author: HESTER, Judge:

text:
    579 A.2d 920
    COMMONWEALTH of Pennsylvania v. Robert W. HANES, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 25, 1990.
    Filed Aug. 14, 1990.

      Joseph E. Buckley, Jr., Brookville, for appellant.
    Vernon D. Roof, Dist. Atty., Ridgway, for Com.
    Before CIRILLO, President Judge and POPOVICH and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the January 2, 1990 order denying appellant, Robert Hanes, relief under the Post-Conviction Relief Act (PCRA). We affirm.

On April 28,1987, appellant was found guilty by a jury of driving under the influence of alcohol pursuant to 75 Pa. C.S. § 3731(a)(1) and two summary offenses: failing to drive on the right side of the roadway and failing to stop at the scene following an accident pursuant to 75 Pa.C.S. § 3301(a) and § 3743(a), respectively. The jury also found him not guilty of operating a motor vehicle while his blood-alcohol content was in excess of .10 percent. 75 Pa.C.S. § 3731(a)(4). The Court of Common Pleas of Elk County denied appellant’s post-trial motions on June 26, 1987, and sentenced him on September 4, 1987, to thirty days to twenty-three and one-half months imprisonment, the payment of restitution, costs, and fine, the loss of his driver’s license for one year, and participation in the Influenced Offenders Program and Reporting Network Testing System, both at appellant’s cost. Appellant did not appeal from the judgment of sentence.

On February 21, 1989, appellant, by new counsel, filed a petition under the PORA. The court held a hearing on April 5, 1989, and denied the petition on January 2, 1990. This timely appeal followed.

The facts of the crime are as follows. On July 3, 1986, at approximately 10:30 p.m., Barbara Grasser was driving her boyfriend, Roger Bowers, in his truck, traveling north on Route 321 toward Kane, Pennsylvania. Appellant, driving south, crossed the center lane, forcing Ms. Grasser partially onto the berm at which point he struck the Bowers vehicle. Appellant did not stop at the scene, but continued in the same direction, eventually stopping at a local bar. Appellant, bleeding profusely from his arm, asked Brenda O’Neill, the owner of the bar, if he could use the telephone. Appellant telephoned the Elk County Emergency Communications Center, identified himself, reported he had been involved in an accident on Route 321, and stated that he was going to Ridgeway Hospital.

The communications center notified the Pennsylvania State Police of appellant’s telephone call. The police proceeded to Ridgeway Hospital, but appellant was not there. The police then were directed to appellant’s home. Corporal William Wetzel testified that an automobile was parked in the driveway with fresh damage to the driver’s side of the vehicle. When the police were admitted to the home, they observed appellant with an injured arm, glassy and blood shot eyes, slurred speech, and unsteady balance. Corporal Wetzel directed Mrs. Hanes to drive appellant to the hospital, where personnel performed a blood test that showed the alcohol level of appellant’s blood to be 0.305 percent.

Appellant raises the following issues for our review:

1. WHETHER DEFENSE COUNSEL’S PRODUCTION OF ONLY ONE OBVIOUSLY BIASED WITNESS TO REBUT THE TESTIMONY PRESENTED BY THE COMMONWEALTH WHEN EXPERTS WERE AVAILABLE TO INFORM THE JURY OF THE OUTWARD MANIFESTATIONS OF SHOCK AND SEVERE BLOOD LOSS CONSTITUTED UNREASONABLE AND INEFFECTIVE COUNSEL WHICH PREJUDICED DEFENDANT’S CAUSE?
2. WHETHER IT WAS UNREASONABLE AND PREJUDICIAL TO DEFENDANT’S CAUSE, FOR DEFENSE COUNSEL NOT TO POLL THE JURY IN LIGHT OF THE OBVIOUS INCONSISTENCY OF ITS VERDICT?
3. WHETHER THE VERDICT ON THE CHARGE OF VIOLATING 75 Pa.C.S.A. SECTION 3731(a)(1) WAS PROPERLY SUPPORTED BY THE EVIDENCE?
4. WHETHER THE DEFENDANT WAS PROPERLY ADVISED BY PRIOR COUNSEL OF THE EFFECT OF WAIVING HIS RIGHT TO APPEAL HIS CRIMINAL CONVICTION, RESULTING IN DEFENDANT NOT HAVING ALL OF THE PROPER INFORMATION AVAILABLE TO HIM WHEN HE INFORMED PRIOR COUNSEL THAT HE DID NOT WISH TO APPEAL?
5. WHETHER THE MISREPRESENTATIONS MADE TO THE DEFENDANT BY THE DISTRICT ATTORNEY SO PREJUDICED THE DEFENDANT THAT HE OUGHT, IN GOOD CONSCIENCE, TO BE PERMITTED TO RELY ON THE REPRESENTATIONS MADE BY THE COMMONWEALTH, OR IN THE ALTERNATIVE, BE GRANTED A NEW TRIAL?

First, we will address appellant’s fourth issue. In effect, appellant asserts that the issues raised in his PCRA petition are not waived by his failure to file a direct appeal from the judgment of sentence because trial counsel provided ineffective assistance. He contends that trial counsel failed to advise him properly concerning the effect of his failure to file a direct appeal.

Appellant’s eligibility for relief is governed by the provisions of the Post-Conviction Relief Act. 42 Pa.C.S. § 9543 controls appellant’s eligibility for relief under the PCRA and lists four factors that must be met before such relief may be granted. We examine the third factor first:

(3) That the allegation of error has not been previously litigated and one of the following applies:
(i) The allegation of error has not been waived.
(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.
(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.

42 Pa.C.S. § 9543(a). Section 9544 of the PCRA defines both previous litigation and waiver. An issue has been previously litigated under the PCRA in three circumstances, none of which is applicable herein.

Next, we address the issue of waiver. Section 9544(b) provides in relevant part that an “issue is waived if the petitioner failed to raise it and if it could have been raised ... on appeal.” (Emphasis added). Since appellant’s issues could have been raised on direct appeal, they have been waived under section 9544. Appellant nevertheless will be eligible for relief under the PCRA if one of the two exceptions to waiver contained in section 9543(a)(3) applies. We will address the applicability of 42 Pa.C.S. § 9543(a)(3)(h), whether the alleged error resulted in the conviction of an innocent person, infra, when we address appellant’s sufficiency of the evidence claim. We now determine if section 9543(a)(3)(iii) applies.

Section 9543(a)(3)(iii) applies, inter alia, if the waiver of the issue, as in this case, has occurred as a result of a failure to raise it during direct appeal. Commonwealth v. Ryan, 394 Pa.Super. 873, 575 A.2d 949 (1990). Accordingly, we next examine whether the waiver constitutes “a State procedural default barring Federal habeas corpus relief.” 42 Pa.C.S. § 9543(a)(3)(iii). If not, we will conclude that the issue is not waived. Federal courts will excuse a state procedural default based upon a showing of cause and prejudice. Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). There must be cause for the default and prejudice resulting therefrom. Ineffective assistance of counsel normally constitutes cause for procedural default in federal court as long as there has been no deliberate decision not to pursue the issue. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Thus, a tactical decision not to pursue the issue bars federal habeas corpus relief, but ineffectiveness of counsel does provide cause for a procedural default. Accordingly, a sufficient allegation of ineffectiveness of prior counsel will satisfy the requirements of section 9543(a)(3)(iii). Commonwealth v. Velasquez, 387 Pa.Super. 238, 563 A.2d 1273 (1989).

In the present case, appellant alleges the ineffective assistance of trial counsel. Appellant states that counsel’s ineffectiveness precipitated his failure to appeal. Since the record fails to substantiate that a tactical decision was made to forego these claims on direct appeal, and since the allegations relate to the effectiveness of counsel, we conclude that the claims are not waived due to the operation of section 9543(a)(3)(iii). Id. Thus, appellant also satisfies the requirements of § 9543(a)(4), which provides, inter alia, that a PCRA petitioner must plead and prove that the failure to litigate an issue on direct appeal could not have resulted from “any rational strategic or tactical decision by counsel.” Further, since appellant asserts in his PCRA petition that he currently is on parole, he satisfies the requirements of § 9543(a)(1).

Finally, we determine whether appellant has met any of the requirements contained in 42 Pa.C.S. § 9543(a)(2), which also limits a petitioner’s eligibility for relief. That section provides that a PCRA petitioner must plead that his conviction resulted from one or more of eight circumstances.

Appellant’s PCRA petition asserts that trial counsel provided ineffective assistance. Ineffective assistance of counsel is cognizable under the PCRA only where it undermined the truth-determining process so that no reliable adjudication of guilt could have taken place. 42 Pa.C.S. § 9543(a)(2)(h). “This is a substantial restriction of the grounds for post-conviction collateral relief in Pennsylvania.” Commonwealth v. Thomas, 396 Pa.Super. 92, —, 578 A.2d 422, 425 (1990). Appellant’s allegations of ineffective assistance are that trial counsel forewent expert testimony to rebut the testimony of several Commonwealth witnesses with respect to the cause of appellant’s physical condition which led to his conviction under 75 Pa.C.S. § 3731(a)(1), and that trial counsel failed to poll the jury when it was obvious that its verdict was inconsistent.

