author: KELLY, Judge:

text:
    520 A.2d 424
    COMMONWEALTH of Pennsylvania, Appellant, v. Herbert FITZHUGH a/k/a George Butler, Appellee.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed Jan. 6, 1987.

      Karen L. Grigsby, Assistant District Attorney, Philadelphia, for Com., appellant.
    Michael J. Kelly, Assistant Public Defender, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and WICKERSHAM and KELLY, JJ.
   KELLY, Judge:

This case involves appeals by the Commonwealth from orders of the trial court granting the appellee, Herbert Fitzhugh, an arrest of judgment upon his conviction after a jury trial of a firearms offense 18 Pa.C.S.A. § 6108, and denying a motion to modify the sentence in accordance with the applicable provisions of the Mandatory Minimum Sentencing Act 42 Pa.C.S.A. § 9712. The trial court found that the evidence was insufficient to establish that the appellee possessed an “operable” firearm within the meaning of the Uniform Firearms Act, 18 Pa.C.S.A. §§ 6101 et seq. or the Mandatory Minimum Sentencing Act 42 Pa.C.S.A. § 9712.

The appellee contends that the order vacating judgment was the functional equivalent of a verdict of aquittal and that the Commonwealth’s appeals are barred by the double jeopardy provisions of the Pennsylvania and United States Constitution because reversal would lead to further fact-findings proceedings. The appellee also argues that the trial court correctly determined that the evidence was insufficient to sustain the verdict or to require application of the mandatory minimum sentence provisions of 42 Pa.C.S.A. § 9712.

The Commonwealth contends that the appeals are properly before this Court, and that the trial court abused its discretion in granting an arrest of judgment and in failing to impose the mandatory minimum sentence. The Commonwealth argues that no double jeopardy rights are implicated by the appeals because the appropriate remedy, should the Commonwealth prevail, is reversal of the orders, reinstatement of the verdict, and a directive to the trial court to resentence the appellee in accordance with the provisions of 42 Pa.C.S.A. § 9712. The Commonwealth notes that these remedies do not involve additional proceedings which involve determinations of fact as to the appellee’s guilt or any of the elements of the crimes of which he was convicted. Finally, the Commonwealth argues that the evidence was sufficient to sustain the verdict and application of the mandatory minimum sentence provision.

Upon review of the record, the briefs of the parties, the opinion of the trial court, and relevant legal authority, we find that the trial court properly granted an arrest of judgment upon the appellee’s firearm offense conviction. However, we find that the trial court abused its discretion in failing to apply the mandatory minimum sentence. The order granting an arrest of judgment on the firearms offense conviction is affirmed. Judgment of sentence is vacated and the case is remanded for resentencing in accordance with this opinion.

The salient facts may be summarized as follows. On the evening of November 18, 1983, the victim, Oliver Green, was walking home from work. Near the end of a footpath crossing the vacant lot between the intersections of Eleventh Street and Girard Avenue and Twelfth Street and Girard Avenue in Philadelphia, Mr. Green was accosted by the appellee, who knocked off Mr. Green’s non-prescription glasses and placed a gun against Mr. Green’s neck. The appellee demanded money. When Mr. Green replied that he had none, the appellee moved to a position two to three feet in front of Mr. Green with the gun pointed at Mr. Green’s chest. The light from a street lamp was shining directly on the appellee’s face.

The appellee then searched Mr. Green’s pockets for valuables and took from Mr. Green the pair of non-prescription glasses, a multi-function watch, and two gold chains. At one point during the armed robbery, Mr. Green, a twenty-year old golden gloves boxer, made a gesture toward the appellee as if preparing to throw a punch. The appellee taunted the victim by inviting him to try to hit him, and by informing his victim that it would be “an easy thing” to shoot Mr. Green and that he had “busted people before.” Mr. Green then decided not to offer further resistance.

Sometime during this process, the stem on Mr. Green’s glasses broke. The appellee returned the apparently valueless glasses. Mr. Green walked away, but the appellee called him back and, inexplicably, returned his watch. The appellee, still in possession of the gold chains, ran west on Girard Avenue and made his escape. Mr. Green promptly reported the crime, but the appellee was not apprehended.

Four months later, on March 20, 1984, the appellee walked past Mr. Green at a basketball court near the scene of the crime. Mr. Green recognized the appellee, followed him, eventually called the police, and identified the appellee when he was apprehended by police a short time later. The appellee was arrested and charged with two counts of Possessing an Instrument of Crime, Simple Assault, Terroristic Threats, two counts of Theft, Robbery, and Carrying a Firearm on a Public Street or Property. On April 5, 1984, the Commonwealth filed notice of its intention to proceed at sentencing under the Mandatory Minimum Sentencing Act. The appellee was tried by a jury on January 8 and 9, 1985 and was found guilty of Possession of an Instrument of Crime, Theft by Unlawful Taking, Robbery, and Carrying a Firearm on a Public Street or Property. The Commonwealth did not proceed on counts of Simple Assault and Terroristic Threats.

On January 18,1985, the appellee filed a post-trial motion requesting post-verdict relief stating:

1. The evidence, as presented, was insufficient to prove the petitioner guilty beyond a reasonable doubt. More specifically, the evidence failed to establish that the petitioner was the individual that robbed the complainant.

(Post-Verdict Motions at 1). Although counsel requested the right to file additional reasons in support of the post-verdict motion after review of the notes of testimony, no additional motions were filed. On May 30, 1985, post-trial motions were argued. Appellee’s motion for arrest of judgment was denied. However, the court, sua sponte, entered an arrest of judgment upon the firearms violation over the Commonwealth’s objections on both procedural and substantive grounds.

The same day, the trial court sentenced the appellee to an aggregate term of imprisonment of one and one half (IV2) years to three (3) years for robbery and possession of an instrument of crime. The trial court refused to impose a mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9712. On June 4, 1985, the Commonwealth filed motions to vacate the arrest of judgment and to modify the sentence. These motions were denied without a hearing on June 4, 1985. Timely notices of appeal were filed. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on February 20, 1986. The appeals were consolidated, and are now properly before this Court for disposition.

I.

Before proceeding to the merits of the appeals, we must dispose of the appellee’s contention that the instant appeals are barred by the double jeopardy clauses in the Pennsylvania and United States Constitutions. The appellee argues that despite the label of “arrest of judgment” the court’s sua sponte order was in reality a verdict of acquittal, made final by principles of double jeopardy. Alternatively, the appellee argues that the appeals violate double jeopardy protections because a decision in the Commonwealth’s favor would necessitate further fact-finding proceedings. Appellee cites Smalis v. Pennsylvania, 476 U.S.-, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986), in support of his contentions. However, upon review of the relevant legal authority, we cannot agree. Clear precedent establishes that neither appeal is barred.

In Smalis, the United States Supreme Court held “that the trial judge’s granting of petitioners’ demurrer at the close of the prosecution’s case was an acquittal under the double jeopardy clause, and that the Commonwealth’s appeal was barred because reversal would have led to further trial proceedings.” 476 U.S. at-, 106 S.Ct. at 1749, 90 L.Ed.2d at 122. The Court stated that “whether the trial is to a jury or to the bench, subjecting the defendant to post-acquittal fact-finding proceedings going to guilt or innocence violates the Double Jeopardy Clause.” Id., citing Arizona v. Rumsey, 467 U.S. 203, 211-212, 104 S.Ct. 2305, 2310-2311, 81 L.Ed.2d 164 (1984). (Emphasis added).

In Rumsey, the Supreme Court held that because the death penalty phase of a capital murder trial involved fact-finding proceedings equivalent to a separate trial on the issue of whether the death penalty was to be imposed, a second sentencing proceeding following a successful appeal by the state from a decision to impose a life sentence was barred. The previous life sentence imposed by the sentencing court as fact-finder was essentially an acquittal of the death penalty specifications. Significantly, the Supreme Court distinguished its previous decision in United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). In Wilson, the Supreme Court held that the prosecution could appeal from a judgment of acquittal entered by the trial judge after the jury had returned a verdict of guilty. In Rumsey, the Supreme Court stated:

No double jeopardy problem was presented in Wilson because the appellate court, upon reviewing asserted legal errors of the trial judge, could simply order the jury’s guilty verdict reinstated; no new factfinding would be necessary, and the defendant therefore would not be twice placed in jeopardy.

467 U.S. at 211, 104 S.Ct. at 2311, 81 L.Ed.2d at 172. Despite the difference in labels, this is precisely the situation presented in the instant appeal from the order granting an arrest of judgment.

The result in Wilson can be contrasted with the opposite result reached in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In Burks, the United States Supreme Court held that when the original verdict was overturned because the evidence was not sufficient to sustain the verdict, a remand for determination of whether to grant a new trial or to enter a judgment of acquittal violated the double jeopardy clause. 437 U.S. at 17-18, 98 S.Ct. at 2150-2151. The Supreme Court noted that the United States had not cross-appealed on the question of whether the reviewing court was correct in holding that the evidence was not sufficient to sustain the verdict. This waiver of appeal distinguishes Burks from the instant case.

In Municipal Court v. Lydon, 466 U.S. 294, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984), the Supreme Court that:

In Burks, supra, we recognized that an unreversed determination by a reviewing court that the evidence was legally insufficient likewise served to terminate the initial jeopardy.

