author: WIEAND, Judge:

text:
    554 A.2d 525
    John R. HREHA v. Judith L. BENSCOTER, D.O. and Metropolitan Hospital-Springfield Division. Appeal of METROPOLITAN HOSPITAL-SPRINGFIELD DIVISION. John R. HREHA, Appellant, v. Judith L. BENSCOTER, D.O. and Metropolitan Hospital-Springfield Division, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 7, 1988.
    Filed Jan. 24, 1989.
    Reargument Denied March 9, 1989.

      Andrew F. Napoli, Philadelphia, for appellant in No. 983, and appellee in No. 1031.

      Herbert Monheit, Philadelphia, for appellant in No. 1031, and appellee in No. 983.
    Before WIEAND, McEWEN and MELINSON, JJ.
   WIEAND, Judge:

In this medical malpractice action, John R. Hreha sought to recover damages against Dr. Judith L. Benscoter and the Metropolitan Hospital, Springfield Division, for complications following the surgical replacement of his hip. The jury before whom the action was tried found that the causal negligence of the hospital was fifty (50%) percent, the causal negligence of Dr. Benscoter fifteen (15%) percent, and the causal negligence of Hreha thirty-five (35%) percent. The same jury found that Hreha’s damages were in the amount of $350,000. A motion for post-trial relief was filed by the hospital and denied by the trial court; and Hreha’s petition for delay damages was also denied. Both parties appealed.

As a result of a biopsy performed on August 8, 1983, plaintiff was diagnosed as having vascular necrosis with degenerative arthritis of the right hip. Therefore, on August 23, 1983, hip replacement surgery was performed by Dr. Benscoter at the Metropolitan Hospital. Following surgery, plaintiff was put on complete bed rest, and side rails were placed on his bed. Plaintiff made an unsuccessful attempt to get out of bed on August 27, and on the following day, August 28, he was found standing beside his bed by an intern. Because of this, x-rays were taken and disclosed that a hip prosthesis had become dislocated. This made necessary a second operation, which was performed by Dr. Benscoter on August 30, 1983. On September 1, 1983, plaintiff again got out of bed and was found lying on the floor by a nurse. Thereafter, Dr. Benscoter ordered that posey restraints be employed to keep plaintiff in bed. Cultures taken during the second operation disclosed that an infection had developed, and plaintiff was subsequently transferred to the University of Pennsylvania Hospital for further treatment. This treatment included additional surgery to remove the head of the femur (known as a girdle-stone procedure) and entailed a lengthy hospitalization. Plaintiff claimed that as a result of this procedure, his right leg was permanently shortened. He contended at trial that Metropolitan Hospital and Dr. Benscoter had failed to provide adequate post-operative care and that the hospital and operating surgeon had failed to observe proper surgical procedures which enabled the infection to invade his body.

The hospital contends on appeal that the trial court should have entered judgment n.o.v. in its favor because Dr. Herbert Swindell, plaintiffs only medical expert, gave conflicting testimony and failed to express an opinion to the required degree of medical certainty regarding the cause of plaintiffs complications following surgery. The required degree of medical certainty necessary to prove causation was reviewed by the Superior Court in Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979). The Court there said:

When a party must prove causation through expert testimony the expert must testify with “reasonable certainty” that “in his ‘professional opinion, the result in question did come from the cause alleged.’ ” McCrosson v. Philadelphia Rapid Transit Co., 283 Pa. 492, 496, 129 A. 568, 569 (1925). See Hamil v. Bashline, supra. An expert fails this standard of certainty if he testifies “ ‘that the alleged cause “possibly”, or “could have” led to the result, that it “could very properly account” for the result, or even that it was “very highly probable” that it caused the result.’ Niggel v. Sears, Roebuck & Co., 219 Pa.Super. 353, 354, 355, 281 A.2d 718, 719 (1971); Menarde v. Philadelphia Trans. Co., 376 Pa. 497, 103 A.2d 681 (1954); Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 133 A. 256 (1926); Moyer v. Ford Motor Co., 205 Pa.Super. 384, 209 A.2d 43 (1965).” Albert v. Alter, 252 Pa.Super. 203, 225, 381 A.2d 459, 470 (1977).
“The issue is not merely one of semantics. There is a logical reason for the rule. The opinion of a[n] ... expert is evidence. If the fact finder chooses to believe it, he can find as fact what the expert gave as an opinion. For a fact finder to award damages for a particular condition to a plaintiff it must find as a fact that the condition was legally caused by the defendant’s conduct.... [I]t is the intent of our law that if the plaintiff’s ... expert cannot form an opinion with sufficient certainty so as to make a [professional] judgment, there is nothing on the record with which a [factfinder] can make a decision with sufficient certainty so as to make a legal judgment.” McMahon v. Young, 442 Pa. 484, 486, 276 A.2d 534, 535 (1971). However, to make an admissible statement on causation, an expert need not testify with absolute certainty or rule out all possible causes of a condition. Bialek v. Pittsburgh Brewing Company, 430 Pa. 176, 242 A.2d 231 (1968); Ritson v. Don Allen Chevrolet, supra [233 Pa.Super. 112, 336 A.2d 359 (1975)]. Expert testimony is admissible when, taken in its entirety, it expresses reasonable certainty that the accident was a substantial factor in bringing about the injury. Hussey v. May Department Stores, Inc., supra, 238 Pa.Super. [431] at 437, 357 A.2d [635] at 638 [ (1976) ]. The expert need not express his opinion in precisely the same language we use to enunciate the legal standard. See In re Jones, 432 Pa. 44, 246 A.2d 356 (1968) (medical testimony need not conform to precise statutory definitions). That an expert may, at some point during his testimony, qualify his assertion does not necessarily render his opinion inadmissibly speculative. Woods v. Pleasant Hills Motor Company, 454 Pa. 224, 309 A.2d 698 (1973); Commonwealth v. Joseph, 451 Pa. 440, 304 A.2d 163 (1973).

Id., 263 Pa.Superior Ct. at 21-22, 396 A.2d at 1355-1356 (emphasis added) (footnotes omitted). See also: Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Pirches v. General Accident Insurance Co., 354 Pa.Super. 303, 511 A.2d 1349 (1986); Williams v. Dulaney, 331 Pa.Super. 373, 480 A.2d 1080 (1984); Walsh v. Snyder, 295 Pa.Super. 94, 441 A.2d 365 (1981); Smialek v. Chrysler Motors Corp., 290 Pa.Super. 496, 434 A.2d 1253 (1981); Sears, Roebuck & Co. v. Workmen’s Compensation Appeal Board, 48 Pa. Cmwlth. 161, 409 A.2d 486 (1979).

We have reviewed the testimony of Dr. Swindell and have determined that it contained the required degree of medical certainty with respect to the causation of plaintiffs post-operative complications. “That he may have used less definite language in other parts of his testimony did not render his opinion inadmissibly speculative, as long as he stated his opinion with sufficient definiteness at some point.” Pirches v. General Accident Insurance Co., supra 354 Pa.Super. at 310, 511 A.2d at 1353. See also: Brannan v. Lankenau Hospital, 490 Pa. 588, 596-597, 417 A.2d 196, 200 (1980); Kravinsky v. Glover, supra 263 Pa.Super. at 22 & n. 11, 396 A.2d at 1356 & n. 11. Metropolitan Hospital’s reliance on an isolated remark made by Dr. Swindell on cross-examination, that it was “possible ” that the amount of drugs given to the plaintiff had a cumulative effect, does not require that his medical opinion be rejected.

The hospital also contends that the trial court erred when it permitted Dr. Swindell to express an opinion regarding the cumulative effect of the drugs which had been administered to the plaintiff. It was error, it is argued, because the expert conceded that he was unfamiliar with ancef, one of the drugs administered to plaintiff. However, the physician’s testimony concerned the cumulative effect of the narcotic drugs which had been administered to plaintiff. Ancef is not a narcotic or mind-altering drug; it is an antibiotic. In view of the fact that the jury was made aware that Swindell’s opinion had referred only to the effect of narcotic drugs, the trial court’s ruling did not constitute a basis for awarding a new trial.

The hospital argues next that the jury’s apportionment of negligence between the hospital and the surgeon was contrary to the weight of the evidence because “[a]ll throughout the trial, plaintiff’s testimony pointed to a joint responsibility of the surgeon and the hospital and, ... [i]f there was going to be a verdict against both defendants, the overwhelming weight of the evidence warranted a verdict against both defendants at least in equal amounts.” We are compelled to disagree.

“ ‘In reviewing a denial of a new trial where the appellant argues that the verdict was against the weight of the evidence, we must award a new trial only where the verdict is so contrary to the evidence as to shock this Court’s sense of justice.’ ” Cervone v. Reading, 371 Pa.Super. 279, 286, 538 A.2d 16, 20 (1988), quoting Bolus v. United Penn Bank, 363 Pa.Super. 247, 259, 525 A.2d 1215, 1221 (1987). The allocation of 50 percent of the causal negligence to Metropolitan Hospital did not shock the conscience of the trial court and does not violate our sense of justice. Under the Comparative Negligence Law, 42 Pa.C.S. § 7102(a), the allocation of causal negligence was a matter properly for the jury to determine. See: White v. Southeastern Pennsylvania Transportation Authority, 359 Pa.Super. 123, 518 A.2d 810 (1986); Beary v. Pennsylvania Electric Co., 322 Pa.Super. 52, 469 A.2d 176 (1983); Peair v. Home Ass’n of Enola Legion No. 751, 287 Pa.Super. 400, 430 A.2d 665 (1981). “It is only in the rare case that a court should hold as a matter of law that the negligence of one party is equal to or greater than that of another.” White v. Southeastern Pennsylvania Transportation Authority, supra 359 Pa. Super. at 137, 518 A.2d at 817. This is not such a case. A jury could have found that primary responsibility for allowing plaintiff to get out of bed was that of employees of the hospital. Thus, Dr. Swindell testified that, in his opinion, the primary responsibility for implementing the proper safeguards for post-operative care lay primarily with the nursing staff, with some overall supervision from the physician. From this, and other similar testimony, the jury could find reasonably that the hospital’s causal negligence exceeded that of the surgeon who had performed the operation.