The latter issue, concerning counsel’s failure to poll the jury, facially does not raise a claim that undermines the truth-determining process; thus, we find that the issue is not cognizable under the PCRA. Even if that issue were cognizable, it is lacking in merit. Appellant has not alleged nor substantiated by allegations that find support in the record that any of the jurors failed to join in the verdict. Inconsistency in the verdict has never been a ground for reversal. Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375 (1971); Commonwealth v. Hall, 382 Pa.Super. 6, 554 A.2d 919 (1989).

Next, appellant contends that trial counsel was ineffective for failing to produce expert testimony to rebut the Commonwealth’s testimony concerning appellant’s condition at the time of the accident. He asserts,

It is a very distinct possibility that the defendant would have met with a different outcome at trial had trial-counsel allowed the jury to hear from the mouth of a credible expert, that the physical characteristics displayed by the defendant shortly after the automobile accident could well have been attributed to shock and the severe loss of blood.

Appellant’s brief at 11. Appellant claims that the lack of expert testimony was significant in this case in light of the jury’s conclusion that appellant was not guilty of operating a motor vehicle while the amount of alcohol in his blood was 0.10% or greater.

Appellant does not identify any expert who would testify that appellant’s behavior could have been the result of shock or blood loss. In fact, counsel admitted at the PCRA hearing that he had no competent evidence that blood loss could cause slurred speech, unsteady balance, or alcohol on the breath. Notes of Testimony (N.T.), 4/5/89, at 16. The Pennsylvania Supreme Court has noted that when “making assertions of ineffectiveness, we ... require that an offer of proof be made alleging sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This is so because we frown upon considering claims of ineffectiveness of counsel in a vacuum.” Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d 504, 505 (1989). See also Commonwealth v. Weinder, 395 Pa.Super. 608, 577 A.2d 1364 (1990) (Superior court will not consider claim of ineffectiveness in the abstract).

Further, a review of the record reveals that trial counsel did indeed attempt to convince the jury, through direct testimony and on cross-examination, that appellant’s intoxicated appearance could have been the result of his injury in the accident. N.T., 4/28/86, at 45, 98-100, 138-39. Thus, we conclude that trial counsel’s failure to present expert testimony, under the facts of this case, did not so undermine the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Therefore, this issue is not cognizable under the PCRA.

Appellant’s third issue is that his conviction of 75 Pa.C.S. § 3731(a)(1) was not supported by sufficient evidence. Again, in order to be cognizable, appellant must prove that his conviction resulted from one or more of the eight circumstances set forth in 42 Pa.C.S. § 9543(a)(2). A claim that guilt has not been proven beyond a reasonable doubt clearly alleges a violation of the federal constitution. In addressing the viability of a sufficiency of the evidence claim in a first PCRA petition, this court stated:

We agree that the issue is cognizable under the PCRA. Our disposition in the prior appeal did not turn on the merits of the claim; therefore, it has not been previously litigated under 42 Pa.C.S.A. § 9544(a)(2). Moreover, appellant’s waiver of the claim on direct appeal is excusable under the PCRA in light of counsel’s alleged ineffectiveness, see id. § 9543(a)(2)(ii), and because the claim involves the sufficiency of the evidence, which necessarily implicates the “truth-determining process”, see id, and raises a question whether an “innocent individual” has been convicted. See id. § 9543(a)(3)(ii).

Commonwealth v. Perlman, 392 Pa.Super. 1, 5, 572 A.2d 2, 4 (1990) (emphasis in original) (footnote omitted).

Appellant contends that the only evidence of his alcohol consumption presented to the jury was from his own testimony that he drank three seven-ounce bottles of beer two hours before the accident. Further, he alleges that his testimony “established the fact that he could not have been under the influence of alcohol to such an extent that his ability to drive, operate, or control an automobile was impaired.” Appellant’s brief at 16.

In reviewing a challenge to the sufficiency of the evidence we determine

whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Akers, 392 Pa.Super. 170, 181, 572 A.2d 746, 751 (1990), quoting Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984). It is within the province of the fact finder to determine the weight to be given to each witness’s testimony and to believe all, part, or none of the evidence. Commonwealth v. Carbone, 524 Pa. 551, 574 A.2d 584 (1990); Commonwealth v. Parker, 387 Pa.Super. 415, 564 A.2d 246 (1989).

We have read the testimony at trial and conclude that there is sufficient evidence to support the verdict. Appellant admitted drinking beer within two hours of the accident. He crossed the center line of the roadway, forcing an on-coming vehicle onto the berm, and struck it. He fled the scene, although he eventually stopped at a bar and reported the accident. The bar owner testified that appellant appeared to be intoxicated. Corporal Wetzel testified that shortly after the accident, he noticed the odor of alcohol on appellant’s breath, and described appellant as having blood shot, glassy eyes, slurred speech, and unsteady balance. Accordingly, appellant’s sufficiency of the evidence claim must fail.

Finally, appellant asserts that the Elk County District Attorney advised appellant that the maximum period for which his driving privileges would be revoked was one year and that based upon this advice, appellant chose not to appeal. Appellant contends that he met with the district attorney in order to seek legal advice concerning the consequences of failing to file a direct appeal and that the district attorney “encouraged Defendant to forgo his right to appeal____” Appellant’s brief at 22 (emphasis in original).

We first examine whether this issue is cognizable under the PCRA by ascertaining whether appellant’s conviction resulted from one or more of the eight circumstances set forth in 42 Pa.C.S. § 9543(a)(2). The applicability of § 9543(a)(2)(iv) must be analyzed in light of the way appellant has framed this issue. That section provides that a PCRA petitioner must plead that his conviction resulted from “[t]he 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.” 42 Pa.C.S. § 9543(a)(2)(iv). Although appellant does not assert in the context of this issue what meritorious claim existed, we will assume that the issues raised in this brief, other than the ineffectiveness claims, are the “meritorious appealable issue[s]” that existed. Since we determined, supra, that no meritorious issues exist in this case, this claim is not cognizable under the PCRA.

However, even if it were cognizable, it clearly is lacking in merit. The record does not support appellant’s assertion that the district attorney encouraged him to forgo his right to appeal. First, we note that this issue, as raised in appellant’s brief, lacks any citation to the record. Second, the allegations in the brief find no support in the record. We have read the notes of testimony from the PCRA hearing. The only testimony concerning this issue arose during the Commonwealth’s cross-examination of appellant. Appellant stated that during a spontaneous meeting between appellant and the district attorney in a convenience store near the courthouse two weeks prior to trial, appellant inquired about a possible plea bargain and asked, “Is one year loss of license all that I’m going to receive?” to which the district attorney allegedly responded, “Yes.” N.T., 4/5/89, at 19-20.

Even if such a spontaneous, pretrial meeting occurred, this testimony clearly does not support appellant’s claim that the Commonwealth provided legal advice concerning the consequences of failing to appeal his conviction (he was not convicted at the time), and certainly does not provide an iota of evidence that the Commonwealth encouraged him to forgo his direct appeal.

Order affirmed.

POPOVICH, J., concurs in the result.

      . The court originally sentenced appellant to thirty days to two years imprisonment. On November 12, 1987, the court amended its September 4, 1987 order, directing that appellant’s incarceration be thirty days to twenty-three and one-half months.

      . We also disagree that the verdict is inconsistent. Since both appellant and his wife testified at trial that appellant drank approximately twelve ounces of whiskey when he stopped at his home after the accident, N.T., 4/28/86, at 147, 156, the jury may have concluded that the blood test did not reflect appellant’s blood-alcohol level at the time of the accident. However, since appellant also admitted to drinking three bottles of beer before the accident, the jury also concluded that appellant had been driving while under the influence of alcohol.

      . See also Commonwealth v. Weinder, supra, where we stated, ''[I]t is not enough for appellant to show that he suffered some prejudice as a result of counsel’s ... inaction, but rather that counsel’s ... inaction so affected the trial itself ('the truth determining process’) that the result of the trial is inherently unreliable." Id., 395 Pa.Super. 627, 577 A.2d at 1374.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    579 A.2d 925
    Carolyn Hypes TAURINO and Anthony Taurino, H/W, Appellants, v. Stephen J. ELLEN, M.D., Women’s Suburban Clinic and Parke-Davis Division of Warner-Lambert Co.
    Superior Court of Pennsylvania.
    Argued March 13, 1990.
    Filed Aug. 23, 1990.

      John F.X. Fenerty, Philadelphia, for appellants.
    Murray Levin, Philadelphia, for Parke-Davis, appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   BECK, Judge:

This is an appeal from a grant of summary judgment for defendant appellee, Parke-Davis Division of Warner-Lambert Company, in a product liability action arising out of the use by plaintiff appellant, Carolyn Taurino, of birth control pills manufactured by Parke-Davis. Although appellants raise several interesting questions concerning the proper application of the learned intermediary doctrine, which formed the basis for the trial court’s grant of summary judgment, we find no ground for reversal of the trial court’s order and affirm.

On September 28, 1981, Ms. Taurino came to Women’s Suburban Clinic for counselling, including birth control counselling. At that time, Ms. Taurino was allegedly given a supply of Loestrin, a birth control drug manufactured by Parke-Davis. She allegedly was supplied the drug by an employee of the clinic who was not a doctor. Two days later, Ms. Taurino returned to the clinic for a medical procedure. Following that procedure, a doctor at the clinic signed a progress note regarding Ms. Taurino on which he noted “Loestrin 1.5/30.” Several days later, on October 5, 1981, Ms. Taurino first began taking Loestrin. She continued to do so until sometime in November 1981. Four months after taking the drug, Ms. Taurino developed a thrombosis in her leg. After numerous surgical procedures, Ms. Taurino eventually suffered the amputation of her leg above the knee.

