author: POPOVICH, Judge:

text:
    668 A.2d 164
    COMMONWEALTH of Pennsylvania v. Anton B. SCHIERSCHER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1995.
    Filed Nov. 30, 1995.

      Patrick F. Lauer, Jr., Camp Hill, for appellant.
    Andrea F. McKenna, Deputy Attorney General, Harrisburg, for Commonwealth, appellee.
    Before POPOVICH, SAYLOR and BROSKY, JJ.
   POPOVICH, Judge:

The appellant, Anton B. Schierscher, appeals the judgment of sentence (aggregating 17-23 months imprisonment) for Threats and Other Improper Influences in Official and Political Matters, Retaliation for Past Official Action, Harassment, Stalking, Harassment by Communication or Address, and Obstructing or Impeding the Administration of Justice by Picketing, etc. We affirm.

The facts, viewed in a light most favorable to the verdict winner and drawing all reasonable inferences therefrom, reveal that between March of 1993 and January of 1994, the appellant engaged in a course of conduct aimed at Judge Jeannine Turgeon of the Court of Common Pleas of Dauphin County having its genesis in a dispute involving the appellant (landlord) and two of his tenants (Morris and Butts). The matter ultimately reached the Common Pleas Court for resolution in de novo trials.

The Morns case was the first to be decided against the appellant’s interest when he failed to appear for trial and an award of compensatory and punitive damages (totalling $7,500) was entered March 30, 1993. Likewise, the appellant failed to appear for the Butts case decided May 3,1993, but he was awarded a majority of the rental money paid into escrow, with an abatement of rent to the tenant.

After the Morris ruling, the appellant embarked on a campaign of leaflet distribution in and outside the Dauphin County Courthouse, as well as an endless stream of phone calls to Judge Turgeon, other members of the local judiciary and County Commissioners, denouncing the judicial system in general and Judge Turgeon in particular as robbing him of money and seeking recoupment of this “theft” from Judge Turgeon.

This almost year-long saga of discontent manifested itself in verbal communication (phone calls) and the printed word (leaflets), the first of which surfaced immediately after the Morris decision by the appellant phoning Judge Turgeon’s chambers and referring to her as “Judge Bimbo, ... a cockroach, ... a gangster, [and] a mobster.” And, albeit advised that his recourse was to appeal the decision, the appellant “demanded his money back from Judge Turgeon. He insisted that Judge Turgeon stole his money____” The appellant persisted in his efforts by contacting the Judge’s chambers demanding repayment and using the same derogatory remarks to identify the Judge.

After the Butts decision, the appellant did not relent in his telephonic contacts with the Judge’s office, which were taped until the end of August of 1993 and reactivated in November of 1993, and numbered at least twice a week during that period. In a December 3, 1993, communication, when the Judge’s secretary inquired if his intentions were to “alarm and disturb” the Judge, the appellant replied:

I would hope that my calls alarm her. I am working very hard at it. If my calls are disturbing wait until she sees what happens next.

The appellant “admitted” that his purpose was to upset the Judge. Also, the secretary was “very upset after each call. [She] was intimidated” because she never knew what the appellant would do given such statements as: “[W]ait and see what’s going to happen next.”

The'secretary stated that the Judge’s work habits changed with the onslaught of disparaging phone calls and accompanying fliers distributed throughout the Courthouse, to pedestrians and placed on vehicles in the area. Also, when the appellant obtained a confidential office memo and read it to the secretary to document his infiltration of the interworkings of the office, the Judge’s conduct changed drastically; to-wit: 1) the jurist began to carry a gun; 2) a peephole was installed in the door entering into the chambers; 3) office door locked at all times; 4) work environment changed between the secretary and Judge in that it became “more stressful”; 5) security guard had to be present in court before Judge would enter; and 6) Judge carried a weapon into courtroom.

To the preceding list, the Judge testified that security was increased in the Courthouse, and a lock was installed between her chambers and the courtroom, photographs of the appellant were placed at her chambers, distributed to Courthouse personnel, her baby-sitter and children. Further, her children’s play-habits were curtailed, bodyguard service was provided to and from the Courthouse, Judge stopped taking routine lunchtime walks, Judge’s home watched by city police, home phone was equipped to “register” all calls because of “hang-ups”, home security was activated more frequently, and informing her children of the appellant upset the Judge.

The jurist admitted that she spoke to the appellant on two occasions, but she was briefed by her secretary on the substance of all of the appellant’s calls, and Courthouse security advised her of the appellant’s activities within and about the Courthouse. Also, because the jurist had heard testimony in the Moms and Butts cases indicative of the appellant’s volatile behavior when he did not get his way, she believed the appellant was “a potentially very dangerous man.” Finally, the jurist testified that she felt “threatened” because of the frequency and substance of the appellant’s phone calls; to-wit:

a) July 26: Judge would be refunding the appellant’s money. “That [the appellant was] willing to bet on [it] ... [and] gonna pay for that plus interest.”
b) July 27: Appellant was told no repayment would be forthcoming, to which he responded: “Oh, yeah, well, I will — I’ll take it....”
c) Aug. 3: Appellant told Judge’s secretary: “This is her last week to straighten this mess up.”
d) Aug. 11: Appellant’s message to Judge: “Tell that stinkin’ bitch I will collect.”
e) Dec. 6: Appellant was asked if he believed his calls were . emotionally upsetting, to which he answered: “I would hope so, I work hard enough at it. If she thinks she’s upset now she hasn’t ... seen the beginning of it yet.”
—Appellant asks if the Judge’s “bodyguard ... i[s] ... still in the bodyguard business.”
—Appellant was told that Judge did not know what he was . going to do next and he said: “oh, I bet.”
—Pamphlets were discussed and the appellant stated: “... that’s just the beginning.” And, to “[t]ell Judge Turgeon to send [him] the money back that she stole and ... then he stops.” He further indicated that “so far [he’s] made good on ever [every] threat that [he] made.” Also, when he was asked if he was “returning that fear to the judge because of what [has been] done,” the appellant remarked: “oh, yes, I think I’m doing a fine job. If she thinks she’s upset now, I’ve just begun____ Then, the appellant spoke about the fear that the Judge instilled: “She’s getting a taste of it now. I’d say I’m' doing a pretty good job of that ... tell that cockroach Jeannine Turgeon that I’ve just begun.”
—Appellant phoned a second time and was advised that the calls were serving no legitimate purpose. He responded: “... by the time ... I’m done with her she’s gonna wish to God that she never stole a penny from me or anyone else. Oh, I’ve just begun.” And “she is just now getting a taste of the beginning of it.”
f) Dec. 7: Appellant phones and talks about the bodyguard for the Judge and her carrying a gun “to let [her] know that he’s watching ... and knows what is going on.”
—Although the appellant was told that his calls were making the Judge ill, he retorted: “Well, I hope so.” When told to cease, the appellant said: “I decide when I stop and when I start * * * and [to] tell that stinkin bitch I will get the money back.”
g) Dec. 15: Appellant phoned to say: “If I don’t see some effort before Christmas it’s going to be a heavy interest. She can bank on that.”

It was the defense’s position throughout the trial that the appellant’s intent was to effectuate a change in the landlord/tenant procedure (via leaflet/sign distribution and phone calls to judges, commissioners and the district attorney) regarding the method by which rent was escrowed with the prothonotary. He argued he expended no energy toward threatening, annoying and/or alarming Judge Turgeon in attempting to alter either Morris or Butts.

The jury, after listening to all the evidence, found the appellant guilty as charged. Post-trial motions were denied, sentence was imposed and this appeal followed raising six issues for our review, the first of which claims that the trial court erred in labelling as irrelevant and inadmissible the testimony of several witnesses; namely:

1) Virginia Antonoplos: She would have testified to assisting the appellant in distributing fliers and writing letters to various legislators and the Department of Public Welfare. In addition, the proposed witness would have disclosed the appellant’s “intention” in embarking on this episode of alleged change and reform of the landlord/tenant procedures in the County.
2) Messrs. Carr and McLaughlin: The two were proffered as witnesses experiencing “problems” with the Central Pennsylvania Legal Services (the organization representing indigent tenants, such as Morris and Butts, of which the appellant was complaining) and they would opine that, from a review of the evidence, the appellant posed no “threat” to anyone.
3) Judges Morrison, Hoover and Morgan: These Jurists filed a joint motion to quash subpoenas served by the appellant, which was granted pre-trial on the basis that their testimony would have been irrelevant.

In deciding whether proposed evidence is relevant, material and admissible, it must first be established that such information “tend[s] to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Black’s Law Dictionary 1160 (5th ed. 1979).

We find that Ms. Antonoplos’ testimony would not have been illuminating on the charges listing Judge Turgeon as the object of the appellant’s behavior (repeated phone calls, disparaging remarks and implied threats of retaliation for rulings against his interest and retention of his money). Thus, the court did not err in sustaining the Commonwealth’s objection and excluding the testimony as irrelevant.

The same result obtains with regard to Messrs. Carr and McLaughlin and the named Judges, none of whom had information to offer countering Judge Turgeon’s claims of harassment and interference with her official judicial duties as charged against the appellant.

The second averment of trial error concerns instructions to the jury on the offense of Obstructing or Impeding the Administration of Justice by Picketing, etc. (18 Pa.C.S.A. § 5102(a)), whereby the trial court “directed the jury to consider[, inter alia,] the Defendant’s telephone calls made to the courthouse as part of the required ‘demonstration’ ” sufficient to establish a violation of Section 5102.

