author: ROWLEY, Judge:

text:
    487 A.2d 973
    COMMONWEALTH of Pennsylvania v. Anthony SHANDS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 2, 1984.
    Filed Jan. 25, 1985.

      James J. DeMarco, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, DEL SOLE and LIPEZ, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is a direct appeal by Anthony Shands from a judgment of sentence imposing IIV2 to 23 months imprisonment following his conviction by a jury on charges of Robbery, Theft, Receiving Stolen Property and Criminal Conspiracy. We have concluded that the trial court erred in restricting appellant’s cross-examination of the prosecuting police officers and in failing to require the Commonwealth to make available for inspection the district attorney’s files concerning his investigation of the officers. Therefore, we reverse.

The facts as recited by the trial court in its opinion are as follows:

This is a “Granny Squad” case. On December 16, 1980, in the Concourse of the City of Philadelphia the defendant Anthony Shands, nineteen years old, attempted to take money from the pocket of Officer Flanagan. Officer Flanagan was walking and clothed as an aged derelict. He was a decoy with four back-up officers ready to come to his aid as soon as he gave the signal that he had been robbed. These Granny Squads had been operating in high crime areas in the City of Philadelphia for many months prior to December 16, 1980. Officer Flanagan as a decoy would carry with him a roll of stage money with one or two genuine dollars on top. In this case the defendant was seized by the back-up officers as he held Flanagan’s roll of money in his hand.

The back-up officers assisted Officer Flanagan in the arrest of appellant and they all testified against him at his trial, which commenced on August 4, 1981.

Immediately preceding the trial, appellant’s counsel and the Assistant District Attorney sought a pre-trial ruling regarding the scope of permissible cross-examination of the members of the “Flanagan Squad”. At that time, the officers were under investigation by the United States Attorney for the Eastern District of Pennsylvania, the Philadelphia Police Department and the Philadelphia District Attorney’s Office regarding allegations that, during 1980 and 1981, they had made false arrests, exhibited racial bias, used excessive force and testified falsely in criminal prosecutions of certain persons they had arrested. There was no indication that the investigation involved the charges made against appellant by the squad. Nonetheless, appellant’s counsel requested that he be allowed to cross-examine the arresting officers regarding the ongoing state and federal investigations into other arrests made by them, including the subsequent disposition of certain cases by the Philadelphia District Attorney.

Appellant’s counsel further requested that the District Attorney’s file regarding the ongoing investigation be made available for his review. (August 4, 1981, N.T., pp. 13, 17-18, 25). In response to this request, the Assistant District Attorney stated that he was in the Trial Division of the District Attorney’s Office, which was separate from the Investigation Division, and that he had nothing in his control that had not been provided to defense counsel. In response to defense counsel’s assertion that the files should be submitted to the trial judge, the prosecutor argued that if the court determined that such evidence was irrelevant in the first place, then there was no need for the court to review the investigatory files. (August 4, 1981, N.T. 17-18). The trial court ruled that appellant was “not to delve into any previous cases involving this particular Granny Squad.” (August 4, 1981, N.T. p. 24).

Appellant was convicted by a jury on August 7, 1981 and on June 15, 1982, he was sentenced to two concurrent terms of 11 and xk to 23 months imprisonment. In the interim, on September 9, 1981, the four officers in the Flanagan Squad were indicted by a federal grand jury on charges that they conspired to violate the civil rights of eight named individuals whom they had arrested in a fashion similar to that employed in appellant’s arrest. The District Attorney of Philadelphia cooperated in the federal investigation, and during the investigation, four cases in which the Flanagan Squad officers testified under oath at preliminary hearings held for persons they had arrested were nol prossed by the District Attorney. One week before the federal indictments were handed down, the District Attorney publically stated that he was convinced that at least four persons who had been accused by the squad were telling the truth when they denied the charges.

Thereafter, on February 11, 1982, Judge Richard B. Klein of the Philadelphia Court of Common Pleas entered an order holding that approximately twenty-five open cases involving arrests and prosecutions initiated by the Flanagan Squad would be dismissed unless the Commonwealth agreed to advise the trier of fact of, inter alia, the circumstances of the federal investigation and the action taken by the District Attorney in nol prossing four of the prosecutions.

On appeal, appellant claims that the trial court abused its discretion in limiting his counsel’s cross-examination of the police witnesses concerning the criminal investigation of their Granny Squad operation. Appellant argues that he had a right to show, by cross-examination, that the witnesses called to testify against him were biased or had an interest in the outcome of the trial. The trial court, relying on Commonwealth v. Cragle, 281 Pa.Super. 434, 422 A.2d 547 (1980), determined that the prosecuting officers could not be impeached by evidence of criminal activities for which they had not been convicted. We find that Cragle is distinguishable from the instant case and that appellant’s cross-examination of the police witnesses who testified against him was improperly restricted.

There are a multitude of ways to attack the credibility of a witness. See McCormick on Evidence § 33 at 72-73 (3d ed. 1984). In Cragle, defendant’s counsel, employing one method, attempted to impeach a Commonwealth witness’s character for truthfulness by showing that the witness had received stolen goods in the past and made a practice of handling stolen goods. However, the witness had not been convicted of the particular criminal activities referred to by defense counsel. Accordingly, our court determined that the trial court properly restricted defense counsel’s cross-examination regarding the witness’s alleged handling of stolen goods. Our court observed that, as a general rule, a witness must be convicted of an offense in the nature of crimen falsi before such evidence is relevant and admissible to impeach the witness’s character; otherwise, admission of such evidence would constitute reliance on a hearsay assertion of guilt. Commonwealth v. Cragle, 281 Pa.Super. at 437, 422 A.2d at 549. See Commonwealth v. Taylor, 475 Pa. 564, 381 A.2d 418 (1977). However, attempting to introduce evidence of prior misconduct, for which there has been no criminal conviction, to impeach a witness’s general character for truthfulness differs from attempting to introduce such evidence to show that a witness is biased or motivated by self interest in a particular case. See Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110 (1974).

“A defendant’s right of confrontation includes the right to cross-examine witnesses about possible motives to testify.” Commonwealth v. Dawson, 486 Pa. 321, 405 A.2d 1230 (1979). A party against whom a witness is called has the right to show that the witness has an interest, direct or collateral, to the result of the trial. Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968). That right may not be abridged because incidentally facts may be developed that are prejudicial to the other party. Id., 429 Pa. at 203, 239 A.2d at 296. As stated by the United States Supreme Court in Davis v. Alaska, supra:

The introduction of evidence of a prior crime is ... a general attack on the credibility of the witness. A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is “always relevant as discrediting the witness and affecting the weight of his testimony.”

415 U.S. at 316, 94 S.Ct. at 1110 (citation omitted). In Davis, the Court held that the defendant’s right of confrontation was abridged by the disallowance of cross-examination of the prosecution’s witness regarding his adjudication as a juvenile delinquent, the fact that he was on probation when he testified, and that he was a possible suspect in the burglary for which the defendant was being tried.

In Commonwealth v. Dawson, supra, the defendant sought to cross-examine the detective who took his inculpa-tory statement following arrest in order to show that the detective had a motive to testify falsely. Specifically, the defendant proposed to show that the detective beat him prior to interrogation and that disciplinary action was taken against the detective as a result of the detective’s conduct. Our Supreme Court held that the trial court’s refusal to permit questioning on these matters was improper. The court determined that such evidence was relevant since the defendant’s alleged misconduct may have motivated him to testify falsely in order to ingratiate himself with his superiors. The court also noted that the disciplinary action taken against the detective may have motivated him to fabricate the defendant’s confession or otherwise testify falsely.

In the instant case, at the time of appellant’s motion to allow cross-examination concerning the criminal investigation, there was some evidence to indicate that the District Attorney himself had determined that certain prosecutions initiated by the squad were unfounded in other similar cases. Moreover, the Philadelphia Police Department and the District Attorney’s office were cooperating in the federal investigation, and the Flanagan Squad had been removed from street duty a little over a month after appellant’s arrest. Under these circumstances, we find that appellant was entitled to question the police officers who testified against him in order to explore possible motives they may have had to testify falsely. The jury should have been presented with a full and accurate picture of the possible motives or biases that may have led the officers to give false testimony, especially where the prosecutor himself doubted the veracity of the officers’ testimony in other similar cases. See Commonwealth v. Dawson, supra; Commonwealth v. Sullivan, 485 Pa. 392, 402 A.2d 1019 (1979) (trial court erred in denying appellant the right to cross-examine police officer concerning his suspension from the police force following incident that resulted in appellant’s arrest); United States v. Miles, 480 F.2d 1215 (2nd Cir.1973) (defendant was properly permitted to cross-examine government’s detective about charges pending against him and suspension from the police department, where the detective may have been motivated to testify against defendant in order to ingratiate himself with his superiors). The error of the trial judge cannot be deemed harmless beyond a reasonable doubt since these officers were the only witnesses called by the Commonwealth to establish appellant’s guilt. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978); Commonwealth v. Joines, 264 Pa.Super. 281, 399 A.2d 776 (1979).

