author: KELLY, Judge: CIRILLO, Judge,

text:
    649 A.2d 989
    COMMONWEALTH of Pennsylvania, Appellant, v. Steven WERIS, Appellee.
    Superior Court of Pennsylvania.
    Argued April 18, 1994.
    Filed Nov. 1, 1994.
    George S. Leone, Asst. Dist. Atty., Philadelphia, for appellant.
    Peter Rosalsky, Asst. Public Defender, Philadelphia, for appellee.

      Before CAVANAUGH, WIEAND, McEWEN, CHULLO, BECK, TAMILIA, KELLY, POPOVICH, and SAYLOR, JJ.
   KELLY, Judge:

In this appeal we must determine whether under 35 P.S. § 780 — 117(1)(vi) persons who have been charged with violating 35 P.S. § 780-113(a)(14), (30), or (37) and who have pled guilty or nolo contendere to the violation of 35 P.S. § 780-113(a)(14), (30) or (37) and are now being sentenced for that crime are barred from receiving of probation without verdict. Our review requires us to interpret 35 P.S. § 780-117(1). After careful consideration, we hold that 35 P.S. § 780-117(1)(vi) does prohibit a person who has pled guilty or nolo contendere to a charge of violating 35 P.S. § 780-113(a)(14), (30), or (37) from receiving as a sentence probation without verdict. Therefore, we vacate the sentence of appellee, Steven Weris, and remand for resentencing.

Appellee, Steven Weris, was arrested on August 30,1993 by two police officers who pursued Weris after observing him looking at them and then running. While being pursued, appellee dropped a clear plastic baggie which the officers retrieved. The baggie contained sixty-one vials containing cocaine base. The vials contained 1.997 grams of crack cocaine. The amount is .003 grams less than the 2.0 grams which would subject appellee to a mandatory minimum term of imprisonment. Appellee was arrested and charged with violating 35 P.S. § 780-113(a)(30). The charge was appellees first charge. Appellee is a certified drug dependent.

Weris pled nolo contendere to the charge. Weris received a sentence of probation without verdict. The Commonwealth filed a timely petition to modify the sentence. The petition was denied. The Commonwealth filed a timely notice of appeal.

On appeal, the Commonwealth raises the following issue:

CAN DEFENDANTS, WHO WERE CHARGED WITH DRUG DEALING AND WHO CONCEDED THEIR GUILT BY PLEADING NO CONTEST, REWRITE SECTION 17(1)(VI) AND RECEIVE PROBATION WITHOUT VERDICT, EVEN THOUGH THAT SECTION EXPRESSLY PROHIBITS SUCH LENIENT TREATMENT FOR ANY DEFENDANT ‘WHO WAS CHARGED” WITH DRUG DEALING, AND EVEN THOUGH THE IMPROPER CONSTRUCTION OF THE SECTION ADOPTED BELOW VIOLATES BASIC RULES OF STATUTORY CONSTRUCTION AND RESULTS IN AN ABSURD INTERPRETATION THAT PERMITS THE INNOCENT TO BE PENALIZED AND THE GUILTY REWARDED?

Commonwealth’s Brief at 4.

For the reasons stated in Commonwealth v. Berryman, 437 Pa.Super. 258, 649 A.2d 961 (1994), we reverse the judgment of sentence and remand for resentencing.

Judgment of sentence reversed. Remanded for new sentence.

CIRILLO, J., filed a dissenting opinion.

TAMILIA, J., filed an opinion in support of remand.

McEWEN, J., joined the opinion in support of remand by TAMILIA, J.

CAVANAUGH, WIEAND, BECK, POPOVICH and SAYLOR, JJ., joined the opinion by KELLY, J.

CIRILLO, Judge,

dissenting.

For the reasons stated in my Dissenting Opinion in Commonwealth v. Berryman, 437 Pa.Super. 258, 649 A.2d 961 (1994), I dissent.-

TAMILIA, Judge, in support of remand:

For the reasons stated in my Opinion in Support of Remand in Commonwealth v. Berryman, 437 Pa.Super. 258, 649 A.2d 961 (1994), I would remand.

McEWEN, J., joins.


source: Caselaw Access Project

author:
CAVANAUGH, Judge:
      WIEAND, Judge,

license: Public Domain

text:
    649 A.2d 991
    COMMONWEALTH of Pennsylvania v. Thomas S. CANCILLA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 6, 1994.
    Filed Nov. 9, 1994.

      Candace Cain, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and CAVANAUGH and WIEAND, JJ.
   CAVANAUGH, Judge:

Thomas Cancilla appeals directly from the following convictions and judgment of sentence: thirty (30) days to six (6) months imprisonment for false alarms to agencies of public safety, two years probation for terroristic threats and no further penalties for recklessly endangering another person.

We review the following issues: (1) whether the evidence was sufficient to support appellant’s convictions for terroristic threats and recklessly endangering another person and (2) whether appellant is entitled to a new trial due to defense counsel’s failure to object to the prosecutor eliciting references to and commenting upon appellant’s post-arrest silence. Although the evidence was sufficient for a conviction for terroristic threats, we find it insufficient for recklessly endangering another person. Our review also indicates that appellant is entitled to a new trial on the second argument. For the reasons set forth below, we vacate and remand for a new trial.

The facts establish that on March 5, 1993 a 911 Emergency System dispatcher received a bomb threat from a caller who stated, “There is a bomb in the Springdale Citizens High Rise. You better hurry.” The 911 dispatcher determined the exact location of the call to be from a phone booth on the 500 block of 14th Street, in the City of Arnold, Westmoreland County. An Arnold City police officer, notified of the caller’s location, immediately arrived and apprehended appellant as he was exiting the phone booth from where the bomb threat had originated. Subsequently, appellant was taken to the police station, questioned, arrested and then placed in custody.

At the scene of the bomb threat, emergency response crews evacuated all eighty to ninety residents of the seven-story Springdale Citizens High Rise. Although evacuation of this building housing senior citizens and handicapped residents was orderly, several residents were treated for excitement while two were transported by ambulance to an evacuation center and one resident was taken to the hospital. Subsequently, no bomb was found in the building.

Following appellant’s conviction and denial of post-verdict motions, he was sentenced to a term of thirty (30) days to six (6) months incarceration followed by two (2) years probation. This appeal followed.

In analyzing the first issue, we begin with our standard of review:

we review the evidence in the light most favorable to the Commonwealth, which has won the verdict. We then determine whether the evidence was sufficient to permit the finder of fact to determine that each and every element of the crime charged was established beyond a reasonable doubt.

Commonwealth v. Campbell, 425 Pa.Super. 514, 625 A.2d 1215 (1993) (citations omitted).

To obtain a conviction for terroristic threats, the Commonwealth must prove: (1) the defendant made a threat to commit a crime of violence and (2) such threat was communicated with intent of terrorizing or with reckless disregard of the risk of causing terror. Id.

The crime of terroristic threats is defined as:

A person is guilty of a misdemeanor of the first degree if he threatens to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.

18 Pa.C.S.A. § 2706. The Official Comment to this section states that “[t]he purpose of the section is to impose criminal liability on persons who make threats which seriously impair personal security or public convenience.” Id., Official Comment — 1972.

Furthermore, the term “crime of violence” is defined in the Crimes Code as:

“Crime of violence.” Any of the following crimes, or an attempt, a solicitation or a conspiracy to commit any of the same, namely: murder, voluntary manslaughter, rape, aggravated assault, robbery, burglary, involuntary deviate sexual intercourse, arson, extortion accompanied by threats of violence, assault by prisoner, assault by life prisoner and kidnapping.

18 Pa.C.S.A. § 6102. Arson, defined in 18 Pa.C.S.A. § 3301, imposes criminal penalties on one who “intentionally starts a fire or causes an explosion.” Id.

In Commonwealth v. Speller, 311 Pa.Super. 569, 458 A.2d 198 (1983), we sustained an appellant’s conviction for terroristic threats when he shouted at his neighbors that he would burn and/or blow up their house. Although the appellant did not set fire to or destroy the neighbor’s home, we found the statement to be a threat to commit a crime of violence. Id. at 574, 458 A.2d at 201. Furthermore, in Commonwealth v. Hudgens, 400 Pa.Super. 79, 91, 582 A.2d 1352, 1358 (1990), we held that the ability to carry out the terroristic threat was not an essential element of the crime. Moreover, in Commonwealth v. Hardwick, 299 Pa.Super. 362, 445 A.2d 796 (1981), we found the purpose of making terroristic threats a crime was to prevent “psychological distress which follows from an invasion of another’s sense of personal security.” Id. at 365, 445 A.2d at 797. This court has, however, recognized that not all threats are criminal. In Commonwealth v. Anneski, 362 Pa.Super. 580, 525 A.2d 373 (1987), an appellant, while in a heated argument, threatened to use a gun to kill a neighbor. There we found the evidence insufficient to convict her of terroristic threats since she spoke in anger, thought that her children had been struck by the neighbor and she feared for the future safety of her children. Id. at 586, 525 A.2d at 376.

In the case at bar, we view the evidence most favorably for the Commonwealth which established that appellant placed a call to the 911 Emergency System and stated, “There is a bomb in the Springdale Citizens High Rise. You better hurry.” Furthermore, the Commonwealth showed that the Springdale Citizens High Rise is a retirement home occupied by mostly senior citizens and handicapped residents. From this evidence, the jury could find beyond a reasonable doubt that appellant’s call that an incendiary device was planted in the building threatened a crime of violence against the residents and was communicated with the intent to terrorize or with reckless disregard of the risk of causing terror.

The appellant argues that since no bomb was found, no one was hurt and the evacuation of the building proceeded in an orderly manner, the call to 911 was merely “a false alarm. Appellant seems to suggest that he did not make a terroristic threat since the “false alarm” for a bomb scare did not materialize. Appellant’s argument is contrary to the Crimes Code. Applying the definitions of crime of violence and arson, an explosion caused by a bomb would qualify as the violent crime of arson. Terroristic threats as defined in 18 Pa.C.S.A. § 2706 encompasses threats to commit one of the listed crimes of violence, which includes arson. Moreover, appellant’s call caused the evacuation of a building which is a result of threats specifically contemplated by the statute. Appellant’s message was both a threat that a bomb was in the building and that it was ready to explode.

