author: KELLY, Judge:

text:
    540 A.2d 960
    COMMONWEALTH of Pennsylvania v. Wayne HOWARD, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 14, 1988.
    Filed April 28, 1988.

      John J. Garagozzo, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before ROWLEY, KELLY and CERCONE, JJ.
   KELLY, Judge:

Appellant, Wayne Howard, appeals from judgment of sentence of five to ten years imprisonment imposed after his original sentence of two concurrent terms of sixteen months to sixty months imprisonment was vacated pursuant to Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), affirmed sub. nom McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). Appellant contends that in light of his good behavior on parole from the vacated sentence, the new sentence is excessive and disproportionate and therefore constitutes cruel and unusual punishment. We affirm.

The relevant facts and procedural history may be summarized as follows. On March 17, 1983, appellant was arrested and charged with aggravated assault, simple assault, reckless endangerment, possession of an instrument of crime, and violation of the Uniform Firearms Act. Appellant had shot a bar employee in the leg during the course of an argument with the bar employee. The Commonwealth filed notice of its intent to proceed under 42 Pa.C.S.A. § 9712, which provides a five year mandatory minimum sentence for offenses committed with a firearm.

On August 25, 1983, a jury found appellant guilty of aggravated assault and possession of an instrument of crime. In accordance with a prior common pleas court opinion declaring 42 Pa.C.S.A. § 9712 unconstitutional, the trial court refused to impose the five year mandatory minimum sentence at sentencing. Two concurrent terms of sixteen months to sixty months imprisonment were imposed instead. The Commonwealth filed for reconsideration of sentence seeking compliance with 42 Pa.C.S.A. § 9712. When the motion for reconsideration was denied, the Commonwealth filed timely notice of appeal to our Supreme Court.

On November 10, 1986, sentence was vacated by our Supreme Court and the case was remanded for resentencing, in accordance with 42 Pa.C.S.A. § 9712. During the interim period, appellant (whose sentence was not stayed pending the Commonwealth’s appeal) served his minimum sentence (16 months) and was released on parole. Appellant appeared for resentencing and was sentenced to a term of imprisonment of five to ten years. This timely appeal follows.

On appeal, appellant contends that under the circumstances of his case the five year mandatory minimum sentence imposed at resentencing constitutes unconstitutional cruel and unusual punishment. We cannot agree.

Initially, we note that the contention that a sentence is unconstitutional as cruel and unusual punishment challenges the legality of the sentence, rather than a discretionary aspect of sentence. See 42 Pa.C.S.A. §§ 9781(a) and 9781(b). Just as no court has authority to impose a sentence violative of the double jeopardy clause, no court may legally impose cruel and unusual punishment. Cf. Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986) (double jeopardy claim is addressed to the legality of the sentence imposed). Therefore, appellant’s contention that the sentence imposed constitutes cruel and unusual punishment is a challenge to the legality of sentence which may be appealed as of right on direct appeal. 42 Pa.C.S.A. § 9781(a).

In previous cases, similar challenges to sentences imposed pursuant to 42 Pa.C.S.A. § 9712 have been rejected. In Commonwealth v. Ehrsam, 355 Pa.Super. 40, 512 A.2d 1199 (1986), this Court stated:

Whether section 9712 is violative of the prohibition against cruel and unusual punishment is one of first impression in this Commonwealth. We conclude that it does not.
The legislature’s enactment of section 9712 evinces a recognition of the seriousness of felonies committed with firearms, as well as a determination to protect the public from those armed with firearms, to deter violent crime and the illegal use of firearms, and to vindicate the legislature’s interest in punishing those who commit serious crimes while visibly armed with a firearm. Commonwealth v. Wright, supra, 508 Pa. at 40, 494 A.2d at 362. We find that section 9712’s five year mandatory minimum sentence is not disproportionate to the seriousness of the crime appellant committed, and does not shock either a balanced sense of justice or offend evolving notions of decency. Appellant’s claim that section 9712 violated the prohibition against cruel and unusual punishment is accordingly without merit.

512 A.2d at 1210; see also Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986) (sentence imposed pursuant to 42 Pa.C.S.A. § 9712 was neither excessive nor shocking and did not constitute cruel and unusual punishment).

In Ehrsam and Bell, the defendants contended that their individual circumstances (e.g. absence of prior records, an imperfect self-defense claim) compelled a conclusion that imposition of the five year mandatory minimum sentence would be excessive and disproportionate and therefore cruel and unusual punishment. Similarly, appellant argues that his good behavior while on parole from the vacated judgment of sentence demonstrates his complete and successful rehabilitation and reveals the lack of necessity for, and patent capriciousness incident to, a sentence of further confinement. Like Bell and Ehrsam, appellant fails to establish a valid claim.

Assuming, arguendo, that appellant has undergone a complete and successful conversion to principles of good citizenship, the fact remains that criminal sanctions are not addressed solely to the question of whether a particular convict’s rehabilitation will be served by the term of incarceration imposed. Even when no mandatory minimum sentence applies, the sentencing court is required to “follow the general principle that the sentence imposed should call for confinement that is consistent with protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). The rehabilitative needs of the defendant are only one of several factors to be considered by a sentencing court.

The Pennsylvania legislature has determined that the protection of the public requires that a mandatory minimum sentence be imposed upon all persons convicted of specific crimes who visibly possessed a firearm during the commission of such offenses. 42 Pa.C.S.A. § 9712(a). In order to enhance general (rather than specific) deterrent effects, the individual circumstances of particular cases are not to be considered in deciding whether the mandatory minimum sentence applies; rather, when the mandatory minimum sentence applies, the individual circumstances of the particular case are only to be considered in determining whether sanctions in excess of the mandatory minimum sentence should be imposed. 42 Pa.C.S.A. § 9712(c). We find nothing excessive or arbitrary in the legislature’s decision that the need to deter the illegal possession of firearms during the commission of specified crimes warrants imposition of a five year mandatory minimum sentence; consequently, appellant’s claim fails. Commonwealth v. Bell, supra; Commonwealth v. Ehrasam, supra.

Judgment of sentence affirmed.

       Recent sentencing reforms, including adoption of mandatory minimum sentence statutes, occurred in the context of full debate in the Pennsylvania legislature over key policy questions. See generally Commonwealth v. Washington, 357 Pa.Super. 548, 561-565, 516 A.2d 397, 403-405 & nn. 9-24 (1986) (Kelly, J., dissenting (reviewing legislative history of Pennsylvania sentencing reforms). While consideration of the merits of such policy decisions is beyond the ambit of judicial review generally, we note (in response to the alleged irrationality of the imposition of the mandatory minimum sentence in the instant case) that a 1986 report by the Pennsylvania Commission on Crime and Delinquency, Bureau of Statistics and Policy Research, concludes that 42 Pa.C.S.A. § 9712 appears to be causing the general deterrent effect predicted by supporters of the statute. See The Effects of Five Year Mandatory Sentencing in Pennsylvania, 1 Justice Analyst 1, 1-8 (Pa.C.C.D. October 1986). For example, comparing 1981 and 1984 Pennsylvania crime statistics, the rate of gun robberies fell 40% while the rate of non-gun robberies fell by only 12%. Id. at 1. The legislature’s analytically rational policy choice appears to have resulted in its intended effects; hence, analytical rationality has become empirically demonstrated rationality.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    540 A.2d 962
    Josephine T. BIALCZAK, Appellant, v. Nellie MONIAK and Stella Miller, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 28, 1988.
    Filed April 25, 1988.

      Marsha Meadows, Chanders Valley, for appellant.
    William F. Morgan, Assistant District Attorney, for appellees.
    Before BROSKY, WIEAND and DEL SOLE, JJ.
   DEL SOLE, Judge:

This is an appeal from the trial court Order granting Appellees’ motion to dismiss Appellant’s action in partition.

The facts are as follows. The record shows that in 1966 Appellant’s husband (Decedent) conveyed real property to himself and his daughter, Nellie Moniak, as joint tenants with rights of survivorship. Appellant did not join in, or consent to, this conveyance. Later, on December 7, 1978, Ms. Moniak conveyed her rights to the same property back to the Decedent. Finally, one day later, Decedent conveyed the real property to Ms. Moniak and her sister, Stella Miller, as joint tenants with rights of survivorship. Decedent, however, retained a life estate in the use and occupation of a house situated on the property.

Decedent died on May 12, 1984. Thereafter, on June 1, 1984, Appellant filed a partition action against Decedent’s two daughters (Appellees) in order to recover her interest in the property which Decedent had conveyed without her joinder or consent. Appellees filed a preliminary objection in the nature of a demurrer which was denied by the trial court. Subsequently, Appellees filed a motion to dismiss on grounds that Appellant’s suit was, in reality, an untimely attempt to exercise her spousal right of election pursuant to 20 Pa.C.S.A. § 2203 of the Probate, Estate and Fiduciary Code. See 20 Pa.C.S.A. § 2210 (election must be filed with the clerk of the orphans’ court division before the expiration of six months after the decedent’s death or before the expiration of six months after the date of probate, whichever is later). The trial court granted Appellees’ motion and dismissed the case. This timely appeal follows.

