author: CERCONE, Judge:

text:
    596 A.2d 222
    COMMONWEALTH of Pennsylvania v. John TAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 16, 1991.
    Filed Sept. 4, 1991.

      Peter E. Horne, New Castle, for appellant.
    William M. Panella, Dist. Atty., New Castle, for Com., appellee.
    Before CAVANAUGH, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Lawrence County on August 21, 1990. For the following reasons, we affirm.

Appellant, John Taylor, was charged with one count of possession of a controlled substance and one count of possession of a controlled substance with intent to deliver. The charges against appellant stem from a drug transaction involving himself and confidential informant, Edward Mazur. Mazur twice purchased controlled substances from appellant. A jury convicted appellant on the two counts. Appellant filed post-trial motions which were denied, and this timely appeal followed. The issues raised on appeal are as follows:

1. whether the trial court erred by improperly limiting the cross-examination of Edward Mazur, an informant and key Commonwealth witness;
2. whether the trial court erred by prohibiting the jury to again listen, during deliberation, to tape-recorded conversations by electronic surveillance between the defendant and the Commonwealth’s confidential informant;
3. whether the trial court erred in refusing the appellant’s petition for a writ of habeas corpus when only the prosecuting police officer testified at the defendant’s preliminary hearing and offered hearsay testimony to meet the Commonwealth’s burden of establishing a prima facie case.

Appellant first argues that he should be granted a new trial because the lower court erred in limiting the cross-examination of the Commonwealth’s confidential informant, Edward Mazur. Appellant contends that the trial court should have permitted him to cross-examine Mazur regarding potential bias in favor of the Commonwealth stemming from an outstanding bench warrant for Mazur’s arrest which was dismissed during the time period between appellant’s arrest and his trial. The trial court prohibited this line of questioning because it found that the charges against Mazur were eventually dismissed at a preliminary hearing when the complaining party failed to appear. Lower court opinion 10/8/90 at 2.

This court has previously found that defense counsel may cross-examine a prosecution witness on possible favorable treatment received from the Commonwealth. Commonwealth v. Blassingale, 391 Pa.Super. 395, 400, 571 A.2d 426, 429 (1990). It is reversible error not to allow this type of cross-examination, but harmless error if it did not control the outcome of the case. Id,., 391 Pa.Superior Ct. at 401, 571 A.2d at 429. In Blassingale, supra, the defendant wished to cross-examine the Commonwealth’s witness with regard to criminal charges that had been brought against the witness and which the Commonwealth withdrew prior to his testimony at trial, but during the period of his cooperation in the prosecution of the trial. In Blassingale, we held that where the charges against the witness were ultimately withdrawn because the victims in the criminal cases failed to appear, the Commonwealth had no control over the actions, and therefore such cross-examination was not necessary. Id. Thus, we found no inference of a deal between the Commonwealth and the witness to justify cross-examination for bias.

Instantly, we have before us a similar situation. During the period between appellant’s arrest and trial, the Commonwealth dismissed charges against the informant, Edward Mazur. The trial judge concluded that the charges were dropped because the complainants failed to appear at the preliminary hearing. In accordance with our holding in Blassingale, we find that it was not error for the trial court to exclude this line of inquiry.

In his second argument, appellant alleges that he is entitled to a new trial because the lower court erred in refusing a jury request to listen to a tape recorded conversation of the exchange between appellant and the Commonwealth informant, after the jury began its deliberation. Appellant argues that the trial judge abused his discretion in failing to allow this request because neither appellant’s counsel nor the Commonwealth attorney objected to the jury’s request. The trial judge concluded that he feared replay of the tape would tend to emphasize the recorded statements over other evidence in the case and would therefore be improper. Lower Court Opinion 10/8/90 at 3.

Decisions as to what exhibits may be taken out by the jury are within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Commonwealth v. Thomas, 372 Pa.Super. 349, 363, 539 A.2d 829, 836 (1988). To establish an abuse of discretion, appellant must show that the trial court disregarded or misapplied the law or that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record. Id., 372 Pa.Superior Ct. at-, 539 A.2d at 837.

In Commonwealth v. Hall, 523 Pa. 75, 565 A.2d 144 (1989), our supreme court held that it was not an abuse of discretion for the trial court, in that case, to send tape recorded statements with the jury in their deliberations because the record was devoid of evidence demonstrating that the use of such recorded statements could circumvent the rule that prohibits the jury from having any trial transcripts during deliberations. The court, however, discouraged such a practice because of the potential for abuse. Id., 523 Pa. at 83, 565 A.2d at 148.

Instantly, we find no abuse of discretion in not allowing the jury to replay the tape recorded conversation between appellant and the informant. The trial judge indicated that the quality of the reproduction was poor, and that he did not wish the jury to emphasize that piece of evidence over the other evidence presented. We find these reasons sufficient to reject the jury’s request. See also Commonwealth v. Reed, 268 Pa.Super. 240, 407 A.2d 1335 (1979) (re-reading of victim’s testimony was unnecessary and potentially prejudicial to appellant because it might seemingly place undue emphasis on the victim’s testimony).

In his last argument, appellant contends that judgment of sentence should be vacated because the evidence was insufficient at the preliminary hearing to hold him over for trial. At that hearing, Officer William T. Chiappini, the investigating officer, testified to a conversation between appellant and informant Edward Mazur. This hearsay testimony was the only testimony offered at the preliminary hearing. Appellant was held over for trial based on this hearsay testimony. He subsequently filed a pre-trial omnibus motion requesting, inter alia, habeas corpus relief based on the lack of evidence at the preliminary hearing. This motion was denied and appellant proceeded to trial.

A preliminary hearing seeks to prevent a person from being imprisoned or required to enter bail for a crime which was never committed or for a crime with which there is no evidence of his connection. Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 416, 581 A.2d 172, 173 (1990) (plurality opinion). In Verbonitz, supra, the only evidence admitted at the preliminary hearing was the hearsay testimony of the investigating officer, who recounted the alleged criminal incident as told to him by the victim. Id., 525 Pa. at 415-16, 581 A.2d at 173. Our supreme court held that the United States and Pennsylvania Constitutions’ right to confrontation of witnesses requires more than hearsay testimony to hold a defendant over for trial. Id., 525 Pa. at 417-18, 581 A.2d at 174.

Appellant relies on our supreme court’s decision in Verbonitz, supra, to arrest judgment because the only evidence presented at his preliminary hearing was the hearsay testimony of the prosecuting officer. Our supreme court, however, has also made clear that “if in fact it is determined at trial that the evidence of the Commonwealth is sufficient to be submitted to the jury, then any deficiency in the presentation [of the preliminary hearing] would have been harmless.” Commonwealth v. Hess, 489 Pa. 580, 590, 414 A.2d 1043, 1048 (1980).

We note, however, that the relief appellant seeks is curiously elusive. Generally, an order denying a pre-trial petition for habeas corpus relief is interlocutory, and therefore not immediately appealable. Id,., 489 Pa. at 589, 414 A.2d at 1048. This is especially true where the petition is grounded on the claim that insufficient evidence was produced at the preliminary hearing to make out a prima facie case against the defendant. Id., 489 Pa. at-, 414 A.2d at 1047-48. But see Commonwealth ex rel. Buchanan v. Verbonitz, supra, 525 Pa. 413, 581 A.2d 172 (1990) (where our supreme court granted appellant’s petition for interlocutory appeal and dismissed the charges against appellant because of insufficient evidence at preliminary hearing). Therefore, appellant must, at least, immediately petition this court for review of the denial of his petition for writ of habeas corpus, based on the insufficiency of evidence presented at the preliminary hearing. Even then, it is doubtful that this court will grant review. Appellant may have to further petition the supreme court for review. Id., 525 Pa. at 416, 581 A.2d at 173.

Here, appellant failed to petition this court for review of the denial of his writ of habeas corpus. He proceeded to trial where the confidential informant and the prosecuting officer testified at appellant’s trial. The trial judge determined that the evidence presented at trial was sufficient to go to the jury. Therefore, any defect in the preliminary hearing was cured at trial. Commonwealth v. Mignogna, 401 Pa.Super. 188, 195-96, 585 A.2d 1, 4 (1990); see also Commonwealth v. Tyler, 402 Pa.Super. 429, 587 A.2d 326, 328 (1991) (appellant was found guilty beyond a reasonable doubt and he failed to procedurally preserve his claim of procedural defect in preliminary hearing, by proceeding to trial instead of taking a direct appeal from the denial of his writ of habeas corpus).

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(16).

      . Id. § 780-113(a)(30).