Appellants, Ms. Taurino and her husband, filed this personal injury suit against the clinic, the doctor at the clinic and Parke-Davis in May 1984. They alleged strict liability, negligence and breach of warranty, all premised on the allegation that Ms. Taurino’s use of Loestrin caused her injuries. As to Parke-Davis, appellants’ theory was failure to warn. However, during discovery, appellants conceded that they did not contest the adequacy of Parke-Davis’ warnings to physicians prescribing Loestrin. Appellants relied solely on their theory that Parke-Davis had a duty to warn patients using Loestrin directly. Parke-Davis immediately moved for summary judgment, which the trial court granted on July 5, 1989.

The basis for the trial court’s decision was the learned intermediary doctrine. First adopted by the Supreme Court in Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971), this doctrine provides that a manufacturer of a prescription drug must direct warnings to the prescribing physician, but not to the patient. In Makripodis v. Merrell-Dow Pharmaceuticals, Inc., 361 Pa.Super. 589, 596, 523 A.2d 374, 378 (1987), a panel of this court explained the learned intermediary doctrine and the policies that underlie it as follows:

It is clear that the manufacturer of a prescription drug known to be dangerous for its intended use, has “a duty to exercise reasonable care to inform those for whose use the article [was] supplied of the facts which make [the product] likely to be dangerous.” Incollingo v. Ewing, supra, 444 Pa. at 285 n. 8, 282 A.2d at 220 n. 8. However, the warnings which are required to be given by the manufacturer must be directed to the physician, not the patient-consumer. This is so because it is the duty of the prescribing physician to be fully aware of (1) the characteristics of the drug he is prescribing, (2) the amount of the drug which can be safely administered, and (3) the different medications the patient is taking. It is also the duty of the prescribing physician to advise the patient of any dangers or side effects associated with the use of the drug as well as how and when to take the drug. The warnings which must accompany such drugs are directed to the physician rather than to the patient-consumer as “[i]t is for the prescribing physician to use his independent medical judgment, taking into account the data supplied to him from the manufacturer, other medical literature, and any other sources available to him, and weighing that knowledge against the personal medical history of his patient, whether to prescribe a given drug.” Leibowitz v. Ortho Pharmaceutical Corporation, supra, 224 Pa.Super. [418] at 431, 307 A.2d [449] at 457 [ (1973) ]. Thus, in an action against a drug manufacturer based upon inadequate warnings, the issue to be determined is whether the warning, if any, that was given to the prescribing physicians was proper and adequate. See: Baldino v. Castagna, supra, 505 Pa. [239] at 244-45, 478 A.2d [807] at 810 [ (1984) ].

The trial court reasoned that since Loestrin is a prescription drug, required by federal law to be dispensed only by prescription of a physician, and since appellants had conceded the adequacy of the warnings Parke-Davis had supplied to physicians prescribing Loestrin, under the undisputed facts of record Parke-Davis had no liability and was entitled to judgment as a matter of law. Pa.R.C.P. 1035(d).

In reviewing the trial court’s grant of summary judgment, we must examine the record in the light most favorable to the nonmoving party, but must reverse only where we find an error of law or manifest abuse of discretion. Mutual Benefit Ins. Co. v. Goschenhoppen Mut. Ins. Co., 392 Pa.Super. 363, 572 A.2d 1275 (1990).

On appeal, appellants claim that they are not challenging or seeking to overturn the learned intermediary doctrine. Rather, appellants assert that they take issue only with the application of the doctrine to this case. Specifically, appellants question whether the doctrine should operate to foreclose liability of a prescription drug manufacturer in a case where the drug is given to a patient who herself chooses to take the drug without a learned intermediary, i.e. where there is no prescribing doctor. They also allege that where a prescription drug manufacturer supplies its drugs in bulk to clinics and there is a genuine issue of fact as to whether the manufacturer knows that those drugs will be administered without the intervention of a prescribing physician, then summary judgment is inappropriate and the manufacturer is negligent if it did not direct adequate warnings to the patient herself. Lastly, appellants argue that here Parke-Davis did directly warn patients using Loestrin and that such warning was inadequate.

Despite appellants’ protestations to the contrary, we view their position as in fact being an attempt to overturn the learned intermediary doctrine insofar as it applies to one class of prescription drugs, i.e., contraceptives. They do not seek to establish that this case alone, because of its peculiar facts, is outside the doctrine, but rather seek to establish that all contraceptive drug cases should be outside the doctrine. Throughout appellants’ brief there are lengthy discourses concerning societal changes in the frequency of contraceptive use and the manner in which contraceptives are provided. Appellants argue that now, unlike in the early seventies when the learned intermediary doctrine was first adopted in Pennsylvania, contraceptives are widespread and are customarily given to patients as a result of the patients’ own choice of birth control method, either without the intervention of a physician or without the same level of physician involvement as is customary with other types of drugs. Based on these allegations, appellants argue that the learned intermediary doctrine’s application to contraceptives must be reconsidered and that manufacturers of these drugs must now be forced to warn the patients directly and held liable if they do not do so or do so inadequately.

Our response to these arguments is straightforward. We, as an intermediate appellate court, are not free to disregard existing law as established by the Supreme Court of this Commonwealth based solely on such generalized allegations of societal changes. The Supreme Court has declared that the learned intermediary doctrine defines the liability of a prescription drug manufacturer. See Incollingo v. Ewing, supra. The doctrine has since been applied by this court specifically in a case involving birth control pills. See Leibowitz v. Ortho Pharmaceutical Corporation, supra. We are bound by these decisions and must apply them in all cases, such as this one, that involve drugs which are by law available by prescription only. We cannot ignore them by imposing on manufacturers of contraceptive drugs an entirely new duty to warn patients directly, despite the clear limits of these prior decisions.

Turning to the specific issues raised, we begin with appellants’ argument that the fact that no learned intermediary first gave Ms. Taurino her supply of Loestrin takes this case out of the learned intermediary doctrine. Even assuming that Ms. Taurino was originally given Loestrin without the intervention of a physician as she alleges, we nevertheless point out that a physician did note that Ms. Taurino would take Loestrin before she began taking it. Under these facts, it appears that there may well have been some intervention of a learned intermediary in this case. In any event, we need not and do not decide if there is a genuine dispute as to this fact because we find it legally irrelevant to whether summary judgment in favor of ParkeDavis was appropriate. Assuming that the law which requires that Loestrin be administered only pursuant to a prescription by a physician is violated and that someone other than a physician administers the drug, and assuming further, as we must on the record before us, that the manufacturer has no reason to know that this will occur, the manufacturer is not liable for failure to warn where it did direct a warning to the physician and such warning was concededly adequate. In such a case, the manufacturer fulfills its duty under the learned intermediary doctrine at the time it sells its product with adequate warnings directed to a physician. No new duty is created by the fact that after the sale no physician actually becomes involved in prescribing the drug. Although liability of a variety of kinds might then attach to the person providing the drug without the intervention of a physician, the manufacturer has no liability. As Parke-Davis argues, to hold otherwise would be to confuse the duties of the manufacturer and of those other persons who later become involved in the provision of the drug.

In their second issue, appellants allege that ParkeDavis had a practice of supplying Loestrin in bulk to birth control clinics, that such clinics routinely supply Loestrin to patients without the intervention of a physician, and that there is a genuine of fact as to whether Parke-Davis knew or should have known that such clinics were providing Loestrin to patients without a physician first prescribing it. We cannot address Parke-Davis’ liability on this ground in the context of this case. This record does not contain any evidence of the facts on which this assertion is predicated. There is no evidence of any practice of Parke-Davis regarding the manner in which it supplies Loestrin, to birth control clinics or otherwise, or of how birth control clinics supply Loestrin to their patients. Moreover, there is no evidence of any actual knowledge of Parke-Davis or of any facts which should have led Parke-Davis to know that Loestrin was being provided to patients on request, without intervention of a physician.

Appellants attempt to justify this lack of evidence by making the following argument:

In the case at bar, Women’s Suburban Clinic dispensed a supply of contraceptives to Mrs. Taurino without benefit of a physician. There was nothing to indicate that this practice was in any way unusual. If, as a matter of fact, Women’s Suburban Clinic routinely dispensed supplies of contraceptive medications without physician consult, and not by prescription, it is a logical inference that the supply of contraceptives reached the Clinic’s hands directly from the manufacturer, who must be charged then with knowledge of the drug’s distribution. Therefore, even if Parke-Davis did not keep itself informed of the changed relationship between the physician and the user of contraceptive medications, it certainly should have known how its own contraceptive medications were reaching the hands of the public; it certainly should have known the methods of distribution that they themselves used.

Brief for Appellants at p. 21.

