author: VAN der VOORT, Judge:

text:
    464 A.2d 362
    COMMONWEALTH of Pennsylvania v. Joseph MATHIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1982.
    Filed July 22, 1983.

      Martin W. Bashoff, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

On Sunday evening, June 8, 1980, at about 11:30 P.M., appellant and two associates, Miller and Skowronski, entered a private social club in Philadelphia with the apparent purpose of ordering drinks. Appellant and Skowronski were members of the club, but Skowronski had been “flagged” by the club apparently for brawling within the club. The club president, one Trimber, told them they would not be served because Skowronski had been “flagged” and because the three men were not dressed in accordance with the club’s dress code. Appellant and Skowronski uttered obscenities and threatened to “clean this fucking place up.” A member, Mr. DeSimone, filling in at the time as doortender, asked them to leave. Appellant then threw a lighted cigarette at Mrs. DeSimone; subsequently she was struck in the forehead with a beer bottle; appellant punched the bartender DeWitt in the face and bit him on the stomach; bit the president Trimber on the thumb; and wrestled with DeSimone, in the course of which DeSimone fell over a porch railing to the ground below, fracturing several ribs.

At the end of a non-jury trial before Judge Louis G. Hill, appellant was acquitted of aggravated assault as to Mr. and Mrs. DeSimone but was found guilty of: simple assault, and recklessly endangering another person as to both Mr. and Mrs. DeSimone and the bartender DeWitt; and guilty of conspiracy. Post trial motions were argued and denied, and appellant was sentenced to four months to one year incarceration in a work release program, and nine years probation. The trial judge also ordered restitution to the various victims, totaling in excess of • $14,000, to cover medical expenses and lost earnings.

From the judgment of sentence appellant has appealed, raising three issues.

We must first resolve a preliminary matter. Defense counsel was directed, by order of court dated July 1, 1981, to file a concise statement of matters complained of on appeal pursuant to Rule 1925(b), Pa.R.A.P. No such statement was filed. The trial court in light of such omission addressed the issues raised in the post-trial motion. The Commonwealth contends that appellant has therefore waived all claims of error. Rule 1925(b) reads as follows:

Direction to file statement of matters complained of. If the lower court is uncertain as to the basis for the appeal, the lower court may by order direct the appellant forthwith to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

(Emphasis supplied).

The purpose of the above rule is to provide the appellate court with the lower court’s reasoning; unless a party informs the trial court of its complaints, such court may not know what issues it should address. See Commonwealth v. Lignos, 294 Pa.Superior Ct. 210, 439 A.2d 824 (1982). However, the waiver provision is discretionary as such measure may be invoked. Since we have the benefit of the trial court’s opinion, we may adequately review the record, limited to the issues raised in post-trial motions. Compare, Commonwealth v. Monroe, 281 Pa.Superior Ct. 328, 330 n. 1, 422 A.2d 193, 194 n. 1 (1980). See Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982).

A. Was the verdict contrary to the weight of the evidence and against the applicable principles of law? '

Appellant argues first that the convictions of simple assault and recklessly endangering other persons,. arose from “a mutual consent fight”, and are inconsistent with a not-guilty verdict as to aggravated assault. The lower court found no reasonable doubt that appellant committed various assaults and engaged recklessly in conduct which endangered others, and the court as fact-finder adjudged appellant guilty of those offenses. The court found that there was some reasonable doubt as to whether appellant had intentionally caused DeSimone to fall from the porch area, or had struck Mrs. DeSimone with a beer bottle and therefore he returned not-guilty findings as to those charges.

There is some confusion on the record as to whether this melee was of mutual consent. In announcing its verdict the court found: that there were inconsistencies in the statements of both sides; that appellant allegedly tossed a lighted cigarette at Mrs. DeSimone; that in response Mr. DeSimone grabbed appellant by the shoulder and appellant then struck Mr. DeSimone; that appellant had acted in an unnecessarily belligerent and aggressive manner; and that, as to Mr. DeSimone, appellant was guilty of simple assault arising out of a mutually consented to fight. (N.T., pp. 807-12.) At a hearing on post-trial motions, the trial judge noted that while evidence pertaining to aggression may have been confused, he did not find aggression on both sides. (N.T. 4/22/81, pp. 5-6.)

The trier of fact has the responsibility to resolve testimonial conflicts and may accept or reject part or all of a witness’ testimony. Commonwealth v. Waller, 498 Pa. 33, 444 A.2d 653 (1982). Under the Crimes Code, simple assault may be graded as a third degree misdemeanor if the charges result from a mutually agreed to fight. 18 Pa.C.S. § 2701(b). This determination, i.e., whether mutual consent existed, is a question of fact for the fact finder. Commonwealth v. Artis, 294 Pa.Superior Ct. 276, 282 n. 1, 439 A.2d 1199, 1200 n. 1 (1982). Here, the court unraveled the testimony and found the Commonwealth’s version to be the more accurate view. As the record supports such view, we find no error. Compare Commonwealth v. Ashford, 277 Pa.Superior Ct. 400, 419 A.2d 1206 (1980).

Any inconsistencies among the verdicts pertaining to the different victims may be explained simply. The court had some basis for finding that Mr. DeSimone consented to the physical dispute but the other victims did not. Furthermore, as to Mr. DeSimone, as noted above, appellant could be held criminally responsible for the agreed-to combat. Nor do we believe that the crime of recklessly endangering another person, 18 Pa.C.S. § 2705, admits to a defense of consent by the victim. See Commonwealth v. Schell, 3 D & C 2d 528 (1977). Further, even if there were some apparent inconsistency among the verdicts, the convictions may stand as a fact finder may render inconsistent verdicts. Commonwealth v. Wanamaker, 298 Pa.Superior Ct. 283, 288, 444 A.2d 1176, 1178 (1982); Commonwealth v. Fox, 259 Pa.Superior Ct. 565, 393 A.2d 970 (1978).

Appellant also argues that there was insufficient evidence of a criminal conspiracy. Again, we find no merit in this argument. There was ample evidence of joint, concerted agreement in the threats of appellant and at least one of his companions, and joint, concerted participation among them in the brawl that ensued. See Commonwealth v. Mobley, 467 Pa. 460, 359 A.2d 367 (1976); Commonwealth v. Jones, 272 Pa.Superior Ct. 444, 416 A.2d 539 (1979); and Commonwealth v. Madison, 271 Pa.Superior Ct. 382, 413 A.2d 718 (1979).

B. Did the court erroneously permit a reopening of the case to allow impeachment testimony?

During the Commonwealth’s case-in-chief, an investigating officer had testified that he had typed summaries of the reports of the incident made by various witnesses. On cross-examination of some of those witnesses, appellant’s counsel had attempted to impeach their testimonies by showing inconsistencies between their trial testimony and the officer’s typed summaries. After both sides had rested, and, during a recess, the prosecuting attorney was told by several of the witnesses that the officer had not typed their statements in their presence but had instead taken handwritten notes of the interviews. The assistant district attorney requested and received permission to reopen the case to put in that testimony.

The admission or rejection of rebuttal testimony comes within the court’s judicial discretion. Commonwealth v. Miller, 490 Pa. 457, 471, 417 A.2d 128 (1980); Commonwealth v. Stevens, 276 Pa.Superior Ct. 428, 419 A.2d 533 (1980) . It is likewise within the discretion of the trial judge to permit either side to reopen its case to present additional evidence Commonwealth v. Deitch Co., 449 Pa. 88, 295 A.2d 834 (1972); Commonwealth v. Ridgely, 243 Pa.Superior Ct. 397, 365 A.2d 1283 (1976). In the posture of this case we find no abuse of the trial court’s discretion in allowing the Commonwealth to reopen its case to offer the rebuttal testimony.