      . The certified record is devoid of any transcript of the preliminary hearing. However, following that hearing, appellant filed an omnibus pretrial motion petitioning, inter alia, for habeas corpus relief because the evidence was insufficient at the preliminary hearing. At the hearing on the pretrial motion, Officer Chiappini testified that the only evidence offered at the preliminary hearing was the hearsay testimony of the confidential informant Edward Mazur.


source: Caselaw Access Project

author: HOFFMAN, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    596 A.2d 225
    COMMONWEALTH of Pennsylvania v. Robert E. STEELE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 10, 1991.
    Filed Sept. 4, 1991.
    Reargument Denied Nov. 14, 1991.

      Paul D. Boas, Pittsburgh, for appellant.
    Patrick Kiniry, Johnstown, for appellee.
    Before WIEAND, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for receiving stolen property (2 counts), criminal conspiracy (3 counts), removal or falsification of a vehicle identification number (2 counts), and dealing in vehicles with removed or falsified numbers (2 counts). Appellant contends that the trial court erred in (1) denying his pre-trial motion to dismiss criminal informations based on a violation of an existing immunity order; and (2) admitting evidence of his involvement in other crimes. Appellant also contends that trial counsel was ineffective for failing to; (3) object to the Commonwealth’s failure to allege an overt act in the three conspiracy counts; and (4) seek dismissal of one count of receiving stolen property. For the reasons that follow, we affirm.

Appellant was arrested on December 10, 1986 and charged with, inter alia, receiving stolen property, conspiracy, removal or falsification of a vehicle identification number and dealing in vehicles with removed or falsified numbers. These charges were brought in connection with the theft of a Ford pick-up truck and a Buick. On December 4, 1987, appellant filed a motion to dismiss the criminal informations filed against him based on an alleged violation of an existing immunity order. The trial court entered an order dismissing appellant’s motion on April 7, 1988. A jury trial was held in this matter on November 21 and 22, 1988. On November 22, the jury found appellant guilty of two counts of receiving stolen property, three counts of conspiracy, two counts of removal or falsification of a vehicle identification number and two counts of dealing in vehicles with removed or falsified numbers. Post-trial motions were timely filed and denied, and on February 13, 1990, appellant was sentenced to an aggregate term of three-to-eleven years imprisonment. This timely appeal followed.

Appellant first contends that the trial court erred in denying his pre-trial motion to dismiss the criminal informations filed against him. Specifically, he argues that those informations were based on information that was subject to an immunity order issued by the Allegheny County Court of Common Pleas. After careful review of the record and the parties’ briefs, we agree with the trial court that the informations were proper because they were based entirely upon evidence derived independently of the immunized testimony. See Commonwealth v. Webster, 323 Pa.Super. 164, 170, 470 A.2d 532, 535 (1983) (use immunity does not prohibit prosecution for all crimes arising out of transaction testified to so long as prosecution’s evidence is obtained from source wholly independent of compelled testimony). Moreover, the trial court has adequately addressed and properly disposed of appellant’s contention in its Opinion. Accordingly, we conclude that the trial court did not err in denying appellant’s pre-trial motion to dismiss the informations filed against him.

Appellant next contends that the trial court erred in admitting evidence of appellant’s involvement in a prior car theft because this evidence was irrelevant. Alternatively, appellant claims that, even if this evidence was relevant, its probative value was outweighed by its prejudicial effect.

It is established that evidence of a defendant’s other criminal activity is inadmissible as evidence of his guilt at his trial on other charges. Commonwealth v. Sparks, 342 Pa.Super. 202, 205, 492 A.2d 720, 722 (1985) (citations omitted). Evidence of other crimes may be admissible, however, when it is offered to prove motive, intent, absence of mistake or accident, common scheme or plan, or the identity of the person charged with the crime. Commonwealth v. Martinez, 301 Pa.Super. 121, 125, 447 A.2d 272, 273-74 (1982) (citations omitted). Even if the evidence does fall within an exception to the rule prohibiting proof of prior criminal activity, the trial court must still balance the need for the evidence against its potential prejudice in order to determine its admissibility. Commonwealth v. Shealey, 324 Pa.Super. 56, 60, 471 A.2d 459, 461 (1984).

At trial, the Commonwealth introduced a transcript of a conversation it taped between appellant and Joseph Cooper on August 6, 1986. The participants referred to a newspaper article indicating that appellant had been arrested in Allegheny County and charged with the theft of a Cadillac. See N.T. November 21, 1988, at 76-87. During this conversation, appellant stated that there was an article written about him in that day’s newspaper. See Commonwealth’s Exhibit 5, at 3-5. The Commonwealth introduced a redacted version of that article for the purpose of establishing that appellant was a participant in the conversation of August 6. See Commonwealth’s Exhibit 6; see also N.T. November 21, 1988, at 87-94. Appellant objected to the admission of the tape and the article as being prejudicial evidence of other crimes from which the jury could infer that appellant had committed a prior offense similar to the one he was on trial for. Id. at 66-73. The Commonwealth countered by arguing that the evidence at issue was admissible because it was necessary to establish the identity of the caller as appellant herein. Id. at 66. Appellant’s identity was important to the Commonwealth’s case because other portions of the same conversation implicated him in the crimes in this case. Before the jury was permitted to hear this evidence, the trial court instructed the jury as follows:

******
Secondly, this particular tape, in it is going to make reference to another or different vehicle than the Buick that has been testified to and some incidences [sic] connected with that other vehicle, a Cadillac as a matter of fact.
The purpose of the introduction of this tape and the sound of it is not to imply or infer guilt to this defendant by reference to this other vehicle or the facts connected with it.
In other words, testimony relative to other criminal episodes is not ordinarily admissible at all to show a defendant’s guilt in the crime with which he is charged, as an example, in this trial.
So this transcript, and more particularly the tape, is not introduced to infer from it that this defendant is guilty of this crime by virtue of the references made to the other vehicle and the incidences [sic] connected with it. I want to make that perfectly clear to you. The purpose that the Commonwealth introduces this tape is to show the identity of the defendant by way of the voice and a newspaper clipping reference in it which will be later introduced by the Commonwealth, and it will tie into what they’re trying to do.
So bottom line, rely on what you hear from the tape and not the transcript. It’s simply an aid. And number two, any references to any other criminal episode are of no relevance to you in this case. They cannot be used to establish the guilt of this defendant in this case. That is clearly improper. And thirdly, this tape is intended to establish the identity of the defendant.

N.T. November 21, 1988, at 75-76. Furthermore, before the admission of the redacted version of the newspaper article about appellant, the trial court again cautioned the jury to use that evidence for the limited purpose of establishing appellant’s identity. Id. at 94.

It is undisputed that both the tape and the newspaper article tended to establish appellant’s identity. This evidence corroborated testimony of Trooper Wessel in which he identified the voice on the tape as that of appellant. Thus, this evidence was clearly relevant to prove identity.

Appellant claims that even if this evidence was relevant, its probative value was outweighed by its prejudicial effect. In this regard, appellant claims that his identity was not in issue and, therefore, the probative value of this evidence was outweighed by its prejudicial effect. In light of the importance of the evidence in the context of this trial, as well as the limiting instructions given by the trial judge, we cannot say that the probative value of the disputed evidence was outweighed by its prejudicial effect. Accordingly, we conclude that the trial court did not abuse its discretion in admitting this evidence at trial.

Appellant next raises two ineffectiveness claims. Our standard for reviewing ineffectiveness claims is well-settled: to prevail, the petitioner must show that his underlying contention possesses arguable merit, that the course chosen by counsel had no reasonable basis designed to serve his interests, and that counsel’s conduct prejudiced him. See, e.g., Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989); Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527 A.2d 973, 975 (1987). With this standard in mind, we will address appellant’s underlying claims.

Appellant’s first contention is that counsel was ineffective for failing to object to the Commonwealth’s failure to allege an overt act in the conspiracy counts and for failing to raise this error in post-trial motions. Pa.R.Crim.P. 225(b)(5) provides that, to be legally sufficient, an information must contain “a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint.” Id. Here, the conspiracy informations provided that:

[Appellant] with the intent of promoting or facilitating the commission of the crime of Removal or Falsification of Identification Number, [did] agree with Joseph Cooper, Wilbur James Roles, Sr., Robert Roles and Robert Miller, [ ] that they or one or more of them would engage in conduct, to wit: willfully remove or falsify the identification number of a vehicle, engine or transmission, specifically; willfully remove or falsify the Vehicle Identification Number (VIN) of a 1982 Buick Electra 225 ... which act constitutes said crime----
******
SECOND COUNT: ... [Appellant did] agree with [the above-named individuals] that they or one or more of them would ... willfully and with intent to conceal or misrepresent the identity of a vehicle, engine or transmission, remove or falsify the [VIN] on a 1982 Buick Electra 225 ... which act constitutes said crime----
THIRD COUNT: ... [Appellant did] agree with Joseph Cooper and Gary I. Wingard, that they or one or more of them would ... receive, retain or dispose of movable property ... knowing that it had been stolen, or believing that it had probably been stolen____

Information, Criminal Action No. 0030(A) 1987, R.R. at 73a (emphasis supplied).