The hospital further contends that the trial court erred when it permitted Dr. Swindell to (1) read from the Physician’s Desk Reference, (2) render an opinion that the infection suffered by the plaintiff was one of several substantial factors in causing plaintiff’s subsequent injuries, and (3) render an opinion that the failure to impose posey restraints, to prevent the plaintiff from getting out of bed, contributed to the plaintiff’s injuries. These issues, however, were not raised in the hospital’s post-trial motions and, therefore, have been waived. “[0]nly issues specifically raised in post-verdict motions can be considered and will be preserved for appeal, and issues raised only in briefs in support of those motions may not be considered.” Cherry v. Willer, 317 Pa.Super. 58, 63, 463 A.2d 1082, 1084 (1983) (footnote omitted). See also: Weir by Gasper v. Ciao, 364 Pa.Super. 490, 528 A.2d 616 (1987), allo, granted, 518 Pa. 642, 542 A.2d 1371 (1988); Commercial Credit Corp. v. Cacciatiore, 343 Pa.Super. 430, 495 A.2d 540 (1985). Cf. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

At trial, plaintiff testified that he could not recall getting out of bed at the hospital; and, therefore, he was unable to testify to the events of August 28, 1983. The fact that he had been out of bed on August 28, 1983, however, was documented by a note recorded by the night intern as follows:

Night intern

—Called to see pt. he — pt. was on complete bed rest, and he tried to get out of bed to go to bathroom.
—Pt. is anxious & states that he tried to get a nurse to empty his urinal, but couldn’t get a hold of anybody. —Pt. did not fall. — Was helped back to bed.
—His IV came off & part of his dressings on his hip came off.
—New IV is restarted. Will replace dressings.

This entry was received in evidence over objection and was read to the jury by Dr. Swindell. The hospital argues, as it did in the trial court, that this was error because it contains a self-serving hearsay declaration by the plaintiff that he was unsuccessful in getting a nurse to empty his urinal.

Hearsay has been defined as an out of court statement offered to prove the truth of the matter asserted. See: Spotts v. Reidell, 345 Pa.Super. 37, 42, 497 A.2d 630, 633 (1985); Kemp v. Qualls, 326 Pa.Super. 319, 327, 473 A.2d 1369, 1373 (1984); Commonwealth v. Cassidy, 315 Pa.Super. 429, 433, 462 A.2d 270, 272 (1983). In the instant case, the out of court statement by plaintiff that he couldn’t get a nurse to empty his urinal could serve no purpose other than to prove the truth of the matter asserted. The evidence, therefore, was clearly hearsay.

A business record, of course, is recognized as an exception to the hearsay exclusion. See: 42 Pa.C.S. § 6108; In re Indyk’s Estate, 488 Pa. 567, 413 A.2d 371 (1979); Fauceglia v. Harry, 409 Pa. 155, 185 A.2d 598 (1962); Packel and Poulin, Pennsylvania Evidence, Ch. VIII, § 803.6 (1987). Where a business record contains multiple levels of hearsay, however, it is admissible only if each level falls within a recognized exception to the hearsay rule. See: Felice v. Long Island Railroad Co., 426 F.2d 192, 197 (2nd Cir.1970), cert. denied, 400 U.S. 820, 91 S.Ct. 37, 27 L.Ed.2d 47 (1970). Cf. Commonwealth v. Scott, 503 Pa. 624, 630, 470 A.2d 91, 94 (1983) (“When dissecting a double hearsay statement, the reliability and trustworthiness of each declarant must be independently established.”). Thus, although the night intern’s note may have been admissible as a business record, the statement made to him by the plaintiff was not admissible unless it was admissible under a separate exception to the hearsay rule.

In determining whether the plaintiff’s hearsay statement falls within any exception to the hearsay rule, we are guided by the Supreme Court’s decision in Cody v. S.K.F. Industries, Inc., 447 Pa. 558, 291 A.2d 772 (1972), where the Court set forth the general rule as follows:

The law in Pennsylvania heretofore has been that statements to a doctor were admissible insofar as they were necessary and proper for diagnosis and treatment of the injury and referred to symptoms, feelings and conditions. However, statements which related to the cause of the injury were not admissible, unless they were part of the res gestae. See generally, Foulkrod v. Standard Accident Insurance Co., 343 Pa. 505, 23 A.2d 430 (1942); Boyle v. Philadelphia Rapid Transit Co., 286 Pa. 536, 134 A. 446 (1926); Riley v. Carnegie Steel Co., 276 Pa. 82, 119 A. 832 (1923); Eby v. Travelers Insurance Co., 258 Pa. 525, 102 A. 209 (1917); Gosser v. Ohio Valley Water Co., 244 Pa. 59, 90 A. 540 (1914); Pauli v. Meyers, 200 Pa.Super. 74, 186 A.2d 849 (1962).

Id., 447 Pa. at 556, 291 A.2d at 776. See also: Packel and Poulin, Pennsylvania Evidence, Ch. VIII, § 803.4 (1987). In the instant case, it cannot be said that the plaintiffs statement was necessary for diagnosis or treatment. Rather, the statement that he tried unsuccessfully to get a nurse to empty his urinal was a statement of fact which sought to explain why he had left his bed.

The statement was also inadmissible under the res gestae exception. This exception to the hearsay rule was explained by the Supreme Court as follows:

As we have recognized, “res gestae” is actually a generic term encompassing four discrete exceptions to the hearsay rule: (1) declarations as to present bodily conditions; (2) declarations of present mental states and emotions; (3) excited utterances; and (4) declarations of present sense impressions. See Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103 (1975); McCormick, Evidence, § 286 (2nd Ed.1972).

Commonwealth v. Pronkoskie, 477 Pa. 132, 136-137, 383 A.2d 858, 860 (1978) (footnote omitted). See also: Commonwealth v. Coleman, 458 Pa. 112, 116, 326 A.2d 387, 389 (1974) (plurality opinion); Commonwealth v. Blackwell, 343 Pa.Super. 201, 209, 494 A.2d 426, 430 (1985). Plaintiffs statement that “he tried to get a nurse to empty his urinal, but couldn’t get a hold of anybody” fails to qualify under any of these four res gestae exceptions. The statement was not a declaration of either the plaintiff’s present bodily condition or his present mental state, but a statement of fact. It did not convey relevant information regarding plaintiffs physical condition, feelings, symptoms, or present mental or emotional state. See generally: McCormick on Evidence, §§ 291-296 (3d ed. 1984); Packel and Poulin, Pennsylvania Evidence, Ch. VIII, § 803.3 (1987). It conveys only that plaintiff was unable to obtain the assistance of a nurse to empty his urinal.

Similarly, plaintiffs extrajudicial statement was not shown to be an excited utterance or a present sense impression. The statement was not shown to be “a spontaneous declaration by a person whose mind had been suddenly made subject to an over-powering emotion caused by some unexpected and shocking occurrence____” Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942), quoted in Packel and Poulin, supra, § 803.2 at 562. See also: Commonwealth v. Pronkoskie, supra, 477 Pa. at 137-138, 383 A.2d at 860; Commonwealth v. Blackwell, supra, 343 Pa.Superi- or Ct. at 210-212, 494 A.2d at 430-431. Neither was it shown that the plaintiff-declarant was then observing an event which he was describing to another person who was also present at the scene. See: Commonwealth v. Blackwell, supra, 343 Pa.Superior Ct. at 212, 494 A.2d at 431-432. Plaintiffs statement did not relate to a contemporaneous observation of any event. It was, rather, a statement of a past event, i.e., that he had tried to get a nurse but couldn’t get ahold of anyone.

The trial court suggested in its opinion that, in any event, the evidence was harmless. We are unable to agree. The inference to be drawn from this evidence was that nurses had failed to empty plaintiff’s urinal and had been unavailable or unwilling to aid him when he required assistance. There was no other evidence that the nurses had been unavailable or unwilling to respond to plaintiffs calls for assistance. Therefore, the hearsay statement injected a basis for finding negligence on the part of hospital employees not otherwise established by competent evidence. Because the incompetent hearsay evidence may have influenced the jury’s finding that the hospital was not only negligent but at least three times more negligent than the surgeon who had failed to prescribe restraints, a new trial is required.

We have also considered the hospital’s argument that there was no evidence that plaintiff had suffered pain and that to allow recovery therefor was error. However, we find no merit in this contention. There was sufficient evidence to warrant an award for pain and suffering.

Because we must remand for a new trial, we do not now consider plaintiff’s contention that he is entitled to recover delay damages pursuant to Pa.R.C.P. 238.

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . Post-trial motions were also filed by Dr. Benscoter, but these were subsequently withdrawn.


source: Caselaw Access Project

author: MONTEMURO, Judge: BROSKY, Judge

license: Public Domain

text:
    554 A.2d 531
    COMMONWEALTH of Pennsylvania v. David W. EVERS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted April 7, 1988.
    Filed Jan. 25, 1989.
    Reargument Denied March 10, 1989.

      Brosky, J., dissented and filed an opinion.
    Jeffrey W. Stover, State College, for appellant.
    Merritt E. McKnight, District Attorney, Lock Haven, for Com., appellee.
    Before BROSKY, MONTEMURO and JOHNSON, JJ.
   MONTEMURO, Judge:

Appellant, David W. Evers, appeals the denial of his motion to quash a criminal information charging him with three (3) counts of Recklessly Endangering Another Person on grounds that the prosecution of these charges would violate his double jeopardy rights under the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution. We affirm.