466 U.S. at 308-309, 104 S.Ct. at 1813-1814. (Emphasis added). The Supreme Court explained that when acquittal is entered by the original finder of fact, the initial jeopardy terminates; but when a verdict of guilt is delivered, the original jeopardy continues throughout the appellate process. Id.

Following the reasoning in Wilson, supra, and Lydon, supra, we find that an arrest of judgment entered following a jury verdict of guilt does not become the functional equivalent of a verdict of acquittal until a final appellate decision upon the legal sufficiency of the evidence is made in the defendant’s favor. A decision by an intermediate appellate court, including a trial judge entertaining post-verdict motions, does not terminate the initial jeopardy. Lydon, supra; Burks, supra. Thus, the Commonwealth may properly appeal the order granting an arrest of judgment. Wilson, supra.

Likewise, we find that the Commonwealth may properly pursue an appeal from the judgment of sentence. See Pa.R.Crim.P. 1410; 42 Pa.C.S.A. § 9712(d). No sentence is final until the right of appellate review has been exhausted or waived. Commonwealth v. Anderson, 304 Pa.Super. 476, 482, 450 A.2d 1011, 1014 (1982). Thus, double jeopardy principles do not prevent the Commonwealth from pursuing a correction, modification, or increase in the originally imposed sentence. See Commonwealth v. Rainey, 338 Pa. Super. 560, 562-63, 488 A.2d 34, 35 (1985); see also United States v. DiFrancesco, 449 U.S. 117, 137,101 S.Ct. 426, 437, 66 L.Ed.2d 328 (1980); Commonwealth v. Gonzales, 350 Pa.Super. 373, 504 A.2d 886 (1986).

Appellant’s hopeful expectation that the United States Supreme Court would declare 42 Pa.C.S.A. § 9712 unconstitutional was not fulfilled. (Appellant’s Brief at 23). The Pennsylvania Supreme Court’s decision, upholding the validity of the statute and remanding for resentencing four cases in which the sentencing court failed to apply the mandatory minimum sentence, was affirmed by the United States Supreme Court. Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), aff'd sub. nom. McMillan v. Pennsylvania, 477 U.S. -, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).

In McMillan, the Court held that Pennsylvania may properly treat visible possession of a firearm under 42 Pa.C.S.A. § 9712 as a sentencing factor rather than an element of an offense which must be proven beyond a reasonable doubt. 477 U.S. at-, 106 S.Ct. at 2419, 91 L.Ed.2d at 79. Thus, a decision in the Commonwealth’s favor herein would not result in a remand for resolution of factual issues going to the elements of the offense charged; and therefore, Smalis, supra, does not control. Having found no double jeopardy violations, we now turn to the merits of the appeals.

II.

The Commonwealth first contends that the trial court erred in granting, sua sponte, an arrest of judgment on appellee’s conviction of a firearms violation. The Commonwealth argues that the trial court abused its discretion in considering the issue sua sponte, and committed an error of law in granting the arrest of judgment.

A.

Appellee filed a specific written post-verdict motion challenging the sufficiency of the identification evidence. A hearing on the motion was conducted on May 30, 1985, immediately prior to sentencing. Appellee’s motion was denied; however, the trial court went on to state, “I do, however, have some concerns whether or not the jury’s verdict of guilty for violation of the Uniform Firearm’s Act is supported by the evidence.” (N.T. 5/30/85 at 3). Both appellee’s counsel and the assistant district attorney indicated that they were under the impression that the firearms charge had been nol prossed. The trial judge then read to counsel the transcript of the verdict, which clearly indicated that the firearms charge had been submitted to the jury and that a guilty verdict was returned on that charge. (See N.T. 5/30/85 at 4-5, citing N.T. 1/9/85 at 74-75). The assistant district attorney, after reviewing his file, explained that the confusion was the result of the fact that two firearms charges were originally filed and that only one charge had been nol prossed. (N.T. 5/30/85 at 5).

An extended discussion of the sufficiency of the evidence to sustain the firearms conviction followed. (N.T. 5/30/85 at 5-11). Significantly, the assistant district attorney had argued the same issue before the same trial judge in a prior case and was able to present full argument to the court, including citation of relevant case law in support of his argument that the evidence was sufficient to sustain the firearms conviction and that operability of the firearm could be inferred. (N.T. 5/30/85 at 6, 10). At the close of the discussion, appellee’s motion for arrest of judgment on the firearm’s charge was formally stated on the record. (N.T. 5/30/85 at 11). The assistant district attorney then noted that in addition to its substantive objections to this motion, the Commonwealth also objected on the grounds that this specific complaint was not included in the defendant’s written post-verdict motions. (N.T. 5/30/85 at 11). The motion for arrest of judgment on the firearms conviction was granted, based upon the trial court’s finding that neither barrel length nor operability had been established. Trial Court Opinion at 4-6.

Ordinarily, “a post-verdict court’s erroneous consideration of orally presented allegations of error will not suffice to preserve the allegation for appellate review.” Commonwealth v. Philpot, 491 Pa. 598, 600, 421 A.2d 1046, 1047 (1980) (citing cases). Notwithstanding this general rule, we find that appellee’s oral post-verdict motion was properly-considered by the trial court and is properly before this Court on appeal.

Until the time of the hearing on appellee’s properly filed post-verdict motion, counsel for appellee erroneously believed the firearms charge had been nol prossed. Upon discovering that his client stood convicted on the firearms charge, counsel for appellee immediately attempted to pursue and preserve the issue of the sufficiency of the evidence to sustain the firearms charge. Consequently, we find that the failure to comply with Pa.R.Crim.P. 1123(a) was the result of ineffective assistance of counsel; and we find, based upon the unambiguous record, that the trial court properly considered the issue which ineffective counsel failed to properly preserve. See Commonwealth v. Upshur, 488 Pa. 27, 31, 410 A.2d 810, 812 (1980).

B.

The trial court found that the evidence was insufficient to sustain the firearms offense conviction because no evidence was presented regarding the barrel length, or operability of the firearm. Under 18 Pa.C.S.A. § 6102, “firearm” is defined as:

Any pistol or revolver with a barrel less than 12 inches, any shotgun with a barrel less than 24 inches, or any rifle with a barrel less than 15 inches.

Barrel length is an essential element of the offenses defined in the Pennsylvania Uniform Firearms Act. See Commonwealth v. Todd, 477 Pa. 529, 533, 384 A.2d 1215, 1217 (1978).

Upon careful review of the transcripts we can find no evidence, testimonial or otherwise, which would tend to establish the length of the barrel of the handgun used by the appellant. Lamentably, the prosecution’s inadvertant oversight in this regard compels this Court to affirm the order granting an arrest of judgment of the firearms offense conviction. See Commonwealth v. West, 334 Pa.Super. 287, 482 A.2d 1339 (1984); Commonwealth v. Rapp, 253 Pa.Super. 31, 384 A.2d 961 (1978).

III.

The Commonwealth’s second contention is that even if the arrest of judgment was properly granted with respect to the firearms conviction, the trial court erred in failing to sentence the appellant to the mandatory minimum sentence required by 42 Pa.C.S.A. § 9712. We agree, and accordingly vacate the sentence and remand for resentencing in accordance with the Act.

Initially, we note that the trial court is without authority to impose upon the offender a sentence below the mandatory minimum when the Commonwealth establishes by a preponderance of the evidence that the offender visibly possessed a firearm during the commission of an enumerated offense. 42 Pa.C.S.A. § 9712(c).

The trial court provided four reasons for refusing to apply the mandatory minimum sentence: 1) no post trial evidence was presented and the Commonwealth failed to preserve the trial evidence by requesting that it be incorporated into the sentencing hearing record; 2) requiring the defendant to present evidence on the issue of operability or barrel length would violate the privilege against self-incrimination; 3) the Commonwealth failed to establish barrel length; and 4) the Commonwealth failed to establish operability. We shall consider each of these alleged defects seriatim.

First, the Commonwealth is not required to preserve trial testimony nor move its incorporation into the record of the sentencing hearing. The plain wording of the Mandatory Minimum Sentencing Act provides:

The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence ____

42 Pa.C.S.A. § 9712(b). Once the Commonwealth has given reasonable notice of its intent to proceed under the statute, it is the mandatory responsibility of the court to review the relevant trial evidence and to permit the presentation of additional evidence. The Commonwealth may in its discretion choose to rest upon the evidence presented at trial. In the instant case, proper notice of intent to proceed under the statute was given. Therefore, it was an abuse of discretion and reversible error for the court not to consider the evidence presented at trial.

Next we must consider the trial court’s statement that:

To require the Defendant to introduce evidence relating to the issues inherent in the applicability of the Mandatory Minimum Sentencing Act (such as the barrel length of the gun or its operability) at trial, would be contrary to his Fifth Amendment privilege against self-incrimination and his right not to take the stand at all in addition to the constitutional requirement that the Commonwealth prove beyond a reasonable doubt all of the elements of an offense.

Trial Court Opinion at 7. We cannot agree.

With regard to the alleged Fifth Amendment violation, it is sufficient to note that the defendant may elect to address the issue of whether the mandatory sentence applies after his conviction at the sentencing hearing. See 42 Pa.C.S.A. § 9712(b), supra. Consequently, his right to remain silent at trial is not jeopardized. Thus, the Mandatory Minimum Sentencing Act procedures do not violate the appellee’s rights, they augment them.

