author: WIEAND, Judge.

text:
    613 A.2d 595
    Andreas AIVAZOGLOU, et ux., et al., Appellants, v. DREVER FURNACES, Pars Manufacturing, Phelps Packing and Rubber Co., Hercules Packing Corp., Anchor Packing Corp., Harvey Hubbell, Inc., Harbison Walker Refractories, Ray Oil Burner Co., Bickley Furnaces, Inc., Superior Boiler Works, Inc., H.B. Smith, Keeler/Dorr-Oliver Boiler Co., International Boiler Works Co., Cleaver Brooks Division of Aqua-Chem, Inc. Westinghouse Airbrake Company, Crane Packing, Sepco Corp., Hitco., Rowland Co., New York Airbrake Co., Selas Corporation of America and Selas Furnaces, Appellees. Andreas AIVAZOGLOU, et ux., et al., Appellants, v. DREVER FURNACES, Pars Manufacturing, Phelps Packing and Rubber Co., Hercules Packing Corp., Anchor Packing Corp., Harvey Hubbell, Inc., Harbison Walker Refractories, Ray Oil Burner Co., Bickley Furnaces, Inc., Superior Boiler Works, Inc., H.B. Smith, Keeler/Dorr-Oliver Boiler Co., International Boiler Works Co., Cleaver Brooks Division of Aqua-Chem, Inc. Westinghouse Airbrake Company, Crane Packing, Sepco Corp., Hitco., Rowland Co., New York Airbrake Co., Selas Corporation of America and Selas Furnaces, Appellees.
    Superior Court of Pennsylvania.
    Argued March 11, 1992.
    Filed Aug. 20, 1992.

      Edward Garrigan-Nass, Philadelphia, for appellants.
    Charles W. Craven, Philadelphia, for Drever Furnaces, appellee.

      Michael F. Brown, Massachusetts, for Crane Packing, appellee.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   WIEAND, Judge.

The issue in this appeal is whether a petition for leave of court to amend a complaint to add defendants is effective to toll the statute of limitations where no action is commenced against such added defendants until after the time allowed by the statute of limitations has expired. The trial court held that the mere filing of a petition to amend a prior complaint did not toll the statute of limitations as to defendants not named in the original complaint and entered summary judgments in their favor. On appeal, we affirm. The procedural rules in this Commonwealth clearly and specifically provide for the manner in which a civil action may be commenced; and in this case, no action was commenced until after the same had been barred by the statute of limitations.

Andreas Aivazoglou was diagnosed as having an asbestos related disease on March 19, 1987. In July, 1987, Aivazoglou and his wife filed a complaint naming as defendants numerous manufacturers of asbestos products. On February 2, 1989, the plaintiffs filed a petition requesting leave of court to amend the complaint by adding twenty-six (26) additional manufacturers as defendants. A copy of the amended complaint was attached to the petition. However, notice was not given to any of the twenty-six additional manufacturers sought to be joined as defendants. On April 6, 1989, the court granted the petition and directed that the amended complaint be filed within thirty (30) days. An amended complaint was filed on June 12, 1989.

The added defendants filed answers asserting, inter alia, that plaintiffs’ action against them was barred by the two year statute of limitations applicable to actions for personal injuries. The trial court agreed and granted a motion for judgment on the pleadings filed by the added defendants. The plaintiffs appealed.

Appellants argue on appeal that the petition to amend their complaint was sufficient to toll the running of the statute of limitations. Appellees point out, however, that the Rules of Civil Procedure in Pennsylvania are very specific regarding the means by which a civil action is to be commenced and that plaintiffs, by not following the rules, failed to commence an action against them until after the statute of limitations had run.

The Pennsylvania Supreme Court has repeatedly emphasized the important purposes which are served by statutes of limitation. They not only serve to give prompt notice to defendants that claims are being made against them, but they prevent stale claims and thus promote finality and stability. Estate of Gasbarini v. Medical Center of Beaver County, Inc., 487 Pa. 266, 272, 409 A.2d 343, 346 (1979). In Insurance Co. of North America v. Carnahan, 446 Pa. 48, 284 A.2d 728 (1971), the Court said:

[t]he purpose of any statute of limitations is to expedite litigation and thus discourage delay and the presentation of stale claims which may greatly prejudice the defense of such claims. Ulakovic v. Metropolitan Life Ins. Co., 339 Pa. 571, 575-576, 16 A.2d 41 (1940). The defense of the statute of limitations is not technical, but “substantial and meritorious .. [such statutes] are vital to the welfare of society and are favored in the law.” Schmucker v. Naugle, 426 Pa. 203, 231 A.2d 121 (1967).

Id., 446 Pa. at 51, 284 A.2d at 729-730. In Cunningham v. Ins. Co. of N.A., 515 Pa. 486, 530 A.2d 407 (1987), the Court said:

Statutes of limitations embody important policy judgments that must be taken into account in determining the scope of application of the tolling principle. Those policy judgments include a belief that defendants should be protected against the prejudice of having to defend against stale claims, Insurance Company of North America v. Carnahan, 446 Pa. 48, 51, 284 A.2d 728, 729 (1971), as well as the notion that, at some point, claims should be laid to rest so that security and stability can be restored to human affairs, Schmucker v. Naugle, 426 Pa. 203, 205-206, 231 A.2d 121, 123 (1967). The defense of the statute of limitations is not a technical defense but rather is a substantial and meritorious one, and has been regarded as favored in the law and as advancing the welfare of society. Id.

Id., 515 Pa. at 491, 530 A.2d at 409. See also: In re Thorne’s Estate, 344 Pa. 503, 513, 25 A.2d 811, 816-817 (1942), where the Court said: “There may be particular cases of hardships in the law, but the general benefit of the provisions of these acts of Assembly far overbalance these particular cases. These acts, whilst they give to the vigilant every means of redress necessary for their protection, fix a period when all litigation is at an end.”

In Pennsylvania, actions for personal injuries must be brought within two years. 42 Pa.C.S. § 5524(2). Plaintiffs concede, as they must, that the procedure employed to add manufacturers as defendants in this case was not calculated to give notice to these defendants that a claim was being made against them until after the period for filing suit had expired. Plaintiffs nevertheless urge this court to adopt a new rule declaring that statutes of limitations are tolled by the filing of a petition for leave to amend in the trial court. We decline plaintiffs’ offer.

In so doing we are reminded that, absent fraud or its equivalent, judicial extensions of time are expressly prohibited by Section 5504 of the Judicial Code. Commonwealth v. Liptak, 392 Pa.Super. 468, 573 A.2d 559 (1990). If we were to accept plaintiffs’ theory, we would thereby extend the statute of limitations by judicial decree to a period in excess of the two years established by the legislature. Not only would this prevent the defendants from receiving prompt notice of the claim, but it would prevent the finality and stability which the statute of limitations was intended to achieve.

The delay in this case was not inadvertent. The plaintiffs knew well before the running of the statute of limitations that claims could be asserted against additional manufacturers of asbestos. They could have commenced an action against the additional manufacturers of asbestos — and thereby tolled the statute of limitations — in any one of three means provided for commencement of an action by the Rules of Civil Procedure. They could have commenced an action by filing (1) a praecipe for writ of summons; (2) a complaint, or (3) an agreement for amicable action. Pa.R.C.P. 1007; Wible v. Apanowicz, 306 Pa.Super. 262, 266, 452 A.2d 545, 546 (1982). If they had done so, the defendants would have been duly served and would have received prompt notice that they had been sued.

The language of Rule 1007 is clear and unambiguous; it does not admit of qualification in an effort to ascertain its spirit. Indeed, its underlying purpose has been to provide certainty as to the commencement of an action and to remove a subsequent failure to effect service from consideration in determining whether the statute of limitations has been tolled.

Lamp v. Heyman, 469 Pa. 465, 473, 366 A.2d 882, 886 (1976) (footnote omitted) (emphasis added). Attempts to commence actions by means other than those allowed by Rule 1007 have consistently been rejected by the courts. See: Hartmann v. Peterson, 438 Pa. 291, 293, 265 A.2d 127,128 (1970) (“Nowhere do the rules provide for commencing an action by a petition.”); Valentin v. Cartegena, 375 Pa.Super. 493, 544 A.2d 1028 (1988) (suggestion of death with copy of complaint attached improper means for commencing action under Rule 1007); Floczak v. Nationwide Mut. Ins. Co., 289 Pa.Super. 438, 442, 433 A.2d 885, 887 (1981) (“rules do not provide for commencement of an action by petition and rule.”); In re Petition of Montgomery, 67 Pa.Commw. 2, 4-5, 445 A.2d 873, 874 (1982) (“petition for an order [requesting counsel fees] is not a praecipe, complaint or agreement and the petition in this case should have been dismissed.”) It seems clear, therefore, that the only proper way to commence an action in this Commonwealth is by proceeding in accordance with the clear and unambiguous language found in Rule 1007.

In the instant case, the plaintiffs failed to proceed in accordance with Rule 1007 until after the statute of limitations had rendered their action untimely.