Inasmuch as the appellant failed to object to the instructions before the jury retired for deliberation (see N.T. 494-496, 500), we hold that this issue has not been preserved for appellate review. Pa.R.App.P. 302(a).

The third issue assigns the trial court with error by instructing the jury on “new or different elements beyond those contained in the Information” regarding the charges of Harassment by Communication and Obstructing or Impeding the Administration of Justice by Picketing, etc. In particular, the Commonwealth charged the appellant under 18 Pa.C.S.A. § 5504(a)(1) as follows:

Continuing from the beginning of March, 1993, through and including January 19, 1994, acting with the intent to harass, annoy or alarm another person, Judge Jeannine Turgeon, the Defendant, Anton B. Schierscher, engaged in a course of conduct or repeatedly committed acts, which alarmed or seriously annoyed Judge, and which served no legitimate purpose.

The appellant quotes the trial court as instructing the jury that:

A person commits a misdemeanor of the third degree if with the intent to harass another he makes telephone calls without the intent of legitimate communication or address to or about such other person in any lewd, lascivious, or indecent words or language or telephones another person repeatedly or makes repeated communications anonymously or at extreme[ly] inconvenient hours or in offensively coarse language.

N.T. 493-494. Aside from the fact that the appellant failed to object to the allegedly defective instruction rendering the claim waived (see Rule 302(a)), if such were not the case, our examination of the record discloses that the appellant excludes the language immediately succeeding the complained-of definition of the offense of Harassment by Communication, whereby the trial court explained the conduct the Commonwealth believed constituted a violation of Section 5504-(a)(l); to-wit:

... the Commonwealth contends that this Defendant through the period of March 1993 through and including January of 1994 acted with intent to harass another[,] Judge Jeannine Turgeon[;] the Defendant repeatedly made telephone calls to her chambers or other offices in Dauphin County Court without the intent of legitimate communication.

N.T. 494. Reading the instruction as a whole, and not with judicial blinders, Commonwealth v. Rodgers, 459 Pa. 129, 327 A.2d 118 (1974), we conclude that the jury, in fact, was advised of the elemental aspects of the offense of Section 5504(a)(1) and no error was committed in regard thereto.

In respect to the allegedly erroneous instruction provided by the trial court as to the offense of Obstructing or Impeding the Administration of Justice by Picketing, etc., the appellant, again, neglected to bring to the trial court’s attention the claimed error in advance of the jury deliberating. As such, the issue falls prey to the waiver doctrine invoked when issue-preservation is ignored. See Commonwealth v. English, 446 Pa.Super. 569, 667 A.2d 1123, 1126-1127 (1995).

The fourth issue posed for examination is the appellant’s assertion that his conviction for Obstructing or Impeding the Administration of Justice by Picketing, etc. was violative of his constitutional right to “ ‘demonstrate]’ in or near the Dauphin County Courthouse wh[ile] addressing] matters completely unrelated to any judicial proceeding^ i.e.,] ... advocating a change in local landlord-tenant policy.” Appellant’s Brief at 34.

Under Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), a State may promulgate laws designed to prohibit demonstrations in or near a courthouse, provided the law’s intent is to discourage the influence of judges in the discharge of their duty to administer justice.

In Cox, the United States Supreme Court upheld a statute similar to the one under attack here. In doing* so, the Court found that as applied and on its face the statute was not unconstitutional and stated in support thereof that:

There can be no question that a State has a legitimate interest in protecting its judicial system from the pressures which picketing near a courthouse might create. Since we are committed to a government of laws and not of men, it is of the utmost importance the administration of justice be absolutely fair and orderly. This Court has recognized that the unhindered and untrammeled functioning of our courts is part of the very foundation of our constitutional democra - cy-
A State may adopt safeguards necessary and appropriate to assure that the administration of justice at all stages is free from outside control and influence. A narrowly drawn statute such as the one under review is obviously a safeguard both necessary and appropriate to vindicate the State’s interest in assuring justice under law.
Nor does such a statute infringe upon the constitutionally protected rights of free speech and free assembly. The conduct which is the subject of this statute- — picketing and parading — is subject to regulation even though intertwined with expression and association.
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“it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, -written or printed.”
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We hold that this statute on its face [and as applied] is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society and that the fact that free speech is intermingled with such conduct does not bring with it constitutional protection.

379 U.S. at 563-564, 565, 85 S.Ct. at 480-481, 482 (Citation omitted).

Although Cox held the statute valid as “applied” and on its “face”, the Court found that the police’s directive to disburse after authorizing the appellant to demonstrate across the street from the courthouse invalidated his arrest because “the dispersal order had nothing to do with any time or place limitation, and, thus, on this ground alone, it [wa]s clear that the dispersal order did not remove the protection accorded appellant by the original grant of permission” rendering his conviction subject to reversal. 379 U.S. at 573, 85 S.Ct. at 485.

Here, unlike in Cox, the appellant dispensed leaflets and set-up placards on the Courthouse property, the stated purpose of which the jury concluded was to induce Judge Turgeon to alter her Morris and Butts decisions. Therefore, the statute as “applied” and on its “face” does not contravene any known constitutional rights of the appellant, given the appellant’s “intention” for demonstrating and the State’s right to insulate its judiciary from outside influences regarding the administration of justice. See Cox, supra, and compare with United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983).

The next claim argues the commission of reversible error on the part of the trial court in commenting upon the facts of the case and analogizing the appellant’s conduct to yelling “fire” in a crowded movie theater when there is no fire. Again, as with issues 1 and 3, the appellant has failed to lodge an objection at the close of the court’s instruction to the comments now raised as error. This repeated neglect in complying with established issue-preservation rules dispenses with the need to address this issue as it has been waived for appellate purposes. See English, supra; Rule 302(a).

Lastly, we address the appellant’s protestations that the trial court committed reversible error when it denied the appellant’s Motion to Dismiss Harassment and Stalking under 18 Pa.C.S.A. § 2709 as violative of his rights under the First and Fourteenth Amendments to the United States Constitution.

In this jurisdiction, an act of the Legislature is presumed constitutional, and the law will not be declared unconstitutional unless it clearly, plainly and palpably violates the Constitution. Further, all doubts are to be resolved in favor of upholding a piece of legislation as constitutional. See Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988); Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982).

With regard to the harassment provision of 18 Pa. C.S.A. § 2709(a), this Court has ruled it constitutional against attacks of “vagueness” or as violative of the Fifth and Fourteenth Amendments to the United States Constitution. See Commonwealth v. Duncan, 239 Pa.Super. 539, 363 A.2d 803 (1976) (en banc). Consequently, this ends the appellant’s constitutional challenge to Section 2709(a), inasmuch as the appellant’s persistent and abrasive use of the telephone and leaflet distribution amounted to a course of conduct (extending almost 1 year) aimed at “alarming or seriously annoying” Judge Turgeon without any legitimate purpose.

Similarly, Subsection (b) of Section 2709 (StalMng) withstands constitutional scrutiny despite the appellant’s averments that it is “vague” because men must guess at its meaning or “overbroad” since it “reaches a substantial amount of constitutionally protected conduct.” See Appellant’s Brief at 38-39, citing Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1993) and Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).

The appellant cites us no cases, nor are we able to locate any, announcing a constitutional right to “engages in a course of conduct or repeatedly commits acts toward another person ... intent to cause substantial emotional distress to the person.” 18 Pa.C.S.A. § 2709(b)(2) (Supp.1995-96).

The Stalking statute is quite clear that engaging in repetitive conduct aimed at an individual evidencing an “intent” to evoke “substantial emotional distress” is prohibited conduct. Here, the appellant was advised on numerous occasions that his telephonic communications with the Judge and her staff, in addition to distributing leaflets and erecting placards in and near the Courthouse, disparaging the Judge to recoup monies awarded by the jurist to tenants beyond her ability to reverse, produced “emotional distress” altering her lifestyle and needed to cease. The appellant, instead of heeding the warning of cessation, merely fueled the Are of discontent without regard to the repercussions upon the object of his derision.

At bar, we have no hesitation in finding that the appellant was placed on notice, repeatedly, of the deleterious effect his “course of conduct” was having upon Judge Turgeon (placement of locks and peepholes on doors, guards to attend her ingress and egress from the Courthouse, security personnel in her courtroom, lunchtime excursions terminated and a weapon carried on her person became commonplace). In spite of all efforts to cause the appellant to cease and desist directing his conduct at Judge Turgeon, his actions continued unabated under the cloak of the First Amendment right to free speech. As the trial court aptly stated on this point:

The right of free speech and address is a shield and not a constitutional sword with which to do harm to others. It needs no citation of legal precedent to announce that the freedom of speech is not absolute. Speech specifically designed to coerce through fear and intimidation are not essential parts of the exposition of ideas and they are of such insignificant social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the societal interest in order and morality. Repeated acts and words which are designed to, and, in fact do, seriously offend the average person and put them in fear are not protected by the First Amendment.

See also Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 768-69, 86 L.Ed. 1031 (1942).

Premised upon our review of the applicable law, we hold that the Stalking statute is constitutional and reasonably restricts conduct without being “vague” or “overbroad.” Compare Commonwealth v. Brehm, 444 Pa.Super. 138, 663 A.2d 712 (1995) (Section 3731(a)(5) of the DUI statute upheld as constitutional against attacks of being “vague” and “over-broad”).