Next, we must address the trial court’s statement that barrel length is an issue which is “inherent to the applicability” of the Mandatory Sentencing Act. The trial court is in error. Barrel length is not an issue to be considered in determining whether the offender visibly possessed a firearm in the context of 42 Pa.C.S.A. § 9712. Unlike the definition of “firearm” applicable to 18 Pa.C.S.A. § 6108, the definition of “firearm” contained in 42 Pa.C.S.A. § 9712 does not contain specific barrel lengths as a requirement to constitute a covered firearm. Compare 18 Pa.C. S.A. § 6102 and 42 Pa.C.S.A. § 9712(c). Hence, Todd, supra, West, supra and Rapp, supra, do not apply and barrel length is irrelevant.

Finally, we address the trial court’s statement that operability is an issue “inherent to the applicability” of the Mandatory Minimum Sentencing Act, and the trial court’s conclusion that operability was not established by a preponderance of the evidence. The trial court reasoned that because the handgun was not fired during the course of the robbery and because it was not produced at trial, the mandatory minimum sentence may not be applied because the Commonwealth has not established that the gun was operable. Again the trial court is in error.

In Commonwealth v. Horshaw, 237 Pa.Super. 76, 346 A.2d 340 (1975), this Court stated:

... the appellant claims that the evidence did not indicate that the weapon involved was operable. The Commonwealth, however, need not show the weapon to have been operable until evidence of its inoperability has been introduced into evidence.

237 Pa.Superior Ct. at —, 346 A.2d at 342. In Commonwealth v. Lee, 224 Pa.Super. 17, 302 A.2d 474 (1973), an en banc panel of this Court held that any evidence establishing that the defendant used an object which proports itself to be a firearm is sufficient to establish the use of a firearm “unless and until evidence is presented by either side establishing the inoperability of the gun involved.” 224 Pa.Superior Ct. at 19, 302 A.2d at 475.

Although Horshaw and Lee involved firearms offenses, we see no reason to adopt a different rule for cases involving application of the mandatory minimum sentence required by 42 Pa.C.S.A. § 9712. In the instant case, no evidence tending to establish inoperability was presented at trial or during the sentence hearing. Consequently, the Commonwealth was under no obligation to establish operability. Horshaw, supra; Lee, supra.

Moreover, this Court has consistently held that:

... a reasonable fact finder may ... infer operability ... from an object which looks like, feels like, sounds like, or is like a firearm ... without direct proof of operability.

Commonwealth v. Berta, 356 Pa.Super. 403, 409, 514 A.2d 921, 924 (1986); Commonwealth v. Jennings, 285 Pa.Super. 295, 304, 427 A.2d 231, 235 (1981), citing Commonwealth v. Layton, 452 Pa. 495, 498, 307 A.2d 843, 844 (1973).

In the instant case, the victim testified that a gun was placed against his neck and he could feel that it was made of steel or some other metal. The victim testified unequivocally that the appellee stood two and one-half to three feet in front of him with a gun pointed at his chest. Although the victim did not stare at the gun, he expressed no doubt as to whether it was in fact a gun. Additionally, the victim testified that the appellee threatened to shoot him with the gun. Cross-examination did not expose contradiction or doubt and the appellee presented no evidence in rebuttal. Hence, operability was not at issue.

Furthermore, upon review of the record available to the trial court at sentencing, we find that more than sufficient evidence was present to meet the burden of establishing visible possession of a firearm by a preponderance of the evidence. Indeed, the jury returned a verdict of guilty on the Possessing an Instrument of Crime charge after being instructed that in order to convict they must determine, among other things, that the appellee possessed “a handgun” beyond a reasonable doubt. Consequently, we find that the trial court abused its discretion and committed errors of law in failing to impose the mandatory sentence.

Based on the foregoing reasons, the order granting an arrest of judgment upon the firearms offense conviction is Affirmed; however, judgment of sentence is Vacated and the case is Remanded for Resentencing in accordance with the provisions of the Mandatory Minimum Sentencing Act.

      . 18 Pa.C.S.A. §§ 907(a) and (b), 2701, 2706, 3921 and 3925, 3701(a)(l)(ii), and 6108 respectively.

      . Appellee was also sentenced to a consecutive term of imprisonment of one (1) year to two (2) years on an unrelated robbery charge to which he entered a plea of guilty during the March 30, 1985 hearing.

      . The decision in Rumsey represents a very narrow exception to this rule. The Supreme Court has reasoned that aggravating circumstance specifications are elements of the crime of capital murder and that death penalty phase sentencing hearings are the functional equivalent of a second trial on the issue of whether to apply the death penalty. In this unique context double jeopardy principles apply.

      . We distinguish Rumsey based upon the fundamental differences between the sentencing hearing authorized in 42 Pa.C.S.A. § 9712 and the trial-like death penalty hearing authorized by Ariz.Rev.Stat.Ann. § 13-703. See also Poland v. Arizona, 476 U.S.-, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986).

      . We note that in finding that failure to comply with Pa.R.Crim.P. 1123(a) was the result of ineffective assistance of counsel, we affirm a finding which is implicit in the trial court's consideration of the oral motion made during the hearing on the written post-verdict motion.

      . If the Commonwealth had raised an allegation of prejudice due to lack of prior notice of the firearms issue, or if the record had been ambiguous as to what issues had been raised, we would be compelled to remand for the filing and arguing of a written post-verdict motion nunc pro tunc. See Commonwealth v. Upshur, 488 Pa. at 34-37, 410 A.2d at 813-14 (Larsen, J. dissenting); Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978). Indeed, the better procedure would have been for the trial court to have continued the hearing and permitted appellee to file a written motion in compliance with Pa.R. Crim.P. 1123(a). Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977). Because there is no allegation of prejudice, and because the record is more than adequate to provide meaningful appellate review, we address the issue without remand.

      . A defendant who exercises his right to remain silent voluntarily relinquishes the right to present evidence on his own behalf, and it is for the defendant to balance the risks and benefits in making this decision. See McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971); Commonwealth v. McFadden, 464 Pa. 265, 346 A.2d 550 (1975). Therefore, the defendant’s election to exercise the right against self-incrimination cannot be used to place upon the Commonwealth the burden of disproving a post-verdict claim of inoperability which was not raised at trial. See Commonwealth v. Horshaw, 237 Pa.Super. 76, 346 A.2d 340 (1975) (infra).
      Additionally we note that if the appellee desired to raise the issue of operability at trial he was free to do so by cross-examination of Commonwealth witnesses, presenting evidence through defense witnesses, or by taking the stand and offering testimony himself. Invocation of the privilege removed only one of these options.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    520 A.2d 433
    Robert C. BOLUS, D.B. & B. Realty Company, Inc. and Key Brockway, Inc. The UNITED PENN BANK, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 4, 1986.
    Filed Jan. 7, 1987.

      Arthur L. Piccone, Wilkes-Barre, for appellant.
    Michael H. Roth and Michael J. Donohaue, Scranton, for appellees.
    Before WICKERSHAM, HOFFMAN and BECK, JJ.
   BECK, Judge:

This appeal arises from the grant of summary judgment to plaintiffs-appellees Robert C. Bolus, D.B. & B. Realty Company, Inc. and Key Brockway, Inc. (“Bolus”) in an action for a declaratory judgment. The defendant-appellant is The United Penn Bank (the “Bank”).

Robert C. Bolus and the two appellee corporations, both of which are solely owned by Bolus, have for some time been engaged in the trucking business. In connection with this business, beginning in 1977 Bolus secured various types of financing from the Bank. One of the loans the Bank extended to Bolus was a $500,000 loan made on June 13, 1977 and evidenced by a confession of judgment Note. Repayment of ninety percent (90%) of this loan was guaranteed by the Small Business Administration (the “SBA”). In Bolus’ declaratory judgment action he sought a declaration that the Bank had no perfected security interest in certain escrowed insurance proceeds. The Bank claimed that these funds were subject to a security interest in its favor and constituted a portion of its security for the Note.

Because we find that the trial court lacked subject matter jurisdiction over this action as a result of Bolus’ failure to join the SBA as a party defendant, we vacate the trial court’s order and dismiss the action.

The crucial event giving rise to this action was a fire at one of Bolus’ business locations. This fire resulted in the destruction or partial destruction of real estate consisting of a building and personal property located therein. It is apparently conceded by Bolus that the Bank did have a security interest, a mortgage, in the destroyed building which secured the Note. However, Bolus denies that the Bank had a security interest in the destroyed personal property. At the time of the fire, it would appear that Bolus was already in default in its payments on the Note and that the Bank had confessed judgment against Bolus under the Note.

In 1981, presumably shortly after the fire, Bolus instituted a related action in the Lackawanna County Court of Common Pleas against its fire insurance carriers to recover the value of the destroyed property. The carriers denied coverage and the parties prepared for trial. On March 15, 1984, shortly before the beginning of the trial, the Bank filed a Petition to Intervene in the action. The Bank claimed that it had an interest in the fire insurance proceeds that the action might produce based on the Bank’s alleged security interests in the destroyed property.

One month later, a hearing on the Bank’s Petition was conducted before The Honorable James J. Walsh. At that hearing, counsel for Bolus and the Bank reached certain agreements as to the disposition of the proceeds of the fire insurance policies that Bolus might recover in the action.