Appellant raises four issues in this appeal:

1. Where a widow is the sole beneficiary under her decedent husband’s will, the widow’s dower claim to property transferred without her consent cannot be limited by 20 Pa.C.S.A. section 2105(a) as she has no need to seek relief under that title or to trade her dower rights at common law for a share of the estate;
2. Where a widow need not give up dower rights in order to receive a share of the estate, the dower right remains with the widow; and a denial of that right is in violation of the due process clause, as a property right has been taken away from the widow and nothing has been given by the Commonwealth in return;
3. Even if a widow’s rights be governed by the terms of the Intestate Succession Act of 1978, it does not control the case at bar, as the original transfer of the subject property took place in 1966, and has been held that the Act of 1978 does not effect (sic) transfers wherein the dower right attached prior to the effective date of the said Act; and,
4. Where the probate of the last will has been contested, and the widow receives everything under the last will and nothing under the prior will sought by others to be substituted, it is inequitable to foreclose the widow’s right of election until it has been decided which will will be upheld.

We shall discuss Appellant’s first and third issues simultaneously insofar as they reflect a misconception on Appellant’s part concerning the effect which the 1978 amendments to the Intestate Succession Act and the 1978 Elective Share of Surviving Act had on a widow’s dower rights.

Section 2105(a) of the Intestate Act provides that “[t]he share of the estate to which a widow is entitled under this title shall be in lieu and full satisfaction of her dower at common law.” 20 Pa.C.S.A. § 2105(a). Appellant argues that this provision of the Act is not applicable to her situation by virtue of the fact that Decedent did not die intestate and that she is the sole beneficiary under Decedent’s will. Thus, Appellant argues that she is free to pursue her common law rights of dower to recover her share of the real property transferred to Appellees. In the alternative, Appellant contends that, if § 2105(a) does govern the disposition of this case, then the 1978 amendments to the Act are not binding on her since her dower rights to the property attached in 1966 when Decedent made the first conveyance to Ms. Moniak.

We agree with Appellant’s assertion that the provisions found in § 2105(a) of the Intestate Act do not concern the case at bar. Clearly, Decedent did not die intestate. However, Appellant’s position that she is free to pursue rights of dower in the transferred property is untenable. In 1978, our legislature devised the Elective Share of Surviving Spouse Act which created in a surviving spouse the right to an elective share of one-third of the decedent’s augmented estate irrespective of an existing will. 20 Pa.C. S.A. § 2203.

In considering the amendments to the Intestate Act and the enactment of the Elective Share of Surviving Spouse Act, we noted the effect of these changes on common law dower rights:

[t]he Act of April 18, 1978, P.L. 42, No. 23, § 1, amended the Act of June 30, 1972, P.L. 508, § 2, 20 Pa.C.S. § 2105(a) which provided for a statutory dower in property aligned (sic) during coverture without joinder. Under the amended section 2105, and the newly enacted section 2203, this interest has been abolished in toto, provided the husband does not retain any interest in the property. This provision is applicable to any decedent dying after July 18, 1978. Therefore, assuming [the decedent] was alive on that date, his wife would no longer have an interest in the property, provided it is conveyed without any of the retained interests specified in 20 Pa.C.S. § 2203(a)(2)-(5).

Auen v. DiCesare, 266 Pa.Super. 347, 356 n. 2, 404 A.2d 1324, 1328, n. 2 (1979). From this, it is apparent that common law dower rights have been supplanted by the applicable sections of the Decedents, Estates & Fiduciary Code. If a decedent dies intestate, or partially intestate, § 2101 et seq. dictates the surviving spouse’s share. If a decedent dies leaving a will, § 2201 et seq. permits the surviving spouse to elect against that will and provides the proper apportionment of the augmented estate. In any event, there no longer exists in this Commonwealth a common law right to dower. Therefore, Appellant’s claim that she is free to assert dower rights to the disputed property must fail.

With respect to Appellant’s claim that the 1978 amendments to the Probate, Estate and Fiduciary Code have no bearing on her case since Decedent’s conveyance to Ms. Moniak was in 1966, we do not agree. In abolishing inchoate rights to dower, our legislature intended to establish a comprehensive statutory system of providing a measure of economic security for surviving spouses. As stated in Auen, supra, the amendment to § 2105, and the newly enacted § 2203, were made applicable to any decedent dying 60 days or more after their effective dates. See Historical Notes following §§ 2105 and 2203. Thus, the applicability of these changes to the Probate, Estate and Fiduciary Code is governed by the date of the spouse’s death, and not by the dates certain conveyances of property were made by the decedent without the surviving spouse’s joinder or consent. In the case sub judice, Decedent died on May 12, 1984, more than sixty days after the effective date of § 2203. Under the statutory scheme, Appellant was free to follow the terms of Decedent’s will or take her surviving spouse’s elective share. The record illustrates that Appellant chose to probate Decedent’s will. Therefore, Appellant cannot be heard to assert dower rights which have been abolished and replaced by statutory provisions which she chose not to pursue.

Appellant’s second argument is that the elimination of dower rights by the legislature manifests an illegal taking of a property right in violation of the due process clause of the Fourteenth Amendment. Appellant argues that these portions of the Probate, Estate and Fiduciaries Code should be struck down as unconstitutional. In Fetterhoff v. Fetterhoff, 254 Pa.Super. 438, 512 A.2d 30 (1986), we found the appellant’s issue challenging the constitutionality of a statute waived inasmuch as no notice of the constitutional issue was given to the Attorney General as is required by Pa.R.A.P. 521(a). See Pa.R.A.P. 521(a) (it is the duty of a party challenging the constitutionality of any statute in an appellate court to give immediate notice in writing to the Attorney General of Pennsylvania of the existence of the question). In the instant case, no such notice appears in the record before us. Accordingly, Appellant has waived this issue.

Finally, Appellant states that on June 7, 1984 she probated Decedent’s will which named her as sole beneficiary. However, Appellees have since contested the will and have attempted to substitute in its place an earlier will written by Decedent which leaves nothing to Appellant. Appellant asks that “[s]hould the Lat (sic) Will be overturned, then the Widow should have six months after the prior Will has been instated in which to exercise her option of election.” Appellant’s brief, 11. We decline the opportunity to comment on whether or not Appellant should be granted six months within which to elect against the prior will if that will is probated. The record does not reflect that any determination with respect to the validity of either will has been made. As such, Appellant’s issue is not presently before us.

The Order is affirmed.

      . Nellie Moniak and Stella Miller are Decedent's daughters by a prior marriage.


author: HESTER, Judge:

text:
    541 A.2d 1
    COMMONWEALTH of Pennsylvania v. James H. DYKES, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1988.
    Filed April 25, 1988.

      Irene H. Cotton, Philadelphia, for appellant.
    Peter J. Ainsworth, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before TAMILIA, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

This is a direct appeal from a judgment of sentence. Appellant was convicted by a jury of involuntary manslaughter, risking a catastrophe, recklessly endangering another person, and arson endangering persons. He was sentenced to a total of sixteen to thirty-two years imprisonment. Appellant complains of several trial court errors, ineffective assistance of counsel and improper sentencing. As we find appellant’s claims to be meritless, we affirm.

Following appellant’s conviction on January 31, 1986, he filed timely post-trial motions. On February 18, 1986, appellant filed a pro se motion for a new trial along with a motion for withdrawal of counsel in which he alleged trial counsel’s ineffectiveness. Appellant’s counsel was permitted to withdraw and present counsel was appointed on May 27, 1986. Thereafter, supplemental post-trial motions were filed. On February 17, 1987, the trial court held a hearing on appellant’s ineffective assistance claims. The trial court denied those claims as well as his post-trial motions and imposed sentence on July 14, 1987. Appellant filed a motion to modify his sentence on July 24, 1987, and was denied relief on September 1, 1987. This timely appeal followed.

The evidence established that on June 13, 1984, shortly after 5:00 a.m., appellant set fire to a brick rowhouse. The Philadelphia Fire Department responded, and while they were fighting the fire, the first and second floor of the structure collapsed trapping several firemen in the basement. Due to the conflagration and the building’s collapse, one of the fire-fighters, Joseph Konrad, was killed. Prior to this fire, the structure, located next door to appellant’s home, had been vacant and was in disrepair for some time. Since people could enter the building freely, it was frequently used as a “hang-out” for young people. Due to appellant’s disgust with the condition and the use of the property located next door, he suggested to his friend, Michael Glinka, that they burn the place. The two men retrieved a red can of what they believed was combustible fluid from appellant’s basement to use in setting the fire. As appellant climbed the fence bordering the properties, Glinka handed him the can. Shortly thereafter, appellant returned to his home and told Glinka that the fluid in the can would not burn, but that he had used paper to set mattresses aflame. Within moments of appellant’s return, the structure was ablaze.