Counsel further argues that the court’s earlier order directing the witnesses be segregated was violated when the prosecuting attorney discussed the summaries with the witnesses during the recess and before they testified in rebuttal.

The trial judge inquired into the circumstances of the prosecuting attorney’s discussions with the witnesses, and was persuaded that there was no improper violation of the segregation order. The court has a wide discretion in matters of this kind: Commonwealth v. Smith, 464 Pa. 314, 321, 346 A.2d 757 (1975); Commonwealth v. Johnson, 273 Pa.Superior Ct. 14, 18, 416 A.2d 1065, 1067 (1979). Here, we find no abuse of such discretion.

C. Did the lower court err in ordering appellant to make restitution of medical expenses and loss of earnings to the various victims?

Appellant contends that the court erred in three respects regarding the sentence.

1) The court failed to consider appellant’s ability to pay restitution;

2) The court directed restitution to compensate for commissions lost; and

3) The court ordered restitution to be paid to fully compensate four victims without giving consideration to contribution by co-actors when appellant was adjudged guilty on charges only pertaining to three of the victims.

Appellant was sentenced to four (4) months to one year incarceration in a work release program and nine years-probation. He was directed to pay restitution in the amount of $14,084.67, at a rate of $55.00 a week. Due to procedural deficiencies we may only address the third contention raised above.

Rule 1410, Pa.P.Crim.P. requires an unsatisfied sentenced defendant to file a motion to modify such sentence within ten (10) days of sentencing.- Failure to do so will be deemed a waiver of complaints that could be raised in such motion. Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Gottshalk, 276 Pa.Superior Ct. 102, 419 A.2d 115 (1980); Commonwealth v. Moore, 271 Pa.Superior Ct. 494, 414 A.2d 362 (1979). However, where the sentence is claimed to be illegal appellate courts should review the contention on its merits even though a petition for reconsideration has not been filed. Commonwealth v. Welch, 291 Pa.Superior Ct. 1, 435 A.2d 189 (1981).

The Commonwealth, in its brief, after noting appellant’s failure to comply with Rule 1410, indicates that appellant’s appeal is reviewable under the holding of Commonwealth v. Kerr, 298 Pa.Superior Ct. 257, 444 A.2d 758 (1982). In Kerr, this court reviewed the defendant’s sentence, even though no motion for reconsideration had been filed. Kerr raised the propriety of a restitution order where an insurance carrier stood to benefit through subrogation. Finding that Kerr was challenging the legality of the sentence we granted review. However, Kerr does not stand for the broad principle that the propriety of a restitution order is always appealable.

A sentence including restitution may not be reviewed when there is an unexcused failure to comply with Rule 1410 unless the' sentence imposed is claimed to be illegal. By “illegality of sentence” is meant that the sentence is, in and of itself defective: for instance, the offenses merged for purposes of sentencing as in Welch, supra; or the court improperly sentenced the defendant as if he were convicted of an offense of a higher degree than he actually was, as in Commonwealth v. Reardon, 297 Pa.Superior Ct. 193, 443 A.2d 792 (1981), or the sentence exceeded the permissible maximum.

Appellant’s first two claims do not attack his sentence on the basis of illegality but instead claim the sentence is excessive under the circumstances. First, he argues that the court failed to consider his ability to make such payment, from which we may infer that he is claiming inability to pay. Next he questions the order to pay restitution for commissions lost as being speculative. These are questions that should have been raised in both a petition to reconsider and in a statement of issues raised on appeal. See Commonwealth v. Ormsbee, 257 Pa.Superior Ct. 322, 390 A.2d 843 (1978) (opinion in support of affirmance). Due to appellant’s omission the trial court did not address these issues. We will not do so either, as to do such would abrogate Rule 1410.

Similarly, we may not address a portion of appellant’s third claim. Interwoven together is a claim, that appellant was ordered to pay restitution for injuries to four persons when he was only convicted of injuring three of the four, with the suggestion that his co-actors should have been directed to contribute. Whether contribution should have been ordered merely rephrases his argument that the restitution was excessive. Therefore we may not address this claim in the absence of a petition for reconsideration having first been filed.

Appellant was directed to pay restitution to Mr. and Mrs. DeSimone, Trimber and DeWitt; he was acquitted of charges concerning Trimber. However, appellant was found guilty of conspiracy. It is a tenet of the criminal justice system that one co-conspirator is responsible for the acts of any of his or her co-conspirators performed in the course of the conspiracy. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976); Commonwealth v. Bachert, 271 Pa.Superior Ct. 72, 412 A.2d 580 (1979); Commonwealth v. Branch, 239 Pa.Superior Ct. 17, 361 A.2d 435 (1976).

Authority for imposing restitution may be found in the Sentencing Code, 42 Pa.C.S. § 9721(c) and the Crimes Code, 18 Pa.C.S. § 1106(a). The former reads in part “to compensate the victim of [the defendant’s] criminal conduct”; the latter states “wherein the victim suffered ... directly resulting from the crime ... the offender may be sentenced to make restitution ...Conspiracy is a crime under the Crimes Code 18 Pa.C.S. § 4302. In light of the above we hold that restitution may be imposed upon a conspirator for the acts of his fellow conspirators done within the course of the conspiracy.

A final point we need to address is one raised in passing by appellant but not further developed. He notes that payments were to be made to various insurers who had paid for services provided to the victims. In Kerr, supra, we found no error with a restitution order even though through enforcement of its subrogation rights, an insurer might recover some part of the restitution. However, in Commonwealth v. Galloway, 302 Pa.Superior Ct. 145, 165, 448 A.2d 568, 577 (1982) a panel of this court held that any direct payment to an insurer was unauthorized. Therefore, the current restitution order, to the extent it requires payment to the various insurance carriers, must be vacated.

Judgment of sentence affirmed, except as to the order of restitution; said order is vacated and the case is remanded for resentencing as to restitution consistent with this opinion. Jurisdiction is not retained.

      . Barred from use of the club facilities.

      . They wore baseball uniforms; and appellant was wearing rubber spiked shoes.

      . The proper term for the reimbursement for personal injuries is reparation, however, that term has been grouped together for purposes of sentencing with the word restitution. See Commonwealth v. Fuqua, 267 Pa.Superior Ct. 504, 507 n. 5, 407 A.2d 24, 25 n. 5 (1979).

      . Appellant refers to a total sum of $13,673; he apparently did not account for payments to be made to Trimber.

      . Where a court fails to inform a defendant of his right to file such motion, argument concerning the sentence will be reviewed. Commonwealth v. Walker, 298 Pa.Superior Ct. 387, 444 A.2d 1228 (1982). Appellant was apprised of Rule 1410.

      . $3,448.59.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    464 A.2d 369
    COMMONWEALTH of Pennsylvania v. James BUTLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 31, 1983.
    Filed July 29, 1983.

      Shelley Stark, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

Appellant, James Butler, was found guilty of burglary following a jury trial before Finkelhor, J. He was sentenced to imprisonment for six months to five years and ordered to make restitution in the amount of $500. An appeal has been taken to this court from the judgment of sentence.

Appellant contends on appeal that the trial court erred in its charge to the jury concerning the Commonwealth’s burden of proof. In its charge the court stated, inter alia:

The defendant is presumed innocent throughout the trial and unless and until you conclude, based on careful and impartial consideration of the evidence, that the Commonwealth has proven him to be guilty beyond a reasonable doubt. It is not the defendant’s burden to prove that he is not guilty. In other words, he does not have the burden to prove that he is not guilty. It is the Commonwealth that always has the burden of proving each and every element of the crime with which the defendant is charged.