Furthermore, appellant’s mere false alarm argument is contrary to our case law. Similar to Speller, supra, appellant’s call that a bomb was set in the Springdale Citizens High Rise was sufficient to constitute a threat to commit arson. Like Hudgens, supra, appellant’s inability to have actually carried out the bombing was not essential to a conviction for terroristic threats. Appellant’s conduct was exactly the type of threat our cases have held is prohibited by the Crimes Code. His call seriously impaired personal security and public convenience since all the residents had to be evacuated. Similar to Hardwick, supra, we conclude that appellant’s act caused psychological distress which followed the invasion of the senior residents’ sense of personal security. Unlike the appellant in Anneski, supra, appellant in the case at bar has no basis to mitigate his terroristic threat.

Appellant further argues the evidence was insufficient to convict for the crime of recklessly endangering another person. That crime is defined as:

A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

18 Pa.C.S.A. § 2705. In Commonwealth v. Trowbridge, 261 Pa.Super. 109, 395 A.2d 1337 (1978), we found the evidence insufficient to convict for the above crime when the evidence merely established that an appellant pointed an unloaded BB gun at two police officers. In that case we stated:

Recklessly endangering another person is a crime of assault under chapter 27 of the Crimes Code. The common law of criminal assault required that the defendant have the actual present ability to inflict a battery or otherwise cause injury (footnote omitted).

Id. at 114, 395 A.2d at 1339. We also wrote, “Danger, and not merely the apprehension of danger, must be created. Therefore, we think that § 2705 retains the common law assault requirement of actual present ability to inflict harm (footnote omitted).” Id. at 115, 395 A.2d at 1340. In Trowbridge, we held that an appellant who merely aimed an unloaded BB gun did not possess an actual present ability to create a danger of death or serious bodily harm. Id.

In the case at bar, we again view the evidence in the light most favorable to the Commonwealth. Appellee established that all eighty to ninety residents had to be evacuated from the seven-story Springdale Citizens High Rise; during the evacuation several residents were treated for excitement, two were transported by ambulance to an evacuation center and one resident was taken to the hospital. From this evidence the Commonwealth argues that appellant possessed the actual present ability to inflict serious bodily harm because the evacuation from the bomb threat could have caused a panic situation.

Our review indicates the Commonwealth presented insufficient evidence for the jury to find beyond a reasonable doubt that appellee committed the crime of recklessly endangering another person. Common law criminal assault and/or battery does not encompass a false bomb threat communicated over a telephone since the appellant did not possess the actual present ability to inflict serious bodily harm against the residents. Although appellant’s threat may have created an apprehension of danger, the absence of an actual bomb did not create a real danger of an assault and/or battery. See Trowbridge, supra.

Appellant next claims that trial counsel was ineffective for failing to object the prosecutor’s use of appellant’s post-arrest silence. Initially, we state the standard of review:

To prove ineffectiveness of counsel, [ajppellant must show that his assertion is one of arguable merit, that the attorney had no reasonable basis for his/her action or inaction, and that the attorney’s action or inaction was prejudicial to the client.

Commonwealth v. Clark, 533 Pa. 579, 626 A.2d 154 (1993).

In the case at bar, appellant testified at trial that when he arrived at the phone booth where the bomb threat originated, he saw another man exit the booth and leave in a pick-up truck. Appellant’s claim for defense counsel’s ineffectiveness at trial is based upon the following exchange he had with the prosecutor:

BY MR. LINSENMAYER:

Q. Did you tell any other cops about the guy in the truck?
A. Well, I was only arrested by Cimino.
Q. They took you to New Ken [New Kensington] lock up?
A. Yes.
Q. Got other cops there?
A. Yes.
Q. Wouldn’t you scream at them, I didn’t do it, the guy
in the truck did?
A. No.

(N.T. 10/26-27/93, at 94). Moreover, during closing argument, the prosecutor also stated:

He didn’t say anything on the scene. He got back to the police station, didn’t say a word. Sure he had the right to remain silent.
But would you remain silent if you were being charged with a crime and you know that somebody in a pickup truck did it? We would be screaming the entire way, You blankityblank-blank cop, it was the guy, it was the blankity-blank guy in the blankity-blank pickup truck.
I enlisted in the Navy when I was 17 and I was out in the fleet for three and a half years. Sometimes I resort back to my words that I used at sea, and I use a lot of blankityblanks, and I would suggest that most people in that situation would have really proclaimed their innocence.

(Id. at 161-162). We find that appellant has satisfied the requirements for a claim of ineffectiveness of counsel.

In Commonwealth v. Turner, 499 Pa. 579, 581, 454 A.2d 537, 538 (1982), when a defendant at trial claimed self-defense for a homicide, the prosecutor asked, “Did you ever tell the police that somebody was shooting at you?” The Court held this to be impermissible since lay jurors may mistakenly view exercising the right to remain silent after arrest as an implicit admission of guilt. Id. at 582, 454 A.2d at 540. In Commonwealth v. Clark, 533 Pa. 579, 626 A.2d 154 (1993), the Court, following Turner, held that a prosecutor made an impermissible reference to defendant’s post-arrest silence when he asked, “Did you ever think of telling the police what happened?” Id. at 583, 626 A.2d at 156. The Court also found no reasonable basis for defense counsel’s failure to object to the impermissible reference which deprived the defendant of a cautionary instruction. Id. at 586, 626 A.2d at 157. The Court concluded that “an impermissible reference to the accused’s post-arrest silence is innately prejudicial, [footnote omitted].” Id. at 587, 626 A.2d at 158.

In Commonwealth v. Easley, 483 Pa. 337, 342, 396 A.2d 1198, 1201 (1979), error was found when a prosecutor, during his summation, argued:

Now, at that time [after being arrested] does he tell the police? He has the right to remain silent. You heard that. But he told us here he is going to tell the police the whole thing was an accident. Does he ever tell anybody that? Now today he does.

Id. The Court held that “the privilege against self-incrimination is violated when a prosecutor in his summation to the jury makes a reference to the accused’s silence while in custody.” Id. at 343, 396 A.2d at 1201.

Instantly, we find appellant’s claim for ineffectiveness of counsel has merit. The prosecutor’s question concerning appellant’s failure to scream at the police in the New Kensington Prison, “I didn’t do it, the guy in the truck did,” was an impermissible reference to appellant’s right to post-arrest silence. Analogous to Turner, supra, we find the jury may have mistakenly concluded that appellant’s right to remain silent was an implicit admission of guilt. We also find the prosecutor’s summation, perhaps more egregious than the summation in Easley, supra, was an impermissible reference to appellant’s silence while in custody. We further find that appellant’s trial counsel had no reasonable grounds for remaining silent and failing to object to these impermissible references. Defense counsel is deemed to be aware of the state of the law regarding this issue. See Easley, supra.

Under the circumstances we need not review appellant’s other claims of ineffectiveness of counsel or trial court errors. See Commonwealth v. Hyneman, 424 Pa.Super. 415, 622 A.2d 988 (1993).

Although we remand this case for a new trial, we also suggest that the lower court re-examine whether appellant’s witness, Dr. El-Jaroudi, is qualified to give expert testimony. Although the issue of whether a witness is qualified to express an expert opinion is generally a matter within the discretion of the trial court, we remind the court that:

Pennsylvania law imposes a liberal standard for qualification of an expert, allowing a witness to testify as an expert if he has any reasonable pretension to specialized knowledge on the subject under investigation. The weight to be given to his evidence is for the factfinder.

In re Glosser Bros., Inc., 382 Pa.Super. 177, 555 A.2d 129 (1989), appeal discontinued 525 Pa. 600, 575 A.2d 566 and Petition of Wurzburger, 525 Pa. 603, 575 A.2d 569 (1990). See generally Gloviak v. Tucci Constr. Co., 415 Pa.Super. 123, 608 A.2d 557 (1992) (where we upheld as proper the lower court’s recognition that appellee’s witness could give expert testimony since he investigated the defective structure and possessed both a bachelor’s degree in civil engineering and a master’s degree in structural engineering) and Palmer v. Lapp, 392 Pa.Super. 21, 572 A.2d 12 (1990) (where we reversed the lower court’s recognition of appellee’s witness as qualified to give expert opinion since her only involvement in the valuation of an antique was the typing of the appraisal for her employer, she had never before appraised that type of antique, and her efforts amounted to nothing more than testifying that she agreed with her employer’s appraisal).

In sum, we arrest judgment as to the conviction for recklessly endangering another person; deny motion for arrest of judgment as to terroristic threats; and we grant a new trial.

Jurisdiction relinquished.

WIEAND, J., files a concurring and dissenting statement.

WIEAND, Judge,

concurring and dissenting:

I concur in the majority’s decision to award a new trial. The prosecutor’s comments upon appellant’s failure to offer a defense when arrested by the police were improper, and defense counsel was constitutionally ineffective for failing to object thereto.

I am unable to agree, however, that the evidence was insufficient to sustain a conviction for recklessly endangering another person. Under the Crimes Code, when recklessness suffices to establish an element of an offense, such element is also established if a person acts intentionally or knowingly. In the instant case, a jury could find that, by calling 911 to make a false bomb threat with respect to a high rise home for the elderly, appellant knowingly, intentionally or recklessly engaged in conduct which placed the residents in danger of death or serious bodily injury. Under such circumstances, appellant should have known that an attempt would be made to evacuate the elderly and that because of their age and the high rise feature of the building there was substantial danger of serious bodily injury.

      . The prosecution putatively possessed and promised the jury at trial that they would hear the 911 Emergency System tapes which recorded the initial bomb threat and a later recorded call to 911 with the identical words appellant was asked to make while at the police station (N.T. 10/26/93, at 14). In light of such promises to the jury, we are perplexed by the prosecution's complete failure to introduce these tapes at trial (Id. at 157-58). Moreover, we are equally mystified as to the prosecution's complete failure to present expert analysis on the tapes or expert testimony regarding the identity of the caller (Id. at 14 & 158).

