is not so contrary to the evidence as to shock our sense of justice.

Appellant’s final contention is that the trial court erred in denying a motion for a mistrial when the prosecution told a Commonwealth witness, Miguel Bones, that the court would jail him for refusing to testify. We disagree.

The decision of the trial court to deny a motion for mistrial will not be disturbed absent an abuse of discretion. Commonwealth v. Al Hamilton Contracting Co., 383 Pa.Super. 429, 434, 557 A.2d 15, 18 (1989) (citation omitted), allocatur denied 523 Pa. 640, 565 A.2d 1165 (1989); see also Commonwealth v. Potts, 314 Pa.Super. 256, 274, 460 A.2d 1127, 1136 (1983). If we deem that the prosecutor’s remarks worked to prejudice appellant, i.e. had an adverse effect upon the outcome of the proceedings, we must find an abuse of discretion. See Commonwealth v. Al Hamilton Contracting Co., supra; see also Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988) (citations omitted).

The record reveals that Mr. Bones refused to answer or acknowledge several of the Commonwealth’s questions when he was first called to testify. See N.T. March 8, 1984 at 63-64. After the Commonwealth attempted to refresh Mr. Bones’s memory, the court called a recess. See id. at 68-69, 72. Five days later the questioning resumed. Mr. Bones then testified that, after speaking with the prosecutor over the weekend, his memory was refreshed. See N.T. March 13, 1984 at 9. Mr. Bones further testified that during the conversation the district attorney told him that the judge would put him in jail if he did not talk. See id. at 12. Appellant’s trial counsel later requested a mistrial. See id. at 23. The judge denied the motion saying that he would have put Mr. Bones in jail if he did not testify. See id.

It is well-settled that a witness’s unprivileged refusal to testify is plainly contempt. Commonwealth v. Tirado, 487 Pa. 362, 369, 409 A.2d 392, 395 (1979); Commonwealth v. McDermott, 377 Pa.Super. 623, 641, 547 A.2d 1236, 1245 (1988). The court’s power to punish for contempt includes the infliction of summary punishment, Commonwealth v. Marcone, 487 Pa. 572, 579, 410 A.2d 759, 763 (1980), a term of imprisonment, or a fixed fine. Grubb v. Grubb, 326 Pa.Super. 218, 223, 473 A.2d 1060, 1062 (1984) (citing In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975)).

As the trial court stated on the record, the prosecutor’s 'statement to Mr. Bones was true. Because the court could, and apparently, would have jailed Mr. Bones for his refusal to testify, the district attorney’s statement to Mr. Bones does not constitute threatening or intimidating behavior. Nor was the statement unfairly prejudicial to appellant. There is no evidence that the prosecutor attempted to coerce Mr. Bones into giving any particular testimony. Indeed, we have found no evidence on the record that the prosecutor’s statement to Mr. Bones coerced the witness into changing his testimony in any way. The trial court, therefore, did not abuse its discretion in this regard, and appellant is not entitled to relief on this claim.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Appellant also contends that the district attorney engaged in prosecutorial misconduct by violating a sequestration order when he met outside of court with one of the Commonwealth witnesses in the presence of a defense witness. See Appellant’s Brief at 10. Upon violation of a sequestration order, it is within the trial court’s discretion to fashion a remedy. Commonwealth v. Smith, 464 Pa. 314, 320, 346 A.2d 757, 760 (1975); see also Commonwealth v. Mokluk, 298 Pa.Super. 360, 363, 444 A.2d 1214, 1216 (1982) (Hoffman, J., concurring). After carefully reviewing the record and the parties’ briefs, we conclude that the trial court has properly addressed and disposed of this issue in its opinion. As the court noted, if a violation of the sequestration order occurred at all, it "had little or no impact on the witnesses or on the trial and was not serious." Accordingly, we need not address the issue further.

      . The robbery chárge merged with the murder charge for sentencing purposes.

      . The Post Conviction Hearing Act (PCHA) has since been modified in part, repealed in part, and renamed the Post Conviction Relief Act (PCRA). See 42 Pa.C.S.A. § 9541-9546.

      . See Pa.R.Crim.P. 1123, which, in relevant part, provides:
      Post-Verdict Motions
      (a) Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may be considered which were raised in pre-trial proceedings or at trial, unless the trial judge, upon cause shown, allows otherwise. Argument, a hearing, or both shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions that are stated specifically and with particularity may be argued or heard....

      . The record reveals that the co-defendant in this case gave statements to police on two occasions, September 30, 1982, and July 7, 1983. See N.T. March 19, 1984 at 7-9, 13-16.

      . Appellant’s separate weight of the evidence claim was raised in boilerplate fashion in post-trial motions, and, therefore, it is waived on appeal. See Commonwealth v. Holmes, 315 Pa.Super 256, 461 A.2d 1268 (1983) (en banc).

      . We note that a question exists regarding whether appellate courts in this Commonwealth are still able to review a verdict to determine if it is against the weight of the evidence. See Commonwealth v. Nelson, 514 Pa. 262, 271-72 n. 3, 523 A.2d 728, 733 n. 3 (1987); see also Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989). But see Commonwealth v. Jenkins, 396 Pa.Super. 395, 400, 578 A.2d 960, 963 (1990), ("the passing statements of our Supreme Court in Wallace and Nebon have not resulted in a prohibition of weight of the evidence claims in our appellate courts" and, thus, "an examination of these matters by appellate tribunals still exists.”).