The problem that we must deal with is that while the court instructed the jury that the Commonwealth had the burden of proving the defendant guilty beyond a reasonable doubt, it did,not instruct the jury that the Commonwealth had the burden of proving every element of the crime beyond a reasonable doubt. In Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977), our Supreme Court remanded for a new trial because the trial court denied a defense request that the Commonwealth had the burden of proving each and every element of the crime charged beyond a reasonable doubt. The court stated at 472 Pa. 490, 372 A.2d 796:

Nowhere, however, in the entire charge did the court explain that the presence of each of the elements of the conduct charged must be proven by the Commonwealth beyond a reasonable doubt. In fact, no direction at all was given as to the proper application of the burden to the component parts of the crime in question. The defense had an absolute right to have the jury instructed not only as to the quantum of proof required to establish guilt but also that the requirement extended to each of the material elements of the offense. The function of elucidating the relevant legal principles belongs to the judge, and the failure to fulfill this function deprives the defendant of a fair trial.

The court further stated at 472 Pa. 490, 491, 372 A.2d 796-7:

It is entirely possible that, as a result of the charge as it was given, the jury concluded that the Commonwealth might meet its burden if the cumulative evidence of guilt was such that they were convinced beyond a reasonable doubt although they were not convinced beyond a reasonable doubt as to one or more of the elements of the offense. This • is not the correct standard and differs significantly from the requirement that each and every element of the crime meet this same measure of substantiation.

The case of Commonwealth v. Shoats 297 Pa.Super. 236, 443 A.2d 814 (1982) Opinion by Cercone, P.J., dissenting opinion by Wickersham, J. is controlling in the instant case. In Shoats this court stated at 297 Pa.Super. 238, 443 A.2d 815:

The court carefully instructed the jurors that in order to find appellant guilty they had to be satisfied that the Commonwealth established that guilt beyond a reasonable doubt. The court did not, however, instruct the jury that the Commonwealth had the burden to prove beyond a reasonable doubt each and every element of the various offenses with which appellant was charged. Defense counsel raised no objection to the charge nor did counsel attempt to raise this in post verdict motions. On appeal, appellant is now represented by new counsel who raises the issue of trial counsel’s ineffectiveness for various reasons.

The court relying on Commonwealth v. Bishop, supra, remanded for a new trial as the charge was erroneous and there was no acceptable excuse for defense counsel’s not objecting to the court’s failure to instruct the jury that the Commonwealth has the burden of proving each and every element of the crime charged beyond a reasonable doubt. In the instant case trial counsel did not object to the court’s failure to so instruct the jury. On appeal, the appellant is represented by different counsel and he has raised the issue of trial counsel’s ineffectiveness.

It is settled beyond peradv'enture that the standard used in determining ineffectiveness of counsel is whether the course chosen by counsel had a reasonable • basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Counsel need not assert a baseless claim, and it is only when the foregone claim has arguable merit that we must inquire into basis for counsel’s decision not to pursue the claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Consistent with our court’s panel decision in Shoats, supra, we must find no reasonable basis for the failure of trial counsel to object to the charge.

The grant of a new trial in this case is required by our panel decision in Commonwealth v. Shoats, supra, applying the doctrine of Commonwealth v. Bishop, supra. While under Bishop it is clear that the charge stating the burden of proof as to each element of the charge must be separately given if requested, we do not agree that every charge where the rigid formula of separate repetition is not followed is ipso facto in error. We believe that a fair reading of the present charge, which stated only one burden of proof and did so correctly, was sufficient and that a new trial is not warranted simply because the burden was not restated. However, we see no distinction between this case and Shoats and, accordingly, the judgment of sentence is reversed and case remanded for new trial.

This court does not retain jurisdiction.-

BROSKY, J., concurs in result.

      . The court also charged with respect to reasonable doubt as follows: If you are satisfied of the innocence of the defendant as to any or all of the charges he is, of course, entitled to an acquittal in any of the charges as to which you have a reasonable doubt of his guilt, just as much in that case as if you were satisfied with his innocence.

      . In Commonwealth v. Bishop, the court did not accept the Commonwealth's argument that even if the charge was defective, it was harmless error in view of the evidence of guilt to support the verdict and stated at 472 Pa. 491, 372 A.2d 797:
      On prior occasions we have refused to ignore an incorrect, misleading, or incomplete charge on a matter as fundamental as the burden of proof in a criminal case.

      . The Commonwealth in its appellate brief contends that the "charge to the jury, read as a whole, clearly imparted that each and every, element of the crime must be proven beyond a reásonable doubt in order to convict." (Emphasis added). This, of course, is the heart of the dispute. Unfortunately, the court below did not clearly impart to the jury that each and every element of the crime charged must be proved beyond a reasonable doubt. The jury was only charged that the defendant’s guilt as a whole had to be proved beyond a reasonable doubt and that every element had to be proved.


author: ROWLEY, Judge:

text:
    464 A.2d 371
    BENSALEM TOWNSHIP, Appellant, v. Wayne TERRY and Harry Terry, Individually and t/a Terry’s Mobile Home, Inc., and William and Lois Havrilla.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1982.
    Filed July 29, 1983.

      Leslie G. Dias, Bensalem, for appellant.
    Warren L. Simpson, Jr., Philadelphia, for appellees.
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   ROWLEY, Judge:

This is an appeal from an order granting the petition of William and Lois Havrilla, Appellees, to open a default judgment entered against them and in favor of appellant. For the reasons which follow, we affirm.

Appellant, Bensalem Township, instituted an action in equity against Appellees, William and Lois Havrilla, as well as the Havrillas’ lessors, Wayne and Harry Terry. The Township seeks to have the Havrillas’ mobile home removed from its present location because, as alleged by appellant, (1) it is in violation of one or more unspecified zoning ordinances; (2) the Havrillas failed to comply with other zoning ordinances in failing to obtain occupancy and other unspecified permits; and (3) the mobile home partially blocks ingress and egress to the Terrys’ mobile home park thereby creating a public nuisance. The Township’s complaint was properly served on July 7, 1980. On July 28, 1980, not having received an answer from appellees, the Township mailed to the Havrillas a notice of intention to take default judgment in accordance with Pa.R.C.P. No. 237.1. The Township caused a default judgment to be entered against the Havrillas on August 15, 1980, because they had not yet served or filed their answer to the complaint. The Havrillas received notice of the judgment on August 18, 1980. Counsel for the Havrillas entered his appearance on September 8, 1980. On October 24, 1980, the Havrillas filed a petition to open the default judgment, accompanied by supporting affidavits. On November 5, 1980, the Township filed an answer and new matter to the petition. The Havrillas responded with a reply to the new matter, supported with further affidavits, and a memorandum of law which were filed on November 24, 1980. The Township filed its memorandum of law on November 25, 1980. On December 8, 1980, the Havrillas filed yet another memorandum with three more affidavits. On December 30, 1980, the trial court entered an order granting the Havrillas’ petition. Approximately three weeks later, the Township filed the instant appeal.

Our review of such orders is limited by several well-settled principles.

A petition to open a default judgment ... is an appeal to the equitable power of the court and is to be exercised only when three factors coalesce: 1) the petition has been promptly filed; 2) a meritorious defense can be shown; 3) there is a reasonable excuse for failure to file an answer____ This court will not reverse a lower court ruling, either opening or refusing to open a default judgment, unless an error of law or a clear manifest abuse of discretion is shown.

Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 133-134, 403 A.2d 577, 579 (1979) (citations omitted). The Township presents five questions encompassing all of the issues attendant upon a petition to open a default judgment. They are:

I. Did the Lower Court properly exercise its discretion in opening the default judgment?
II. Was Pa.R.C.P. 209 [sic] correctly applied in determining the facts so as to rule on the petition to open the default judgment?
III. Was the failure to answer the complaint excusable?
IV. Was the petition to open the default judgment timely filed?
V. Did the Lower Court properly determine the existence of a meritorious defense?

Most of these issues were capably addressed and resolved by the trial judge in his opinion. We add only a short discussion.

The major point of contention between the parties is the extent of the record on which the trial judge may appropriately decide the questions presented by a petition to open a default judgment. In this case, the trial judge expressly considered “all uncontraverted averments in the petition and supporting materials____” (Emphasis added.) Appellant argues that the judge erred in considering anything more than “the petition, answer, new matter and reply .... ” We do not agree. Rule 209 of the Rules of Civil Procedure contains no such proscription. Furthermore, in Shainline v. Alberti Builders, Inc., 266 Pa.Super. at 134 n. 1, 403 A.2d at 579 n. 1, this court stated that:

This court has made it clear on prior occasions that, in addition to the petition to open, it is proper also to consider depositions, additional testimony, as well as supplemental memorandae [sic] in assessing a meritorious defense. (Citations omitted.)

The Shainline court itself went on to consider the supplemental material as well in assessing whether the petitioner had adequately explained his failure to file an answer. Id., 266 Pa.Superior Ct. at 135-136, 403 A.2d at 579-580. We conclude that the trial judge committed no error by extending his review beyond those documents enumerated by appellant.

The Township next argues that the trial judge improperly considered as fact those averments of the Appellees’ petition that the Township denied in its answer. However, petitioners had submitted sworn affidavits supporting those averments. The Township’s answer, in fifteen of its twenty-seven paragraphs, simply states that appellant is without knowledge of the truth or falsity of the corresponding paragraph of the petition. The Township submitted no similar affidavits or any other evidentiary material. In a similar situation, this Court has said that, because the respondent-appellant did not submit its own evidentiary material but instead relied on denials based on “insufficient knowledge,” no issue of disputed fact was raised. Moss v. Consolidated Rail Corporation, 277 Pa.Super. 192, 197, 419 A.2d 727, 729-730 (1980). Similarly, we conclude that the Township has failed to raise a disputed issue of fact.

Our conclusion is buttressed by several considerations. First, if we accepted appellant’s argument, we would eliminate an important feature of Rule 209. As it now stands, Rule 209 allows the parties to expeditiously resolve questions without the need for long hearings devoted to the introduction of evidence. Rather, the parties may obtain an adjudication on an agreed statement of facts contained in the filed documents. If facts are disputed, then, of course, the parties may resort to depositions as provided by the rule. If we were to find that appellant’s “denials,” in this case, required appellees to resort to depositions, such a ruling would merely serve to delay resolution of the question while depositions were conducted for the sole purpose of stating anew the facts alleged in the affidavits. See Moss v. Consolidated Rail Corporation, 277 Pa.Super. at 197, 419 A.2d at 729-730. Furthermore, while appellant does state some facts in its answer and new matter, none of these facts dispute the existence of the facts alleged in the appellees’ affidavits. At best, appellant discusses what it labels “inconsistencies” among the facts stated by appellees. However, it is for the court to decide if the petition and supplementary materials are internally consistent or not. Appellant’s claim that the averments are inconsistent with one another does not make it so. For these reasons we find no error in the manner in which the trial judge applied Rule 209.

We also conclude that the trial court’s consideration and discussion of the excuse offered by appellees for their failure to file an answer and the timeliness of the petition ably resolved these issues. We find no reason to disturb the court’s exercise of its discretion on these grounds. See also Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982).

Finally, the Township argues that the trial court committed a manifest abuse of discretion in determining that a meritorious defense existed. The theory relied upon by the trial court was that appellees were not required to assert any particular defense because appellant had not yet filed an amended complaint impervious to attack by preliminary objections. We need not reach the question whether this ruling was error because we find that appellees did assert at least three possible defenses. First, appellees assert that they applied for an occupancy permit in March, 1980, and have yet to receive a response from the Township. While it must be taken as true under Rule 209 that appellant did respond, appellant’s own exhibits show that that response was directed to appellees’ lessors, the Terrys, and not to appellees themselves. Appellees have various remedies and opportunities for redress under the Pennsylvania Municipalities Planning Code, 53 P.S. §§ 10101 et seq., including the right to appeal the denial of permits. Id. §§ 10919 and 11006. Because the Code is the exclusive method of handling such disputes, the failure of the Township to provide notice to the Havrillas may provide a defense to the Township’s action in equity.

Second, appellees assert that another possible defense is the existence of a nonconforming use. Wayne Terry, appellees’ lessor, stated in an affidavit that mobile homes have continuously occupied the site of appellees’ home since 1967 or 1968.' Because appellant has yet to specify the ordinances which appellees are allegedly violating, we cannot say that such a defense does not exist. Third, appellees also set forth facts attempting to show that appellees’ mobile home was not a public nuisance. Mr. Terry stated that the road abutting appellees’ lot and over which appellees’ home partially extends is a private road which has been closed to vehicular traffic since 1976. Because the complaint contains little more than a bare assertion that appellees’ home is a nuisance, we cannot say that this defense is unmeritorious. We thus .conclude that the trial court did not err in finding that appellees had alleged a meritorious defense.

Because we have determined each of the questions presented adversely to the appellant, we affirm the order of the trial court.

Order affirmed.

      . The Terrys filed preliminary objections both to the complaint and the amended complaint. These objections were sustained and the record does not reveal whether a second amended complaint has as yet proceeded beyond the preliminary objection stage.

      . The Township attempts to invoke our jurisdiction under .42 Pa.C.S.A. § 742. However, we entertain this appeal under the authority of 42 Pa.C.S.A. § 5105(c) (Right to appellate review: Interlocutory orders) and Pa.R.A.P. No. 311(a)(1) (Interlocutory Appeals as of Right: Affecting judgments).

      . Appellants also raise a sixth issue, namely, "Was it proper to permit a demand for a jury trial in this action in equity?" This issue is moot because appellees “have not soüght and do not intend to demand a jury trial.” (Brief for appellees, p. 48.)

      . Rule 209 of the Pennsylvania Rules of Civil Procedure states:
      If, after the filing and service of the answer, the moving party does not within fifteen days:
      (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
      (b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.


author: WIEAND, Judge:

text:
    464 A.2d 375
    COMMONWEALTH of Pennsylvania v. William FIELDS, Appellant. COMMONWEALTH of Pennsylvania v. Charles FIELDS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 4, 1983.
    Filed July 29, 1983.

      Rhonda Lee Daniele, Norristown, for appellant (at No. 3274)!
    Barry M. Miller, Norristown, for appellant (at No. 3070).
    Joseph A. Smyth, District Attorney, Norristown, submitted a brief on behalf of Commonwealth, appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   WIEAND, Judge:

William Fields and Charles Fields are brothers. They were tried together by a jury which found them guilty of third degree murder, recklessly endangering another person, and criminal conspiracy as a result of the shooting death of Vincent Esposito outside Esposito’s Norristown home on July 20, 1980. Post verdict motions were denied, and sentences of imprisonment were imposed. On direct appeal, both defendants have alleged insufficiency of the evidence and numerous trial errors which we consider seriatim.