As to the building, the parties agreed that the proceeds would be used to repair and rebuild. As to the personal property, the parties stipulated as follows:

As to the personal property issue, it has been agreed by the parties that any proceeds received by the plaintiffs for the personal property shall be placed in an escrow account at a bank to be chosen by the plaintiffs and that counsel for United Penn Bank and counsel for the plaintiffs will use their best efforts to set up an appointment with the Small Business Administration as soon as possible to resolve the disposition of the monies held in escrow, and that when the disposition occurs, the money shall be released as per the agreement worked out with the SBA, the plaintiffs and United Penn Bank. And that, in consideration for that agreement, the United Penn Bank will withdraw its petition to intervene in this action.

(R. la at 13-14).

Thereupon, the Bank petitioned for the discharge of the Rule to Show Cause that had been entered on the Bank’s Petition to Intervene and on April 18, 1984, the trial court entered the following Order:

ORDERED that the Stipulations entered of record, by and between counsel, the above term and number, shall be recorded by the Court and made a part of the official record and that thereafter it is the FURTHER ORDER of this Court that the Rule to Show Cause filed in the above-captioned amtter [sic] is dismissed.

(R. la at 7).

Bolus recovered $150,000 in insurance proceeds attributable to the destroyed personal property. These funds were placed in an escrow account as agreed by Bolus and the Bank. Unfortunately, the parties’ attempts to agree on the distribution of the funds (in which attempts the SBA participated) proved fruitless.

Thus, on March 29,1985, Bolus commenced the Action for Declaratory Judgment in the Lackawanna County Court of Common Pleas that gave rise to this appeal. In that action, Bolus sought a declaration “that they [plaintiffs] alone are entitled to the funds in escrow” and further sought the entry of an order “directing that said funds be released forthwith to the Plaintiffs.” (R. la at 6). The Bank was the sole defendant in the action. SBA was not made a party.

Bolus moved for summary judgment and the trial court entered an Order granting summary judgment in favor of Bolus and against the Bank on March 12, 1986. The trial court’s order recited that the Bank had no interest in the inventory that the insurance proceeds replaced and expressly directed that the escrowed funds be released to Bolus.

The Bank’s sole contention on appeal is that the entry of summary judgment was inappropriate in light of the prior recorded agreement of the parties to use their best efforts to negotiate the disposition of the funds and to leave the funds in escrow pending such agreement. Although we are of the opinion that the Bank’s argument contains a definite ring of truth, we do not decide this case on that ground. Rather, as previously noted, we find that the trial court did not have subject matter jurisdiction of this action.

We note preliminarily that the fact that none of the parties below raised the issue of lack of subject matter jurisdiction presents no obstacle to our resolution of this case on that ground. As the Supreme Court recently stated in Vale Chemical Co. v. Hartford Accident and Indemnity Co., 512 Pa. 290, 516 A.2d 684 (1986), Pennsylvania Rule of Civil Procedure 1032(2) allows a court to raise sua sponte issues of subject matter jurisdiction and failure to join an indispensable party. Id., 512 Pa. at 294 n. 1, 516 A.2d at 686 n. 1 (expressly disapproving any suggestion to the contrary in Friestad v. Travelers Indemnity Co., 452 Pa. 417, 306 A.2d 295 (1973)). See also Bracken v. Duquesne Electric and Manufacturing Co., 419 Pa. 493, 215 A.2d 623 (1966) (whether declaratory judgment action is proper is first question on appeal; fact that no party raised issue is not controlling).

The Declaratory Judgments Act, 42 Pa.Cons.Stat.Ann. § 7531 et seq. (1982), contains, as an express prerequisite to a declaratory judgment action, the joinder of certain parties. Section 7540 of the Act states:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration and no declaration shall prejudice the rights of persons not parties to the proceeding. ...

Id. § 7540.

In Vale Chemical, supra, the Supreme Court construed Section 7540 in a manner consistent with the Court’s prior opinions and held that Section 7540 represented a mandatory jurisdictional prerequisite. Thus, the Vale Chemical Court dismissed a declaratory judgment action by an insured against two insurance companies seeking a declaration as to the insured’s defense and indemnification rights because the plaintiff in the action against the insured which gave rise to the coverage issue was not a party to the declaratory judgment action. Vale Chemical, 512 Pa. at 294-295, 296, 516 A.2d 686, 688 (citing, inter alia, Carlsson v. Pennsylvania General Insur. Co., 417 Pa. 356, 207 A.2d 759 (1965); Keystone Insur. Co. v. Warehousing & Equip ment Corp., 402 Pa. 318, 165 A.2d 608 (1960)). The Court rested its holding on the clear interest of the non-joined plaintiff in having the insurance companies pay any judgment the plaintiff might recover against the insured. Id. 512 Pa. at 296, 516 A.2d at 686.

Section 7540 and its predecessor section (12 P.S. § 841) have been similarly construed in numerous cases involving diverse factual scenarios. For example, in refusing to grant summary judgment in a case within its original jurisdiction, where plaintiff sought a declaratory judgment as to the legality of a decision by county commissioners to reduce a fire department workforce, the Commonwealth Court determined that the action could not proceed without the joinder of those firemen whose employment status would be affected by the Court’s declaration. County of Allegheny v. Commonwealth, 71 Pa.Commw. 32, 453 A.2d 1085 (1983). See also Bracken v. Duquesne Electric and Manufacturing Co., supra (action for declaratory judgment to determine voting rights of shareholders cannot be maintained without joinder of all shareholders); Mains v. Fulton, 423 Pa. 520, 224 A.2d 195 (1966) (action for declaratory judgment to determine whether right-of-way exists cannot be maintained without joinder of all property owners in development where alleged right-of-way exists).

Only in cases where the interest of the non-joined party is indirect has a declaratory judgment action been permitted to proceed without that party’s participation. In such cases, the court has apparently determined that the impact of its declaration on the non-joined party will be remote or of little importance. Such was the decision of the Commonwealth Court in Mid-Centre County Authority v. The Township of Boggs, 34 Pa.Commw. 494, 384 A.2d 1008 (1978). The Mid-Centre Court determined that the Department of Environmental Resources (“DER”) need not be joined in a declaratory judgment action where compliance with DER’s regulations was not at issue, but rather the action focussed on which of several parties bore responsibility for compliance. Id. at 499-501, 384 A.2d 1011-12. See also Burnham Coal Co. v. PBS Coals, Inc., 65 Pa.Commw. 86, 442 A.2d 3, aff'd per curiam, 499 Pa. 59, 451 A.2d 443 (1982) (Section 7540 provides a specialized concept of what constitutes an indispensable party in declaratory judgment actions).

We find that the case before us presents a classic example of the situation Section 7540 seeks to avoid. There is no question that the SBA is a party who has or claims an interest which would be affected by the declaration of the trial court. The declaration here determined that the Bank had no interest in a substantial fund of money that the Bank strenuously argued was a portion of its security for the loan to Bolus. Moreover, the trial court’s order expressly directed that the fund be released to Bolus alone.

The impact of the declaration and order on the SBA is clear. The SBA Loan Authorization that the SBA provided to the Bank expressly required, in a section entitled “Loan Conditions Required by Lender and SBA”, that the Bank obtain certain security for the loan, including a first lien perfected security interest in certain of Bolus’ personal property, including inventory. Thus, the SBA itself was clearly relying on the destroyed property, consisting of inventory, or the proceeds of any insurance coverage thereof, as partial security for the loan. And it is beyond peradventure that to the extent that the Bank was declared to have no interest in the alleged collateral, the SBA’s possible exposure on its guarantee of the underlying obligation was correspondingly increased.

The agreement between Bolus and the Bank in the fire insurance case and the pleadings in this declaratory, judgment action themselves lend further support to the already manifest interest of the SBA in this action. The recorded stipulation of Bolus and the Bank was to negotiate the disposition of the escrowed funds with the SBA. This is clear evidence of the fact that both parties recognized from the outset the equal if not predominating financial interest of the SBA in the resolution of this dispute. Indeed, apparently Bolus recognized the potential difficulty inhering in the non-joinder of the SBA when it alleged in its petition for a declaratory judgment that the Bank “at all times material hereto represented the interest of the Small Business Administration.” (R. la at 2). The Bank specifically denied this allegation in its Answer to the petition, stating that it had never represented the SBA in connection with the loan to Bolus. Finally, certain portions of Bolus’ Motion for Summary Judgment actually appear to be seeking an adjudication of SBA’s rights as to the fund despite the non-joinder of the SBA. The Motion alleges at one point that neither the Bank nor the SBA have any valid interest in the subject inventory or the fund that replaced it. It also states that the parties have been unable to reach an agreement as to the disposition of the funds in escrow and that the SBA refused to participate in any agreement as to those funds. (R. lc at 5) (emphasis added).

In granting summary judgment, the trial court permitted Bolus to obtain a declaration that clearly impacted on the SBA in an adverse manner without permitting the. SBA to be heard on the issue presented. Prior to the entry of the trial court’s order, the disputed funds were in the hands of an impartial third party escrow agent. Now the funds are to be released and the Bank’s and the SBA’s rights thereto foreclosed. The trial court lacked jurisdiction to enter such a declaration.

The order of the trial court is vacated and the action dismissed.

      . Neither the briefs nor the record reveal when or where the fire occurred.