      . The Commonwealth’s argument is based upon language from Trow-bridge, where we noted that:

        the resulting fear or apprehension of danger itself creates an actual danger of death or serious bodily harm to others, such as where a gun is pointed at a person driving a passenger-filled car at fifty miles 'per hour on a public highway, since the requisite danger comes from the loss of vehicular control in such a panic situation.

        Id. 261 Pa.Super. at 116 n. 14, 395 A.2d at 1341 n. 14 (citations omitted).

      . Normally, when this Court finds insufficient evidence lor a conviction for recklessly endangering another person, we reverse the judgment of sentence and discharge an appellant. See Commonwealth v. Trowbridge, 261 Pa.Super. 109, 395 A.2d 1337 (1978). In this case, since appellant is granted a new trial, we note that no further proceedings can be pursued against appellant on the charge of recklessly endangering another person.


author: OLSZEWSKI, Judge:

text:
    649 A.2d 996
    Virginia M. GATTO and Anthony R. Gatto, Her Husband, Appellants, v. Barry KISLOFF, Appellee.
    Superior Court of Pennsylvania.
    Submitted Sept. 27, 1994.
    Filed Nov. 17, 1994.

      William S. Schweers, Jr., Pittsburgh, for appellants. Frederick N. Egler, Sr., Pittsburgh, for appellee.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   OLSZEWSKI, Judge:

Virginia M. Gatto, appellant, underwent an Endoscopic Retrograde Cholangiopancreatography (ERCP), performed by Dr. Kisloff, at the Presbyterian University Hospital (PUH) on February 14, 1989. After experiencing post-operative complications, appellant sued Dr. Kisloff, alleging negligence and lack of informed consent. Appellant sought to recover hospital costs incurred during her extended recovery period.

At trial, appellant introduced two separate written consent forms bearing her signature. The first was a standardized PUH consent form labeled Plaintiffs Exhibit 2. The second was a more specific consent form, taken from Dr. Kisloffs files, labeled Plaintiffs Exhibit 5. This form included a handwritten portion by Dr. Kisloff, detailing the procedure for an ERCP and the risks involved. Appellant testified that she only remembered signing one consent form. She identified that form as the one labeled Exhibit 5, but she testified that she did not recall seeing any handwritten portions on the form that she signed. Appellant was implying that the handwritten portion detailing the procedure and the risks was added after she signed the form.

The defense sought to establish that the form appellant remembered signing was actually Exhibit 2, the standardized consent form provided by PUH. Toward this end, Dr. Kisloff read the contents of Exhibit 2 into evidence. It contained a section which read:

I authorize the release of any information from hospital records as required by my insurance company and other reimbursing agency for the completion of hospitalization claims. I understand that refusal to authorize the release of this information may cancel insurance coverage for all or part of this hospital stay.

(N.T. 9/24/93, p. 61.) Appellant’s counsel was allowed to see the exhibit before it was read into evidence, and no objection was raised. After the form was read, Dr. Kisloffs testimony continued -without objection. Shortly thereafter, appellant’s counsel requested a sidebar and moved for a mistrial because of the reference to insurance. The trial court denied the request. The jury subsequently returned a verdict in favor of Dr. Kisloff. A motion for post-trial relief was denied and this appeal followed.

The only issue presented on appeal is whether the trial court erred in denying appellant’s motion for a mistrial. “In reviewing a trial court’s admission of testimony, this Court will reverse only if there has been an abuse of discretion or error of law.” Dolan v. Carrier Corp., 424 Pa.Super. 615, 618, 623 A.2d 850, 852 (1993). See also Gemini Equipment Co. v. Pennsy Supply, Inc., 407 Pa.Super. 404, 412-13, 595 A.2d 1211, 1215 (1991); Smith v. Brooks, 394 Pa.Super. 327, 334-36, 575 A.2d 926, 930 (1990). In the present case, we find no such abuse or error.

The trial court correctly denied the motion for a mistrial because appellant waived any objection to the contents of the consent form by offering the complete form into evidence and failing to object to its admission when it was read to the jury. The law requires a certain amount of ordinary diligence on the part of counsel in discovering and deleting improper statements before such statements are admitted into evidence. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 257-59, 322 A.2d 114, 116 (1974); Jones v. Spidle, 446 Pa. 103, 107-09, 286 A.2d 366, 368 (1971); Snyder v. Golden, 334 Pa.Super. 280, 284-86, 482 A.2d 1335, 1338 (1984). In Jones, the plaintiff offered certain medical records into evidence which contained inadmissible hearsay. In his closing argument, defendant’s counsel read portions of the hearsay statement to the jury. Plaintiffs counsel moved for a new trial based upon the use of the inadmissible hearsay. Jones, 446 Pa. at 104-07, 286 A.2d at 367. The trial court denied the motion and the Supreme Court affirmed, holding that plaintiffs counsel could have easily discovered and deleted the hearsay portions of the record before offering it into evidence. Id. at 107-09, 286 A.2d at 368. The court stated that once evidence is admitted, a motion to have it stricken “will be allowed only in cases where the ground of objection was unknown and could not have been known with ordinary diligence at the time the evidence was received.... The matter is within the discretion of the trial judge.” Id. (citing Henry, Pennsylvania Evidence § 738 (1953)). See also 9 Standard Pennsylvania Practice 2d § 56:12 (1982).

In the present case, appellant’s counsel could have easily discovered and deleted the references to insurance in the consent form. Appellant’s counsel offered the consent form into evidence as part of a file of PUH records. He made no attempt to redact any portion of the form prior to offering it into evidence. In addition, the form was again shown to appellant’s counsel at trial just before Dr. Kisloff read the form into evidence. Once again, no objection was made to the form and no attempt was made to redact any of the language in the form. In light of these failures to use ordinary diligence to discover and delete any improper references, the trial court correctly found that the objection was waived.

Appellant’s reliance on Lobalzo v. Varoli, 409 Pa. 15, 185 A.2d 557 (1962), to support the assertion that the reference to insurance is reversible error, even in the absence of an objection, is misplaced. In Lobalzo, an employee, injured in a car accident while on the job, sued the other party to the accident. At trial, the defendant offered evidence regarding the amount of worker’s compensation that the plaintiff had already received from his employer’s insurance company. The judge compounded the error by telling the jury that if the plaintiff were to recover from the defendant, the employer’s insurance company would be unable to recover funds already paid to the plaintiff, implying that the plaintiff would receive a double recovery. The Supreme Court held that this error was so egregious, it would be reversible error even if the plaintiff had failed to object at trial. Id. at 1, 185 A.2d at 561.

The facts in the present case are easily distinguishable from the facts in Lobalzo. The reference to insurance by Dr. Kisloff was made in passing during the reading of the entire PUH consent form. It was mentioned in the context of a generic standardized form. It never specified that Mrs. Gatto had insurance or, if she did, whether she received any payment for this claim. The innocuous reference to insurance was not highlighted by either the attorney or the judge. There is simply no reason to believe that the jury went into deliberations believing that if appellant won, she would receive a double recovery. On these facts, the failure to object is fatal.

Even assuming arguendo that the objection was not waived, appellant would still have to show that the reference to insurance resulted in some prejudice. The general rule is that evidence of insurance is irrelevant and prejudicial and the presentation of such evidence justifies the grant of a mistrial. Dolan, 424 Pa.Super. at 620-22, 623 A.2d at 853. The mere mention of the word “insurance”, by itself, however, does not necessitate a new trial. Id. Instead, there must be an indication that the party moving for a new trial was prejudiced in some way by the mention of the word “insurance.” Id.; Phillips v. Schoenberger, 369 Pa.Super. 52, 57-60, 534 A.2d 1075, 1078 (1987); Pushnik v. Winky’s Drive In Restaurant, Inc., 242 Pa.Super. 323, 335, 363 A.2d 1291, 1297 (1976).

There is no evidence that appellant was prejudiced by the use of the word “insurance” in Dr. Kisloffs testimony. Dr. Kisloff read the PUH consent form, in its entirety, to the jury. The form was comprised entirely of generic and standardized language. It did not specify whether Mrs. Gatto in fact had insurance. Even more importantly, if any inference could be drawn that Mrs. Gatto had insurance, the consent form did not indicate whether she had been paid on the claim that formed the basis of this lawsuit. Lastly, the references to insurance were not highlighted by either the attorney or the judge. The trial court, in its discretion, concluded that appellant was not prejudiced by the innocuous reference to insurance. We see no evidence indicating an abuse of that discretion. Therefore, the judgment of the trial court must stand.

Order affirmed.

      . Additionally, it should be noted that the Lobalzo case was decided before the Supreme Court decided Dilliplaine, where the Court held that a claim will be waived for purposes of appeal if a specific objection is not raised at trial. The Court stated that "there is no excuse for and appellate courts should not encourage less than alert professional representation at trial." Dilliplaine, supra, 457 Pa. at 258, 322 A.2d at 116.


author: HESTER, Judge:

text:
    650 A.2d 55
    Catherine NICHOLSON v. Gary COMBS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 9, 1994.
    Filed Sept. 13, 1994.
    Reargument Denied Nov. 23, 1994.
    Petition for Allowance of Appeal Granted March 31, 1995.

      Joyce Ullman, Philadelphia, for appellant.
    Laurence I. Tomar, Yardley, for appellee.
    Before KELLY, POPOVICH and HESTER, JJ.
   HESTER, Judge:

Gary Combs appeals from the November 5, 1992 order entered by the Court of Common Pleas of Bucks County in this divorce case. The order directed appellant to pay $1,168 per month in child support for two minor children and to pay $100 per month on arrearages. Appellant argues that the court erred in refusing to reduce the amount of support it ordered as a matter of law, despite his changed circumstances and reduced income. The court concluded that it was bound by its previous order adopting an agreement of the parties. We affirm in part and reverse in part.