Appellant raises nine allegations for our review: 1) whether the evidence was sufficient to support the verdict for involuntary manslaughter; 2) whether the evidence was sufficient to support the verdict for arson endangering persons; 3) whether the jury charge regarding accomplice testimony was adequate; 4) whether the standard charge for reasonable doubt is erroneous and prejudicial; 5) whether the jury charge was inadequate in failing to discuss “direct result” as used in the involuntary manslaughter statute; 6) whether trial counsel was ineffective for failing to adequately attack the Commonwealth’s witness’ credibility; 7) whether his aggregate sentence is illegal; 8) whether the sentence is illegal or an abuse of discretion since the reasons stated are inadequate to explain the gross departure from the sentencing guidelines; and 9) whether the trial court abused its discretion by imposing an unduly harsh sentence.

Appellant’s first two arguments raise a sufficiency of the evidence question. Our standard for reviewing the sufficiency of the evidence is well established.

[WJhether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt____ The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence . Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered ... Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence. (Citations omitted.)

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986), quoting Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 538-39 (1979).

Specifically, appellant alleges that the evidence was insufficient to support his conviction for involuntary manslaughter since the Commonwealth failed to prove that his act of setting the structure on fire caused Joseph Konrad’s death. Although appellant concedes that the Commonwealth established that he set fire to the abandoned structure, he now argues that someone else, who reported that a woman might be trapped inside the building, was actually responsible for the fireman’s death. The evidence establishes that appellant set the fire and knew that people often frequented the building and sometimes slept there. He therefore should have expected that someone might report that people could be inside the structure and that firefighters would enter the building when given such a report. In viewing the evidence in the light most favorable to the Commonwealth, it is readily apparent that the evidence was suficient to sustain appellant’s conviction for involuntary manslaughter.

Secondly, appellant alleges that the evidence was insufficient to support the verdict for arson endangering persons. Appellant argues that the legislature could not have meant to punish someone who intentionally sets a fire which later endangers a fireman since all fires set in urban areas eventually endanger fireman. A careful and thorough reading of the arson endangering persons statute, 18 Pa.C.S. § 3301(a), which reveals the legislative concern for firefighters’ safety, along with the Commonwealth’s evidence, adequately disposes of this absurd argument.

Appellant’s next three arguments deal with the trial court’s charge to the jury. Appellant attacks the jury charge on accomplice testimony, reasonable doubt and involuntary manslaughter. Our standard for reviewing whether a jury charge is proper is well settled. “A court’s charge to the jury will be upheld if it adequately and accurately reflects the law and was sufficient to guide the jury properly in its deliberations.” Commonwealth v. Person, 345 Pa.Super. 341, 345, 498 A.2d 432, 434 (1985).

Appellant alleges that the trial court erred in failing to explain to the jury that Michael Glinka may have been motivated to testify consistent with his original statement since he risked prosecution if he did not. Furthermore, appellant alleges that trial counsel was ineffective for failing to object to this alleged trial court error. Upon review of the record, the trial court’s charge on accomplice testimony accurately and adequately reflected the law and properly guided the jury in its deliberations. The trial court instructed the jury that the witness’ testimony may have been offered to exculpate himself and that this evidence should be viewed with disfavor and cautiously accepted. See Commonwealth v. Cayton, 300 Pa.Super. 417, 446 A.2d 924 (1982). As the jury charge was proper, counsel cannot be found ineffective for failing to object to it. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985).

Appellant next complains that the trial court improperly defined reasonable doubt and that trial counsel was ineffective for failing to object. The trial court properly followed the standard jury instruction for its charge on reasonable doubt, and appellant’s argument that the standard instruction is incorrect has been considered and rejected. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); Commonwealth v. Ferguson, 289 Pa.Super. 163, 432 A.2d 1103 (1981). Again, trial counsel cannot be deemed ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, supra.

Appellant also asserts that the trial court did not adequately explain the concept of causation in its instruction for involuntary manslaughter. Appellant concedes that the trial court properly instructed the jury that unless his conduct was a direct cause of the victim’s death, they could not find him guilty of involuntary manslaughter. Appellant argues, however, that the trial court failed in explaining his theory of the case in more detail. Although it is the duty of the trial court when charging the jury to clarify the issues, it “is not compelled to comment upon nor review the accused’s theory of the case.” Commonwealth v. Cooper, 270 Pa.Super. 365, 370, 411 A.2d 762, 765 (1979). A review of the court’s charge on involuntary manslaughter establishes that the elements were adequately and accurately explained to the jury so as to properly guide them in their deliberation. See Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616 (1985).

Appellant’s sixth allegation is that trial counsel was ineffective for failing to obtain hospital records on Michael Glinka, the Commonwealth’s witness, which would have provided appellant with damaging information concerning the witness.

Our standard for reviewing the effectiveness of counsel is well established.

When reviewing the effectiveness of counsel, we determine first whether the underlying claim has merit. If it does, we then ask whether counsel’s handling of the matter had some reasonable basis designed to effectuate his client’s interests. Counsel is not ineffective unless there was no reasonable basis for the action, and counsel may not be faulted for failing to take baseless or merit-less action. Finally, a finding of ineffectiveness requires a showing that the course of action pursued by counsel was prejudicial to the defendant.

Commonwealth v. Blagman, 350 Pa.Super. 367, 371, 504 A.2d 883, 885 (1986) (citations omitted); see also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). Furthermore, appellant carries the burden of proving his counsel’s ineffectiveness. Commonwealth v. Durah-E1, 344 Pa.Super. 511, 496 A.2d 1222 (1985).

Appellant claims that if trial counsel would have obtained a court order for Glinka’s hospital records, the records would have impeached the witness’ testimony by showing that he had an alcohol and drug problem. These hospital records were introduced at the post-trial hearing on the issue of counsel’s effectiveness. The trial court found that the records not only contained relevant information concerning Glinka’s alcohol abuse, but also information concerning his homelessness. Trial court opinion, at 6. The trial court recognized that trial counsel had conducted an extensive cross-examination of Glinka at trial and had established during the examination that Glinka: 1) had received treatment for his addiction; 2) had a liver problem; and 3) on at least one occasion, was taken off the street frothing at the mouth from alcohol intoxication and was placed in a treatment center. Id. The trial court found that counsel’s sound strategic reason for not obtaining the hospital records was that they contained the same information already elicited and that he was fearful of pursuing the matter too extensively as the jury may have become sympathetic to Glinka. Id. at 7. We agree with the trial court and find appellant’s ineffective assistance of counsel claim meritless.

Appellant’s final three allegations of trial court error concern his sentence. Appellant alleges that the trial court improperly sentenced him since it failed to merge his arson and involuntary manslaughter convictions. In our discussion of the doctrine of merger of offenses for sentencing purposes we have held:

[I]n order to find that separate statutory offenses merge, we must ... determine not only that the crimes arose out of the same criminal act, transaction, or episode, but also that the statutes defining the crimes charged were directed to substantially the same harm or evil. If we do not take both of these steps, we fail in our duty to effectuate the legislative mandate in carrying out statutory punishments.

Commonwealth v. Williams, 344 Pa.Super. 108, 127, 496 A.2d 31, 41-42 (1985) (en banc). Furthermore,

Under this test, merger is required only when two prerequisites are met. First, the crimes must “necessarily involve” one another. Second, even if the two crimes necessarily involve one another, they do not merge if there are substantially different interests of the Commonwealth at stake and the defendant’s act has injured each interest. To determine whether multiple offenses involve substantially different interests, or how many evils are present in a given criminal act, the sentencing court must examine both the language of the particular statutes and the context in which each statute appears in the Crimes Code.

Commonwealth v. Williams, 514 Pa. 124, 135, 522 A.2d 1095, 1101 (1987).

As we have already cited the arson endangering persons statute at footnote 3, supra, we need only examine involuntary manslaughter, which is defined as follows: “A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.” 18 Pa.C.S. § 2504(a). Applying the doctrine of merger to the facts of this case, we hold that arson endangering persons does not merge with involuntary manslaughter for sentencing purposes for the following reasons.

Although appellant’s arson and involuntary manslaughter convictions were based on the same criminal act, they do not merge since each offense requires proof of a fact which the other does not, and the statutes defining each crime were enacted to protect different Commonwealth interests. Simply stated, the involuntary manslaughter statute requires that the death of another person, not necessarily by fire, be proven before one can be found guilty; whereas, the arson statute requires one to intentionally set a fire which recklessly endangers another, without necessarily causing death. Clearly, each of these offenses requires proof of a fact which the other does not. Moreover, appellant’s conduct has injured separate Commonwealth interests. Arson endangering persons has been classified as an offense against the possession of property; whereas, involuntary manslaughter, like attempted murder, is a crime against the person. See Commonwealth v. Williams, 514 Pa. 124, 522 A.2d 1095 (1987). Consequently, appellant’s claim of trial court error is clearly meritless.

Finally, appellant argues that the trial court abused its discretion by failing to state adequate reasons on the record for its gross departure from the sentencing guidelines and for imposing an unduly harsh sentence. As appellant has complied with the requirements set forth in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), we will address his arguments concerning the discretionary aspect of his sentence.