For the reasons herein stated, we find none of the appellant’s arguments to be meritorious. Accordingly, the judgment of sentence is affirmed.

Judgment of sentence affirmed.

      . The chronology of calls following the Monis decision (March 30th), and up to and following the Butts ruling (May 3rd), consist , of the following dates: April 22, May 19 & 27, June 3, 4, 14 & 16, July 12 (two calls), 13-16, 26 & 27, August 3 & 11, November 22, December 2, 3, 7 (two calls) & 15.
      From January to August of 1993, the same type of conduct was exhibited over the phone by the appellant, i.e., messages calling the Judge a "mobster".

      . In Morris, the tenant would not leave the premises so the appellant, in mid-January, broke the front windows of the premises with a crowbar. When the police arrived, the appellant had left and the window frames were covered with cardboard to allow the tenant to remain. However, when the appellant appeared a second time and pulled the cardboard from the window frames, the tenant exited the area and, subsequently, moved for fear of the appellant’s reprisals and had to secure a new job.

      . Even if, arguendo, the issue were not waived, there was sufficient evidence of the appellant handing out leaflets and posting signs in and around the Courthouse, the basis for which was to alter Judge Turgeon's Morris decision. 18 Pa.C.S.A. § 5102(a) specifically prohibits conduct (e.g., pickets and other "demonstration” — leaflet distribution) intended to influence "any judge ... in the discharge of hisDher] duty.” Here, the appellant was attributed with seeking the return of his money awarded by the Judge to tenants after the passage of the 30-day period to appeal, the failure of which to act precluded any possibility of reversal of the rulings. Thus, the appellant's efforts were to sway the Judge to alter her Morris order against his interest. This was a clear violation of the statute.

      . Even if such were not the case, bur review of the trial court’s instruction of the jury as to 18 Pa.C.S.A. § 5102(a) reveals that the veniremen were advised that the appellant could be found guilty of violating Section 5102(a) if they believed he placed signs and distributed leaflets outside the Courthouse for the purpose of influencing Judge Turgeon’s rulings (in either Morris or Butts).
      There was sufficient evidence present to establish that the appellant had placards and fliers disseminated outside and inside the Courthouse with the intent of causing Judge Turgeon to alter her rulings in the Morris and Butts cases. Appellant’s telephonic communications, which were believed by the jury, proved his intention was to recoup his money and he would not be deterred from his mission. Any other stated intent was a pure sham disbelieved by the jury.

      . 18 Pa.C.S.A. § 5101(a) provides in pertinent part:
      A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act....

      . The trial court specifically instructed the jury that the appellant's "evidence shows and he wants you to find as a fact that his purpose [in picketing and leaflet distribution] was not to [influence the judges in the discharge of their duty], but to change the [landlord/tenant] system. The Commonwealth says he was doing that to get money back to influence the decision [of Judge Turgeon].” N.T. 496.
      Thus, the jury, as the assessor's of credibility had to weigh the evidence and believability of the witnesses in deciding the appellant’s intent, which, from the verdict, was to obstruct justice. This being the bailiwick of the jury, and the evidence being supportive of the verdict, we may not interject ourselves into the truth-determining process or reverse the conviction for violation of 18 Pa.C.S.A. § 5102(a).

      . Were the issue not waived, we would find that nothing on the record buttresses the appellant’s contention that the trial court’s statement of law was erroneous or "prejudiced” the jury into concluding that his conduct was "unjustified and illegal.” The trial court’s reference that free speech has its limitations when utilized to incite panic or violence in a "movie theater” by yelling “fire” was proper. See Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    668 A.2d 173.
    Emir A. ZIKRIA, M.D., Appellant, v. WESTERN PENNSYLVANIA HOSPITAL, a Non-Profit Corporation, Appellee.
    Superior Court of Pennsylvania.
    Submitted Oct. 23, 1995.
    Filed Dec. 14, 1995.

      Gary Kalmeyer, Pittsburgh, for appellant.
    Ellen L. Surloff, Pittsburgh, for appellee.
    Before McEWEN, JAMIESON, and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

In July of 1984, appellee Western Pennsylvania Hospital began to investigate a number of complaints lodged against appellant Emir A. Zikria, M.D. Appellant was an open-heart surgeon who possessed the privileges of admitting and treating patients at appellee Western Pennsylvania Hospital. After an investigation, a committee issued a report detailing several concerns regarding appellant’s practice, and the case proceeded through appellee’s dispute resolution process. Following a period of probation, appellee determined that the problems had not been remedied. Therefore, in 1987, appellant was informed that his staff privileges were not being renewed.

Pursuant to appellee’s Medical Staff Bylaws (Bylaws), appellant requested a hearing to review the staffing decision. In 1988, a hearing panel issued a report supporting the original recommendation to deny appellant’s privileges. Appellant appealed the panel’s decision, again pursuant to the Bylaws. After review, the appellate panel voted unanimously to affirm the recommendation of the hearing panel. In accordance with both panels’ recommendations, the board of directors voted to deny renewal. Appellant was notified of this decision in April of 1988.

On May 17, 1990, appellant filed a civil suit against appellee alleging, inter alia, breach of contract for appellee’s failure to act in accordance with the Bylaws. Appellant sought monetary damages in excess of $20,000. Following a series of motions, all claims were dismissed except the breach of contract claim.

In May of 1995, appellee filed a motion for summary judgment on the breach of contract claim. This motion was granted by the Honorable Bernard J. McGowan on June 29, 1995, and appellant subsequently filed the instant appeal.

Initially, we note that jurisdiction over this appeal properly lies with the Commonwealth Court because appellee is a non-profit corporation. See 42 Pa.C.S.A. § 762(a)(5); Conference of A.U.F.C.M.P.C. v. Shell, 426 Pa.Super. 374, 375-76, 627 A.2d 188, 189 (1993). Since neither party has objected to our jurisdiction, however, we will exercise our discretion to hear the merits of this appeal in the interests of judicial economy. See, e.g., Fengfish v. Dallmyer, 434 Pa.Super. 250, 253 n. 2, 642 A.2d 1117, 1119 n. 2 (1994).

Appellant asserts that the trial court erred in granting summary judgment in favor of appellee on the breach of contract claim. Summary judgment is properly granted if the interrogatories, affidavits, and depositions of record, viewed in the light most favorable to the non-moving party, “disclose that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.” Chrysler Credit Corp. v. Smith, 434 Pa.Super. 429, 434, 643 A.2d 1098, 1100, appeal denied, 539 Pa. 664, 652 A.2d 834 (1994).

In this case, the trial court granted summary judgment on the basis of two appellate decisions: Rosenberg v. Holy Redeemer Hospital, 351 Pa.Super. 399, 506 A.2d 408, appeal denied, 514 Pa. 643, 523 A.2d 1132 (1986), and Sandoval v. Maliver, 145 Pa.Commw. 439, 603 A.2d 695, appeal denied, 532 Pa. 667, 616 A.2d 987 (1992). The trial court found that Rosenberg and Sandoval, which held that courts could not review the substance of hospital staffing decisions, precluded it from addressing appellant’s breach of contract claim. After reviewing a recent Pennsylvania Supreme Court decision, we must disagree with the trial court’s reliance on Rosenberg and Sandoval.

In Cooper v. Delaware Valley Medical Center, the Supreme Court held that courts do have the ability to “review suits based on legitimate contract and tort theories that arise out of the peer review process.” 539 Pa. 620, 631, 654 A.2d 547, 552 (1995). As a result of this decision, Rosenberg and Sandoval were limited in that courts were only precluded from reviewing the substance of staffing decisions in cases where a plaintiff was seeking injunctive relief. Id. If a plaintiff was seeking monetary damages under contract and tort theories, a court had the ability to substantively review the asserted claims. Id.

In the instant case, appellant filed suit seeking monetary damages for an alleged breach of contract. Under the law set forth in Cooper, such a claim was not barred by Rosenberg and Sandoval. Therefore, the trial court erred in holding that it did not have the ability to review the substance of this staffing decision, and in granting summary judgment in favor of appellee.

Recognizing the trial court’s erroneous reliance on Rosenberg and Sandoval, appellee offers additional arguments to support the grant of summary judgment. Specifically, appellee asserts that the Bylaws do not provide a basis for a valid breach of contract action, and that such an action could not succeed in any case because appellant failed to establish bad faith. We will not address the merits of these arguments, however, because we are unwilling to rule summarily against appellant without allowing the parties to brief and argue these issues, before the trial court, now that it is clear that Rosenberg and Sandoval do not preclude all judicial review.

Reversed and remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished.


author: ROWLEY, President Judge. CAVANAUGH, Judge, TAMILIA, Judge,

text:
    668 A.2d 529
    Anthony J. VETTER, administrator of the estate of Roxanne Vetter, deceased, and Anthony J. Vetter and Sally Vetter, his wife, individually, Appellants, v. FUN FOOTWEAR COMPANY, also d/b/a Fun Shu, Ltd., McAdoo Fuels, Inc., t/a Stefanisko’s Catering Service, Commonwealth of Pennsylvania, Black Creek Township, and Sugarloaf Township.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1995.
    Filed Nov. 30, 1995.