The record viewed in the light most favorable to appellee as the prevailing party reveals the following. On April 24, 1987, appellee filed a complaint in divorce in which she sought custody and support for two minor children. The parties executed a comprehensive settlement agreement on December 16, 1987 (hereinafter the “agreement”). Paragraph 12 of the agreement provided for the increase or decrease in child support payments as follows:

“12. Husband shall pay to Wife as child support for Stephanie and Jamie the sum of One Thousand Two Hundred ($1,200.00) Dollars a month beginning upon the date of the signing of this Agreement. These payments shall be made through the Bucks County Domestic Relations Office and shall be payable until the emancipation of Stephanie at which time child support shall drop to one-half of the previous amount. Emancipation shall be age twenty-one (21). Each subsequent year, at the date of signing this Agreement, support shall be modified by proportionately changing support by the increase or decrease of Husband’s net after tax income over the twelve-month period. Said modification shall be limited to Five (5%) percent either way. The parties agree that Husband’s base period net after tax income is Forty One Thousand Two Hundred Seventy Five Dollars and Seventy Nine Cents ($41,-275.79)....”

A divorce decree was entered on February 2, 1988. On February 10, 1988, the support terms of the parties’ agreement were incorporated into a support order for purposes of enforcement.

Appellant filed a pro se petition to modify support on March 27, 1989 as a result of which a hearing was scheduled for June 29, 1989. An agreed order was then entered which provided as follows:

“The parties have agreed that the support will be adjusted to $1,230.00 per month, but that figure will remain frozen for a three-year period; that is there will be no change made in the amount of the support until July 1, 1992. The basis for the change, the parties agreed to each other both past, present, and future change, and both parties agree that on the basis that the freeze for the three-year period is both fair and equitable under the circumstances. Procedurally the response to the petition as requested, and we are agreed that, and will put on the record that Gary Combs will be moving back to Pennsylvania, and intends to move back to Pennsylvania sometime in this year. One of the circumstances that has been changed, or considered in putting this freeze on the amount of the support, and we want to make very clear on the record though that changes of circumstances in any manner, and we will make a change in the support order for this.” (R. 34a)

Thereafter, appellant, who was in the process of leaving his job to become self-employed, was fired by his employer when his efforts to leave were discovered. Appellant tried self-employment, but was not successful. He then obtained employment as a manufacturer’s representative, calling upon some of his contacts from his previous employer, but doing so in a different capacity, and at a significantly reduced income. Irrespective of the June 29, 1989 order appellant subsequently filed another petition to modify support on August 25, 1989, in which he sought a reduction in child support due to his significantly decreased income. At a hearing conducted on December 7, 1989, the court determined that appellant was bound by the terms set forth in the June 29, 1989 order, and concluded that his child support obligation could not be reduced irrespective of his change of circumstances.

Appellant filed an appeal from this determination, which he subsequently discontinued. Appellee, however, filed a petition for contempt seeking to enforce payment of arrears on orthodonture expenses. On November 7, 1991, a court order was entered directing appellant to reduce his arrearages. Appellant contended that enforcement through contempt abrogated the agreement which was reached by the parties and which was incorporated in the June 29, 1989 order. In response, he filed another petition to vacate the arrears. A hearing was held on November 5, 1992. The court refused to modify the level of support and ordered payment of $100 per month on the arrearages. This appeal followed.

We initially note that our scope of review of support orders is limited. In Ball v. Minnick, 414 Pa.Super. 242, 246-47, 606 A.2d 1181 (1992), we stated:

This Court’s standard of review for support awards is a narrow one based upon abuse of discretion. Abuse of discretion in these matters requires more than mere error of judgment, rather it requires an overriding or misapplication of the law or a manifestly unreasonable exercise of judgment. Caplan v. Caplan, 400 Pa.Super. 352, 583 A.2d 823 (1990).

Appellant argues that the trial court erred in finding that, as a matter of law, its previous child support order entered by means of incorporating the agreement of the parties could not be modified downward due to changed circumstances. Appellant notes that we permit upward modification of child support provisions contained in separation agreements which are incorporated but not merged into the divorce decree as the best interests of the child require. Brangs v. Brangs, 407 Pa.Super. 43, 595 A.2d 115 (1991) (child support provisions of a separation agreement may be modified in light of the reasonable needs of the child). However, appellant asserts that this encompasses only upward modifications in response to the child’s needs, but does not permit modification downward based on changed circumstances, citing McGough v. McGough, 361 Pa.Super. 391, 522 A.2d 638 (1987) (parties are bound by the terms of their contract which survives the decree as an independent obligation and does not allow modification in view of changed circumstances to the determent of contract property rights).

Appellant contends that this double standard represents unconscionable discrimination against males. In support, he cites Smith v. City of Philadelphia, 512 Pa. 129, 516 A.2d 306 (1986) (equal protection requires a uniform treatment of similarly situated individuals), and Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974) (duty of support must be shared equally by both parties). Appellant argues that the contract bar to downward modification of support is employed wrongly in relation to support provisions. If support may be modified upward, he asserts, then support also should be permitted to be modified downward. Moreover, if support is based on the needs of the child, support should be governed by that criterion. As a result, child support in agreements should be subject to modification based on childrens’ needs, rather than employing needs of the child as an exception to contract law only for the purpose of increasing support.

Appellant further contends that it is unconscionable that the court recognize the unfortunate circumstances of his reduced income in light of his support obligation, yet permit no remedy. He notes that his level of support from the support guidelines would equal $624.56 per month, but the court has ordered him to pay $1,168 per month plus $100 in arrearages. He claims this is confiscatory. In support of this argument, appellant cites the dissent in Bell v. Bell, 390 Pa.Super 526, 533, 568 A.2d 1297, 1301-02 (1992), where Judge Brosky opined:

It escapes me why it should automatically be concluded that when parties sit down to negotiate the economic issues in lieu of litigation they intend to materially alter the nature of the claim being negotiated. That is, support obligations are generally modifiable upon a showing of changed circumstances. If parties sit down to negotiate an appropriate sum for support why is it automatically assumed that they wish to change the modifiable nature of the obligation? Isn’t it more likely that they have the same generally accepted concept of support in mind and are merely negotiating an acceptable support obligation rather than accepting the risk of an adverse award by the court, or perhaps, are attempting to limit the litigation costs, which, as we are all aware, can amount to substantial sums rather quickly.
A change of circumstances can transform an affordable support obligation into a tremendous financial burden, and a finding of non-modifiability can transform an equitable obligation into a fast lane to financial ruin. Particularly when it is considered that court ordered support obligations are modifiable under appropriate circumstances, I do not believe non-modifiable obligations should be imposed....

Appellant therefore suggests that since his child support obligation is confiscatory, the court could not dismiss his petition to modify on the basis that his prior agreement rendered it non-modifiable as a matter of law, without first considering his present ability to pay.

We reject appellant’s arguments. First, the non-modifiability aspect of the agreement between the parties with regard to support was entered with their consent as part of a court order. They bargained for non-modifiability for a specified limited period of time. We agree with the trial court’s conclusion that appellant specifically bargained for the nonmodifiability of support at the June 29, 1989 hearing, perhaps on the assumption that his income would rise with self-employment. Moreover, it is beyond argument that, absent legally relevant distinctions of fact, we are bound by precedent. Aivazoglou v. Drever Furnaces, 418 Pa.Super. 111, 613 A.2d 595 (1992) (appellate court is bound by prior appellate decisions involving the same legal principles). Thus, applicable precedent dictates that we hold that appellant is bound by his prior agreement that the amount of his child support may not be modified based on changed income or circumstances.

Finally, we note that our Supreme Court has held that the best interests of the child are so important that they override property agreements between parties when the child’s needs require an increase. This is not the case when a party seeks a decrease in breach of their prior commitment due to reduced income. Further, with respect to appellant’s equal rights argument, it may be noted that the obligor equally likely may be the woman today as a man.

Next, appellant argues that where the court enters a support order which exists independently of the support to which he obligated himself in the agreement, the court’s order remains modifiable even if the support agreement is not modifiable. He contends this particularly is true where the support provision of the agreement is incorporated into a court order largely for enforcement purposes. In support, appellant cites Knorr v. Knorr, 527 Pa. 83, 86-87, 588 A.2d 503, 505 (1991), where our Supreme Court stated:

Parties to a divorce action may bargain between themselves and structure their agreement as best serves their interests, Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981). They have no power, however, to bargain away the rights of their children. Sonder v. Sonder, [378 Pa.Super 474, 549 A.2d 155 (1988) ... [Their agreement] is at best advisory to the court and swings on the tides of the necessity that the children be provided. To which inter se rights of the parties must yield as the occasion requires.... While such an option [forsaking the contract right to sue and seeking the powers of the court for immediate relief] may provide swifter and more enforceable results, it becomes subject to the court and the court is not bound by their agreement. In the exercise of its duty to provide for the best interests of the child, the court may order more than the agreement provides.

Appellant also cites Dechter v. Kaskey, 379 Pa.Super. 45, 49, 549 A.2d 588, 590 (1988), where we stated:

Pursuant to Sonder, we held both agreements and support Orders under certain circumstances could be given independent effect. Obviously, double recovery cannot be allowed on both the agreement and the support Order. To the extent the agreement is not completely satisfied by giving credit for the amount paid pursuant to the support order, a debt is accumulated which may be recovered in an action of assumpsit or in equity. However, as we stated in Sonder, the enforcement remedies are not those pursuant to the support laws, therefore, attachment of the person and wage attachment are not permissible. In this respect, by retaining the validity of the agreement, we do not offend Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983) (an agreement for child support may not be reduced by the court, although an Order to increase support is permissible when circumstances warrant) and Brown v. Brown, 495 Pa. 635, 435 A.2d 859 (1981) (unless an agreement is merged into the divorce decree, it may not be modified by the court).

Appellant contends this authority clearly supports his proposition that while the provision for support in an agreement is binding and may not be modified downward, the support order actually entered by the court exists independently of these contractual obligations. Therefore, he suggests that the court may modify its order without reducing the ultimate support owed under the agreement. He also cites Hanson v. Hanson, 425 Pa.Super. 508, 625 A.2d 1212 (1993) (where a parent invokes the authority of family court to enforce a support order, the parent forsakes his or her contractual remedies, and the court is not conclusively bound by the terms of support in the agreement between the parties).