It is well established that sentencing is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760 (1986). In fact, “[i]n order to be considered an abuse of discretion, a sentence must exceed the statutory limits or be manifestly excessive.” Id., 353 Pa.Superior Ct. at 477, 510 A.2d at 761-62. Appellant was sentenced for arson. endangering persons, a first degree felony, risking a catastrophe, a third degree felony, and involuntary manslaughter, a first degree misdemeanor. See 18 Pa.C.S. § 3301, § 3302(b), and § 2504. Appellant was sentenced to serve ten to twenty years for arson, three and one-half to seven years for risking a catastrophe, and two and one-half to five years for involuntary manslaughter. Since appellant was sentenced within the statutory maximum, we find no abuse of discretion. See Commonwealth v. DeSabetino, 369 Pa.Super. 300, 535 A.2d 169 (1987).

Furthermore, appellant’s contention that the trial court erred by grossly departing from the sentencing guidelines when imposing his sentence is meritless. We have held:

In Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), the Supreme Court held that the trial court must state the reasons for its sentence on the record, as such a statement is ‘invaluable’ in determining ‘whether the sentence imposed was based upon accurate, sufficient and proper information.’ Id., 474 Pa. at 131, 377 A.2d at 148. In addition, the legislature has required a statement of reasons: ‘In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentence, a statement of the reason or reasons for the sentence imposed.’

Commonwealth v. Terrizzi, 348 Pa.Super. 607, 609, 502 A.2d 711, 712 (1985). Moreover, we have stated:

In the instant case, the judge gave his reasons for imposing sentence at the sentencing proceedings, in the appellant’s presence, and his statement was recorded and ultimately transcribed as part of the record. We hold that the judge’s statement of reasons for the sentence made of record at sentencing in the defendant’s presence constitute a ‘contemporaneous written statement’, within the meaning of the act. The purpose of the contemporaneous written requirement would appear to be to advise the defendant of the reasons for deviating from the guideline and provide a memorial for his use and for appellate review. It would be unreasonable to conclude that the legislature intended that the court do more than that when the sentence imposed is outside the sentencing guidelines.

Commonwealth v. Royer, 328 Pa.Super. 60, 69, 476 A.2d 453, 457 (1984).

Upon a thorough review of the record, we find that the reasons stated by the trial court for going outside the guidelines are adequate. The trial court properly considered appellant’s deliberate intent to destroy the house, the close proximity of the house to other homes in the area, the trapping of several firefighters in the burning building, the death of one of those firefighters as well as the deterrent effect for future arsons. Also, the trial court properly considered appellant’s background, health, character, and needs along with the needs of society when imposing appellant’s sentence. Consequently, appellant’s sentence was not unduly harsh, and the trial court did not abuse its discretion in sentencing appellant.

As all of appellant’s arguments have been found to be meritless, we affirm the judgment of sentence.

Judgment of sentence affirmed.

HOFFMAN, J., concurs in the result.

      . There had been previous fires on the premises.

      . The fluid was actually wax and was non-combustible.

      . § 3301. Arson and related offenses
      (a) Arson endangering persons,—
      (1) A person commits a felony of the first degree if he intentionally starts a fire or causes an explosion, or if he aids, counsels, pays or agrees to pay another to cause a fire or explosion, whether on his own property or on that of another, and if:
      (i) he thereby recklessly places another person in danger of death or bodily injury, including but not limited to a firefighter, police officer or other person actively engaged in fighting the fire; or
      (ii) he commits the act with the purpose of destroying or damaging an inhabited building or occupied structure of another.

      . Pennsylvania Standard Jury Instructions § 7.01 (Crim) (1979).

      . A person convicted of a first degree felony may be sentenced to a term of imprisonment, the maximum of which is more than ten years. 18 Pa.C.S. § 106(b)(2).

      . A person convicted of a third degree felony may be sentenced to a term of imprisonment, the maximum of which is not more than seven years. 18 Pa.C.S. § 106(b)(4).

      . A person convicted of a first degree misdemeanor may be sentenced to a term of imprisonment, the maximum of which is not more than five years. 18 Pa.C.S. § 106(b)(6).

      . Inasmuch as appellant has failed to preserve his challenge to the constitutionality of the sentencing guidelines, they are not held to be irrelevant here. Commonwealth v. DeSabetino, supra.


author: BROSKY, Judge:

text:
    541 A.2d 7
    COMMONWEALTH of Pennsylvania v. John WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 3, 1987.
    Filed April 21, 1988.

      Dennis I. Turner, Pittsburgh, for appellant.
    Before BROSKY, TAMILIA and KELLY, JJ.
   BROSKY, Judge:

This is an interlocutory appeal from an order denying appellant’s motion to dismiss for violation of the double jeopardy clause. Appellant has previously been tried twice for a number of charges. Both trials ended in a mistrial after a finding that the jury had become hopelessly deadlocked during deliberation.

Appellant asks us to determine if the double jeopardy clause prohibits the Commonwealth from trying him a third time after his first two trials resulted in hung juries. We are compelled to find that it does not, and affirm the order appealed from.

It has been stated recently by our Supreme Court that the double jeopardy clause has been recognized as having three separate and distinct goals: the protection of the integrity of a final judgment, the prohibition against multiple prosecutions even where no final determination of guilt has been made, and the proscription against multiple punishment for the same offense. Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985), rev’d 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). The present case would appear to involve the prohibition against multiple prosecutions even where there has been no final determination of guilt. Perhaps not coincidentally, this goal has been a prevalent one of the double jeopardy clause dating back to its origin in the common law of England. Our Supreme Court noted in Zoller, 490 A.2d at 397, [ijnterestingly, the concept of finality was never interpreted as precluding review of the entry of judgment in a criminal case by way of appeal. Rather, the focus was upon the second prosecution which was deemed offensive.

In the course of the debates over the Bill of Rights, there was no suggestion that the Double Jeopardy Clause imposed any general ban on appeals by the prosecution____ Nor does the common-law background of the Clause suggest an implied prohibition against state appeals. Although in the late 18th century the King was permitted to sue out a writ of error in a criminal case____, the principles of autrefois acquit and autrefois convict imposed no apparent restrictions on this right. It was only when the defendant was indicted for a second time after either a conviction or an acquittal that he could seek the protection of the common-law pleas. The development of the Double Jeopardy Clause from its common-law origins thus suggests that it was directed at the threat of multiple prosecutions, not at Government appeals, at least where those appeals would not require a new trial, quoting United States v. Wilson, 420 U.S. 332, 342, 95 S.Ct. 1013, 1021, [43 L.Ed.2d 232] (1975).

Zoller, 490 A.2d at 397.

Further, along these lines, the Supreme Court noted that the “central design of the guarantee” was:

... [to] protect an individual from being subjected to the hazard of trial and possible conviction more than once for an alleged offense____ The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty.

Zoller, 490 A.2d at 397, quoting Green v. United States, 355 U.S. 184, at 187-88, 78 S.Ct. 221, at 223, 2 L.Ed.2d 199 (1957).

Reinforcing this proposition is Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), which detailed the various implications of the double jeopardy clause. In acknowledging that reprosecution after a mistrial could violate the clause, the Pennsylvania Supreme Court stated: “[prosecution after mistrial raises no risk of multiple punishment. Thus, this situation most clearly shows that the double jeopardy clause is a prohibition against multiple prosecution.” 373 A.2d at 101. Our Supreme Court also noted that “[t]he policies which underlie the prohibition are first, guilt should be established by proving the elements of a crime to the satisfaction of a single jury, not by capitalizing on the increased probability of conviction resulting from repeated prosecutions before many juries;” Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971).

As indicated above, where there has been a declaration of a mistrial reprosecution may be barred by the double jeopardy clause. Commonwealth v. Bolden, supra. Although in some circumstances an individual may be retried following a mistrial, due to the clause’s policy of prohibiting multiple trials, retrial is “only grudgingly allowed,” United States v. Wilson, 420 U.S. at 343, 95 S.Ct. at 1022, and is limited to cases in which the defendant consented to the mistrial or the declaration of a mistrial was “manifestly necessary.” Bolden, supra. 373 A.2d at 101. One such case is where there is a discharge of the jury after they are found to be “hopelessly deadlocked.” Commonwealth v. Mehmeti, 501 Pa. 589, 462 A.2d 657 (1983). In instances of a deadlocked jury, the jury may be discharged without prejudice to the Commonwealth to try the accused again on the same charges. It is perhaps less certain whether the Commonwealth can continue to refile charges upon consecutive “hung juries.”

Although we believe the principles of the double jeopardy clause are compromised when the Commonwealth is given a third opportunity to obtain a favorable jury verdict, after twice failing to persuade the jury of the accused’s guilt, apparently our Supreme Court does not.

In Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979), our Supreme Court addressed a situation where an accused was convicted after two juries were previously unable to return a verdict. Although addressing the propriety of the trial court’s dismissal of the second jury, thus analyzing whether there was “manifest necessity” for declaration of mistrial, the Supreme Court gave no indication that the double jeopardy clause bars retrial after two hung juries. As such, we feel compelled to affirm the order appealed from.

Order affirmed.

KELLY, J., concurs in the result.