“The test to be applied in determining the sufficiency of evidence to sustain a conviction is whether, accepting as true all the evidence and all'reasonable inferences arising therefrom upon which, if believed, the trier of fact could properly have based its verdict, it is sufficient to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes with which he has been charged. As with all challenges to the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict winner, in this case the Commonwealth. Commonwealth v. Waller, 498 Pa. 33, 43, 444 A.2d 653, 658 (1982); Commonwealth v. Bellis, 497 Pa. 323, 330 n. 9, 440 A.2d 1179, 1182 n. 9 (1981); Commonwealth v. Payne, 299 Pa.Super. 378, 379, 445 A.2d 804, 804 (1982); Commonwealth v. Johnson, 273 Pa.Super. 14, 17, 416 A.2d 1065, 1067 (1979). Moreover, the entire trial record must be evaluated, and all evidence actually received must be considered, whether or not the trial courts’ rulings thereon were correct. Commonwealth v. Waldman, 484 Pa. 217, 222-223, 398 A.2d 1022, 1025 (1979); Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965); Commonwealth v. Plusquellic, 303 Pa.Super. 1, 4, 449 A.2d 47, 49 (1982); Commonwealth v. Bentley, 276 Pa.Super. 41, 44, 419 A.2d 85, 86 (1980); Commonwealth v. Williams, 273 Pa.Super. 578, 582, 417 A.2d 1200, 1201 (1980).” Commonwealth v. Barnes, 310 Pa.Super. 480, 483, 456 A.2d 1037, 1038 (1983).

So viewed, the evidence established that appellants, together with Michael Joseph Curry and Mark Cassidy, had visited the home of Barry Fields, a brother of appellants, in Conshohocken, Montgomery County, on the afternoon of July 20, 1980. William Fields stated to the others that Vincent Esposito, the husband of his sometime paramour, Carol Esposito, had been harassing him and had again slashed the tires on his vehicle. William Fields let it be known that he would like someone to take care of Vincent Esposito' A discussion ensued during which Charles Fields suggested breaking Esposito’s arms and legs. Eventually, Mark Cassidy stated that he would take care of Esposito for William Fields. Later that afternoon, Cassidy and William Fields left Barry Fields’ house and drove to Norristown where William Fields pointed out Esposito’s residence and gave Cassidy a gun. William Fields and Cassidy then rejoined the others in Conshohocken. That evening, Cassidy, Charles Fields and Curry drove to Norristown. They parked their automobile several blocks from Esposito’s apartment. While Curry, who had been injured when the gun accidentally discharged, remained in the vehicle, Charles Fields and Cassidy went on foot to the Esposito home. Charles threw stones at the window of the second floor apartment, and when Esposito came downstairs and opened the door to investigate, Cassidy fired several shots from the gun provided by William Fields earlier in the day. One of these shots struck and fatally injured Vincent Esposito.

A person is guilty of an offense if it is committed by his own conduct or if he is an accomplice of the person who commits it. 18 Pa.C.S. § 306(a) and (b)(3). See: Commonwealth v. Bradley, 481 Pa. 223, 228, 392 A.2d 688, 690 (1978), cert. denied, 440 U.S. 938, 99 S.Ct. 1286, 59 L.Ed.2d 498 (1979); Commonwealth v. Smith, 480 Pa. 524, 528, 391 A.2d 1009, 1011 (1978); Commonwealth v. Everett, 297 Pa.Super. 320, 327, 443 A.2d 1142, 1145 (1982). A person is an accomplice of another person in the commission Of an offense if, with the intent of promoting or facilitating the commission of the offense, he (1) solicits such other person to commit it; or (2) aids or agrees or attempts to aid such other person in planning or committing it. 18 Pa.C.S. § 306(c)(1). See: Commonwealth v. Coccioletti, 493 Pa. 103, 109, 425 A.2d 387, 390 (1981); Commonwealth v. Cunningham, 301 Pa.Super. 209, 212, 447 A.2d 615, 617 (1982); Commonwealth v. Carey, 293 Pa.Super. 359, 373, 439 A.2d 151, 158 (1981).

William Fields, according to the evidence, solicited his friends to take care of Vincent Esposito, and, after Cassidy had agreed to do so, William Fields showed him where Esposito lived and gave Cassidy the gun with which Cassidy killed Esposito. Charles Fields was present and actively participated in the shooting. It was he who threw stones against the window to attract Esposito’s attention and bring him to the door where he could be seen and shot by Cassidy. This evidence was sufficient to sustain the convictions; and appellants’ motions in arrest of judgment were properly denied.

Whether a new trial should be granted on the grounds that a verdict is against the weight of the evidence is addressed to the sound discretion of the trial court; its decision will be reversed by a reviewing court only for an abuse of that discretion. Commonwealth v. Zapata, 447 Pa. 322, 327, 290 A.2d 114, 117 (1972); Commonwealth v. Starks, 298 Pa.Super. 213, 216, 444 A.2d 736, 738 (1982); Commonwealth v. Rodriquez, 291 Pa.Super. 239, 243 n. 3, 435 A.2d 888, 890 n. 3 (1981); Commonwealth v. Larew, 289 Pa.Super. 34, 37, 432 A.2d 1037, 1038 (1981). In determining whether to grant a new trial, the test is not whether the court would have decided the case the same way but whether the verdict was so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail. Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981). This clearly is not such a case.

Appellants contend that the informations should have been quashed because preliminary hearings were not held within the time frame established by Pa.R.Crim.P. 140. This rule directs the issuing authority to fix a time for a preliminary hearing “which shall not be less than three nor more than ten days after preliminary arraignment unless extended for cause shown____” Pa.R.Crim.P. 140(d)(1). Appellants were arrested and preliminarily arraigned on December 5, 1980. Their preliminary hearing, originally scheduled for December 12, 1980, well within the ten day period, was postponed until December 17, 1980 in order that counsel could be secured for appellants, who were unrepresented. On December 17, 1980 appellants were still unrepresented. While the Commonwealth, which had all its witnesses available, was prepared to proceed with the preliminary hearing, William Fields stated a preference that the matter be continued until counsel had been appointed for all co-defendants. Attorneys were in fact appointed on December 22, 1980, and the preliminary hearing was scheduled for the following day. That hearing was continued by agreement of counsel to December 29, 1980 in order to permit all counsel to attend the funeral of the late Honorable Milton 0. Moss. The preliminary hearing was held, as scheduled, on December 29, 1980.

The law is clear that delay incurred for the purpose of procuring counsel for an accused constitutes sufficient cause to postpone a preliminary hearing beyond the ten day period. Commonwealth v. Barnett, 253 Pa.Super. 39, 43-44, 384 A.2d 965, 967 (1978). The trial court properly refused appellants’ motions to quash.

“[Questions of consolidation or severance of defendants for trial rests [sic] in the discretion of the trial court and will not be reversed in the absence of an abuse of that discretion.” Commonwealth v. Norman, 272 Pa.Super. 300, 306, 415 A.2d 898, 902 (1979). “[T]he burden is on appellant to show that there was a substantial prejudice to him as a result of the refusal to sever.” Commonwealth v. Iacino, 265 Pa.Super. 375, 385, 401 A.2d 1355, 1360 (1979). “[A] joint trial [is] permissible, if not advisable, when the crimes charged grew out of the same acts and much of the evidence is necessary or applicable to [all] defendants.” Commonwealth v. Jackson, 451 Pa. 462, 464, 303 A.2d 924, 925 (1973), quoting Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820, cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954). The American Bar Association Minimum Standards for Criminal Justice Relating to Joinder and Severance suggest consideration of the following factors which, if present, recommend a severance: “(1) whether the number of defendants or the complexity of the evidence as to the several defendants is such that the trier of fact probably will be unable to distinguish the evidence and apply the law intelligently as to the charges against each defendant; (2) whether evidence not admissible against all the defendants probably will be considered against the defendant notwithstanding admonitory instructions; and (3) whether there are antagonistic defenses.” Commentary to Standard 2.3(b). See also Pa.R.Crim.P. 1127, 1128.