      Catherine A. McGovern, Freeland, for appellants.
    Ralph E. Kates, III, Wilkes-Barre, for Fun Footwear, appellee.
    Before ROWLEY, President Judge, and CAVANAUGH, BECK, TAMILIA, KELLY, JOHNSON, HUDOCK, FORD ELLIOTT and SAYLOR, JJ.
   ROWLEY, President Judge.

In this appeal, we consider whether an employee, who is injured in an automobile accident after leaving an employer-sponsored Christmas party, can maintain a personal injury action against her employer, or whether her exclusive remedy is under the Workers’ Compensation Act, 77 P.S. § 1 et seq. After reviewing the record, the parties’ briefs, and the applicable case law, we vacate the judgment on the pleadings granted in favor of appellee Fun Footwear Company, also d/b/a Fun Shu, Ltd., and we remand for further proceedings consistent with this opinion.

Roxanne Vetter, the deceased daughter of appellants Anthony J. and Sally Vetter, was employed by appellee on December 18, 1982, when she attended an employer-sponsored Christmas party. Vetter left the party with three co-workers in a car driven by one of those co-workers, David Zook. Although he was under the age of twenty-one, Zook had been served alcoholic beverages at, the party and was visibly intoxicated. After a brief stop at his mother’s house, Zook proceeded on a state road in Luzerne County. He subsequently lost control of his car and struck a tree. Vetter was fatally injured in the accident.

Vetter’s parents, individually, and Anthony J. Vetter, as administrator of his daughter’s estate, filed an action for wrongful death and survival against, inter alia, appellee, alleging that appellee had been negligent in allowing Zook to consume alcoholic beverages at the Christmas party. Appellee filed a motion for judgment on the pleadings on the basis that appellants’ exclusive remedy was under the Workers’ Compensation Act. On March 29, 1994, the trial court granted appellee’s motion and dismissed it from the action. Appellants filed this timely appeal.

In reviewing an order granting a motion for judgment on the pleadings, we apply the following principles:

Entry of judgment on the pleadings is permitted under Pa.R.C.P. 1034 which provides for such judgment after the pleadings are closed, but within such time as not to delay trial. A motion for judgment on the pleadings is similar to a demurrer. It may be entered where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents. The scope of review on an appeal from the grant of judgment on the pleadings is plenary. We must determine if the action of the court below was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury.

Kosor v. Harleysville Mutual Insurance Company, 407 Pa.Super. 68, 71-72, 595 A.2d 128, 129-30 (1991) (citations omitted). With those principles in mind, we will address the issue raised in this appeal.

The Workers’ Compensation Act provides the exclusive remedy for an employee who seeks to recover for an injury sustained in the course of his or her employment:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) [77 P.S. § 411(1) and (2) ] or occupational disease as defined in section 108 [77 P.S. § 27.1]

77 P.S. § 481(a) (footnotes omitted). Section 411 of the Act provides as follows:

(1) The terms “injury” and “personal injury,” as used in this act, shall be construed to mean an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto---- The term “injury arising in the course of his employment,” as used in this article, ... shall include all [ ] injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere----

77 P.S. § 411(1). Where, as here, the injury at issue occurs off the employer’s premises, it is compensable under the Workers’ Compensation Act only if, at the time of the injury, the employee was actually engaged in the furtherance of her employer’s business. City of Monessen School District v. Workmen’s Compensation Appeal Board (Hays), 155 Pa.Commonwealth Ct. 56, 624 A.2d 734 (1993); Brown v. Workmen’s Compensation Appeal Board (Liken Employment Nursing Services), 138 Pa.Commonwealth Ct. 560, 588 A.2d 1014 (1991), appeal denied, 529 Pa. 625, 600 A.2d 540 (1991). Whether an injury occurred while the employee was engaged in furtherance of her employer’s business is a question of law to be determined on the basis of the applicable facts. Speight v. Burens, 371 Pa.Super. 478, 483, 538 A.2d 542, 544 (1988).

Both this Court and the Commonwealth Court have held that an employee’s attendance at an employer-sponsored social event is in furtherance of the employer’s business for purposes of the Workers’ Compensation Act. For example, in Miller v. Keystone Appliances, 133 Pa.Super. 354, 2 A.2d 508 (1938), this Court determined that an employee acted in the course of his employment when he attended an employer-sponsored picnic because the picnic was held so that the employees could become better acquainted and have a good time, and so that there would be better cooperation in the company’s business. The evidence which supported that determination was, according to the Court, ample. Specifically, the employer arranged for the facilities where the picnic was held, the employer purchased and distributed tickets for amusements and refreshments without cost to the employees who attended, and the employer closed its offices on the day of the picnic without deducting wages for the salaried employees. A program of entertainment and sports was arranged, with two sales managers being in charge of the entertainment. The president of the company spoke to the attendees, addressing work-related business. The employer mailed notices about the picnic, and salesmen received bulletins from the sales promotion manager notifying them of the picnic and outlining the day’s activities. Finally, the employee was directed to attend the picnic by his supervisor, who personally ascertained the number of salesmen attending. Under those circumstances, the Court held that the employee was injured while in the course of his employment.

Similarly, in Feaster v. S.K. Kelso & Sons, 22 Pa.Commonwealth Ct. 20, 347 A.2d 521 (1975), the Commonwealth Court concluded that the purpose of an employer-sponsored picnic was to promote the employer’s interest in good relationships with his employees, relying on the following circumstances:

The stipulation here filed establishes that the picnic at which Mr. Feaster met his death was sponsored by the employer for its employees and their families, that food was supplied by the employer, that the picnic was announced by a poster at the place of employment and that such affairs had become an annual custom with this employer.

Id. at 25, 347 A.2d at 524. Therefore, the employee’s attendance at the picnic furthered his employer’s business.

In Tredyffrin-Easttown School District v. Breyer, 48 Pa.Commonwealth Ct. 81, 408 A.2d 1194 (1979), the employee, a high school math teacher and a volunteer assistant coach for the school’s track team, attended a picnic held at the home of the head track coach. In holding that the employee was engaged in the furtherance of his employer’s business when he was injured at the picnic, the Court stated,

It cannot be gainsaid that the picnic in the instant case promoted the School District’s interest in good relationships between its teachers and their students and the vitality of its athletic programs.
The School District, through its employees, encouraged the claimant to participate in extracurricular activities with his students. The picnic for senior members of the track team was an eleven year tradition and a normal part of the activities involved in the track and field program at Conestoga. Claimant went to the picnic in furtherance of activities on behalf of which the School District approved the claimant’s voluntary services.

Id. at 84, 408 A.2d at 1195.

In Investors Diversified Services v. Workmen’s Compensation Appeal Board (Howar), 103 Pa.Commonwealth Ct. 562, 520 A.2d 958 (1987), the employee attended a Christmas party for sales representatives given by the employer’s divisional sales manager. The manager encouraged the employee to attend the party so as to promote camaraderie among the employees and to permit them to associate with successful people. Several employees received awards in recognition of high sales performance. The Court concluded that the “party fostered good relationships between the employer’s salesmen, commended laudable employees, and thereby promoted the vitality of the employer’s sales program.” Id. at 567, 520 A.2d at 960. Therefore, the Court held that the employee had attended the party in furtherance of his employer’s business interest.

More recently, in City of Monessen, supra, the employee, an assistant band director and instructional music teacher, was injured as she was returning home from a Band Parents Organization function. The function had been characterized as a belated Russian Christmas party. However, prior to the function, the band director had advised the employee that he was taking a leave of absence and that she would be acting as band director. He also advised her that she should participate in all Band Parents events because the group was instrumental in providing a quality band program in the school district.

Although the function was characterized as a Christmas party, band business was conducted. Furthermore, the employee attended the function to ensure the orderly continuation of band activities and to reassure those present that band activities would continue and that she would do all she could to maintain the quality of the band. Additionally, a band trip, sales, and the collection of money from students were discussed at the function. Under those circumstances, the Court concluded that the employee was engaged in the furtherance of her employer’s business.

On the other hand, the Commonwealth Court in Brown, supra, determined that an employee’s attendance at her employer’s annual Christmas party, held at the employer’s office, was not in furtherance of the employer’s business. The Court so held even though the employee had received information about a job assignment at the party. Notably, the employee had accepted the job assignment prior to the party, and the information would have been provided to her even if she had not attended the party. Under those circumstances, the Court determined that the employee’s attendance at the party was not necessary to further her employer’s interests.