      . Some courts have not construed this requirement for a declaratory judgment action as being jurisdictional in nature, while others have recognized its mandatory jurisdictional nature but allowed an exception thereto where the declaration entered is in favor of the non-joined party and does not prejudice its rights. See Annotation, Declaratory Judgments — Parties, 71 A.L.R. 723 (1960) and cases cited therein. As our discussion below indicates, in this case Bolus cannot avail itself of this possible exception since the declaration the trial court entered clearly prejudiced the SBA.


author: HOFFMAN, Judge:

text:
    520 A.2d 437
    COMMONWEALTH of Pennsylvania v. Ronald PETTINATO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 24, 1986.
    Filed Jan. 12, 1987.

      Alonzo Burney, McKeesport, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before TAMILIA, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for burglary and conspiracy. Appellant contends that (1) the lower court erred in admitting the complainant’s testimony that appellant made an offer of compromise; and (2) the evidence was insufficient to support the convictions. Because these contentions are meritless, we affirm the judgment of sentence.

In March, 1985, appellant was arrested and charged with burglary, conspiracy, and the summary offense of criminal mischief. Following a bench trial, appellant was convicted on all charges. He was sentenced to a three-to-six year term of imprisonment and a five year term of probation, to run consecutively, and this appeal followed.

Appellant first contends that the lower court erred in in allowing the complainant to testify that appellant had made an offer of settlement before trial. Appellant argues that offers of settlement, and any admissions of guilt made during the course of negotiations, are not admissible in a criminal trial. We disagree.

In civil cases, evidence of offers of settlement of compromise are not admissible at trial. Durant v. McKelvey, 187 Pa.Superior Ct. 461, 463, 144 A.2d 527, 529 (1958). “The reasons for the rule are clear. First, the evidence that defendant expressed a desire to settle the case is not really evidence that the defendant was wrong____ Secondly, the law favors out of court compromise rather than litigation.” Commonwealth v. Terry, 275 Pa.Superior Ct. 184, 186, 418 A.2d 673, 674 (1980). This rule should not, however, apply to criminal cases.

In a criminal prosecution, the accused’s offer to pay money or otherwise “settle” the prosecution will be received against him, because that mode of stopping or obstructing the prosecution would be an unlawful act, and good policy could not encourage that mode of dealing with a criminal charge; hence such an offer is receivable for whatever inference may be drawn from it; subject, of course, to the accused’s explanation.

4 Wigmore, Evidence § 1061(d)(8)(3d ed.). Thus, an accused’s offer to make restitution to the victim is admissible as evidence of the accused’s consciousness of guilt. Commonwealth v. Melnyczenko, 238 Pa.Superior Ct. 203, 207, 358 A.2d 98, 100 (1976).

Here, the complainant testified that several weeks before trial, appellant approached her, admitted that he committed the burglary, and offered her $50 not to testify. N.T. September 24, 1985 at 13. On cross-examination, complainant testified that appellant offered her money “to settle the whole case.” Id. at 15. The policy behind excluding this type of evidence in civil cases does not apply in this instance. Criminal defendants, unlike civil litigants, do not have the choice of whether to forego their own prosecution. Compare Commonwealth v. Terry, supra (civil litigant may want to settle a case irrespective of belief that he or she is right in order to avoid lawsuit). Thus, appellant’s offer cannot be characterized as an attempt to avoid the inconvenience and expense of a lawsuit. Moreover, in criminal cases, the law does not favor out-of-court compromise over prosecution. See Pa.R.Crim.P. 314 (court may dismiss criminal case not committed by force or violence only if in interest of public, attorney for Commonwealth consents, satisfaction has been made to victim, and there is agreement as to who will pay expenses). In addition, we refuse to exclude this type of evidence when the offer of money to a witness in an attempt to prevent her testimony at trial is a felony of the third degree. See 18 Pa.C.S.A. § 4952(b)(2). Accordingly, we conclude that the lower court did not err in admitting evidence of appellant’s offer of settlement and admission of guilt.

Appellant next contends that there was insufficient evidence to support the convictions because there was conflicting testimony at trial. After reviewing the record and the parties’ briefs, we conclude that the lower court has adequately addressed this contention in its opinion. See Commonwealth v. Davis, 491 Pa. 363, 369, 421 A.2d 179, 182 (1980) (when confronted with a claim of insufficiency of evidence, this Court must view evidence in light most favorable to Commonwealth as verdict winner, together with all inferences that could be drawn therefrom, to determine whether there is sufficient evidence to enable trier of fact to find appellant guilty beyond reasonable doubt).

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

Affirmed.

      . This rule has been applied by our Courts in criminal prosecutions for fornication and bastardy. See Commonwealth v. Luciano, 205 Pa. Superior Ct. 397, 208 A.2d 881 (1965). The rule has not been extended because the nature of fornication and bastardy prosecutions differ from prosecutions for other offenses. In Luciano, this Court noted that:
      It would be incredible foy us to suggest that while encouraging the settlement of these proceedings we permit offers of settlement to be introduced either as admissions or to attack a defendant’s credibility-
      Moreover, common sense and experience alone tell us that in bastardy proceedings individuals are often prepared to compromise, regardless of guilt, in an attempt to avoid the notoriety, embarrassment, and humiliation attendant upon these proceedings.

        Id., 205 Pa.Superior Ct. at 400, 208 A.2d at 883. Because the factors that give rise to the rule of exclusion of evidence of settlement offers in fornication and bastardy proceedings do not exist in other types of criminal prosecutions, we decline to extend the rule to all criminal prosecutions. In addition, we note that fornication and bastardy are no longer criminal offenses and, thus, even this limited exception no longer applies.


author: CIRILLO, President Judge:

text:
    520 A.2d 439
    COMMONWEALTH of Pennsylvania v. Louis T. CHERPES, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1986.
    Filed Jan. 20, 1987.

      Thomas A. Livingston, Pittsburgh, for appellant.
    John H. Reed, Harrisburg, for Com., appellee.
    Before CIRILLO, President Judge, and ROWLEY and POPOVICH, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence for violation of the State Ethics Act and for unsworn falsification. We affirm.

The following issues are presented for our review: (1) whether the evidence was sufficient to convict appellant for violating the State Ethics Act and having committed the offense of Unsworn Falsification to Authorities; (2) whether the trial court erred in the admission of evidence; (3) whether the trial court erred in denying appellant’s request for a non-jury trial; (4) whether the judge erred in failing to recuse himself; (5) whether the trial court erred in imposing sentence; (6) whether the fine imposed was a violation of 65 P.S. § 409(c), 42 Pa.C.S. § 9726(c)(d), and Pa.R.Crim.P. 1407(c); (7) whether 65 P.S. § 409(c) is unconstitutional; (8) whether the trial court erred in refusing to allow appellant to respond to the Commonwealth’s argument; and (9) whether the conviction and sentence violate 65 P.S. § 407(9), as well as deprive appellant of the due process of law.

We will first summarize the salient facts as found by the trial court. Appellant, Louis T. Cherpes, conducted his own insurance agency in Ross Township, Allegheny County. He also conducted business through a West Virginia corporation known as Allegheny Consulting, Inc., and a Pennsylvania corporation known as Scurdo Industries.

In 1980, at the time of the alleged offenses, Cherpes served as Chairman of the Board of Commissioners of Ross Township, an elective position. At this time, the Board was considering a proposal for a new shopping mall by Frank Nascone, a real estate developer.

In April of 1980, while serving as Chairman of the Ross Township Board of Commissioners, Cherpes wrote to one of Mr. Nascone’s companies, Maret Development Corporation, to solicit insurance business. Maret accepted Cherpes’s bid for a large-scale, three-year policy. As agent for this policy, Cherpes received a standard commission which amounted to approximately $66,000.

One month later, on May 12, 1980, the Ross Township Board of Commissioners began formal action on Nascone’s proposed development, called the “Ross Park Mall.” On that date, Cherpes asked the township solicitor to draft a proposed ordinance endorsing Nascone’s application to rezone the land for his proposed development from residential to commercial.

On August 11, 1980, the Board approved an ordinance which rezoned Nascone’s land from residential to commercial. Cherpes voted in favor of this ordinance.

On September 14, 1981, Cherpes again voted in favor of ordinances which rezoned additional land needed for Nascone’s development. On December 14, 1981, the Board voted 5-4, with Cherpes in favor, to accept a deed from Nascone to the township for dedication of land to be used as a public street to connect the new Ross Park Mall development with an existing street. Prior to the above vote, in response to Cherpes’s request, the township solicitor informed Cherpes that “he knew of no reason why [Cherpes] could not vote.” At three subsequent meetings, Cherpes also cast his vote as a Board member in favor of Nascone’s development.

On or about April 24, 1981, Cherpes filed a financial disclosure statement, as required by law, but failed to include income derived from his insurance business or any income greater than $500 from a single source, as required by the Ethics Act.

The evidence therefore indicates that Cherpes sought the insurance business of Nascone, who was seeking concessions from the Board of which Cherpes was chairman. The record also discloses that the insurance agency which had formerly handled Nascone’s business was unceremoniously dropped. Nascone’s insurance policy was the largest that Cherpes had ever handled and it was secured without competitive bidding.

We will discuss the issues seriatim.

I

Cherpes asserts that the evidence presented at trial was insufficient to support his conviction for violation of the State Ethics Act, 65 P.S. §§ 403(a) & (b), and Unsworn Falsification to Authorities, 18 Pa.C.S. § 4904(a). We find that the evidence presented at appellant’s jury trial was sufficient to sustain his convictions.