      . Compare, U.S. ex rel. Webb v. Court of Common Pleas of Philadelphia County, 516 F.2d 1034 (3d Cir.1975), where violation of double jeopardy clause was found when the second "hung jury” was dismissed without adequate assurance, through colloquy, that a jury verdict could not be obtained. As such, manifest necessity was found lacking.


author: POPOVICH, Judge:

text:
    541 A.2d 9
    COMMONWEALTH of Pennsylvania, Appellant v. Michael L. SILVERMAN.
    Superior Court of Pennsylvania.
    Argued Dec. 10, 1987.
    Filed April 18, 1988.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellant.
    Michael J. Healey, Pittsburgh, for appellee.
    Before ROWLEY, McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, entered April 12, 1985, granting the appellee’s, Michael L. Silverman’s, motion to suppress evidence. We reverse.

On or about January 11, 1984, appellee was charged with one (1) count of receiving stolen property (18 Pa.C.S.A. § 3925). The charge was filed as the result of a search of appellee’s apartment on January 11, 1984. The search was conducted pursuant to a search warrant issued on that day by District Justice Raymond L. Casper.

On July 10, 1984, appellee, through his trial counsel, filed a motion to suppress evidence, alleging that the search warrant in question lacked probable cause. On February 13, 1985, an evidentiary hearing was held, and appellee’s motion was granted on April 12, 1985.

On April 25, 1985, the Commonwealth filed a notice of appeal and petitioned the lower court to extend the time for trial in view of the pending appeal.

The Commonwealth presents one issue for our review on appeal: whether the lower court erred in granting the appellee’s motion to suppress evidence seized pursuant to a warrant as the totality of circumstances presented to the issuing magistrate would support a finding that probable cause existed for the issuance of the search warrant in question.

Before discussing the merits of the Commonwealth’s claim, we must determine whether the Order appealed from in the instant case is final. In Commonwealth v. Dugger, 506 Pa. 537, 546-547, 486 A.2d 382, 386 (1985), the Pennsylvania Supreme Court held:

[T]he Commonwealth’s appeal of a suppression order is proper as an appeal from a final order when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution.

Since the record shows that the certification requirement has been satisfied in the case at bar, we hold that the Commonwealth has an absolute right of appeal to this Court to test the validity of a pre-trial suppression order. Id.

In Commonwealth v. Hubble, 509 Pa. 497, 503, 504 A.2d 168, 171 (1986), the Court identified the appropriate standards of appellate review of suppression court’s rulings:

On review, our responsibility is ‘to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.’ Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975).

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court established the current requirements for the issuance of a search warrant based on information received from confidential informants, and the standard of review to be applied to such an action. These requirements were adopted by Pennsylvania in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985).

Prior to 1983, the standards applied in such cases was the rigorous Aguilar-Spinelli two-prong test. Under the test established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed. 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the affidavit must demonstrate, on its face, both the circumstance by which the informant knew of the criminal activity and the basis for finding the informant reliable. Commonwealth v. Gray, supra.

Now, under Illinois v. Gates, supra, and Commonwealth v. Gray, supra, the standard for evaluating probable cause for the issuance of a search warrant based on information received by confidential informants consists of an analysis of the totality of circumstances. In Commonwealth v. Gray, 509 Pa. at 483, 503 A.2d at 925, the Pennsylvania Supreme Court reiterated the new test for analyzing warrants set forth in Illinois v. Gates, supra, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548:

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. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concludpng] that probable cause existed.” Jones v. United States, [362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)].

In the instant case, the affidavit of probable cause presented by Detective Gary W. Anderson of the McCandless Police Department to District Justice Raymond L. Casper reads as follows:

On 1-11-84 at approx. 3:00 A.M. your affiant received information from P.O. Leo Rudski of the Sharpsburg police an associate of your affiant and a sworn law enforcement officer for the boro of Sharpsburg, Pa. for the past several years that information had been received from an annonymous [sic] source that the above listed items that were stolen in a burglary in the Town of McCandless were at the above location. Rudski explained that at approx. 2:25 A.M. 1-11-84 Ms. Pat Kutzer a police dispatcher for the Shaler P.D. received an annonymous [sic] call from an unidentified man who stated that he wished to pass a tip onto the Sharpsburg P.D. because they had done him a favor and he wished to repay them. The person stated that Silverman had committed a burglary. at a David Weis Store and had stolen jewlery [sic] which he presently has hidden in the above apartment. The jewelry that Silverman has is said to still have Weis price or merchandise tags attached and according to the informant has a value of approx. $40,000. The informant further related that Silverman is living at the above apt. with a woman whose first name is Carol and that the jewlry [sic] will be removed from the apt. the first thing in the morning of 1-11-84. The Shaler P.D. attempted to obtain a telephone number for the informant so that added info could be obtained but the caller would not provide this info. P.O. Rudski went to the apt. bldg in an attempt to investigate and corroborate this information. The informant stated that once in the bldg, there are steps that lead to apt. 101. Rudski found this description to be accurate, additionally Rudski checked the area of the apt. bldg, and in particular the area where residents of the bldg park their vehicles, and by registration number identified a vehicle that is owned by a Mary Ann Silverman who is related to Michael Silverman. Additionally Rudski checked the mailbox for apt. 101 and found the initials on the box were CSM. These initials correspond with the information given by the informant as it related to Carol. Silverman is a known criminal with a previous arrest and conviction record for theft RSP etc. and is known to have committed crimes in the North Hills area and is known by the Sharpsburg Police to be living in their area. The McCandless Police are presently conducting an investigation into a burglary that occurred at the David Weis Co. store in Wexford, Pa. that occurred the beginning of January 1984 where a large amount of jewlery [sic] was stolen. Preliminary estimates by the company indicate that approx. $40,000 worth of jewlery [sic] was stolen. Based on the information received from the annonymous [sic] tip and the independent corroboration of most of the information by associates of your affiant a search warrant for the above premises is requested to search for jewlery [sic] belonging to the David Weis Co. that is stolen property and the possession of same is contrary to Pa. law.

(Docket Entry 2).

The lower court determined that the affidavit on its face was inadequate to establish probable cause in that “1) the reliability of the informant was not sufficiently established; 2) the affidavit does not state the circumstances under which the informant obtained the information; and, 3) the police should have corroborated the tip by conducting surveillance to verify that criminal activity was, in fact, afoot at the location specified by the informant.” (Appellant’s Brief, p. 12). (Opinion, pp. 6-9). We disagree.

Under the Gates totality of circumstances approach, we find the warrant in this case to be valid.

District Justice Casper, the issuing authority, learned the following facts from the affidavit presented by Detective Gary W. Anderson:

(1) Detective Anderson was a police officer with the McCandless Police Department.
(2) Officer Leo Rudski, Jr., was a police officer with the Sharpsburg Police Department.
(3) Detective Anderson sought a warrant to search for evidence of a burglary based on information from an anonymous informant who spoke by telephone with Patricia L. Kutzer, a police dispatcher with the Shaler Police Department, at 2:25 a.m. on January 11, 1984.
(4) The informant stated that appellee had stolen jewelry from a David Weis store.
(5) The informant further stated that the jewelry in question was hidden at appellee’s residence.
(6) The informant also related that the merchandise still had store tags on it and had an approximate value of $40,000.
(7) The informant stated that the goods were to be moved in the morning, i.e., the morning of January 11, 1984.
(8) According to the informant, appellee’s residence was 614 Main Street, Apartment 101, Sharpsburg, Pennsylvania, where he lived with a woman named Carol.
(9) Detective Anderson verified through Officer Rudski who went to the area that there was a residence at 614 Main Street, Apartment 101, Sharpsburg, Pennsylvania, and that a person with the initials, CSM, lived there since these initials were found on the mailbox for Apartment 1.
(10) Detective Anderson verified through Officer Rudski that a car registered to a Mary Ann Silverman was parked in a particular area where residents of the building parked their vehicles.
(11) Detective Anderson verified that a burglary of a David Weis store in Wexford occurred in the beginning of January, 1984 and the matter was under investigation by the McCandless Police Department.
(12) Detective Anderson verified that approximately $40,-000 worth of jewelry was stolen from the store.
(13) Detective Anderson verified that appellee had an arrest and conviction record for prior theft offenses.
(14) Given the above facts, Detective Anderson believed that a search of appellee’s residence at 614 Main Street, Apartment 1, was reasonable and justified by probable cause.

(Docket Entry 2). (Appellant’s Brief, pp. 15-16).

In Commonwealth v. Gray, supra, 509 Pa. at 485, 503 A.2d at 926, which also dealt with an anonymous informant, the Pennsylvania Supreme Court held:

____Although the affidavit does not show on its face that this informant is especially credible or reliable, the whole affidavit contains facts consistent with it. Their total effect confirms it with the ring of truth which is sufficient for men of common sense to conclude that a search is reasonable and justified by probable cause. Three people, one police officer and two confidential informants, have stated that appellant is a known drug dealer. A third confidential informant says he saw twenty pounds of marijuana and that appellant carried this quantity in his car. Viewed together, these allegations raise a fair inference that appellant was in possession of a substantial quantity of a controlled substance. Thus, there was probable cause for the issuance of the search warrant under Gates.