This appeal arises out of an incident that occurred on March 8,1987 when, in an attempt to elude police, appellant allegedly drove his vehicle well in excess of the posted speed limit. Following appellant’s apprehension, a criminal information was filed charging him with three (3) counts of Recklessly Endangering Another Person. In addition to these charges, appellant was issued citations for various summary traffic offenses, including a charge for Reckless Driving. A summary trial was conducted and appellant was convicted of the Reckless Driving charge in addition to several other summary offenses. In response to the criminal information charging appellant with three (3) counts of Recklessly Endangering Another Person, appellant filed a timely omnibus pretrial motion. Included in the appellant’s pretrial motions was a motion to quash the information on grounds that prosecution of the Reckless Endangering charges after his conviction for Reckless Driving was barred by the Double Jeopardy Clause of both the United States and Pennsylvania Constitutions. The trial court refused to quash the information and this timely appeal followed.

Concisely stated, the sole question presented in this case is whether a subsequent prosecution for Recklessly Endangering Another Person is barred by the Double Jeopardy Clause when the defendant has been convicted of the prior summary offense of Reckless Driving and the charges arise out of the same incident.

Initially, we note that the denial of a pretrial motion •seeking to quash an information on double jeopardy grounds constitutes an appealable order. See Commonwealth v. Hoburn, 335 Pa.Super. 536, 542 n. 8, 485 A.2d 24, 26 n. 8 (1984), citing Commonwealth v. Beckman, 304 Pa.Super. 239, 450 A.2d 660 (1982). The guarantee against double jeopardy is contained in the Fifth Amendment of the United States Constitution and is made applicable to the states through the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The double jeopardy protection afforded by the United States Constitution has generally been interpreted as coextensive with the protection afforded by Article I, Section 10 of the Pennsylvania Constitution. See Commonwealth v. Goldhammer, 507 Pa. 236, 247-248 n. 4, 489 A.2d 1307, 1313 n. 4 (1985); McAulay, supra 361 Pa.Super. at 427 n. 4, 522 A.2d at 656 n. 4.

We find that the appellant’s prosecution for three counts of Recklessly Endangering Another Person is not barred by double jeopardy. The Supreme Court of Pennsylvania has addressed the question of the application of double jeopardy protections in a case factually analogous to the present case. In Commonwealth v. Taylor, 513 Pa. 547, 522 A.2d 37 (1987), the appellant had entered a plea of guilty before the district justice to the offense of harassment, a summary offense. See 18 Pa.C.S.A. § 2709. Subsequently, he was tried before a jury and convicted of the misdemeanor offense of carrying a concealed weapon. Mr. Taylor appealed the latter judgment of sentence, arguing that Section 110 of the Crimes Code prohibits prosecution of statutory offenses where there has been an earlier prosecution for a different statutory offense arising from the same criminal episode. See 18 Pa.C.S.A. § 110. The Supreme Court found Taylor’s situation to be “virtually indistinguishable” from that in Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), stating:

In Beatty, the defendant, following a vehicle collision, broke the jaw of the other driver and left the scene without identifying himself as required by the Motor Vehicle Code. 75 Pa.C.S.A. § 3743. Later the state police charged him with aggravated assault, 18 Pa. C.S.A. § 2702, and he pled guilty before a district justice, to the summary offense of failure to give information. 75 Pa.C. S.A. §§ 3744, 3743(b). He subsequently moved for dismissal of the charge of aggravated assault in a pretrial motion and the court granted his motion. The Commonwealth appealed to Superior Court. That court reversed the court of common pleas and we affirmed, stating:

... [T]he stipulated facts that (1) the charges arose from the same incident and (2) the prosecution knew of both violations at the commencement of the first proceeding satisfies only a portion of subsection (ii). We may not ignore the clause of that subsection which provides “and was in the jurisdiction of a single court ...” The charge of leaving the scene of an accident without providing proper identification under the Motor Vehicle Code in this Commonwealth is a matter within the original jurisdiction of the district justice. (Citation omitted).

Id., 500 Pa. at 290, 455 A.2d at 1197-1198 (citations omitted). The [Beatty] Court went on to say:

Our interpretation of Section 110(l)(ii) as excluding traffic violations under the Motor Vehicle Code is further bolstered by a consideration of the purposes sought to be achieved by the legislative enactment as well as promulgation of the compulsory joinder rule. The disposition of a summary offense in a traffic matter prior to the trial of a misdemeanor or felony does not present the type of government harassment of a defendant that would offend double jeopardy concerns. Additionally, judicial economy is not served by requiring our Courts of Common Pleas to dispose of these matters which are regularly entrusted to the district justice for disposition. It is fundamental that a rule of law should not be applied where its application fails to serve the purposes for which it was designed____

Taylor, supra 513 Pa. at 552-553, 522 A.2d at 39-40 (citations omitted). Reiterating that double jeopardy concerns do not arise where a misdemeanor prosecution is preceded by a summary conviction, the Taylor Court recognized that “[b]y allowing the district justice to dispose of the summary offense the defendant was no worse off than he would have been had the charge been bound over and joined with the greater offense.” Id., 513 Pa. at 553, 522 A.2d at 40. This is a clear statement by our supreme court that, under the circumstances of the Taylor case, the policy that the state should not “make repeated attempts to convict an individual, thereby exposing him to continued embarrassment, anxiety, and expense, while increasing the risk of an erroneous conviction or an impermissibly enhanced sentence” by submitting a defendant to multiple prosecutions for the same offense, is simply not implicated. Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984). The Taylor Court also declared that “[i]n addition, the disposition of the summary offense by the district justice has the advantage of narrowing the issues for the common pleas court, and furthers the interests of judicial economy.” Id. (citation omitted).

We of course recognize, as the dissent in the present case has chosen to explain at length, that the holding of the supreme court in Taylor rests upon an interpretation of 18 Pa.C.S. § 110(l)(ii). We are unwilling to believe, however, that the other statements made by our supreme court in the context of the Taylor decision, which do not specifically involve Section 110(l)(ii), are mere surplusage. Our supreme court in Taylor, and earlier in Beatty, expressly considered and addressed constitutional double jeopardy protections. Consequently, we have followed the guidance of the Pennsylvania Supreme Court in reaching our holding in the case at bar.

In addition to Taylor and Beatty, which we believe we are bound to read for their clear meaning and to apply accordingly, we are guided by the decisions of this Court. In Commonwealth v. Buechele, 298 Pa.Super. 418, 444 A.2d 1246 (1982), we held that a payment of a fine for the summary offense of hit and run did not bar prosecution for drunk driving arising from the same criminal episode. The appellant in Buechele argued that prosecution for the drunk driving offense was barred "... by the constitutional doctrine of double jeopardy, by the rule of Campana, and by Section 110 of the Crimes Code ...” Id., 298 Pa.Superior Ct. at 421, 444 A.2d at 1246 (1982). This Court flatly rejected appellant’s contentions, stating “[o]ur case and our statutory law will not be construed to permit such a mockery of the criminal justice system.” Id., 298 Pa.Superior Ct. at 422, 444 A.2d at 1248. Finding no violation of statutory law, the Buechele Court concluded its opinion with the following:

Lastly, we reiterate that the purpose of the double jeopardy doctrine and of the rule of Campana is to avoid harassment of a defendant by the government. Issuance by a district magistrate of a citation for a summary offense violating the Vehicle Code is not a prosecution or a trial which causes the anxiety and strain to a defendant, or which can be viewed as harassment by the government, such as is prohibited by our system of justice.

Id., 298 Pa.Superior Ct. at 427, 444 A.2d at 1250 (footnote omitted).

Likewise, in Commonwealth v. Warrick, 344 Pa.Super. 611, 497 A.2d 259 (1985), this Court held that double jeopardy did not bar trial on an escape charge where the appellant had been summarily held in contempt of court based upon the same incident. The majority in Warrick stated the following by way of a footnote:

Allen [Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), aff'g in part and rev’g in part, 322 Pa.Super. 424, 469 A.2d 1063 (1983) ] involved a contempt hearing as opposed to a summary proceeding. Even in that case our Supreme Court held that double jeopardy was not offended where the defendant was to be tried on rape, criminal trespass, and simple assault charges following a finding of contempt____ Although the [Supreme] Court failed to distinguish between summary proceedings and contempt hearings, it is clear that trial on criminal charges following a summary proceeding is less objectionable than where a defendant is first subject to a more full-blown adversarial hearing ...

Id., 344 Pa.Superior Ct. at 613-614 n. 2, 497 A.2d at 260 n. 2.

In this Commonwealth, the constitutional protections of the double jeopardy clause are not implicated where a felony or misdemeanor prosecution is preceded by a conviction before a district justice, whether by summary trial or guilty plea, for a summary offense. It is axiomatic that States may provide their residents with greater double jeopardy protection than that mandated by the Federal Constitution, as interpreted by the decisions of the United States Supreme Court. In this case, we have not chosen to do so. Accordingly, our decision in the instant case is to affirm the order of the trial court.

ORDER AFFIRMED.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge

dissenting:

Upon considerable review of the majority opinion I find their conclusiori that: “[I]n this Commonwealth, the constitutional protections of the double jeopardy clause are not implicated where a felony or misdemeanor prosecution is preceded by a conviction before a district justice, whether by summary trial or guilty plea, for a summary offense.” constitutes a misguided deduction from and analysis of, relevant case law which I cannot support with my joinder. Consequently, I dissent.

The majority’s arrival at the above stated conclusion is not startling or even difficult to understand in light of the general state of confusion in the area of double jeopardy law and the related, but not identical, areas of compulsory joinder/section 110 and merger law, but is perhaps symptomatic of a general failure to recognize fine but often critical distinctions between these areas of law and of the cases discussing them. The majority’s choice of words above is curious and tips off a similar failure to make important distinctions in case law and to distinguish between what is and what is not controlling authority. The majority opens the sentence quoted above with the words “in this Commonwealth, the constitutional protections of the double jeopardy clause are not implicated ...” creating a logical suggestion, I believe, that somehow residents of Pennsylvania, under our law, are afforded different double jeopardy protections than are residents of the other 49 states in this country.