We reject this contention. It patently is clear that the support provision in the agreement constitutes the level below which support may not be modified. Courts have general authority to modify their own support orders based upon changed circumstances. However, this does not permit modification below the level of support set forth in the agreement of the parties where the court has incorporated that agreement as part of its support order. The support obligation set forth in the agreement is an independent financial obligation between the parties. Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988). Support may be modified upward based on the unavoidable obligation which a parent owes to meet the reasonable needs of a dependent child, but this rationale does not extend to downward modification of the level of support set forth in parties’ agreement once the court has adopted their agreement. Id.

Appellant attempts to exempt the support order itself from any contractual ties, but, as noted, this is permitted only in instances where the support in effect no longer is sufficient to meet the needs of the child. Since the needs of the children are not the premise for appellant’s petition to modify support, the trial court correctly dismissed his petition as a matter of law.

Finally, appellant argues that the trial court erred and did not afford him due process when it ordered him to pay arrearages of $100 per month after holding a contempt hearing but without permitting him to present evidence concerning his ability to pay that amount in addition to the amount of support ordered. He asserts this is confiscation of property without due process since he was not permitted to present evidence for the court to determine whether he has the present ability to make payments toward his arrearages. We are constrained to agree.

With regard to the trial court’s power to designate the amount to be allocated toward payment of arrearages, we note that 23 Pa.C.S. § 4352, in pertinent part, provides:

(d) Arrears as judgments. — On and after the date it is due, each and every support obligation shall constitute a judgment against the obligor by operation of law, with the full force, effect and attributes of a judgment of court, including the ability to be enforced, and shall be entitled as a judgment to full faith and credit in this or any other state....
(e) Retroactive modification of arrears. — No court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there is pending a petition for modification....

The more stringent laws prohibiting retroactive modification of arrearages have resulted in a rigidity in the Domestic Relations Code. Consequently, we have cautioned:

Because of these more stringent laws as to arrearages and their nonmodifiability, the automatic imposition of judgment without review, and the imposition of penal sanction (summary offense) for willful failure to pay support, the trial courts must now apply closer scrutiny to ability to pay than heretofore. Earning capacity [or prior agreement] becomes too vague a basis for assessing arrears, absent some verifiable basis for determining that the capacity exists, or that it was eliminated or reduced because of intentional acts by the obligor.

Haley v. Haley, 379 Pa.Super. 323, 330, 549 A.2d 1316, 1319 (1989) . See also Welz v. Stump, 403 Pa.Super. 93, 588 A.2d 47 (1991); Blaisure v. Blaisure, 395 Pa.Super. 473, 577 A.2d 640 (1990) .

In this instance, the trial court designated an amount to be paid toward arrearages without permitting testimony from appellant regarding his present ability to pay. Setting an amount to be paid toward arrearages, in addition to support ordered, without considering closely evidence of appellant’s ability to pay could result in a confiscatory order. We require close scrutiny since courts may not set a payment with which it is impossible to comply. Therefore, the trial court erred in refusing to hear evidence of appellant’s present ability to pay in ordering payment toward arrearages in addition to ordering support as agreed to by the parties. Consequently, the trial court’s refusal to consider appellant’s present inability to pay and changed circumstances when determining payment toward arrearages is a misapplication of the law and an abuse of discretion. See Haley v. Haley, supra (close scrutiny to ability to pay must be utilized in setting payment toward arrearages), and Ball v. Minnick, supra (a misapplication of the law is an abuse of discretion).

Accordingly, we are constrained to remand to the trial court for an evidentiary hearing with regard to appellant’s present ability to pay prior to designating an amount to be paid toward arrearages. Interest and unpaid support arrearages will continue to accrue until they ultimately are satisfied.

Order affirmed in part and reversed with respect to payment toward arrearages. We remand for proceedings consistent with this opinion. Jurisdiction relinquished.


author: DEL SOLE, Judge:

text:
    650 A.2d 60
    COMMONWEALTH of Pennsylvania, v. James Thomas JONES, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 6, 1994.
    Filed Oct. 3, 1994.
    Reargument Denied Nov. 18, 1994.

      Daniel J. Seal, II, Media, for appellant.
    Joseph J. Mittleman, Asst. Dist. Atty., Media, for Com., appellee.
    Before McEWEN, DEL SOLE and POPOVICH, JJ.
   DEL SOLE, Judge:

After a hearing on the removal of James Jones, Jr. from the Accelerated Rehabilitation Disposition (A.R.D.) Program, a stipulated non-jury trial was conducted where he was found guilty of Driving Under the Influence of Alcohol or Controlled Substance (75 Pa.C.S.A. § 3731). Appellant waived the presentence investigation and agreed to be immediately sentenced to a term of imprisonment of not less than forty-eight hours nor more than two years. We affirm.

Initially, the Commonwealth urges this court to dismiss this appeal because Appellant filed the appeal more than thirty days following Ijhe entry of sentence. Appellant was adjudicated guilty on June 10, 1993 and sentence was imposed the same day. Post-verdict motions were filed June 21, 1993. They were timely since the tenth day fell on a Sunday, and Monday, June 21st, was the first day after the weekend that the motions could be filed. The trial court denied post-verdict motions on July 15, 1993. Seven days later, Appellant filed notice of appeal to this court on July 22, 1993.

“An appeal which is not filed within thirty days of the judgment of sentence would normally be quashed.” Commonwealth v. Doleno, 406 Pa.Super. 286, 594 A.2d 341, 342 (1991). However, where the defendant is convicted and sentenced on the same day, and unable to file post-trial motions prior to imposition of the sentence, this court has declined to dismiss the appeal. Doleno. This is because the proper procedure for the trial court to utilize is to allow the defendant ten days after the conviction to file post-verdict motions. The court should rule on the motions, and then impose a sentence. Commonwealth v. Schauffler, 397 Pa.Super. 310, 580 A.2d 314 (1990). We will not quash this appeal for being untimely since Appellant was not given the opportunity to file motions for post-trial relief before the sentence was imposed. See also Commonwealth v. Buckshaw, 433 Pa.Super. 254, 640 A.2d 908 (1994) (Although trial court failed in summary case to conform with existing law requiring that defendant be given opportunity to file post-verdict motions prior to sentencing, appellate court would ignore irregularity which occurred and address issues raised on appeal inasmuch as the new rule eliminating filing requirement would have been applicable on remand).

The Commonwealth also asserts that the appeal should be dismissed because post-verdict motions were not timely filed. Since Appellant agreed to be sentenced immediately following the finding of guilt and did not file post-verdict motions until after the sentence, the Commonwealth posits that he rendered it impossible for the motions to be considered prior to the sentence and therefore waived post-verdict motions. The Commonwealth believes that Appellant has not preserved any issues for appellate review since post-verdict motions were not properly filed.

We have already determined that the trial court employed the incorrect procedure by finding Appellant guilty and sentencing him on the same day. Even if this had not occurred, we would not find that Appellant waived post-verdict motions. Pa.R.Crim.P. 1123 permits a defendant, within the ten day period, to voluntarily and understandingly waive post-verdict motions on the record. Before accepting the waiver the trial court must inform the defendant on the record that waiver of post-verdict motions will preclude raising on appeal any issues which might have been raised in the motions. Here, the record shows that Appellant agreed to be sentenced on the day that he was found guilty and he waived the pre-sentence investigation. (T.T. 6-10-93 at 18). Defense counsel requested that Appellant be released until the end of his appeal period and the trial court informed Appellant that he had ten days to file post-verdict motions and thirty days to file an appeal to the Superior Court. (T.T. 6-10-93 at 19-20). The trial court did not inquire whether Appellant intended to waive post-verdict motions and therefore the issues raised in post-verdict motions are preserved for appellate review.

The Commonwealth further contends that the appeal should be dismissed because Appellant failed to provide an adequate record for appellate review. Specifically, the Commonwealth complains that Appellant failed to file a reproduced record or to order transcripts of the proceedings. We have received a reproduced record which appears complete and it contains transcripts of the proceedings. Although failure to timely comply with Pa.R.App.P. 1911 to obtain transcripts may result in dismissal of the appeal, such action would be inappropriate in this case considering the errors which occurred in the trial court. For the same reason, we decline to dismiss this appeal because Appellant failed to file a Statement of Matters Complained Of on Appeal even though directed to do so by the trial court. Despite not having the statement, the trial court was able to address and explain its reasons for finding hiiti guilty and denying his request for post-trial relief. j

We now address the claims raised on appeal. Appellant first argues that the trial court erred by removing him from the A.R.D. program after he completed it. Appellant completed the requirements for A.R.D. on March 10, 1993. He contends that after his completion of the program, the District Attorney petitioned the court to remove him from the program. Since he had already completed the requirements, he does not believe that he can be terminated from a program that was completed, and then after charges are reinstated, be prosecuted, found guilty and penalized for the same offenses. Based upon Commonwealth v. McSorley, 335 Pa.Super. 522, 485 A.2d 15 (1984), affirmed, 509 Pa. 621, 506 A.2d 895 (1986), Appellant submits that such action violates his constitutional right against double jeopardy.

In McSorley, the defendant was charged with driving under the influence of alcohol. After arraignment, he received a letter from Dr. Miraglia, the director of the council which operated the safe driver clinic for Montgomery County. The letter stated that he was required to attend the driving school. The defendant believed that the letter was directing him to report to the Montgomery County A.R.D. program. The letter was also on the district attorney’s letterhead and required him to pay fifty dollars for the driving classes. Defendant was also sent a letter from the Chief of the A.R.D. division of the Montgomery County District Attorney’s Office describing the program as an alternative, and it included a questionnaire to be filled out to determine eligibility for the program. Defendant filled out the questionnaire and hand delivered it on the same day that he appeared for his first session of the driving clinic. He completed the driving clinic and received a certificate signed by Dr. Miraglia informing him that he completed the requirements of the clinic. Three days later, defendant received notification that he was ineligible for A.R.D. due to his two prior arrests and the case was scheduled for trial.