Our decision is in accord with the county court decision in Buranosky v. Himes, 34 Pa.D. & C.2d 509 (Elk; 1964). In Buranosky, plaintiffs decedent had been involved in an automobile accident on August 25, 1961. On December 22, 1961, plaintiff commenced a death action against the original defendants. Thereafter, on August 15,1963, plaintiff petitioned the court for leave to amend the pleadings to add a new defendant under Rule 2232(c) of the Pennsylvania Rules of Civil Procedure. The court framed the issue as follows: “Did plaintiff ‘commence’ his suit against [the added defendant] before the period provided therefor under the statute of limitations expired?” Id. at 511. The court held that the mere filing of the petition to join the defendant was not equivalent to the commencement of an action tolling the statute of limitations. The court stated:

The rule is well settled and supported by extensive authority that for the purpose of tolling the statute of limitations an action is commenced when the praecipe is filed, the writ paid for and the case properly indexed and docketed: Gibson v. Pittsburgh Transportation Co., 311 Pa. 312 [, 166 A. 842] (1933); Ledonne v. Commerce Insurance Co., 307 Pa. 1 [, 160 A, 612] (1932); Rylee v. Nicoll’s Administrator, 74 [Pa.] D. & C. 269 (1950); Thomas v. McLean Coal Co., 79 [Pa.] D. & C. 492 (1951); Kurtz v. Rochester Machine Co., 17 Beaver 15 (1955). It has been held in a lower court case that the filing of the praecipe alone is sufficient even though the case is not docketed or the writ issued until the following day and after the statutory period has expired: Burd v. Bennett Transp. Co., 21 Erie 59 (1939). However, where as here the only act done prior to the expiration of the statutory period was the filing of a petition, we feel compelled to hold that the motion to join [ ] as a party defendant has not been timely made and accordingly must be dismissed.

Id. at 511-512.

We recognize that the federal courts have allowed a petition to amend, with copy of the amended complaint attached, to have the effect of tolling an applicable statute of limitations. They have done so by relying upon the federal rule which provides that “[a] civil action is commenced by filing a complaint with the court.” See: Longo v. Pennsylvania Electric Co., 618 F.Supp. 87 (W.D.Pa.1985); Chaddock v. Johns-Manville, 577 F.Supp. 937 (S.D.Ohio 1984); Eaton Corp. v. Appliance Valve Co., 634 F.Supp. 974 (N.D.Ind.1984). In Pennsylvania, however, a civil action can only be commenced in the manner provided by R.C.P. 1007. Here, nothing was filed in the Prothonotary’s Office until after the statute of limitations had run.

Our decision adheres to the well established rule that new parties cannot be introduced into a suit by amendment following expiration of the period of the statute of limitations. In Girardi v. Laquin Lumber Company, 232 Pa. 1, 81 A. 63 (1911), an action was brought against a named defendant in its capacity as a corporation. The proposed amendment was to name the defendants as a partnership. The Supreme Court said: “The allowance of the amendment would have brought new parties on the record. Under the rule established by orneases this cannot be done. Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action or bring in a new party ... if [the effect of the amendment] is to bring in a new party, it will be refused.” Id., 232 Pa. at 2, 81 A. at 63 (emphasis added). See also: Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965); Gozdonovic v. Pleasant Hills Realty Co., 357 Pa. 23, 53 A.2d 73 (1947); Wernick v. Pittsburgh Underwriters Agency, 90 Pa.Super. 186 (1926). This practice has proven to be both sound and just.

In this case, the plaintiffs had ample opportunity to commence a timely action against the additional manufacturers in the manner provided by the Pennsylvania Rules of Civil Procedure. The rules were promulgated to promote uniformity and to provide procedural due process for all litigants. Rather than adopt an ad hoc exception to the rules and the decisions interpreting those rules, we hold, consistent with prior appellate court decisions, that an action is commenced only by filing with the prothonotary a praecipe for writ of summons, a complaint, or an agreement for an amicable action. Therefore, we affirm the judgment entered by the trial court.

It may be, as has been suggested, that the Supreme Court, as the policy making court in this Commonwealth, will choose to make it easier to toll the statute of limitations. In the meantime, this Court, being an error correcting court, will affirm trial court decisions which are in accord with principles of law adopted by prior appellate court decisions.

Judgment affirmed.

      . The Aivazoglou claim is illustrative of 141 separate cases in which the trial court entered judgments on the pleadings. All of these cases have been consolidated by the trial court for purposes of appeal.

      . After a separate action had been commenced, it could have been consolidated with the present action for trial.

      . We recognize that the Buranosky decision is not precedentially binding. Contrary to plaintiffs’ argument, however, it cannot be distinguished merely because a copy of the amended complaint was not attached to the petition in that case. The critical issue there, as here, was whether the petition for leave to amend was the commencement of an action which tolled the statute of limitations.

      . The statute of limitations bars claims by plaintiffs against the additional manufacturers. It has not yet run on claims for contribution by defendants found liable to plaintiffs on the cause of action stated in plaintiffs' original complaint.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    613 A.2d 600
    COMMONWEALTH of Pennsylvania v. David Richard GIPPLE, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Argued June 3, 1992.
    Filed Sept. 15, 1992.

      Joseph M. Devecka, State College, for appellant.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   KELLY, Judge.

In this case we are called upon to determine whether the imposition of mandatory fines in 18 Pa.C.S.A. § 7508 violates Article I, Section 13 of the Pennsylvania Constitution. We find that it does not and affirm.

The relevant facts and procedural history of this case are as follows. On March 29, 1990, the Huntingdon Borough Police conducted a sting operation. The police observed the appellant, David Gipple, in the middle of a drug transaction that involved 3.45 grams of cocaine. Later that evening, the Attorney General’s Drug Task Force conducted a search of the appellant’s home. As a result of the search, 11 grams of hashish, 474.3 grams of marijuana, 60.9 grams of cocaine, and $2,127.70 in cash were confiscated.

On March 30, 1990, the appellant was charged with two counts of possession with intent to deliver cocaine. Additionally, appellant was also charged with possession with intent to deliver marijuana and hashish as well as conspiracy.

The appellant pleaded guilty to all charges in a bargained plea. On October 3,1990, appellant was sentenced to serve an aggregate term of not less than four years and three months nor more than twenty years imprisonment. Pursuant to 18 Pa.C.S.A. § 7508(a)(2)(i) & (ii), he was also given a mandatory fine totalling $20,000.00. No inquiry as to appellant’s ability to pay the fine was made. A motion to modify sentence was filed and denied. This timely appeal followed.

On appeal, appellant challenges the constitutionality of 18 Pa.C.S.A. § 7508. Specifically, appellant contends that the mandatory imposition of fines regardless of a person’s ability to pay violates the excessive fines provision of Article I, Section 13 of the Pennsylvania Constitution. We cannot agree.

Although the precise issue raised in this appeal has not been previously decided, it has been generally addressed. In Commonwealth v. Church,, 513 Pa. 534, 522 A.2d 30 (1987), the imposition of graduated fines for violation of the Motor Vehicle Code was challenged as violative of the Equal Protection Clause of the Fourteenth Amendment. Rejecting the lower court’s reasoning, our Supreme Court, ruled that:

There is no constitutional requirement that invalidates the imposition of an otherwise valid fine merely because a defendant lacks the immediate ability to pay it, or would have difficulty in doing so.

Commonwealth v. Church, 513 Pa. at 540-41, 522 A.2d at 33-34. While the Church court’s holding was limited to the challenge therein present, ie. the constitutionality of the mandatory fine under the Fourteenth Amendment, its broad dictum is supported by further review of relevant case law.

In Commonwealth v. Hoover, 343 Pa.Super. 372, 494 A.2d 1131 (1985), this Court had occasion to consider whether the imposition of a mandatory fine regardless of the defendant’s ability to pay violated the Due Process Clause. Upholding the law which required that the sentencing court impose a mandatory fine under such circumstances, this Court reasoned that:

Appellant’s claim that section 1543(b) “rob[s him] of a fair procedure — indeed, any procedure — for determining how large a fine he is able to pay” (Appellant’s Brief at 21), is meritless in light of 75 Pa.C.S. § 6504, which provides that the court may order installment payments where the defendant demonstrates his inability to pay a fine imposed under the Vehicle Code. Moreover, it is clear that appellant cannot be imprisoned for nonpayment of the fine if he establishes he is unable to pay. Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Commonwealth v. Farmer, 319 Pa.Super. 542, 466 A.2d 677 (1983); Commonwealth v. Schwartz, 275 Pa.Super. 112, 418 A.2d 637 (1980); see also Pa.Crim.P. 65. Because relief is available to appellant if he is unable to pay the $1000 fine, we hold that § 1543(b) does not deny appellant due process.

Commonwealth v. Hoover, 343 Pa.Super. at 379-80, 494 A.2d at 1135 (footnote omitted).

In Commonwealth v. Smith, 409 Pa. 521, 187 A.2d 267 (1963), the imposition of fines for violation of the Motor Vehicle Code did not violate Article I, Section 13 of the Pennsylvania Constitution or the Eighth Amendment. In upholding the fine, our Supreme Court concluded that:

The fine provision, of course, is designed to deter potential violators. It was quite evident to the 1955 session of the legislature that the $50 fine for each violation, imposed by the previous act, was not serving this function since the profits accruing from the excess loads more than compensated for the penalty inflicted. That legislature, therefore, decided to increase the amount of the fines and to graduate them according to the amount of the overweight, instead of imposing a flat rate for each violation. Such a decision was not irrational or unreasonable, but on the contrary was quite sensible, and hence there is no merit to appellant’s contention. Cf. People v. Magoni, 73 Cal.App. 78, 238 P. 112 (1925).

Commonwealth v. Smith, 409 Pa. at 525-26, 187 A.2d at 270 (emphasis added).

Taken together, Smith and Hoover confute appellant’s claim herein. The mere fact that the court did not inquire into appellant’s ability to pay is irrelevant to the question of whether the fine is excessive. Such an argument is more properly characterized as a challenge to appellant’s due process rights. See Commonwealth v. Hoover, supra. Rather, the dispositive inquiry in determining whether a mandatory fine is violative of Article I, Section 13 of the Pennsylvania Constitution revolves solely around the question of whether, under the circumstances, the fine is “irrational or unreasonable.” See Commonwealth v. Smith, supra.