In addition, we find that it was the obligation of the district attorney to reveal the substance of the investigation, and any reasons he had to doubt the veracity of these witnesses, to the court prior to trial. Appellant’s counsel requested that he be allowed to examine the district attorney’s files in connection with the investigation of the squad. The Assistant District Attorney who handled this case, however, indicated that he was unable to provide appellant’s counsel with information regarding the criminal investigation. The prosecutor further stated that even if he had access to the investigatory files, defense counsel was not entitled to review them because the contents were irrelevant to appellant’s case. Although the prosecutor indicated that defense counsel would be informed of the identity of the person who he should contact at the District Attorney’s office regarding the files, there is no indication in the record that the requested information was made available to defense counsel. Furthermore, the trial judge did not review the files to determine whether they contained information that may have been material and relevant to the issue of the officers’ credibility; rather, the trial judge ruled that appellant was not to cross-examine the Commonwealth’s witnesses regarding previous cases involving the Flanagan Squad.

The prosecutor’s failure to disclose evidence favorable to the accused, if it existed, violates a defendant’s right to a fair trial mandated by due process, if the evidence is material to the guilt or punishment of the defendant. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The prosecutor’s duty is to seek justice, not merely to convict. Where, as here, a request was made for specific information, i.e., the file on the investigation of the officers who were to testify against the defendant, the defendant was at least entitled to a court inspection of those files to determine whether the evidence contained therein, “might have affected the outcome of the trial.” United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976); Commonwealth v. Rose, 483 Pa. 382, 396, 396 A.2d 1221, 1228 (1979). See Commonwealth v. Watson, 276 Pa.Super. 606, 419 A.2d 623 (1980). Appellant’s counsel had “some reason” to believe that the inspection would lead to the discovery of evidence favorable to the defense. Commonwealth v. Watson, 276 Pa.Super. at 612, 419 A.2d at 626. He indicated to the trial court that he believed the files would reveal evidence that these officers testified falsely in other Granny Squad cases and that, in some cases in which these officers testified at preliminary hearings, the District Attorney had nol prossed charges. Defense counsel also indicated that appellant’s arrest occurred around the same time as the alleged false arrests that were under investigation. Under these circumstances, it was for the trial judge to determine whether the defendant was entitled to review the specific requested information, not the prosecutor. See Commonwealth v. Wallace, 500 Pa. 270, 280, 455 A.2d 1187, 1192 (1983); compare Commonwealth v. Watson, supra (defendant not entitled to a court inspection of Commonwealth’s investigatory files where he failed to offer grounds for the court to question the Commonwealth’s representation that the particular statements requested contained no exculpatory information).

The prosecutor’s assertion that he was in the Trial Division and, thus, he was not privy to information in the separate Investigation Division is insufficient justification for failing to, at least, provide the files for review by the trial court. The prosecutor’s office is an entity and knowledge of one member of the office must be attributed to the office as a whole. Commonwealth v. Wallace, 500 Pa. at 276, 455 A.2d at 1190.

Our decision is further supported by the principles announced by the United States Supreme Court in Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956). In that case, the defendants were convicted by a jury of engaging in communist activities in violation of the Smith Act. When the case reached the Supreme Court, it was discovered that the Government’s principal witness (a paid informant) at the Mesarosh trial had testified falsely in other proceedings involving the same communist activities. The Government then filed a motion with the Supreme Court describing the incidents of the witness’s false statements in other Smith Act cases. The Government requested that the Court remand the case to the District Court for a hearing regarding the witness’s truthfulness, arguing that it was the Government’s belief that the witness had testified truthfully in the Mesarosh case, despite his false testimony in other similar cases. The defendants’ counter-motion requested a new trial. The Supreme Court determined that remanding the case to the District Court for a hearing regarding the witness’s veracity was inappropriate because it was the jury’s function to decide what it would do based on different evidence. In his opinion for the Court, Chief Justice Warren stated:

The question whether his untruthfulness in these other proceedings constituted perjury or was caused by a psychiatric condition can make no material difference here. Whichever explanation might be found to be correct in this regard, Mazzei’s credibility has been wholly discredited by the disclosures of the Solicitor General. No other conclusion is possible. The dignity of the United States Government will not permit the conviction of any person on tainted testimony____ The witness Mazzei was a paid informer of the Government ... It is the Government which now questions the credibility of its own witness because in other proceedings in the same field of activity he gave certain testimony — some parts of it positively established as untrue and other parts of it believed by the Solicitor General to be untrue____ The government of a strong and free nation does not need convictions based upon such testimony. It cannot afford to abide with them. The interests of justice call for a reversal of the judgments below with direction to grant petitioners a new trial.

Id. at 9-14. 77 S.Ct. at 5-8. In the instant case, unlike Mesarosh, it was defense counsel who advised the trial judge that these officers were under investigation for making false arrests and testifying falsely in other Granny Squad cases. However, it was also the district attorney’s responsibility to inform the court of these facts. This is not the usual case wherein a defendant requests a new trial on the basis of after-discovered evidence. See Mesarosh, 352 U.S. at 9, 77 S.Ct. at 5. Here, the Flanagan Squad was the focus of a wide-ranging criminal investigation in which the District Attorney cooperated. The District Attorney pub-lically stated that he suspended prosecution in certain Granny Squad cases despite the fact that these officers had sworn, under oath, that robberies had been committed. It was the District Attorney who participated in bringing charges against the Flanagan Squad for their conduct in making arrests similar in character, and contemporaneous in time, to the arrest of appellant. Therefore, the credibility of the Flanagan Squad had been discredited by the District Attorney and the jury was entitled to be advised of that fact.

Moreover, these officers were subsequently indicted by a grand jury on charges that the officers had conspired to violate the civil rights of eight named individuals arrested during the Granny Squad stake outs. The indictments were handed down approximately one month after appellant’s conviction. Under these circumstances, we believe that appellant is entitled to a new trial, at which the jury must be advised of the facts impacting on the credibility of the Commonwealth’s witnesses. Cf. Williams v. United States, 500 F.2d 105 (9th Cir.1974) (new trial granted where narcotics agent who testified against defendant was subsequently convicted of perjury in connection with an investigation that was similar to the investigation of defendant and occurred at the same time); United States v. Chisum, 436 F.2d 645 (9th Cir.1971) (defendant entitled to new trial where narcotics conviction rested on testimony of Government witnesses who were subsequently indicted on charges of perjury in connection with a similar narcotics investigation). United States v. DiBernardo, 552 F.Supp. 1315 (S.D.Fla.1982) (grand jury indictments of distributors of sexually explicit materials were dismissed because the indictments were based upon testimony of FBI agent who was subsequently found to have perjurious propensities).

In addition, in cases tried after the officers’ were indicted, the Commonwealth was directed to make known to the trier of fact all relevant evidence bearing on the credibility of these officers, for example, that the District Attorney had nol prossed four cases despite sworn statements by the officers that they had been robbed, and that the District Attorney’s office had cooperated in the federal investigation of the Flanagan Squad. This is the very same type of information appellant sought to present at his trial but was precluded from doing so by the court’s ruling.

We conclude that the trial court erred in limiting appellant’s cross-examination of the Flanagan Squad regarding the circumstances surrounding the federal investigation. Furthermore, we find that the trial court should have been provided with the Commonwealth’s files so that it could have been determined whether any information contained therein was material to the officers’ credibility and, thus, subject to discovery.

Accordingly, the judgment of sentence is reversed and the case is remanded for a new trial.

Jurisdiction relinquished.

      . Appellant was initially sentenced on May 20, 1982, to two concurrent terms of 3 and Vi to 7 years imprisonment. However, appellant’s pro se petition for reconsideration of sentence was granted and he was subsequently sentenced to the reduced term.

      . Because we reverse on this basis, we need not consider the merits of appellant’s other contentions.


source: Caselaw Access Project

license: Public Domain

text:
    487 A.2d 980
    COMMONWEALTH of Pennsylvania v. Wayne HULEHAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1984.
    Filed Jan. 25, 1985.

      Robert E. Levy, Asbury Park, N.J., for appellant.
    Seth Weber, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and HOFFMAN, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is a direct appeal from the judgment of sentence imposed following appellant’s conviction for the sale of obscene materials, 18 Pa.Cons.Stat. § 5903(a)(2). On appeal, appellant presents numerous claims of error. However, after careful review of the record in this case, and consideration of the arguments presented, we affirm.