It is fundamental constitutional law that federal constitutional protections apply equally to citizens and residents of all states and also that, although the states are free to construe similar state constitutional provisions to afford greater rights than the federal counterpart, the states cannot construe similar state provisions in a more restrictive fashion than the federal counterpart. It is equally fundamental that the ultimate authority on federal constitutional law is the United States Supreme Court, thus, our Supreme Court, and by implication, of course, this court, must play a subserviant role to the United States Supreme Court in construing double jeopardy protection.

The focus on double jeopardy protections is itself quite significant because appellant challenges the contemplated prosecution here on Fifth Amendment double jeopardy grounds, not upon section 110 or Campana compulsory joinder grounds. Thus, the resolution of this case must rest squarely upon a determination of constitutional double jeopardy law. In this regard this case differs from both Beatty and Taylor, which were decided expressly on the basis of section 110 and the compulsory joinder rule, and, I submit, the majority’s reliance upon these cases is misplaced.

Appellant has made a double jeopardy challenge in the present case. His theory is that, within the scope of double jeopardy law, the contemplated prosecution for aggravated assault is a second prosecution for the “same offense”, the first prosecution taking place when he was prosecuted for reckless driving, both charges being based upon the very same act of reckless driving. The majority contends, apparently, that a prosecution in Common Pleas following appellant’s conviction of the summary traffic offense either cannot or does not constitute a violation of the double jeopardy clause. However, the cases they cite do not make or support this holding.

It is important to note, as did a panel of this court in Commonwealth v. Johnson, 319 Pa.Super. 463, 466 A.2d 636 (1983), that although section 110, the Campana compulsory joinder rule and the double jeopardy clause often overlap, they are neither identical in scope or in origination of authority.. We stated in Johnson:

But the disposition of the section 110 issue does not automatically determine appellant’s double jeopardy question. While in many respects section 110 and the double jeopardy clause serve the same ends, nevertheless, the two provisions are not one and the same. In the first instance, the double jeopardy clause is, of course, a constitutional right; by contrast, section 110 is merely statutory____
Secondly, while the double jeopardy clause and section 110 at times may, as in the instant matter, overlap in their application, this is not true in all situations. The double jeopardy clause prevents subsequent trials by the same sovereign for the same act whether the initial trial resulted in an acquittal or a conviction. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Office of Disciplinary Counsel v. Campbell, 463 Pa. 472, 345 A.2d 616 (1975). Section 110, on the other hand, requires that, when certain other requirements are met, all of the charged offenses “based on the same conduct or arising from the same criminal episode” be tried at the same time or be barred. Section 110, unlike the double jeopardy clause, is not limited to prosecutions for the same act. Indeed, as far as Pennsylvania statutory law is concerned, section 109 of Title 18 more properly governs prosecutions for the same act. In sum, appellant’s double jeopardy issue must still be decided.

Ironically, where applicable, section 110 and the compulsory joinder rule, as is evidenced in the quoted material above, offer greater protection to the accused than does the double jeopardy clause. Thus, section 110 may require joinder in a single trial offenses which would not under the double jeopardy clause. The flip side of this is those rules, being a rule or statute of Pennsylvania authority, are subject to the creation of exceptions and limitations of either judicial or legislative design by Pennsylvania courts and legislature. The vitality of the double jeopardy clause, being one of the Bill of Rights of the federal constitution is not as fragile. Neither the Pennsylvania courts nor the Pennsylvania legislature is empowered to restrict the scope of this constitutional protection and a decision construing or holding that the Pennsylvania originated protections of section 110 and the compulsory joinder rule, do not apply to a certain set of circumstances, by itself, in no way affects the applicability of constitutional protections to the same set of circumstances. I believe the majority has failed to recognize this fact and that this failure has led to an overbroad reading of the Beatty and Taylor decision.

In Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), our Supreme Court considered a case where a man involved in a traffic accident struck the other man involved, in an ensuing confrontation, with his fist, breaking his jaw, and then left the scene of the accident. Appellant was subsequently charged with the crimes of aggravated assault and failure to identify oneself at the scene of an accident, a summary offense. Appellant waived a preliminary hearing and was bound over to court. Prior to trial he pled guilty to the summary offense. Subsequently, he filed an omnibus motion seeking dismissal of the aggravated assault charge which was granted. A panel of this court reversed indicating that neither the Campana cases nor section 110 barred the prosecution for aggravated assault. The Supreme Court affirmed and stated its conclusion or holding:

We therefore conclude that neither section 110(l)(ii) nor our compulsory joinder rule requires the barring of the prosecution of the aggravated assault charge in the instant case.

Note that the Court does not make any holding regarding constitutional double jeopardy law. Perhaps not coincidentally, there is no indication in the opinion that appellant had ever raised such a claim of double jeopardy. Quite possibly double jeopardy was not raised by the appellant in Beatty because under no recognized law would we have had a valid claim of double jeopardy.

First and foremost to a double jeopardy claim under the facts of Beatty would be at least a plausible assertion that appellant was being prosecuted a second time for the “same offense.” Although, within the scope of double jeopardy law, the determination of just what constitutes the “same offense” is not a simple one, (no less an authority than Justice, now Chief Justice, Rehnquist has stated, “the scope of each of these three protections [double jeopardy protections] turns upon the meaning of the words ‘same offense,’ a phrase deceptively simple in appearance but virtually kaleidoscopic in application.”), it does not appear that the offenses in Beatty could plausibly be considered the same under any theory but a same transaction theory. Such a theory would require all offenses committed in a single criminal transaction to be gained in a single adjudication. Conveniently, this same transaction theory is utilized in both the Campana compulsory joinder rule and section 110, but has not gained favor in constitutional double jeopardy cases. This could explain why only the so-called compulsory joinder rule and section 110 were at issue in Beatty. Regardless of the reason why constitutional double jeopardy was not at issue in Beatty the clear holding of the case, both in expression and upon the facts, was to exclude traffic violations from the scope of section 110 and the compulsory joinder rule. A holding which was reasserted in Commonwealth v. Breitegan, 500 Pa. 384, 456 A.2d 1340 (1983). Despite the fact that the constitutional double jeopardy clause was not at issue in Beatty and that the express conclusion and holding of the Court is silent on that issue, the majority seizes upon an isolated comment in Beatty, as reiterated in Taylor, regarding double jeopardy concerns to conclude that the protections of the double jeopardy clause are not applicable or implicated when a summary conviction is followed by a prosecution in Common Pleas. The Court states in Beatty:

The disposition of a summary offense in a traffic matter prior to the trial of a misdemeanor or felony does not present the type of governmental harassment of a defendant that would offend double jeopardy concerns.

Although the expression appears broad when read by itself, when read in context it is not immediately apparent how far the statement should be taken or was meant to be taken.

Immediately prior to this statement, and in the next paragraph, the Court addresses section 110 and the compulsory joinder rule. The sentence immediately preceding the subject statement discusses the purposes sought to be achieved by the legislative enactment as well as the promulgation of the compulsory joinder rule. Is the statement to be read in relation only to those particular rules and their purposes or is it to be read to encompass constitutional provisions and protections, which had not been raised nor specifically addressed elsewhere in the opinion, as the majority seemingly believes? Was the statement made to express the thinking by the Court relative to that particular case and issue, or was it meant to be a very broad expression designed to cover all relatively similar cases, including those where constitutional protections are asserted. And if meant to be a broad controlling principle governing Fifth Amendment double jeopardy protections was it meant to conflict with United States Supreme Court decision which seemingly support the theory that such summary type convictions can prevent subsequent prosecution in courts equivalent to our Common Pleas Courts?

It is a fundamental principle of law and appellate decision making that “statements of rules of law must be considered as those applicable to the particular facts of that case, and all other legal conclusions stated therein regarded as mere ‘obiter dicta’ and not of binding authority.” Standard Pennsylvania Practice § 2:126. In accord, Hunsberger v. Bender, 407 Pa. 185, 180 A.2d 4 (1962), Mt. Lebanon v. County Bd. of Elections, 470 Pa; 317, 368 A.2d 648 (1977). It has also been stated that: “general expressions in an opinion must be considered in the light of and cannot be dissevered from the facts of that case; ...” In re Trust Estate of Pew, 411 Pa. 96, 109, 191 A.2d 399, 404 (1963). Our Supreme Court has also stated “[t]his Court has consistently held that we should not decide a constitutional question unless absolutely required to do so.” Mt. Lebanon v. County Bd. of Elections, supra, 368 A.2d at 650.

When analyzed under the above authority it is clear that the majority’s reliance upon Beatty and Taylor, which essentially reiterates Beatty, to control the constitutional issues asserted here is unfounded. As expressed earlier, the holding of Beatty regarded only section 110 and the compulsory joinder rule. It did not address either federal or state constitutional protections. The Taylor holding, similar to Beatty, is directed to and regards only section 110. The Court states there,

The single issue presented by the Commonwealth is whether the Superior Court properly applied Section 110 of the Crimes Code to the facts and proceedings in the case.

522 A.2d at 38. The Court concludes their opinion stating:

Therefore, we conclude that since the harassment charge, as a summary offense, was in the jurisdiction of the district justice, conviction or a plea of guilty to that charge in summary proceeding did not bar the subsequent trial of the weapons offense.

The Court refers in this paragraph to subsection of section 110 which they found controlling; there is no mention of constitutional double jeopardy protection. Consequently, under the above authority, expressions going beyond the holding of the case are dicta and do not constitute the decision of the court or valid authority. The holding in Beatty is that section 110 and the compulsory joinder rule will not bar further prosecution after a summary traffic conviction, the holding is no more nor no less than that. The holding in Taylor is that section 110 was improperly applied to the facts of that case, specifically in that the harassment charge only was within the jurisdiction of the district justice. The holding in Taylor particularly must be read strictly to the facts of the case lest it be read to exclude § 110 from barring prosecution after conviction of any summary offenses. If such is the holding it would constitute, in effect, a reversal of the Campana decisions itself, which found summary convictions a bar to subsequent prosecution in Common Pleas under the so-called joinder rule. The Court gave no indication of such intent in Taylor.