Instantly, there is nothing within the legislature’s decision to impose a mandatory minimum fine under these circumstances which is “irrational or unreasonable.” Fines further two important fundamental purposes in our society. Mastrangelo v. Buckley, 433 Pa. 352, 250 A.2d 447 (1969). Fines not only punish those that violate the law but they also “deter future or continued violations.” Id., 433 Pa. at 386, 250 A.2d at 464. Moreover, because a fine,

serves not only as punishment but also as a deterrent, the amount of the fine can be raised to whatever sum is necessary to discourage future use or continued violations, subject, of course, to any restrictions imposed on the amount of the fine by the enabling statute or the Constitution.

Id., 433 Pa. at 386, 250 A.2d at 464.

In Commonwealth v. Logan, 404 Pa.Super. 100, 590 A.2d 300 (1991), this Court held that, “[wjhile in general, sentencing is within the broad discretion of the trial court, 18 Pa.C.S.A. § 7508 does not unconstitutionally infringe upon the sentencing prerogative of the judiciary, as it is the province of the legislature to prescribe punishment for crimes.” Id., 404 Pa.Superior Ct. at 104, 590 A.2d at 301-302. In enacting the mandatory fine provisions of § 7508, the legislature evidenced the desire to punish drug dealers by having them reach into the large profits they had accumulated during their illegal activity and turn specific sums, proportionate to the size of the drug distribution operation, over to the Commonwealth. Evidence of this may be found in § 7508(e), which deals with those assets subject to a forfeiture petition, which are exempt from the mandatory fine provisions. Thus, the legislature has provided several ways to attack the assets dealers accumulate over the course of their illegal trafficking.

A panel of this Court recently recognized that:

The destructive character of such activity [drug sales] to the well being of society is so well documented as not to require further documentation here. To ignore the provisions established by law for controlling and hopefully deterring such behavior brings the judicial process into question and undermines the confidence of society in the judiciary, while bringing solace and encouragement to the drug peddlers.

Commonwealth v. Rosario, 400 Pa.Super. 505, 583 A.2d 1229 (1990); see also Commonwealth v. Ramos, 392 Pa.Super. 583, 586-87, 573 A.2d 1027, 1029-30 (1990).

Simply put, there is no evidence to suggest that Article I, Section 13 of the Pennsylvania Constitution is in anyway offended when those properly and justly convicted of drug dealing are sentenced to pay for the price they cost society. Appellant’s constitutional challenge must, therefore, fail.

Judgment of sentence affirmed.

      . Appellant does not argue that a failure to examine one's ability to pay is violative of any legislative act. Although it is true that the general fine provision requires a sentencing court to inquire as to the ability to pay a fine imposed, 42 Pa.C.S.A. § 9726 does not apply to the mandatory fine provision of 18 Pa.C.S.A. § 7508. See Commonwealth v. Brown, 389 Pa.Super. 66, 566 A.2d 619 (1989).

      . Appellant’s argument that the statute is unconstitutional because it penalizes drug lords and their minions equally, is simply specious. Whatever the rank appellant had reached in his ring of drug conspirators, the fact remains that he was convicted of being a drug dealer. This status was sufficient to entitle him to receive the mandatory fine contemplated by the legislature. Wc can conceive of nothing “irrational or unreasonable’’ about the legislature’s failure to make distinctions between particular levels of drug dealers.


author: ROWLEY, President Judge:

text:
    613 A.2d 603
    COMMONWEALTH of Pennsylvania v. Walter PRESTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 10, 1992.
    Filed Sept. 18, 1992.

      Larry Feinstein, Wyncote, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Comm., appellee.
    BEFORE: ROWLEY, President Judge, and BECK and MONTGOMERY, JJ.
   ROWLEY, President Judge:

In this appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County, appellant Walter Preston raises two issues: (1) whether trial counsel was ineffective for failing to object timely and on the proper basis to several statements erroneously admitted by the trial court as prior consistent statements of the complainant; and (2) whether trial counsel was ineffective for failing to engage in a legally sufficient full consultation with appellant concerning appellant’s right to testify and for unreasonably advising him not to testify. After reviewing the record, we affirm the judgment of sentence.

On May 13, 1991, the trial court, sitting without a jury, found appellant guilty of involuntary deviate sexual intercourse, rape, statutory rape, indecent assault, simple assault, indecent exposure, endangering the welfare of children, corruption of minors, and recklessly endangering another person. The charges arose out of incidents involving appellant’s six-year-old stepdaughter. Appellant, through his public defender, filed post-verdict motions. Before those motions were considered by the trial court, appellant requested new counsel. Present counsel was appointed on October 31, 1991. He filed amended post-verdict motions nunc pro tunc, raising the two issues argued in this appeal. After an evidentiary hearing, the trial court denied the post-verdict motions and sentenced appellant to an aggregate term of imprisonment of five to ten years. This timely appeal was then filed.

In his first issue, appellant contends that counsel was ineffective for failing to properly object to statements erroneously admitted by the trial court as prior consistent statements of the complainant. Specifically, a doctor, a social worker, and a police officer who interviewed the complainant testified to statements made by her to them concerning the assaults upon her. At trial, the testimony was admitted as prior consistent statements of the complainant. In its opinion, the trial court cited Commonwealth v. Rakes, 398 Pa.Super. 440, 581 A.2d 212 (1990), in support of its ruling. In Rakes, this Court stated, “It is well-settled that testimony regarding prior statements made by a declarant is admissible when the declarant is present in court and available for cross-examination. Moreover, this rule specifically has been applied in cases where the declarant is a child victim of a sexual assault.” Id., 398 Pa.Superior Ct. at 446-47, 581 A.2d at 216 (citations omitted). This Court in Rakes held that the trial court properly admitted testimony of a counselor and psychologist concerning statements made to them by the victim which implicated the defendant. In so doing, we distinguished Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986), in which such testimony was held to be inadmissible:

In Haber, the victims were aged four and five at the time of the alleged sexual abuse. Furthermore, the five-year-old victim in that case was not permitted to testify to the identity of the alleged molester. However, the mothers of both victims were permitted to testify at trial as to what the victims had told them about the molestation, which included statements from the victims concerning the identity of the assailant. We noted that ‘this testimony was crucial to the Commonwealth’s case because the testimony of the children themselves consisted mostly of monosyllabic answers to leading questions, and both children repeatedly stated that they were unable to remember details about what happened. The Haber court further noted that the testimony of both mothers were [sic] admitted despite the limitation on the one victim’s testimony, which prevented her from being questioned about her identification of her molester. For this reason, we held in Haber that the testimony of the victims’ mothers as to what their children had told them was inadmissible hearsay. Here, unlike Haber, the victim is fifteen years old, was available at trial for full cross-examination, and the case against appellant was fully established through the victim’s testimony. The out-of-court testimony here did not include details concerning elements of the offense that the victim herself was unable to provide. Thus, Haber does not require reversal in this case.

Rakes, supra 398 Pa.Super. at 448, 581 A.2d at 216-17 (citations omitted). In his brief, appellant relies on Commonwealth v. Smith, 402 Pa.Super. 257, 586 A.2d 957 (1991), in which this Court followed Haber and distinguished Rakes:

[U]nlike Rakes, the Commonwealth’s case here was not fully established through S.L.’s testimony at trial. A comparison of the officers’ testimony with S.L.’s testimony shows that the officers’ testimony was crucial to the Commonwealth’s case, as the testimony of these witnesses supplied many missing details regarding the time, place and frequency of the events and elements of the offenses which S.L. failed to provide at trial.

Id., 402 Pa.Superior Ct. at 272, 586 A.2d at 965.

In the present case, the complainant had some difficulty verbalizing the sexual abuse which occurred. However, through the use of anatomically correct dolls and through her testimony she provided sufficient evidence to fully establish the Commonwealth’s case. Although the other witnesses testified in a more coherent and detailed manner, their testimony was not necessary to prove elements of the offenses which the complainant failed to prove. Accordingly, the trial court did not err in admitting this testimony and trial counsel was not ineffective.

In his second issue, appellant contends that trial counsel was ineffective for not fully consulting with him concerning his right to testify and for advising him not to testify. In reviewing this claim, we apply the following principles:

The decision whether to testify in one’s own behalf is ultimately to be made by the accused after full consultation with counsel. In order to support a claim that counsel was ineffective for ‘failing to call the appellant to the stand’, [the appellant] must demonstrate either that (1) counsel interfered with his client’s freedom to testify, or (2) counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision by the client not to testify in his own behalf.

Commonwealth v. Bazabe, 404 Pa.Super. 408, 414, 590 A.2d 1298, 1301 (1991), allocatur denied, 528 Pa. 635, 598 A.2d 992 (1991). A claim of strategic error absent a showing of specific incidents of counsel’s impropriety will not satisfy this standard. Commonwealth v. Martin, 346 Pa.Super. 129, 143, 499 A2d 344, 351 (1985).

In the present case, appellant contends that counsel’s performance was deficient because counsel did not fully consult with him regarding his right to testify and because counsel unreasonably advised him not to testify. Both appellant and trial counsel testified at the post-verdict motions hearing. Appellant testified that he did not have an opportunity to speak with counsel regarding whether or not he should testify. He testified that he asked counsel whether he should testify and counsel told him that it was not necessary for him to take the stand. Appellant further testified that he followed this advice because he was ignorant of the system and stunned by the events of the trial.