Because there were in the case sub judice only two defendants and the evidence was neither complex, confusing nor admissible against only one defendant, we agree with the trial court that the case was one wherein the jury could “distinguish the evidence and apply the law intelligently as to the charges against each defendant.” There was no abuse of discretion in consolidating for trial the charges against William and Charles Fields. Such a consolidation was in the interest of judicial economy and did not unfairly prejudice either appellant.

“A prospective juror should be excused for cause in two situations: ‘The first is where the prospective juror indicates by his answers that he will not be an impartial juror____ The second is where, irrespective of the answers given on voir dire, the court should presume the likelihood of prejudice on the part of the prospective juror because the potential juror has such a close relationship, be it familial, financial, or situational, with any of the parties, counsel, victims or witnesses.’ Commonwealth v. Stamm, 286 Pa. Super. 409, 415-416, 429 A.2d 4, 7 (1981) quoting Commonwealth v. Colon, 223 Pa.Super. 202, 299 A.2d 326 (1972).” Commonwealth v. Johnson, 299 Pa.Super. 172, 176-177, 445 A.2d 509, 511 (1982). “In order to succeed in challenging a venireman for cause, appellant must show that the prospective juror had a bias or prejudice ‘that could not be readily set aside and would in fact influence and color his judgment.’ ” Commonwealth v. McBee, 267 Pa.Super. 49, 54-55, 405 A.2d 1297, 1300 (1979) quoting Commonwealth v. Hoss, 469 Pa. 195, 204, 364 A.2d 1335, 1340 (1976).

In the instant case, one potential juror had a son-in-law who was an assistant district attorney in a neighboring county; the home of a second had previously been burglarized; and a third was the brother of a liquor store holdup victim. These circumstances did not present situations in which the relationships of the prospective jurors with some person or aspect of the case were sufficiently close to require disqualification. Each of the three prospective jurors indicated unhesitatingly that he would be able to render a fair and impartial verdict. The trial court, therefore, did not err in refusing to strike these veniremen for cause.

The grant or refusal of a motion for mistrial generally rests within the sound discretion of the trial court and will not be reversed on appeal in the absence of a flagrant abuse of that discretion. Commonwealth v. Dumas, 299 Pa.Super. 335, 344, 445 A.2d 782, 787 (1982); Commonwealth v. Green, 287 Pa.Super. 220, 226, 429 A.2d 1180, 1183 (1981); Commonwealth v. Pifer, 284 Pa.Super. 170, 183, 425 A.2d 757, 763 (1981); Commonwealth v. Farrell, 265 Pa.Super. 41, 52-53, 401 A.2d 790, 796 (1979) (citing cases). “In determining whether to grant the request, the necessary inquiry is whether the alleged occurrence was prejudicial to the defendant, ‘that is, [whether] it is of such a nature ... that it may reasonably be said to have deprived the defendant of a fair and impartial trial.’ ” Commonwealth v. Farrell, supra, quoting Commonwealth v. Phillips, 183 Pa.Super. 377, 382, 132 A.2d 733, 736 (1957).

Appellants contend that a mistrial should have been granted because the testimony of Carol Esposito, the victim’s widow, was unduly prejudicial and inflammatory. The record does not support this contention. She had been an eyewitness to the shooting, and her testimony on direct examination was descriptive of the events she had witnessed and of her relationship with the victim and appellant. This testimony was not in the least inflammatory. However, she was vigorously cross-examined by appellants’ counsel, and if her responses to questions asked on cross-examination divulged irrelevant facts, neither the trial court nor the prosecuting attorney can be faulted. Whether to inquire further regarding the relationship between the witness, her husband, and William Fields was a strategic decision that could be made only by appellants and their respective attorneys. Their decision regarding the scope of cross-examination may, in hindsight, have been unwise. However, it did not require the granting of a mistrial. A criminal defendant is not entitled to a mistrial merely because his trial strategy does not achieve a desired effect.

Appellants also contend that a mistrial was necessary because the prosecuting attorney cross-examined a defense witness as to whether she was, at the time of trial, driving William Fields’ truck. They contend that the question implied that appellant was either incarcerated or had given the truck to the witness in exchange for her favorable testimony. There is no merit in this contention. In the first place, the prosecutor was entitled to demonstrate the existence of a close relationship between appellant and the witness in order to show bias on the part of the witness. See: Commonwealth v. Hutchinson, 290 Pa.Super. 254, 267, 434 A.2d 740, 746 (1981) (A witness may be impeached by cross-examination tending to show the witness’ bias, interest or prejudice). Secondly, even before defense counsel had voiced an objection, the witness answered the question in the negative and thereby eliminated any possible adverse inference from the question. The trial court did not abuse its discretion when it denied appellants’ motion for mistrial.

Appellants final motion for mistrial was based on an alleged violation by the Commonwealth’s chief investigator of a sequestration order. Appellants asserted that the investigator had intimidated Commonwealth witnesses by threatening them with prosecution and imprisonment in the event their trial testimony differed from their earlier statements. In response to this charge, the trial court conducted a lengthy hearing outside the presence of the jury. After taking testimony from the witnesses and the investigator, the trial court concluded that there had been neither intimidation of witnesses nor violation of the sequestration order.

A decision as to whether to sequester witnesses is initially one within the discretion of the trial court. Commonwealth v. Fawcett, 297 Pa.Super. 379, 382, 443 A.2d 1172, 1173 (1982); Commonwealth v. Bellacchio, 296 Pa.Super. 468, 478, 442 A.2d 1147, 1152 (1982). Similarly, a court’s finding that a violation of a sequestration order has not occurred or has not prejudiced the defendant will not be disturbed so long as it is not arbitrary and is supported by the evidence. Compare: Commonwealth v. Smith, 464 Pa. 314, 320-321, 346 A.2d 757, 760 (1975) (Remedy for violation of sequestration order is within the sound discretion of the trial court, which should consider the seriousness of the violation and its impact on the testimony of the witnesses and the outcome of the trial); Commonwealth v. Johnson, 273 Pa.Super. 14, 18, 416 A.2d 1065, 1067 (1979) (Selection of a remedy for the violation of a sequestration order is in the sound discretion of the trial judge and will not be disturbed absent an abuse thereof). The trial court.found that its sequestration order had not been violated, and we find no basis for finding an abuse of discretion.