The majority’s reliance upon dictum is further unwarranted, I believe, because the other principles cited above also militate against reading the statement as broadly as does the majority. The principle cited above indicates that general expressions must be read in light of the facts of the case. Neither Beatty nor Taylor present facts which would represent a violation of constitutional double jeopardy protections. As already discussed, the charges Beatty faced could not, under any recognized constitutional law, constitute a second prosecution for the “same offense.” Furthermore, pleading guilty to one of several pending charges will not bar prosecution on the other charges. Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). Consequently, the double jeopardy clause would not bar a subsequent prosecution and, of course, the Pennsylvania courts are free to create exceptions to, or construe their own statutes and joinder rules in any manner they deem appropriate to the extent they do not infringe constitutional rights. Under the circumstances present in Beatty the Court was quite correct in indicating such disposition of the summary traffic offense did not constitute the type of governmental harassment which would offend double jeopardy concerns.

In Taylor, the defendant was charged with two non-summary charges and during a preliminary hearing, which is granted of right, was allowed to plead guilty to a lesser included summary offense of one of the charges. There was only one prosecution, not two. Appellant simply pled guilty to one charge during the pendency of the prosecution. Again the court was quite correct in indicating that such a disposition was not of a type which would offend double jeopardy concerns. Read in the context of the facts of Beatty and Taylor, as the principle cited above indicates it should be, the Court’s statement of double jeopardy concerns is quite correct. However, it should not be read so broadly as to apply to all other cases and to control constitutional questions which were not even addressed in the' opinion or raised by the parties or presented by the facts of the case.

The third principle cited above is that the Courts should refrain from deciding constitutional issues unless absolutely necessary. It would follow logically from this, I believe, that dictum should not be read to decide constitutional issues where they were neither addressed nor applicable to the case in question. Furthermore, the Court’s reference to double jeopardy concerns, particularly in light of the above principle, could just as likely been a reference to so-called statutory double jeopardy protections. To the extent section 110 and the compulsory joinder rule provide similar protections to the double jeopardy clause they have generally become thought of as statutory equivalents. In fact, the term statutory double jeopardy was utilized in Commonwealth v. Vincent, 345 Pa.Super. 173, 497 A.2d 1360 (1985). Consequently, it is possible the statement regarding double jeopardy concerns did not even reflect contemplation, by our Supreme Court, of Fifth Amendment double jeopardy protections.

I also find the majority’s reliance on dictum to control this case legally unsound because in doing so they have ignored several decisions of this court where it has been expressly stated that, under double jeopardy, a summary traffic conviction can bar subsequent prosecutions, or otherwise is within Fifth Amendment double jeopardy protections. These cases include Commonwealth v. McAulay, 361 Pa. Super. 419, 522 A.2d 652 (1987), Commonwealth v. Hoburn, 335 Pa.Super. 536, 485 A.2d 24 (1984), Commonwealth v. Johnson, 319 Pa.Super. 463, 466 A.2d 636 (1983), and In Interest of R.R., 317 Pa.Super. 334, 464 A.2d 348 (1983), and clearly recognize the applicability of the double jeopardy clause to traffic convictions.

The majority attempts to discount the validity of these decisions by indicating their reliance, at least in part, upon Borough of West Chester v. Lal, 493 Pa. 387, 426 A.2d 603 (1981), is misplaced as it “does not support the proposition for which it is cited.” However, the Lai decision cannot be discounted that easily. It is true that factually Lai involved a different double jeopardy protection than the one at issue here. Namely, that one is protected from further trial proceedings after an acquittal. Thus, as stated by our Supreme Court, “a verdict of acquittal cannot be reversed without placing the defendant twice in jeopardy in violation of the constitutional proscriptions.” Id., 426 A.2d at 605. This protection accrues even when the acquittal is by operation of the granting of a demurrer and even if the demurrer is erroneously granted. Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986).

However, the double jeopardy protection recognized in Lai is simply one of the various protections emanating from the double jeopardy clause. There are several others including protection from a retrial after the granting of a mistrial if not manifestly necessary to grant the mistrial, protection from imposition of multiple punishment for the “same offense” and the one asserted here, the protection from multiple prosecution for the “same offense.” The fact of significance is that Lai recognized that the disposition of the summary offense was a criminal proceeding and brought rise to the constitutional protection of the double jeopardy clause. There is no suggestion in Lai that the other protections of the clause are somehow inapplicable to a summary criminal proceeding and disposition and the majority offers neither a reason why they should not or authority suggesting that it is proper to recognize that some but not all of the protections will apply to a certain class of criminal adjudication. Furthermore, the majority offers no reason why traffic summary offenses would be treated differently than the one considered in Lai. I suggest there is no such authority available and I further suggest that the panel members were within proper bounds of judicial construction and interpretation in utilizing the Lai decision to support their holdings in Hoburn and Johnson.

In contrast, the elevation of the dictum in Beatty and Taylor to the status of controlling precedential authority by the majority to circumvent or distinguish the holdings of the Superior Court contravenes the various principles outlined above and is nothing less than dangerous jurisprudence which can work only to further confuse an already relatively confused area of law.

I further believe the majority’s conclusion conflicts with holdings of the United States Supreme Court, which, of course, constitute the highest controlling authority available. The cases of Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), and Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), I believe, tend to refute the majority’s assertion that constitutional double jeopardy protections do not attach the convictions for summary offenses. Both of these cases involved convictions for municipal ordinances in a judicial scheme similar to ours in Pennsylvania. There was no right to jury trial in the municipal court and the possible penalty was relatively slight in relation to the potential penalty for more serious offenses adjudicated in the regular criminal forum. In fact, in Robinson, the penalty involved was a $50 fine. As such those offenses were similar in character to our summary offenses. In both cases, the conviction for the municipal ordinance was followed by prosecution for a more seriously graded offense by the State in the appropriate criminal adjudication forum and was based upon the same criminal act as the municipal charge. In Florida there was long standing precedent that one could be prosecuted for violation of a municipal ordinance without prejudice to the State to seek prosecution for the same act, regardless of whether the defendant had been convicted or acquitted in municipal court. The United States Supreme Court invalidated this precedent indicating to the extent the second prosecution constituted a prosecution for the “same offense” as the one prosecuted in municipal court the double jeopardy clause is violated.

More directly on point is the case of Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). In that case, Vitale struck two children with an automobile resulting in the death of both. Vitale was issued a traffic citation for failing to reduce speed to avoid an accident. He pled not guilty and in a non-jury trial was convicted and sentenced to pay a $15 fine. He was subsequently charged with two counts of involuntary manslaughter. Upon his double jeopardy challenge the manslaughter prosecution was ultimately found barred by the Illinois Supreme Court because the lesser offense, for which he already stood convicted, required no proof beyond that which was necessary for conviction of the manslaughter charge. The United States Supreme Court, while devoting most of their opinion to an analysis of whether, within the scope of the double jeopardy protection, Vitale would be subjected to a second prosecution for the same offense, indicated that a valid claim of double jeopardy could rest upon that traffic conviction, particularly where the State in proving the manslaughter charge would find it necessary to prove the failure to reduce speed for which Vitale had already been convicted.

I believe the case of Thigpen v. Roberts, 468 U.S. 27, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984), also supports this position. The Thigpen case, similar to Vitale, involved a situation where an individual was cited for traffic violations, including reckless driving, in an accident which resulted in a death, and was convicted in Justice of the Peace Court. Roberts appealed the conviction which resulted in the granting of a de novo trial. While the appeal was pending the State charged Roberts with manslaughter based upon the death which occurred in the same accident. Roberts was convicted of manslaughter and then sought habeas corpus relief. A magistrate recommended the writ issue based upon both double jeopardy and due process grounds. The Fifth Circuit affirmed, relying solely on the double jeopardy argument. In a curious twist, the United States Supreme Court affirmed upon the due process argument even though that issue had not been raised on appeal. The Court found due process violated when the State attempted to raise the charges during the pendency of the appeal. The reasoning for the holding was that the circumstances of the case raise a presumption of retaliation or vindictiveness in the filing of the manslaughter charges in response to the convicted’s exercising a right of appeal. The Fifth Circuit, in finding the double jeopardy violation, was obviously not dissuaded by the fact that the convictions were citations for traffic offenses. Nor, apparently, did the United States Supreme Court find this a fact of relevance in extending due process guarantees and protection to a situation involving traffic convictions even where the result, like in a double jeopardy claim, was to prevent or invalidate a prosecution for greater charges stemming from the same criminal act.

I believe the four United States Supreme Court decisions cited herein indicate that the majority’s position, that summary convictions, traffic or non-traffic do not implicate constitutional protections or are otherwise excluded from constitutional protections of the double jeopardy clause is clearly erroneous.

Because I believe a thorough analysis of Beatty and Taylor results in a conclusion that their holding in no way affects the validity of constitutional protections or the applicability of the Fifth Amendment double jeopardy clause to traffic convictions, and in light of Superior Court precedent and United States Supreme Court precedent, I respectfully cannot join in the majority’s opinion or disposition. The motion to quash should have been granted and the order denying that relief should be reversed here.

Consequently, for the above reasons, I dissent.

      . 18 Pa.C.S.A. § 2705.

      . 75 Pa.C.S.A. § 3714.

      . Although the issue was raised at the trial level, appellant has not raised on appeal the question of whether 18 Pa.C.S.A. § 110 operates as a statutory bar to the prosecution of the reckless endangering offense after his summary conviction for reckless driving. As a result, the issue has been waived for purposes of this appeal. We note, however, that the trial court correctly concluded that the neither Section 110 nor the compulsory joinder rule apply to summary convictions under the Motor Vehicle Code. See Commonwealth v. McAulay, 361 Pa.Super. 419, 426, 522 A.2d 652, 656 (1987).