The flaw in this analysis is patent — -it is no substitute for evidence. Appellants do not even attempt to demonstrate how they have presented sufficient evidence to raise a genuine dispute as to whether the clinic involved in this case or any other birth control clinic does, in fact, routinely distribute contraceptives without physician prescription, which is the ground upon which their entire argument proceeds. Nor do appellants attempt to show us where they have presented evidence as to whether Parke-Davis did, in fact, supply Loestrin in bulk directly to this or any other such clinic, or, finally, as to whether Parke-Davis did or should have known how this or any other such clinic was distributing Loestrin. They do not refer us to evidence of these predicate facts because the record contains none. Therefore, we decline to opine on what Parke-Davis’ duties might be if, in fact, there was a genuine dispute as to the foregoing material facts. On this record, Parke-Davis is clearly entitled to summary judgment on appellants’ negligence claim.

Lastly, appellants summarily argue that Parke-Davis did provide a warning directed to patients using Loestrin in the form of a package insert, that this warning was inadequate and that on this ground alone Parke-Davis was negligent. The sum total of appellants’ argument on this point is that the warning inadequately described for patients the exact nature of the adverse effects Loestrin might have on the patient’s heart and blood vessels, and only told patients that they should notify their doctor of “unusual physical disturbance^]” while using Loestrin without mentioning any need to see their doctor after use of the drug had ceased. Appellants cite no precedent in support of this argument. Nor have they provided us with a reference to any record evidence, in the form of expert opinion, for example, regarding the inadequacy of the warning. Given this total failure to support this argument on appeal, we would be entirely within our authority if we considered the issue waived and refused to consider it on the merits. See Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 551 A.2d 1112 (1988) (“[w]hen an appellant fails to carry forward, or is indecipherably vague in, argumentation upon a certain point in his appellate brief, that point is waived.”).

Nevertheless, we do feel compelled to comment that although this argument appears to assert an entirely separate ground for liability, it is in reality predicated upon the basic attack which appellants have made on the application of the learned intermediary doctrine in contraceptive drug cases in general. Since we have rejected that attack, we must of necessity reject appellants’ argument based on the package insert provided to patients. The fact that this insert may not have said all that it should have, and we do not decide that question, is irrelevant. As we have already stated, Parke-Davis’ duty under Pennsylvania law is to provide an adequate warning to the physician who is to prescribe Loestrin and only to that physician. Parke-Davis concededly did so in this case. There is no allegation that Parke-Davis’ separate package insert somehow contradicted the warnings to physicians or in some way induced the patient not to follow her physician’s advice concerning use of the drug. Absent such an allegation, we cannot see how Parke-Davis can be viewed as negligent for also providing information directly to the patient. The full and admittedly adequate warnings given to the prescribing physician are the only protection the law of negligence in Pennsylvania provides insofar as drug manufacturer warnings to patients using prescription drugs are concerned. Additional warnings given directly to the patient which do not in any way undermine the efficacy of the warnings given to the physician cannot form an independent ground for liability.

The order of the trial court is affirmed.

      . Ms. Taurino is joined by her husband, Anthony Taurino, in this appeal.

      . Appellants make no argument on appeal concerning their breach of warranty theory and, therefore, we will not consider it.

      . We recognize that under Incollingo and subsequent cases applying it a manufacturer of a prescription drug may be shown to be negligent despite the fact that adequate warnings were given to the prescribing physician. Negligence may be shown where, for example, the manufacturer employs ‘‘detail” men who instruct physicians on the use of the drug and who are proven to have promoted the product in such a way as to encourage the physicians to ignore the warnings or where the manufacturer knows its warnings are being widely ignored and does nothing about it. See Incollingo, supra, 444 Pa. at 292-94, 282 A.2d at 222; Baldino v. Castagna, 505 Pa. 239, 247-49, 478 A.2d 807, 812 (1984). Thus, it is clear that there are grounds on which a manufacturer of such a drug may be found liable in negligence despite the adequacy of its written warnings to physicians. In the instant case, we merely find that there is no evidence of any material fact giving rise to such a ground for liability.


author: JOHNSON, Judge: WIEAND, Judge, KELLY, Judge,

text:
    579 A.2d 930
    COMMONWEALTH of Pennsylvania, Appellant, v. Jeffrey P. STRANGES.
    Superior Court of Pennsylvania.
    Argued May 31, 1990.
    Filed Aug. 24, 1990.

      Stephen B. Harris, Asst. Dist. Atty., Warrington, for Com., appellant.
    Brian Subers, Lansdale, for appellee.

      Before ROWLEY, WIEAND, OLSZEWSKI, MONTEMURO, BECK, KELLY, POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
   JOHNSON, Judge:

Once again, we are called upon to determine whether in a prosecution for drunk driving under the Motor Vehicle Code, a defendant may be admitted to Accelerated Rehabilitative Disposition (ARD) over the objection of the attorney for the Commonwealth. Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985) remains the law of this Commonwealth. That case instructs us that the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based upon her or his view of what is most beneficial for society and the offender. As there was no abuse of prosecutorial discretion, the trial court improperly granted the petition to compel ARD. The order directing admission to ARD is, therefore, reversed.

The Bucks County District Attorney has an open policy which withholds diversion from criminal prosecution into ARD from any person charged with drunk driving who is involved in an accident of any kind with another occupied vehicle, regardless of fault. Jeffrey Stranges was involved in a two-vehicle accident in April 1988. He was transported by ambulance to a local hospital where a technician extracted a blood sample.

Stranges’ blood alcohol content was established to be .13 percent. He was charged with driving under the influence of alcohol, 75 Pa.C.S. §§ 3731(a)(1) and (4). At the preliminary hearing, the investigating police officer testified that (a) Stranges was not at fault, (b) the operator of the other vehicle was also drunk and completely at fault for the accident, and (c) he had no objection to an ARD diversion of the charges against Stranges. The district justice dismissed the charge for violating § 3731(a)(1) (incapable of safe driving). He bound Stranges over to court on the charge under § 3731(a)(4) (blood alcohol content .10 percent or greater).

Stranges filed an ARD application with the Bucks County-Office of the District Attorney. The application was denied. Stranges then filed a petition for reconsideration which was heard in the court of common pleas. The trial court found that the district attorney had abused his discretion by denying ARD eligibility to Stranges. The court expressly found that the Commonwealth’s own investigation disclosed no fault on the part of Stranges, no impact on other motorists as a result of Stranges’ driving, and no purpose in protecting the public by denying Stranges ARD disposition. Opinion, November 15, 1988, page 6. The trial court directed that the defendant be admitted to the ARD program. It is this order directing the attorney for the Commonwealth to admit Stranges to the ARD diversion program which we now review and reverse.

The formal purpose of the Superior Court is to maintain and effectuate the decisional law of the Supreme Court of Pennsylvania as faithfully as possible. Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1985). We begin and conclude our analysis with the law set forth in Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985).

In Lutz, our Supreme Court assumed plenary jurisdiction over nine cases in neighboring judicial districts to consider whether a defendant may be admitted to ARD over the objection of the attorney for the Commonwealth. In all of the cases, the trial court, over objection, either ordered that the defendant be considered for admission to ARD or actually ordered such admission. After reviewing the theory of the program and its statutory mandate, 75 Pa.C.S. § 1552, the Lutz court examined subsection (d) of § 3731 of Title 75, the Motor Vehicle Code, relating to drunk driving. The court concluded that the ARD program relies upon the rules promulgated by our Supreme Court for the procedural implementation of the statutory program, except for providing that certain cases may not be submitted for ARD. Lutz, 508 Pa. at 305, 495 A.2d at 932.

The Lutz court declared that, under the Pennsylvania Rules of Criminal Procedure promulgated by our Supreme Court, Rules 176 — 186, 42 Pa.C.S., district attorneys have the sole discretion in any criminal case, including drunk driving cases, to move for the admission of a defendant into ARD. Id. Although the exercise of that discretion had not been directly challenged in any of the nine consolidated appeals then before the court, the Lutz court did, in fact, address that issue, observing in pertinent part:

Contrary to the view of the trial courts, we do not believe that only prior offenses related to drunk driving are relevant to admission to an ARD program. What is relevant in moving a particular defendant’s admission to ARD is whether he is the type of person who can benefit from the treatment offered by an ARD program, not whether he had been in trouble with alcohol and an automobile before.
This judgment, in turn, rests in the sound discretion of the district attorney. Such discretion, of course, is not without limitation, and ... may be usefully circumscribed by a requirement of openness.....In all of the cases consolidated herein, the prosecutors have openly specified their reasons for not submitting the cases for ARD, and those reasons, while they may be subject to disagreement as to their wisdom, do not amount to an abuse of discretion.
Since the judgment about who can benefit from ARD is subjective, and since society may be seriously damaged by a wrong judgment, the district attorney is not to be faulted if he errs on the side of caution.
In any event, the decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent an abuse of that discretion involving some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based upon his view of what is most beneficial for society and the offender.

Id., 508 Pa. at 309-310, 495 A.2d at 934-35 (emphasis in text; citations omitted).