Trial counsel testified that after the Commonwealth presented its case-in-chief, he and appellant discussed whether appellant should testify. He advised appellant not to do so because he thought that he had created a reasonable doubt through his cross-examination of the Commonwealth’s witnesses. Trial counsel further testified that appellant’s testimony would have added nothing to the defense but would have only created a “swearing contest” between him and the Commonwealth’s witnesses. Finally, trial counsel stated that he was afraid that appellant, who was inexperienced in trial matters and who was upset, would not have fared well under the prosecutor’s vigorous cross-examination.

Although, as appellant points out, trial counsel did not elaborate on the details of his consultation with appellant, he did testify that they discussed the matter, that he advised appellant not to testify, and that appellant agreed. Nothing in the record indicates that appellant was unaware of his right to testify or that counsel interfered with this right. Furthermore, on the basis of this testimony the trial court concluded that counsel’s strategy had a reasonable basis designed to effectuate appellant’s interests. We agree. Accordingly, we conclude that counsel was not ineffective, and we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . We note that although the Commonwealth has failed to file an appellate brief, we have decided this case on its merits. We have done so, however, only in the interests of judicial economy. Our decision should not be considered as an approval of the Commonwealth’s failure to address the issues raised in this appeal.


author: DEL SOLE, Judge:

text:
    613 A.2d 1211
    Joseph V. SOMERS, Appellant, v. Paul SOMERS and Somers Construction Co., Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 30, 1992.
    Filed July 28, 1992.
    Reargument Denied Oct. 13, 1992.

      James D. Crawford, Philadelphia, for appellant.
    Cliff Russell, Fort Washington, for appellees.
    Before CIRILLO, DEL SOLE and KELLY, JJ.
   DEL SOLE, Judge:

This is an appeal from an order of the Court of Common Pleas of Montgomery County sustaining preliminary objections and dismissing counts I and II of plaintiff/appellant Joseph V. Somers’s complaint. We reverse.

Joseph V. Somers and Paul Somers, uncle and nephew, respectively, entered into a stock purchase agreement on August 15, 1985. Pursuant to that agreement, uncle sold to nephew a portion of his stock in the Somers Construction Company, Inc. (SCC), and surrendered to the corporation for redemption the remainder of his outstanding shares. Thus, nephew became the company’s sole stockholder, holding the offices of president and director of SCC as well.

In conjunction with the stock transfer agreement, the parties entered into an employment agreement whereby uncle was employed by SCC as a “consultant respecting general corporate matters, and ... with authority to act with [nephew] for the Corporation respecting completion of the Wallkill project.” The employment agreement specified no term, but provided for a monthly consulting fee. In addition, the agreement stated:

In the event of net profits from the Wallkill project, ascertained by Joseph [uncle] and by the firm of accountants regularly employed by the Corporation at the time of resolution of claims with the Office of General Service or other office having jurisdiction, the Corporation shall pay Joseph [uncle] as additional compensation for his services as consultant 50% of such net profits at the time such determination is made.

The Wallkill project, on which SCC acted as general contractor, involved the construction of a correctional facility in New York. A determination of net profits would follow the resolution of all claims between SCC and the New York Office of General Services [OGS], as well as a resolution of the claims between all subcontractors and OGS.

During negotiations with OGS, SCC sought additional compensation for its work on the Wallkill project. Nephew and uncle disagreed over the handling of this claim, and, prior to its resolution, the parties reached an impasse in their business relationship. As a result, nephew terminated uncle’s employment. Uncle filed a complaint in equity which was dismissed. The court allowed amendment, and uncle filed a second amended complaint seeking damages. Nephew filed preliminary objections, and the trial court dismissed counts I and II of uncle’s complaint. This appeal followed.

In an appeal from an order sustaining preliminary objections in the nature of a demurrer, the appellate court applies the same standard employed by the trial court: all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for purposes of review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that that no recovery is possible. Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer. Guinn v. Alburtis Fire Co., 134 Pa.Cmwlth. 270, 577 A.2d 971 (1990); Kyle v. McNamara & Criste, 506 Pa. 631, 634, 487 A.2d 814, 815 (1985).

In reviewing preliminary objections, only facts that are well pleaded, material, and relevant will be considered as true, together with such reasonable inferences that may be drawn from those facts, and preliminary objections will be sustained only if they are clear and free from doubt. Ohio Casualty Group Ins. Co. v. Argonaut Ins. Co., 92 Pa.Cmwlth. 560, 500 A.2d 191 (1985). A preliminary objection should be sustained only where it appears with certainty that, upon the facts averred, the law will not allow the plaintiff to recover. International Union of Operating Engineers, Local No. 66, AFL-CIO v. Linesville Construction Co., 457 Pa. 220, 322 A.2d 353 (1974).

Under the Pennsylvania system of fact pleading, the pleader must define the issues; every act or performance essential to that end must be set forth in the complaint. See Pa.R.C.P. 1019; 4 Standard Pennsylvania Practice § 21:32; see also Pike County Hotels Coporation v. Kiefer, 262 Pa.Super. 126, 396 A.2d 677 (1978) (at a minimum, the pleader must set forth facts upon which his cause of action is based). When ruling on preliminary objections, a court must generally accept as true all well and clearly pleaded facts, but not the pleader’s conclusions or averments of law. See 5 Standard Pennsylvania Practice § 25:8. See also Keirs v. Weber National Stores, Inc., 352 Pa.Super. 111, 507 A.2d 406 (1986).

In count I of his complaint, entitled “Settlement with OGS,” uncle avers that nephew and SCC breached the contract and the fiduciary duties with respect to SCC’s and nephew’s implied and express obligations to negotiate, arbitrate or settle in good faith the claims between SCC and OGS, and the claims between SCC and the subcontractors. Uncle alleged that nephew and SCC accepted from OGS, with no justification, a settlement regarding the Wallkill project claim in the amount of $3,558,828.00, and failed to pursue additional claims of $400,000.00 for concrete work and $50,000.00 for caulking work.

In count II, entitled “Action for an Accounting, The Settlements with the Subcontractors,” uncle alleged that nephew and SCC refused to allow him access to the litigation and claim files with respect to the subcontractors, and refused to allow him to participate in the settlements or litigation. Uncle avers, therefore, that the subcontractors were overpaid and he is entitled to an accounting in order to determine the amount due him. See Pa.R.C.P. 1021.

Pursuant to the employment contract, uncle was entitled to 50% of the net profits from the Wallkill project. In Somers v. Somers, 390 Pa.Super. 664, 561 A.2d 827 (1989), this court, by memorandum decision, affirmed the Honorable Stanley R. Ott’s determination that the consulting agreement between the parties should be construed as an employment agreement terminable at will.

In the trial court, Uncle did not again allege that defendants breached their agreement by terminating his employment as consultant, but instead alleges that nephew breached duties implied in the agreement. The trial court analyzed Appellant’s claim under the law pertaining to the duties of corporations and their directors and officers, and concludes that the defendant corporation and owner owed no duty to Appellant who was only an employee. However, this misconstrues Appellant’s argument. Furthermore, we hold that Appellant has stated a claim for relief under Pennsylvania contract law, and is therefore entitled to a trial in order to attempt to prove that Paul Somers and the Somers Construction Company, [SCC], breached their duty of good faith arising from the contract between the parties.

The general duty of good faith and fair dealing in the performance of a contract as found in The RESTATEMENT (SECOND) OF CONTRACTS § 205, has been adopted in this Commonwealth in Creeger Brick & Building Supply Inc. v. Mid-State Bank & Trust Co., 385 Pa.Super. 30, 35, 560 A.2d 151, 153 (1989), and Baker v. Lafayette College, 350 Pa.Super. 68, 84, 504 A.2d 247, 255 (1986), affd, 516 Pa. 291, 532 A.2d 399 (1987). A similar requirement has been imposed upon contracts within the Uniform Commercial Code by 13 Pa.C.S. § 1203. The duty of “good faith” has been defined as “[h]onesty in fact in the conduct or transaction concerned.” See 13 Pa.C.S. § 1201.

The obligation to act in good faith in the performance of contractual duties varies somewhat with the context, Baker, supra, 350 Pa.Superior Ct. at 84, 504 A.2d at 255, and a complete catalogue of types of bad faith is impossible, but it is possible to recognize certain strains of bad faith which include: evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party’s performance. RESTATEMENT (SECOND) of CONTRACTS, § 205(d).

The duty to perform contractual obligations in good faith does not evaporate merely because the contract is an employment contract, and the employee has been held to be an employee at will. For instance, we held in Baker, supra., that when the employer, Lafayette College, expressly provided in its employment contract for a comprehensive evaluation and review process of the employee as a condition of re-employment, there was an obligation implied in the contract for the parties to perform their contractual duties in good faith. Therefore, the College was obliged to undertake an honest and meaningful review of Mr. Baker’s performance, not a sham formality designed to ratify an arbitrary decision already made. Id.

Similarly, in a case decided by the supreme court, Jacobs v. Kraft Cheese Co., 310 Fa. 75, 164 A. 774 (1933), it was held that where it is provided in an employment contract that the employee’s/cheesemaker’s continued employment was conditioned on producing a cream cheese satisfactory to the demands of the trade and market, the company had an obligation to perform its part of the contractual obligations, that is to make an honest and good faith effort to sell the product. Id., 310 Pa. at 82, 164 A. at 776.

A similar requirement of good faith has been imposed under a contract doctrine developed in Pennsylvania case law called the “doctrine of necessary implication.” Frickert v. Deiter Bros. Fuel Co., Inc., 464 Pa. 596, 347 A.2d 701 (1975) (Pomeroy, J., concurring); Slater v. Pearle Vision Center, Inc., 376 Pa.Super. 580, 546 A.2d 676 (1988). That doctrine has been stated as follows:

In the absence of an express provision, the law will imply an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party’s right to receive the fruits of the contract. Frickert, supra. 464 Pa. at 603 [, 347 A.2d 701] (citation omitted).