      . This claim as argued in appellant’s brief is different from what is raised in appellant’s Statement of Questions. Compare Appellant’s Brief at 2, 12-13. Although this claim technically should, therefore, be waived, in the interest of judicial economy, we will address it.


author: JOHNSON, Judge:

text:
    580 A.2d 853
    SALVINO STEEL & IRON WORKS, INC., Appellant, v. FLETCHER & SONS, INC. and Fireman’s Fund Insurance Co., The American Insurance Co.
    Superior Court of Pennsylvania.
    Argued June 20, 1990.
    Filed Sept. 27, 1990.

      Neil Hilkert, Lansdale, for appellant.
    Roy S. Cohen, Philadelphia, for appellees.
    Before ROWLEY, McEWEN and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant Salvino Steel and Ironworks, Inc., (Salvino), subcontractor for a project renovating the dental facility at Temple University in Philadelphia, Pennsylvania, appeals the order granting summary judgment to appellee American Insurance Company (American), issuer of the surety bond required for public construction by the Public Works Contractors’ Bond Law of 1967, December 20, P.L. 869, §§ 1-12, codified at 8 P.S. § 191-202. We affirm.

American, through its parent company, Fireman’s Fund Insurance Company, issued a surety bond to the original general contractor, Fletcher & Sons, Inc., as statutorily required for public works under 8 P.S. § 193. The bond provided that:

The principal and Surety hereby jointly and severally agree with the obligee herein that every person, copartnership, association or corporation who, whether as Subcontractor or as a person otherwise entitled to the benefits of this Bond, has furnished material or supplied or performed labor or rented equipment used in the prosecution of the work as above provided ... and who has not been paid in full therefor, may sue in assumpsit on this Bond ... and prosecute the same to final judgment____

Performance Bond, January 23, 1987. Fletcher voluntarily defaulted on the contract on June 4, 1987. Therefore American, as surety, negotiated a new contract with Keating Construction Company on August 21, 1987. Keating subcontracted with Salvino to perform essentially the same work agreed to in the earlier contract with Fletcher. Keating purchased from Salvino all the steel it produced for the construction under the original subcontract with Fletcher. However, the delay occasioned by Fletcher’s default caused Salvino to incur costs of storing the steel and renting trailers upon which to store it for the period between June 1, 1987 and September 26, 1987.

Salvino brought this action against Fletcher, Fireman’s and American solely to recover the costs incurred during the period between contracts. American moved for summary judgment on the basis that, as surety, it is not liable for such costs but only for the anticipated and bargained-for costs. Salvino argued that the costs incurred as a result of the delay were contemplated under the contract. In the alternative, Salvino argued that American was liable for the sum under a quasi-contract theory. The trial court, interpreting the surety bond, concluded that it did not encompass costs caused by delay and that Salvino did not present facts establishing a basis for recovery under a quasi-contract theory. The court thus granted American’s motion for summary judgment on October 30, 1989. The other defendants, including Fletcher, remain in the action. This appeal follows.

On appeal Salvino argues that, contrary to the trial court’s interpretation of the surety bond, the bond actually contemplates payment for costs incurred as a result of the delay. Salvino also argues that American is liable for the cost of that storage under a quasi-contract theory. Both claims fail.

The entry of summary judgment will not be reversed on appeal unless there has been an error of law or a clear abuse of discretion. O’Neill v. Checker Motors Corporation, 389 Pa.Super. 430, 567 A.2d 680 (1989). Examining the record in the light most favorable to the non-moving party, a court may properly grant a summary judgment motion where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of any material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035(b); McDonald v. Marriott Corporation, 388 Pa.Super. 121, 564 A.2d 1296 (1989).

The first question before us is whether the bond covered the damages sought by Salvino. For this analysis, the bond is the proper place to start because the true intent and meaning of the instrument are the primary determinants of the extent of liability. Lite-Air Products, Inc. v. Fidelity & Deposit Company of Maryland, 437 F.Supp. 801 (E.D.Pa.1977), citing Monongahela Street Railway Co. v. Philadelphia Co., 350 Pa. 603, 39 A.2d 909 (1944). In order to determine the scope of the bond, we must look to both the language of the bond itself and to the statute with which it was executed to conform. Reliance Universal, Inc. of Ohio v. Ernest Renda Contracting Company, Inc., 308 Pa.Super. 98, 454 A.2d 39 (1982). It is the language of the bond that is determinative of the surety’s obligation and not the underlying agreement between the municipal contractor and his materialman. Id.

The bond provides that the surety guarantees payment to those who have “furnished material or supplied or performed labor or rented equipment used in the prosecution of the work as above provided.” The bond does not contain a clause referring to responsibility for costs resulting from delay. Further, the language in the bond, as the trial court noted, substantially tracks the statutory language of 8 P.S. § 193. Where the bond is statutorily required and the bond’s terms are framed in the language of the statute, the obligations to which the surety agreed are specifically stated in and limited by the bond and are those obligations required by the statute. Reliance, supra. Because the language in the bond tracks the language of the statute, the cases interpreting requirements under the statute determine the scope of liability under the bond at issue. Lite-Air, supra.