On its face, this information appears valid and legally sufficient because it charged an agreement, which is the essence of a conspiracy. See Commonwealth v. Hassine, 340 Pa.Super. 318, 359, 490 A.2d 438, 460 (1985) (citing Commonwealth v. Emmi, 290 Pa.Super. 86, 434 A.2d 142 (1981)); 18 Pa.C.S.A. § 903(a). Appellant argues, however, that a distinct overt act must be charged in the information pursuant to 18 Pa.C.S.A. § 903(e), and that, because such an act was not alleged, trial counsel was ineffective for failing to object to the insufficient information. However, Pennsylvania courts have long held to the contrary. See, e.g., Commonwealth v. Hassine, supra, 340 Pa.Superior Ct. at 359 n. 27, 490 A.2d at 460 n. 27; see also Commonwealth v. Breslin, 194 Pa.Super. 83, 165 A.2d 415 (1960); Commonwealth v. Weldon, 159 Pa.Super. 447, 48 A.2d 98 (1946). Accordingly, appellant’s underlying contention is meritless, and counsel cannot be held to have been ineffective for failing to object to the information and failing to raise this deficiency in post-trial motions.

Appellant’s second ineffectiveness contention is that trial counsel should have sought dismissal of one count of receiving stolen property (regarding the Buick), 18 Pa. C.S.A. § 3925, because appellant was also charged with four counts of specific motor vehicle violations under §§ 7102 and 7103 of the Motor Vehicle Code. Appellant argues that he should not have been prosecuted under the general provisions of the Penal Code when there were applicable special penal provisions available.

Section 3925 of the Crimes Code provides that:

(a) Offense defined. — A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.
(b) Definition. — As used in this section the word “receiving” means acquiring possession, control or title, or lending on the security of the property.

18 Pa.C.S.A. § 3925.

Section 7102 of the Vehicle Code provides that:

(a) Offense defined. — A person who willfully removes or falsifies an identification number of a vehicle, engine or transmission is guilty of a misdemeanor of the third degree.
(b) Fraudulent intent. — A person who willfully and with intent to conceal or misrepresent the identity of a vehicle, engine or transmission, removes or falsifies an identification number thereof, is guilty of a misdemeanor of the first degree.

75 Pa.C.S.A. § 7102. Section 7103 of the Vehicle Code provides that:

(a) Offense defined. — A person who buys, receives, possesses, sells or disposes of a vehicle, engine or transmission, knowing that an identification number has been removed or falsified, is guilty of a misdemeanor of the third degree.
(b) Knowledge of fraudulent intent. — A person who buys, receives, possesses, sells or disposes of a vehicle, engine or transmission with knowledge that an identification number has been removed or falsified with intent to conceal or misrepresent the identity thereof, is guilty of a felony of the third degree.

Id. at § 7103.

A plain reading of these statutes reveals that they were intended to punish distinct offenses. To convict a defendant of theft by receiving stolen property, 18 Pa.C.S.A. § 3925, the Commonwealth must prove beyond a reasonable doubt that the car had been stolen, that the defendant was in possession of it, and that the defendant had known or had reason to know it was stolen. In the Interest of Scott, 388 Pa.Super. 550, 552-53, 566 A.2d 266, 267 (1989) (citations omitted). To convict a defendant of dealing in vehicles with removed or falsified numbers, 75 Pa.C.S.A. § 7103, the Commonwealth must prove that an identification number has been removed or falsified. See Commonwealth v. Grabowski, 306 Pa.Super. 483, 489-90, 452 A.2d 827, 831 (1982) (citing Commonwealth v. Unkrich, 142 Pa.Super. 591, 16 A.2d 737 (1940)). It is readily apparent that a defendant may be convicted of theft by receiving a stolen automobile where the vehicle identification number had not been removed or falsified. Likewise, a defendant may be convicted of dealing in vehicles with removed or falsified numbers where there is no indication that the car had been stolen. Thus, we conclude that the offense of receiving stolen property is distinct from the offense of dealing in vehicles with removed or falsified numbers. Moreover, appellant does not suggest in this appeal that the evidence was insufficient to convict him of either receiving stolen property or dealing in vehicles with removed or falsified numbers. Accordingly, appellant was properly charged with both offenses, and his ineffectiveness claim lacks arguable merit.

Appellant argues, however, that the case of Commonwealth v. Vukovich, 301 Pa.Super. Ill, 447 A.2d 267 (1982), is controlling. In Vukovich, the defendant had presented a forged prescription in order to obtain prescription drugs without a prescription. We held that the defendant was improperly convicted under the forgery section of the Crimes Code in that such conduct was made a misdemeanor by the Pharmacy Act and that the forgery section of the Crimes Code was a general penal provision which had to yield to the special penal provision in the Pharmacy Act. Id., 301 Pa.Superior Ct. at 117-18, 447 A.2d at 269-70. Vukovich is distinguishable. In that case, the precise type of conduct made criminal (forgery) was identical in § 4101 of the Crimes Code and in the Pharmacy Act. Therefore, the defendant could only be prosecuted under the more specific provisions of the Pharmacy Act. Id. In the instant case, however, appellant’s act of receiving stolen property was not the same conduct as his acts of (a) removing or falsifying the identification number of a vehicle, and (b) dealing in vehicles with removed or falsified identification numbers. Therefore, appellant’s claim that counsel should have moved for dismissal of the charge of receiving the stolen Buick is meritless, and trial counsel cannot be held ineffective for failing to seek dismissal of that count.

For the above-stated reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

DEL SOLE, J., files a concurring opinion.

DEL SOLE, Judge,

concurring:

I write separately in order to state that although I am not completely satisfied that the criminal informations filed against Appellant were based entirely upon evidence derived wholly independently of an immunity order issued by the Allegheny County Court of Common Pleas, I find Appellant failed to establish this fact in his pretrial motion, therefore, I also would affirm the trial court on this issue.

In 1986, State police in the Cambria County area were engaged in an investigation involving stolen vehicles. The investigation led to the arrest of Appellant Robert Steele, who was charged with receiving stolen vehicles as well as a variety of other motor vehicle offenses. On December 4, 1987, Appellant filed a motion to dismiss the criminal informations filed against him based upon an alleged violation of an existing immunity order. This immunity was granted on December 4,1985, one year before Appellant’s arrest on the instant charges. The immunity was granted by an Allegheny County court in exchange for testimony regarding his involvement in a stolen car ring in the Pittsburgh area. The trial court in the instant case dismissed the motion to dismiss on April 7, 1988. Following a jury trial held in November of 1988, Appellant was convicted of the above charges. Post trial motions were denied and Appellant was sentenced to an aggregate term of 3-11 years. This appeal followed.

Appellant first contended that the trial court erred in denying his pre-trial motion to dismiss the criminal informations, since they were based upon the immunity order granted in Allegheny County. The leading case in the area of use immunity is Kastigar v. U.S., 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), wherein the Supreme Court held that where the defendant has formerly testified under a grant of immunity it is up to the government to show that nothing about its case is derived, either directly or indirectly from the immunized testimony. In the instant case, Appellant at a suppression hearing held February 16, 1988, informed the court that evidence from Appellant’s immunized testimony in Allegheny County was used in the investigation in Cambria County which led to the filing of charges. At the hearing, Appellant’s counsel stated that Trooper Wessel, the investigating state trooper from Cambria County contacted police officials in Pittsburgh concerning Appellant. It was stipulated too that Trooper Wessel had contacted an Allegheny County District Attorney concerning Appellant and that the ADA informed the trooper as to the immunity order and advised him to have no further contact with Pittsburgh officials with respect to Appellant.

Appellants counsel stated at the suppression hearing that once they had alleged Appellant had been granted immunity for certain crimes in Allegheny County, the Commonwealth had the burden of establishing that the Cambria County case was in no manner derived from information gleaned from testimony in the Allegheny County case, but rather was independent of that case. The trial court found the Commonwealth had met this burden and held that Appellant’s convictions for the Cambria County crimes were based entirely upon evidence derived independently of the testimony given by Appellant in Allegheny County. The trial court stated that Trooper Wessel had filed an extensive probable cause affidavit which showed that a thorough time consuming investigation of Appellant’s Cambria County crimes had been made.