On February 10, 1981, Detectives William S. Brosha and David P. Stiles, investigators associated with the Bucks County District Attorney’s Office, proceeded to the Bristol News World, located at 576 Route 13 in Bristol Township, Bucks County. Upon their arrival, they observed a single-story commercial building with a number of large windows, through which the interior of the establishment could be seen. The officers entered the building, and observed that the store was divided into several sections. Newspapers, magazines, and other items of general circulation were located in the front area of the store, as was the cashier’s counter. In the rear of the store were display racks and shelves on which had been placed numerous periodicals of a sexual nature. Projection booths had also been placed in this area. Dividing the front and rear sections of the store was a swinging gate. Positioned on the gate was a sign stating that only persons twenty-one years of age or older were permitted beyond that point, and referring to the presence of “adult” materials therein.

After browsing through the store for approximately 10 minutes, Detective Brosha selected a magazine entitled “Staghorn, Volume no. 1,” which depicted sexual acts between males. Taking the magazine to the cash register counter, Detective Brosha purchased it from appellant, and the officers left.

The next day the officers returned to the Bristol News World, and executed the warrant they had obtained for appellant’s arrest. Following a non-jury trial before the Honorable William Hart Bufe, III, on June 1, 1982, appellant was convicted of selling obscene materials. Timely post-trial motions for a new trial and in arrest of judgment were denied. This appeal follows.

I. Constitutionality of the Obscenity Statute

Initially, appellant contends that the Pennsylvania obscenity statute is impermissibly vague, in violation of the Fifth Amendment to the United States Constitution. Appellant acknowledges that the Pennsylvania provision mirrors the prevailing standard for obscenity as established by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, reh. denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973), yet urges us to find that this standard is, nonetheless, violative of the federal constitution. This we may not do; the United States Supreme Court is the ultimate arbiter of the federal constitution. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803).

Appellant also maintains that the obscenity provision contravenes Article 1, § 7 of the Pennsylvania Constitution. Article 1, § 7 provides, inter alia, that “[t]he free communication of thoughts and opinion is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.” Emphasizing that “obscenity” is susceptible to varying interpretations, appellant concludes that, in light of this constitutional language, the “more rational” approach is to embrace obscenity within the “any subject” aspect of Article 1, § 7. Accordingly, the Commonwealth’s sole duty would be to prosecute individuals whose conduct is “abuspve] of that liberty,” i.e., those who subject others, without their consent, to this mode of expression, and those who expose minors, who are incapable of giving consent, to obscene materials.

While we recognize that, in interpreting our state constitution, we may provide greater protection to fundamental rights than that mandated by the decisions of the United States Supreme Court, this Court has already decided the question here presented. In entertaining a similar invitation to “set a higher standard for the State of Pennsylvania in obscenity criminal matters,” this Court recently declared,

It is clear to us, and we therefore hold, that Art. I, § 7 of the Pennsylvania Constitution affords no greater protection for the distribution and sale of obscene materials than do the First and Fourteenth Amendments to the United States Constitution.

Commonwealth v. Croll, 331 Pa.Super. 107, 114, 480 A.2d 266, 269 (1984). See also, American Booksellers Assoc., Inc., v. Rendell, 332 Pa.Super. 537, 565, 481 A.2d 919, 933 (1984).

II. Amendment of the Information

By criminal complaint dated February 11, 1981, Officer Brosha charged that appellant

did ... sell, offer to sell, or show obscene materials to [him, ... an] individual [ ] over the age of 17, knowning [sic] the obscene character of the materials involved, as defined in the Pennsylvania Crimes Code, 18 P.C.S.A. Section 5903(a)(2).

Following a preliminary hearing, an information, No. 1290/81, was filed. The information omitted, however, the phrase “knowing the obscene character of the materials.” Pre-trial motions averring, inter alia, that the information should be quashed and the complaint dismissed because of this allegedly fatal omission, and the information’s failure to specify the magazine sold by appellant, were filed. A hearing on these motions was then scheduled for July 22, 1981.

In the interim, on June 25, 1981, the Commonwealth filed an amended information, at No. 1290-01/81, which added the phrase “knowing the obscene character of the materials involved.” Following the scheduled hearing, the trial court, by order dated August 11, 1981, denied appellant’s motion to quash the information and dismiss the complaint, without reference to the alleged defects in the information. Subsequently, on September 10, 1981, the Commonwealth filed a second amended information, at No. 1290-02/81, which alleged that the appellant

did, knowing the obscene character of the material involved, sell obscene material, a magazine entitled “Stag-horn” volume number 1, to a person more than 17 years of age ...

Due process requires that a criminal information be certain, free from ambiguity, and specific as to the crime alleged, to facilitate preparation of a defense and to avoid multiple prosecutions. Appellant finds within the amendments to the information here a denial of due process. Specifically, appellant claims that no crime was alleged in the original information, given the Commonwealth’s failure to aver the requisite mental state; an obscenity conviction may not be obtained solely on the basis of an individual’s conduct. Furthermore, the original information’s failure to identify the item sold precluded his effective preparation of a defense, appellant contends.

Designed to address these same due process concerns, by insuring that an accused is fully appraised of the charges against him, and by prohibiting the last-minute addition of criminal acts of which an accused may be unaware, Pennsylvania Rule of Criminal Procedure 229 states,

The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense ...

See Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979), aff’d, 498 Pa. 326, 446 A.2d 583 (1982). In Stanley, the considerations relevant to disposition of a Rule 229 claim were reviewed.

[Tjhe courts of this Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted.

Id., 265 Pa.Superior Ct. at 212-213, 401 A.2d at 1175. (Footnotes omitted.) In reviewing the validity of criminal pleadings, then, we look more to substantial justice than to technicalities. Commonwealth v. Rolinski, 267 Pa.Super. 119, 406 A.2d 763 (1979). Thus, although the addition of the scienter element here may have been a substantive change, substantive changes have been permitted where the defendant has been thoroughly informed of the underlying events giving rise to the charges and is, thus, not prejudiced by the amendment. For example, in an analogous situation, the information charged the defendant with theft by unlawful taking or disposition of a tractor trailer and its cargo. Commonwealth v. Casuccio, 308 Pa.Super. 450, 454 A.2d 621 (1982). Although the original information did not aver that the defendant had taken the trailer “with the intent to deprive the owner thereof,” the Commonwealth was permitted to amend the information, prior to trial, to include this phrase. In affirming the trial court’s decision to permit the amendment, we noted that the addition of language describing the scienter element did not amount to charging the accused with an additional or different offense, particularly since he knew that he was charged with unlawfully removing the tractor-trailer. Id., 308 Pa.Superior Ct. at 461, 454 A.2d at 626.

Similarly, the subsequent inclusion of the element of “knowledge” under the obscenity statute, and the name of the magazine in question, does not result in the allegation of a different or additional offense. By virtue of the complaint, the validity of which has gone unchallenged, delivered to appellant at the preliminary arraignment, See Pa.R.Crim.P. 140, appellant was charged with an unlawful sale under the obscenity statute. In addition, Detective Brosha’s affidavit in support of the complaint clearly identified the magazine purchased from appellant. Moreover, counsel for appellant participated in the March 23, 1981 preliminary hearing at which the magazine was presented, and according to the docket transcript, Detective Brosha was sworn and testified. Finally, we note that the second amendment to the information was filed approximately nine months before appellant’s trial began, and that, during his cross-examination of Detective Brosha at trial, defense counsel noted that the charge then present before the court was basically the same as that set out in the criminal complaint. Accordingly, appellant cannot be said to have been prejudiced in any sense by the Commonwealth’s actions in twice amending the information.

III. Pre-Trial Review of Challenged Materials

Appellant next argues that Judge Rufe should have independently examined “Staghorn, Volume no. 1” prior to trial, to determine whether the magazine contained representations of “ultimate sexual acts” or “lewd exhibition of the genitals.” 18 Pa.Cons.Stat. § 5903(b). We find, however, no authority for the proposition that a trial judge must review assertedly obscene materials prior to trial. In any case, we fail to see how appellant has suffered any harm as a result of this alleged error, given that Judge Rufe, sitting as the trier of fact, did examine the magazine prior to entering the verdict.

IV. Sufficiency of the Evidence

Appellant’s challenge to the sufficiency of the evidence is three-fold. Initially, appellant focuses on the Commonwealth’s failure to introduce extrinsic evidence to demonstrate that the magazine appealed to the prurient interest of the average person, lacked serious literary, artistic, political, educational or scientific value, and depicted sexual conduct in a patently offensive manner. Similarly, appellant contests the absence of testimonial evidence delineating contemporary community standards.