Salvino does not claim that the bond expressly provides for costs incurred as a result of delay. Rather, it claims that the bond/statutory language should be interpreted to include costs resulting from delay as being contemplated contract costs. The law is otherwise. In Lite-Air Products the Federal District Court applied Pennsylvania law to the precise issue before us, whether the statutory/bond language reciting liability for amount due for labor and materials included damages resulting from a breach of contract by the principal contractor. The court decided that delay damages are not an indispensable cost, and as long as there is no intention specified in the bond, the surety is not liable for the damages caused by the principal. Lite-Air Products, 437 F.Supp. at 804. The Lite-Air Products court concluded that because there was no evidence of any intention to hold the surety liable for such damages, the bond did not guarantee these costs.

In Reliance, supra, this Court adopted and applied the Lite-Air Products rationale. The issue before the court was whether service and financing charges are covered by the bond mandated by 8 P.S. § 193. Emphasizing that the wording of the statute is narrow and that bonds drafted pursuant to the statute may be equally narrow, the court decided that the surety did not obligate itself to pay financing and service charges when it agreed to guarantee payment for “labor and materials used or reasonably required for use in the performance of the contract.” Reliance, 308 Pa.Super. at 110, 454 A.2d at 45. We now apply these principles to the case before us and conclude that because the bond is unambiguous and does not include a delay specification, American as surety is not liable for damages caused by delay.

We also reject Salvino’s argument in the alternative that it is entitled to payment from American under a quasi-contract theory. A quasi-contract, also referred to as a contract implied in law, imposes a duty, not as a result of any agreement, whether express or implied, but in spite of the absence of an agreement when one party receives an unjust enrichment at the expense of another. Birchwood Lakes Community Ass’n v. Comis, 296 Pa.Super. 77, 86, 442 A.2d 304, 308 (1982). Having failed to prove a cause of action under a breach of contract theory, a party may not then attempt to prove the case in quasi-contract, unless the complaint originally, or as amended, sets forth facts supporting a cause of action in quasi-contract. Id. Salvino’s complaint alleges solely a claim for breach of contract. It pleads none of the facts in support of its alleged quasi-contract theory as presented to this Court, that the steel fabricated for the project would not have survived the delay period had it not been stored, and thus Salvino saved American the cost of paying for entirely new fabrication of the steel.

Even if the complaint had been properly pled, the evidence before the court does not support Salvino’s claim that American was unjustly enriched by Salvino’s actions. In order to prove unjust enrichment, the plaintiff must show that the defendant wrongfully secured or passively received a benefit that would be unconscionable for it to retain. Roman Mosaic and Tile Co., Inc. v. Vollrath, 226 Pa.Super. 215, 313 A.2d 305 (1973). As the trial court found, Salvino unilaterally made the decision, without inducement, to begin storing the steel offsite. The alleged inducement, a letter dated July 30, 1987, was sent two months after Salvino began to incur storage costs and cannot be interpreted as a directive to continue storage. The letter simply urged the on-site contractors to continue their work. It in fact put Salvino on notice that payment for any materials could not be promised. We agree with the trial court that none of this amounts to wrongfully securing or passively receiving a benefit that would be unconscionable for American to retain.

For all the foregoing reasons, we affirm the order granting summary judgment to American and dismissing it from the case.

Order affirmed.


author: KELLY, Judge.

text:
    580 A.2d 857
    COMMONWEALTH of Pennsylvania v. Walter WOLFE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 23, 1990.
    Filed Sept. 27, 1990.
    Jeffrey C. McCullough, Warrington, for appellant.
    Alan M. Rubenstein, Dist. Atty., Doylestown, for Comm., appellee.

      Before KELLY, HUDOCK and HESTER, JJ.
   KELLY, Judge.

In this appeal we are called upon to determine whether an ineffective assistance of counsel claim regarding counsel’s performance at sentencing is cognizable under the Post-Conviction Relief Act. We find that it is not and affirm the order of the trial court denying appellant relief.

The relevant facts and procedural history are as follows. The appellant was tried by a jury and convicted of terroristic threats, involuntary deviate sexual intercourse, indecent assault, and corruption of minors. The victim of these incidents, appellant’s step-daughter, testified that the incidents began when she was thirteen and lasted for a period of five years. Post-verdict motions were filed and denied. Appellant was sentenced to eight to twenty years for the offenses against his step-daughter and a concurrent sentence of one to two years for the threats on the victim’s boyfriend.

Appellant then filed a direct appeal to this Court which resulted in affirmance of his judgment of sentence. See Commonwealth v. Wolfe, 377 Pa.Super. 659, 541 A.2d 1156 (1988). Thereafter, on March 10, 1989, appellant filed a petition for post-conviction relief under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq. This petition was denied following a hearing. This timely appeal followed.

On appeal, appellant contends that his appellate counsel was ineffective for failing to raise the ineffectiveness of trial counsel in failing to raise and preserve (1) the excessiveness of sentence; (2) the failure of the trial court to indicate on the record its understanding of the sentencing guidelines and (3) the failure of the trial court to state sufficient reasons on the record why the sentence exceeded the guidelines. In addition, appellant contends appellate counsel was ineffective in failing to present mitigating evidence at sentencing.

In response to appellant’s claims, the Commonwealth contends that the appellant has failed to set forth grounds upon which relief may be granted pursuant to § 9543 of the Post Conviction Relief Act. In support of this claim the Commonwealth contends that appellant’s ineffectiveness claims do not relate to ineffectiveness which have “so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. 9543(a)(2)(ii). The trial court embraced this argument. For the reasons which follow, we too agree with the Commonwealth and affirm the order denying appellant relief under the Post Conviction Relief Act.