On appeal, Appellant contends that the trial court erred in not granting the pre-trial motion to dismiss since there was a great deal of contact between the Cambria County officials and the Allegheny County officials involving Appellant and his immunized testimony. Appellant maintains that testimony established that despite being warned by the Allegheny County District Attorney, Trooper Wessel talked to the Pittsburgh Officials who had read the immunized testimony and that he had read newspaper articles about Appellants immunized testimony. Unfortunately for Appellant Steele, evidence of these facts were contained in the August 18, 1987 transcript of the Cambria County trial of George White, Jr., another participant in the stolen car ring. Nowhere in the record of the instant case it is established that the transcripts of this trial were brought to the attention of the trial judge in the instant case. Accordingly, based on the information available to the trial court, the trial judge held that the Commonwealth had demonstrated that the evidence which led to Appellant’s convictions in Cambria County was derived wholly independently from the immunized testimony of Allegheny County. Since after an exhaustive review of the record in this case I am unable to determine otherwise, I must agree.

Appellant also contends that the trial court erred in admitting certain evidence which tended to show Appellant’s involvement in other crimes. Specifically, Appellant objected to the introduction of a transcript of a conversation taped by the Commonwealth in which the speakers referred to a newspaper article which indicated Appellant had been arrested in Allegheny County and charged with the theft of another vehicle. Appellant objected to the admission of the tape and a redacted version of the article which was introduced in order to establish Appellant was a participant in the taped conversation. Appellant objected to the admission of the items as being prejudicial evidence of other crimes from which the jury could infer he had committed a similar prior offense to the one for which he was on trial. The Commonwealth argued the introduction was necessary to establish the identity of the caller as Appellant. The majority took the position that the evidence corroborated the testimony of trooper Wessel and thus was relevant to prove identity. In affirming the trial court on this issue, the majority placed great emphasis on the fact that the trial court several times cautioned the jury to use the evidence only for the limited purpose of establishing identity. The majority concluded the probative value of the evidence outweighed its prejudicial effect and held the trial court did not abuse its discretion in admitting the evidence.

It was Appellant’s contention that trial counsel conceded in her opening statement that it was Appellant’s voice on the tape and thus it was unnecessary to introduce the tape and redacted article to prove it was Appellant. However, upon a closer reading of the transcript, I conclude trial counsel did not clearly and unequivocally admit that one of the voices heard in the taped conversation was that of Appellant. See opening statement, November 21, 1988, page 8. Furthermore, when the Commonwealth moved to play the taped conversation at trial, Appellant’s trial counsel never informed the trial court she was willing to concede one of the participants was Appellant. (N.T. 11-21-88 p. 66-68).

Trial counsel did maintain that the identity exception which applies to the prohibition of evidence of other crimes is tied in with the common scheme or plan theory, that the proof of identity goes towards the unique aspect of the crime. See Commonwealth v. Patterson, 484 Pa. 374, 399 A.2d 123 (1979). In his appeal, Appellant argues that the trial court was inconsistent in that the evidence was admitted at trial in order to establish Appellant’s identity, yet in its post-trial opinion the court states the evidence was admitted because of the similarities shared by his prior and present offenses. Appellant goes on to argue that since the record conclusively establishes that the challenged evidence was admitted for the sole purpose of identifying the Appellant, the Commonwealth cannot now argue the evidence should be deemed admissible based upon the similarity of prior and present offenses. However, Appellant is erroneous in his interpretation of the record. The Commonwealth clearly informed the trial court it wished to offer evidence of the tape and newspaper article not only for the purpose of identification but also to show common plan or scheme. (N.T. 11-21-88, p. 66). In his post-trial opinion, the trial judge states this evidence was properly admitted based upon the exception where the prior crime was committed in a manner bearing distinct similarities to the manner in which the current crime occurred. (In both crimes the vehicles were stolen and their VIN numbers altered, only the most commonly used VIN location was altered while others were removed altogether and the confidential VIN numbers were never altered or removed).

Therefore, since I find that Appellant’s trial counsel did not clearly concede Appellant was a participant in the taped conversation and that the trial court cautioned the jury several times on the limited use of the evidence, the trial court did not abuse its discretion in admitting the evidence. Furthermore, the evidence was properly admissible under the common plan or scheme exception. Accordingly, I too would affirm.

      . 18 Pa.C.S.A. § 3925.

      . 18 Pa.C.S.A. § 903.

      . 75 Pa.C.S.A. § 7102.

      . 75 Pa.C.S.A. § 7103.

      . On December 4, 1985, one year before appellant's arrest for these charges, appellant had received a grant of immunity from an Allegheny County Court in exchange for his testimony regarding his involvement in a stolen car ring in Pittsburgh.


author: OLSZEWSKI, Judge:

text:
    596 A.2d 232
    Joseph J. LABRIOLA, Appellee, v. RENOVATIONS UNLIMITED, INC., Appellant.
    Superior Court of Pennsylvania.
    Submitted July 29, 1991.
    Filed Sept. 10, 1991.
    Robert S. Esposito, Philadelphia, for appellant.
    Samuel M. Fineman, Broad Axe, for appellee.
    Before OLSZEWSKI, KELLY and BROSKY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order of the court of common pleas striking as untimely the appeal of Renovations Unlimited, Inc. (RUI), from a judgment entered against RUI by the district justice. Joseph J. Labriola was awarded judgment against RUI in the amount of $3,057.75 by District Court 38-1-13, at Docket No. TA-859-90. The district court mailed RUI notice of the entry of judgment. That notice indicates that judgment was entered on November 30,1990; the notice also contains a “Notice date” of December 6, 1990. RUI filed a notice of appeal requesting a trial de novo with the court of common pleas on January 3,1991. Labriola moved to have the notice of appeal stricken because it was not filed within thirty days of the entry of judgment as required by Pa.R.C.P.DJ. 1002, 42 Pa.C.S.A. The court of common pleas granted that motion and this timely appeal followed.

On appeal, RUI argues that the thirty-day period provided for in the rules must be computed from the notice date of December 6, 1990. Thus, RUI concludes that its appeal was timely filed and should not have been stricken. We find that precedent dictates that the thirty-day period begins on the date judgment was entered and, accordingly, affirm.

The rule governing appeals from judgments rendered by a district justice provides as follows:

A party aggrieved by a judgment may appeal therefrom within thirty (30) days after the date of judgment by filing with the prothonotary of the Court of Common Pleas a notice of appeal on the from which shall be prescribed by the State Court Administrator.

Pa.R.C.P.DJ. 1002, 42 Pa.C.S.A. (Purdon’s Supp.1991). RUI argues that, if the thirty-day period is computed from the date judgment is entered, the notice date is superfluous. Thus, RUI concludes that the notice date is the date of judgment referred to by the rule. We disagree.

Which date is the date of judgment triggering the thirty-day period provided for in Rule 1002 has twice before been considered by this Court. See, Conrad v. Kemmerer, 301 Pa.Super. 410, 447 A.2d 1032 (1982); Goldberg v. Goldberg, 315 Pa.Super. 333, 461 A.2d 1307 (1983). In both instances, this Court held that the date that judgment is entered is the date from which the thirty-day period is computed. Conrad, supra, 301 Pa.Superior Ct. at 411-12, 447 A.2d at 1033; Goldberg, supra, 315 Pa.Superior Ct. at 336-37, 461 A.2d at 1309. Thus, precedent dictates that we hold that “date of judgment”” as used in Rule 1002 refers to the date judgment was entered, not the notice date.

RUI attempts to distinguish Goldberg by noting that the appellant in Goldberg argued that the period should be computed from the date the notice was received, while they argue that the period should commence the date the notice is sent. It is true that the Goldberg appellant argued that “date of judgment” should be construed to mean the date notice was received. Goldberg, supra, 315 Pa.Superior Ct. at 335-36, 461 A.2d at 1308. In rejecting this argument, the Goldberg Court specifically relied upon Conrad, which had rejected an argument that the thirty-day period ran from the notice date. See, Conrad, supra 301 Pa.Super. at 411-13, 447 A.2d at 1033-34. Thus, assuming arguendo that we agree that Goldberg is distinguishable, RUI has not indicated to us how we may disregard Conrad and grant the relief they request.

RUI argues that computation of the thirty-day period from the date judgment was entered unfairly reduced the time to take an appeal to twenty-four days. This argument has been rejected twice by this Court. “[Ajppellant does not convince us that the twenty-four days following his receipt of actual notice of judgments was insufficient within which to file his appeal.” Goldberg, supra 315 Pa.Super. at 337, 461 A.2d at 1309. Accord, Conrad, supra (no prejudice demonstrated from reduction of appeal period to twenty-two days).

Further, Goldberg supplies an answer to RUI’s contention that use of the date judgment was entered to trigger the thirty-day period renders the notice date superfluous. The Goldberg Court noted that where a notice of judgment is delivered much later than the date the judgement was entered, an appellant could argue that he was prevented from filing a timely appeal due to a breakdown in the court system; this would be grounds for allowing that party to appeal nunc pro tunc. Goldberg, supra, 315 Pa.Superior Ct. at 336-37, 461 A.2d at 1309. Thus, the notice date serves as an evidentiary measure of the prompt functioning of the court system when leave to file an untimely appeal is sought.