The Commonwealth’s case consisted of the testimony of Detective Brosha and one exhibit — the magazine itself. Relying on Commonwealth v. LaLonde, 447 Pa. 364, 288 A.2d 782 (1972) and similar decisions from other jurisdictions, appellant maintains that expert testimony is required in obscenity prosecutions. However, appellant’s position reflects a prior holding of the Pennsylvania Supreme Court; Mr. Justice Eagen’s opinion in Commonwealth v. Rodgers, 459 Pa. 129, 327 A.2d 118 (1974) expressly overruled LaLonde. Similarly, recent decisions of this Court have rejected the suggestion that expert testimony must be presented. In Long v. 130 Market St. Gift & Novelty, 294 Pa.Super. 383, 440 A.2d 517 (1982), we concluded that

printed publications and photographs themselves are enough evidence for a jury, in applying our statewide standard, to determine whether the average person would find the materials appealing to prurient interests.

Id., 294 Pa.Superior Ct. at 393, 440 A.2d at 522. See also, Commonwealth v. Croll, 331 Pa.Super. 107, 480 A.2d 266 (1984). (Commonwealth need not produce expert testimony of statewide community standards.) In light of Rodgers, Long, and Croll, then, we conclude that the Commonwealth need not establish a work’s patent offensiveness or lack of serious value through expert testimony either.

Appellant’s second affront to the Commonwealth’s evidence centers on the nature of the magazine sold to Detective Brosha. Describing “Staghorn, Volume no. 1” as material that “concerns itself with deviant sexual groups and their practices,” appellant reiterates Detective Brosha’s statement at trial that the magazine “was selected from a group ... which depicted sexual acts between males.” Classifying homosexuals as a deviant group, and alleging that the magazine in question was directed toward this group, appellant contends that expert testimony must be produced to establish the publication’s prurient appeal to such a specialized group. In support of this claim, appellant cites Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1971). Therein, Mr. Justice Brennan stated that, where the material is designed for and primarily disseminated to a “clearly defined deviant sexual group,” the prurient appeal component of the obscenity standard may be adjusted to consider the material’s appeal to that group. Mishkin, at 508-509, 86 S.Ct. at 963-964, 16 L.Ed.2d at 61-62. In addition, appellant points out that in Paris Adult Theatre I. v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), the Supreme Court expressly reserved judgment on the need for expert testimony to establish the appeal to prurient interests of “such a bizarre deviant group that the experience of the trier of fact would be plainly inadequate to judge.” Id., at 56, n. 6, 93 S.Ct. at 2634, n. 6, 37 L.Ed.2d 456, n. 6.

Appellant’s argument fails here, however, in that the record does not conclusively demonstrate, as did the record in Mishkin, that the magazine was intended for and primarily disseminated to a “clearly defined sexual group.” In Mishkin, the evidence fully established that each item was specifically conceived and marketed for a particular sexually deviant group. The record in the instant case reveals, however, Detective Brosha’s observation of magazine cover photographs depicting various acts of fellatio and cunnilingus, bondage, and beastiality, within the “adult” section of a store servicing the general public. Although “Staghorn, Volume no. 1” may have been comprised solely of photographs portraying sexual acts between men, we cannot thereby conclude that this magazine’s appeal is limited to a “clearly defined sexual group” or that the erotic representations included therein were designed for and primarily distributed to any particular group.

Furthermore, even were we to find that “Staghorn, Volume no. 1” appeals primarily to the prurient interest in sex of homosexuals, the use of expert testimony would nonetheless not be dictated, in light of the increase in societal awareness and understanding of homosexuality and other sexual preferences in the thirteen years since the Mishkin decision. Based on their own experiences and exposure to literature and other communications discussing sexual practices and attitudes, fact-finders are capable of evaluating the nature of allegedly obscene materials, without the assistance of an “expert.” Indeed, this perspective is reflected in the most recent case in this jurisdiction addressing the need for expert testimony in obscenity cases, Commonwealth v. Rodgers, supra In Rodgers, the books and films at issue contained numerous color photographs graphically depicting acts of heterosexual intercourse, homosexual cunnilingus by two females, various degrees of penetration, cunnilingus, fellatio and sodomy. Nonetheless, the Supreme Court concluded that no extrinsic evidence was required to establish the material’s prurient appeal:

To say the jury need expert help to decide if this material is “obscene” borders on the ridiculous.

Id., 459 Pa. at 136, 327 A.2d at 121.

Appellant’s final claim of insufficiency questions the adequacy of proof concerning his knowledge of the obscene nature of the magazine purchased.

Knowledge or scienter is an essential element in an obscenity conviction. As the statute indicates,

(a) Offenses defined — No person, knowing the obscene character of the materials involved, shall:
Si! * S¡í # * *
(2) sell, lend, distribute, exhibit, give away or show any obscene materials to any person 17 years of age or older

Section (b) then defines “knowing” as:

“Knowing.” As used in subsection (a), knowing means having general knowledge of, or reason to know or a belief or ground for belief which warrants further inspection or inquiry of, the character and content of any material described therein which is reasonably susceptible of examination by the defendant.

18 Pa.Cons.Stat. § 5903.

In reviewing a challenge to the sufficiency of the evidence, all evidence favorable to the Commonwealth must be accepted as true, as must all reasonable inferences which may be drawn from that evidence. Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976).

There is no dispute that appellant did not examine the specific article purchased by Detective Brosha, but that he merely processed the sale, without viewing the contents. Nonetheless, the other evidence of record sufficed to prove beyond a reasonable doubt that appellant had reason to know or to inquire into the obscene nature of the material in question. Appellant was the sole employee seen in the store at the time of the sale, and in Detective Brosha’s words, “was running the store.” (N.T. pp. 30-36) The detective also testified to the pictorial content of the covers of approximately 30-40 magazines displayed in the clearly demarcated “adult” section from which “Staghorn, Volume no. 1” was chosen. Although some of the magazines were wrapped in clear cellophane so that the inside pages could not be viewed, performances of sexual acts were clearly depicted on the covers of the magazines. As noted, the conduct there portrayed included cunnilingus, fellatio, sexual acts with animals, homosexuality and lesbianism. In fact, Detective Brosha could not recall seeing any materials available for purchase in the adult section of the store that did not deal with sexual activities. Finally, after selecting one such magazine, with its sexually explicit cover page, the detective purchased it, handing it to appellant face-up. Thus, we find in the record sufficient evidence of appellant’s knowledge of the magazine’s nature to sustain a conviction. In accord, see Commonwealth v. Croll, 331 Pa.Super. 107, 480 A.2d 266 (1984); Commonwealth v. Doe, 316 Pa.Super. 1, 462 A.2d 762 (1983).

V. Weight of the Evidence

Lastly, appellant contends that the verdict is against the great weight of the evidence. Appellant’s analysis here, however, amounts to a partial reassertion of his attack on the sufficiency of the evidence. Thus, this claim is without merit.

Accordingly, the judgment of sentence is affirmed.

      . Argument on appellant’s pre-trial motions was consolidated with arguments heard in eight other obscenity cases.

      . The order denying the motion to quash refers only to appellant’s contention that the Commonwealth failed to establish a prima facie case at the preliminary hearing.

      . Appellant does not deny receipt of a copy of the complaint at the preliminary arraignment.

      . The Commonwealth had been granted an extension of time under Rule 1100.

      . Appellant also questions the propriety of the "ex parte” amendments to the information. Appellant, was, however, given an opportunity to pursue his objections to the amendments with the trial court prior to trial.

      . Apparently appellant is arguing in the alternative here; previously he contested the failure to produce expert testimony regarding the magazine’s appeal to the prurient interest of the average person.

      . In Mishkin, the defendant was prosecuted for his dominant role in several enterprises engaged in the production and sales of fifty books. The defendant had given detailed instructions to authors and artists to graphically depict sadomasochism, fetishism, and homosexuality. To be certain that his purpose was fulfilled, the defendant furnished authors with such source materials as Caprio, Variations in Sexual Behavior and Krafft-Ebing, Psychopathia Sexualis.

      . We note here merely that Rodgers was decided ten years ago.

      . Specifically, appellant contends that no evidence was presented to establish his knowledge, contemporary community standards or the magazine’s appeal to prurient interests.


author: McEWEN, Judge:

text:
    487 A.2d 987
    FIRST NATIONAL CONSUMER DISCOUNT COMPANY, Appellant, v. Clyde F. FETHERMAN a/k/a Clyde Fetherman and Veronica L. Fetherman, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1984.
    Filed Jan. 25, 1985.