Prior to April 13,1988, under the Post Conviction Hearing Act, to be eligible for collateral relief under the auspices of a claim of ineffective assistance an appellant had to prove:

(1) That he has been convicted of a crime.
(2) That he is incarcerated in this Commonwealth under a sentence of death or imprisonment or on parole or probation.
(3) That his conviction or sentence resulted from one or more of the following reasons:
(i) The introduction of evidence obtained pursuant to an unlawful arrest.
(ii) The introduction of evidence obtained by an unconstitutional search and seizure.
(iii) The introduction of a coerced confession into evidence.
(iv) The introduction into evidence of a statement obtained in the absence of counsel at a time when representation is constitutionally required.
(v) The infringement of his privilege against self-incrimination under either federal or state law.
(vi) The denial of his constitutional right to representation by competent counsel.

42 Pa.C.S.A. 9541 et seq. (1982).

Effective April 13, 1988, however, was the new modem for collateral relief, the Post Conviction Relief Act. This statute allows for collateral relief as follows:

(a) General Rule.—To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:
* sH * * * *
(2) That the conviction or sentence resulted from one or more of the following:
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty.
(iv) The improper obstruction by Commonwealth officials of the petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(v) A violation of the provisions of the Constitution, law or treaties of the United States which would require the granting of Federal habeas corpus relief to a State prisoner.
(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S.A. 9543(a)(2). (Emphasis added). Under the new act, therefore, not only must the appellant prove ineffectiveness, but the ineffectiveness must have “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Id. This Court has previously held that such an alteration constitutes, “a substantial restriction of the grounds for post-conviction collateral relief in Pennsylvania.” Commonwealth v. Thomas, 396 Pa.Super. 92, 98, 578 A.2d 422, 425 (1990). Recently, our courts have required strict compliance with this provision.

For example, in Commonwealth v. Perlman, 392 Pa.Super. 1, 572 A.2d 2 (1990), a case in which the appellant sought collateral relief under the new statutes, this Court found the issue of whether trial and appellate counsel had been ineffective for failing to raise and preserve a claim based on the sufficiency of the evidence cognizable. This Court specifically held, “the claim involves the sufficiency of the evidence, which necessarily implicates the truth-determining process.” Id. 572 A.2d at 4.

Similarly, this Court held in Commonwealth v. Thomas, supra, that appellant’s contention of ineffectiveness for failing to object to' and preserve the Commonwealth’s introduction of alleged hearsay statements was also cognizable under the PCRA. This Court concluded there that “[a] verdict based in any material respect on inadmissible hearsay is unreliable, because inadmissible hearsay is by definition unreliable.” Id., 578 A.2d at 429 (emphasis supplied).

However, in Commonwealth v. Dukeman, 388 Pa.Super. 469, 565 A.2d 1204 (1989), appellant alleged in his PCRA petition that trial counsel had been ineffective in failing to file a motion to dismiss the charges pursuant to Pa.R. Crim.P. 1100. The PCRA court had denied appellant’s petition without a hearing. On appeal this Court agreed that the petition was properly dismissed. In doing so, this Court held that:

“Pursuant to 42 Pa.C.S.A. § 9543(a)(2)(h), to be eligible for PCRA relief, appellant must plead and prove by a preponderance of the evidence that his conviction resulted from ‘Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.’ Counsel’s ineffectiveness for failure to file a motion to dismiss due to a violation of Rule 1100 has absolutely no effect on the ‘truth determining’process. See Commonwealth v. Blackwell, 384 Pa.Super. 251, 253, 558 A.2d 107, 109 (1989) ...” (emphasis added).

Thus, the Court noted that appellant’s petition should have been “summarily dismissed without a hearing and without reaching the merits.” Id. 565 A.2d at 1206 (emphasis supplied).

Moreover, in Commonwealth v. Lyons, 390 Pa.Super. 464, 568 A.2d 1266 (1989) appellant alleged that all prior counsel had been ineffective for failing to preserve and argue the fact that his preliminary hearing had been defective. This Court opined:

“We hold only that appellant is not entitled to collateral relief under the Post-Conviction Relief Act where, as here, the absence of a preliminary hearing did not so undermine the truth determining process as to render unreliable the adjudication of guilt."

Id. 390 Pa.Super. at 469, 568 A.2d at 1269 (emphasis added).

In light of the foregoing rulings, we hold that appellant’s challenges to prior counsel’s ineffectiveness are not cognizable under the PCRA. Appellant’s claims relate solely to sentencing, specifically whether the trial court abused its discretion and whether counsel was ineffective for failing to put forth mitigating factors for the trial court to consider. As the Commonwealth argues, however, we can discern no challenge to counsels’ ineffectiveness which, under the new statute, “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Indeed, under the wording of the new statute, it appears that no claim based on discretionary aspects of sentence would be reviewable. This interpretation is made even more certain by the fact that although the legislature found it necessary to include a provision in the PCRA expressly allowing for collateral relief based on illegal sentences, see 42 Pa.C.S.A. § 9543(a)(2)(vii), no counterpart allowing for review of challenges to discretionary aspects of sentence can be found in the new statute.