Thus, in applying the Gates test, the same holds true in the instant case. The affidavit in this case, as in Gray, supra, does not show on its face that the anonymous informant is credible or reliable. However, the whole affidavit contains facts that are consistent with the informant’s disclosure. As in Gray, supra, “[tjheir total effect confirms it with the ring of truth which is sufficient for men of common sense to conclude that a search is reasonable and justified by probable cause.” 509 Pa. at 485, 503 A.2d at 926.

In the case at bar, an anonymous informant offered unsolicited information concerning a burglary at a David Weis store and appellee’s involvement with it to the police. The informant stated that he wished to pass the tip on to the Sharpsburg Police Department because he wished to repay them for a favor that they had done for him. (Docket Entry 2).

Therefore, Officer Rudski of the Sharpsburg Police Department, upon receiving the information from Patricia Kutzer, a police dispatcher with the Shaler Police Department, at approximately 3:00 a.m., actually went out to the area where the apartment in question was located in order to verify the story as told by the informant. He found the information as presented to be truthful.

In addition, information was inspected concerning the burglary of a David Weis store in Wexford in the beginning of January 1984, which the McCandless Police were investigating. In this instance, the information as presented by the informant as to the details concerning the type and cost of merchandise taken during the burglary was also found to be truthful.

And finally, appellee was known to have a prior arrest and conviction record for thefts and was known by the Sharpsburg Police to be living in their area at that time.

Thus, viewed together, all the allegations presented in the affidavit raise a fair inference that the contraband described by the informant would be discovered in a search of appellee’s residence. Therefore, we find that, pursuant to the Gates totality of circumstances test, the current standard for determining probable cause, probable cause existed for the issuance of the search warrant in question and that the lower court improperly granted appellee’s motion to suppress evidence.

Order reversed and case remanded for proceedings consistent with this opinion.

Jurisdiction is relinquished.


author: PER CURIAM:

text:
    541 A.2d 13
    Jerry LEONARD and Gayle Leonard v. PARKWAY CORPORATION and John B. Kelly, Inc. and Six Penn Center Associates Eshbach Kale & Associates. Appeal of PARKWAY CORPORATION.
    Superior Court of Pennsylvania.
    Submitted March 8, 1988.
    Filed May 5, 1988.
    James M. Marsh, Philadelphia, for appellant.
    Jeffry M. Seiken, Feasterville, for Leonard, appellees.
    John M. Cleary, Philadelphia, for Kelly, appellee.

      Charles W. Craven, Philadelphia, for Six Penn Center, appellee.
    Bruce D. Lombardo, Philadelphia, for Eshbach, appellee.
    Before ROWLEY, WIEAND and MONTEMURO, JJ.
   PER CURIAM:

The issue in this appeal is whether the trial court abused its discretion by striking appellant’s joinder of an additional defendant for failure to comply with Pa.R.C.P. 2253. Because the joinder was filed more than sixty (60) days after service of the complaint and without leave of court, as required by the rule, the trial court properly caused the joinder to be stricken. Therefore, the order of the trial court will be affirmed.

This action by Jerry Leonard and his wife, Gayle, was commenced against Parkway Corporation (Parkway) and John B. Kelly, Inc. (Kelly) to recover damages for injuries sustained by Leonard when, on July 30, 1985, he struck his head on a concrete overhang in a parking lot operated by Parkway. The complaint was served on Parkway on December 22, 1986. An answer was filed on February 19, 1987, and, on April 28, 1987, Parkway filed a complaint naming Six Penn Center Associates (Six Penn Center) as an additional defendant. Six Penn Center filed preliminary objections to the joinder, alleging that it had been effected in violation of Pa.R.C.P. 2253. The trial court agreed and struck the joinder. Parkway appealed.

Pa.R.C.P. 2253 provides as follows:

Neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.

The language of this rule is clear. Within sixty days after service of the complaint or any amendment thereof, a defendant may join an additional defendant as of right. “After the expiration of that period, an additional defendant cannot be joined unless leave is obtained from the court upon a showing of cause why joinder was not obtained sooner.” 8 Goodrich Amram 2d § 2253:1.

In the instant case, Parkway’s complaint against the additional defendant was not filed until one hundred twenty-seven (127) days after service upon Parkway of the plaintiffs’ complaint. It was filed, moreover, without leave of court. Because it was filed in violation of the rule, the complaint against the additional defendant could properly be stricken.

Order affirmed.

      . An order sustaining preliminary objections and dismissing a defendant’s complaint joining an additional defendant is a final and appeal-able order. Lamoree v. Penn Central Transp. Co., 238 Pa.Super. 380, 357 A.2d 595 (1976).


author: CIRILLO, President Judge:

text:
    541 A.2d 14
    COMMONWEALTH of Pennsylvania v. David THARP, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 7, 1988.
    Filed May 5, 1988.

      Melissa L. Norton, Assistant Public Defender, Sunbury, for appellant.
    David D. Noon, Assistant District Attorney, Sunbury, for Com., appellee.
    Before CIRILLO, President Judge, and BROSKY and TAMILIA, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence following the denial of appellant David Tharp’s post-trial motions in arrest of judgment and for a new trial. He was convicted of permitting a violation of Title 75, the Motor Vehicle Code. We reverse.

At the end of their shift at 1:00 a.m. on October 26, 1985, David Tharp drove himself and a co-worker, Steven Scoviak, to a bar. Tharp’s eyes were bothering him as a result of his first day on a welding assignment and he did not want to drive any more that night. After consuming several beers, they left the bar and Scoviak drove the two men to a friend’s house. Leaving the keys in the ignition, they both attended the friend’s party. Scoviak continued to drink there and does not remember driving several hours later. Tharp testified that at about 3:30 a.m. he went out to his car and fell asleep on the front passenger seat, intending to stay there until morning. He testified that instead, the impact of the collision of his car with a bridge just prior to 6:00 a.m. woke him. Pennsylvania State Police investigated the single car accident and determined that Scoviak had been driving. They arrested Scoviak for driving under the influence, a violation of 75 Pa.C.S. § 3731(a)(1) of which he was later convicted. Tharp was also arrested for permitting that offense in violation of 75 Pa.C.S. § 1575(a), which reads:

No person shall authorize or permit a motor vehicle owned by him or under his control to be driven in violation of any of the provisions of this title.

On appeal Tharp claims the trial court erred in its instructions to the jury, specifically in its refusal of two proposed points for charge submitted by the defense. Tharp claims prejudice because the jury rendered a verdict without having the benefit of instructions on all of the applicable points of law. The Commonwealth argues that the evidence proved, and the jury charge included, the two requisite elements of the offense: permission by the owner for another to drive and a violation by the driver of a provision of Title 75.

In determining whether the trial judge committed an abuse of discretion or an error of law, we consider the charge as a whole in light of the evidence presented. Papandrea v. Hartman, 352 Pa.Super. 163, 507 A.2d 822 (1986). If an error is found to have been committed, we will reverse the trial court’s decision not to grant a new trial only where such error has been clearly prejudicial to the appellant. Lokay v. Lehigh Valley Cooperative Farmers, Inc., 342 Pa.Super. 89, 492 A.2d 405 (1985); Mickey v. Ayers, 336 Pa.Super. 512, 485 A.2d 1199 (1984). Refusal of a requested point for charge is proper where it does not represent an applicable, accurate statement of the law. Crotty v. Reading Industries, Inc., 237 Pa.Super. 1, 345 A.2d 259 (1975). Even where a requested instruction is relevant, a trial court need not include it if the charge already covers the point. Werner v. Quality Service Oil Co., 337 Pa.Super. 264, 486 A.2d 1009 (1984). We turn now to an examination of the requested points to determine whether the trial court was correct in refusing them.

Tharp proposed the following point for charge:

Lack of permission is a complete defense to this crime. If the District Attorney did not prove beyond a reasonable doubt that Dave Tharp gave his permission to Steven Scoviak to drive the car Under the Influence of Alcohol at 5:45 a.m., your verdict must be not guilty.

The trial court refused this proposed instruction on the basis that its rendition of section 1575(a) and its explanation of the Commonwealth’s burden of proof adequately covered this point. In his charge to the jury, the judge, after a standard explanation of reasonable doubt, instructed the jury as follows:

In this case, the defendant has been charged with permitting a violation of the motor vehicle code. In order to be found guilty of this offense, the Commonwealth must prove beyond a reasonable doubt that the defendant permitted or authorized a vehicle owned by him or under his control to be driven in violation of the vehicle code, in this case allowing Steven Scoviak to drive a vehicle owned by or under the control of the defendant while Steven Scoviak was under the influence of alcohol. If the Commonwealth has proved each of these elements beyond a reasonable doubt, then you should find the defendant guilty of the offense. If the Commonwealth has failed to establish each of these elements beyond a reasonable doubt, then you must find the defendant not guilty.