The trial court denied the defendant’s motion to dismiss the charges and he appealed to this court. The superior court in McSorley reasoned that even though it was administrative error by the district attorney’s office that defendant was recommended for the driving clinic as part of the A.R.D. program, defendant was justified in relying on the letter requiring him to attend the driving school and interpreting it as acceptance into the A.R.D. program. Read together, the two letters could reasonably indicate to defendant that completion of the program would result in a dismissal of the charges. Since defendant relied to his detriment on such reasonable interpretation of the letters, we determined that he was implicitly accepted into A.R.D. After defendant successfully completed the program, he could not be prosecuted for the offenses with which he was charged, provided that he completed other conditions normally imposed on defendants accepted into the program. Such action would be a disincentive for defendants to enter diversion programs and would also violate the spirit of the constitutional protection against double jeopardy.

The case at bar is distinguishable from McSorley. Here, Appellant falsified his Criminal History Statement which he signed on January 30, 1992 by failing to disclose that he was charged with simple assault two months before he signed the Statement, nor did he indicate in the Statement that he was arrested in 1983 on charges of indecent exposure. Appellant did not acknowledge in the Criminal History Statement any prior arrests except for a “summary disorderly conduct” to which he pleaded guilty in November 1990. He was admitted into A.R.D. on March 10, 1992. Once in the program, Appellant failed to reveal to his probation officer that he was arrested and charged with involuntary deviate sexual intercourse on or about December 30, 1992. A.R.D. may be revoked where the defendant “is charged with or commits any crime enumerated in Title 18 (relating to crimes and offenses) or in section 1542 within the probationary period.” 75 Pa. C.S.A. § 3731(e)(7)(f). Clearly, this provision was violated by Appellant.

Unlike Appellant, the defendant in MeSorley did not conceal information of his. prior convictions and his admission into A.R.D. was an inadvertence on the part of the district attorney’s office. Had Appellant been truthful when filling out the form, he would not have been accepted into the A.R.D. program. When the district attorney’s office discovered Appellant’s other arrests and charges against him, it filed a Rule to Show Cause Why Appellant should not be removed from the A.R.D. program and ordered to stand trial. The Rule to Show Cause was filed March 8, 1993, two days before Appellant was to complete the program on March 10, 1993.

Under the circumstances, we hold that Appellant should not be permitted to benefit from the concealment of his arrests. He deliberately withheld the fact that he was arrested in 1983, 1991 and in 1992 for involuntary deviate sexual intercourse while in the A.R.D. program. Therefore, the removal of Appellant from A.R.D. was not an error or an abuse of discretion.

Next, Appellant argues that the district attorney’s office did not follow proper procedure in removing him from the program. He asserts that the district attorney not only waited until he completed the program to file a motion to remove him from A.R.D., but also unreasonably delayed by waiting until seventy days after the alleged violation before filing the motion. Pa.R.Crim.P. 184(b) states that “[a] motion alleging such violation filed pursuant to paragraph (a) must be filed during the period of the program or, if filed thereafter, must be filed within a reasonable time after the alleged violation was committed.” Appellant incorrectly states that he completed the program before the district attorney filed the petition to remove him from A.R.D. The district attorney filed the petition to remove Appellant from A.R.D. on March 8, 1993, and Appellant’s probation under A.R.D. did not end until March 10, 1993. Even though the district attorney filed an Amended Petition to Remove Appellant from the program on March 11, 1993, this is not a violation of Rule 184(b) because the rule permits a motion to be filed after the A.R.D. program has ended, as long as it is within a reasonable time after the violation was committed.

The probation office discovered Appellant’s undisclosed arrests and reported them to the district attorney’s office on or around March 3, 1993. (T.T. 6-10-93 at 6). The Amended Petition for Rule to Show Cause Why Appellant should not be Removed from A.R.D. was filed one day after Appellant’s probation under the program ended. Pursuant to Rule 184(b), if the petition is filed after the period of the program expired, it must be filed within a reasonable time after the violation was committed. The trial court determined that the petition was filed within a reasonable time after the district attorney’s office discovered the violation and we agree. Even if the delay was two months between Appellant’s violation and the filing of the petition to remove, that is not an unreasonable time for the district attorney’s office to file the petition to remove Appellant from the program, especially since he concealed the violations.

Appellant also contends that the trial court erred by not permitting him the opportunity to argue the facts of the removal petition. On June 9, 1993, Appellant appeared for trial on the underlying driving under the influence charge. At that time, the court was informed that Appellant did not appear at the previous hearing to remove him from A.R.D. because he did not receive the notice. The court then determined that it was appropriate to hold the A.R.D. removal hearing before proceeding in the case on the underlying charge. Some arguments were presented to the court by defense and the prosecution at that time. However, because the probation officer was not present and the court wanted Appellant to have a fair day in court, the A.R.D. removal hearing was continued until the next day. Appellant, nevertheless, complains that he did not have an opportunity to argue the factual issues on the removal petition. After reviewing the transcripts of the A.R.D. removal hearing from June 9th and 10th, we conclude that Appellant did have an ample opportunity to argue his case against removal. He cannot deny that he failed to disclose his previous arrests prior to filling out the Criminal History Statement, and he was also arrested for involuntary deviate sexual intercourse while in the A.R.D. program. Therefore, the trial court did not abuse its discretion by finding that such conduct violated the rules of the A.R.D. program and he was not denied due process.

Finally, Appellant argues that the court erred by removing him from A.R.D. by not keeping with the “spirit” of the program. Appellant makes reference to the trial court’s statement that “the letter and spirit of the ARD program was violated by this defendant who took advantage of a program designed to ameliorate the condition only of defendants who had no past record and stayed out of trouble during the period of probation.” (Trial ct. op. dated 6-3-94 at 3). Appellant submits that he did stay out of trouble and being charged with an offense does not constitute trouble; a criminal charge is only an allegation and not a conviction. As we previously stated, the driving under the influence statute provides that A.R.D. may be revoked where the defendant is charged with a crime during the probationary period. 75 Pa.C.S.A. § 3731(e)(7)(i). Although revocation is not mandatory, the court in this case considered the fact that Appellant did not disclose his arrests or the charges against him. Consequently, the removal of Appellant from A.R.D. was not an error or abuse of discretion and no relief is warranted in this case.

Judgement of sentence affirmed.

      . Prior Pa.RXrim.P. 1123 effective when Appellant was found guilty required post-verdict motions to be filed within ten days of the sentence to preserve issues for appellate review.

      . We note that this case is an “Opinion Announcing the Judgment of the Court” because while a majority agreed with the judgment, a majority did not join in the opinion. Furthermore, although our supreme court affirmed the superior court by per curiam order, it specifically stated that the order was not to be interpreted as adopting the reasoning of the superior court Opinion Announcing the Judgment of the Court insofar as it relates to the prohibition against double jeopardy. McSorley, 509 Pa. 621, 506 A.2d 895 (1986).

      . An Amended Petition for Rule to Show Cause Why Appellant should not be removed from A.R.D. was filed on March 11, 1993 to include the statement that Appellant had been charged with involuntary deviate sexual intercourse while he was in the A.R.D. program and did not report it to his probation officer.

      . Appellant has waived a portion of this argument where he asserts that the district attorney failed to file the petition to remove him from A.R.D. with the same judge who placed him in the program. This argument was not in post-verdict motions and was not considered by the trial court. Therefore, we will not address it. Commonwealth v. Nelson, 389 Pa.Super. 417, 567 A.2d 673 (1989).


author: WIEAND, Judge:

text:
    650 A.2d 65
    COMMONWEALTH of Pennsylvania v. Stephen CAMPERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 29, 1994.
    Filed Nov. 2, 1994.

      Robert J. Donatoni, West Chester, for appellant.
    Maria Dutkowski, Asst. Dist. Atty., Norristown, for Com., appellee.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

Stephen G. Camperson was tried by jury and was found guilty of two counts each of possession of methamphetamine with intent to deliver and criminal conspiracy. Post-trial motions were denied, and Camperson was sentenced to serve concurrent terms of imprisonment for not less than four years nor more than ten years and for not less than eight years nor more than sixteen years on his two convictions of possession with intent to deliver. On direct appeal from the judgments of sentence, Camperson raises several issues, which we will review carefully.

The facts of this case are somewhat complicated and have a substantial effect on several of the issues which we have been asked to review. On November 29, 1989, Donald Theisan called Brian Wynn by telephone and asked Wynn if he had methamphetamine for sale. Wynn contacted Stephen Camperson, and Camperson agreed to furnish Wynn with the drug. On December 1, 1989, in Chester County, Camperson gave Wynn approximately an ounce of methamphetamine which Wynn, in turn, sold to Theisan in the company of John Murray, an undercover police officer, in Montgomery County. Wynn delivered the proceeds of the sale to Camperson later the same night.

Several days later, Theisan again contacted Wynn and asked Wynn if he could sell to him a quarter pound of methamphetamine. Wynn obtained the methamphetamine from Camperson at or about midnight on December 5, 1989, and sold it to Theisan and Murray in Plymouth Meeting, Montgomery County, on December 6, 1989. Wynn was placed under arrest and subsequently agreed to assist police in prosecuting Camperson. Wynn was released on his own recognizance and taken home.

On December 7, 1989, Wynn met with Camperson, under police surveillance, and paid him $3,500 for the methamphetamine which Camperson had furnished on December 5. Pursuant to instructions from the police, Wynn placed a further order for a half pound of methamphetamine, and he and Camperson agreed to meet later the same day at the Country Tavern, near Pottstown, in Chester County. Camperson then returned to his residence, still under police surveillance. Several hours later, as Camperson neared the Country Tavern, he became aware of the presence of police and attempted to flee. A lengthy chase ensued, following which Camperson was apprehended. On his person were 288.8 grams of methamphetamine and.the $3,500 which he had received from Wynn earlier in the day.

Following Camperson’s arrest, police obtained a search warrant and searched his residence in St. Peter’s Village, Warwick Township, Chester County. There police found additional drugs and drug paraphernalia. Camperson was subsequently tried for various offenses in Chester County. In Montgomery County, Camperson was tried by jury and was found guilty of being an accomplice in the several sales of methamphetamine made by Wynn to Theisan and John Murray in Montgomery County.

I.