Based on the foregoing, we conclude that as appellant’s instant claim relates only to ineffective assistance in failing to challenge discretionary aspects of sentence, and because no ineffective assistance of counsel claims may be heard under the PCRA unless such claim would undermine the truth determining process so as to render unreliable the adjudication of guilt or innocence, appellant’s claim is not herein reviewable. Accordingly, we affirm the order of the trial court dismissing appellant’s claim for post-conviction relief.

Order Affirmed.

      . We note that as this court has long recognized that issues concerning the legality of sentence can never be waived, see Commonwealth v. Pfeifer, 396 Pa.Super. 641, 579 A.2d 897 (1990); Commonwealth v. Wallace, 368 Pa.Super. 255, 533 A.2d 1051 (1987); Commonwealth v.

        Lee, 363 Pa.Super. 400, 526 A.2d 405 (1987); Commonwealth v. Adams, 350 Pa.Super. 506, 504 A.2d 1264 (1986), the provision expressly allowing for review of challenges alleging illegal sentence may be superfluous as such a claim may be raised at any stage.


author: MONTEMURO, Judge:

text:
    580 A.2d 860
    Richard J. MYERS and Theresa A. Myers, His wife, Appellants, v. Daniel E. McHENRY and Barbara J. McHenry, His wife, Robert J. Glunk, Bernard D. Rell, and Century 21 Rell Real Estate, Appellees.
    Superior Court of Pennsylvania.
    Argued May 22, 1990.
    Filed Sept. 26, 1990.

      Frank S. Miceli, Lock Haven, for appellants.
    William P. Carlucci, Williamsport, for McHenry, appellees.
    Richard Vanderlin, Williamsport, for Glunk, appellee.
    Before OLSZEWSKI, MONTEMURO and FORD ELLIOTT, JJ.
   MONTEMURO, Judge:

Appellants Theresa and Richard Myers (Myerses) bring this appeal from a grant of summary judgment in favor of defendant-appellees Barbara and Daniel McHenry, Robert Glunk, Bernard Rell and Century 21 Rell Real Estate. The Myerses brought this action against appellees, alleging fraud and misrepresentation on the part of the defendants with respect to the Myerses’ purchase of the McHenrys’ home. Relying on the case of LeDonne v. Kessler, 256 Pa.Super. 280, 389 A.2d 1123 (1978), the trial court concluded that the parol evidence rule would bar testimony at trial regarding appellees’ misrepresentations, and therefore granted summary judgment in favor of all of the defendants. Because we find that the trial court erroneously granted summary judgment in favor of the defendants, we reverse and remand the case for further proceedings.

We will uphold a grant of summary judgment only in those cases in which there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b). In reviewing a grant of summary judgment, we accept as true all well-pleaded facts in the non-moving party’s pleadings and give the non-moving party the benefit of all reasonable inferences to be drawn therefrom. Lookenbill v. Garrett, 340 Pa.Super. 435, 490 A.2d 857 (1985).

The pleadings and depositions in this case establish the following facts. On August 18, 1984, the Myerses were taken by Robert Glunk, a sales agent for Century 21, to look at the McHenrys’ home which was up for sale. During the inspection, there was no inquiry or discussion concerning the well or water flow rate. After spending about an hour looking over the property, the Myerses decided to make an offer to buy the premises.

As Mr. Myers was aware that the water to the property was supplied by a well, he wanted the well and septic system to be checked to make sure that the well was not going dry. On August 18, 1984, the same day that the Myerses looked at the McHenrys’ home, Mr. Glunk drafted the agreement of sale. The agreement contained a special provision, special clause 5(D), which read:

Buyer will have water and septic approved at his cost.— to check for flow and purity. They must meet approved standard.

R.R. at 14a. The agreement also contained an integration clause which provided:

12. REPRESENTATIONS. It is understood that Buyer has inspected the property, or hereby waives the right to do so and he has agreed to purchase it as a result of such inspection and not because of or in reliance upon any representation made by the Seller or any other officer, partner, or employee of Seller, or by the agent of the Seller or any of the latter’s salesmen and employees, or by a cooperating Broker, if any, or any of his salesmen and employees and that he has agreed to purchase it in its present condition unless otherwise specified herein. It is further understood that this agreement contains the whole agreement between the Seller and the Buyer and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale. Furthermore, this agreement shall not be altered, amended, changed or modified except in writing executed by the parties hereto.

The McHenrys accepted the Myerses’ offer to buy the home, and the agreement of sale was executed. Four days later, on August 22, 1984, the Myerses returned to the McHenry home with Mr. Glunk for a second viewing of the property. During that visit, Mrs. McHenry explained that the well was a “slow recovery well.” She assured the Myerses that “you could use it like a normal house, but you couldn’t do five loads of wash and wash the vehicle and water the lawn in the same day and expect to have—expect the well to keep up because it’s not—it’s a well, it’s not on city water.” R.R. at 154a. The Myerses understood this to mean that they couldn’t be wasteful with water. No further statements or disclosures were made with respect to the well’s capacity.

In early September, 1984, Mr. Glunk informed the Myers-es that the Veterans Administration, which was providing financing for the purchase of the property, required that the burden and cost of the water test be placed on the McHenrys as sellers of the property. The parties executed a substitute agreement of sale which changed special clause 5(D) by shifting the burden of testing the water flow rate and purity from the buyers to the sellers. All of the other provisions of the agreement were identical to the original agreement, including paragraph 12 regarding representations. Mr. Glunk later informed the Myerses that he was unaware of any method to test for water flow. On the basis of Mr. Glunk’s representation that no water flow rate test was available, the Myerses never insisted upon enforcement of special clause 5(D) which required that the water flow test be performed by the sellers.