In Frickert, one of the owners of a closely held corporation did not perform his contract “according to reason and justice” when he transferred his shares in the corporation to his sons during his lifetime, when the shareholders agreement’s intent was to ensure that the certain key employees would succeed to ownership in equal shares. Thus it was held that although the intervivos transfer of shares was not expressly prohibited in the contract, this transfer frustrated the intent of the parties to the contract, and violated the implied duty of the parties to act according to reason and justice. Id.

Similarly, in Slater v. Pearle Vision, when Pearle Vision failed to occupy premises it had leased in a shopping center, damaging the business of the shopping center, we invoked the doctrine of necessary implication to hold that Pearle Vision was required under the contract/lease to occupy and use the leased premises in order to enforce the clear intentions of the party and avoid injustice, although there was no express term in the contract requiring occupancy. Slater v. Pearle Vision, supra, 376 Pa.Superior Ct. at 585, 546 A.2d at 679-680.

Therefore, whether under the doctrine of necessary implication, or the Restatement’s implied duty of good faith performance of contracts, or the U.C.C.’s requirement of honesty in fact or in the conduct or transaction, we hold that Appellant has stated a claim for breach of contract. In the instant case, there is no express term in the contract requiring defendants to act in good faith, using due diligence in negotiating for payment with OGS and the subcontractors concerning the Wallkill project, as required under the Restatement. Nor is there an express term requiring Appellees to perform those things according to reason and justice which must be done so as not to injure Joseph Somers’ right to receive the fruits of the contract, that is 50% of the profits from the Wallkill project. However, under our case law, these obligations are implied in the contract between Joseph Somers and Appellees.

Although we stated in Somers v. Somers, 390 Pa.Super. 664, 561 A.2d 827 (1989), that the consulting contract was an employment contract terminable at will, we noted, significantly, that no claims for breach of contract were before us, so we were unable to offer any relief. Id., at p. 5. Now, however, those claims are before us, based on the implied duty to act in good faith in the performance of contractual duties.

Appellant claimed in Count 1 of his complaint that Paul Somers showed a lack of good faith and due diligence in resolving the dispute with OGS and settling the claim for significantly less than was owed thereby depriving him of approximately $3 million as his share of the proceeds. In Count 2, Appellant claims that Paul Somers and the Company are bound to account to him and justify the payments made to the subcontractors. He urges that the payments to the subcontractors were excessive as a result of Paul Somers’ failure to exercise care and diligence, but as he has no access to the files, he does not know the amount due him. Both counts state a claim for breach of contract, based on the implied obligation to act in good faith and do nothing to destroy the rights of the other party to receive the fruits of the agreement.

Appellees argue in their brief that they had no choice but to settle the claims with OGS and the subcontractors, otherwise they would have suffered devastating losses and bankruptcy. This may well be true, and therefore Joseph Somers would not be entitled to any recovery. However, this is a question of fact which may not be disposed of on preliminary objections where questions of law are decided.

Therefore, we vacate the trial court’s order granting Appellees’ demurrer to Joseph Somers’ claims in Counts I and II of his complaint and reinstate these claims on the basis that a claim for relief for breach of contract based on the implied duty of good faith performance of contractual duties found in the consulting contract was stated by Appellant.

The order is reversed, and the case is remanded for trial on all counts of the complaint. Jurisdiction is relinquished.


author: BECK, Judge:

text:
    613 A.2d 1215
    COMMONWEALTH of Pennsylvania v. Craig MURPHY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1992.
    Filed Aug. 6, 1992.

      Jeffrey M. Kolanzky, Philadelphia, for appellant.
    Kathy Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before McEWEN, BECK and KELLY, JJ.
   BECK, Judge:

In this case, inter alia, we analyze and apply the standard relevant to consolidation of charges where one of the charges is corrupt organizations and the other is murder.

Appellant Craig Murphy raises multiple challenges to his conviction for the execution-style slaying of drug-trafficking rivals Noble Green and William Bud Johnson and related offenses. We have carefully reviewed the record of appellant’s jury trial and have considered the merits of each of appellant’s claims. We reject them all and affirm the judgment of sentence.

In order to adequately assess appellant’s challenges on appeal, it is necessary to review in full the evidence upon which the convictions are based. Three men were tried together for the murder of Noble Green and the eventually fatal assault on William Bud Johnson. They were appellant Craig Murphy, and co-defendants Rodney Wells and Ford Howard. Murphy, Wells and Howard were confederates in a drug-dealing association called “the Family” which functioned in the early 1980’s. Through the operations of this organization, hundreds of thousands of dollars worth of cocaine were distributed in Philadelphia during the relevant time period. According to Commonwealth witnesses, Craig Murphy was the leader of the group and the one from whom the others took their orders.

The extent of the “Family’s” drug trafficking and the control over it exercised by appellant Murphy were attested to by several witnesses. For instance, appellant’s former girlfriend, with whom he lived between 1979 and 1982 or 1983, stated that appellant often had large supplies of cocaine in the house, that she accompanied him on forays to secure drugs and that appellant made his living from the drug trade. Another witness, Sonya Mackie, testified to appellant’s role in selling cocaine. She identified numerous individuals who sold drugs for Murphy, including her late husband.

Chiefly, evidence about the drug dealing business in which appellant was engaged came from Charles Harris, a former associate of the appellant. Harris’ testimony was that he, Murphy, Wells and Howard formed the “Family” at the beginning of 1980. The hierarchy, as noted above, was that Murphy was the boss of the organization, while Wells and Howard acted as his subordinates. According to Harris, the group engaged in large scale narcotics transactions, with bulk purchases of cocaine personally transacted by Harris with appellant ranging from $10,000 to $100,000 each. The group maintained an office where they would plot strategy, devise ways to “launder” the drug profits, discuss plans for expanding the trade, etc. The “Family” met every day either in Harris’ office or home, or at gambling establishments. Harris estimated that during the time period in question, when the group’s drug business was at its height, appellant himself would make between $75,000 and $100,000 a week. Approximately twenty to twenty-five people worked for appellant selling drugs. In addition, Harris specifically noted that his gang was planning to meet with certain individuals in South Philadelphia who were members of the so-called “20th and Carpenter” gang. Harris testified that such a meeting actually occurred but that he was not privy to the contents of the discussion.

Apparently one of the functions of the “Family” was the attempted elimination of anyone who interfered with its dominance in or control over its portion of the cocaine trade. Thus, one witness, Lisa Waters, testified that one night in January, 1988, appellant and another individual named Barry Jones accompanied her to a park after having accused her of being a “snitch”. While appellant “hugged” Waters, Jones shot her several times. After the shots were fired, appellant dropped her and ran. Remarkably Waters survived. Waters testified that later someone who said he spoke with appellant every day offered her $10,000 not to testify regarding the assault.

The Commonwealth’s theory regarding the attack on Noble Green and William Bud Johnson was that it was part of the “Family’s” practice of liquidating suspected impediments to its lucrative drug operations. Green and Johnson, as acknowledged members of the “20th and Carpenter” gang, were allegedly trying to interfere with the “Family’s” cocaine trade in South Philadelphia. The testimony revealed that one of co-defendant Wells’ drug dealers in South Philadelphia, Kerry Harrison, was approached by Johnson who demanded money from Harrison in exchange for “permitting” him to do business in the area. Word of this perceived extortion reached the “Family”.

On July 16, 1983, appellant, Wells and Howard drove to 23rd and Pierce Streets. The next segment of the episode was described at trial by William Bud Johnson, who testified along with Florence Daniels at trial. Although Johnson was able to testify at trial, he subsequently died from the wounds. Noble Green was in a car with co-defendant Rodney Wells and motioned Johnson over to the car. Johnson had been walking down the street with his fiance, the now-deceased Theresa Teagle. Johnson got into the back seat at the request of Green. Green told Johnson that “these guys [referring to Wells] say we’re harassing them”. Immediately, Johnson’s instincts told him to try to exit the car. Before he could escape however, Wells held up his hand, signalled to the others and they started shooting. The “others” had been stationed on the corners surrounding the car. Noble Green died that night and Johnson never recovered.

Florence Daniels, a key Commonwealth witness, was also in the vicinity of the assault. She watched the men station themselves on the comers. One of the men approached her, asking about Johnson. Almost immediately thereafter, Johnson came by with Teagle and Daniels overheard one of the men tell Johnson to get into the car. She saw Johnson get into the car and then heard the shooting start. Florence Daniels positively identified Murphy and Howard as two of the men she saw on the corner that day.

Daniels also identified another party who was involved in the Green/Johnson shooting — Barry Jones. Jones, a very large man, was identified by Daniels from photographs. Jones was called as a Commonwealth witness. Although Jones was called as a result of an incriminating statement he had given to the prosecutor, as soon as he assumed the witness stand he recanted the statements in which he had outlined his and appellant’s participation in the shooting. The prosecutor claimed surprise and was permitted to cross-examine Jones in order to impeach him with the prior inconsistent statement.

Theresa Teagle was William Bud Johnson’s fiance. She was with him on the night of the shooting. Teagle told a police detective that she could identify the assailants. Teagle was summoned to a preliminary hearing which was continued at defense request in order to hold a line-up. Teagle was announced as one of the witnesses who would attend the lineup and who was able to identify the assailants. Teagle was at the preliminary hearing with Daniels. At that time Teagle wore her hair in a style known as “Jerry curls”. Daniels received an ominous phone call before the line-up was held in which the caller told Daniels that “the one with the Jerry curls” would be dead for “telling”. A line-up was scheduled but Theresa Teagle was killed before she could attend it.