RUI also argues that reference to the Judicial Code indicates the period should be measured from the date of notice. The comments to Rule 1002 state that “[t]he thirty day limitation in this rule is the same as that found in the Judicial Code ... 42 Pa.C.S.A. § 5571(b)”. Note, Pa. R.C.P.D.J. 1002, 42 Pa.C.S.A. (Purdon’s Supp.1991). Section 5571(b) provides that appeals must be commenced within thirty days of the entry of the order from which the appeal is taken. RUI then cites us to 42 Pa.C.S.A. § 5572, which provides that the date of mailing an order is the date of the entry of an order. Thus, RUI concludes that this section must apply to the rule at issue here. We cannot agree.

The fact that the period is the same under both the rule and the Judicial Code does not necessarily mean that both are triggered by the same event. To reconcile the Note to Rule 1002 with the Conrad and Goldberg decisions, we hold that the language of the Note, i.e., “The thirty day limitation in this rule is the same as that found in the Judicial Code”, only refers to the length of the limitation period, not an identical operation of the triggering mechanism.

Order affirmed.

      . RUI also cites to us Simon Dechalet, Inc. v. Naponic, 21 Pa.D. & C.3d 408 (1980), for the proposition that the period runs from the date notice of judgment is mailed to the parties. Suffice to say that the Naponic case, a court of common pleas decision, is not binding on this Court and was rendered before the Superior Court decisions in Conrad and Goldberg. We properly disregard this portion of RUI’s argument.

      . RUI also cites us to Pa.R.A.P. 108, which provides that computation of time periods under the appellate rules begins with the date of entry of an order, such date being the date copies of the order are mailed or delivered to the parties. We agree that the Rules of Appellate Procedure so provide. Those rules, however, are not at issue here. The rules governing practice before district justices provide: ”[t]he purpose and intent of these rules is to provide a complete and exclusive procedure for every action or proceeding to which they are applicable.” Pa.R.C.P.D.J. 204, 42 Pa.C.S.A. Thus, the Rules of Appellate Procedure have no application here.


author: BECK, Judge: HUDOCK, Judge,

text:
    596 A.2d 234
    COMMONWEALTH of Pennsylvania v. Robert KURILLA, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 11, 1991.
    Filed Sept. 10, 1991.

      Charles R. Witaconis, Asst. Public Defender, Scranton, for appellant.
    Michael J. Barrasse, Dist. Atty., Scranton, for Com., appellee.
    Before BECK, HUDOCK and HESTER, JJ.
   BECK, Judge:

The issue is whether the four (4) year statute of limitations in the Public Welfare Code, 62 P.S. § 481(d), limits the restitution that the trial court may order a defendant to pay, to the amount which the defendant unlawfully received in the four years preceding the filing of the complaint. We do not interpret section 481(d) as imposing such a limitation. We therefore affirm the judgment of sentence.

The facts in the instant action are as follows. On May 2, 1988, the Department of Public Welfare filed a criminal complaint against appellant Robert Kurilla charging him with violating the Welfare Code, namely section 481(a). The complaint alleged that from January 1, 1981, through January 31, 1987, Kurilla was not entitled to the welfare payments he received because he failed to report income as required by the law.

After a preliminary hearing, Kurilla was bound over for court and, subsequently, a bill of information was issued charging him with welfare fraud. Following the denial of his motion to quash the bill of information, Kurilla appealed to this Court. We quashed the appeal. Commonwealth v. Kurilla, 391 Pa.Super. 241, 570 A.2d 1073 (1990). Kurilla thereafter pled guilty. The trial court then sentenced Kurilla to a seven-year period of probation and ordered him to make restitution in the sum of $9,352, the amount representing all of the monies which he illegally received from the Department of Public Welfare. Thereafter, Kurilla’s motion for reconsideration was denied and he has appealed.

In this appeal, Kurilla claims that the trial court erred in ordering him to make full restitution for all of the monies he received as a result of his failure to report the required information. Specifically, he argues that the four-year statute of limitation limits his restitution to monies he received from May 2, 1984, the four-year period immediately preceding the filing of the complaint. He asserts that the statute of limitations provision in the Public Welfare Code, section 481(d), mandates this result. The language of the above provision provides that “there .shall be a four-year statute of limitations on all offenses under this section.” Thus, Kurilla argues that the court erred in requiring restitution for moneys he illegally received before May 2, 1984. We disagree.

Initially, we note that the issue is one of first impression. For the reasons set forth below, we hold that the limitation provision found in Section 481(d) of the Public Welfare Code does not limit the amount of restitution a defendant may be ordered to make, but rather, limits the time when the Commonwealth must bring welfare fraud charges against a defendant.

Welfare fraud is defined in section 481(a) of the Public Welfare Code:

Any person who, either prior to, or at the time of, or subsequent to the application for assistance, by means of a wilfully false statement or misrepresentation, or by impersonation or by wilfully failing to disclose a material fact regarding eligibility or other fraudulent means, secures, or attemptsto secure, or aids or abets or attempts to aid or abet any person in securing assistance, or abet any person in securing assistance, or Federal food stamps

62 P.S. § 481(a).

Subsection (c) provides for restitution:

Any person committing a crime enumerated in subsection (a) shall be ordered to pay restitution of any moneys he has received by reason of any ... failure to disclose required information____ Restitution ordered under this subsection may be paid in a lump sum, by monthly installments or according to such other schedule as is deemed just by the sentencing court____

62 P.S. § 481(c) (emphasis added).

Subsection (d) provides the limitation language:

There shall be a four-year statute of limitations on all crimes enumerated in subsection (a).

62 P.S. § 481(d).

We must decide whether the legislature intended to make applicable the four-year limitation period found in section 481(d) to the restitution provision quoted above, section 481(c). In attempting to interpret statutory provisions, we are guided by the Statutory Construction Act, which instructs that a statute must be given its plain and obvious meaning. 1 Pa.C.S.A. § 1921 (Purdon Supp.1991).

Section 481(c), provides that restitution shall be made “of any moneys he [the defendant] has received ..." It impliedly permits a sentencing court to order restitution of any monies received by a defendant as a result of his or her failure to disclose required information, regardless of when the monies were received. Nothing in the language of 481(c) indicates that the legislature intended to limit restitution. Indeed, the language of subsection (c) indicates that full restitution is permitted. It provides for the repayment of “any moneys he (defendant) has receive[d].”

Section 481(d), the limitation provision, likewise contains no language which even suggests that the statute implies a limitation on the amount of restitution. The language requires a “four-year statute of limitation on all offenses ...” If the legislature intended to limit the amount of restitution to payments within a four-year period, it would have so provided.

As applied here, Kurilla pled guilty to violating section 481(a) of the Public Welfare Code by unlawfully receiving $9,352 in public assistance over a six year period, January of 1981 through January of 1987. We find that the trial court properly ordered Kurilla to pay restitution of all the moneys he unlawfully received from the Department of

Public Welfare during that time period.

Judgment of sentence affirmed.

HUDOCK, J., files a dissenting statement.

HUDOCK, Judge,

dissenting.

Respectfully I dissent. I would restrict the Commonwealth’s right of restitution to those monies improperly obtained within the four year period of the Statute of Limitations.

In the present case, defendant’s fraud was continuous over a six year period, and the majority’s holding requiring him to pay restitution for those periods beyond the Statute of Limitations does not seem shockingly unfair. However, the same rationale would render a person who committed fraud at any time during his life, but who was never prosecuted or convicted of that offense, subject to the payment of court ordered restitution for the earlier offense if he is later convicted of another such offense — even though half a lifetime may have intervened. It seems anomalous that a person who cannot be prosecuted because of the bar of the Statute of Limitations, and who therefore cannot be made to pay restitution, can be held liable for the court-ordered payment of this restitution because of the commission of a later offense. Such a resuscitation of restitution liability renders the Statute of Limitations meaningless.

      . Specifically, the complaint alleged that Kurilla received such public assistance by failing to report his wife’s income to Department of Public Welfare personnel during requalification interviews. The complaint further alleged that during these interviews, Kurilla was informed that it was his responsibility to report any income, including that of his wife, to caseworkers at the Department of Public Welfare as a requirement for continued public assistance. Finally, the complaint alleged that Kurilla continually advised his caseworkers that his wife had no income during the entire period of overpayment when, in fact, his wife was gainfully employed during this time.

      . Full restitution was to be paid at a rate of $75 per month for the entire term of Kurilla’s probationary period, seven years.

      . We note that the Commonwealth first asserts that Kurilla fails to attack the legality of his sentence but rather, merely raises a defense which was heretofore waived by virtue of his guilty plea. We disagree as we find Kurilla’s claim, an allegation that the trial court was without legislative authority to enter the sentence imposed, is a challenge to the legality of the sentence and thus, can never be waived. See Commonwealth v. Ferguson, 381 Pa.Super. 23, 552 A.2d 1075 (1988).