At closing, Mr. Rell, a broker with Century 21, requested that the Myerses sign the following agreement:

Richard J. Myers and Theresa A. Myers, his wife, acknowledge that, at the time of the inspection of the property situate at R.D. # 1, Box 145A, Nichols Run Road, Jersey Shore, Pa., in the presence of Robert Glunk, salesman for Century 21 Rell Real Estate, and in the presence of the owners of the property, Daniel D. McHenry and Barbara J. McHenry, his wife, an explanation was made that the well was a slow recovery well. This explanation was also made at the time of final closing on the property, and the undersigned acknowledge that they are fully aware of this fact and still desire to purchase the property.

R.R. 45a. Although the Myerses did not really understand what a slow recovery well was, they informed their attorney that they had been told that the well was a slow recovery well and they signed the form.

After the closing, the Myerses moved into their new home and began cleaning the house. Within a few hours, the well ran dry. Despite their subsequent drilling of the well to increase the flow rate and storage capacity, the Myerses are unable to perform normal living activities, such as flushing the toilet after each use, using their washing machine and dishwasher, and taking a shower without having to turn the water on and off between soaping and rinsing.

The Myerses claim that Mrs. McHenry’s statement that the well is a slow recovery well and her assurances that the well produced an adequate amount of water to perform all normal activities in the home were false and were intentionally made to deceive and defraud the Myerses, and induce the Myerses to proceed with the purchase of the house.

The Myerses also claim that Mr. Glunk, aware of the true condition of the well, misrepresented to them that the Veterans Administration required that the burden and cost of the water flow test, rather than just the cost of the test, be placed on the sellers, and thereby wrongfully induced them to enter into the second agreement of sale which placed responsibility on the McHenrys for checking the water flow and purity. The Myerses further argue that Mr. Glunk led them to believe that the requested water flow test could not be done, and therefore they did not insist that the sellers perform the test.

The Myerses contend that appellees knew that the representations were false, and made the statements with the intent to fraudulently induce the Myerses to proceed with the purchase of the property. The Myerses allege that in purchasing the premises, they justifiably relied upon the false and fraudulent representations which the appellees made.

The trial court, reading the agreement of sale in conjunction with the form signed at closing in which the Myerses acknowledged that they were aware that the well was a slow recovery well, found that the parol evidence rule, as explained and applied in LeDonne v. Kessler, supra, would prevent the admission of the oral statements made by Mrs. McHenry and Mr. Glunk.

In LeDonne, the Court noted the following definition of the parol evidence rule:

Where the alleged prior or contemporaneous oral representations or agreements concern a subject which is specifically dealt with in the written contract, and the written contract covers or purports to cover the entire agreement of the parties, the law is now clearly and well settled that in the absence of fraud, accident or mistake the alleged oral representations or agreements are merged in or superseded by the subsequent written contract, and parol evidence to vary, modify or supersede the written contract is inadmissible in evidence.

LeDonne, supra 256 Pa.Super. at 286-87, 389 A.2d at 1126-27, quoting Bardwell v. The Willis Co., 375 Pa. 503, 506, 100 A.2d 102, 104 (1953) (footnote omitted).

The Myerses argue that the appellees’ reliance on the parol evidence rule is misplaced, because the rule applies only to declarations made prior to or contemporaneously with the written agreement. In this case, the Myerses claim, the offending declarations were made after the initial agreement of sale, as Mrs. McHenry’s statements were made four days after the first agreement of sale was signed, and Mr. Glunk informed them that a new agreement was necessary after the first agreement was signed. Mr. Glunk’s statement regarding the ability to test the flow rate was made after the second agreement was signed, but before the form was signed at closing. We agree with the trial court that the two agreements of sale and the written acknowledgement signed at closing together comprise the amended written agreement of the parties. Thus, the alleged misrepresentations were made either prior to or contemporaneously with the agreement, and the parol evidence rule has potential application in this case.

The trial court properly summarized the agreement of the parties as embodied in the relevant writings as follows:

The plaintiffs Myers agreed to buy and the defendants McHenry agreed to sell the parcel of real estate in question for the stated price; the buyers acknowledged that the sellers had given them notice that the well was a “slow recovery well”; the buyers had a right to insist that there be a testing of the well in order to determine the flow and quality of the water prior to closing with the cost of the testing being borne by the sellers; the buyers did not avail themselves of that right and decided to nevertheless go ahead with the closing.

Trial Court Opinion at 5-6. The issue is whether the Myerses, in proving their case of fraudulent inducement, can present parol evidence that Mrs. McHenry misled them as to the meaning of “slow recovery well” and that Mr. Glunk misled them as to the nonavailability of a water flow test, thereby inducing the Myerses to purchase the property without insisting on proof that the water flow rate meet approved standards.

Where buyers allege that they were fraudulently induced to purchase a property through fraud or misrepresentation, the applicability of the parol evidence rule is determined by balancing “the extent of the party’s knowledge of objectionable conditions derived from a reasonable inspection against the extent of the coverage of the contract’s integration clause in order to determine whether the party could justifiably rely upon oral representations without insisting upon further contractual protection or the deletion of an overly broad integration clause.” LeDonne, supra 256 Pa.Super. at 294, 389 A.2d at 1130.