As the Commonwealth Court’s decision in Brown reveals, and contrary to appellee’s apparent position, an employee’s presence at an employer-sponsored social gathering does not, in and of itself, require a determination that the employee was acting in furtherance of her employer’s business. In the present case, the averments in the pleadings which related to the party and Vetter’s attendance thereof, and the ensuing accident, are as follows:

10. In the early evening hours of December 18, 1982, the deceased plaintiff, Roxanne Vetter, attended a Christmas party which was sponsored and promoted by the Defendant, Fun Footwear Company, also doing business as Fun Shu, Ltd., which party took place on the premises of McAdoo Fuels, Inc., trading as Stefanisko’s Catering Services. At or near the conclusion of the party, sometime after midnight on December 19, 1982, the plaintiff, along with other persons obtained a ride from the party with the aforesaid David F. Zook, who was at this time, a minor under the employ of Defendant, Fun Footwear Company also doing business as Fun Shu, Ltd. During the course of the evening at the aforesaid party, David F. Zook was seen acting in an erratic and bizzare [sic] manner by other third parties present at the time. Upon departing from the premises of Stefanisko’s Catering Services, the said David F. Zook proceeded to his home at 1083 Peace Street, Hazleton, Pennsylvania, where he entered to speak to his mother, Anna F. Zook. Upon leaving from the household in his car, the said David F. Zook proceeded in a westbound direction on Pennsylvania Route A-3802, Legislative Route 40143, in or near the vicinity of the Village of Tomhicken, & was rounding a curve to the right in the road, which was then in a very poorly lit and otherwise dangerous condition causing his vehicle to leave the westbound lane of the road, cross over into the eastbound lane and onto the south berm where it continued for some distance before leaving the road entirely, travelling off the embankment, which was without the benefit of appropriate guard rail protection, allowing the vehicle to come into violent contact with a tree, or series of trees which were located a few feet away from the berm of the road, resulting in a violent collision which propelled and ejected the minor plaintiff into and through the front windshield of the vehicle thereby sustaining multiple traumatic injuries culminating in ultimate death on December 19, 1982.

Complaint at para. 10. In raising the applicability of the Workers’ Compensation Act, appellee merely stated, “Plaintiffs decedent was an employee of the within Defendant and this action is barred by the Pennsylvania Workers Compensation Law which provides the within Defendant with immunity from suit and is the exclusive remedy for the recovery of the damages and/or injuries sustained by Plaintiffs decedent.” Appellee’s Answer, New Matter, Affirmative Defenses and Joinder of Additional Defendants at para. 54. The nature of the party and the circumstances surrounding Vetter’s attendance are not revealed by the pleadings. Accordingly, a finding that the action is barred by the Workers’ Compensation Act cannot be upheld.

Furthermore, in considering the applicability of the holdings in the above cases, the procedural posture of the present case cannot be overlooked. Pursuant to the applicable standard of review, discussed above, we have examined the pleadings, giving appellants the benefit of every reasonable inference which can be drawn from those pleadings, and we find no basis to conclude that Roxanne Vetter was engaged in the furtherance of her employer’s business while attending the party.

Moreover, even if Vetter was acting in furtherance of her employer’s business while at the party, her injuries occurred after she left the party, a fact which implicates the “going and coming rule.” Under that rule, an injury sustained by an employee traveling to or from work is not compensable under the Workers’ Compensation Act, unless (1) the employee’s employment contract included transportation to and from work; (2) the employee had no fixed place of work; (3) the employee was on a special mission for the employer; or (4) special circumstances indicate that the employee was furthering the business of the employer. Biddle v. Workmen’s Compensation Appeal Board (Thomas Mekis & Sons, Inc.), 539 Pa. 343, 346-348, 652 A.2d 807, 809 (1995).

Applying that rule in City of Monessen, supra, the Commonwealth Court, after concluding that the employee was furthering her employer’s business while at the party, next addressed whether the employee was still in the course of her employment on her return home from the function. The Court answered that question in the affirmative:

Because substantial evidence exists to support the referee’s findings that the belated Russian Christmas party was not one of the Band Parents’ regularly scheduled events and was almost in the nature of an emergency due to the departure of the band director, we conclude that these factors brought the event into the ambit of a “special mission,” that of ensuring the continued cooperation between the band director and the Band Parents. Thus, her return trip from that event was conducted in the course of employment and compensable.

City of Monessen, supra at 64, 624 A.2d at 738 (footnote and citations omitted). See also Peterson v. Workmen’s Compensation Appeal Board (PRN Nursing Agency), 528 Pa. 279, 597 A.2d 1116 (1991) (employee had no fixed place of work); Miller, supra (employee had been on a special mission for his employer).

In the present case, there is no indication in the pleadings that Vetter’s employment contract included transportation, that she had no fixed place of employment, that she was on a special mission, or that special circumstances indicate that she was furthering the business of her employer. There is also nothing in the pleadings from which to determine whether Vetter was a traveling employee, who is presumed to be acting in the course of employment during travel, or a stationary employee, who is presumed to have not been acting in the course of employment during travel. Denny’s Restaurant v. Workmen’s Compensation Appeal Board (Stanton), 142 Pa.Commonwealth Ct. 531, 597 A.2d 1241 (1991). Accordingly, judgment on the pleadings was not appropriate under the circumstances of this case.

In reaching that conclusion, we are mindful of this Court’s decision in Zook v. Fun Footwear, 364 Pa.Super. 657, 525 A.2d 824 (1987), appeal denied, 518 Pa. 626, 541 A.2d 1138 (1987), a case which arose out of the same set of facts as the present case. A panel of this Court, in an unpublished memorandum, held that Zook’s exclusive remedy for injuries sustained in the accident was under the Workers’ Compensation Act. Appellees contend that this Court should follow Zook, notwithstanding its status as an unpublished memorandum. We disagree. An unpublished memorandum has no precedential value, Boring v. Erie Insurance Group, 434 Pa.Super. 40, 43-44, 641 A.2d 1189, 1191 (1994), but may be relied upon or cited when it is relevant under the doctrine of the law of the case, res judicata, or collateral estoppel, id. (quoting Superior Court of Pennsylvania, Internal Operating Procedures, § 65.37A). None of those principles are applicable in this ease.

Moreover, the trial court and this Court in Zook relied upon averments in the pleadings which are not present in this case, specifically:

8. On December 18, 1982, [appellee] held a Christmas party for its employees and sold tickets for the party to its employees.
9. The purchase of a ticket entitled the employee to a dinner and open bar.
10. The aforementioned Christmas party was held at Stefinisko’s [sic] Catering hall; catered by Stefinisko’s [sic] Catering Service which provided food and beverages, including alcoholic beverages, for the party; and employees and/or agents of Stefinisko’s [sic] Catering Service dispensed and distributed the food and beverages, including alcoholic beverages, at the party.
11. [Appellant] purchased a ticket to the aforementioned Christmas party from an employee or agent of [appellee] acting within the scope of his employment or agency.

Zook, slip op. at 5. The pleadings filed in the present case lack any specifics concerning the circumstances of the Christmas party.

Finally, we note that the Commonwealth Court’s decision in Brown, with which we agree and upon which we substantially rely, was not decided when this Court decided Zook. For the above reasons, we conclude that the decision in Zook is not controlling in this case.

Judgment vacated and case remanded for further proceedings. Jurisdiction is relinquished.

CAVANAUGH, J., files concurring opinion which is joined by SAYLOR, J.

TAMILIA, J., files a dissenting statement.

CAVANAUGH, Judge,

concurring:

While I agree with the majority opinion which vacates the judgment on the pleadings and remands for further proceedings, I disagree with the disposition as it relates to a prior conflicting decision of this court.

As the majority states, Zook v. Fun Footwear, 364 Pa.Super. 657, 525 A.2d 824 (1985) appeal denied, 518 Pa. 626, 541 A.2d 1138 (1987) was a case which arose out of the same set of facts. Indeed, it also involved precisely the same issue: whether or not the Zook vehicle at the time of the collision on December 18, 1982 was engaged in an activity covered by the Pennsylvania Worker’s Compensation Act. The Zook panel decided that it was covered by the Act and affirmed a trial court order which dismissed the employer of Zook (who is also the employer of the present plaintiffs decedent Roxanne Vetter) on the basis of the exclusivity provision of the Worker’s Compensation Act. Zook was decided on an appeal from the grant of preliminary objections and the present decision is an appeal from judgment on the pleadings. Thus, both decisions have been rendered on non-evidentiary trial court dispositions yet, Zook found Worker’s Compensation Act coverage and we presently find (at least on the state of the record before us) that the exclusivity provision of the Act does not apply. The cases are in obvious conflict and the decisional credibility of this court requires that the Zook case be either followed or overruled. I would choose to follow the majority, but would overrule Zook.

TAMILIA, Judge,

dissenting.

I dissent and would affirm the Honorable Joseph M. Augello’s Order of March 29, 1994 granting Fun Footwear Company’s Motion for Judgment on the Pleadings.

This Court’s decision in Zook v. Fun Footwear, et al., 364 Pa.Super. 657, 525 A.2d 824 (1985), alloc. denied, 518 Pa. 626, 541 A.2d 1138 (1987), is the law of this case and should be followed by this Court en banc.

Because our Supreme Court denied allocatur in Zook, I do not believe we have the option of overruling our decision therein as is suggested in Judge Cavanaugh’s Concurring Opinion.

      . The remaining defendants were dismissed from the case and are not parties to this appeal.

      . It is interesting to note that in its Complaint to Join Amalgamated Clothing and Textile Workers of America Local 238A, appellee averred the following:
      5. The Christmas party described in paragraph 10 of Exhibit “A” [appellants’ complaint] was planned and sponsored by officers and/or agents of the additional defendant.
      6. Plaintiff’s decedent attended the Christmas party described in paragraph 10 of Exhibit “A” as a member of this additional defendant.
      7. Officers and/or directors of this additional Defendant attended the Christmas party identified in paragraph 10 of Exhibit "A” and were responsible for maintaining orderly and lawful conduct among their union members.
      Complaint at paras. 5, 6, 7. Appellee’s position that Vetter attended the Christmas party in her capacity as a union member' is not consistent with its present position that her attendance at the party was in furtherance of its business.


author: WIEAND, Judge:

text:
    668 A.2d 536
    COMMONWEALTH of Pennsylvania v. Efrain CRUZ-CENTENO, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1995.
    Filed Dec. 4, 1995.