Police witnesses also testified to several events tending to corroborate appellant’s involvement with drugs and guns. For instance, the police testified to a surveillance and subsequent search of a house used for drug trafficking by a man named Howard Willis, who was repeatedly identified at trial as one of appellant’s drug couriers. Drugs and drug paraphernalia were seized.

In addition, the police testified to an incident during which appellant, the two co-defendants and others were apprehended brandishing guns. The weapon seized from appellant was a .357 colt python. Other weapons were also recovered from the same location. The Commonwealth’s ballistics expert stated that the bullets recovered from the car and the victims’ bodies were .38/.357 lead projectiles but he could not affirmatively match them to the guns recovered from the defendants.

The defendant did not testify but instead presented his alibi defense through the testimony of his mother, sister and son.

The jury found appellant guilty of criminal conspiracy, possession of instruments of crime, corrupt organizations, aggravated assault, and third degree murder. Post-verdict motions were heard and denied. A mandatory life term of imprisonment was imposed for third degree murder as a result of appellant’s previous conviction for first degree murder.

Appellant seeks relief on several grounds. He argues that the verdict for third degree murder was against the weight of the evidence. Appellant also challenges the sufficiency of the evidence on the corrupt organizations conviction. Further, appellant alleges that the trial court abused its discretion in refusing to sever the charge of corrupt organizations from the rest of the charges. Appellant also claims that the trial court erred in admitting certain evidence of appellant’s drug trafficking at trial because he alleges that the probative value was outweighed by the prejudicial impact. The prosecutor’s closing argument to the jury is also challenged as are the trial court’s jury instructions. Finally, appellant argues that he is entitled to a new trial because he allegedly received inadequate notice of the predicate offenses which supported the corrupt organizations charge.

We first address appellant’s challenges to the weight and sufficiency of the evidence in the case. Initially, we note that this court’s authority to review claims of this nature was recently confirmed in Commonwealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111 (1991) (en banc), appeal denied, 529 Pa. 668, 605 A.2d 333 (1992). In Murray, the en banc court stated: “The law in this Commonwealth has long been that a new trial may be ordered ‘on the ground that the verdict is against the weight of the evidence, when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice, and the award of a new trial is imperative so that right may be given another opportunity to prevail.’ ” Commonwealth v. Murray, 408 Pa.Super. at 439, 597 A.2d at 113 (citation omitted). In light of this standard, appellant’s claim cannot prevail.

Appellant argues that the verdict for third degree murder is against the weight of the evidence because the only witness actually placing appellant at the scene of the murder, Florence Daniels, gave inherently unreliable testimony. Appellant’s argument that a verdict of guilt shocks the conscience if based on Daniels’ identification testimony is grounded primarily on the fact that Daniels failed to identify him at a lineup or preliminary hearing. The trial court rejected this claim, noting that Daniels remained credible despite extensive “grilling” by defense counsel. Daniels persuasively explained her failure to identify appellant at the line-up or preliminary hearing. She had received a threatening call prior to her appearance and she was frightened. Theresa Teagle, along with whom Daniels had been identified as a witness for the Commonwealth, was dead, having been killed before the lineup could be held.

Appellant concedes that the presence of intimidation might explain the failure to identify appellant “under normal conditions” but he also argues that Daniels’ identification is fatally undermined by the circumstances under which she saw appellant. In particular, appellant notes that Daniels described the scene of the murder as “pitch black” and also conceded that she had consumed some beer and smoked “reefer” before she witnessed the shooting. Appellant cannot prevail on these arguments. Daniels was vigorously cross-examined by counsel regarding the visibility, her certainty with respect to appellant’s participation and her ability to accurately perceive events despite her slight degree of intoxication. We agree with the trial court that Daniels remained unshaken in her identification testimony at trial and adequately, indeed convincingly, explained her failure to identify appellant at prior judicial appearances.

Moreover, numerous aspects of Daniels’ testimony were corroborated by other witnesses. Thus, Daniels’ description of the sequence of events which unfolded the night of the killing was corroborated by William Bud Johnson and two other witnesses, all of whom were at the scene of the murder. Each witness saw and heard the same criminal episode, although each was able to identify a different participant. Their testimony as a whole, however, confirmed the number of participants, the way in which the shooting occurred and the fact that the area was lit well enough to recognize the assailants. Appellant’s argument that, based on Daniels’ identification, the verdict shocked the conscience, is wholly without merit.

The sufficiency of the evidence argument regarding the corrupt organizations charge is likewise to no avail. The applicable standard is well-settled and quite narrow. We must determine whether, viewing all the evidence at trial, as well as the reasonable inferences to be drawn therefrom, in the light most,favorable to the Commonwealth, the trier of fact could have found that each element of the offense was proven beyond a reasonable doubt. Both direct and circumstantial evidence can be considered equally when assessing the sufficiency of the evidence. Commonwealth v. Hughes, 521 Pa. 423, 429, 555 A.2d 1264, 1267 (1989); Commonwealth v. French, 396 Pa.Super. 436, 578 A.2d 1292 (1990).

As relevant to the instant case, the crime of “corrupt organizations” is defined in the Crimes Code, 18 Pa.C.S. § 911(b)(3) as follows:

(3) It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.

The corrupt organizations act further defines “enterprise” and “racketeering activity” as follows:

(3) “Enterprise” means any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity, engaged in commerce.

18 Pa.C.S. § 911(h)(3).

(1) “Racketeering activity” means:

(i) any act which is indictable under any of the following provisions of this title:
Chapter 25 (relating to criminal homicide)
(ii) any offense indictable under section 13 of the act of April 14, 1972 ... known as The Controlled Substance, Drug, Device and Cosmetic Act (relating to the sale and dispensing of narcotic drugs);
(iii) any conspiracy to commit any of the offenses set forth in subparagraphs (i) and (ii) of this paragraph —

18 Pa.C.S. § 911(h)(1).

Appellant contends that there was insufficient evidence that an enterprise ever existed. This claim borders on the frivolous. Abundant and detailed evidence of the “Family’s” drug dealing, and tactics of intimidation and violence was set forth in the record and recounted above. Charles Harris’ testimony alone identified appellant as the leader of an association of individuals engaged in a lucrative, organized and ongoing narcotics trade. The enterprise had numerous people working for it. It met regularly, in fact daily, for years to discuss plans for hiding assets, expansion, and other “business” related matters. Harris’ testimony was corroborated by several witnesses. Thus, everything to which Harris testified, which alone would defeat an insufficiency challenge on corrupt organizations, was supported by other witnesses who were uncontradicted at trial. In fact, appellant states his insufficiency claim in a wholly conclusory manner, and fails to specify where the Commonwealth’s case allegedly fell short. He is not entitled to relief.

Appellant’s next contention is that the trial court abused its discretion by failing to order a separate trial on the charge of corrupt organizations. Appellant acknowledges, as he must, that the decision whether to sever offenses for trial purposes is entrusted to the sound discretion of the trial court and that the exercise of that discretion will not be disturbed absent manifest abuse. See, e.g., Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991); Commonwealth v. Newman, 528 Pa. 393, 598 A.2d 275, 277 (1991). Moreover, a bare assertion that a failure to sever has prejudiced a defendant’s right to a fair trial, without showing how prejudice occurred, will not support such a claim. Yet, this is precisely what appellant has done here. In fact, the only argument appellant makes on the severance issue is that the jury could not help but be prejudiced after hearing “all the allegations of wrongdoing.” The nature of the prejudice is not mentioned nor does appellant articulate a basis for severing the trial other than that the offenses were “totally unconnected”.

Our supreme court recently stated the standard by which assertedly erroneous consolidation claims must be judged. It explained:

Where the defendant moves to sever offenses not based on the same act or transaction that have been consolidated in a single indictment or information, or opposes joinder of separate indictments or informations, the court must determine: whether the evidence of each of the offenses would be admissible in a separate trial for the other; whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative, whether the defendant will be unduly prejudiced by the consolidation of offenses.

Commonwealth v. Lark, 518 Pa. 290, 300, 543 A.2d 491, 496-497 (1988).

This standard is derived in part from Pennsylvania Rule of Criminal Procedure 1127 which articulates joinder standards as follows:

A. Standards (1) Offenses charged in separate indictments or informations may be tried together if: (a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or (b) the offenses charged are based on the same act or transaction.

Therefore, in order to determine whether the trial court abused its discretion in failing to sever the corrupt organizations charge from the charges of murder, PIC and assault we first must determine whether evidence of each offense would be admissible in a separate trial for the other. In his argument to the trial court on post-verdict motions, appellant conceded that the problem in this realm does not arise with regard to introducing evidence of the murder and drug trafficking in the corrupt organizations case, because these offenses form the “racketeering activity” which constitutes an essential element of that charge. However, appellant argues that severance was required because if appellant were being tried separately on the murder charge, evidence of the corrupt organization offense would not be admissible. We conclude that such evidence would be admissible, and that the first prong of the severance determination, therefore, must be answered in the affirmative.

While it is the general rule that evidence of distinct criminal acts will not be admissible solely to prove that a defendant has a criminal disposition or to prejudice unfairly the jury, such evidence is admissible in well-defined circumstances where it is relevant on other crucial trial issues. See Commonwealth v. Grekis, 411 Pa.Super. 513, 529, 601 A.2d 1284, 1293 (1992). Therefore, evidence of other crimes can be introduced when it tends to prove motive, intent, absence of mistake or accident, plan or design, identity, or where such evidence forms a part of the natural development of the facts at issue. See Commonwealth v. Lark, supra; Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987); Commonwealth v. Lawson, 519 Pa. 175, 546 A.2d 589 (1988); Commonwealth v. Nolen, 390 Pa.Super. 346, 568 A.2d 686 (1989).