Our standard of review in assessing the sufficiency of the evidence is to “view the evidence in the light most favorable to the Commonwealth as verdict winner, and accept as true all evidence and reasonable inferences therefrom, upon which if believed, the fact finder could properly have based its verdict.” Commonwealth v. Taraschi, 327 Pa.Super. 179, 185, 475 A.2d 744, 747 (1984).

A.

The sections of the State Ethics Act which the jury found Cherpes to have violated, 65 P.S. §§ 403(a) & (b), provide that:

(a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated.
(b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby.

(Emphasis added).

The record indicates that Cherpes solicited business for his insurance agency from a developer who needed the approval of the Board of Commissioners, on which Cherpes sat, in order for the development to succeed. It is also clear that the developer changed from his former insurance agency and gave Cherpes a substantial premium for a large policy shortly before Cherpes voted as a Board member in favor of several proposals presented to the Board by the developer.

Viewing all the evidence in the light most favorable to the Commonwealth as the verdict winner, and drawing all reasonable inferences therefrom, we conclude that the jury could find beyond a reasonable doubt that Cherpes used his position as Board member to gain the insurance premium from the developer with the understanding that Cherpes’s vote would be influenced thereby. Thus, we are satisfied that the elements of §§ 403(a) & (b) have been satisfied beyond a reasonable doubt.

Cherpes argues, however, that the trial court’s grant of a motion for judgment of acquittal on a bribery charge, pursuant to 18 Pa.C.S. § 4701, established that the insurance premium was not received in exchange for Cherpes’s favorable votes. Section 4701(a)(1) provides:

A person is guilty of bribery, a felony of the third degree, if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another: (1) any pecuniary benefit as consideration for the decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter by the recipient____

The elements of § 403(b) and § 4701(a)(1) are not the same. The plain language of § 403(b) refers to an understanding that a vote will be influenced by a public official’s acceptance of something of value. Section 4701(a)(1) refers to the acceptance of a pecuniary benefit as consideration for the public official’s vote. Thus, § 403(b) contemplates a much broader scenario than a simple quid pro quo transaction.

We also find support for our conclusion in principles of statutory interpretation. When seeking to construe legislative intent, we are instructed “to look to the occasion and necessity for the enactment, the circumstances under which it was enacted, the mischief to be remedied and the object to be obtained.” Township of Moon v. Police Officers of the Township of Moon, 508 Pa. 495, 504, 498 A.2d 1305, 1309 (1985); 1 Pa.C.S. § 1921(c).

When the Pennsylvania Legislature enacted the State Ethics Act, of which 65 P.S. § 403(b) is a part, it stated the purpose of the Act as follows:

Section 1. Purpose.
The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure.

1978 Pa.Laws 883. (emphasis added).

The stated purpose of the Legislature was to assure the public that the financial interests of public officials would not conflict with their duty to place the interests of the public before all other considerations. This is a much higher duty than the simple duty to refrain from engaging in bribery. Therefore, acquittal on a bribery charge does not determine elements necessary for prosecution pursuant to § 403(b).

Additionally, Cherpes makes a separate argument that under the principles of res judicata, the grant of a motion for judgment of acquittal on § 4701(a)(1) bars conviction on § 403(b). We disagree for many of the same reasons employed in the immediately preceding analysis.

The Pennsylvania Supreme Court has established that for purposes of res judicata, “the essential inquiry is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appear and assert their rights.” Callery v. Municipal Authority, 432 Pa. 307, 312, 243 A.2d 385, 387 (1968) (citing Hochman v. Mortgage Finance Corp., 289 Pa. 260, 137 A. 252 (1927)). See also Notoro v. Estate of Hyer, 239 Pa.Super. 10, 361 A.2d 766 (1976) (reiteration of essential inquiry for res judicata).

The ultimate and controlling issue in Cherpes’s conviction under § 403(b) was whether or not his vote as a member of the Board of Commissioners was influenced by the insurance premium that he solicited and received. This issue was not decided by a determination that Cherpes was not guilty of the more narrow charge of a clearly defined quid pro quo transaction under section 4701(a)(1). Therefore, because this controlling issue was not decided, we conclude that res judicata does not apply.

B.

Cherpes argues that the evidence presented at trial was insufficient to convict him of unsworn falsification under 18 Pa.C.S. § 4904(a)(1), which provides: “A person commits a misdemeanor of the second degree if, with intent to mislead a public servant in performing his official function, he: (1) makes any written false statement which he does not believe to be true.”

Cherpes filed a financial disclosure statement which failed to disclose certain income from his insurance business. He claims that he was out of town when the statement was due and that his wife completed as well as signed the form.

The following testimony was elicited from a witness at trial regarding the signature on the disclosure statement:

Q. And are you familiar with Mr. Cherpes’ handwriting?
A. I am.
Q. Do you recognize the signature?
A. It appears to be the signature of Mr. Cherpes.

In response to this testimony and Cherpes’s claim that he did not sign the statement, we note that the “credibility of a witness is within the exclusive province of the fact finder. ‘The fact finder is free to believe all, part or none of the evidence.’ ” Commonwealth v. Kersten, 333 Pa.Super. 343, 351, 482 A.2d 600, 603 (1984) (citing Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975)).

Drawing all reasonable inferences in favor of the Commonwealth, we conclude that the jury properly determined that Cherpes violated the elements of § 4904(a)(1).

C.

Cherpes also claims that based on Commonwealth v. McSorley, 189 Pa.Super. 223, 150 A.2d 570 (1959), the Commonwealth had a duty to establish that Cherpes, as a public official, acted with a “corrupt motive.” The short answer to such a proposal is this Court’s interpretation of the McSorley case wherein we held that McSorley “do[es] not in effect produce any greater protection for the public official facing criminal charges than the presumption of innocence common to all defendants.” Commonwealth v. Steinberg, 240 Pa.Super. 139, 156, 362 A.2d 379, 388 (1976).

II

Cherpes next contends that the trial court erred in admitting the testimony of Laverne Cammarata and Charles Banks, associates of the Alexander & Alexander Insurance Agency, the agency which had previously handled Nascone’s insurance business. Cammarata and Banks testified about a conversation they had had with Walter Klein, the controller-bookkeeper for Nascone. Essentially, Klein told them that regardless of what was submitted in its bid, a decision was made “to move the insurance” from Alexander & Alexander. Cherpes argues that this testimony violates the hearsay rule and his Sixth Amendment right of confrontation.

The trial court found that the testimony was properly admitted under the co-conspirator’s exception to the hearsay rule.

This exception allows statements by a co-conspirator to be admitted against an accused if the statements are made during the conspiracy, in furtherance thereof, and where there is ... other evidence of the existence of a conspiracy. Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1978). The co-conspirator exception applies even where no party has been formally charged with conspiracy.

Commonwealth v. Dreibelbis, 493 Pa. 466, 475, 426 A.2d 1111, 1115 (1981). For such testimony to be admissible, the Commonwealth must show: (1) a conspiracy existed between the declarant and the party against whom the evidence is offered; (2) the testimony sought to be admitted was made during the course of the conspiracy; and (3) there is other evidence to prove that a conspiracy existed. Commonwealth v. Kersten, 333 Pa.Super. 343, 350, 482 A.2d 600, 603 (1984). The trial court may admit such statements “upon only slight evidence of the conspiracy.” Kersten, 333 Pa.Super. at 350, 482 A.2d at 603 (emphasis added). The Commonwealth need not prove the conspiracy beyond a reasonable doubt; rather, it must prove the conspiracy by a fair preponderance of the evidence. Commonwealth v. Basile, 312 Pa.Super. 206, 458 A.2d 587 (1983). Moreover, for purposes of this rule, the conspiracy may be inferentially established. Dreibelbis, supra.

Appellant’s argument centers upon the trial court’s ruling that there was no proof of a “quid pro quo ” or understanding between himself and Nascone or Nascone’s agents in accepting Nascone’s business. Therefore, there was no proof of a conspiracy between appellant and Klein. Without proof of the conspiracy, appellant argues that Klein’s statement was nothing more than hearsay.

At first blush, appellant’s argument seems plausible. However, appellant’s reasoning is flawed. While it is true that the Commonwealth failed to prove a conspiracy beyond a reasonable doubt, such a finding does not establish that the Commonwealth also failed to establish the conspiracy, for purposes of admission of Klein’s statement, by a fair preponderance of the evidence.

We find that the record establishes the existence of the conspiracy by a fair preponderance of the evidence: Klein, on behalf of Nascone, directly handled the insurance negotiations with Cherpes; appellant was negotiating with Nascone while Nascone’s real estate zoning matters were pending before appellant; and both Cherpes and Nascone failed to disclose the existence of their business relationship. Clearly, the Commonwealth inferentially established the conspiracy for purposes of the exception to the hearsay rule, and consequently, there was no error or denial of appellant’s Sixth Amendment rights in admitting this testimony.

Ill

Appellant also challenges the trial court’s denial of his request for a non-jury trial. The court denied the motion because Cherpes’s “request ... [was] motivated by an obvious attempt to maneuver for a different forum.”