Commonwealth v. Lutz was decided in June, 1985, and since then this court has assiduously followed its teachings: Commonwealth v. Burdge, 345 Pa.Super. 187, 497 A.2d 1367 (1985) (court-established admission criteria in contravention of Supreme Court rules are invalid); Commonwealth v. Brown, 350 Pa.Super. 453, 504 A.2d 927 (1986) (no ineffectiveness from failure to file motion seeking to compel district attorney to nominate for ARD, since no right to demand; no abuse of discretion in denial); Commonwealth v. Dougherty, 351 Pa.Super. 603, 506 A.2d 936 (1986) (district attorney’s discretion not unconstitutional; due process not violated by vesting in district attorney sole discretion to move admission into ARD); Commonwealth v. Roeder, 353 Pa.Super. 137, 509 A.2d 373 (1976) (prosecutor’s discretion not abused by excluding applicant with thirteen-year old felony conviction); Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986) (remand to allow district attorney to openly specify reasons for nonsubmission); Commonwealth v. Mowry, 358 Pa.Super. 233, 516 A.2d 1270 (1986), appeal denied 515 Pa. 605, 529 A.2d 1080 (1987) (where district attorney’s general considerations reasonable, particularized inquiry by court prohibited); Commonwealth v. Ryan, 358 Pa.Super. 459, 517 A.2d 1324 (1986), appeal denied 515 Pa. 577, 527 A.2d 538 (1987) (denial of motion to compel ARD not trial court error); Commonwealth v. Ebert, 369 Pa.Super. 318, 535 A.2d 178 (1987) (nonsubmission based upon prior juvenile record not abuse of discretion; equal protection not violated); Commonwealth v. Knowles, 373 Pa.Super. 203, 540 A.2d 938 (1988), appeal denied 520 Pa. 614, 554 A.2d 507 (1988) (.25 percent blood alcohol cutoff for ARD admission not unreasonable); Commonwealth v. Paul, 383 Pa.Super. 486, 557 A.2d 357 (1989) (Bucks County policy of denying ARD to DUI operator involved in collision with another occupied vehicle upheld).

Both the distinguished trial judge and Stranges place undue emphasis on the fact that Stranges’ substantial likelihood of successful rehabilitation has not been disputed by the attorney for the Commonwealth. That Stranges has had no prior contacts with the criminal justice system and has indeed been recommended for the ARD program by the investigating officer is not dispositive of this appeal. Our Supreme Court in Lutz made it clear that the criteria for admission to an ARD program may relate to either one of two distinct areas of concern: “[1] the protection of society and/or [2] the likelihood of a person’s success in rehabilitation.” Lutz, 508 Pa. at 310, 495 A.2d at 935, set forth in context, above. In fashioning Ms program for admission into ARD, the Bucks County District Attorney has chosen to place the emphasis on the protection of society. We are not prepared to declare that the district attorney has abused the discretion lodged in that office when he suspends the prosecution of (and considers recommending for ARD) only that class of drivers not involved in an accident with another occupied vehicle.

Once it is determined that the general policy bears some rational relationship to the protection of the public, it is improper to consider the manner in which or the degree to which that acceptable policy affects a specific driver. As a panel of this court said in Commonwealth v. Mowry, supra, 358 Pa.Super. at 237, 516 A.2d at 1272:

Having found that the district attorney’s considerations, in general, were reasonable, the trial court was no longer in a position to continue its inquiry. Whether the trial court would find a particular individual a likely candidate for ARD is simply not the question. At issue, is whether or not the district attorney abused his discretion. The court has failed to identify criteria relied upon by the Commonwealth “wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of (appellees) success in rehabilitation, such as race, religion or other such obviously prohibited consideration ... Commonwealth v. Lutz, 508 Pa. at 310, 495 A.2d at 935.”

The facts arising in Commonwealth v. Paul, supra, are strikingly similar to the facts present on this appeal. In Paul, the motorist was charged with driving under the influence after he had struck an occupied vehicle stopped at an intersection. His blood alcohol count was .12 percent. Paul had an otherwise safe driving record, no prior criminal record, evidence of required insurance coverage, and possession of a valid operator’s license. The driver of the struck motor vehicle had not been injured. Both the driver of the other vehicle and the arresting officer favored ARD treatment for Paul. His motion to compel placement in ARD contained all of this favorable information. The motion was refused by the trial court and Paul appealed to this court.

Essentially, the appellant in Paul, the motorist charged with DUI, argued that a district attorney should be required to “set off” or weigh purportedly mitigating factors against the considered policy of rejecting applications for ARD which otherwise do not meet the designated criteria. The appellant contended that the failure or refusal to conduct such a balancing analysis as a condition precedent to the exclusion determination constituted prosecutorial abuse. In rejecting that argument, the Paul panel stated:

Our efforts have been in vain to locate any authority, judicial or legislative, in this Commonwealth to support appellant’s claim____ Neither Lutz and its progeny nor the cases preceding Lutz condones [sic] such requirement or restricts the prosecutor’s discretion in the fashion now urged by appellant. The cases since Lutz have not broadened or restricted a District Attorney’s discretion regarding the acceptance or rejection of persons into or from participation in an A.R.D. program. We see no reason to deviate from that line of reasoning now.
This case presents no justification for diverging from established precedent. The policy of the Bucks County District Attorney of not considering for enrollment in the County A.R.D. program any person charged with driving under the influence ... who is involved in an accident with another occupied vehicle does not offend the twin purposes of A.R.D. — the rehabilitation of the offender and the protection of society — as contemplated by Lutz and the Rules of Criminal Procedure relating to A.R.D.
We are unwilling to cast aside as mere fluff, as appellant would have us do, the policy of the Bucks County District Attorney circumscribing a candidate’s acceptance into the County A.R.D. program. Instead, it is a valid and permissible expression of the sentiment of the Chief Prosecutor of that County and a proper and legal exercise of that public official’s discretion.

383 Pa.Super, at 491, 492-93, and 498, 557 A.2d at 359, 360, and 362.

We discern only two differences between the circumstances in Commonwealth v. Paul, discussed above, and the present appeal. In Paul, the appeal was brought by the motor vehicle operator following a denial of his motion to compel placement in ARD. The appeal now before us is brought by the attorney for the Commonwealth from an order directing that the operator be admitted into the ARD program. Second, in Paul, the collision of the two occupied vehicles was clearly the “fault” of the appealing operator, Paul, inasmuch as the other vehicle was stopped at an intersection. In the present appeal, the investigating police officer testified at the preliminary hearing that he believed the operator involved in this appeal, Stranges, was wholly without “fault” and the other operator was completely at “fault.” However, neither of these distinctions is relevant to a determination of whether an individual should be admitted to ARD.

An accused has no right to demand acceptance into the ARD program and cannot complain when he is precluded from participation. Commonwealth v. Lutz, supra. Pa.R.Crim.P. 176, 42 Pa.C.S. An ARD recommendation is solely the province of the prosecutor, and admission of an offender into the program is by the grace of the trial court upon the Commonwealth’s motion. Id.; Commonwealth v. Ayers, 363 Pa.Super. 232, 525 A.2d 804 (1987). The attorney for the Commonwealth must be free to submit a case or not submit a case for ARD consideration based upon her or his view of what is most beneficial for society and the. offender. Lutz, supra. Therefore, absent some abuse of the district attorney’s sound discretion, the “fault” or “lack of fault” of the applicant is totally irrelevant.

In exercising its plenary jurisdiction in Lutz and its companion appeals, our Supreme Court declared:

We conclude, therefore, that the rules of this Court governing ARD [Pa.R.Crim.P. 176 — 186], as modified by [75 Pa.C.S.] Section 3731(d)____ are the sole applicable procedure by which a person charged with drunk driving may be admitted into ARD, and that no criminal defendant, including a person charged with drunk driving, may move his own admission to ARD.

508 Pa. at 312, 495 A.2d at 936. We find the rules and the Supreme Court’s ruling in Lutz to be clear. There is no ambiguity. Were we to affirm the order of the trial court, which directed the attorney for the Commonwealth to admit Stranges into the ARD program, we would, in effect, be engaging in intermediate appellate court rule making. We declined that invitation in Commonwealth v. Simmons, 388 Pa.Super. 271, 278-80, 565 A.2d 481, 485 (1989). We decline that invitation here and now.

The order of November 15, 1988 directing that Jeffrey Stranges be admitted to the Bucks County ARD program was an intrusion upon the sound discretion of the attorney for the Commonwealth as established by the Rules of Criminal Procedure and declared by our Supreme Court in Commonwealth v. Lutz. Accordingly, we reverse the order and remand this case for further proceedings consistent with the views expressed in this opinion.

Order reversed. Case remanded. Jurisdiction relinquished.

WIEAND, J., files a dissenting opinion.

KELLY, J., files a concurring statement.

WIEAND, Judge,

dissenting:

I respectfully dissent. The policy of the District Attorney of Bucks County which refuses to consider for Accelerated Rehabilitative Disposition (ARD) any person charged with driving while under the influence of alcohol if he or she was involved in an accident with another occupied vehicle, irrespective of fault, is arbitrary, bears no relation to the protection of society or the potential for successful rehabilitation of the offender, and is contrary to the intent of the legislature as manifested in the provisions of 75 Pa.C.S. §§ 1552 and 3731. I would affirm the trial court which held that the District Attorney had abused his discretion by denying ARD to Jeffrey Stranges under the circumstances of this case.