      . In support of his argument, Kurilla cites a panel opinion of this Court, Commonwealth v. Soltis, 311 Pa.Super. 195, 457 A.2d 562 (1983). We have studied Soltis and conclude that it does not directly address the issue presently before us. Rather, Kurilla relies upon dicta found in footnote three of Soltis, where it was observed that "the amount of restitution [ordered by the trial court] reflects the period in which the statute has not run.” We find such dicta not controlling in the instant case.

      . Kurilla also claims that the trial court erred in ordering restitution without first conducting a hearing on the matter. Specifically, he contends that the trial court failed to take into consideration his ability to pay. We find this claim to be unsupported by the record. The trial court considered the pre-sentence report which fully apprised it of Kurilla’s present financial condition, including his financial obligations, as well as his future financial capabilities. Accordingly, the trial court provided that all restitution shall be paid in monthly payments of $75 over seven years. We find no error on the part of the trial court.


author: FORD ELLIOTT, Judge:

text:
    596 A.2d 237
    George PECORARA, Trading and doing business as Aliquippa Recycling Company, and James Sarvey v. ERIE INSURANCE EXCHANGE and Gary McLaughlin, Alexander Davidson and American States Insurance Company. Appeal of ERIE INSURANCE and Alexander Davidson, Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1991,
    Filed Sept. 12, 1991.

      C. Gus Kwidis, Beaver, for appellant.
    Charles Sapienza, Ellwood City, for appellee.
    Before POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the order of the Court of Common Pleas of Beaver County, dated October 9, 1990, requiring Erie Insurance Exchange to reimburse American States Insurance Company for American State’s contribution toward the settlement of the underlying liability action. We affirm.

On September 5, 1980, Alexander Davidson was the owner of a 1972 Chevrolet dump truck insured by Erie Insurance Exchange. Davidson lent the truck to George Pecorara in order that Pecorara’s employee, James Sarvey, could use it to haul shale to Pecorara’s business site for the purpose of resurfacing a parking lot. Pecorara was the owner and operator of Aliquippa Auto Recycling Company, an automobile repair business. Pecorara’s business was insured against liability by American States Insurance Company.

While Sarvey was operating Davidson’s dump truck, hauling shale to Pecorara’s business site, he collided with a vehicle being driven by Gary McLaughlin. McLaughlin was injured as a result of the collision and filed suit against Davidson, Pecorara, and Sarvey. Given that Sarvey was operating Davidson’s motor vehicle with Davidson’s permission at the time of the accident, Pecorara and Sarvey looked to Erie for a defense and indemnification with respect to the suit brought by McLaughlin.

Erie refused the request for coverage based upon an exclusion in Davidson’s policy which excludes coverage “to an owned automobile while used by any person while such person is employed or otherwise engaged in the automobile business.” However, in order to facilitate settlement of McLaughlin’s case both Erie and American States contributed $15,000.00 towards the $30,000.00 settlement. Erie and American States then agreed that one would indemnify the other based on the outcome of the declaratory judgment action.

Pecorara and Sarvey filed a declaratory judgment action against both carriers seeking a determination as to which coverage applied to the accident. Initially, the trial court concluded that the issue of the applicability of Erie’s exclusion was mooted since the underlying action had been settled. However, on the first appeal to this court the trial court’s order was vacated and the case remanded for reinstatement of the declaratory judgment complaint.

After reinstatement, Erie and American States, as the only interested parties, stipulated to the relevant facts and framed the issue for the court’s disposition. The trial court, by order and opinion dated October 9, 1990, decided that Erie’s exclusion was inapplicable to the facts and that Erie was therefore obligated to provide liability coverage for the accident. This timely appeal followed.

Appellant raises a single issue for our consideration. Does the exclusion contained in the Erie policy prohibit the appellees, Pecorara and Sarvey, from claiming liability coverage through Erie Insurance Exchange Policy? Appellant argues to this court that the exclusion at issue does apply to the facts in this instance. According to appellant, the language is clear and unambiguous and provides that coverage will not apply if the automobile is being used by a person employed or otherwise engaged in the automobile business. Since Sarvey, as Pecorara’s employee, was employed in the automobile business, appellant reasons that the policy does not apply to the accident which occurred while Sarvey was operating the dump truck.

Appellees, on the other hand, argue that the clause must be construed narrowly, and only applies to situations where the operator was actually engaged in the automobile business when the accident occurs. Appellees maintain that the exclusion clause contemplates certain additional risks associated with the automobile business, and that the present situation was not the type intended to fall within the scope of such a clause.

After carefully considering both parties’ arguments in this matter, we are inclined to agree with appelleés. The automobile business exclusion was intended to encompass a specific Hsk, a risk which did not exist under the present circumstances.

Initially, we note that it is well-settled law in Pennsylvania that exclusions to an insurer’s general liability are narrowly construed against the insurer. Miller v. Prudential Insurance Company of America, 239 Pa.Super. 467, 362 A.2d 1017 (1976). If an ambiguity exists as to an exclusion provision, the language is to be strictly construed against the insurer. Celley v. Mutual Benefit Health and Accident Assoc., 229 Pa.Super. 475, 324 A.2d 430 (1974).

The language of the clause at issue is ambiguous in that it can be interpreted to encompass situations clearly beyond the scope of its applicability. The pertinent language from the clause excludes coverage for “[a]n owned automobile while used by any person while such person is employed or otherwise engaged in the automobile business ...” Reading the clause through with the conjunctive “or” leads to the interpretation that coverage can be excluded for “an owned automobile while used by any person while such person is employed in the automobile business.” Applying the foregoing language literally, for example, would prohibit coverage for an accident which occurred if Davidson had lent his dump truck to a friend to haul lumber to a campsite, if that friend also happened to be an employee of an automobile business. Such a result would be absurd.

Yet, this is the result urged upon this court by appellant. The mere fact that Sarvey was employed in the automobile business at the time he was hauling shale in the dump truck is insufficient to trigger the operation of this clause. Sarvey could have just as easily been employed by a grocer and been hauling shale to resurface the grocer’s parking lot. As it turns out, Sarvey was employed in the automobile business. However, that fact alone cannot trigger the operation of the exclusionary clause.

The clause in question was meant to protect against additional risks associated with the use of automobiles in furtherance of the automobile business. We are guided in reaching this conclusion by several lower court cases which have addressed this issue under similar sets of circumstances. See Lehigh Valley Dodge, Inc., v. State Farm Mutual Automobile Insurance, 50 Pa. D. & C.2d 654 (1970); American States Insurance Co. v. Erie Insurance Exchange, 121 P.L.J. 290 (1973). In each of those cases the application of similar exclusion clauses hinged upon the use of the automobile at the time of the accident. If the automobile was being used in the course of the automobile business, i.e., test drive by a mechanic for repair purposes, then the clause would apply. However, if the fact that the automobile was being driven by an employee of an automobile business was merely incidental to another purpose for which the vehicle was being used, then the clause was inapplicable.

Under the present circumstances, it is clear that the dump truck was being used to haul shale to improve a parking lot. The hauling of shale was not the normal use of an automobile by Sarvey while engaged in the automobile business. Therefore, we can fashion no reasonable explanation, nor has appellant provided us with one, for interpreting the automobile business exclusion so broadly as to encompass this situation.

As the trial court noted, it was a mere fortuity, from appellant’s standpoint, that Pecorara owned an automobile business as opposed to some other type of business. However, such a fortuity cannot form the basis upon which rests the application of an exclusion clause. A thorough review of the facts clearly demonstrates that at the time of the accident, Sarvey was not utilizing the automobile in a manner intended to fall within the scope of such an exclusion. Therefore, the trial court correctly concluded that the exclusion was inapplicable and that Erie was liable for coverage of the accident.

Order affirmed.


text:
    596 A.2d 240
    Roberta GRIMES, Appellant, v. Timothy GRIMES.
    Superior Court of Pennsylvania.
    Argued April 17, 1991.
    Filed Sept. 13, 1991.

      Charles E. Kurowski, Canonsburg, for appellant.
    Eugene J. Julian, Washington, for appellee.
    Before McEWEN, DEL SOLE, and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from an order reducing appellee’s spousal and child support obligation due to his change of employment. Based upon the record before this court, we do not find sufficient evidence to warrant a reduction in appellee’s support obligation.

The parties were married on September 25, 1973, and had one son born of their marriage on September 10, 1974. They separated on September 20, 1986. Following appellant’s filing of a complaint for support, the trial court, on July 16,1987, ordered appellee to pay $550.00 for support of appellant and his son plus $50.00 a month on arrearages of $1,650.00 and to maintain appellant and child on his employer provided medical insurance. This order had been modified over time to accommodate the fact that the parties’ son had moved in with appellee, but was reinstated on August 8, 1989, when the son again was residing with appellant. The support award was affirmed again on October 31, 1989.