It is beyond question that “there is no constitutional prohibition to a court’s denial in appropriate circumstances, of a defendant’s request to be tried by a judge sitting without a jury.” Commonwealth v. Garrison, 242 Pa. Super. 509, 514-15, 863 [364] A.2d 388, 390 (1976) (allocatur denied). See also Commonwealth v. Hailey, 332 Pa.Super. 167, 480 A.2d 1240 (1984) (no absolute right to a bench trial); Commonwealth v. Edney, 318 Pa.Super. 362, 464 A.2d 1386 (1983) (same); Commonwealth v. Maxwell, 312 Pa.Super. 557, 459 A.2d 362 (1983) (court not constitutionally prohibited from denying request to waive jury trial); Commonwealth v. Giaccio, 311 Pa.Super. 259, 457 A.2d 875 (1983) (no absolute right to non-jury trial); Commonwealth v. Forrest, 305 Pa.Super. 297, 451 A.2d 540 (1982) (no constitutional reason why a court cannot refuse waiver). The decision to grant a waiver of a jury trial is one committed to the sound discretion of the trial court. Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982); Commonwealth v. Maxwell, supra; Commonwealth v. Giaccio, supra; Commonwealth v. Forrest, supra; Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978).

Commonwealth v. Kellum, 339 Pa.Super. 513, 522, 489 A.2d 758, 763 (1985) (Cirillo, J., concurring).

We find that the trial court did not abuse its discretion in denying the request. It is clear that appellant’s requests for recusal of the trial judge coupled with the subsequent request to waive the jury trial were nothing more than attempts to maneuver for a different forum. As in Kellum, a colloquy was not necessary to discern this. Id., 339 Pa.Superior Ct. at 518, 489 A.2d at 761.

IV

Cherpes raises four issues concerning the trial judge’s refusal to recuse himself: (1) the judge erred in undertaking to review the recusal motions himself; (2) the trial court erred in denying the recusal motions without an evidentiary hearing; (3) the court abused its discretion in denying the recusal motions; and (4) the trial court erred by applying the incorrect standard for reviewing such motions. We will address each of these claims seriatim.

A.

Appellant first argues that the trial judge erred in ruling upon the recusal motion rather than calling upon another judge to preside over the motion. In Reilly by Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985), the Supreme Court of Pennsylvania restated the long-standing rule regarding this issue:

The proper practice on a plea of prejudice is to address an application by petition to the judge before whom the proceedings are being tried. He may determine the question in the first instance, and ordinarily his disposition of it will not be disturbed unless there is an abuse of discretion. Due consideration should be given by him to the fact that the administration of justice should be beyond the appearance of unfairness. But, while the mediation of courts is based upon the principle of judicial impartiality, disinterestedness, and fairness pervading the whole system of judicature, so that courts may as near as possible be above suspicion, there is, on the other side, an important issue at stake: that is, that causes may not be unfairly prejudiced, unduly delayed, or discontent created through unfounded charges of prejudice or unfairness made against the judge in the trial of a cause. It is of great importance to the administration of justice that such should not occur. If the judge feels that he can hear and dispose of the case fairly and without prejudice, his decision will be final unless there is an abuse of discretion. This must be so for the security of the bench and the successful administration of justice. Otherwise, unfounded and ofttimes malicious charges made during the trial by bold and unscrupulous advocates might be fatal to a cause, or litigation might be unfairly and improperly held up awaiting the decision of such a question or the assignment of another judge to try the case. If lightly countenanced, such practice might be resorted to, thereby tending to discredit the judicial system. The conscience of the judge alone is brought in question; he should, as far as possible, avoid any feeling of unfairness or hostility to the litigants in a case. If the judge wishes a full exposition of the question of unfairness, he may follow the unusual practice of Judge PARKER and summon another judge to decide it, but he is not required to do so.

Id,., 507 Pa. at 220-21, 489 A.2d at 1299 (quoting Crawford’s Estate, 307 Pa. 102, 108-09, 160 A. 585, 587 (1932)).

Appellant’s reliance upon Municipal Publications, Inc. v. Court of Common Pleas, 507 Pa. 194, 489 A.2d 1286 (1985), is misplaced. Municipal Publications only requires the trial judge to call upon another judge to rule upon the motion when the trial judge

becomes a witness, id., feels it necessary to defend or explain his conduct on a factual basis, Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983), is personally interested in the outcome of the cause, In re Dunmore Borough’s Election, 299 Pa. 517, 149 A. 733 (1930), is so closely related to a party or their attorney that such personal interest can be presumed, see Canon of Judicial Conduct 3 C, or where the record shows that a particular ruling or rulings which materially prejudice the party seeking recusal resulted from express bias or ill will against that party, Danish, supra.

Reilly, 507 Pa. at 235, 489 A.2d at 1307 (Hutchinson, J., concurring) (footnote omitted). See also Commonwealth v. Satzberg, 358 Pa.Super. 39, 516 A.2d 758 (1986). Therefore, the trial judge did not err in deciding the recusal motion himself.

B.

Cherpes next contends that the trial court was required to hold an evidentiary hearing on the recusal motion. He bases this claim on the allegations contained in the motion concerning the judge’s impartiality and appearance of impartiality. This contention is without merit. The decision of the trial judge to decide the motion is final unless there is an abuse of discretion. Reilly. As discussed infra, we find that the learned trial judge did not abuse his discretion.

C.

Appellant also claims that the trial judge abused his discretion in denying the recusal motions. In support of this contention, appellant sets forth numerous factual allegations that he believes show the trial judge’s actual or apparent bias. However, there is no allegation that there was any type of improper communication between the judge and any other person, nor is there any allegation of any impropriety by the trial court.

Appellant, by undertaking a careful study of the trial judge’s campaign records, has attempted to show some type of improper relationship between the judge and the Commonwealth. As the learned trial judge notes in his opinion, these allegations “are the same sort of contacts that could be found to exist between any elected or appointed judge in the Commonwealth.”

By any stretch of the imagination, the trial court did not abuse its discretion.

D.

Finally, appellant argues that the trial court erred in applying an actual bias standard in reviewing the recusal motion. In Commonwealth v. Danish, 501 Pa. 15, 21, 459 A.2d 727, 731 (1983), the Pennsylvania Supreme Court held that “[t]he party who asserts that a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal.” We find that appellant has not met this burden.

V

Appellant Cherpes claims that the trial court erred by sentencing him to serve a two to four year term of incarceration for violation of § 403 of the State Ethics Act and a concurrent six to twelve-month term of incarceration for violation of 18 Pa.C.S. § 4904, relating to unsworn falsification. He was also ordered to pay a fine of $197,061 to the state treasury, pursuant to 65 P.S. § 409(c).

Cherpes contends that the trial court erred in imposing this sentence by (1) failing to state adequate reasons for its sentence; (2) failing to sentence within the Sentencing Guidelines; (3) failing to provide a contemporaneous written statement of the reasons for the alleged deviation from the Guidelines; (4) failing to adequately explain why a lesser sentence would depreciate the seriousness of the crime; and (5) imposing an allegedly unfair sentence.

(1) It remains well-settled in Pennsylvania that the trial court must state on the record the reasons for the sentence imposed. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Pa.R.Crim.P. 1405(b). We have recently ruled that the stated reasons for the sentence imposed “should reflect the judge’s consideration of the criteria enumerated in the Sentencing Code, as well as the circumstances of the offense and the character of the offender. However, the judge is not required to list the criteria of the Sentencing Code and detail his ... response to each.” Commonwealth v. Perry, 342 Pa.Super. 355, 357, 492 A.2d 1158, 1159 (1985) (citing Commonwealth v. Aldinger, 292 Pa.Super. 149, 436 A.2d 1196 (1981)).

Our review of the record indicates that the trial judge did consider the criteria enumerated in the Sentencing Code. The trial judge also noted that the Sentencing Guidelines allow for more severe sentences than are otherwise applicable when, as here, a defendant abused his position of public office. See 204 Pa.Code § 303.1(e). In addition, the trial judge considered the circumstances surrounding Cherpes’s violation of the State Ethics Act as well as Cherpes’s prior reputation as an upstanding member of the community and a devoted family man with no previous criminal record. Therefore, according to the rule in Perry, the trial court gave adequate reasons for the sentence that it imposed.

(2) Even if we were to agree that Cherpes could have been sentenced within the standard minimum range of the Guidelines, we must also recognize that the Guidelines permit the sentencing court to impose a more severe sentence for abuses of public office such as those involved here. See 204 Pa.Code § 303.1(e). Therefore, we cannot conclude that the sentence imposed was outside the Guidelines.

(3) Our decision that there was no deviation from the Guidelines precludes the need to address the claim that there was an inadequate explanation for such alleged deviation.

(4), (5) The gist of the remaining sub-issues is that the sentence imposed was excessive. We have determined above that the sentence imposed did not exceed statutory limitations. This court has established that “unless the sentence exceeds the statutory maximum or is so excessive as to constitute a manifest abuse of discretion, the trial court’s determination will not be disturbed.” Commonwealth v. Scarborough, 313 Pa.Super. 521, 533, 460 A.2d 310, 316 (1983) (citing Commonwealth v. Plank, 498 Pa. 144, 145, 445 A.2d 491, 492 (1982)). This court has also stated that “[i]f the sentence is within statutory limits there is no abuse of discretion unless the sentence is so manifestly excessive as to inflict too severe a punishment.” Commonwealth v. Russel, 313 Pa.Super. 534, 545, 460 A.2d 316, 322 (1983) (Cirillo, J., now P.J.). A sentence is not manifestly excessive if a court, after reviewing the circumstances of the crime and the background of the appellant, considers the gravity of the offense, appellant’s rehabilitative needs, and the need to protect the public. Commonwealth v. Martin, 328 Pa.Super. 498, 504, 477 A.2d 555, 558 (1984).