At or about 1:38 a.m. on April 23, 1988, Stranges was operating a Ford pickup truck in a westerly direction on Route 563 in Rockhill Township, Bucks County. Proceeding in the opposite direction was an International Scout being operated by Marc H. Zeigler. Suddenly and without prior warning, the Zeigler vehicle crossed the center line of the highway and struck the oncoming Stranges truck. In the ensuing collision, both drivers were injured and removed by ambulance to Grandview Hospital. Only Stranges was injured seriously. Blood samples taken at the hospital revealed that Stranges had a blood alcohol content of .13%, and Zeigler had a blood alcohol content of .15%. Investigating police charged both drivers with driving while under the influence of alcohol. In addition, Zeigler was charged with a lane violation.

At the preliminary hearing, a charge that Stranges had violated 75 Pa.C.S. § 3731(a)(1) was dismissed, but a charge that he had violated 75 Pa.C.S. § 3731(a)(4) by driving while the alcohol by weight in his blood exceeded O. 10. was returned to court. Stranges then requested the District Attorney to consider him for ARD, but Stranges was rejected solely because of the District Attorney’s policy that ARD would not be considered for persons accused of driving while under the influence of alcohol if they had been involved in an accident with another occupied vehicle. Appellant then filed a petition to compel admission to ARD, on which the court held a full hearing. At this hearing, the arresting police officer testified that the accident had been the fault of Zeigler, the other driver, and recommended that Stranges be admitted into the ARD program. He said that because of ditches along the side of the road he was unable to say that Stranges could have avoided the accident. Indeed, there was no evidence whatsoever that appellee’s consumption of alcohol had been related in any way to the happening of the accident. The court found that the district attorney had abused his discretion by blindly applying a policy which refused to consider a first offender for the ARD program if the offender had been involved in an accident.

In 1982, the legislature mandated an ARD program in each judicial district for persons charged with driving while under the influence of alcohol. The only restrictions which the legislature placed on the availability of ARD in such cases were as follows:

The attorney for the Commonwealth shall not submit a charge brought under this section for Accelerated Rehabilitative Disposition if:

(1) the defendant has been found guilty of or accepted Accelerated Rehabilitative Disposition of a charge brought under this section within seven years of the date of the current offense;
(2) the defendant committed any other act in connection with the present offense which, in the judgment of the attorney for the Commonwealth, constitutes a violation of any of the specific offenses enumerated within section 1542 (relating to revocation of habitual offender’s license); or
(3) an accident occurred in connection with the events surrounding the current offense and any person, other than the defendant, was killed or seriously injured as a result of the accident.

75 Pa.C.S. § 3731(d) (emphasis added). It is evident from this statutory language that the legislature did not deem the mere happening of an accident a sufficient basis on which to bar ARD unless a person other than the defendant “was killed or seriously injured as a result of the accident.” Despite this clear expression of legislative intent, the District Attorney in Bucks County has rewritten the statute to prohibit the availability of ARD for any DUI defendant who has been involved in an accident with another vehicle, even where the accident was a minor fender bender and the defendant was free from fault in causing the accident. Because of this policy, the District Attorney in Bucks County refuses even to consider whether society and/or the offender will be better served by admitting an accused to ARD under such circumstances. I am unable to join my distinguished colleagues who perceive in such a policy neither arbitrariness nor an abuse of discretion.

The Supreme Court, in Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985), held that the decision to submit a case for ARD was vested in the sound discretion of the district attorney. In this manner the Court sought to ensure that

no criminal defendant will be admitted to ARD unless the party to the case who represents the interests of the Commonwealth, the district attorney, has made the determination that a particular case is best handled by suspending the prosecution pending the successful completion of a diversionary ARD program. Society has no interest in blindly maximizing the number of ARD’s passing through the criminal justice system, and the criminal defendant has no right to demand that he be placed on ARD merely because any particular offense is his first. Rather, society, for its own protection, has an interest in carrying out the penalties prescribed by the legislature for drunk driving, except in the cases where even society’s representative in the case, the district attorney, acting in conjunction with the court, and subject always to the restrictions set out in Section 3731(d) (concerning persons who may not be admitted to ARD) determines that ARD is preferable to conviction because of the strong likelihood that a given criminal defendant will in fact be rehabilitated by an ARD program.

Id., 508 Pa. at 307, 495 A.2d at 933 (emphasis added).

The discretion vested in the District Attorney, however, is not unlimited. In addition to the restrictions imposed by statute, the discretion of a district attorney is limited by his or her obligation to decide in each particular case whether ARD is “preferable to conviction because of the strong likelihood that a given criminal defendant will in fact be rehabilitated by an ARD program.” Id. It constitutes an abuse of the district attorney’s discretion to apply “some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation____” Id., 508 Pa. at 310, 495 A.2d at 935. See also: Commonwealth v. Ebert, 369 Pa.Super. 318, 322, 535 A.2d 178, 180 (1987) (district attorney’s reasons for denying ARD must relate to protection of society or to likelihood of candidate’s successful rehabilitation).

In the instant case, the district attorney refuses to consider the possibility that appellee can be rehabilitated by participation in ARD and the public benefitted thereby. He does so because of a policy adopted by him which is unwarranted by statute or judicial decision. According to this policy, even a driver having a blood alcohol content of 0.10% will not be considered for ARD in Bucks County if he or she should be so unfortunate as to be struck in the rear while stopped at a stop light. Such policy is arbitrary and, in my judgment, violates the exercise of discretion required in individual cases by the Supreme Court in Lutz. See: Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976) (where judges agreed on policy that sentence for sale of heroin would be imprisonment for three to ten years, without consideration being given to defendant’s individual characteristics, sentence imposed pursuant to such policy was illegal). The District Attorney’s policy in this case is also contrary to the manifest intent of the legislature.

I agree with the trial court that to apply such a policy blindly, as the district attorney did in this case, was an abuse of discretion. I would affirm the order of the trial court.

KELLY, Judge,

concurring:

I join in the excellent majority opinion of Judge Johnson. I write separately to address briefly some additional matters raised by this case.

Jurisdiction

This case has been taken on direct appeal without allowance of interlocutory appeal by permission. Implicit in our exercise of jurisdiction in this case is a conclusion that an appeal from an order granting ARD over the Commonwealth’s objection is effectively final, even though an order granting ARD with the consent of the Commonwealth and the defendant is deemed interlocutory. Cf. Commonwealth v. Feagley, 371 Pa.Super. 593, 538 A.2d 895 (1988); Commonwealth v. Hunter, 294 Pa.Super. 52, 439 A.2d 745 (1982). The critical distinction between Feagiey and Hunter and this case may be explained as follows.

Orders denying acceptance into ARD are not final because the challenge to the denial of ARD properly may be brought following trial if a conviction results. See Commonwealth v. Hunter, supra; cf. Commonwealth v. Roeder, 858 Pa.Super. 187, 509 A.2d 373 (1986). Orders granting admission to ARD, acquiesced in by the Commonwealth and accepted by the defendant, are interlocutory because the parties have expressly agreed to have the charges held in abeyance pending completion or revocation of ARD. See Commonwealth v. Feagiey, supra. When ARD is granted over an objection by either the Commonwealth or the defendant, however, any appeal would be rendered moot before appellate review could be had by the objecting party. That is the critical distinction.

In Feagiey, this author opined:

Generally, an immediate appeal may only be taken from a final order. Pa.R.A.P. 841. A final order is one which disposes of the entire case or puts an appellant out of court with respect to a claim. Commonwealth v. Wills, 328 Pa.Super. 842, 476 A.2d 1362 (1984). In the instant case, appellant elected (wisely or not) to permit the charges against him to be held in in abeyance; the charges are not disposed of and he is not out of court on his claims. Thus, the order in question is not immediately appealable as a final order.
Alternatively, even if an order is an interlocutory order rather than a final order, immediate appeal by right may be taken if the order is one of the types of interlocutory orders listed in Pa.R.A.P. 311. The instant order, however, is not.
Consequently, the order in question is only appealable by right during appellant’s participation in the ARD program if the order is appealable under the three prong “Cohen exception” to the final order rule, also referred to as the “collateral order doctrine.” See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). The Cohen exception provides that an interlocutory order may be immediately appealed if: 1) the order is separable from and collateral to the main cause of action; 2) the right involved is too important to be denied review; and 3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. See Fried v. Fried, 509 Pa. 89, 94, 501 A.2d 211, 214 (1985); see also Zarnecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873 (1987). To qualify under the Cohen exception, all three factors must be met. See Fried v. Fried, supra, 501 A.2d at 214; Commonwealth v. Bonaparte, 366 Pa.Super. 182, 184-185 n. 1, 530 A.2d 1351, 1352 n. 1 (1987) (applying the Cohen test). In the instant case, any irreparable loss of appellant’s ability to challenge the ARD conditions is clearly the result of appellant’s election and not the order appealed. Consequently, I do not find this case to be appealable under the Cohen exception.

538 A.2d at 902. (Emphasis added). This limitation on the plurality decision highlights the critical distinction between Feagley and the instant case. In this case, unlike the situation in Feagley, appellee was admitted to ARD over the Commonwealth’s objection. Because the delay in review in this case was not occasioned by an order to which the Commonwealth consented, Feagley is distinguishable and this case comes within the Cohen exception.

Finally I note that this Court and our Supreme Court have previously entertained direct appeals in virtually identical cases (where ARD have been granted over Commonwealth objections) without finding the permissive interlocutory review practice applicable or required. a986). Thus, this appeal is properly before this Court for review.

Alleged Arbitrariness of the ARD Policy

The dissent contends that the restrictive ARD policy of the Bucks County District Attorney was arbitrary and contrary to the intent of the legislature. I respectfully disagree.

In Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985), our Supreme Court stated unequivocally:

... the decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent an abuse of that discretion involving some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based on his view of what is most beneficial for society and the offender.

495 A.2d at 395. (Emphasis in original). The duly elected District Attorney of Bucks County Pennsylvania has decided that ARD shall not be available in Bucks County to any individual involved in a two (or more) vehicle accident while driving under the influence (DUI), regardless of fault or faultlessness on the part of the drunk driver in the causation of the accident.

The investigating officer in this case recommended ARD based upon his conclusion that:

Stranges was completely free from fault in causing the accident. Moreover, due to the curve in the road and ditches alongside the road, it was impossible for the Stranges to avoid the accident.

(N.T. 9/15/88 at 10-11).

Perhaps in this case the officer’s conclusions may be warranted, though I must confess a lingering skepticism with respect to the degree of certitude expressed by the officer as to the potential for Stranges to have avoided the accident had he been sober. Was the speed so fast, the curve so sharp, the ditch so deep, and the danger so immediate that an alert and sober driver could not have ditched his car or otherwise avoided and/or minimized the collision? Are accident reconstruction techniques so precise? I have my doubts; and, apparently the District Attorney of Bucks County had his. (See N.T. 9/15/88 at 9-12) (questioning by the assistance district attorney of the investigation officer upon this issue). Regardless, it is the legitimacy of the policy in the aggregate of cases which is at issue here, and not solely its application to the facts of this case.

That a bright line rule may reap beyond the purpose for which it was sown is often a regrettable but unavoidable consequence of such rules. That fact, however, does not render such rules arbitrary or capricious.

Here, the District Attorney’s bright line rule promotes prompt and predictable prosecutorial triage regarding recommendations of ARD in DUI accident cases by avoiding entirely the often problematic issue of causation. I find no abuse of discretion in the Bucks County Prosecutor’s decision to decline to devote limited investigative and prosecutorial resources to the difficult task of separating fault involving from purely faultless accidents in deciding which DUI cases to recommend for ARD.

Moreover, such a policy might reasonably be based on a belief that one embarrassing miscalculation regarding the attribution of fault in such cases could easily so enrage the public as to endanger the continued allowance of ARD for any DUI cases in that county. There have been counties in this Commonwealth were ARD was simply not available in any DUI cases, largely as the result of public opinion in those counties regarding the seriousness of DUI offenses. Cf. Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977). In sum, I find the challenged policy to be well within the legitimate bounds of prosecutorial discretion.

With these observations noted, I join the majority.

      . The language of 75 Pa.C.S. § 3731(a)(1) makes it criminal for a person to operate a motor vehicle while he or she is "under the influence of alcohol to a degree which renders the person incapable of safe driving."

      . The statutory mandate is as follows:
      The court of common pleas in each judicial district and the Municipal Court of Philadelphia shall establish and implement a program for Accelerated Rehabilitative Disposition for persons charged with a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) in accordance with the provisions of this chapter and rules adopted by the Supreme Court.
      75 Pa.C.S. § 1552.

      . Unlike the dissent, I do not read 75 Pa.C.S.A. § 1552 to express an intent by the legislature to overturn Kindness or to otherwise restrict the prosecutor’s discretion over ARD in DUI cases. The statute mandates that a procedure be set forth; it is silent as to the conditions for admission to be required and expressly defers to the Supreme Court’s rule making authority on this point. The Supreme Court in turn, has vested broad discretion in the prosecutors. As explained above, I find no abuse of that discretion here. Significantly, Lutz (which was decided after § 1552 was enacted by the legislature) expresses no such limitations on prosecutorial discretion.


text:
    579 A.2d 940
    JEWELCOR INCORPORATED v. PRE-FAB PANELWALL, INC. and James R. Brunemann, Individually and James C. Brunemann, Individually, Dennis Brunemann, Individually, John Castro, Individually, Robert Quigley, Individually, George Andrews, Individually, Robert Vernon Nash, Jr., Individually, Larry Blank, Individually, Forrest J. Swieggart, Individually, Leonard A. Walker, Individually and Joseph Purcell, Individually. Appeal of Leonard A. WALKER.
    Superior Court of Pennsylvania.
    Argued June 11, 1990.
    Filed Aug. 30, 1990.

      Leonard A. Walker, pro se.
    Brian C. Corcoran, Wilkes-Barre, for Jewelcor, appellee.
    Before POPOVICH, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

This is an appeal from judgment entered on October 10, 1989, on the order granting appellee, Jewelcor Incorporated (Jewelcor), peremptory judgment under Pa.R.C.P. 1098 in this declaratory judgment action. We conclude that the trial court did not have jurisdiction to decide the issue presented in this appeal due to 42 Pa.C.S. § 7541(c)(2). We reverse.

This action was instituted by Jeweleor, a Pennsylvania corporation, by the filing of a document entitled “complaint” on June 28, 1989, in the Court of Common Pleas of Luzerne County, against Pre-Fab Pamelwall, Inc. (“Pre Fab”), an Ohio corporation, and against James R. Brunemann, James C. Brunemarm, Leonard ffalker, and eight other individuals. The document contains the following allegations. Pre-Fab instituted a proceeding in arbitration against Jewelcor, the arbitration proceeding is pending, and it is being administered by the American Arbitration Association at its office in Philadelphia. The arbitration proceeding relates to a claim for money allegedly owed by Jewelcor under a contract for the construction of Jewelcor’s headquarters and to a counterclaim filed by it. The three arbitrators have been chosen, hearings on the arbitration have been conducted, and numerous others have been scheduled.

During the course of discovery relating to the arbitration proceeding, Pre-Fab delivered to Jewelcor’s counsel transcripts of approximately fifteen tape-recorded conversations. The contents of the tape-recorded conversations concern the events which are the subject of the arbitration proceeding. James R. Brunemann has stated under oath that the tapes were made -when he, with the knowledge and consent of James C. Brunemann, attached a recording device to his office telephone located in Fairfield, Ohio. The conversations were recorded without the permission or knowledge of the other parties to the conversations. Intercepted telephone calls include some made with Leonard Walker, appellant.

When Jewelcor’s counsel discovered that the conversations were taped without the consent of the parties, she recognized the potential for liability under the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“Wiretap Law”), which provides civil and criminal penalties for persons who intercept or disclose the contents of any wire communication unless all parties to the communication consent. See 18 Pa.C.S. §§ 5701-5726. She returned the tapes to Pre-Fab.

Appellee wants to reveal the contents of the conversations to the arbitrators, but also wants to protect itself from liability under the Wiretap Law. In Ohio, there are no criminal or civil penalties for nonconsensual wire-tapping of telephone conversations.

On the basis of these allegations, appellee requested various forms of relief in four separate counts of its complaint. First, it asked that the court declare that the Wiretap Law does not apply to the tapes, but that Federal statutory law or Ohio law apply to the Pennsylvania arbitration. Second, Jewelcor asked that the court find that Jewel-cor, its witnesses, and counsel are not subject to the civil and criminal penalty provisions of the Wiretap Law pursuant to section 5717(c), which provides an exemption from criminal and civil liability to any person who obtains the knowledge of the contents of a taped communication by means authorized by the laws of another state or federal government if the information is disclosed while giving testimony under oath or affirmation in any proceeding in this Commonwealth.

Third, it asked the court to rule that Jewelcor, its witnesses, and counsel be allowed to use the tapes in the arbitration proceedings without being subject to the civil and criminal penalties of the Wiretap Law and that the material be used only in the arbitration and then placed under seal. Fourth, Jewelcor asked that if the court determines that it is not entitled to the first three forms of relief, that the court declare that the defendants did tape the conversations in violation of Pennsylvania law and award appellee damages.

Jewelcor then filed a motion for peremptory judgment, contending that it is permitted to use the taped conversations in the arbitration proceeding under 18 U.S.C. § 2511(2)(d), which provides that it is not illegal to use conversations taped without the consent of both parties under certain circumstances. Pre-Fab, a defendant, then joined in the motion for peremptory judgment, asking that it also be protected from liability for using the taped conversations in the arbitration proceeding. Appellant was the only person to oppose the request for peremptory judgment.

On September 5, 1989, the trial court granted the motion, concluding that since the conversations were made with people in different states, 18 U.S.C. § 2511(2)(d) applies, preempts Pennsylvania law, and permits the use of the conversations in the Pennsylvania arbitration proceeding without the consent of appellant. This timely appeal followed.

We conclude that the trial court lacked jurisdiction to decide this issue, which relates solely to the admissibility of evidence in an arbitration proceeding. Section 7533 of the Declaratory Judgments Act (the “Act”), 42 Pa.C.S. § 7533, grants courts jurisdiction to determine any question of construction arising under a statute. That section certainly envisions the relief granted by the order under consideration. However, courts do not have jurisdiction to provide relief under the Act with respect to any “proceeding within the exclusive jurisdiction of a tribunal other than a court.” 42 Pa.C.S. § 7541(c)(2). The relief granted by the order relates to the admissibility of evidence in the arbitration proceeding and is within the exclusive jurisdiction of the arbitration panel. The panel is the body with the jurisdiction to determine whether 18 U.S.C. § 2511(2)(d) applies and preempts Pennsylvania law with respect to evidence to be presented in the action pending before it.