      Peter C. Bowers, Philadelphia, for appellant.
    Kathy L. Echternach, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

Efrain Cruz-Centeno was tried non-jury and was found guilty of third degree murder and possession of an instrument of crime. Post-trial and supplemental post-trial motions were denied, and Cruz-Centeno was sentenced to serve a term of imprisonment for not less than eight (8) years nor more than sixteen (16) years for third degree murder and a concurrent term of imprisonment for not less than six (6) months nor more than one (1) year for possessing an instrument of crime. On direct appeal from the judgment of sentence, Cruz-Centeno argues that: (1) the evidence at his trial was legally insufficient to sustain his conviction for third degree murder; (2) the verdict was contrary to the weight of the evidence; (3) the trial court erred by allowing into evidence the preliminary hearing testimony of a Commonwealth witness who did not testify at trial; and (4) Ms sentence for third degree murder was excessive and unreasonable. After careful review, we affirm the judgment and sentence.

On June 28, 1993, shortly after midnight, appellant was sitting on the steps at the corner of Palethorpe and Estaugh Streets in Philadelphia. Sitting with appellant was Claudio Ayala, an older man, who was very intoxicated at the time. Appellant, according to the Commonwealth’s evidence, was playing with a loaded revolver, pointing it in the air and spinning the barrel. The victim, Ronald Johnson, and Luis Perez were walking along Palethorpe Street, and, as they were passing appellant and Ayala, Johnson stopped and asked appellant, “What’s up?” Appellant replied, “Nothing much,” and, then, proceeded to point the gun at Johnson and shot him in the left chest from a distance of approximately one foot. The bullet passed through both of the victim’s lungs and his heart, causing his death. After the shooting, Perez observed appellant laughing. Appellant then walked to his home, and, a short time later, he returned to the scene of the shooting and was heard to say that the shooting had been accidental.

When police arrived on the scene, appellant was identified by Perez as the shooter and arrested by police. Police also took Claudio Ayala into custody, but he was too intoxicated to be interrogated. The following morning, Ayala said he remembered nothing about the shooting. Perez testified against appellant at the preliminary hearing in this case, but, the Commonwealth was unable to locate him at the time of trial. After a finding was made that Perez was an unavailable witness, the trial court allowed the Commonwealth to introduce his preliminary hearing testimony into evidence at trial.

Both appellant and his wife, Luz Galeano, testified at trial that the gun discharged while appellant was struggling with Claudio Ayala. According to appellant, he had been sitting on his steps, when Ayala approached him and showed him a gun. Ayala said that the gun was not loaded and pointed it at appellant’s face. Appellant grabbed the gun from Ayala and pointed it up in the air. At this point, appellant said, Ayala grabbed his hand and attempted to regain possession of the gun. Then, appellant testified, the gun discharged and the victim was shot. When appellant placed the gun on the ground, Ayala took it and ran from the scene. Despite police searches of both appellant’s and Ayala’s homes, the gun was never found. Appellant further testified that the victim had been his friend and that he had never intended to kill him.

With respect to appellant’s challenge to the sufficiency of the evidence, our standard of review is as follows:

In evaluating a challenge to the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, which has won the verdict, and draw all reasonable inferences in its favor. We then determine whether the evidence was sufficient to have permitted the trier of fact to find that each and every element of the crimes charged was established beyond a reasonable doubt. See: Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). “[I]t is the province of the trier of fact to pass upon the credibility of-witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.” Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). See also: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). In addition, the facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the [factfinder] unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

Commonwealth v. Nicotra, 425 Pa.Super. 600, 603-604, 625 A.2d 1259, 1261 (1993).

Appellant asserts that the evidence at trial was more consistent with the defense theory that the gun accidentally discharged during a struggle than with the Commonwealth’s theory of the case that he had intentionally pointed the gun at the victim. Therefore, appellant contends, the Commonwealth failed to prove beyond a reasonable doubt that he acted with the requisite malice to sustain a conviction of third degree murder.

“The elements of third-degree murder, as developed by case law, are a killing done with legal malice but without the specific intent to kill required in first-degree murder.” Commonwealth v. Hill, 427 Pa.Super. 440, 444, 629 A.2d 949, 951 (1993). “Malice is the essential element of third degree murder[,]” Commonwealth v. Mercado, 437 Pa.Super. 228, 245, 649 A.2d 946, 955 (1994), “and is the distinguishing factor between murder and manslaughter.” Commonwealth v. Smouse, 406 Pa.Super. 369, 379, 594 A.2d 666, 671 (1991). The Pennsylvania Supreme Court has defined malice in the following terms:

‘The distinguishing criterion of murder is malice aforethought. But it is not malice in its ordinary understanding alone, a particular ill-will, a spite or a grudge. Malice is a legal term, implying much more. It comprehends not only a particular ill-will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. Murder, therefore, at common law embraces cases where no intent to kill existed, but where the state or frame of mind termed malice, in its legal sense, prevailed.’

Commonwealth v. Thomas, 527 Pa. 511, 514, 594 A.2d 300, 301 (1991), quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868). Accordingly, it has been observed “that malice may be found where the ‘actor consciously disregard^] an unjustified and extremely high risk that his actions might cause death or serious bodily harm.” Commonwealth v. Seibert, 424 Pa.Super. 242, 250, 622 A.2d 361, 364 (1993), quoting Commonwealth v. Young, 494 Pa. 224, 228, 431 A.2d 230, 232 (1981). “Malice may be inferred from ‘the attending circumstances of the act resulting in the death.'” Commonwealth v. Lee, 426 Pa.Super. 345, 350, 626 A.2d 1238, 1241 (1993), quoting Commonwealth v. Gardner, 490 Pa. 421, 424, 416 A.2d 1007, 1008 (1980). “Malice is properly implied when a deadly weapon is directed to a vital part of the [victim’s] body.” Commonwealth v. Palmer, 448 Pa. 282, 288, 292 A.2d 921, 923 (1972). See also: Commonwealth v. Hardcastle, 519 Pa. 236, 250, 546 A.2d 1101, 1107 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). Indeed, “the inference from the use of a deadly weapon upon a vital part of the body alone is sufficient to establish malice.” Commonwealth v. Torres, 396 Pa.Super. 499, 503, 578 A.2d 1323, 1325 (1990) (emphasis added). See: Commonwealth v. Carbone, 524 Pa. 551, 562-563, 574 A.2d 584, 590 (1990).

When the evidence is viewed most favorably to the Commonwealth, it establishes that appellant, while playing with a loaded gun, pointed it at the victim and pulled the trigger. This was clearly sufficient to support a finding of malice. Moreover, even if appellant had not been fully aware that the gun was loaded, his actions would still have risen to the level of legal malice necessary to support a third degree murder conviction. See: Commonwealth v. Young, supra at 229, 431 A.2d at 230 (“By intentionally aiming a gun at [the victim] without knowing for a certainty that it was not loaded, appellant exhibited that type of cruel and wanton conduct of which legal malice is made.”). Here the trial court found incredible the testimony of appellant and his wife that the gun had accidentally discharged while appellant had been struggling with Claudio Ayala. The court’s finding in this regard is not undermined by the failure of the Commonwealth to produce evidence explaining the reason for the shooting. “The Commonwealth need not prove motive in order to establish the existence of malice.” Commonwealth v. D’Ambro, 500 Pa. 303, 308 n. 5, 456 A.2d 140, 143 n. 5 (1983). See also: Commonwealth v. Manchas, 430 Pa.Super. 63, 73, 633 A.2d 618, 623 (1993). Suffice it to say that the trial court’s verdict was supported by evidence legally sufficient to sustain a conviction for third degree murder.

Appellant further contends that the verdict of guilty of third degree murder was so contrary to the weight of the evidence that he should have been granted a new trial. He asserts that the Commonwealth’s evidence was inherently unreliable and inconsistent and that the version of events testified to by defense witnesses was a more plausible interpretation of the evidence.

Our review of challenges pertaining to the weight of the evidence supporting a conviction is governed by the following principles:

“A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence.” Commonwealth v. Taylor, supra 324 Pa.Super. at 425, 471 A.2d at 1230. The decision whether to grant a new trial on this basis rests within the discretion of the trial court. Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989). “A trial court should award a new trial on the ground that the verdict is against the weight of the evidence only when the [ ] verdict is so contrary to the evidence as to shock one’s sense of justice and [make] the award of a new trial [ ] imperative so that right may be given another opportunity to prevail.” Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155-1156 (1986). “The role of an appellate court in reviewing the weight of the evidence is very limited.” Commonwealth v. Sanders, 426 Pa.Super. 362, 367, 627 A.2d 183, 185 (1993). “The purpose of that review is to determine whether the trial court abused its discretion and not to substitute [the reviewing] Court’s judgment for that of the trial court.” Commonwealth v. Murray, 408 Pa.Super. 435, 440, 597 A.2d 111, 114 (1991) (en banc). Accordingly, “[w]here the evidence is conflicting, the credibility of the witnesses is solely for the [trier of fact] and if its finding is supported by the record, the trial court’s denial of a motion for new trial will not be disturbed.” Commonwealth v. Larew, 289 Pa.Super. 34, 37, 432 A.2d 1037, 1038 (1981).