      Howard M. Holmes, Philadelphia, for appellant.
    George M. Painter, III, King of Prussia, for appellees.
    Before McEWEN, DEL SOLE and POPOVICH, JJ.
   McEWEN, Judge:

This is an appeal from a judgment in the sum of $13,800 in favor of appellees and against appellant, which represented liquidated damages awarded pursuant to 42 Pa.C.S. § 8104 and from an order directing that a 1976 judgment against appellees be marked satisfied. Appellant raises three issues for our review:

Whether appellees failed to tender the requisite filing fee under 42 Pa.C.S. § 8104(a)?
Whether appellees failed to request from appellant satisfaction of judgment?
Whether the judgment in question was satisfied by being paid in full, as required by 42 Pa.C.S. § 8104(a)?

We affirm the order directing that the judgment against appellees be marked satisfied but conclude that we must reverse the award of liquidated damages.

In December, 1976, judgment in foreclosure was entered against appellees in the sum of $27,600 plus costs. One of two mortgaged parcels of land was sold at sheriff’s sale for $28,500 in January of 1977. Exceptions to the sheriff’s distribution were filed by two creditors but were subsequently denied. After costs and taxes, the net proceeds from the sale were $26,912.24. No deficiency judgment was sought and appellant did not undertake execution proceedings against the second mortgaged premises.

Appellees sent appellant’s counsel of record a demand for satisfaction of the judgment by letter dated September 19, 1978. Counsel for appellant responded by letter dated September 25, 1978, indicating that an order to mark the judgment satisfied was being filed with the court and also provided appellees with a copy of the order. Judgment was not, however, marked satisfied and after several further demands were made, appellees petitioned the Court of Common Pleas to have the judgment marked satisfied and to be awarded liquidated damages. The parties presented, at a hearing on the petition, evidence in the form of admissions, exhibits and the record of the proceedings of the sheriff’s sale, as well as oral argument. The hearing judge then granted the petition of appellees.

Appellant first claims that the judgment in question was never satisfied since appellant was never paid the full amount of the judgment. Appellant relies on Busy Beaver Building Centers, Inc. v. Tueche, 295 Pa.Super. 504, 442 A.2d 252 (1981), for the proposition that failure to receive the full amount of its judgment requires this Court to find that the judgment was never satisfied. In Busy Beaver, supra, the creditor had a $6,600 judgment against the debtor in Westmoreland County and also held a mortgage for $5,200 on three properties of the debtor in Washington County. The mortgage provided for the release of the properties upon receipt of $1,700 per property. The Washington County judgment was marked satisfied but the Westmoreland County judgment was not marked satisfied and the creditor filed for a writ of revival of the Westmore-land County judgment which was subsequently issued. The debtor then filed suit to have the Westmoreland County judgment marked satisfied, and to be awarded liquidated damages. The underlying debt instrument had not been paid in full, however, and this Court held that the judgment had not been satisfied for the purposes of receiving liquidated damages pursuant to 42 Pa.C.S. § 8104. Id., 295 Pa.Superior Ct. at 505, 442 A.2d at 252-253.

In the instant case, appellant never received the full amount of the judgment because it failed to pursue a deficiency judgment by petitioning the Court of Common Pleas to fix the fair market value of the real property sold at the sheriffs sale within the statutorily prescribed six month period. Section 8103(d) of the Judicial Code, 42 Pa.C.S. § 8103(d), provides as follows:

§ 8103 Deficiency Judgments
$ % $ # >j: $
(d) Action in absence of petition. — If the judgment creditor shall fail to present a petition to fix the fair market value of the real property sold within the time after the sale of such real property provided by section 5522 (relating to six months limitation), the debtor, obli-gor, guarantor or any other person liable directly or indirectly to the judgment creditor for the payment of the debt, or any person interested in any real estate which would, except for the provisions of this section, be bound by the judgment, may file a petition, as a supplementary proceeding in the matter in which the judgment was entered, in the court having jurisdiction, setting forth the fact of the sale, and that no petition has been filed within the time limited by statute after the sale to fix the fair market value of the property sold, whereupon the court, after notice as prescribed by general rule, and being satisfied of such facts, shall direct the clerk to mark the judgment satisfied, released and discharged.

Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 8103(d). Application of 42 Pa.C.S. § 8103(d) to the facts of this case compels the conclusion that the judgment was satisfied as a matter of law at the expiration of the six month period during which appellant could have filed for a deficiency judgment.

Having determined that the learned Judge Oscar S. Bort-ner properly ordered the judgment marked satisfied, we next examine whether appellees are entitled to liquidated damages. The pertinent statute provides:

§ 8104. Duty of judgment creditor to enter satisfaction
(a) General rule. — A judgment creditor who has received satisfaction of any judgment in any tribunal of this Commonwealth shall, at the written request of the judgment debtor, or of anyone interested therein, and tender of the fee for entry of satisfaction, enter satisfaction in the office of the clerk of the court where such judgment is outstanding, which satisfaction shall forever discharge the judgment.
(b) Liquidated damages. — A judgment creditor who shall fail or refuse for more than 30 days after written notice in the manner prescribed by general rules to comply with a request pursuant to subsection (a) shall pay to the judgment debtor as liquidated damages 1% of the original amount of the judgment for each day of delinquency beyond such 30 days, but not less than $250 nor more than 50% of the original amount of the judgment. Such liquidated damages shall be recoverable pursuant to general rules, by supplementary proceedings in the matter in which the judgment was entered.

42 Pa.C.S. § 8104.

We are not persuaded that appellees are entitled, under the circumstances of this case, to liquidated damages. As this Court held in Busy Beaver, supra, “entitlement to damages is dependent upon receipt of satisfaction by the judgment creditor, which in turn requires payment in full of the underlying debt instrument.” Id., 295 Pa.Superior Ct. at 512, 442 A.2d at 256 (emphasis added). Appellees here, however, failed to pay in full the underlying debt instrument. We are, therefore, constrained to reverse the judgment awarding liquidated damages to appellees.

Appellant also claims that appellees failed to request appellant to mark the judgment satisfied and failed to tender the required filing fees. These arguments are without merit. The distinguished hearing judge found and the record clearly establishes that a proper request was made and that appellant waived any objection to the filing fee when counsel for appellant indicated appellant would absorb any filing fee.

Order requiring the judgment against appellees to be marked satisfied is affirmed. Judgment awarding liquidated damages is reversed.


author: CIRILLO, Judge: BECK, Judge,

text:
    487 A.2d 990
    Christina MANCUSO a Minor by Her Parent and Natural Guardian Louise SMITH and Louise Smith Individually and In Her Own Right, Appellant, v. Richard Dennis BRADSHAW and Gary D. Ford and Doris Ford and Friel’s, Inc. d/b/a Friel’s Beverage.
    Superior Court of Pennsylvania.
    Argued June 11, 1984.
    Filed Jan. 25, 1985.
    Petition for Allowance of Appeal Granted Aug. 22, 1985.

      Marshall A. Bernstein, Philadelphia, for appellant.
    Phillip B. Silverman, Philadelphia, for appellee.
    Before CIRILLO, BECK and CERCONE, JJ.
   CIRILLO, Judge:

The present appeal comes from the grant of a motion for summary judgment. There is only one issue: whether a Pennsylvania Liquor Control Board licensee (appellee Friel’s Beverages, Inc.) is liable to a third party (appellant Mancu-so) for injuries caused by a minor drunken driver who was given illegally purchased beer. We hold that under the facts of this case and without a showing that the purchaser was visibly intoxicated at the time of sale, no liability can be attributed to the licensee. We therefore affirm the order of the Court of Common Pleas granting summary judgment for the appellee.

The facts of this case were stipulated for purposes of the summary judgment motion. They are as follows.

For the purpose of this Motion, William Magee (date of birth: August 2, 1961) purchased a case of beer from the defendant, Friel’s Beverages, Inc., on March 6, 1981. Thereafter, approximately two six packs of beer purchased from the defendant, Friel’s Beverages, Inc. were consumed by the defendant, Richard Bradshaw (date of birth: September 16, 1961).
On March 6, 1981, at approximately 9:45 P.M. the defendant, Richard Bradshaw was operating a motor vehicle that was involved in an accident with another motor vehicle operated by the plaintiff, Christina Mancuso. Defendant, Richard Bradshaw was intoxicated and unfit to operate a motor vehicle at the time of the accident in question which caused the injuries sustained by the plaintiff. A breathalyzer test was administered to defendant, Richard Bradshaw, following the accident and revealed a blood alcohol level of .20.
The complaint against the defendant, Friel’s Beverages, Inc., avers that said defendant sold alcohol beverages to a minor and that the sale of these beverages was the proximate cause of the accident. There is no proof that William Magee was visibly intoxicated at all times material to this cause of action.