      . We recognize that this Court has not uniformly interpreted this area of the law. See Commonwealth v. Hoburn, 335 Pa.Super. 536, 485 A.2d 24 (1984) (double jeopardy applies to summary traffic offenses). Accord Commonwealth v. Johnson, 319 Pa.Super. 463, 466 A.2d 636 (1983). However, these decisions rely upon Borough of West Chester v. Lai, 493 Pa. 387, 426 A.2d 603 (1981), in order to interpret the scope of the constitutional protection against double jeopardy. A close examination of Lai reveals that the Supreme Court in that decision was addressing a distinguishable procedural context. Proceedings had been commenced against the defendant Lai by a private criminal complaint charging violations of various municipal ordinances which were criminal in nature. In a summary hearing before a district justice, appellant was found guilty. However, a de novo hearing in the court of common pleas resulted in a judgment of acquittal. The Supreme Court held that principles of double jeopardy barred the appeal from the de novo hearing. The Lai decision does not support the proposition for which it was cited in Hoburn and in Johnson but, instead, addresses double jeopardy protection on the appellate level; namely, the well established principle that the prosecution is barred from seeking an appeal from a verdict of “not guilty” entered by the trial court in a criminal proceeding. See Commonwealth v. Ray, 448 Pa. 307, 311, 292 A.2d 410, 411 (1972).

      . We are firmly convinced that our holding in the instant case does not conflict with any holding of the United States Supreme Court concerning the constitutional protection against double jeopardy. We have reached this conclusion only after an exhausting review of United States Supreme Court precedent. The dissent has cited four cases which are advanced as support for the view that double jeopardy protections must attach to convictions for summary offenses. This contention is simply erroneous. The cases of Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) and Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973), recognize that a state and a municipality may not be treated as separate sovereignties for double jeopardy purposes. The Supreme Court’s opinion in Thigpen v. Roberts, 468 U.S. 27, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984), does not address the issue of the constitutional protection against double jeopardy, but relies solely upon Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), wherein it was decided that the protections accorded by the Due Process Clause were violated. Not only the facts of the instant case, but also the constitutional guarantee at issue, readily distinguish the case at bar from Thigpen. Finally, in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), Vitale was charged with two counts of involuntary manslaughter by the Circuit Court of Cook County. Vitale had already been convicted by the Circuit Court of Cook County for failing to reduce speed. In this previous proceeding, Vitale had waived a jury trial. It is quite clear that the circumstances of the instant case are not analogous to those circumstances which faced the Vitale Court. In this Commonwealth, a summary criminal proceeding does not involve the right to a jury trial. It was certainly the fact that our summary criminal proceedings are not full-blown adversarial trials, which prompted the Pennsylvania Supreme Court in Beatty, supra, to opine that "the disposition of a summary offense in a traffic matter prior to the trial of a misdemean- or or felony does not present the type of governmental harassment of a defendant that would offend double jeopardy concerns.” Id. 500 Pa. at 290-291, 455 A.2d at 1198. Perhaps it is to state the obvious that without a more complete adversarial criminal proceeding, the state does not have the same ability to subject the criminal defendant to "... continued embarrassment, anxiety, and expense, while increasing the risk of an erroneous conviction or an impermissibly enhanced sentence.” Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984). These, of course, are the very evils which the Double Jeopardy Clause prevents when it prohibits multiple prosecutions for the same criminal offense.

      . Dissenting Opinion, Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).

      . The majority argues that these cases were erroneously cited in support of the proposition that appellant’s conviction for reckless driving raises double jeopardy protections. They state that these cases indicate that a municipality and a state may not be treated as separate sovereignties for double jeopardy purposes. These cases do in fact make that holding and address that issue, but the emphasis on that aspect of the case is explained primarily by the fact that this was the argument advanced by the states to support the practice of successive prosecution by municipality and state. The Court indicated just as clearly in these cases that, to the extent the appellant was being prosecuted by the state for the "same offense” that he was prosecuted for in municipal court — within the meaning of double jeopardy law— the second prosecution would violate the double jeopardy clause; thus implicitly concluding that the municipal prosecution constituted a prosecution for double jeopardy purposes. This is relevant because the municipal prosecution in those cases is similar to summary prosecution in Pennsylvania. The fact that the Supreme Court recognized that these prosecutions in municipal court raised double jeopardy issues is very significant and clearly lends support to the position made in this dissenting opinion.

      . The majority similarly believes the citation of Vitale is erroneous to support the thesis of this dissent because, apparently, in Illinois an individual accused of traffic violations has a right to choose whether a jury or a judge will determine his guilt or innocence. The only apparent difference between the prosecution of traffic violations in Illinois and Pennsylvania is that in Illinois an accused individual has a right to choose a jury as a fact-finding body where in Pennsylvania the accused does not. The majority suggests then, in effect, that because the Pennsylvania legislature has not chosen to extend a right to jury trial to traffic violations — something which is not constitutionally required — a conviction of such a violation leaves a Pennsylvania resident open to succesive prosecutions at the prosecutor’s whim without the protection of the double jeopardy clause while Illinois residents are cloaked with that protection after a conviction for the same or similar offense even if, as did Vitale, they choose not to exercise their right to such a jury trial. The majority fails to show why a traffic prosecution or conviction in Illinois is so different than in Pennsylvania so as to require the extension of double jeopardy protections in Illinois but justifying the denial of such protections in Pennsylvania.
      The right to jury trial for traffic citations in Illinois certainly does not indicate that the potential penalty in that state is substantially greater than in Pennsylvania. Vitale was convicted of a provision that allowed no more than a 30 day jail sentence and in fact was sentenced to only a $15 fine. Summary offenses in Pennsylvania are described as those allowing a 90 day or less jail sentence, 18 Pa.C.S.A. § 106, and many are accompanied with fines of several hundreds of dollars. Nor does the majority indicate how the nature of the proceeding will be changed so substantially by the ability of the accused to elect a jury as a fact-finding body rather than a judge or district justice. The majority appears to contend that since summary prosecutions in Pennsylvania are not full-blown adversarial proceedings they do not implicate double jeopardy protections. But in response to this assertion one must question whether trials for failure to reduce speed in Illinois are substantially longer and more involved than trials in Pennsylvania for reckless driving so that they constitute full-blown advesarial trials which cannot be repeated without offending the principles of the double jeopardy clause? And if so, is this true even where, as did Vitale, the jury trial is waived? And does the ability of an Illinois resident to choose a jury trial when accused of traffic violations somehow allow Illinois prosecutors to subject Illinois residents to greater embarrassment, anxiety and expense so that they must be extended double jeopardy protections while Pennsylvania residents are free from such risk of embarrassment, anxiety and expense simply because they do not have to make that decision as to a fact-finding body.
      The Vitale opinion itself gives no indication that the Court considered the fact that an individual had a choice of jury trial in traffic cases relevant to the accrual of double jeopardy protection or that the Illinois judicial scheme involving traffic cases was of any significance in their double jeopardy analysis. Of course, it would make our task easier if Illinois had a judicial scheme exactly as ours. However, they do not, and the Supreme Court simply does not, and cannot, consider the volume of cases required to present a case exactly on point in every instance. The distinction made by the majority to move the present case without the scope of the decision in Vitale has not been demonstrated to be material enough to justify this treatment, nor upon reflection should it be considered so.

      . The majority does not discuss the issue of whether or not the contemplated prosecution for reckless endangerment would constitute a second prosecution for the "same offense” within the realm of double jeopardy law. Without going into a full analysis of that issue I would note my belief that it would. The Commonwealth seeks to impose further criminal liability upon appellant for the exact same act for which appellant has already stood trial and been convicted for. Upon the authority of Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), particularly the sixth footnote to that opinion, Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) and Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), I believe that a multiple prosecution of this fashion violates the double jeopardy clause.
      This is not to say that the attempted prosecution for all these charges in a single criminal prosecution or in a single criminal adjudication, or that punishment imposed upon convictions for both reckless driving and reckless endangerment which were received in a single criminal adjudication, would necessarily violate the double jeopardy clause. See, Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). However, having completed a prosecution for the alleged criminal act, I believe, the double jeopardy clause acts to invalidate a subsequent attempt to impose further criminal liability for the same criminal act in a subsequent proceeding especially where, as here, proof of the alleged offense will necessarily require or result in reproving the crime already prosecuted for.


author: OLSZEWSKI, Judge: KELLY, Judge,

text:
    554 A.2d 542
    COMMONWEALTH of Pennsylvania v. Eric MITCHELL, a Child, Appellant. In the Interest of Aaron MITCHELL. Appeal of Aaron MITCHELL.
    Superior Court of Pennsylvania.
    Submitted Aug. 29, 1988.
    Filed Feb. 15, 1989.

      Irene H. Cotton, Philadelphia, for appellant (at 1556).
    John Packel, Assistant Public Defender, Philadelphia, for appellant (at 1794).
    Donna Zucker, Assistant District Attorney, Philadelphia, for Com., appellee (at 1556).
    Before OLSZEWSKI, KELLY and HESTER, JJ.
   OLSZEWSKI, Judge:

This is a consolidated appeal from orders of commitment after appellants were adjudicated delinquent. Appellants, Aaron and Eric Mitchell, raise the following issues for our review: (1) whether there was sufficient evidence to support appellants’ respective adjudications of resisting arrest under 18 P.C.S.A. § 5104; and (2) whether the University of Pennsylvania campus police acted within their jurisdiction in detaining or arresting appellants under 71 P.S. § 646. In addition, Aaron contends that the evidence was insufficient to support an adjudication of delinquency on the charge of recklessly endangering another person. For the reasons below, we affirm.

Appellants, respectively, were charged with delinquency by reason of robbery, attempted theft, aggravated assault, simple assault, conspiracy, resisting arrest, and recklessly endangering another person. Thereafter, appellants filed motions to suppress identification and physical evidence which were denied after hearing. On May 11, 1988, an adjudicatory hearing was held during which witnesses on behalf of the Commonwealth testified, Eric testified and testimony taken at the motions’ hearing was incorporated in the Commonwealth’s case-in-chief. After the adjudicatory hearing, the trial court found appellants delinquent of resisting arrest, and also found Aaron delinquent of recklessly endangering another person. Subsequently, the trial court committed each appellant to a Youth Development Center for a period of two years. Appellants, thereafter, timely filed notices of appeal. On March 31, 1988, this Court granted Aaron’s petition to consolidate appeals for our review.