Commonwealth v. Manchas, supra at 71-72, 633 A.2d at 622-623. In addition, the Pennsylvania Supreme Court has recently observed:

The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. Commonwealth v. Jackson, 506 Pa. 469, 475, 485 A.2d 1102, 1104 (1984). We, as an appellate court, cannot substitute our judgment for that of the finder of fact. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982). Thus, we can only reverse the lower court’s verdict if it is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Whitney, 511 Pa. 232, 239, 512 A.2d 1152, 1155 (1986).

Commonwealth v. Simmons, 541 Pa. 211, 229, 662 A.2d 621, 630 (1995).

Instantly, it was solely for the trial court, as the finder of fact, to determine the credibility of witnesses and to resolve any conflicts or inconsistencies in the evidence. Our review discloses nothing in the verdict of the trial court that is so shocking to one’s sense of justice as to compel the award of a new trial. Therefore, the trial court did not abuse its discretion by refusing to grant appellant a new trial on grounds that the verdict was contrary to the weight of the evidence.

Appellant next argues that the trial court committed reversible error by permitting the Commonwealth to introduce into evidence at his trial the preliminary hearing testimony of Luis Perez, whose whereabouts the Commonwealth was unable to ascertain at the time of trial. With respect to the admissibility of similar evidence, the Pennsylvania Supreme Court has “held that ‘our common law permits the admission of an unavailable witness’ prior recorded testimony from a preliminary hearing, provided the defendant had counsel and a full opportunity to cross-examine the witness during the earlier proceeding.’ ” Commonwealth v. Sandutch, 498 Pa. 536, 540, 449 A.2d 566, 567 (1982), quoting Commonwealth v. Scarborough, 491 Pa. 300, 317, 421 A.2d 147, 155 (1980).

A witness who cannot be found at the time of trial will be deemed unavailable “only if a good-faith effort to locate the witness and compel his attendance at trial has failed.” Commonwealth v. Blair, 460 Pa. 31, 34, 331 A.2d 213, 214 (1975). See also: Commonwealth v. Jackson, 463 Pa. 301, 304-305, 344 A.2d 842, 844 (1975); Commonwealth v. Nelson, 438 Pa.Super. 325, 329, 652 A.2d 396, 398 (1995). “The burden of demonstrating such a ‘good-faith effort’ is on the party seeking to introduce the prior testimony, and ‘[t]he question of the sufficiency of the preliminary proof as to the absence of a witness is largely within the discretion of the trial judge.’ ” Commonwealth v. Walloe, 472 Pa. 473, 476, 372 A.2d 788, 790 (1977) (Opinion in Support of Affirmance by Pomeroy, J.), quoting Commonwealth v. Blair, supra and Commonwealth v. Miller, 203 Pa.Super. 611, 516, 201 A.2d 256, 259 (1964). The extent to which the Commonwealth must go in order to produce an absent witness “is a question of reasonableness.” Commonwealth v. Melson, 432 Pa.Super. 1, 11, 637 A.2d 633, 638 (1994).

Appellant initially argues that the trial court erred by determining that Perez was an unavailable witness because the Commonwealth did not make a good faith effort to secure his presence at trial. According to appellant, despite the existence of an outstanding bench warrant for Perez’s arrest, Perez was not taken into custody after he testified at appellant’s preliminary hearing and no effort was made to find him until only a few days prior to trial.

With respect to its determination that Perez was an unavailable witness, the trial court reasoned as follows:

Here, the Commonwealth made every possible effort to locate Luis Perez. First, Frances Johnson, the mother of the victim, testified that through her position as a postal worker, she unsuccessfully searched for mail addressed to Louis Perez or Maria Ortiz, the witness’s sister. Ms. Johnson also checked for a change of address, but was informed by her supervisor that none had been made.
Further, Ms. Johnson sent her son to the home of the witness’s brother where he was told that the witness was living -with his sister on Tampa Street in Philadelphia. Next, the brother of the victim, Coron Johnson, testified that he went to at least seven of the witness’s friends and was informed that the witness had moved and hadn’t been seen for at least three months.
Detective Dennis Carroll, of the District Attorney’s Office confirmed that Perez was not in custody, was not registered to vote, did not have a driver’s license and no longer resided at his last known address. Detective Carroll also located Edith Browning, who from the funeral register was thought to know the witness. However, Ms. Browning did not know Luis Perez or his whereabouts. Detective Carroll also reported that his efforts to locate a Maria Ortiz on Tampa Street were unsuccessful.
Lastly, there was a stipulation that Officer Bruce De Noble continually looked for the witness over the weekend preceding trial while on duty in the neighborhood.
Clearly, the Commonwealth made every possible effort to secure Luis Perez’s presence at trial. Thus, this Court correctly ruled that the witness was unavailable.

Trial Court Opinion at p. 6.

After careful review, we agree that there was sufficient evidence to permit the trial court to find that a good faith attempt to find Perez had been made by the Commonwealth. The record reflects that the prosecuting attorney began searching for Perez as soon as a date was set for appellant’s trial. In this search, she enlisted the help of the victim’s mother and brother, as well as police. The effort to find Perez included going to his last known address; interviewing friends and relatives of the witness; searching postal, prison, voting and motor vehicle records; and searching areas he was known to frequent. Thus, even if the prosecuting attorney could have begun searching for Perez at an earlier date, “we cannot conclude that [her] delay vitiated the extensive efforts to find the witness.” Commonwealth v. Blair, supra at 36, 331 A.2d at 215. Under the circumstances of the instant case, therefore, we hold that the trial court did not abuse its discretion by determining that Perez was an unavailable witness.

Appellant further contends that Perez’s prior testimony should have been excluded because he was denied the opportunity to cross-examine fully the witness at the preliminary hearing in this case. Specifically, appellant asserts that, at the time of the preliminary hearing, the Commonwealth had not provided the defense with a prior inconsistent statement which Perez had made to police or Perez’s juvenile record, which included open charges of possession of a controlled substance, possession of a controlled substance with intent to deliver and delivery of a controlled substance. According to appellant, without this information he was precluded from cross-examining Perez regarding his prior, inconsistent version of the shooting and any possible favorable treatment expected by the witness with respect to criminal charges pending against him.

The exception to the hearsay rule which permits the admission of an unavailable witness’s prior preliminary hearing testimony “is ‘predicated on the “indicia of reliability” normally afforded by adequate cross-examination.’ But where ... that ‘indicia of reliability’ is lacking, the exception is no longer applicable.” Commonwealth v. Bazemore, 531 Pa. 582, 587, 614 A.2d 684, 687 (1992), quoting Commonwealth v. Mangini, 493 Pa. 203, 212, 425 A.2d 734, 739 (1981). Therefore, “in order for prior testimony to be admissible in a subsequent proceeding as substantive evidence against the accused, there must have been a ‘full and fair opportunity to cross-examine.’ ” Commonwealth v. Thompson, 538 Pa. 297, 311, 648 A.2d 315, 322 (1994), quoting Commonwealth v. Bazemore, supra at 588, 614 A.2d at 687. “The Commonwealth may not be deprived of its ability to present inculpatory evidence at trial merely because the defendant, despite having the opportunity to do so, did not cross-examine the witness at the preliminary hearing stage as extensively as he might have done at trial.” Commonwealth v. Thompson, supra (footnote omitted). However, where the defense, at the time of the preliminary hearing, was denied access to vital impeachment evidence, such as prior inconsistent statements of the witness or the witness’s criminal record, a full and fair opportunity to cross-examine the unavailable witness may be deemed to have been lacking at the preliminary hearing. See: Commonwealth v. Bazemore, supra; Commonwealth v. Nelson, supra at 331-332, 652 A.2d at 399; Commonwealth v. Smith, 436 Pa.Super. 277, 287-294, 647 A.2d 907, 911-915 (1994); Commonwealth v. Stinson, 427 Pa.Super. 289, 297-301, 628 A.2d 1165, 1169-1171 (1993).

In Commonwealth v. Bazemore, supra, the Supreme Court held as follows:

[WJhere as here, the Commonwealth knows, but does not disclose to the defense at any time prior to preliminary hearing cross-examination of a witness, that the witness has made an inconsistent prior statement and that witness then becomes unavailable to testify at trial, the Commonwealth must suffer the consequences in electing not to disclose that information which is necessary to afford defense counsel the opportunity for a full and fair cross-examination. As we noted in Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983), “[t]he prosecutor, whose duty of course is to seek justice, not merely to convict, ... has an affirmative and continuing duty to disclose exculpatory information to the defendant and to correct false testimony of a witness.” (citations omitted). Moreover, “when the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure [on the part of the Commonwealth] of evidence affecting credibility” violates due process. Id., 500 Pa. at 276, 455 A.2d at 1190.

Id. at 590-591, 614 A.2d at 688 (footnote omitted). However, the Court in Bazemore made clear that it was not “imposing] upon the Commonwealth a duty to disclose that which it is not obligated by law to disclose.” Id. at 590, 614 A.2d at 688.