In analyzing the evidence admissible for a separate murder trial, we conclude that the evidence that appellant headed a drug trafficking ring known as the “Family”, his leadership role in the organization, its workings and the identity of its membership [i.e. the evidence at the heart of the corrupt organizations charge] would be probative on a number of issues regarding the murder and would therefore have been admissible at a separate trial for murder. First, among the many legitimate purposes for which the evidence was admissible, evidence of corrupt organizations was relevant to establish motive for the murder.

As the supreme court has reminded us recently: “ ‘[Although motive is not an essential element of the crime, it is always relevant and admissible.’ ” Commonwealth v. Ward, 529 Pa. 506, 509, 605 A.2d 796, 797 (1992) (citation omitted; emphasis supplied). In the instant case, appellant’s leadership role in the illicit association known as the “Family” was directly probative to explain why the attack on Green and Johnson occurred. As members of a rival gang, Green and Johnson were purportedly attempting to interrupt or at least profit from appellant’s drug trade in South Philadelphia. This drug trade, which accounted for colossal profits for appellant and his confederates; was controlled by the “Family”, headed by appellant. In this regard, appellant’s affiliation with the “Family” provided a motive for him, Wells and Howard to “teach a lesson” to Green and Johnson for allegedly trying to interfere with Kerry Harrison, one of the “Family’s” drug dealers. See Commonwealth v. Hall, 523 Pa. 75, 84, 565 A.2d 144, 149 (1989) (in a drug-related murder case, the Commonwealth was properly permitted to question defendant about his prior drug dealings to establish motive for the killing — victims had been drug dealers who cheated defendant and had been killed in revenge).

Evidence of corrupt organizations was also relevant on the issue of identity. Appellant’s role with the “Family”, his constant alliance with Wells and Howard in matters involving drugs and weapons were all probative to corroborate Florence Daniels’ testimony that appellant was indeed one of the assailants on the street corner the night of the murder. Daniels’ testimony, while unshaken on cross-examination, was challenged by her refusal to identify appellant at the line-up which was held right after Teagle’s death. Thus, evidence that appellant acted as the head of the gang which orchestrated the assault and his continuous association with Wells and Howard was particularly relevant in a case in which identity remained a critical issue at trial. See Commonwealth v. Lark, supra, 518 Pa. at 304-308, 543 A.2d at 498-499 (evidence of terroristic threats made to prosecuting attorney by defendant provided a “critical link in the Commonwealth’s chain of evidence introduced to establish the identity of the killer”, which was otherwise established by circumstantial evidence).

Finally, the evidence of corrupt organizations was relevant to establish the history of the event on trial and was needed to present to the jury the natural development of the case. This aspect of the relevance of “other crimes” has repeatedly been emphasized by our courts. We have acknowledged that in many cases the full, logical and honest development of a case to the jury requires the disclosure of other criminal conduct which is inextricably interwoven with the crime charged. Often, we have stated that the evidence is needed to “complete the story” of the crime on trial. Commonwealth v. Lark, supra; Commonwealth v. Murphy, 346 Pa.Super. 438, 499 A.2d 1080, 1082 (1985). This exception to the general rule excluding other crimes evidence, is particularly sensitive to the jury’s need to acquire a full understanding of the issues in the case and how and why they relate to one another. Without the evidence of the corrupt organization here, the jury would have been hard pressed to form a clear or accurate picture of what occurred on that street corner in South Philadelphia. Thus, at a separate trial for murder, appellant’s activities with the “Family” would plainly have been admissible.

In addition, the second prong of the severance inquiry, i.e., whether the evidence was capable of enough separation to avoid confusing the jury, must be answered affirmatively. The crime of corrupt organizations and the crimes of murder and assault are easily distinguishable and capable of remaining separated by the jury both during the trial and during deliberations. See Commonwealth v. Newman, 528 Pa. 393, 400, 598 A.2d 275, 279 (1991). While the offenses are related to one another in that the same actors are involved and the drug trafficking provided a unifying theme throughout the case and underlay both offenses, the elements of corrupt organizations and murder are plainly susceptible to independent evaluation by the jury without any undue confusion.

Thus, as the foregoing discussion makes plain, the evidence of corrupt organizations and murder, under the circumstances of this case, would have been admissible in a separate trial for the other and the evidence was clearly distinguishable by the jury. Therefore, as instructed by Lark, we turn to the “prejudice” prong of the severance inquiry. The question we address here is whether the danger of prejudice outweighed the benefit of consolidation. Commonwealth v. Lark, supra, 518 Pa. at 306, 543 A.2d at 499; Commonwealth v. Newman, supra, 528 Pa. at 400, 598 A.2d at 279. As the supreme court noted in Lark, the prejudice referred to in the standard “is not simply prejudice in the sense that appellant will be linked to the crimes for which he is being prosecuted, for that sort of prejudice is ostensibly the purpose of all Commonwealth evidence.” 518 Pa. at 807, 543 A.2d at 499 (emphasis original). Thus, the Lark court explained:

The prejudice [required for severance] is, rather, that which would occur if the evidence tended to convict appellant only by showing his propensity to commit crimes, or because the jury was incapable of separating the evidence or could not avoid cumulating the evidence.

Id.

This kind of prejudice was clearly not present in the instant case. We believe that the supreme court’s comments in this regard in Lark are particularly apt here as well; that is, that appellant “created” the sequence of events for which he subsequently stood trial. Appellant “forged his own linkage of events” and could not then be heard to complain that he was prejudiced by their joinder for trial. 518 Pa. at 308, 543 A.2d at 500. We conclude that the trial court did not abuse its discretion in refusing to sever the offenses.

Appellant also argues that he is entitled to a new trial because the trial court erroneously admitted evidence regarding surveillance and search of a house used for drug trafficking by Howard Willis. Appellant contends that the probative value was outweighed by its prejudicial impact. There is no merit to this claim. Evidence of the drug operations at Howard Willis’ house was clearly probative of the extent and nature of the drug organization headed by appellant. Willis was repeatedly identified as one of appellant’s “employees” and documentary evidence seized with Willis’ name on it confirmed the testimony at trial. When the search warrant was executed at Willis’ home, cocaine, drug paraphernalia and two handguns were seized. One of the handguns was consistent with the gun used to assault Lisa Waters. Cocaine, it will be remembered, was the drug in which appellant dealt. In fact, far from the prejudice outweighing the probative value here, we conclude that while the probative value of the contested evidence was high, the potential for undue prejudice was slight. The jury was already informed, through numerous witnesses, that appellant was the ring leader of a large, lucrative and violent drug-trafficking enterprise. Howard Willis’ house was a relevant link in appellant’s chain of operations but the jury’s awareness of its existence could not have effected its impartiality or ability to render a fair decision.

Appellant makes two arguments regarding the prosecution’s use of the testimony and prior statements to the police of the witness, Barry Jones. Briefly, the factual background of these challenges is as follows. Jones told the police in a statement given prior to trial that he had accompanied appellant, Wells and Howard to the shooting and described the incident. However, at trial, Jones recanted the earlier statement and said that although he knew the parties, he wasn’t present at the assault. He explained that at the time he spoke with police he was serving a sentence for the shooting of Lisa Waters. Jones said he believed that he would be paroled sooner if he gave the statement to police, thereby gaining favor with the Commonwealth. Jones claimed that when this expectation was dashed, he changed his mind about the statement to police. Thus, at trial Jones said he wasn’t there. The prosecutor claimed surprise and impeached the testimony with the prior inconsistent statement. The jury was instructed that Jones’ statement could be used only for the limited purpose of assessing the credibility of his trial testimony. Finally, it should be noted that Florence Daniels identified Jones from a photograph at trial as one of the men she saw on the street corner the night of the assault on Green and Johnson.

On appeal, appellant claims that the prosecutor improperly referred to Jones’ prior statement to police as substantive evidence. This allegation is based on the comment made during the Commonwealth’s closing argument that because of Florence Daniels’ ability to identify Barry Jones as one of the assailants, Jones’ statement “rang true.” In reviewing the prosecutor’s remarks in the context of his entire trial and all the evidence presented, we conclude that appellant is not entitled to a new trial on the basis of this claim. Commonwealth v. Smith, 490 Pa. 380, 386, 416 A.2d 986, 989 (1980). This court had held that while the prosecutor may not deliberately seek to prejudice the jury or stigmatize the defendant to such an extent that the jury can no longer deliberate dispassionately on guilt or innocence, every objectionable remark will not require a new trial. Only statements by the prosecutor which have the “unavoidable effect” of prejudicing the jury will require reversal. See Commonwealth v. Jones, 391 Pa.Super. 292, 310, 570 A.2d 1338, 1348 (1990); Commonwealth v. Strong, 522 Pa. 445, 452, 563 A.2d 479, 483 (1989). In light of this standard, the prosecutor’s fleeting remark which arguably could be construed as referring to Jones’ testimony as substantive evidence does not require a new trial. First, the comment was spoken in terms of evaluating Daniels’ testimony and the remark about Jones could fairly be characterized as an aside. Moreover, since the prosecutor did not directly argue the substantive credibility of Jones’ prior statement, the reference to it, especially in the context of the lengthy closing argument, can be described as obscure, at best. Finally, the trial court admonished the jury, on more than one occasion, that Jones’ prior statement could not be considered as substantive evidence and could only be used for the limited purpose of “deciding whether or not to believe Mr. Jones’ testimony here in court.” The jury was charged both initially and again in response to repeat the original charge about how it should treat Jones as a witness. Since the jury was properly instructed regarding the possible use of Jones’ prior statement and because the reference to it cannot be characterized as overreaching, no new trial is required.