The Act of May 8, 1854 made it a misdemeanor to furnish intoxicating drinks to “any person of known intemperate habits, to a minor, or to an insane person ... [or] to any person when drunk or intoxicated.” The Act also specifically provided a civil remedy for injuries to persons or property as a result of the furnishing of alcoholic beverages in violation of “any existing law.” That Act was repealed in 1951 and replaced with our modern Liquor Code. See 47 P.S. §§ 1-101 through 9-902. The Liquor Code incorporated the misdemeanor provision of § 1 of the former Act but did not adopt the civil liability provision of § 3 of that Act. The elimination of a civil liability statute did not however, eliminate civil liability for licensees who furnished alcoholic beverages in violation of the law.

The case of Schelin v. Goldberg, 188 Pa.Super. 341, 146 A.2d 648 (1958), was the first case seeking to impose civil liability on a licensee since the repeal of the Act of 1854. In that case, an inebriated bar patron, drunkenly annoying another patron, was struck from behind by that patron. Plaintiff based his theory of liability on the fact that the bartender had violated 47 P.S. § 4-493(1) by serving him alcoholic beverages after he was “visibly intoxicated.” Even though the civil liability provision of the ‘54 Act had been repealed, the court held that “[w]hen an act embodying in express terms a principle of law is repealed by the legislature, then the principle of law as it existed at common law is still in force.” Schelin, supra, 188 Pa.Superior Ct. at 346, 146 A.2d at 651. Applying the Restatement of the Law of Torts § 286, the court allowed recovery under a common law theory. Negligence was established by the violation of § 4-493(1) of the Liquor Code. Since the jury found that that negligence was the proximate cause of the plaintiffs injury, liability was imposed on the defendant licensee.

The next development in licensee liability was the enactment in 1965 of 47 P.S. § 4-497, an amendment to the Liquor Code which specifically limits the liability of licensees to third parties injured by a licensee’s customer.

§ 4-497. Liability of licensees
No licensee shall be liable to third persons on account of damages inflicted upon them off of the licensed premises by customers of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by the said licensee or his agent, servant or employe when the said customer was visibly intoxicated.

The appellee instant, Friel’s Beverages, Inc., relies upon this provision and its interpretation in Simon v. Shirley, 269 Pa.Super. 364, 409 A.2d 1365 (1979) as a complete bar to liability. Appellant contends that Simon is inapplicable because of factual dissimilarities and that § 4-497 is likewise inapplicable to this case because of its unusual fact pattern.

Simon v. Shirley, supra, involved a minor who was served intoxicating beverages in violation of § 4-493(1) of the Liquor Code and subsequently got into an automobile accident which took another motorist’s life. This court held that § 4-497 precluded the extension of liability to the defendant licensee because there wasn’t any evidence that defendant Shirley was visibly intoxicated at the time of the sale.

Appellant admits that Simon was properly decided on its particular facts because Shirley was a customer of the saloon and § 4-497 applies to damage caused “by customers of the licensee.” Appellant would further suggest that § 4-497 was intended to apply only to customers. Bradshaw was not the purchaser of the beer; he obtained it indirectly. Appellant therefore contends that § 4-497 cannot be applied in the instant case where the tortfeaser and the customer are two different people. We disagree. The term “customer” was never intended as a limitation in the way that appellant would construe it. In the trial court’s opinion, the Honorable Domenic D. Jerome said:

It is apparent that defendant Friel’s, Inc., cannot be held liable for the actions of its customer defendant William Magee. Therefore, it naturally follows that defendant Friel’s, Inc., cannot be held liable for personal injuries caused by a minor who became intoxicated from beverages given to him by another minor who was con-cededly not visibly intoxicated when he bought them from defendant Friel’s, Inc.

We find Judge Jerome’s rationale to be precise and complete.

Lastly, appellant raised at argument the recent holding of the Pennsylvania Supreme Court in Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), as indicative of the direction which the law in this area is taking. We recognize that direction and applaud the Supreme Court for taking it. However, Congini dealt with a social host to whom § 4-497 would have been utterly inapplicable. The instant case involves a licensee to whom we have held that § 4-497 does apply. This case is controlled by Simon v. Shirley, supra. We are bound by that precedent.

For the foregoing reasons we affirm the order of the Court of Common Pleas granting defendant Friel’s motion for summary judgment.

Order affirmed.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

I reluctantly agree that the result reached by the majority is compelled by the bare language of 47 P.S. § 4-497 and by Simon v. Shirley, 269 Pa.Super. 364, 409 A.2d 1365 (1979). I write separately to state unequivocally my belief that this result represents a social policy injurious to the commonweal.

The majority finds the recent holding of our supreme court in Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), inapposite because that case involved a social host not covered by section 4-497 of the Liquor Code. While I acknowledge that distinction, I believe the Congini decision is based on certain sound principles which should be made more broadly applicable.

A careful analysis of Congini reveals that the supreme court in that case imposed on social hosts the same standard of liability which appellants argue and I believe should be imposed on licensees. In Congini, the court held that a cause of action could be maintained against a social host who furnished liquor to a minor guest, causing that minor to become intoxicated. There was no evidence that the minor plaintiff was already intoxicated when he arrived at the office party and was served liquor by defendants. Accordingly, the court stated that “defendants were negligent per se in serving alcohol to the point of intoxication to a person less than twenty-one years of age, and defendants can be held liable for injuries proximately resulting from the minor’s intoxication.” 504 Pa. at 162-163, 470 A.2d at 518 (emphasis added). The clear implication of the supreme court’s carefully chosen language is that serving a minor enough alcohol that he will become intoxicated is sufficient to establish liability. It is not necessary to show that the host served additional liquor to a minor who was already intoxicated.

This court followed and applied Congini in Douglas v. Schwenk, 330 Pa.Super. 392, 479 A.2d 608 (1984). We held that “[a] complaint joining the additional defendants [who were social hosts] on the grounds that they ... ‘furnished’ [a minor] alcoholic beverages knowing she was underage, would be driving and would not be able to operate said motor vehicle in a safe manner was sufficient to state a cause of action for which relief could be granted,” 330 Pa.Super. at 397, 479 A.2d at 611.

In Congini, the supreme court explained the basis of its decision in terms of the special treatment of minors in our laws relating to the sale and consumption of liquor. The court noted that sections 6308 and 306 of the Crimes Code, 18 Pa.C.S. §§ 6308 and 306 respectively, make the consumption of alcoholic beverages by minors and the sale or provision of alcoholic beverages to minors criminal offenses. In the court’s view, these statutes reflect “a legislative judgment that persons under twenty-one years of age are incompetent to handle alcohol.” 504 Pa. at 161, 470 A.2d at 517. Applying section 286 of the Restatement, Second, of Torts, the court adopted the statutory standard of conduct set forth in 6308 of the Crimes Code as the standard of conduct of a reasonable person, concluding therefore that “an adult who serves alcoholic beverages to a minor, causing intoxication, is negligent per se and may be held liable for injuries proximately caused by the intoxication.” Note, Social Host Found Negligent per se for Serving Alcoholic Beverages to Intoxicated Minor, 57 Temp.L.Q. 453, 455-56 (1984), paraphrasing Congini, 504 Pa. at 162-163, 470 A.2d at 518. The student commentator’s apt restatement of the court’s language (quoted supra in this opinion at 991) indicates that Congini is clearly understood as basing liability on the serving of sufficient alcohol to a minor to cause the minor to become intoxicated, rather than on serving additional alcohol to an already visibly intoxicated person.

I see no reason from a public policy standpoint why this liability should be imposed on social hosts only and not on licensees. A licensee who serves liquor to a minor violates section 4-493(1) of the Liquor Code, 47 P.S. § 4-493(1), whether or not the minor is already visibly intoxicated. Under section 4-471 of the Liquor Code, 47 P.S. § 4-471, such violations can lead to the suspension or revocation of the liquor license. The combined import of the statutory provisions applicable to ordinary citizens and to licensees is that our legislature has decided that providing any person deemed by the law too young to handle alcohol with the means to become intoxicated is a wrongful act. It is not necessary to show that the host served additional liquor to a minor who was already intoxicated.

We note that the courts of our sister state of New Jersey, acting in the absence of a statute such as 47 P.S. § 4-497, have held that the serving of alcoholic beverages by a tavern-keeper to a minor, without more, can form the basis for imposing civil liability in negligence on the tavern-keeper for harm caused by the minor. See Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959). In Rappaport the New Jersey Supreme Court reasoned that

[w]here a tavern keeper sells alcoholic beverages to a person who is visibly intoxicated or to a person he knows or should know from the circumstances to be a minor, he ought to recognize and foresee the unreasonable risk of harm to others through action of the intoxicated person or the minor.

31 N.J. at 201, 156 A.2d at 8 (emphasis added). With particular reference to minors, the court further observed that “insofar as minors are concerned the sale of the first drink which does ‘its share of the work’ and which generally leads to the others is unequivocally forbidden.” Id., citation omitted.