In February of 1990, appellee filed a petition to modify his support obligation due to his change in employment and decreased earnings. On March 19, 1990, a hearing officer denied appellee's request for a reduction in support based on appellee having voluntarily accepted a lower paying job. Following appellee’s appeal to the trial court from the denial of his modification, on September 11, 1990, a hearing was conducted before the court and appellee’s support obligation was reduced to $250.00 for the months of February to May of 1990 and $200.00 a month thereafter. That portion of the order directing appellant to pay $250.00 monthly for the months of February through May was allocated as $100.00 for appellant and $150.00 for child and ended in May of 1990 pursuant to the parties’ divorce. All remaining obligations of support were entered solely for the support of the parties’ son. Appellant filed her timely notice of appeal to this court on September 28, 1990.

Appellant argues that the trial court erred in reducing appellee’s support obligation given that appellee voluntarily quit his job and that he presented insufficient evidence to support the modification order. With appellant’s latter contention, we agree.

Preliminarily, we note our standard of review in support matters.

A trial court has broad discretion concerning support payments and we will not reverse its decision unless there is insufficient evidence to sustain it or the trial court abused its discretion in fashioning the áward. More than mere error of judgment is required; discretion is abused only if the law is overridden or misapplied or the judgment exercised is manifestly unreasonable.

Lesko v. Lesko, 392 Pa.Super. 240, 243, 572 A.2d 780, 782 (1990) (citations omitted).

Also, it is well-recognized that:

[w]hen modification of a child support order is sought, the moving party has the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original or modified support order. The lower court must consider all pertinent circumstances and base its decision upon facts appearing in the record which indicate that the moving party did or did not meet the burden of proof as to changed conditions. We will not disturb a child support order unless the trial court, in determining the amount of support, has abused its discretion. Where the evidence is insufficient to sustain the order, an abuse of discretion will be found.

Com. ex rel. Sladek v. Sladek, 386 Pa.Super. 490, 492, 563 A.2d 172, 173 (1989) (citations omitted); see Ross v. Ross, 359 Pa.Super. 357, 518 A.2d 1274 (1986) (trial court’s modification of a support order must be justified on the record by clear and positive evidence following a hearing on the merits). Moreover, we have stated that “the amount of a support award is based upon earning capacity, less reasonable expenses, not merely cash flow. Therefore, steps taken to reduce income for the purpose of avoiding or decreasing support are ineffective insofar as diminishment of the obligation is concerned.” Coffey v. Coffey, 394 Pa.Super. 194, 200, 575 A.2d 587, 589 (1990) (citations omitted). In recognition of this principle, we have held that:

a parent may not intentionally reduce his or her earnings and then use the reduction in earnings to obtain a reduction in the amount of support which that parent must provide for his or her children; courts have traditionally viewed with suspicion any sudden reduction of payments toward support based on such income reductions. Com monwealth ex rel. Darling v. Darling, 300 Pa.Superior Ct. 62, 445 A.2d 1299 (1982); Commonwealth ex rel. Burns v. Burns, 251 Pa.Superior Ct. 393, 380 A.2d 837 (1977); Weiser v. Weiser, 238 Pa.Superior Ct. 488, 362 A.2d 287 (1976), Snively v. Snively, 206 Pa.Superior Ct. 278, 212 A.2d 905 (1965). The rationale underlying these decisions is that a parent has a duty to his or her children and therefore a parent should not be permitted to evade that responsibility by deliberately reducing his or her income. This rule, however, is not without its exceptions. As we noted in Weiser v. Weiser, supra, 238 Pa.Superior Ct. at 492, 362 A.2d at 288-289. ‘[W]e are not constrained to say that a man once he has established a certain income level for himself and his family in the employ of another cannot decide to go into business for himself even though it results in a decrease of his present earnings. A man should have freedom of choice to be an employee of another or to establish his own business even though such change may result in present financial sacrifice with the hope of future increased income.’

Roberts v. Bockin, 315 Pa.Super. 52, 55, 461 A.2d 630, 632 (1983).

Finally, our support guidelines provide assistance to courts concerning matters of voluntary reduction of income and income potential. Pa.R.C.P. 1910.16-5(c)(l), (4) reads:

(1) Voluntary reduction of income. Where a party voluntarily assumes a lower paying job, there generally will be no recomputation of the support payment. A party ordinarily will not be relieved of a support obligation by voluntarily quitting work or by being fired for misconduct.
(4) Income potential. Ordinarily, a party who willfully fails to obtain appropriate employment will be considered to have an income equal to the party’s earning capacity. Age, education, training, health, work experience and child care responsibilities are factors which shall be considered in determining earning capacity.

In light of the foregoing, to modify a support obligation based upon reduced income, a petitioner must first establish that the voluntary change in employment which resulted in a reduction of income was not made for the purpose of avoiding a child support obligation and secondly, that a reduction in support is warranted based on petitioner’s efforts to mitigate any income loss. In effect, petitioner must present evidence as to why he or she voluntarily left the prior employment and also as to why the acceptance of a lower paying job was necessary. Otherwise, for calculation of a support obligation, the petitioner will be considered to have an income equal to his or her earning capacity as defined in the support guidelines.

Instantly, the record reveals that appellee left his job as a coal miner to work for an equipment company at approximately one-half the salary. Appellee testified that he voluntarily left his job at the mine, but that he did so for health reasons. In particular, appellee complained of problems with his legs, knees, back, sinuses, and lungs after having worked for fifteen years as a miner. Appellee also stated that his new job would allow him to work a steady daylight shift and provide room for advancement, which included the opportunity to go to school. Appellant argues that although appellee may be free to leave one job to take another, the cost of such a change should not be placed upon her and her son. Also, appellant argues that appellee’s mere assertion of health problems, without further testimony or documentation in support thereof, does not establish sufficiently appellee’s burden in modifying his support obligation.

At this juncture, we wish to emphasize that we cannot find fault with appellee’s desire to leave the mines. Coal mining long has been recognized as a dangerous, health-threatening occupation. We accept that appellee should be entitled to pursue another way of life. Accordingly, we do not find error in the trial court’s determination that appellee did not leave his mining job to avoid his support obligation. However, as stated previously, this cannot be the end of the inquiry for the trial court. To allow for a modification in the support obligation based on actual earnings, appellee must further establish that he attempted to mitigate his income loss. The record before us is devoid of any such evidence. There was no evidence presented by appellee that he attempted to find a job with a comparable salary. In the alternative, there was no evidence presented as to why finding a job with a comparable salary was not possible. Further, there is no evidence of record regarding appellee’s education, training, or employability in areas other than mining to establish appellee’s earning capacity. See Blaisure v. Blaisure, 395 Pa.Super. 473, 577 A.2d 640 (1990) (ability to pay support is determined by a parent’s financial resources and earning capacity). Akers v. Akers, 373 Pa.Super. 1, 540 A.2d 269 (1988). It is incumbent upon appellee to contribute to the support of his son; therefore, he cannot simply reduce that support obligation based on his voluntary reduction in income. Pa.R.C.P. 1910.16-5(c)(1). We liken appellee’s duty of support to any other fixed obligation, i.e., mortgage, rent, car payment, which one must consider being able to meet upon a change in employment and salary. We believe this consideration should be as important to a parent of a divorced family as it would be to a parent of an intact family when a change of employment is contemplated. As such, if a parent’s support obligation can be modified simply on the basis of a reduction in salary, without anything further, then what is to prevent a parent from seeking a position with a salary that would meet personal needs alone. Weiser v. Weiser, supra. Clearly, this is exactly the situation that the support laws were designed to avoid by attributing the earning capacity of a party, (which may at times equal that of actual earnings), as a starting point in a support matter. Blaisure v. Blaisure, supra; Pa.R.C.P. 1910.16-5(c)(4). Accordingly, we find the evidence of record in this case insufficient to establish appellee’s burden in seeking a modification of his existing support obligation.

Also, although appellee’s testimony concerning his health condition may be sufficient to explain his reasons for quitting a job, we find the trial court’s reliance upon Roberts v. Bockin, supra, to support appellee’s modification to be misplaced based on the record presently before this court. In Roberts, a mother, who suffered from an ulcer, testified that she voluntarily had quit her job on the advice of her doctor, but further evidence revealed that when she left her position, she was moving to England to take a job that her son was arranging for her. Also, her previous place of employment was closing within a few months of her quitting. When the mother arrived in England, she learned that her job there had fallen through. Subsequently, she moved back to the United States where she lived with family members until she secured a position after searching for a year. In ruling that the mother in Roberts had quit her job at the suggestion of her doctor and not to avoid her support obligations, we found that the trial court properly determined the mother’s ability to pay support when it used her actual earnings and not her earning capacity in light of the facts surrounding her employment. Roberts v. Bockin, supra. Clearly, if the instant case revealed evidence quantitatively similar to that in Roberts, appellee would have met his burden of modifying his support obligation. However, the record before us does not support sufficiently appellee’s request. Accordingly, we believe that the trial court abused its discretion in this matter; therefore, we vacate the present order. Inasmuch as the unallocated order previously in effect provided support for appellant as well as appellee’s son, we remand for a new hearing.