On the morning following the first day of trial, a news article appeared in the Pottstown Mercury under the headline: “Drug trial begins for St. Peter’s man.” The article contained references to a prior escape by Camperson in Chester County and to the charges which he faced in that county. When court convened, Camperson’s lawyer moved for a mistrial because of the newspaper story. The trial court questioned the jurors, three of whom acknowledged having seen the article. These three jurors were then questioned individually, out of the hearing of the remaining members of the panel. Two said they had read the article; the third juror had not read the article but had stopped as soon as he realized it pertained to the case then on trial before the jury of which he was a part. Although all three jurors insisted that they could nevertheless decide the case fairly on the evidence which they would hear in the courtroom, the trial court excused the two who had read the article and replaced them with alternate jurors. On appeal, Camperson argues that the court erred when it refused to grant a mistrial.

The leading case in Pennsylvania on prejudicial publicity occurring during a trial is Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976). From this, we glean the following general principles:

The procedure to be followed to ensure a fair trial in the face of prejudicial publicity is clearly within the sound discretion of the trial court. Because the choice of procedure involves the balancing of fundamental rights — the defendant’s right to a fair trial before an impartial jury and the rights associated with a free press — this discretion must be exercised with care. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209, cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973).
The preferred procedure when highly prejudicial material is publicized during the trial and the jury is not sequestered is to question the jurors individually, out of the presence of other jurors. See United States v. Schrimsher, 493 F.2d 848, 854 (5th Cir.1974); Mares v. United States, 383 F.2d 805, 809 (10th Cir.1967); Margoles v. United States, supra [407 F.2d 727] at 737 [(7th Cir.1969) ]; ABA Standards Relating to Fair Trial and Free Press §§ 3.5(e), (f) (Commentary). However, questioning jurors as a group or giving special precautionary instructions may be a sufficient precaution depending on the facts of the particular case. See e.g., United States v. Schrimsher, supra; Margoles v. United States, supra.

See also: Commonwealth v. Crispell, 530 Pa. 234, 608 A.2d 18 (1992).

In the instant case, the trial court had failed to give the jury any precautionary instructions regarding newspaper publicity on the day prior to the appearance of the newspaper story. After the story had appeared, however, the jurors were examined, and it was determined that three had seen the article and two had read it. These three jurors were examined by the court, and defense counsel was also allowed to examine them. The two who had read the article were excused and replaced by alternate jurors. The third, the court found, was unaware of the contents of the article.

The remaining jurors were then assembled and cautioned that they were to draw no inferences from the fact that two of their number had been excused. They, in turn, assured the court that they would hear the evidence impartially.

Under these circumstances, we are persuaded that the trial court did not abuse its discretion and that appellant was not deprived of a fair trial.

II.

A motion to suppress evidence had previously been litigated in the Chester County action and had been decided adversely to appellant. When a similar motion to suppress evidence came before the trial court in the instant action, the court refused to relitigate the suppression issues in the absence of new evidence. Instead, appellant was permitted to make a part of the record the notes of testimony taken in Chester County as well as the findings and conclusions of the Chester County Court of Common Pleas. The proceedings in Chester County, therefore, are presently available for appellate review in this case.

The trial court’s ruling was consistent with the decision of the Supreme Court in Commonwealth v. Lagana, 510 Pa. 477, 509 A.2d 863 (1986). There, the Court was faced with two prosecutions in the same county arising out of a single search and seizure. The Supreme Court held that a decision by a suppression judge in the first prosecution could be incorporated into the record of the second hearing and, with new evidence previously unavailable, if any, could be reviewed on appeal. The Court said:

In the present context we believe that some limited form of collateral estoppel is dictated, since it would have the beneficial effect of discouraging the relitigation of the same issues based on the same evidence, while at the same time preventing judges of equal jurisdiction from entering diverse rulings on the same evidence. However, these benefits do not offset the potential negative impact of perpetuating an erroneous ruling.
The solution for this dilemma is to have the ruling of the first suppression hearing incorporated into the record of the second hearing, and to allow review of the first decision on appeal as if it had been entered anew.
Thus, in those instances where two prosecutions arise out of a single search and/or seizure, a decision by a suppression judge during the first prosecution can, upon the motion of the previous prevailing party, become part of the second prosecution. The party against whom this decision is being offered may offer any new evidence which was previously unavailable. See generally Pa.R.Crim.P. 323(j). Absent such new evidence the suppression judge in the second prosecution must adopt the findings and conclusions of the first judge, and incorporate them into the record. Thereupon, the party against whom the first decision is offered may have the validity of the decision reviewed on appeal.

Id. at 483, 509 A.2d at 866 (footnote omitted). See also and compare: Commonwealth v. Iverson, 358 Pa.Super. 1, 516 A.2d 738 (1986).

Although Lagaña involved separate actions before different judges of the same court, its teaching is equally applicable to separate cases before courts of equal jurisdiction in different counties of this Commonwealth. Because Lagaña was followed by the trial court in the instant case, we find no error in the procedure which it adopted.

III.

We must now review the proceedings in the Chester County courts to determine whether that court properly refused to suppress evidence used against appellant during the trial in Montgomery County. Appellant contends that the warrant to search his residence (1) was not supported by probable cause and (2) violated the rule governing nighttime searches and his privacy interests.

In Commonwealth v. Singleton, 412 Pa.Super. 550, 603 A.2d 1072 (1992), the Superior Court observed:

The courts in this Commonwealth employ a “totality of the circumstances” test, as enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), for determining the existence of probable cause for the issuance of a search warrant. See: Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). See also: Commonwealth v. Johnston, 515 Pa. 454, 468, 530 A.2d 74, 80-81 (1987); Commonwealth v. Flaherty, 400 Pa.Super. 397, 401-402, 583 A.2d 1175, 1177 (1990); Commonwealth v. Echevarria, 394 Pa.Super. 261, 265, 575 A.2d 620, 622 (1990); Commonwealth v. Silverman, 373 Pa.Super. 274, 277, 541 A.2d 9, 10 (1988), appeal dismissed, 522 Pa. 510, 564 A.2d 160 (1989). This test was summarized by the Superior Court in Commonwealth v. Carlisle, 348 Pa.Super. 96, 501 A.2d 664 (1985), affirmed, 517 Pa. 36, 534 A.2d 469 (1987), in the following manner:
The magistrate’s determination that probable cause existed must be given deference. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527, 547 (1983); Commonwealth v. Corleto, 328 Pa.Super. 522, 528, 477 A.2d 863, 866 (1984). “[A] magistrate is not required to find a prima facie showing of criminal activity but rather the probability of criminal activity. While the inquiry is restricted to the four corners of the affidavit, the affidavit is to be interpreted in a common-sense and realistic fashion.” Commonwealth v. Gray, 322 Pa.Super. 37, 46, 469 A.2d 169, 173 (1983) (citations omitted). “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Commonwealth v. Miller, 334 Pa.Super. 374, 382, 483 A.2d 498, 501-502 (1984), quoting Illinois v. Gates, supra 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. See also: Commonwealth v. Gray, supra 322 Pa.Super. at 46-47, 469 A.2d at 173.
Id. 348 Pa.Super. at 100, 501 A.2d at 666.
On appeal, “[t]he duty of a reviewing court is to ensure that the magistrate had a ‘substantial basis for concluding that probable cause existed.’ ” Commonwealth v. Fromal, 392 Pa.Super. 100, 114, 572 A.2d 711, 718 (1990), quoting Illinois v. Gates, supra, 462 U.S. at 238-239, 103 S.Ct. at 2332-2333, 76 L.Ed.2d at 548. See also: Commonwealth v. Gray, supra, 509 Pa. at 484, 503 A.2d at 925. “[A] trial court’s determination of probable cause is accorded the utmost deference on appeal.” Commonwealth v. Potter, 350 Pa.Super. 61, 67, 504 A.2d 243, 246 (1986).

Id. at 551-553, 603 A.2d at 1072-1073. See also: Commonwealth v. Baker, 532 Pa. 121, 126-127, 615 A.2d 23, 25 (1992); In Interest of Bond, 434 Pa.Super. 303, 306, 643 A.2d 106, 108 (1994); Commonwealth v. Zelasny, 430 Pa.Super. 585, 590-591, 635 A.2d 630, 632-633 (1993); Commonwealth v. Murphy, 427 Pa.Super. 578, 580-581, 629 A.2d 1020, 1021 (1993).

The affidavit presented to the magistrate in support of the request for a search warrant in this case recited the purchases of methamphetamine from Wynn and Camperson and also that Wynn had observed the manufacture of methamphetamine in Camperson’s residence. The fact that methamphetamine had been observed during its manufacture in Camper-son’s residence and the fact that the methamphetamine which was to be supplied to Wynn for resale was in Camperson’s possession at his residence while under police surveillance were sufficient to establish probable cause for believing that contraband would be found in Camperson’s residence. Therefore, there is no merit in appellant’s contention that the warrant was unsupported by probable cause. See: Commonwealth v. Eicher, 413 Pa.Super. 235, 605 A.2d 337 (1992), allocatur denied, 533 Pa. 598, 617 A.2d 1272 (1992); Commonwealth v. Davis, 407 Pa.Super. 415, 595 A.2d 1216 (1991), allocatur denied, 530 Pa. 630, 606 A.2d 900 (1992); Commonwealth v. Macolino, 336 Pa.Super. 386, 485 A.2d 1134 (1984).

IV.

Following appellant’s arrest, two police officers went to appellant’s residence, let themselves in, secured the premises, and waited for a warrant to search. They did not then search for contraband. A warrant was issued at 10:00 p.m. and executed at 10:30.

The original entry of appellant’s residence by police was made without consent and without a warrant. This was illegal. The search was conducted, however, and the evidence was seized only after a warrant to search had been issued and duly executed. The evidence found and seized pursuant to warrant, therefore, was independent of the initial, illegal conduct by the police. Such evidence was not subject to suppression and was admissible against appellant by the prosecution. See: Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988); Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984); Commonwealth v. Ariondo, 397 Pa.Super. 364, 580 A.2d 341 (1990), allocatur denied, 527 Pa. 628, 592 A.2d 1296 (1991).