Rappaport has been described as one of the first in a “new trend” of similar holdings. Felder v. Butler, 292 Md. 174, 176, 438 A.2d 494, 496 (1981) (collecting cases following Rappaport as well as cases in which liability was not imposed).

I endorse the reasoning of the New Jersey court in Rappaport and would adopt it as the law of Pennsylvania were we free to do so. Licensees who wrongfully serve alcoholic beverages to minors should be subject to at least the same liability as social hosts. Although the majority’s disposition of this appeal is technically correct, it is to be regretted that we find ourselves bound by statutes and judicial precedents which are out of step with current social policy priorities.

      . Section 1. Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania in General Assembly met, and it is hereby enacted by the authority of the same, That wilfully furnishing intoxicating drinks by sale, gift or otherwise to any person of known intemperate habits, to a minor, or to an insane person for use as a beverage shall be held and deemed a misdemeanor, and upon conviction thereof the offender shall be fined not less than ten nor more than fifty dollars, and undergo an imprisonment of not less than ten nor more than sixty days and the wilful furnishing of intoxicating drinks as a beverage to any person when drunk or intoxicated shall be deemed a misdemeanor, punishable as aforesaid.
      Act of May 8, 1854, P.L. 663, No. 648, § 1.

      . Section 3. That any person furnishing intoxicating drinks to any other person in violation of any existing law, or of the provisions of this acts, shall be held civilly responsible for any injury to person or property in consequence of such furnishing, and any one aggrieved may recover full damages against such person so furnishing by action on the case, instituted in any court having jurisdiction of such form of action in this Commonwealth.
      Act of May 8, 1854, P.L. 663, No. 648, § 3.

      . § 4-493. Unlawful acts relative to liquor, malt and brewed beverages and licensees
      The term "licensee”, when used in this section, shall mean those persons licensed under the provisions of Article IV, unless the context clearly indicates otherwise.
      It shall be unlawful—
      Furnishing liquor or malt or brewed beverages to certain persons
      (1) For any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits.
      47 P.S. § 4-493(1).

      . § 286. Violations Creating Civil Liability.
      The violation of a legislative enactment by doing a prohibited act, or by failing to do a required act, makes the actor liable for an invasion of an interest of another if:
      (a) the intent of the enactment is exclusively or in part to protect an interest of the other as an individual; and
      (b) the interest invaded is one which the enactment is intended to protect; and
      (c) where the enactment is intended to protect an interest from a particular hazard, the invasion of the interests results from that hazard; and,
      (d) the violation is a legal cause of the invasion, and the other has not so conducted himself as to disable himself from maintaining an action.
      Restatement Torts, § 286.
      The language of this section in the Restatement Second is not significantly different.

      . Section 286 of the Restatement, Second, of Torts provides:
      § 286. When Standard of Conduct Defined by Legislation or Regulation Will Be Adopted The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part
      (a) to protect a class of persons which includes the one whose interest is invaded, and
      (b) to protect the particular interest which is invaded, and
      (c) to protect that interest against the kind of harm which has resulted, and
      (d) to protect that interest against the particular hazard from which the harm results.

        This section has been adopted as the law of Pennsylvania. Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873, 875 (1965).


author: TAMILIA, Judge:

text:
    487 A.2d 995
    ALLEGHENY COUNTY HOUSING AUTHORITY v. Charna L. BERRY, April Coleman Blue, Benita Clark, Eva Clark, Rose Elmore, Rose Hill, Lorraine Hughes, Hattie Mae Lipscomb, Josephine Nichols, Twanda Pirl, Sylvia Pitts, Cheryl Poindexter, Rose Mary Reed, Ronald and Toni Reid, Gwendolyn Rowe, Marie Simmons, Ruth Hazel Thomas, Charlene Walker, Victoria Watts and Alicia White, Appellants.
    Superior Court of Pennsylvania.
    Argued March 1, 1984.
    Filed Jan. 25, 1985.

      Harry M. Montgomery, Jr., Pittsburgh, for appellants.
    Timothy P. O’Brien, Pittsburgh, for appellee.
    Before BROSKY, DEL SOLE and TAMILIA, JJ.
   TAMILIA, Judge:

Appellants appeal from the denial of their motion for certification of their counterclaim as a class action. In their brief, appellants argue the lower court erred in applying an incorrect legal standard requiring appellants/defendants to state a cause of action and to prove the merits of the counterclaim in deciding the motion for class certification.

This case originated when appellee/plaintiff, Allegheny County Housing Authority (ACHA), filed suit against twenty tenants of the Cochrandale Housing Project for rent due and owing under the Pennsylvania Landlord/Tenant Act. The appellants/defendants counterclaimed alleging a class action and claiming they represent all tenants of eighty-three (83) apartments at Cochrandale Project. The basis for the class action was that the apartments were improperly maintained and not fit for habitation.

An earlier class action suit against ACHA was brought in the U.S. District Court on March 14, 1980, alleging civil rights violations and failure to maintain Cochrandale in a habitable condition. A court-approved stipulation was entered May 5, 1980, staying any evictions and providing for rents to be placed in an escrow account, 24 of the tenants participating. On September 6, 1981, the stay was lifted by Judge Barron McCune, who allowed eviction action to be taken against tenants who had not paid their rent in escrow pursuant to the stipulation of May 5,1980. Twenty-three of the twenty-four tenants were behind in their escrow payments and Landlord/Tenant actions were initiated in the Pennsylvania District Magistrate’s courts against thirteen tenants on May 26, 1981, resulting in judgments in favor of ACHA for delinquent rent and possession. These tenants and seven additional appealed to the Allegheny County Court of Common Pleas. Thereupon the appellants filed their answer alleging a class action counterclaim. These were consolidated for trial at G.D. 82-00763. On January 22, 1982, upon appellee’s motion, the Federal case was dismissed without prejudice; all discovery was preserved.

On June 16, 1982, a hearing for class certification was conducted before Judge Silvestri. The court below denied class certification on August 13, 1982 on the basis that common questions of law or fact did not exist. We affirm the findings and Order of the court below.

It is appellants’ contention that once the trial court found there were common questions of fact, the inquiry should have ceased, and secondly, in applying a prima facie test (as to the claim) to the second requirement for class certification (commonality), the trial court applied an incorrect legal standard. Appellants misconstrue the trial court’s analysis and application of law and by creating a presumptive standard of commonality and certification would eliminate the class action “gate” and open the courts to a torrent of class litigation.

Appellants contend the “common question of fact” was that all representatives of the class had a complaint. This is not enough.

The common question of fact means precisely that the facts must be substantially the same so that proof as to one claimant would be proof as to all. This is what gives the class action its legal viability.

If, as here, each question of disputed fact has a different origin, a different manner of proof and to which there are different defenses, we cannot consider them to be common questions of fact within the meaning of Pa.R.C.P. 1702. Ross v. Shawmut Development Corporation, 460 Pa. 328, 333 A.2d 751, 73 A.L.R.3d 847 (1975). Here, in effect, the trial court found the commonality was that a number of Housing Authority residents had verifiable complaints concerning maintenance of their respective apartments. The appellants would have the trial court stop here. This, standing alone, did not constitute the common question of fact intended by Rule 1702(2) necessary to create the basis for a class action as a matter of law.

A fact is not established simply by its allegation, nor is a denial alone sufficient to rebut that allegation. Without more information to determine the etiology of the claims as they relate to the legal responsibility of the Housing Authority, the basis for the class action could not be determined. This required some evidence, not that required to decide the case on its merits, nor to establish a prima facie case to state a cause of action, but evidence sufficient to establish commonality of legal claim. Some explanation in this type of case is essential. “At the certification hearing, the court will have before it the class action allegations in the complaint, the defendants’ answer to these allegations, any depositions or admissions relating to these allegations and any testimony relating to these allegations____” 5 Goodrich Amram 2d § 1707(c)(1), 127. Thus, it appears appellants have confused the elements of proof necessary to establish certification with proof of the merits of the case. Even if that assumption were correct, viewing the record and the rationale of the lower court’s Opinion, this Court believes that the trial court was correct in finding that the ultimate question of commonality was not established by the appellants. See Commonwealth v. Cunningham, 247 Pa.Super. 302, 372 A.2d 473 (1977). The question of commonality appears clear when a significant number of children are born with birth defects when it is established their mothers took a particular medication at a crucial stage of their pregnancies, or when hundreds of people are killed or injured when a walkway collapses in a crowded hotel lobby, or when a savings and loan firm retains an escrow fund without interest to the participants. It is a far more difficult task to establish commonality when disparate, questionable and personal allegations are coalesced in an attempt to establish a common question of fact or law.