In the instant case, Perez made a statement to police immediately after the shooting. Although this statement was not provided to the defense prior to appellant’s preliminary hearing, it was read into evidence at trial. Police Officer Brian Geyer testified that he recorded Perez’s statement in an interview investigation report, which the officer recited as follows:

An Hispanic male who identified himself as Lome Perez approached me and said he was walking with the deceased, Ronald Johnson, north on Palethorp, when they passed 2 Hispanic males, one sitting on the step of 3433 North Palethorp, and the other male sitting on a chair on the sidewalk. Louie said that the guy across the street, in the custody of 25-Tom-l, shot Ronald Johnson. He said, while walking past them, the male was playing with the gun, spinning the cylinder—
While the cylinder was open. He shut the cylinder, pointed the gun up, and pulled the trigger, shooting Mr. Johnson. The shooter then said, oh, my god, I didn’t mean to do that. Louie said the shooter then gave the gun to the little Spanish male sitting in the chair wearing the blue shirt. And it would be a Claudio—
Ayala. This male Ayala was on the scene when we pulled up. This male was then placed in the back of my patrol car.

N.T. November 22, 1993 at pp. 189-191.

It is clear from Officer Geyer’s testimony at trial that Perez’s post-shooting statement was not recorded verbatim, but, rather, was merely summarized by the officer in an interview report. Under these circumstances, the Commonwealth had no pre-trial duty to disclose the report to the defense. This is so because “statements made by a witness prior to trial are subject to disclosure only when they are signed, adopted or otherwise shown to be substantially verbatim statements of that witness.” Commonwealth v. Brinkley, 505 Pa. 442, 450, 480 A.2d 980, 984 (1984). Accordingly, because the Commonwealth had no duty to disclose the summary of Perez’s prior statement, it cannot be said that the withholding thereof deprived appellant of the opportunity for a full and fair cross-examination of Perez at the preliminary hearing as contemplated in Commonwealth v. Bazemore, supra.

Moreover, the prior statement of Perez, as summarized in Officer Geyer’s report, was largely consistent with the testimony given by Perez at appellant’s preliminary hearing. The fact that Perez’s preliminary hearing testimony contained details not included in the police report did not make the earlier statement inconsistent with the later testimony. “It is well settled that an omission is not the same as an inconsistency.” Commonwealth v. McEachin, 371 Pa.Super. 188, 204, 537 A.2d 883, 891 (1988), citing Commonwealth v. Hammond, 308 Pa.Super. 139, 148, 454 A.2d 60, 64 (1982). “‘[M]ere dissimilarities or omissions in prior statements ... do not suffice as impeaching evidence; the dissimilarities or omissions must be substantial enough to cast doubt on a witness’s testimony to be admissible as prior inconsistent statements.’” Commonwealth v. McEachin, supra, quoting Commonwealth v. Bailey, 322 Pa.Super. 249, 263, 469 A.2d 604, 611 (1983). Here, there was nothing in Perez’s prior statement that was so inconsistent with his testimony at appellant’s preliminary hearing, as to compel a conclusion that appellant was denied the use of vital impeachment evidence at his preliminary hearing. For this reason also, we conclude that appellant was not denied a full and fair opportunity to cross-examine Perez regarding the witness’s prior statement to police.

Nor do we conclude, under the circumstances of the instant case, that appellant’s inability to cross-examine Perez at the preliminary hearing with respect to the witness’s outstanding drug charges and open bench warrant deprived appellant of a full and fair opportunity to cross-examine Perez. At trial, Perez’s juvenile record was introduced into evidence and was considered by the trial court in assessing the credibility of the unavailable witness. As such, the trial court was aware of the potential that Perez may have been testifying against appellant out of an expectation for leniency in his own pending case. While cross-examination of Perez with respect to his pending case would have been preferable, there is nothing in the record which suggests that the Commonwealth intentionally withheld this information from the defense prior to the preliminary hearing or that it had been requested by the defense at that time. Cf. Commonwealth v. Melson, supra at 16-18 and n. 4, 637 A.2d at 640-641 and n. 4.

Moreover, the cases relied upon by appellant are clearly distinguishable from the instant case. In Commonwealth v. Bazemore, supra, at the time of the preliminary hearing, the Commonwealth was considering charging the unavailable witness with crimes, including homicide charges, which arose out of the same incident giving rise to the charges against the defendant. And, in Commonwealth v. Smith, supra, the unavailable witness was a confidential informant with a history of having criminal charges against him dismissed. Thus, in both Bazemore and Smith, the prior records of the unavailable witnesses unambiguously suggested ulterior motives for testifying, and, the failure of the Commonwealth to disclose such information denied the defendants in those cases a full and fair opportunity to cross-examine the unavailable witnesses at their preliminary hearings. In the instant case, however, Perez’s prior criminal record, which included only one unrelated open drug case, did not so clearly suggest an interest on Perez’s part to testify against appellant. As such, the trial court observed:

Here, the witness’s prior record consisted of charges in juvenile comb for possession with intent to deliver a controlled substance on which a bench warrant had been issued on March 12, 1993, four months before the witness testified at the preliminary hearing. To compare this minor, unrelated charge to the severity of the prejudicial criminal records of the witnesses in Bazemore and Smith would be a travesty of justice.
“The real basis for the admission of testimony given by a witness at a former trial is to prevent the miscarriage of justice where the circumstances of the case have made it unreasonable and unfair to exclude the testimony.” Bazemore, at 587, 614 A.2d at 686.
The fact that defense counsel argued that these charges should affect this Court’s determination of the witnesses] credibility [was] carefully weighed against the fact the bench warrant remained open at the time of trial. Thus, this Court concluded that those charges did not present any indications of bias against the defendant.
Therefore, the admission of Luis Perez’s preliminary hearing testimony did not result in a constitutional violation of the defendant’s right to a fair trial and [was] properly admitted by this Court. See, Commonwealth v. Melson, 432 Pa.Super. 1, 17, 637 A.2d 633, 641 (1994).

Trial Court Opinion at p. 11.

At his preliminary hearing, appellant was present and represented by counsel, and he had the opportunity to cross-examine Perez. In fact, during cross-examination of Perez, appellant was able to elicit testimony that appellant and the victim had been acquainted with each other, that there had been no “bad blood” existing between them, that appellant had told Perez that the shooting had been accidental and that Claudio Ayala had been present at the time of the shooting. All of these facts elicited from Perez at the preliminary hearing were consistent with appellant’s defense at trial. Moreover, during the cross-examination of Perez at the preliminary hearing, appellant was not precluded from pursuing any line of inquiry. Under all of these circumstances, we conclude that appellant was not denied a full and fair opportunity to cross-examine Perez at the preliminary hearing; and, therefore, we hold that, upon finding Perez to be unavailable to testify at appellant’s trial, the trial court did not err by allowing Perez’s preliminary hearing testimony to be introduced into evidence at trial.

Appellant’s remaining contention is that his sentence was excessive and unreasonable in that the trial court overemphasized the seriousness of his offense without considering several mitigating factors. As such, he argues, the trial court abused its discretion by sentencing him within the standard range of the Sentencing Guidelines, rather than the mitigated range of the guidelines. Because appellant is challenging the discretionary aspects of sentencing, we must determine whether he has raised a substantial question as to whether his sentence was appropriate under the Sentencing Code as a whole. See: 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

“Although the existence of a substantial question must be determined on a case by case basis, the Superior Court will generally review the discretionary aspects of sentencing where a colorable argument is made that the actions of the sentencing court were either inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process.” Commonwealth v. Groft, 424 Pa.Super. 510, 520, 623 A.2d 341, 347 (1993). However, the Superior Court has “held that a claim of excessiveness of sentence does not raise a substantial question so as to permit appellate review where the sentence is within the statutory limits.” Commonwealth v. Jones, 418 Pa.Super. 93, 106, 613 A.2d 587, 593 (1992) (en banc). See also: Commonwealth v. Canfield, 432 Pa.Super. 496, 500, 639 A.2d 46, 48 (1994); Commonwealth v. Breter, 425 Pa.Super. 248, 251, 624 A.2d 661, 662 (1993). Similarly, “[a]n allegation that a sentencing court ‘failed to consider’ or ‘did not adequately consider’ certain factors does not raise a substantial question that the sentence was inappropriate.” Commonwealth v. Urrutia, 439 PaSuper. 227, 236, 653 A.2d 706, 710 (1995). See also: Commonwealth v. McKiel, 427 Pa.Super. 561, 564, 629 A.2d 1012, 1013 (1993); Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en banc).

Here, appellant has done no more than ask this Court to substitute our judgment for that of the sentencing court. However, “[t]his type of claim ‘does not present a substantial question that the sentence imposed was inappropriate under the Sentencing Code as a whole.’ ” Commonwealth v. Groft, supra, quoting Commonwealth v. Rogers, 386 Pa.Super. 476, 481, 563 A.2d 165, 168 (1989) and Commonwealth v. Billett, 370 Pa.Super. 125, 131, 535 A.2d 1182, 1185 (1988). Accordingly, farther review of the discretionary aspects of sentencing is not warranted.

Moreover and in any event, there was no abuse of discretion in imposing appellant’s sentence. The trial court had the benefit of a pre-sentence report; and, therefore, it may be presumed that the court “was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.” Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18 (1988). “Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed.” Id. at 102, 546 A.2d at 18. A sentence of not less than eight years nor more than sixteen years for third degree murder, which was within the standard range of the Sentencing Guidelines, can be considered to be neither excessive nor unreasonable.

The judgment of sentence is affirmed.