Application of the LeDonne balancing test to the facts presently before us leads us to conclude that evidence of the fraudulent misrepresentations is not barred by the parol evidence rule. We disagree with the views of the trial court that the problems with the well’s flow rate were readily ascertainable. Because the well is underground, the Myerses could not detect a flow rate or storage capacity problem through visual inspection alone. In this respect, the facts of this case fall squarely within LeDonne, where the Court found that the parol evidence rule did not bar admission of the sellers’ misrepresentations concerning the subterranean septic system, because the buyers “could not have possessed full knowledge of its physical appearance and adequacy and could not have readily ascertained whether a drainage problem existed.” LeDonne, supra, 256 Pa.Superior Ct. at 291-92, 389 A.2d at 1129. We must reject appellees’ position that the fact that the defect was eventually discovered leads to the conclusion that the problem was readily apparent. If that were the test, then application of the LeDonne standard would result in the exclusion of parol evidence in every case.

In Ward v. Serfas, 387 Pa.Super. 425, 564 A.2d 251 (1989), this Court held that notwithstanding the inclusion of an integration clause in the agreement of sale, the parol evidence rule did not prevent proof of the sellers’ concealment of a burnt floor, water damage and defects in the fireplace and misrepresentations regarding the sewage system.

In Mancini v. Morrow, 312 Pa.Super. 192, 458 A.2d 580 (1983), we interpreted an integration clause containing the identical language as the clause in the contract involved in this case “to deny only ‘the existence of verbal representations as to the character or quality of land and building conditions reasonably apparent from an inspection of the premises.’ ” Id., 312 Pa.Superior Ct. at 201, 458 A.2d at 584, quoting LeDonne, supra 256 Pa.Super. at 291, 389 A.2d at 1129. Where the sellers had concealed water damage in the basement and a bulge in the garage wall, we held that evidence of fraud in the inducement of a contract to buy real estate was not barred by the parol evidence rule. Mancini, supra 312 Pa.Super. at 201, 458 A.2d at 584. See also Glanski v. Ervine, 269 Pa.Super. 182, 409 A.2d 425 (1979) (trial court did not err in admitting evidence of broker’s misrepresentations about the soundness of house where termite damage was not reasonably apparent).

In accordance with our decision in LeDonne and its progeny, we hold that the parol evidence rule does not bar admission of the alleged misrepresentations concerning the flow and storage capacity of the well and the availability of a test to ascertain the well’s flow rate. Thus, although the agreement contained a provision in which the buyers acknowledged their awareness that the well was a “slow recovery well,” the Myerses may show that they were misled as to the meaning of “slow recovery well.”

Appellees Glunk, Bell and Century 21 Rell Real Estate argue that as a matter of law, the Myerses’ reliance upon the misrepresentations was unjustified. The elements of fraud are: (1) a misrepresentation; (2) a fraudulent utterance thereof; (3) an intention by the maker that the recipient will act; (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damages to the recipient as the proximate result. Woodward v. Dietrich, 378 Pa.Super. 111, 124, 548 A.2d 301 (1988). Here, appellees contend that the Myerses unjustifiably relied upon the misrepresentations when they failed to have the well inspected and tested, failed to verify for themselves that there was no available test for the water flow, and failed to rescind the agreement of sale on the basis that the requested test was unavailable.

We cannot conclude that as a matter of law, the Myerses’ reliance was unjustifiable. The question is one that should be decided by a jury on the basis of all of the facts and permissible inferences which may be drawn from the evidence presented at trial. Neuman v. Corn Exchange Nat. Bank & Trust Co., 356 Pa. 442, 51 A.2d 759, 764 (1947); Person v. C.R. Baxter Realty Co., 340 Pa.Super. 537, 490 A.2d 910 (1985) (where evidence of fraud and deceit by the sellers was sufficient to create a jury issue, trial court erred in taking the case from the jury and directing a verdict in favor of seller-defendants).

For the foregoing reasons, we hold that the trial court erred in granting summary judgment in favor of the defendant-appellees. We reverse this case and remand for proceedings consistent with this decision.

Reversed and remanded. Jurisdiction is relinquished.


author: WIEAND, Judge: TAMILIA, Judge,

text:
    580 A.2d 865
    COMMONWEALTH of Pennsylvania v. Esnelda FROMETA, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 6, 1990.
    Filed Sept. 24, 1990.

      Thomas A. Thornton, Harrisburg, for appellant.
    Julia A. Feld, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   WIEAND, Judge:

Esnelda Frometa was tried non-jury and was found guilty of possession of cocaine with intent to deliver, unlawful possession of drug paraphernalia, and obliterating marks of identification on a firearm. Post-trial motions were denied, and Frometa was sentenced to serve concurrent terms of imprisonment of not less than one (1) year nor more than three (3) years for possession with intent to deliver, not less than one (1) year nor more than two (2) years for obliterating marks of identification on a firearm, and not less than six (6) months nor more than twelve (12) months for unlawful possession of drug paraphernalia. On direct appeal from the judgment of sentence, Frometa contends that the evidence was insufficient to sustain the verdict and that physical evidence seized from the basement of her apartment building should have been suppressed.

In reviewing a challenge to the sufficiency of the evidence, we view all the evidence, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, which has won the verdict, and determine whether it was sufficient in law to permit a jury to find that each element of the offense charged was proved beyond a reasonable doubt. See: Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988); Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984); Commonwealth v. Brady 385 Pa.Super. 279, 560 A.2d 802 (1989).