Order vacated. Remand for proceedings consistent with this opinion. Jurisdiction relinquished.

      . In Weiser, as quoted above, the court recognized that a parent should have some freedom of choice in employment situations, it nevertheless, reversed the trial court’s determination of support in that case because it found that the lawyer husband who left an established law firm to found his own firm had reduced his income but not his own standard of living. As stated by the court, "[m]ost certainly he has the right to establish his own business but not at the expense of his family whose life style he created based on $40,000.00 per year income which now must be changed to meet the new conditions while he continues to enjoy his usual high standard.” Weiser v. Weiser, supra, 238 Pa.Superior Ct. at 494, 362 A.2d at 290.


author: HOFFMAN, Judge:

text:
    596 A.2d 244
    COMMONWEALTH of Pennsylvania v. Saadia EVERETT, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 1, 1991.
    Filed Sept. 13, 1991.

      Gerald M. McClain, Linden, for appellant.
    Nancy L. Butts, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before MONTEMURO, KELLY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for aggravated assault and assault by prisoner. Appellant contends that the evidence was insufficient to support the verdicts. For the reasons that follow, we affirm the judgment of sentence.

On July 21, 1989, appellant, Saadia Everett, was convicted by a jury of simple assault, aggravated assault, and assault by prisoner. The charges arose out of an incident at the Restricted Housing Unit of the State Correctional Institutional at Muncy, where appellant was incarcerated. On January 9, 1989, appellant became involved in a conflict with a corrections officer who directed appellant to remove some blankets from her cell window. Viewed in the light most favorable to the Commonwealth, the testimony at trial indicated that appellant refused to comply with the correetions officer’s order and became verbally abusive. As a result, the corrections officer called for assistance. Six other corrections officers arrived to help transport appellant to the Restricted Housing Unit (RHU), a section of the correctional facility at which inmates are housed pending a disciplinary hearing. Upon learning that she was being taken to RHU, appellant became extremely distressed, because she would lose her parole date which was a little more than a week away. She became physically resistant and verbally abusive, scratching and kicking several of the corrections officers as they attempted to subdue her. They finally were able to handcuff her, and transported her to RHU. After appellant arrived at the RHU cell and her handcuffs were removed, Sergeant Betty Wertz informed her that she would have to undergo a routine strip-search. Appellant again became verbally abusive and indicated that she would not submit to a search. At the same time, she lunged forward and, as Sergeant Wertz was in the doorway of the cell, slammed the door. Sergeant Wertz’ hand was caught in the door and two of her fingertips were permanently severed. She also suffered broken bones and a back injury.

Based on this evidence, appellant was found guilty of aggravated assault, simple assault and assault by prisoner. Timely post-verdict motions were filed and denied. Appellant was sentenced to consecutive terms of incarceration of seven-to-fifteen years for aggravated assault and six-to-twelve months for assault by prisoner. This appeal followed.

All of appellant’s claims concern the sufficiency of the evidence. It is settled law that the test for evaluating the sufficiency of the evidence in a criminal case is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom upon which the court could properly have based its verdict, there is sufficient evidence to enable the trier of fact to find beyond a reasonable doubt every element of the crime of which appellant has been convicted. Commonwealth v. Davis, 491 Pa. 363, 369, 421 A.2d 179, 182 (1980).

Appellant first contends that the evidence was insufficient to support the verdict for aggravated assault. Appellant was charged under 18 Pa.C.S.A. § 2702(a)(1), which provides:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.

The jury specifically convicted appellant of attempting to cause serious bodily injury. Trial Court Opinion at 1 n. 1. Where an attempt is made to commit aggravated assault, the Commonwealth is required to prove specific intent. Commonwealth v. Magnelli, 348 Pa.Super. 345, 349, 502 A.2d 241, 243 (1985) (quoting Commonwealth v. Grassmyer, 266 Pa.Super 11, 16 n. 1, 402 A.2d 1052, 1054 n. 1 (1979)). “A person acts intentionally with respect to a material element of an offense when ... it is his conscious object to engage in conduct of that nature or to cause such a result.” 18 Pa.C.S.A. § 302(b)(l)(i). Such intent may be proved by direct or circumstantial evidence. Commonwealth v. Alexander, 477 Pa. 190, 194, 383 A.2d 887, 889 (1978) (citations omitted).

In the instant case, the Commonwealth presented both direct and circumstantial evidence. It presented the testimony of the victim, Sergeant Wertz, who described appellant as facing her when appellant “slammed” the cell door. Thus, according to Sergeant Wertz’ testimony, appellant saw that Sergeant Wertz was standing in the path of the door. Sergeant Wertz further testified that as appellant stepped forward to slam the door, she responded to Sergeant Wertz’ announcement regarding the strip search with anger and verbal obscenities. Moreover, the testimony of the seven corrections officers who subdued appellant before she was transported to RHU provided ample circumstantial evidence to prove the required intent. Immediately before the incident in question, appellant became so angry about being transported to RHU that seven corrections officers were required to subdue her. She used abusive and obscene language and kicked and scratched several of the guards. From this course of abusive conduct toward the corrections officers, the jury could infer appellant’s intent to cause serious bodily injury by slamming the door. Finally, there can be no question that the door had been “slammed,” not simply closed, as the force was sufficient to sever and break portions of the victim’s fingers. In light of these facts, we are satisfied that the evidence was sufficient to support the aggravated assault verdict.

Appellant also challenges the sufficiency of the evidence with respect to two elements of the assault by prisoner conviction. 18 Pa.C.S.A. § 2703 provides:

A person who has been found guilty and is awaiting sentence or a person who has been sentenced to imprisonment for a term of years in any local or county detention facility, jail or prison or any State penal or correctional institution or other State penal or correctional facility, located in this Commonwealth, is guilty of a felony of the second degree if he, while so confined or committed or while undergoing transportation to or from such an institution or facility in or to which he was confined or committed intentionally or knowingly commits an assault upon another with a deadly weapon or instrument, or by any means or force likely to produce serious bodily injury.

First, appellant claims that the evidence failed to establish the requisite intent for assault by prisoner. Second, she avers that the evidence failed to establish use of a deadly weapon or any means or force likely to produce serious bodily injury. Appellant’s claim that the evidence was insufficient to establish the requisite intent may be dismissed summarily. The crime of assault by prisoner requires “malice aforethought” by the defendant. Cf. Commonwealth v. Clark, 238 Pa.Super. 519, 523, 361 A.2d 779, 781 (1976). Malice is defined as “ ‘either an express intent to kill or inflict great bodily harm, or ... a ‘wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty,’ indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life.’ ” Commonwealth v. Paquette, 451 Pa. 250, 255-56, 301 A.2d 837, 840 (1973) (quoting Commonwealth v. Lawrence, 428 Pa. 188, 193-94, 236 A.2d 768, 771 (1968)). Malice may be inferred from the surrounding circumstances. Paquette, 451 Pa. at 256, 301 A.2d at 840. Again viewing the evidence summarized above in a light most favorable to the Commonwealth as the verdict winner, there was sufficient evidence from which a jury could infer that appellant attacked Sergeant Wertz with malice aforethought.

Finally, we must disagree with appellant’s assertion that the evidence failed to establish use of a deadly weapon or any means or force likely to produce serious bodily injury. Serious bodily injury is defined at 18 Pa.C.S.A. § 2301 as bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Evidence that appellant slammed a heavy steel door which was “larger than a standard size door,” N.T. at 64, while the victim was standing in the doorway, is sufficient to support a jury finding that this element was satisfied. It is certainly likely that slamming a cell door shut as appellant did could cause serious bodily injury.

Hence, we conclude that the evidence presented by the Commonwealth was sufficient to allow the trier of fact to find that appellant possessed the specific intent to attempt to inflict serious bodily injury on the victim, that she assaulted the victim with malice aforethought, and that the force used by appellant was likely to produce serious bodily injury. Accordingly, we affirm the judgment of sentence.

Judgment of Sentence Affirmed.

      . We recognize that there was conflicting testimony on this issue, as appellant testified that she was not facing the victim when the door closed, and that she merely shut the door, rather than slamming it. The jury was free to make its own determination as to which witnesses to believe, of course.