Commonwealth Department of General Services v. Frank Briscoe Co., 502 Pa. 449, 466 A.2d 1336 (1983), is instructive. There, the Commonwealth Department of General Services brought a declaratory judgment action seeking a ruling regarding certain rights under a contract that the department knew was about to be submitted to administrative proceedings in the Pennsylvania Board of Claims. The supreme court, relying partially on section 7541(c)(2), ruled that there was no jurisdiction under the Act to determine issues that are to be resolved in an administrative forum.

Similarly, in Deigendesch v. County of Bucks, 505 Pa. 555, 482 A.2d 228 (1984), the supreme court stated that the courts do not have jurisdiction to determine the validity of a real estate assessment pursuant to a declaratory judgment action, which the taxpayers had instituted rather than appealing the assessment to the county’s board of review of assessment appeals. The court noted that under section 7541(c)(2) of the Act, relief in the form of a declaratory judgment is not available in proceedings within the jurisdiction of another tribunal and that under Pennsylvania statutes, review of a tax assessment is within the jurisdiction of the board of tax appeals.

We also find guidance on this issue from early case law which clarifies that section 7541(c)(2) applies to proceedings before arbitration panels and that a declaratory judgment action may not be entertained with respect to matters that are within the jurisdiction of the arbitrators. See Allstate Insurance Co. v. Taylor, 434 Pa. 21, 252 A.2d 618 (1969), and cases discussed therein. See also Prudential Property and Casualty Insurance Co. v. McDaniel, 342 Pa.Super. 557, 493 A.2d 731 (1985).

In the present appeal, we are asked to decide an issue that does nothing more than declare whether certain evidence can be admitted to the panel of arbitrators in contravention of Pennsylvania law due to the applicability of federal law. Section 7541(c)(2) of the Act prohibits us from interfering with the panel’s evidentiary matter.

Following the conclusion of the arbitration and entry of the award, there is recourse to the courts. See 42 Pa.C.S. §§ 7301-41.

Order reversed and case remanded. Jurisdiction relinquished.

      . Originally, four individual defendants were named. Appellee subsequently filed an amended complaint adding seven additional defendants to the action on the basis of the same allegations.


author: DEL SOLE, Judge:

text:
    579 A.2d 942
    COMMONWEALTH of Pennsylvania v. Sohrab BAGARI, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1990.
    Filed Aug. 29, 1990.

      Victor A. Neubaum, Jr., York, for appellant.
    Gerald A. Lord, Asst. Dist. Atty., York, for the Com., appellee.
    Before WIEAND, DEL SOLE and MONTEMURO, JJ.
   DEL SOLE, Judge:

Appellant, Sohrab Baghari, was convicted after jury trial of the crime of Bad Checks, 18 Pa.C.S.A. § 4105. This offense is defined as the issuing or passing of a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee.

In the instant case, Appellant authorized his agent, a certain Mr. Omidi, to deliver a check for the sum of twenty-three thousand dollars ($23,000.00) to Diehl Motor Co., Inc., [Diehl] on August 15, 1988, in payment for a 1987 Mere-cedes-Benz 190-E. It is this check which was subsequently dishonored.

Appellant is the owner of Royal Motors, Inc., a Virginia wholesale automobile business now in bankruptcy. Mr. Baghari had previously signed the check in blank, and had given it to Mr. Omidi to deliver to Diehl in York, Pennsylvania. Before delivering the check on August 15, Mr. Omidi called Appellant from the offices of Diehl, and was told by Appellant that he was authorized to complete the check for the agreed amount and to deliver it to Diehl. Mr. Omidi then took the automobile from Diehl.

The check, upon deposit by Diehl, was returned by the bank because of insufficient funds. On September 2, 1988, a representative of Diehl called Appellant and informed him that the check had been dishonored. Appellant advised Diehl to re-deposit the check, but it was dishonored a second time. On September 20, 1988, Diehl sent a letter to Appellant advising him of the check’s dishonor and demanding payment within ten days. The payment was never made.

The bookkeeper for Appellant testified that he routinely checked the bank balances at Appellant’s requést to determine if there were sufficient funds to cover checks that were written from time to time. According to the testimony presented at trial, on the day in question, Mr. Baghari inquired of the firm’s bank balance, and was told by the bookkeeper that the account was approximately ten thousand dollars short of the amount to cover the check to Diehl. The bookkeeper further testified that Appellant procured a loan for ten thousand dollars and that it was deposited in the firm’s bank account on the same day. Appellant did not come forward with any bank records or deposit slips confirming that this loan was in fact deposited in the relevant account, nor did he explain why the check was dishonored by the bank despite his own testimony that he borrowed the required funds from a source from whom he had procured short term loans in the past, and had deposited these funds in his account with the understanding that he would be given immediate credit for the deposit. He admits that he knew shortly thereafter that the check had been dishonored, and that he intended to make the check good. However, a short time later the firm went into bankruptcy.

Appellant claims on appeal that the verdict was against the weight of the evidence because the commonwealth failed to prove beyond a reasonable doubt that he knew at the time the check was passed that the check would not be honored by the bank. Although, this claim is framed as a “weight of the evidence” argument, it encompasses three contentions: 1) the trial court erred in stating the elements of the offense of Bad Checks; 2) having misstated the standard, the Commonwealth failed to provide sufficient evidence to prove the elements of the offense, and 3) the verdict was against the weight of the evidence because Appellant had a reasonable expectation to believe, and did believe that the check would be honored, and because the statutory presumption of present knowledge does not provide proof beyond a reasonable doubt in the face of the evidence produced by Appellant.

Appellant first claims that the trial court erred in failing to distinguish the key element of the offense of bad checks, which is present knowledge that the check “will not be honored by the drawee.” 18 Pa.C.S.A. § 4105(a)(1). This element of the offense, he states, is different from knowledge by the maker of the check that he does not have sufficient funds to cover the check at the time the check passes. This was an element of the prior law, Section 854 of the Penal Code of 1939, 18 P.S. § 4854, which made it a crime for a person, with intent to defraud, to issue a check knowing that he does not have sufficient funds in the bank to cover the check.

Although there is some evidence in the trial court’s opinion, that it was relying on the earlier definition of the offense, the record clearly reveals that the court correctly explained the elements of the offense of bad checks to the jury, and clearly stated that the Commonwealth must prove beyond a reasonable doubt that the “defendant knew that the check would not be honored by the bank upon which it was drawn.” (N.T. May 15, 1989 at 74.)

In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. Commonwealth v. Kale, 331 Pa.Super. 155, 480 A.2d 291, 292 (1984). The credibility of the witnesses is a matter within the province of the trier of fact, which is free to believe all, some, or none of the evidence. Commonwealth v. Smith, 502 Pa. 600, 467 A.2d 1120, 1122 (1983). We are required to determine whether such evidence and inferences are sufficient in' law to prove jguilt beyond a reasonable doubt. Kale, supra. We find that there was sufficient evidence presented by the Commonwealth to prove that Appellant was guilty beyond a reasonable doubt. Appellant admits that he delivered the check and that it was not honored, and the only issue to be resolved was whether Appellant knew at the time of issuance that the check would not be honored. Although the defense provided testimony that an attempt was made to cover the check by making a deposit on the day the check was delivered, there were no records produced to support this testimony, and no reasons given why, if Appellant did in fact deposit the requisite ten thousand dollars ($10,000), the check was dishonored a second time after Appellant advised Diehl to re-deposit it. As the credibility of the witnesses providing this testimony is determined by the jury, they were free to disbelieve that the loan covering the check had ever been deposited.

The questions going to the weight of the evidence concern Appellant’s knowledge or belief whether the check would be honored. As it is difficult to prove this knowledge or belief, the statute provides that this knowledge may be presumed if payment on a check is refused by the bank for lack of funds, upon presentation within 30 days after issue, and the issuer, failed to make good within ten days after receiving notice of that refusal. 18 Pa.C.S.A. § 4105. As the Commonwealth proved all the elements of this presumption, by the evidence of the twice dishonored check, the jury was free to presume knowledge unless rebutted.

This presumption is rebuttable by evidence presented by the defense, and in the case Commonwealth v. Frank, 322 Pa.Super. 6, 468 A.2d 1131 (1983), we held that the trial court erred in failing to find that the presumption had been rebutted although there was documentary and testimonial evidence from the bank officers that a banking error caused the misrouting of another check which would have covered the payment of the dishonored check.

Such is not the case here. There was no documentary evidence of the deposit or of the ten thousand dollar ($10,-000) loan. Nor was there testimonial evidence from the bank concerning the financial arrangements that Appellant claimed existed, allowing for immediate credit for his deposits. The jury was within its authority in not accepting Appellant’s testimony regarding the deposit, the loan, or the financial arrangement with the bank, Id., citing, Commonwealth v. Conti, 236 Pa.Super. 488, 345 A.2d 238 (1975), and therefore we hold that the presumption of knowledge was not rebutted. Contrary to Appellant’s claim, therefore, the verdict was not against the weight of the evidence such that it was unreasonable to find that Appellant knew that the check would be dishonored at the time it was issued.

Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and it will not be reversed on appeal unless there has been an abuse of discretion. Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984). Finding no such abuse of discretion, we affirm the judgment of sentence.