In the different circumstances, different levels of evidence are necessary to establish commonality — one requiring less, the other requiring more, the one not indicative of the merits, the other appearing to approach the merits of individual cases. The burden of proof in a class certification proceeding is upon the party seeking certification. Scott v. Adal Corporation, 276 Pa.Super. 459, 419 A.2d 548 (1980); Haft v. U.S. Steel Corporation, 305 Pa.Super. 109, 451 A.2d 445 (1982). There will normally be no common question of fact if the proof for each member would be different. See Ross v. Shawmut, supra and Korn v. Avis-Rent-A-Car System, Inc., 8 Pa.D. & C.3d 655 (1977), aff'd per curiam, 254 Pa.Super. 621, 387 A.2d 119 (1978).

Here, the tenants allege that the common issue of fact or law is the uninhabitability of the dwellings. In each case there would need to be a different proof as to whether the condition was breach by the landlord, tenant negligence, third party vandalism or negligence, or failure by the tenant to give notice of the condition complained of. A careful review of the record and the exhaustive and complete summarization of the testimony and evidence in the Opinion of the trial court, illustrates clearly that the common questions of fact requirement, as tested by the appellee’s rebuttal, failed to establish the burden imposed by Scott v. Adal, supra. To the extent there were common questions of fact, they do not satisfy the requirement of predominance stated in Rule 1708.

Rule 1708, Criteria for Certification, ... provides: ... c) Where both monetary and other relief is sought, the court shall consider all the criteria in both subdivisions (a) and (b).
Pa.R.C.P. 1708(a)(1) provides:
(a)(1) whether common questions of law or fact predominate over any question affecting only individual members, ... (emphasis added) >

Appellants ignore this consideration of Rule 1708 entirely, although it would appear to be critically appropriate to the resolution of these matters. The;; question posed by 1708(a)(1) must be answered in the negative. The common questions of law or fact do not predominate over any question affecting only individual members. This is where Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979) must be considered, as it delineates the test to establish the implied warranty of habitability upon which appellants rely here.

The instant case originated as an eviction proceeding based upon rent retention or withholding by the appellants, which failed because of failure to proceed in a legal manner. Upon the attempt by the appellee to collect or evict for nonpayment of rent, the appellants converted their protest into a class action counterclaim to avoid payment of rent or eviction.

As pointed out in the lower court Opinion, the brief of appellee and court record, there was no basis for rent withholding in any of the cases as the Authority either had corrected the defect in the period required by law, or had not been properly notified of the defect so as to trigger its obligation to repair. Appellants now allege the common fact that appellee failed to suitably maintain the housing in a fit and habitable condition. While it is true the Rent Withholding Act does not abrogate the common law right to pursue other actions as to habitability, Pugh, supra, and the trial court fully recognized this, it nonetheless is important to acknowledge that the issue is habitability and an attempt in some manner to resolve a monetary issue. For this reason, Rule 1708(c) requiring the test prescribed by 1708(a)(1) cannot be ignored.

The appellants state Rules 1708, 1709 detail the means by which the requirements of Rule 1702 should be judged — (4) the representatives will fairly and adequately assert and protect the interests of the class, (5) a class action provides a fair and efficient method for adjudication of the controversy. As such, Rule 1708(a)(1) permits a finding that if a common question of law or fact exists, but does not predominate over questions affecting only individual members, a class action may not be a fair and efficient method of adjudicating the controversy.

If the issue is whether a common question of law or fact is established, despite evidence of individual claims and defenses, the appellants err in refusing to consider that the common question does not predominate over questions affecting only individual members. This is the thrust of appellee’s argument which has been ignored by the appellants — that the claims of the individual members might collectively and superficially appear to be common questions, whereas in reality, they are individual and distinguishable issues which can only be tried separately and thus, are not appropriate for a class certification. In a syllogistic phrase, the common question of fact as a matter of law does not exist, therefore, the fast and efficient method of resolving this dispute, contemplated by a class action, does not exist, ergo, certification as a class action is inappropriate.

Finally, the appellants make too much of the holding in the trial court's Opinion, “There must be evidence which prima facie establishes a claim in order to make a determination of the common questions of fact or law.” Appellants would take this to mean that the trial judge required the showing of a prima facie case stating a cause of action, or evidence on which they could prevail on the merits of the claim. In Piltzer v. Independence Federal Savings and Loan Association of Philadelphia, 456 Pa. 402, 405, 319 A.2d 677, 678 (1974), the Court states:

Whether a suit should proceed as a class action is independent of the question whether plaintiffs have stated a cause of action or whether they can prevail on the merits, (citations omitted).

In that case, the court was ruling on whether or not an appeal would lie from the grant of certification of the class. In finding that an appeal did not lie, the court ruled that the act of certification was interlocutory, not a ruling on the merits of the claim, and not even necessarily a showing of an existence of a cause of action, and therefore, not appeal-able. The court in Piltzer then went on to say:

No statute exists authorizing an appeal from an order permitting a class action to proceed. (See footnote 3 below.)

Id. 319 A.2d at 678. This does not mean that the court would not be required to accept evidence to establish the existence of the class, hence a prima facie showing of that fact.

The lower court properly took testimony and reviewed depositions to determine if the claim of the class action was supported. In doing so, it necessarily had to rely on the substantive law as to habitability, particularly as delineated by Pugh v. Holmes, supra. Pugh was a rent withholding case and the issue there turned on the implied warranty of habitability, which the court found, for the first time, derivative of the findings of Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972), which established a similar implied warranty vis a vis buyers and vendors/builders.

There is no claim if the facts do not warrant a finding that within the parameters of Pugh, breach of the implied warranty of habitability has not occurred. If there is no viable claim, regardless of the number of persons who have a complaint, a class does not exist to be certified.

Pugh provides as follows:

In order to constitute a breach of the warranty the defect must be of a nature and kind which will prevent the use of the dwelling for its intended purpose to provide premises fit for habitation by its dwellers. ... [T]here is no obligation on the part of the landlord to supply a perfect or aesthetically pleasing dwelling. Pugh v. Holmes, [253 Pa.Super. 76], 384 A.2d [1234] at 1240 [1978] [Pa.Superior Court] ‘Materiality of the breach is a question of fact to be decided by the trier of fact on a case-by-case basis.’ Id. ...
... [T]o assert a breach of the implied warranty of habitability, a tenant must prove he or she gave notice to the landlord of the defect or condition, that he (the landlord) had a reasonable opportunity to make the necessary repairs, and that he failed to do so. 253 Pa.Superior Ct. 88, 384 A.2d at 1241.

Pugh, supra, 486 Pa. at 289-290, 405 A.2d at 905.

The appellants would permit evidence of alleged breach to be submitted by the representatives of the class, but would deny the fundamental right to rebut the allegations to test whether or not they, in fact, exist. This was not the intention of Piltzer. If this were the case, in Ross v. Shawmut, supra, the court could not have denied class certification to lessees with option to buy, (as contained in the lease), when evidence was presented at the certification hearing that each lessee had different representations made to him. Nor could the court have sustained the denial of class certification in Korn v. Avis, supra if the defendant in that case was not permitted to refute the claim by showing that each claimant would be required to show an individual contractual basis for his claim. Numerous other cases can be cited to buttress this point.

We believe the trial court adequately considered the relevant evidence, applied the law in an appropriate manner, and cognizant of our limitations on appellate review, we find no basis in law or fact to reverse, as the class proponents have failed to carry their burden establishing the basis for class certification. Janicik v. The Prudential Insurance Company of America, 305 Pa.Super. 120, 451 A.2d 451 (1982).

For the reasons stated in footnote 1, we quash the appeal from the order denying reconsideration at No. 1151 Pittsburgh, 1982. We affirm the order of the court below denying the motion to certify the class.

      . Appellant has appealed from the denial of its motion for reconsideration (No. 1151 Pittsburgh, 1982). We quash that appeal as a motion for reconsideration is not appealable. Boden v. Tompkins, 306 Pa.Super. 494, 452 A.2d 833 (1982). The matters under consideration in this Opinion are contained in appeal No. 01034 Pittsburgh, 1982, which is properly before this Court.

      . Rent Withholding Act, Act of January 24, 1966, P.L. 1534, as amended, 35 P.S. § 1700-1 (1977).

      . Footnote 3 to the above quote cites the following:
      3£.g., Act of February 14, 1866, P.L. 28 § 1, 12 P.S. § 1101 (1953); Act of June 12, 1879, P.L. 177, § 1, 12 P.S. § 1102 (1953). See generally Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, art. V, § 501(a), 17 P.S. § 211.501(a) (Supp.1973).

        Piltzer, supra 319 A.2d at 678.