Appellant also challenges the sufficiency of the cause for a nighttime search. Pa.R.Crim.P. 2003(e) requires “reasonable cause” for a search conducted after 10:00 p.m. This, it has been held, requires a showing that the search cannot wait until morning. Commonwealth v. Mourar, 332 Pa.Super. 258, 261, 481 A.2d 352, 353 (1984). Here, a nighttime search was authorized by the issuing authority, but appellant argues that no reason was shown for not allowing the search to be delayed until morning.

We find it unnecessary to make this review, for even if reasonable cause for a nighttime search were not included in the affidavit, the rule does not per se require suppression of the evidence seized by police. See: Commonwealth v. Young, 524 Pa. 373, 572 A.2d 1217 (1990); Commonwealth v. Gentile, 429 Pa.Super. 297, 632 A.2d 573 (1993); Commonwealth v. Johnson, 315 Pa.Super. 579, 462 A.2d 743 (1983). See also: Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985). The violation of the rule, if any, was technical; and appellant, who had earlier been arrested and placed in police custody, was not disadvantaged thereby. Such a technical violation did not require suppression of the evidence seized by the police pursuant to the warrant.

V.

Prior to trial, appellant moved in limine to prevent the Commonwealth from using evidence of the drugs found in his residence or of any criminal activities in Chester County. Even if this evidence were relevant, appellant argued, its prejudice outweighed any relevant information which the jury might otherwise glean therefrom. The trial court denied appellant’s motion in limine, and the evidence was introduced against appellant at trial. Appellant contends that this was error.

At trial, it was the contention of the defense that Brian Wynn, having been arrested by police, falsely attempted to portray appellant as the supplier in an attempt to receive lenient treatment. The defense contended that, in fact, it had been Wynn who was the major drug supplier and that it had been Wynn who rented the house in St. Peter’s Village for use as a drug distribution center. Appellant, it was suggested, had lived at this residence only because he had been unable to obtain a place to live on his own. To this end, the defense introduced evidence that Wynn had been the named lessee for the premises; and a defense witness testified that Wynn had sold or given him marijuana on numerous occasions and that he had personally observed Wynn selling both marijuana and methamphetamine on several occasions. This evidence was intended to show, according to appellant, that there had been no agreement between him and Wynn for Wynn to sell methamphetamine on December 1 and 6, 1989. Any scheme to distribute methamphetamine, it was contended, had been by Wynn and did not include appellant.

In order to establish the existence of a conspiracy between Wynn and appellant to distribute methamphetamine on December 1 and 6, 1989, the Commonwealth introduced evidence that, on December 7, 1989, appellant had agreed to furnish Wynn with one half pound of methamphetamine. It was later on the same day that appellant had been stopped by police officers while en route to the pre-arranged meeting place. Appellant had then had in his possession the half pound of methamphetamine which he had agreed to provide to Wynn. He had also had in his possession the $3500 which Wynn had allegedly given him as the proceeds of the sale which had taken place on December 6,1989. When police had attempted to stop him, appellant fled. Later, when they had searched the home occupied by appellant, police discovered additional methamphetamine and equipment used to process methamphetamine. All of this evidence tended to refute appellant’s defense and identify appellant as the supplier of methamphetamine to Wynn on December 1 and 6, 1989. It also tended to demonstrate an intent on the part of appellant to distribute methamphetamine. The trial court did not err when it allowed this evidence to be introduced. Cf. Commonwealth v. Matthews, 415 Pa.Super. 306, 609 A.2d 204 (1992), allocator denied, 533 Pa. 658, 625 A.2d 1192 (1993).

The trial court also gave the jury cautionary instructions. The court said:

... “You have heard evidence tending to prove that Stephen Camperson was involved in other misconduct for which he is not on trial. I am speaking of the testimony to that which allegedly occurred on December 7, 1989.
“This evidence is before you for a limited purpose, that is, for the purpose of tending to show intent and identity. This evidence must not be considered by you in any way other than for the purpose I just stated. You must not regard this evidence as showing that Stephen Camperson is a person of bad character or criminal tendencies from which you might be inclined to infer guilt. If you And Stephen Camperson guilty, it must be because you are convinced by the evidence that he committed the crimes charged and not because you believe he is wicked or committed some other misconduct.”

The trial court did not abuse its discretion. Appellant has no basis for complaint.

A contrary result is not mandated by the Superior Court’s decision in Commonwealth v. Camperson, 417 Pa.Super. 280, 612 A.2d 482 (1992), allocatur denied, 533 Pa. 642, 622 A.2d 1374 (1993). In that case, Camperson was to be tried for possession of the drugs found in his residence following arrest. The trial court ruled, in limine, that the prosecution would not be allowed to introduce evidence of Camperson’s prior drug activity with Wynn or the circumstances of the high speed chase on which Camperson had led police prior to his arrest. On appeal, the Superior Court held that the court had erred when it excluded evidence of Camperson’s relevant drug transactions but that it had not abused its discretion by excluding evidence of the facts surrounding the high speed chase which had resulted in Camperson’s conviction for recklessly endangering another person. The trial court could properly hold, the Superior Court said, that the high speed chase was irrelevant (and prejudicial) on the issue of Camper-son’s guilt of possessing contraband subsequently found in his residence.

In the instant case, appellant was being tried for his complicity in drug transactions which had occurred prior to his attempt to avoid arrest by flight. His defense, moreover, was that he had been an innocent bystander and that Wynn alone had participated in the transactions in Montgomery County. Under these circumstances, appellant’s drug transactions and also his attempt to avoid arrest by police were relevant to show identity of the supplier and his own guilty knowledge. See: Commonwealth v. Williams, 532 Pa. 265, 615 A.2d 716 (1992); Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988); Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987), cert. denied, Banks v. Pennsylvania, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987); Commonwealth v. Hoke, 381 Pa.Super. 70, 552 A.2d 1099 (1989); Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988), appeal denied, 525 Pa. 581, 575 A.2d 112 (1990).

VI.

At trial, appellant requested that the trial court give a missing witness instruction to the jury because of the prosecution’s failure to call Sherry Wynn, the wife of Brian Wynn, and Donald Theisan. The trial court denied the request, and appellant contends this was error.

As a general rule, “[w]hen a potential witness who is not called is available to only one of the parties and can provide important testimony which is not merely cumulative, the jury may infer that the witness’ testimony would have been unfavorable to the controlling party.” Commonwealth v. Berry, 355 Pa.Super. 243, 252, 513 A.2d 410, 414 (1986). See: Commonwealth v. Manigault, 501 Pa. 506, 510-511, 462 A.2d 239, 241 (1983); Commonwealth v. Jones, 455 Pa. 488, 495, 317 A.2d 233, 237 (1974); Commonwealth v. Boyd, 356 Pa.Super. 302, 306, 514 A.2d 623, 625 (1986), allocatur denied, 515 Pa. 618, 531 A.2d 427 (1987); Commonwealth v. Whyatt, 327 Pa.Super. 491, 500, 476 A.2d 374, 378 (1984). The rule has no application, however, unless the witness can provide material testimony. Where the testimony of a witness is comparatively unimportant, cumulative or inferior to other testimony already presented, such an inference cannot be drawn. Here, it has not been shown that Sherry Wynn had material testimony, and the testimony of Donald Theisan, if he was available to testify and if he had information relevant to the charges against appellant, was inferior to the information available to and testified to by Brian Wynn and John Murray. The trial court did not err by refusing a missing witness charge.

VII.

For his participation in the sale of December 6, 1989, the trial court imposed on appellant a sentence of imprisonment for not less than eight (8) years nor more than sixteen (16) years. Appellant contends that such a sentence was illegal because it exceeded the maximum sentence of ten (10) years allowed by Section 13(f)(1.1) of The Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. 233, No. 64, as amended, 35 P.S. § 780 — 113(f)(1.1). We agree.

Appellant was sentenced under 18 Pa.C.S. § 7508(a)(4)(iii), which provides for a mandatory minimum term of imprisonment of eight (8) years, and the provisions of 42 Pa.C.S. § 9756(b), which provide that a sentencing court “shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.” As we have observed, however, the maximum sentence allowed by The Controlled Substance, Drug, Device and Cosmetic Act is ten (10) years.

A similar legislatively created conundrum was before the Supreme Court in Commonwealth v. Bell, 537 Pa. 558, 645 A.2d 211 (1994). Although the conflict there pertained to sentences for possession of marijuana with intent to deliver, the confusion arose from similar inconsistencies in the statutory provisions pertaining to sentencing. The Court’s holding, therefore, is equally applicable to offenses involving methamphetamine.

The Court determined that the provisions of 18 Pa.C.S § 7508 and the provisions contained in The Controlled Substance, Drug, Device and Cosmetic Act could “be consistently applied in regards to terms of incarceration.” Commonwealth v. Bell, supra at 569, 645 A.2d at 217. The proper term of imprisonment was held to be the range between the mandatory minimum provided by Section 7508 and the statutory maximum provided by The Controlled Substance, Drug, Device and Cosmetic Act. “The fact that this construction [was] contrary to § 9756(b)’s minimum-maximum rule,” the Court said, “[was] of no constitutional moment.” Id. at 571, 645 A.2d at 218. By its own terms, Section 7508 applied “[notwithstanding any other provisions of this or any other act to the contrary.”

Under 18 Pa.C.S § 7508(a)(4)(iii), therefore, appellant was properly sentenced to a minimum term of imprisonment for not less than eight years. Pursuant to 35 P.S. § 780-113(f)(1.1), however, appellant should have been sentenced to a maximum term of imprisonment of not more than ten years. When the trial court imposed a maximum sentence of sixteen (16) years, it imposed a sentence which exceeded the maximum allowed by law.

The judgment of sentence at 7245.2-1990 is vacated, and that case is remanded to the trial court for resentencing. The remaining judgments of sentence are affirmed. Jurisdiction is not retained.

      . Thus, "Section 7508(a)(l)(ii)’s mandatory minimum sentence of three years read together with [35 P.S. § 780-] 113(0(2)’s maximum five year sentence results in a three to five year sentence for individuals convicted of possession with the intent to deliver between ten and fifty pounds of marijuana.” Commonwealth v. Bell, supra at 569, 645 A.2d at 217 (footnote omitted).