Appellant also challenges another aspect of the Commonwealth’s closing argument. In recapitulating the evidence at trial and urging the jury to return guilty verdicts for all co-defendants, the prosecutor remarked, “if you want to let them walk out of here, do so.” A defense objection was sustained and no further relief was requested. Thus, the issue regarding the allegedly improper remark has not been preserved for review. Commonwealth v. Chimenti, 362 Pa.Super. 350, 524 A.2d 913, allocatur denied, 516 Pa. 639, 533 A.2d 711 (1987). Moreover, in our view, this claim of prosecutorial misconduct wholly lacks merit. The prosecutor was merely urging the jury, “within the bounds of vigorous oratory permitted a prosecutor in closing argument”, to follow the direction of the evidence as the Commonwealth saw it and convict on first degree murder. Commonwealth v. Jones, 530 Pa. 591, 617, 610 A.2d 931, 943 (1992). This remark did not appeal to bias nor provoke hostility nor inflame the jury and there is no basis for relief here.

Finally, appellant argues that he received inadequate notice of the predicate acts which would form the basis of the corrupt organizations prosecution. Although not clearly stated, the gist of appellant’s argument appears to be the asserted failure of the trial court to order some sort of formal revelation by the Commonwealth on the predicate offenses underlying the corrupt organizations charge. He argues that the trial court erred in failing to reveal to him prior to trial the grand jury’s presentment. The record does not reveal where such a request was made by defense counsel. In addition, even if it had been made, appellant cites absolutely no item of prejudice which flowed from this supposed concealment. Moreover, the grand jury presentment is a recapitulation of the witnesses’ testimony and the Rules of Criminal Procedure specifically provide that “such testimony may be made available only after the direct testimony of that witness at trial.” Pa.R.Crim.P. 263(b). That procedure was followed here. In any case, appellant’s assertion of lack of notice is empty. There were two preliminary hearings in the instant case, at which the heart of the Commonwealth’s case was revealed to appellant. As the trial court correctly stressed, “there was no mystery as to the acts upon which the Commonwealth built its case.”

In accordance with the above findings, we affirm the judgment of sentence.

      . Following the trial in the instant case, the surviving victim, William Bud Johnson, died of the injuries sustained in this assault. Appellant pled guilty to voluntary manslaughter and was sentenced consecutively to other sentences imposed in this case. No sentence was imposed for the original aggravated assault charge.

      . Ms. Mackie did not testify, however, that her husband had been killed in another drug gang assassination by the same three individuals presently on trial. The prosecutor’s questions were circumscribed and carefully framed to keep the jury from becoming aware that Murphy had already been convicted of first degree murder for the September, 1983 death of James "Muscles” Reynolds, Mackie’s husband. See Commonwealth v. Howard, 375 Pa.Super. 43, 543 A.2d 1169 (1988),
        appeal denied, 522 Pa. 573, 559 A.2d 35 (1989). The fatal assault on Green and Johnson in the instant case had occurred on July 16, 1983. Arrests were not immediately forthcoming in either murder.

      . At trial, Johnson himself testified that he and Green were members of the rival "20th and Carpenter” gang.

      . We note that Jones, along with appellant, was identified as the assailant in the Lisa Waters assault.

      . In fact, the evidence was that the threatening phone call actually presaged the death of Theresa Teagle. In the call to Daniels, the caller stated that the girl with the "Jerry curls” (i.e. Teagle) was going to be dead for ‘‘telling”. Clearly, the threat was not an idle one.

      . Through testimony elicited from the police the jury was informed that an individual named James Churchill was tried for Teagle’s murder and found not guilty.

      . For the sake of simplicity, this court has and will refer to the “murder” charge, when describing the assault on Green and Johnson. Naturally, the evidence relevant to Green's murder was also relevant to the simultaneous attack on Johnson.

      . We are aware, of course, that the admissibility of other crimes evidence, even when one or more of the exceptions apply, must still be assessed in light of the need for such evidence in relation to its potential prejudice. See Commonwealth v. Taylor, 299 Pa.Super. 113, 119, 445 A.2d 174, 177 (1982). In our view, as the exposition of the facts of the case reflects, the need for the evidence was strong with regard to genuine issues of motive, identity and development of the history of the case. On the other side of the equation, appellant suggests no way whatsoever in which he was handicapped in his defense or unduly prejudiced by the consolidation.
      Further, we note that in cases of joinder of offenses for trial, as opposed to "other crimes evidence" of uncharged offenses, this court has suggested that the balance of factors weighs more heavily in favor of consolidation. First, the danger that the defendant is being called upon to "answer to” uncharged crimes is absent. The Commonwealth must prove both crimes beyond a reasonable doubt. Further, consolidation promotes judicial economy and therefore the interest of "judicial expedience must be weighed against the possibility of resultant prejudice to the appellant.” Commonwealth v. Taylor, supra, 299 Pa.Super. at 120, 445 A.2d at 177 (citation omitted).

      . Put another way in a recent federal case: "A showing that a defendant would have a better chance of acquittal in a separate trial does not establish prejudice requiring severance.” United States v. Warner, 955 F.2d 441, 447 (6th Cir.1992).

      . Appellant does not suggest, nor have we found any cases to support, an argument that the instant case should be assessed by a different standard for consolidation because one of the charges involved is "corrupt organizations”. Although we have found no Pennsylvania cases which specifically address the consolidation/severance issue in the context of corrupt organization cases, several federal racketeering cases have answered challenges to joinder of offenses for trial. The federal courts consistently determine these claims using the same approach that we use here, that is, "whether that evidence is probative of a material issue other than character.” Huddleston v. United States, 485 U.S. 681, 684, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771, 779 (1988). For instance, in United States v. Scarfo, 850 F.2d 1015, 1020 (3rd Cir.1988), the federal appeals court found that other crimes evidence was relevant to the government's case in that it enlightened the jury regarding the defendant’s relationship with a critical prosecution witness whose testimony was indispensable. Likewise, in United States v. Eufrasio, 935 F.2d 553 (3rd Cir.1991), a gambling and racketeering case, the defendant sought to sever a murder conspiracy count from the racketeering and other charges, claiming prejudicial joinder. The court found that the cases were properly tried together because evidence of appellants' gambling, extortion and loan-sharking activity would have been admissible in a separate trial for conspiracy to murder and evidence of the murder conspiracy would have been admissible in the RICO trial to prove the nature of the racketeering organization. 935 F.2d at 568-569. Certainly, the same reasoning prevails here.

      . Likewise, in a similar vein, appellant challenges the admission of numerous documents seized by the police. These documentary items, including business papers, receipt books, and other memoranda were seized pursuant to an independent fraud investigation undertaken by the police. The documents contained appellant’s name as well as the name of various "business” associates, including Howard Willis. Appellant complains that the evidence was inadmissible hearsay. We agree with the Commonwealth that the documents were not admitted for the truth of the matters asserted therein. These were not "business records” in the ordinary sense, offered to establish the actual workings of a business or to prove the truth of the dealings contained in them. Instead, the evidence was offered and received to show that the parties mentioned therein were associated with one another. See Common

        wealth v. Glover, 399 Pa.Super. 610, 613, 582 A.2d 1111, 1113 (1990). Moreover, if it was error to admit these documents, the admission was harmless. The relationships to which they attested were amply established elsewhere, and the Commonwealth made no use of the substantive matters to which they referred. In fact, it was defense counsel in closing argument who made repeated use of the "contents” of the now-challenged records to argue that appellant was nothing but a small-time, inept businessman. Thus, the records served the defense more than the Commonwealth. See Commonwealth v. Newman, 382 Pa.Super. 220, 238, 555 A.2d 151, 160 (1989).

      . Appellant challenges, in a separate claim, this portion of the court's charge. He argues that the trial court erred because it failed to define the word "substantive” for the jury. It is axiomatic that a trial court need not use specific language in its charge to the jury and that a challenged portion of court’s instructions must be read in context. Commonwealth v. Prosdocimo, 525 Pa. 147, 149, 578 A.2d 1273, 1274 (1990). Here, the word substantive was used in contrast to the credibility determination, i.e., whether or not to believe Jones’ trial testimony. This clearly drawn distinction precisely conveyed the meaning of the "substantive” in the context in which it was used. We note that when the jury asked the trial court to repeat its initial instruction regarding Jones, it asked that that portion of the charge be re-read and did not ask the court to define or elaborate on any particular word or concept. We further note that when the court first instructed the jury, there was no objection by defense counsel regarding the accuracy or clarity of the challenged portion to the charge. Under these circumstances there is no basis upon which to grant relief.
      In addition, appellant's second complaint regarding the court’s charge, i.e. the adequacy of the corrupt organizations instruction, has been waived. No defense objection to the charge as given was made. In any event, the trial court fully apprised the jury of the elements of corrupt organizations and the racketeering activity which must be shown in order to prove it beyond a reasonable doubt.

      . In addition, as the Commonwealth maintains, if a new trial were to be granted here, the statement itself would be admissible as substantive evidence, as appellant concedes. The law is now abundantly clear that prior inconsistent statements of a non-party witness are admissible at trial as substantive evidence as well as for impeachment purposes. Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). Thus, assuming the prosecutor’s remark provided the basis for granting a new trial, which we conclude it did not, the same statement would now be admissible at the new trial as substantive evidence. See Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992). See also Commonwealth v. Hall, 523 Pa. 75, 86, 565 A.2d 144, 150 (1989) (counsel cannot be deemed ineffective for failing to raise an objection to the use of prior statements as substantive evidence in a pre-Brady case, because the complained-of evidence would be admissible if appellant were retried as he requested).