A comparison of this proposed instruction and the actual charge reveals that two points were not included in the charge: that lack of permission is a complete defense, and that the permission necessary for conviction was specific to when Steven Scoviak last operated Tharp’s vehicle just prior to the accident. Tharp argues in essence that, while he may have asked Scoviak to drive to the party, that authorization ended when they arrived there. He maintains that he gave no further permission for Scoviak to drive. He testified that, because he had been asleep for over two hours prior to the accident, he knew neither that Scoviak was driving nor his condition at that time. Tharp concedes that the Commonwealth proved that he had earlier given Scoviak permission to drive, but argues that such permission was given three hours before the violation occurred, had been extinguished after the uneventful drive to the party and had not been renewed at the time of the accident. He argues that this was not sufficient to prove a violation of the statute’s prohibition against permitting his vehicle to be driven in a manner violative of the Motor Vehicle Code.

The Commonwealth’s position, implicitly endorsed by the trial court, is that by establishing Tharp’s original authorization for Scoviak to drive, its burden on this element was satisfied. This implies that the Commonwealth views this original authorization as continuing. It seems clear that, based on the record, Tharp’s original authorization can be inferred to have continued. The keys were left in the ignition. Tharp himself stated to the police investigating the accident and testified at trial that he had asked Scoviak to drive because his eyes were bothering him and he did not want to drive any more that night. Tharp went to sleep on the passenger side of the front seat, leaving the driver’s side free. Further, it would be reasonable to assume that, even if Tharp had decided to sleep in the car, Scoviak would expect to go home at some point and Tharp’s car had been his means of transport all evening. However, section 1575(a) requires the giving of authorization for one’s car to be driven in a manner violative of the Motor Vehicle Code. The permissible inference of continuing authorization cannot, without more, encompass Scoviak’s later operation of the vehicle under the influence of alcohol. If the Commonwealth need only establish the giving of permission at a single point no matter how many separate occasions of driving later occur and regardless of the owner’s knowledge of them, a potential for prosecutorial abuse exists. This raises an interesting question: does lack of knowledge of later vehicle use by a previously authorized driver suffice to terminate permission once given?

This leads us to an examination of Tharp’s other proposed point for charge which reads:

Lack of knowledge is a complete defense to this crime. If the district attorney did not prove beyond a reasonable doubt that Dave Tharp knew that Steven Scoviak was driving under the influence your verdict must be not guilty.

This calls into question the interpretation of the statute. As alluded to by the trial judge, 75 Pa.C.S. § 1575(a) does not specifically mention knowledge. The trial judge refused the requested point and held that “the statute does not require knowledge on the part of the owner of the vehicle.” There was no reference to knowledge in the charge.

A common-sense reading of section 1575(a) leads to the inescapable conclusion that some level of knowledge is necessary. To whom does its prohibition apply? The owner of a vehicle, or the person under whose control the vehicle is. What must such a person not do? Authorize or permit. Authorize or permit whom? Another. To do what? To drive the owner’s vehicle. To drive how? In violation of the Motor Vehicle Code. The giving of authorization or permission must either be an affirmative act or a knowing accession. It is clear, then, that, at the minimum, the owner must know he is authorizing or permitting and that this authorization or permission is specific to another’s operation of his vehicle. The question becomes whether any further knowledge on the owner’s part is necessary for culpability under section 1575(a).

Tharp argues that, absent proof beyond a reasonable doubt that an owner knew that the driver would operate his car illegally — in this case that Scoviak was under the influence — the Commonwealth could not convict him of the charged offense. He argues that such lack of knowledge is a complete defense to the charge and that he was entitled to a jury instruction to that effect.

It is not per se illegal for a vehicle owner to allow someone else to drive his vehicle. Therefore, if the giving of such permission is to be a culpable act, it must have some relation to the conduct authorized. There must be some nexus between the giving of permission by the owner and the later violation of the Motor Vehicle Code by the driver. To interpret this statute to encompass all later acts of an authorized driver, regardless of the ability of the vehicle owner to know or to foresee such actions, would be contrary to the mandate contained in the Statutory Construction Act.

Section 1922. In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:
(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.

1 Pa.C.S. § 1922(1). Consider this example. I loan my car to my neighbor whom I know to be a responsible driver and who, at the time I hand him my keys, is as sober as the proverbial judge. I inquire as to his insurance coverage, make sure he is wearing a seat belt and caution him to drive carefully. To this point I have done nothing illegal and, perhaps, have been more careful than some to make sure my vehicle is in responsible hands. While driving my car, he throws a gum wrapper out of the window, a violation of 75 Pa.C.S. § 3709 for which he is later convicted. According to the Commonwealth’s view, because I had given him permission to drive my car and because he was later convicted of a violation of the Motor Vehicle Code, I am subject to prosecution under section 1575(a). If this trial court’s ruling is correct, it will be to no avail to protest that I had no way of knowing my neighbor would commit such an offense when I gave him permission to drive my car.

Because we believe the intent of the statute is to sanction those owners who knowingly allow their vehicles to be driven illegally, we must conclude that, just as this Commonwealth recognizes a presumption that all persons obey the law, Horan v. Weiler & Ellis, 41 Pa. 470 (1862), a vehicle owner giving permission for another to drive his vehicle is entitled to presume that that driver will obey the law. By extension, then, the owner enjoys a presumption that his giving of permission is lawful and the Commonwealth must prove beyond a reasonable doubt that this was not so. Only when the owner, at the time he gives permission, or, if present during the permitted operation of his vehicle by another, knows or has reason to know or suspect that the driver will not obey the law is this presumption rebutted. The measure of an owner’s culpability under section 1575(a) is the conduct he authorized; permission is related to the time it was given and cannot be all-encompassing. To construe this section otherwise is clearly beyond the reach and intent of the statute.

As is fitting and proper, the owner is presumed to be innocent of allowing his vehicle to be driven in violation of the Motor Vehicle Code until proven guilty. It follows that such an owner must have some knowledge of the manner in which his vehicle will be driven to be guilty of allowing its use in violation of Title 75. Similarly, if permission once given is revoked or extinguished, or the scope of the permission is exceeded by the driver, the owner may not be held responsible for that driver’s later acts. To tie previously given lawful permission to an unknowable or unforeseeable after-the-fact occurrence is too tenuous a relation to satisfy the Commonwealth’s burden of proof under section 1575(a).

For these reasons, Tharp was entitled to the instructions he requested and was prejudiced by their omission. The charge given in this case did not adequately cover the permission aspect and did not address the knowledge factor at all. This constituted prejudicial error. Whether the jury would choose to believe that Tharp did not know or should not have known Scoviak’s condition just prior to 6:00 a.m., or that Scoviak would drive or was driving then, was properly within its province. However, the jury should have been instructed that if it had a reasonable doubt as to Tharp’s knowledge at that time or Scoviak’s authorization at that time, Tharp was entitled to a verdict of not guilty.

We hereby reverse the trial court’s denial of Tharp’s motion in arrest of judgment and for a new trial, and remand the matter for a new trial. Jurisdiction is relinquished.


text:
    541 A.2d 19
    Melvin R. SNYDER, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1987.
    Filed May 2, 1988.

      Robert Vesely, Williamsport, pro hac vice.
    Robert A. Seiferth, Media, for appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order which denied Appellant’s petition to compel arbitration. Because we disagree with the trial court’s determination that Appellants’ petition was premature, we reverse its order.

The facts are not in dispute. On February 19, 1985, the vehicle in which Appellants were traveling collided with a vehicle operated by David Witt and owned by Countryside Auto Sales. The Appellants’, who suffered serious injuries as a result of the accident, settled with Countryside Auto’s liability carrier for the liability limits of its policy. Excess coverage was provided for in a policy issued by Nationwide Insurance Company to David Witt. A separate civil action is presently being pursued by the Appellants’ against David Witt since settlement was not reached with regard to Nationwide’s excess liability coverage of Witt.

Appellants are the named insureds on a policy also issued by Nationwide Insurance Company. This policy contains provisions for underinsurance coverage. In addition, it includes an agreement to arbitrate where the insurer and the insured “do not agree about the insured’s right to recover damages or the amount of damages”. Pursuant to these terms, Appellants filed a Petition To Compel Arbitration after their demands for underinsurance coverage and selection of arbitrators went unanswered. The trial court ruled that “[i]n the absence of a verdict in the underlying case awarding an amount in excess of the negligent party’s liability insurance coverage, or a settlement by that tortfeasor in the amount of policy limits, or an agreement between the parties to this action that the claim will exceed the limits of the tortfeasor’s liability coverage, ... an application to compel arbitration is premature.” Based upon this reasoning, the court denied Appellants’ petition to compel arbitration. In its appeal from the trial court’s order, Appellants ask us to consider whether the court erred in determining that a certain precondition must be met before arbitration could proceed.