The admissibility of photographs is another matter that is peculiarly within the discretion of the trial judge. His rulings thereon will be reversed only if there has been an abuse of discretion. Commonwealth v. Kaster, 300 Pa.Super. 174, 178, 446 A.2d 286, 288 (1982). Appellants complain that two black and white photographs of the scene of the crime should not have been received because they showed blood stains in the doorway and on the staircase where the victim fell after being shot. They also contend that it was error to receive a third photograph which showed the path taken by the victim after the shooting, because it also showed one of the victim’s bare feet. These photographs possessed significant probative value and supported the Commonwealth’s version of the circumstances surrounding the shooting. They did no more than depict the scene of the crime. They were neither gruesome nor likely to inflame the passions of the jurors. Their admissibility was properly within the discretion of the trial court. See: Commonwealth v. Green, 488 Pa. 611, 614-615, 413 A.2d 651, 653-654 (1980); Commonwealth v. Hubble, 314 Pa.Super. 99, 460 A.2d 784 (1983); Commonwealth v. Thorpe, 270 Pa.Super. 221, 227-228, 411 A.2d 497, 500 (1979), citing Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974); Commonwealth v. Oates, 269 Pa.Super. 157, 162, 409 A.2d 112, 115 (1979).

Appellants objected to the testimony of Michael Joseph Curry, an alleged co-conspirator, who established the origin of the weapon used in the shooting. Curry testified that Mark Cassidy, another alleged co-conspirator, had said that William Fields had provided him with the gun and necessary ammunition. The statement was purportedly made after the parties had left Barry Fields’ home in Conshohocken but prior to their departure for Norristown, where the shooting took place. Appellants contend that the admissibility of this statement under the co-conspirators’ exception to the hearsay rule was not duly established because the Commonwealth failed to prove, by a preponderance of the evidence, either the existence of a conspiracy or that the statement had been made in furtherance thereof. See: Commonwealth v. Plusquellic, supra 303 Pa.Super. at 7, 449 A.2d at 51 (citing cases). The reeord contradicts appellants’ contention. The evidence adduced at trial established that a conversation had taken place on the afternoon of the crime, during which the participants, including the two appellants, Cassidy and Curry, discussed taking retaliatory action against the victim, Vincent Esposito. This evidence was sufficient to establish the existence of a conspiracy; the statement by appellants’ alleged co-conspirator as to the source of the weapon was made during the course of that conspiracy and in furtherance thereof. As such, it was properly received. See: Commonwealth v. Hubble, supra; Commonwealth v. Scarborough, 313 Pa.Super. 521, 460 A.2d 310 (1983).

Appellants’ final averment of trial error pertains to the propriety of the court’s jury instructions. Appellate review of the charge of the court for prejudicial and reversible error requires that the charge be read and considered in its entirety; error will not be predicated upon isolated excerpts. Commonwealth v. Romeri, 314 Pa.Super. 279, 297, 460 A.2d 1139, 1148 (1983). It is the general effect of the charge which controls. Commonwealth v. Woodward, 483 Pa. 1, 4, 394 A.2d 508, 510 (1978). After having examined carefully the jury charge, particularly with respect to appellants’ contentions that the trial judge failed to define properly the offenses with which appellants were charged, we conclude that the trial judge’s instructions adequately and accurately defined the offenses, including the constituent elements thereof. The instructions were clear and concise and in accord with the pertinent sections of the Pennsylvania Crimes Code.

William Fields would also fault the trial judge for failing to explain the reason for imposing upon him a sentence different than that imposed upon Michael Joseph Curry. This issue, however, has not been preserved for appellate review. Although he filed a motion to modify his sentence, William Fields’ only complaint was that the sentencing court had neglected to consider his background and character. The alleged disparity with Curry’s sentence was not raised and has, therefore, been waived. See: Commonwealth v. Brown, 288 Pa.Super. 171, 175, 431 A.2d 343, 345 (1981).

Finally, being represented by different appellate counsel, appellants contend for the first time on appeal that in numerous respects their separate trial counsel were ineffective. Many of these assertions appear to be frivolous, and several have already been rejected implicitly in this opinion. Others, however, cannot be determined from the existing record and require an evidentiary hearing. These include averments that counsel failed to “check” witnesses and refused to speak with William Fields or allow him to testify in his own behalf. To permit an evidentiary hearing on these charges of ineffectiveness, we are obliged to vacate the judgment of sentence, at least for the time being, and remand for an evidentiary hearing. See: Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976). If it is determined that any trial counsel was ineffective, his client must be granted a new trial. If an appellant’s counsel rendered constitutionally effective assistance, that appellant’s judgment of sentence shall be reimposed.

The judgments of sentence are vacated, and the cases are remanded for evidentiary hearings on appellants’ averments that they received ineffective assistance of counsel. Jurisdiction is not retained.

      . 18 Pa.C.S. § 2502(c).

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 903.

      . For sentencing purposes, the conviction of recklessly endangering was held to merge in the conviction for murder of the third degree.

      . Curry entered pleas of guilty to third degree murder and conspiracy and testified as a Commonwealth witness.

      . Cassidy was tried separately and was convicted of murder in the third degree, recklessly endangering another person and criminal conspiracy. His conviction was reviewed and affirmed by this Court in Commonwealth v. Cassidy, 315 Pa.Super. 429, 462 A.2d 270 (1983).

      . Although not included in the statement of questions involved, appellants make an additional argument that the informations should have been quashed because of the Commonwealth’s failure to set forth a prima facie case at the preliminary hearing and at the subsequent habeas corpus hearing. This contention is patently without merit. In its written opinion, the trial court reviewed the evidence presented at both hearings and properly concluded that the Commonwealth had met its burden by showing prima facie that appellants had participated in the commission of a crime. It is unnecessary to repeat that review of the evidence here; suffice it to say that the evidence was not rendered insufficient because some of the evidence received was hearsay. See: Commonwealth v. Branch, 292 Pa.Super. 425, 430, 437 A.2d 748, 750 (1981).

      . Appellant, Charles Fields, was not present for this hearing, having been transported to Berks County to answer criminal charges there pending against him.

      . Appellants also contend that the trial court erred in refusing to allow questions concerning the veniremens’ prior service on juries. The record belies this claim. Indeed, the potential juror who indicated that he had previously served on a jury was independently examined by the trial court and all counsel. None of the questions propounded by appellants’ counsel was objected to by the district attorney or prohibited by the trial court. It was established that the prospective juror had served as a juror three years earlier and had been selected in only one criminal case which had gone to completion. The venireman further indicated that he would be able to evaluate the instant case fairly and impartially without regard to his previous experience.

      . If we were required to consider this contention, we would nevertheless reject it. "A trial judge is not bound to impose similar sentences on all participants of a crime .... Disparity of sentences is permissible when facts exist to warrant the unequal sentences.... When rational support exists to justify the different treatment, there is no denial of equal protection.” Commonwealth v. Parry, 306 Pa.Super. 390, 395, 452 A.2d 781, 783 (1982) (citations omitted). Curry, who had pleaded guilty to third degree murder and criminal conspiracy, testified' at his co-conspirators' trials on behalf of the Commonwealth. He had not participated in any act of aggression against the victim but had remained in the getaway car parked several blocks from the actual crime scene. Curry’s less culpable conduct, together with his remorse and cooperation with law enforcement agencies, differed sharply from appellant’s conduct. The trial court did not abuse its discretion in imposing a more severe sentence on William Fields.


author: McEWEN, Judge:

text:
    464 A.2d 384
    COMMONWEALTH of Pennsylvania v. Raymond Carl KRESGE, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 3, 1983.
    Filed July 29, 1983.
    Petition for Allowance of Appeal Denied Feb. 7, 1984.

      Arthur Lucian Zulick, Assistant Public Defender, Stroudsburg, for appellant.
    Elmer D. Christine, Jr., Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before McEWEN, MONTGOMERY and HOFFMAN, JJ.
   McEWEN, Judge:

This appeal has been taken from an order denying a pretrial motion to quash, on double jeopardy grounds, an information that charged appellant, Raymond Carl Kresge, with unlicensed possession of a firearm. Appellant contends that the provisions of 18 Pa.C.S.A. § 110 bar his prosecution on the firearms offense since it arose out of the same criminal episode as did his citation for a summary game law offense upon which he had previously entered an acknowledgment of guilt and paid a fine to a district game protector. We disagree and affirm the order of the distinguished Senior Judge Arlington W. Williams.