The following facts were established in the court below. On February 22, 1987, Mary Hendricks telephoned the University of Pennsylvania campus police, and reported that she had been followed by two black, male, teenaged twins, wearing identical brown jackets with fringe or fur at the seams, blue jeans and sneakers, as she was walking from a supermarket located at 43rd and Locust Streets, Philadelphia. Approximately ten to fifteen minutes later, when she reached 40th and Spruce Streets, she observed a hand reaching from behind her and into her coat pocket from which her wallet was protruding. She turned around and looked at appellants, who were standing immediately behind her. Within a matter of seconds, appellants proceeded west on Spruce Street. Once she believed that appellants were on their way, Ms. Hendricks continued south on 40th Street. Halfway down the block, however, she saw appellants directly behind her. She hurried to her residence, and contacted the University of Pennsylvania campus police. Appellants did not follow Ms. Hendricks to her residence.

On February 22, 1987, approximately 4:15 or 4:30 p.m., while on foot patrol in the 3900 block of Walnut Street, Philadelphia, Officer Gary Cooper of the University of Pennsylvania campus police received a radio call that a robbery had been attempted three to five minutes ago at 40th and Spruce Streets. The call contained a description of appellants. While receiving the radio message, and as he was walking on the south side of Walnut Street, Officer Cooper observed appellants walking east from 40th Street. Officer Cooper, thereafter, radioed for assistance. When Officer Talyai, a campus police officer, arrived, Officer Cooper pointed out appellants who were departing an arcade on the north side of Walnut Street. Officers Cooper and Talyai approached appellants, identified themselves and requested to speak with appellants “for a couple of minutes.” (N.T. 4/7/87 at 7). Appellants cooperated, at which time appellants and the officers walked towards a donut shop located at the 3900 block of Walnut Street. In front of the donut shop, Officers Cooper and Talyai informed appellants that they were being stopped because they fit the description of two suspects in an attempted theft. Officer Talyai further explained that the complainant was on her way and that, if she identified them, action would be taken, and if not, they could leave. Eric, who was standing between Officer Cooper and the outside wall of the donut shop, responded by grabbing Officer Cooper’s collar and pushing him away. The two struggled briefly before Eric broke free and ran east on Walnut Street. A pedestrian tackled Eric, knocking him down to the ground. Thereafter, Eric was subdued by Officer Cooper and other campus police officers who had arrived on the scene.

Aaron also attempted to leave by grabbing Officer Talyai’s arm and trying to throw Officer Talyai to the ground. Aaron broke away and ran east on Walnut Street for approximately one hundred feet before another pedestrian blocked his path and knocked him to the ground. Arriving on the scene, campus police officer, Thomas Rambo, grabbed Aaron. Aaron swung at Officer Rambo, missing him, then placed his hand on the handle of Officer Rambo’s revolver, unsnapping the holster. Officer Rambo grabbed Aaron’s wrist to remove his hand from the revolver and was able to subdue and handcuff Aaron. Both appellants were handcuffed and transported to University of Pennsylvania campus police headquarters for identification by the complainant.

Appellants first maintain that there was insufficient evidence to support appellants’ respective adjudications of resisting arrest pursuant to 18 P.S.C.A. § 5104. Specifically, appellants contend that the evidence is insufficient because the University of Pennsylvania campus police officers who approached appellants had informed them, immediately prior to the altercation, that they were not being placed under arrest. We find appellants’ contention meritless in light of the evidence presented in the court below. 18 P.S.C.A. § 5104 provides:

A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

To be adjudicated delinquent under this section, it is essential that there be a lawful arrest. See Commonwealth v. Karl, 328 Pa.Super. 97, 476 A.2d 908 (1984) (conviction pursuant to 18 P.C.S.A. § 5104 requires lawful arrest). With respect to this first contention, appellants do not contest the lawfulness of the campus police action under this section. They, however, argue that no arrest occurred.

The test for the occurrence of an arrest has often been defined as the happening of any act that indicates an intention to take the individual into custody and subjects him to the actual control and will of the person making the arrest. Commonwealth v. Farley, 468 Pa. 487, 364 A.2d 299 (1976); Commonwealth v. Allessie, 267 Pa.Super. 334, 406 A.2d 1068 (1979). An arrest may thus be effectuated without the actual use of force and without a formal statement of arrest. Commonwealth v. Daniels, 455 Pa. 552, 317 A.2d 237 (1974). The question is viewed in light of the reasonable impression conveyed to the person subjected to the seizure rather than in terms of the subjective view of the police officer. Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974).

Commonwealth v. Maddox, 307 Pa.Super. 524, 528-29, 453 A.2d 1010, 1012 (1982), quoting Commonwealth v. Benson, 280 Pa.Super. 20, 27, 421 A.2d 383, 386-387 (1980).

Although Officer Cooper told appellants that they were not being placed under arrest, it is evident from the record that appellants believed they were not free to go. First, we find it significant that Eric replied, “You can’t lock us up,” (N.T. 4/6/87 at 8), after Officer Cooper identified himself and informed appellants that they fit the description of twins who were involved in an attempted robbery. Second, we note that a physical struggle between Eric and Officer Cooper occurred after Eric was informed by Officer Cooper that he was being detained for identification. Finally, we find Eric’s testimony further indicates that he believed he was under the actual control of the campus police. Eric testified that, after he was leaving the arcade and walking down the street, “two police walked up to him.” (N.T. 5/11/87 at 35). He stated:

[The officers] told me to get up against the wall. I got up against the wall and then, they told me to put my hands up against the window, and I put my hands against the window, and then I turned ’round and saw one of them clonking me in the head with a night stick. I ask, “Why you hit me,” and I kept asking, and I said, “What we being stopped for,” and he would not tell us. I kept asking, “What we being stopped for,” and he would not tell us.
Then, he said talk to your buddy. And then, they checked him and after that, they spin us ’round and told us to get on the ground. And then, we like, you know, said “For what,” and my brother said, “We ain’t getting on the ground ’cause we ain’t do nothing,” like that. And then, they tried to force us on the ground and hit my brother with a night stick in the head.

(N.T. 5/11/87 at 35). In reviewing the record, we also find that Aaron reasonably believed he was being placed under arrest. Officer Talyai testified that he attempted to detain Aaron; however, Aaron attempted to throw Officer Talyai to the ground. Moreover, we find it significant that Aaron struggled over Officer Rambo’s gun. In light of the foregoing circumstances, it is apparent that Aaron, like Eric, was under the reasonable impression that he was subject to the control and custody of the campus police officers.

Second, appellants assert that the University of Pennsylvania campus police acted outside their jurisdiction in arresting appellants under 71 P.S. § 646. Aaron argues that 71 P.S. § 646 does not confer authority on campus police “to arrest [Aaron] on commercial property owned by the University of Pennsylvania but used exclusively for investment purposes” nor does the statute confer authority on campus police to arrest Aaron “for an offense which the Commonwealth failed to prove was committed within the ‘campus.’ ” Aaron’s brief at 10. 71 P.S. § 646 reads in pertinent part:

The Capital Police, Commonwealth Property Police and the Security or Campus Police of all State colleges and universities, State aided or related colleges and universities and community colleges shall have the power, and their duty shall be:
* * * ;fs sfc *
(h) To arrest any person who shall damage, mutilate or destroy the trees, plants, shrubbery, turf, grass-plots, benches, buildings or structures, or commit any other offense within State Buildings on State grounds in Dauphin County, the Pittsburgh State Office Building and grounds, and the Philadelphia State Office Building and grounds, the executive Mansion, and the grounds and buildings of all State colleges and universities, State aided or related colleges and universities and community colleges, and carry the offender before the proper alderman, justice of the peace or magistrate and prefer charges against him under the laws of the Commonwealth.
Security and Campus Police shall exercise their powers and perform their duties only on the premises of the State colleges and universities, State aided or related colleges and universities and community colleges by or for which they are employed and only and after they have completed a course of training including crisis intervention training and riot control as approved by the Department of Education except, that Campus Police employed by State owned colleges and universities located in any municipalities, other than cities of the first class or second class, are authorized, in emergency situations occurring within the municipality, upon the request of the mayor or other executive authority and under the direction of the local law enforcement authorities, to exercise those powers and perform those duties conferred pursuant to this section within the municipality for the limited purpose of aiding local authorities in emergency situations. When so acting, the Campus Police shall be acting within the scope of the authority of this act and are, at all times, State employes of this Commonwealth and entitled to all the rights and benefits accruing therefrom.

71 P.S. § 646(h) (emphasis added).

In construing legislation, we must “ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S.A. § 1921(a). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b). Where, however, the words of the statute are ambiguous and unclear, we may ascertain the intention of the General Assembly by considering, among other matters,

(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.

1 Pa.C.S.A. § 1921(c).

In addition, we recognize that 71 P.S. § 646 is not a penal statute and, therefore, “must be liberally construed to effect its object and to promote justice.” Commonwealth v. Holderman, 284 Pa.Super. 161, 167, 425 A.2d 752, 755 (1981); 1 Pa.C.S.A. § 1928. We also may presume that the Legislature did not intend “a result that is absurd, impossible of execution or unreasonable.” 1 Pa.C.S.A. § 1922.