As we have discussed earlier, the trial judge reviewed the circumstances of appellant’s violation of the State Ethics Act, he reviewed appellant’s fine background, the gravity of the offense, appellant’s rehabilitative needs and the need to protect the public. Although the trial court did not think that incarceration would serve appellant’s rehabilitative needs or the need to protect the public, he properly relied on 42 Pa.C.S. § 9725(3) in concluding that a lesser sentence would depreciate the seriousness of the crime. Therefore, we cannot conclude that the sentence imposed was excessive or unfair.

VI

Cherpes argues that 65 P.S. § 409(c), which requires a penalty equal to three times the amount gained through violation of the State Ethics Act, must be construed in light of 42 Pa.C.S. § 9726(c)-(d) which require a sentencing court to limit the fine imposed in proportion to a defendant’s ability to pay. In Commonwealth v. Bidner, 286 Pa.Super. 100, 422 A.2d 847 (1980), we ruled that specific penalty provisions prevail over more general penalty provisions. Such is the situation here. The penalty provision in § 409(c) is specific, and based on the rule in Bidner, must prevail over the more general provision in § 9726(c). See 1 P.S. § 1933 (if conflict between special and general provisions exists, special provision shall prevail).

In upholding the fine imposed, we distinguish inapposite case law such as Commonwealth v. Gaskin, 325 Pa.Super. 349, 472 A.2d 1154 (1984), which does not refer to a statute such as the one involved here that requires the application of a specific formula for imposing a fine. Gaskin applies the theory of § 9726, which only refers to general provisions not superseded by a more specific statute. If the legislature had intended to impose treble damages through § 409(c) only according to the means of a defendant, we are confident that such language would have been included in the statute.

VII

Cherpes argues that 65 P.S. § 409(c) is a violation of due process and an unconstitutional encroachment on judicial power granted in Article V, Section 1 of the Pennsylvania Constitution.

Cherpes’s due process claim is based on the assertion that such mandatory penalties deprive the trial judge of an opportunity to exercise his discretion. The Pennsylvania Supreme Court recently refuted such an argument in upholding far more drastic Pennsylvania statutes requiring mandatory sentences for certain offenses. Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), aff'd sub nom. McMillan, et al. v. Pennsylvania, — U.S.-, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).

The Wright case decided the constitutionality of Pennsylvania’s mandatory minimum sentencing statute which required a minimum sentence of five years total confinement for persons found to be in visible possession of a firearm during the commission of certain felonies. In approving the statute in Wright, the court ruled that its effect “is merely to limit the discretion of the sentencing court in the selection of a minimum sentence____” 508 Pa. at 40, 494 A.2d at 362. The court continued by noting that a defendant has no cognizable right to leniency, and “no right to a particular punishment within the pertinent statutory range.” Id. See Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986). The Wright decision is based on the reasoning that once a defendant has been convicted of a crime, due process and judicial discretion are not offended by a legislatively mandated minimum sentence. The same reasoning applies to a statute requiring a minimum fine. Therefore, Cherpes’s due process argument must fail.

Regarding Cherpes’s claim that § 409(c) usurps the power conferred on the judiciary by Article V, Section 1 of the Pennsylvania Constitution, the Pennsylvania Supreme Court also ruled in Wright, supra, that “[i]t is the province of the legislature to determine the punishment imposable for criminal conduct.” Wright, 508 Pa. at 40, 494 A.2d at 361. Applying the rule in Wright to the mandatory fine in § 409(c), we must conclude that Cherpes’s argument on this point must fail, for it remains within the province of the legislature to determine the applicable fines for violation of the State Ethics Act.

VIII

Cherpes argues that defense counsel should have been given an opportunity to rebut the Commonwealth’s closing argument. Pa.R.Crim.P. 1116(b) allows each party to make a closing argument, with the Commonwealth arguing last. Cherpes claims that this Rule violates due process and his right to counsel by denying him the right to rebut the Commonwealth’s argument. We disagree.

It is axiomatic that “an act of the legislature enjoys a presumption of constitutional validity which is not overcome unless the law ‘clearly, palpably and plainly’ violates the constitution.” Commonwealth v. Heck, 341 Pa.Super. 183, 202-03, 491 A.2d 212, 222 (1985) (Orillo, J., now P.J.) (citing Commonwealth v. Robinson, 497 Pa. 49, 438 A.2d 964 (1981)). This presumption of validity also applies to the Rules of Criminal Procedure. Cherpes has not been denied an opportunity to present a closing argument. He simply was not permitted to rebut the Commonwealth’s closing argument. The procedure followed by the trial court is a time-honored practice of our criminal justice system which certainly does not deny Cherpes’s right to a fair trial. We cannot conclude that denying Cherpes a rebuttal “clearly, palpably and plainly” violates the constitution.

Cherpes also argues that Rule 1116 is unconstitutional because it deprives him of his right to representation by denying him a right to summation. The short answer to this argument is that Cherpes did present a summation, though not a rebuttal. Therefore, the argument falls of its own weight.

IX

Cherpes argues that his conviction and sentence violate 65 P.S. § 407(9) as well as due process of law.

The law is clear that “only those issues included in post-verdict motions will be considered for appellate review.” Commonwealth v. Gravely, 486 Pa. 194, 198-99, 404 A.2d 1296, 1298 (1979); Commonwealth v. Shain, 324 Pa.Super. 456, 471 A.2d 1246 (1984); Pa.R.A.P. 302(a). Although our review of the record indicates that Cherpes has not preserved this remaining issue for appeal, we recognize that the issue of a sentence’s legality cannot be waived. Commonwealth v. Norris, 498 Pa. 308, 319 n. 9, 446 A.2d 246, 251 n. 9 (1982); Commonwealth v. Cooke, 342 Pa.Super. 58, 68 n. 1, 492 A.2d 63, 69 n. 1 (1985).

Contrary to appellant’s assertion, the Ethics Act places no affirmative duty on the Ethics Commission to precede a criminal prosecution by affording the alleged offender a chance to remove himself from the conflict. The plain language of § 407(9)(ii) and (iii) provide no support for appellant’s assertion. Section 407(9)(ii) and (iii) provide that the Ethics Commission shall:

(ii) Provide written advice to any person upon their request with respect to such person’s duties under this act. Such advice shall be provided within 21 working days of the request, provided that the time may be extended for good cause. It shall be a complete defense in any enforcement proceeding initiated by the commission, and evidence of good faith conduct in any other civil or criminal proceeding, if the requester, at least 21 working days prior to the alleged violation, requested written advice from the commission in good faith, disclosed truthfully all the material facts and committed the acts complained of either in reliance on the advice or because of the failure of the commission to provide advice within 21 days of the request of such later extended time.
(iii) Initiate an inquiry where an opinion has not been requested but where there is a reasonable belief that a conflict may exist. Such inquiry shall be conducted in privacy with full respect to the confidentiality of all the parties involved in the alleged conflict. If the commission finds that there is a conflict, the information shall be provided for criminal proceedings unless the alleged offender removes himself from the conflict with[out] receiving financial gain.

(Emphasis added).

Section 407(9)(ii) does not apply to this case because there is no indication in the record that Cherpes requested advice from the Commission. Section 407(9)(iii) does not impose a duty on the Commission to allow the alleged offender an opportunity to remove himself from conflict before the Commission initiates criminal proceedings. The statute merely recognizes the common sense conclusion that criminal proceedings would not be initiated if the alleged offender removed himself from the conflict before violating the act — that is, before receiving financial gain.

Cherpes’s reference to McCutcheon v. Commonwealth, State Ethics Commission, 77 Pa.Cmwlth. 529, 466 A.2d 283 (1983), does not require a different result. McCutcheon merely reaffirmed the discretionary authority of the Ethics Commission to recommend criminal prosecution or dismissal of charges. The case does not provide a basis for the affirmative duty that Cherpes seeks to impose on the Commission.

Cherpes claims that his conviction and sentence are illegal because the Commission breached its duty to Cherpes by not allowing him to remove himself from the conflict before initiating criminal proceedings. Our foregoing analysis reveals that no such duty exists. Therefore, Cherpes’s claim of a due process violation, which is also based on the alleged violation ■ of a nonexistent duty, must also fail.

AFFIRMED.

      . Pa.R.Crim.P. 1407(c) does not mandate a different result. Like § 9726, Rule 1407(c) also is a general provision which requires the court to tailor the fine imposed to the defendant’s ability to pay. The rule in Bidner, supra, applies to make the specific provision of § 409(c) prevail over rule 1407(c). Nor is Cherpes without remedy if he is unable to pay. -Rule 1407(b) allows for payment through installments. See Commonwealth v. Scatena, 332 Pa.Super. 415, 442 n. 17, 481 A.2d 855, 869 n. 17 (1984). Cf. Rule 1407(a) (defendant shall not be imprisoned if he is financially unable to pay a fine).

      . Although Cherpes lists an equal protection violation in his statement of questions, he has waived this claim for failure to set out his position in the argument portion of his brief. See Pa.R.A.P. 2119, 2101.

      . Article V, § 1 provides:
      The judicial power of the Commonwealth shall be vested in a unified judicial system consisting of the Supreme Court, the Superi- or Court, the Commonwealth Court, courts of common pleas, community courts, municipal and traffic courts in the City of Philadelphia, such other courts as may be provided by law and justices of the peace. All courts and justices of the peace and their jurisdiction shall be in this unified judicial system.