The evidence in this case was that as a result of a controlled buy of heroin in which appellant participated on May 19, 1988, police were able to obtain a search warrant for her apartment. The premises to be searched were described in the warrant as follows:

2010 North Fourth Street, Harrisburg, PA, Apts. 1 and 3 located on the first floor rear and first floor north side of the building____ and surrounding curtilage.

The warrant was executed later the same day. Inside the rear apartment, police found appellant and another person. A search of the apartments described in the warrant, however, yielded neither controlled substances nor drug paraphernalia. A search of appellant’s person also yielded no drugs. However, police removed from her pocket a key ring with four keys, one of which unlocked a door leading to the basement of the building. This doorway was in a common hallway and exterior to the apartments to be searched. When police entered and searched the basement they found hidden in the insulation around the water heater, a plastic bag containing cocaine and also a handgun from which the serial number had been obliterated. In a cut-out portion of the wall along the side of the basement stairs, police found lactose, a cutting agent for cocaine, as well as a grinder and sifter.

The evidence did not establish whether the basement was a part of the premises leased to appellant. It also did not show that appellant’s access to the basement was exclusive and not shared with tenants of the seven other apartments in the building. There was evidence, however, that on three occasions within the preceding six months, search warrants had been executed in drug related investigations for second and third floor apartments in the same building.

“When drugs are not found on the defendant’s person, the Commonwealth is required to prove constructive possession.” Commonwealth v. Bruner, 388 Pa.Super. 82, 98, 564 A.2d 1277, 1284 (1989). See also: Commonwealth v. Samuels, 235 Pa.Super. 192, 204-205, 340 A.2d 880, 886 (1975). “Constructive possession has been defined as the ability to exercise a conscious dominion over the illegal substance: the power to control the contraband and the intent to exercise that control.” Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983). Constructive possession may be inferred from the totality of the circumstances. Commonwealth v. Fortune, 456 Pa. 365, 369, 318 A.2d 327, 329 (1974). “[A]n inference of conscious dominion can be drawn from facts showing that the contraband was found in a place normally accessible only to the accused____ However, the inference loses its persuasiveness if the contraband is found in a place where others have equal access with the accused.” Commonwealth v. Diaz, 319 Pa.Super. 538, 539-540, 466 A.2d 674, 675 (1983) (citations omitted).

Although appellant’s possession of the basement key evidences that she had power to control contraband found in the basement of the apartment building in which she was a tenant, there is no evidence that she exercised conscious dominion over any of the items which police found in the basement. Indeed, there is no evidence that appellant knew such items to be present in the basement. The evidence fails also to show how many persons had access to the basement. The door to the basement, it is true, was located in close proximity to the door to appellant’s apartment, but this fact, standing alone, was insufficient to establish her conscious dominion over contraband or other items of property found in the basement. Cf. Commonwealth v. Juliano, 340 Pa.Super. 501, 490 A.2d 891 (1985) (location and proximity of contraband are not alone demonstrative of guilt).

Appellant was not prosecuted for the sale of heroin in which she had participated earlier on the same day. The evidence of this transaction, although relevant, was insufficient to show that appellant had exercised conscious dominion over the cocaine found in the basement of the apartment building. It also failed to establish a link between appellant and the handgun which police found in the basement.

The Commonwealth contends that even if appellant did not have exclusive possession of the basement because it was shared with other tenants, a jury could find that she had joint possession of the contraband with the other tenants. In making this argument, the Commonwealth relies upon the Supreme Court decision in Commonwealth v. Mudrick, 510 Pa. 305, 507 A.2d 1212 (1986). This decision, however, is not apposite. In Mudrick, constructive possession was found where two or more persons occupied a single household and had joint control over the area in which the contraband was found. In the instant case, the contraband was found in the basement of an apartment building occupied by and presumably accessible to the members of at least eight separate households. Moreover, there is no evidence that appellant had knowledge of the property, if any, which may have been stored in the basement by other tenants. Thus, there is no evidence from which a jury could find that appellant had ever exercised conscious dominion over any of the contraband which police found in the basement of the apartment building.

Because the evidence was insufficient to sustain the convictions and, therefore, appellant must be discharged, we do not decide whether the warrant authorizing a search of her apartment was sufficient to authorize as well as a search of the basement to which all tenants had access.

The judgment of sentence is reversed, and appellant is discharged.

TAMILIA, J., files a dissenting statement.

TAMILIA, Judge,

dissenting:

I respectfully dissent to the holding by the majority that the evidence was insufficient to establish constructive possession by appellant of drugs and drug paraphernalia found in the basement of appellant’s apartment complex. The possession of a key to the padlock on the door of the basement, coupled with overwhelming proof of appellant’s involvement in the sale of drugs, with no countervailing proof that any other person in the apartment complex had a key to the lock, requires that we affirm the findings made by the suppression judge. The Commonwealth properly maintains this evidence was sufficient to establish dominion and control by appellant over the drugs found in the basement.

I would affirm judgment of sentence.

      . Police also found and removed from appellant’s person the sum of six hundred ($600.00) dollars, including one bill which had been marked for purposes of the earlier controlled buy of heroin.

      . Because of the absence of evidence to the contrary, the trial court, in deciding appellant’s motion in arrest of judgment, deemed the basement accessible to all tenants in the building.