Aaron contends that “[t]he clear intention of the legislature was to limit police powers of campus security guards to the ‘campus,’ i.e., the educational and residential grounds of a school.” Aaron’s brief at 10. We disagree. First, in reviewing the language of the statute, we note that the legislature did not make any distinction between commercial property used for investment purposes as opposed to property used for academic or residential purposes. If the legislature clearly intended such a distinction, it could have easily excluded campus commercial property used for investment purposes from campus police jurisdiction. It did not do so. Consequently, we turn to the legislative history of the statute to determine what constitutes “grounds and buildings” and “premises” within the statutory framework of 71 P.S. § 646(h). In considering proposed amendments to extend provisions of the statute to state-aided colleges and universities, the legislature specifically refers to the need to alleviate the burden upon the “Philadelphia Police Force” in “dealing with crime which occurs in the area around the University of Pennsylvania.” Legislative Journal —Senate at 333 (June 3, 1968). In addition, the legislature acknowledges the delay that results from colleges and universities depending on local police or state police authorities for police protection. See Legislative Journal —Senate at 333 (June 3, 1968).

In light of the foregoing legislative history, we find that a distinction between commercial property used for investment purposes and property maintained for academic or residential purposes is contrary to the legislature’s objectives in providing effective campus police protection. A college or university is not limited to academic and residential areas. In addition to the library, classrooms and labs, there are commercial establishments, i.e., bookstores, banks and food services owned or operated by a college or university. These commercial establishments, in many instances, serve as investments for the college or university and are frequented by the student body. Moreover, the grounds or premises of a college or university, especially when located within a municipality, may not be contiguous, but may be located in or constitute various sections of the municipality. Thus, if we were to agree with Aaron’s interpretation, we would be ignoring the layout and everyday operation of a college or university. We find the legislature would not have created a situation where it would have ignored the realities of the college or university campus and make campus police territorial jurisdiction contingent upon whether an offense or arrest takes place in a library as opposed to a college or university bookstore. Such a distinction would create jurisdictional chaos and be contrary to the legislature’s specific interest in preventing delay of police services to the colleges and universities. In addition, we are cognizant of the legislature’s goal in alleviating the burden on municipal police officers in supplying services. This goal cannot be achieved to its fullest extent if commercial establishments of a college or university are excluded from campus police territorial jurisdiction. We, therefore, conclude that “premises” and “grounds and buildings” within the statutory framework of 71 P.S. § 646(h) include, not only academic and residential areas, but also commercial property of a college or university used for investment purposes.

In the instant case, Lieutenant Steven E. Heath of the University of Pennsylvania campus police testified that the boundaries of the campus property are the Schuylkill Expressway to the east, 43rd Street to the west, Woodland Avenue to the south and Market Street to the north. He further testified that the boundaries delineated supra are “the geographical boundaries of the property that is owned by the university that is used socially by the university for either academic or recreational purposes or other types of business conducted by the university.” (N.T. 4/27/87 at 20). The record also indicates that properties on the north side of the 3900 block of Walnut Street are owned by a subsidiary of the trustees of the University of Pennsylvania for university investment purposes. We find the trial court did not abuse its discretion in finding that the arrest occurred on the “premises” of the University of Pennsylvania. We further find that the alleged offense took place on the “grounds” of the University of Pennsylvania. The record establishes that the alleged offense occurred on the southeast corner of 40th and Spruce Streets, within the boundaries of the properties owned by the University of Pennsylvania.

Finally, Aaron maintains that the evidence is insufficient to support his adjudication of recklessly endangering another person. Specifically, Aaron contends that the Commonwealth has failed to prove that he possessed the actual present ability to inflict death or seriously bodily injury.

In reviewing the sufficiency of the evidence to support the adjudication below, we recognize that the Due Process Clause of the United States Constitution requires proof “beyond a reasonable doubt” at the adjudication stage when a juvenile is charged with an act which would constitute a crime if committed by an adult. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Terry Appeal, 438 Pa. 339, 347, 265 A.2d 350, 354 (1970) , aff'd, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) . Additionally, we recognize that in reviewing the sufficiency of the evidence to support the adjudication of delinquency, just as in reviewing the sufficiency of the evidence to sustain a conviction, though we review the entire record, we must view the evidence in the light most favorable to the Commonwealth. See, e.g., Commonwealth v. Lawrence, 428 Pa. 188, 236 A.2d 768, 769 (1968).

In re Johnson, 445 Pa. 270, 272-73, 284 A.2d 780, 781 (1971).

18 P.S.C. § 2705 provides:

A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

In Commonwealth v. Trowbridge, 261 Pa.Super. 109, 395 A.2d 1337 (1978), this Court construed 18 P.S.C. § 2705 to require proof of actual present ability to inflict death or serious bodily injury to support a conviction under the statute. “[MJere apparent ability to inflict harm is not sufficient. Danger, and not merely the apprehension of danger, must be created.” Id., 261 Pa.Superior Ct. at 115, 395 A.2d at 1340. Aaron contends that, because he did not succeed in removing Officer Rambo’s gun from his holster and pointing it at the officer, he did not possess the actual present ability to inflict harm. We disagree. Instantly, there is sufficient evidence to support a finding that Aaron created a situation where the risk of death or serious bodily injury to Officer Rambo was real. Officer Rambo testified that Aaron was swinging wildly and attempting to throw him to the ground. During the struggle, Aaron grabbed Officer Rambo’s revolver and unsnapped the holster so that it could easily be removed. Given these circumstances, we find that it was not necessary that appellant actually point a gun to be adjudicated delinquent by reason of recklessly endangering another person. Aaron possessed the actual present ability to inflict harm by struggling over an officer’s gun. There was the very strong possibility that the revolver could discharge, injuring Officer Rambo. Thus, we conclude that there is sufficient evidence to adjudicate Aaron delinquent of recklessly endangering another person.

Accordingly, orders of commitment are affirmed.

KELLY, J., files concurring opinion.

KELLY, Judge,

concurring:

I concur in the result. I agree with appellant that at the time of his violent attempt to escape from the control of the campus police, he had been subjected only to a non-custodial detention and not a custodial detention or formal arrest. See Commonwealth v. Ellis, 379 Pa.Super. 337, 349-360, 549 A.2d 1323, 1329-34 (1988). Nonetheless, I would construe “arrest” as used in the resisting arrest statute to include lawful non-custodial detentions as well as custodial detentions and formal arrests.

I find that the statute is plainly intended to sanction and deter unlawful violent or potentially dangerous resistance by a suspect to the lawful exercise of police authority over the suspect. Though non-custodial detentions do not constitute “arrests” for Fourth Amendment purposes, they nonetheless involve the lawful exercise of control over a suspect while suspicious circumstances are being promptly investigated to determine whether formal arrest or release is appropriate. Any construction of 18 Pa.C.S.A. § 5104 which would distinguish between lawful non-custodial detentions and custodial detentions or formal arrests in this context would ignore the plain intent of the statute, unreasonably imperil law enforcement personnel, and carry constitutional distinctions improperly and illogically out of the context in which they belong. Though the statute could certainly be drafted so as to make this point more clearly, I decline to adopt any distinction such as that appellant has proposed absent a clear mandate by our legislature. See 1 Pa.C.S.A. §§ 1901, 1921(a); 1922(1).

I agree that the campus police had territorial jurisdiction to make this arrest. There is no basis in the language of the applicable statute to limit territorial jurisdiction of campus police based upon the use to which particular campus property is put. I note, however, that I do not read the majority opinion to have addressed or decided the issue of whether non-university property logically contained within a university campus (e.g. property surrounded by or contiguous on three sides to campus property) or property owned by a university but entirely removed from the main campus would fall within the jurisdiction of the campus police.

      . 18 P.S.C.A. § 3701.-

      . 18 P.S.C.A. § 901.

      . 18 P.S.C.A. § 2702.

      . 18 P.S.C.A. § 2701.

      . 18 P.S.C.A. § 903.

      . 18 P.S.C.A. § 5104.

      . 18 P.C.S.A. § 2705.

      . After the trial court's finding of delinquency, Eric filed a motion in arrest of judgment. We note that Eric's motion was not required in the instant matter. Although Rule 1123 of the Pennsylvania Rules of Criminal Procedure provides that a defendant has the right to file a motion for a new trial and in arrest of judgment, this rule is not applicable to juvenile proceedings. See Pa.R.Crim.P. 1 ("[Pennsylvania Rules of Criminal Procedure] shall govern criminal proceedings in all courts including courts not of record. Unless otherwise specifically provided, these rules shall not apply to juvenile or' domestic relations proceedings.”)

      . The record is unclear whether the witness saw a hand reach into her coat pocket or come towards her coat pocket.

      . Officer Talyai testified that appellants were initially stopped in front of the donut shop. (N.T. 4/7/87 at 25).

      . Eric does not frame the issue in terms of the sufficiency of the evidence. Eric argues that an individual has the right to resist when a police officer informs him that he is not being placed under arrest. We address appellants’ contentions as one.

      . Eric’s argument is based upon a different theory. Eric maintains that 71 P.S. § 646 does not allow the campus police to arrest him on property that provides no indication to an individual that it is connected with the University of Pennsylvania. We summarily dismiss this argument as having no merit. Campus police territorial jurisdiction cannot be based on an individual’s subjective impression.

      . We take judicial notice that the southeast corner of 40th and Spruce Streets is located within the geographical boundaries delineated by Lieutenant Heath. Goff v. Armbrecht Motor Truck Sales, Inc., 284 Pa.Super. 544, 548 n. 4, 426 A.2d 628, 630 n. 4 (1980) ("An appellate court may take judicial notice of a fact to the same extent as a trial court”). See also Commonwealth v. McCaskill, 321 Pa.Super. 266, 273 n. 3, 468 A.2d 472, 475 n. 3 (Superior Court can take judicial notice of fact that July 22, 1971 was a Thursday).

      . It was also reasonably foreseeable that pedestrians would be placed in danger of harm given that two pedestrians had already interceded in the officers' attempts to detain appellants. Aaron, however, was not charged with recklessly endangering pedestrians. See Commonwealth v. Baker, 287 Pa.Super. 39, 43 n. 1, 429 A.2d 709, 711 n. 1 (1981) ("[A] person put in danger of actual harm must be one of the individuals whom the accused is charged with endangering.”).