On the evening of November 1, 1980, two Pennsylvania game protection officers observed appellant on two occasions direct a spotlight from the passenger seat of a vehicle into woodlands and fields adjacent to Weir Mountain Road in Ross Township. On one of these occasions the game protectors observed the spotlight illuminate deer in the field near the road. As a result, the officers followed the vehicle until the driver of the automobile, Donald Kresge, without being signaled to do so, brought his vehicle to a stop. Deputy protector William Heil approached the vehicle and questioned appellant as to the number of deer he had observed while casting the spotlight into the field and, after completing a consensual inspection of the trunk of the car, observed the stock of a rifle under the driver’s seat of the car, and pulled it out of its position. Robert Heil, also a deputy game protector and the partner of protector William Heil, then observed, from his position on the opposite side of the car, a holstered .22 calibre revolver on the floor of the passenger side of the car where appellant was seated and he immediately seized it. William Heil then informed both appellant and the driver of the car that they were in violation of the game law.

The revolver was subsequently delivered by the officers to their supervisor, the district game protector, who transferred custody of the weapon to the Pennsylvania State Police for investigation. Appellant, ten days after the incident, met with the district game protector at the State Police Barracks where he (1) admitted to the State Police that he lacked a license for such a weapon and (2) signed an acknowledgement of his guilt of the game law violation, paid a fine of two hundred dollars to the district game protector and received an official statement of satisfaction for the offense, pursuant to the provisions of 34 P.S. § 1311.1203. The state police, however, did not file a complaint against appellant for possession of a firearm without a license, 18 Pa.C.S.A. § 6109, until December 18, 1980, after they had received a certification from Harrisburg that confirmed that appellant did not possess a license to carry a firearm. After his arraignment on the firearms violation, appellant filed a pretrial motion to quash the information on double jeopardy grounds arguing that 18 Pa.C.S.A. § 110 barred his prosecution of the firearms offense as a result of the former prosecution on the game law offense. The Common Pleas Court denied the motion to quash by order dated April 8, 1981, from which appellant has taken this appeal.

The sole issue for our determination is whether, under the provisions of § 110 of the Crimes Code, 18 Pa.C.S.A. § 110, the prior conviction of appellant of the summary offense of casting rays of artificial light upon a big game animal while in possession of a firearm, a violation of 34 P.S. § 1311.704(b) of the Pennsylvania Game Law, bars his subsequent prosecution upon the firearms charge since the firearms charge arose out of the same criminal episode as the summary game law offense.

Section 110 of the Crimes in pertinent part provides as follows:

§ 110. When prosecution barred by former prosecution for different offense .

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or
(iii) the same conduct, unless:
(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
(B) the second offense was not consummated when the former trial began.

18 Pa.C.S.A. § 110.

Appellant argues that § 110(l)(ii) bars his prosecution on the charge of possession of a firearm without a license since (1) the subsequent prosecution upon the weapons charge was based on the same conduct or arose out of the same criminal episode as did the summary game law offense; (2) the appropriate prosecuting officer, here, the State Police, knew of the firearms violation at the time appellant acknowledged his guilt of the summary game law offense; and (3) both offenses were within the jurisdiction of a single court, namely, the Court of Common Pleas of Monroe County. Although the argument of appellant is compelling, we are unable to agree with his contention that § 110 bars his prosecution of the weapons charge. The Pennsylvania Supreme Court recently interpreted § 110(l)(ii) to exclude from its purview the disposition of summary traffic violations under the Motor Vehicle Code. Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983). Accord, Commonwealth v. Breitegan, 500 Pa. 384, 456 A.2d 1340, 1341 (1983). The Court further recognized in those cases that the compulsory joinder rule established by Campana does not apply to summary traffic violations. Justice Robert N.C. Nix, writing for the majority of the Court in Beatty, indicated that since the summary traffic offense was within the original jurisdiction of the district justice, while the aggravated assault charge was within the original jurisdiction of the Common Pleas Court, the jurisdiction of both offenses was not “within the jurisdiction of a single court,” as required by § 110(l)(ii). The majority refused to “construe the phrase ‘within the jurisdiction of a single court’ in such a manner as to ignore the traditional division of labor in our court system” and noted that “the traditional role of the Courts of Common Pleas in the disposition of summary motor vehicle offenses is the role of a reviewing tribunal as opposed to a court of original jurisdiction.” Beatty, supra 500 Pa. at 290 n. 3, 455 A.2d at 1198 n. 3. Justice Nix went on to state that, “[t]he disposition of a summary offense in a traffic matter prior to the trial of a misdemeanor or a felony does not present the type of governmental harassment of a defendant that would offend double jeopardy concerns. Additionally, judicial economy is not served by requiring our Courts of Common Pleas to dispose of these matters which are regularly entrusted to the District Justices for disposition. It is fundamental that a rule of law should not be applied where its application fails to serve the purpose for which it was designed.” (citations omitted). Commonwealth v. Beatty, supra 500 Pa. at 291, 455 A.2d at 1198. We are here faced with a prior summary game law offense which is quite regularly entrusted to a non-judicial game protection officer for disposition. Thus, we believe it appropriate that we apply the Beatty rationale to the disposition of summary game law offenses, as well as to traffic matters, since the method of disposition of game law violations bears significant resemblance to the method of disposition of summary traffic violations. See 34 P.S. § 1311.1201-1202. A fortiori, we conclude that the disposition of a summary game law violation prior to the trial of a misdemeanor or felony arising out of the same episode, does not violate the provisions of the compulsory joinder rule set forth in Commonwealth v. Campana, II, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), or the provisions of § 110 of the Crimes Code. The compulsory joinder rule set forth in Campana and the provisions of § 110 were designed to promote two distinct policy considerations (1) the protection of a person accused of crimes from governmental harassment by being forced to undergo successive trials for offenses stemming from the same criminal episode; and (2) as a matter of judicial administration and economy, the promotion of finality in litigation and the avoidance of unnecessarily burdening the judicial process by repetitious litigation. Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983). An interpretation that would enable appellant to escape prosecution for the more serious firearms violation, by the payment of a fine for a summary game law violation, would ridicule reason and defy the logic and purpose of the principles that have been established in this area of the law by both judicial and legislative edict.

Order affirmed.

      . 18 Pa.C.S.A. § 6109.

      . § 1311.1203 Acknowledgement of guilt
      Any person charged .with violating any provisions of this act, other than those designated as a misdemeanor or a felony, may sign an acknowledgment of the offense committed, either before or after the beginning of suit, and pay to any duly appointed and commissioned game protector, or deputy game protector, the fine provided by this act, together with costs accruing to the date, and surrender to the Commonwealth any bird or animal, or part thereof, or any article, implement, device or equipment the use of which is expressly forbidden by this act, unlawfully taken or possessed. Such person shall receive a printed receipt therefor, which shall bear the imprint of the seal of the commission and the signature of its executive director, which shall be evidence of full satisfaction of the offense committed, except as otherwise provided in this act.
      34 P.S. § 1311.1203.

      . An order denying a pre-trial motion to quash an information on double jeopardy grounds is final and immediately appealable. See Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977); Commonwealth v. Lawson, 306 Pa.Super. 414, 452 A.2d 793 (1982).

      . Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).