In examining this issue we are guided by this court’s recent decision in Rocca v. Pennsylvania General Ins. Co., 358 Pa.Super. 67, 516 A.2d 772 (1987). A two car accident also provided the factual background in Rocca. Therein the appellant, Linda Rocca was a passenger in a vehicle which collided with another auto. A settlement was reached with the second driver’s insurance carrier for the policy limits. Nevertheless, the appellant’s injuries were not fully compensated. Ms. Rocca sought to recover underinsured motorist coverage under a policy appellee issued to her parents which listed her as a named insured. The appellant made a demand for arbitration when the appellee refused to honor her claim. The trial court found the petition to appoint arbitrators to be “premature” and ruled that it was necessary for Ms. Rocca to exhaust her claims against the driver of the vehicle in which she was traveling before bringing her underinsured motorist claim. This court reversed the trial court’s decision and found the matter appropriate for resolution before an arbitration panel.

At this juncture it is perhaps appropriate to note that the trial court dismissed the Rocca case as inapplicable to the case at hand. The Appellee concurs with the trial court’s reading of Rocca and reasons that it may be distinguished from the instant case. Appellee asserts that Rocca did not answer the question presently at issue, “whether a claimant can automatically proceed to arbitration without regard to the payments of the limits of liability on any bond or policy.” This assessment of the Rocca decision is clearly unfounded. The issue addressed by the Rocca court was whether arbitration could be compelled “if the policy requirement of exhaustion of remedies-the ‘limits of liability’ under any other applicable bond or policy-has not been first sought.” In reaching a resolution of this question the court in Rocca applied reasoning and language applicable to the instant case.

Citing Flightways Corp v. Keystone Helicopter Corp., 459 Pa. 660, 331 A.2d 184 (1975) the court in Rocca noted that judicial inquiry in a case where arbitration is sought pursuant to an agreement is limited to determining whether there was an agreement to arbitrate and whether the current dispute comes within the ambit of the arbitration provision. Rocca v. Pennsylvania General Ins. Co., supra, 358 Pa.Super. at 70, 516 A.2d at 773. It is not contested that an agreement to arbitrate was part of the policy entered into between the parties to this action. Nevertheless, it is claimed that the dispute over underinsurance benefits is not yet ripe for review since it is undetermined whether Appellants will have injuries in excess of the applicable liability coverages. However, as clearly established by the court in Rocca, the arbitration provision in effect not only encompasses a determination of the amount of damages but also the initial decision as to whether Appellants are entitled to recover underinsurance benefits at all. “The two are intertwined and are affected by the satisfaction of the remedies afforded (by other applicable bonds or policies) to the claimant. Ergo, it necessarily follows that, with regard to the damages and the efforts of the claimant against other sources to satisfy the same, adherence to policy language is to be decided in the context of arbitration and not in a judicial forum.” Id., 358 Pa.Superior Ct. at 72-73, 516 A.2d at 775. As stated by the court in Rocca:

The arbitrators can always set-off the amounts received by the appellant when, and if, an award is made. The arbitrators may determine that the conditions precedent under the policy have not been satisfied, and thus abate the right to obtain damages until the contractual sine qua non has been met. However, it is for the arbitrators, and not the court, to decide whether the procedural requisites have or have not been satisfied.

Id.

Nothing contained within the instant policy limits arbitration to a time when all third party actions have been resolved in the courts. The insureds right to recover damages and the amount of these damages, which established whether a payment of underinsured benefits is appropriate, is, under the language of the policy, properly decided before an arbitration panel.

In conclusion, we find the holding in Rocco applicable to the facts of this case and therefore we find it necessary to reverse the trial court order’s order which denied Appellants’ petition to compel arbitration.

Order reversed. Jurisdiction relinquished..


author: OLSZEWSKI, Judge:

text:
    541 A.2d 21
    COMMONWEALTH of Pennsylvania, Appellee, v. Kerry D. BOYD, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1988.
    Filed May 11, 1988.

      Vicki K. Horne, Pittsburgh, for appellant.
    Robert F. Hawk, Assistant District Attorney, Butler, for Com., appellee.
    Before BROSKY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   OLSZEWSKI, Judge:

Appellant, Kerry D. Boyd, appeals from a judgment of sentence imposed after appellant was found guilty by jury of driving while the amount of alcohol by weight in his blood was .10% or greater. 75 Pa.C.S.A. § 3731(a)(4). Appellant contends that the evidence was insufficient to support the verdict because the Commonwealth did not present testimony that appellant’s blood alcohol was .10% or greater at the time he was driving. For reasons discussed below, we affirm the judgment of the trial court.

In the early morning hours of June 9, 1985, Officer Ronald Pate of the Penn Township Police Department observed the car that appellant was driving approaching head-on on a two-lane road. After the officer maneuvered his car onto the berm to avoid a collision, he followed appellant and observed the vehicle weave on and off the road several times. Officer Pate pulled appellant over, smelled alcohol, and performed field sobriety tests, which appellant failed to perform adequately. Thirty minutes later, at the police station, breathalyzer tests revealed .16% blood alcohol content.

Appellant was subsequently charged with driving under the influence to a degree which rendered him incapable of safe driving, 75 Pa.C.S.A. § 3731(a)(1) (Count I), and operating a vehicle while the blood alcohol content was .10% or greater, 75 Pa.C.S.A. § 3731(a)(4) (Count II). After a trial by jury on November 26 and 27,1985, appellant was acquitted on Count I but convicted on Count II. Appellant was sentenced to forty-eight hours imprisonment.

The issue before us is whether, when prosecuting a defendant for violating 75 Pa.C.S.A. § 3731(a)(4), the Commonwealth must present expert testimony relating the blood-alcohol test result back to the time appellant was driving his car. We note, preliminarily, that a Subsection 3731(a)(4) offense contains two elements: (1) the operation of a vehicle, and (2) the presence of at least 0.10% alcohol by weight in the motorist’s blood during the course of that operation. Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986), citing Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983). Instantly, appellant does not dispute that he was arrested while in control of a vehicle. Therefore, the only question is whether the Commonwealth failed to offer sufficient evidence that at the time appellant was driving, his blood alcohol content was O. 10% or greater.

When reviewing the sufficiency of the evidence, we must accept as true all of the evidence and view it in the light most favorable to the verdict winner. Commonwealth v. Rivera, 349 Pa.Super. 303, 503 A.2d 11 (1985). The appropriate test is whether the evidence, when viewed in this light, together with all reasonable inferences drawn therefrom, is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984).

In urging that we impose upon the Commonwealth an additional burden of presenting testimony relating the blood alcohol test back to the period when appellant was operating the vehicle, appellant would have us overrule a line of prior decisions. In Speights, supra, a case arguably more compelling than the present one, we concluded that the Commonwealth is not required to offer evidence relating a blood alcohol test back to the time of a vehicular offense and that the absence of expert testimony relating back a remote test result would not render the test result insufficient to convict a defendant of violating 75 Pa.C.S.A. § 3731(a)(4). See also Commonwealth v. Slingerland, 358 Pa.Super. 531, 518 A.2d 266 (1986). In reaching this determination, we reasoned:

Under section 1547 of the Vehicle Code, our legislature has not prescribed statutory time limits within which blood alcohol testing must be conducted in order to constitute acceptable evidence of an accused’s blood alcohol level while driving, [citations omitted]. Moreover, the legislature has not mandated that the Commonwealth adduce evidence corroborating or explaining blood alcohol test results except for that evidence necessary to establish the admissibility of the test results pursuant to subsections 1547(a) and 1547(c), i.e., probable cause to order a test and proper administration of the test. Commonwealth v. DiFrancesco, 458 Pa. 188, 329 A.2d 204 (1974), reh’g denied, December 17, 1974. Nevertheless, we emphasize that the Commonwealth is not relieved of its burden of proving beyond a reasonable doubt that an accused has committed an alcohol-connected vehicular offense. Id.; Commonwealth v. Gearhart, 253 Pa.Super. 238, 384 A.2d 1321 (1978); ... [W]e hold that blood alcohol test results can — by themselves, without explanation by expert testimony — suffice to support a conviction under subsection 3731(a)(4) but that blood alcohol test results do not compel the trier of fact to find a defendant guilty of violating subsection 3731(a)(4) where there is competent evidence of record challenging said test results.

Speights, supra, 353 Pa.Superior Ct. at 265-66, 509 A.2d at 1267 (emphasis supplied).

Instantly, the Commonwealth presented evidence that appellant: (1) was driving in an erratic manner, (2) smelled of alcohol, (3) failed field sobriety tests, (4) admitted to previously consuming five gin and tonics and one beer, and (5) declared that he was “drunk.” Appellant does not challenge the breathalyzer results on appeal nor is there competent evidence to suggest that the results were inaccurate. The result of the breathalyzer test, administered one-half hour after appellant was stopped, when considered in the light of the foregoing evidence, was sufficient to permit the jury to find that appellant had operated a vehicle in violation of 75 Pa.C.S.A. § 3731(a)(4). Slingerland, supra. We will not overrule precedent nor invade the province of the legislature by creating a rule that imposes upon the Commonwealth a burden of relating blood alcohol content test results back to the time of the vehicular offense.

The judgment of sentence is affirmed.

      . In Speights, the blood alcohol test was performed two hours and forty-five minutes after appellant was stopped for running a red light and operating his car in an erratic manner.