text:
    531 A.2d 1133
    COMMONWEALTH of Pennsylvania v. D. Douglas ROTH, Appellant. COMMONWEALTH of Pennsylvania v. Darrell BECKER, Appellant. COMMONWEALTH of Pennsylvania v. David SOUL, Appellant.
    Superior Court of Pennsylvania.
    Argued June 3, 1987.
    Filed Sept. 28, 1987.

      Nicholas E. Poser, Pittsburgh, for appellants.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before DEL SOLE, POPOVICH and MONTGOMERY, JJ.
   DEL SOLE, Judge:

Today we consider an appeal from the judgments of sentence stemming from Appellants’ convictions of Disorderly Conduct and Failure of Disorderly Persons to Disperse upon Official Order. By their brief, Appellants raise the following issues:

1. whether there lacked sufficient evidence to support Appellants’ convictions;
2. whether Appellants’ convictions were in violation of their constitutional rights to First Amendment free speech and assembly;
3. whether § 5503(a)(4) of the disorderly conduct statute is unconstitutionally overbroad and vague; and,
4. whether irrelevant and prejudicial evidence was erroneously admitted by the trial court.

Initially, Appellants posit that there lacked sufficient evidence to support these convictions. It is the Commonwealth’s position, however, that Appellants have failed to preserve this issue for appellate review insofar as it does not appear in Appellant’s post-verdict motions. We have examined Appellants’ “Post-trial Motions and Brief in Support Thereof” and find that Appellants have not waived this argument. Appellants’ allegations concerning the sufficiency of the evidence are not expressly characterized as such. However, a substantive reading of Appellants’ claims leads to the inescapable conclusion that Appellants challenged the sufficiency of the evidence. Thus, we shall address the merits of Appellants’ first argument.

In testing the sufficiency of the evidence, we must view the evidence in a light most favorable to the Commonwealth as the verdict winner and draw all reasonable inferences upon which the fact finder could have properly based its verdict. Commonwealth v. Easley, 341 Pa.Super. 381, 384, 491 A.2d 868, 869 (1985). A determination must be made as to whether there exists sufficient evidence to enable the trier of fact to find, beyond a reasonable doubt, every element of the crime for which the appellant has been convicted. Commonwealth v. Stehley, 350 Pa.Super. 311, 504 A.2d 854 (1986). Having established our appellate scope of review, we examine the evidence as presented by the record.

A few days prior to Easter Sunday 1985 Appellant-Darrell Becker was observed handing out informational material which stated that the Denomination Ministry Strategy (DMS) and the Network to Save the Mon Valley (Network) were planning to conduct a “scrap iron drive” on the lawn of the Shadyside Presbyterian Church (the Church). (N.T., 25). The “scrap iron drive” was to be held on Easter Sunday and would entail the dumping of scrap metal on the Church’s property. An additional flier distributed by DMS and the Network warned: [d]on’t make us evict the police on Easter Sunday, it could get messy!” (N.T., 30).

In order to quell the occurrence of this event, elders of the Church met with members of the Network, including Appellants Roth and Becker. At this meeting, the DMS and Network representatives requested that Appellants be permitted to address the Church’s congregation on Easter Sunday. The Church elders were told that, if they complied with this and other directives, the war against the Presbyterians would be ended. (N.T., 21). However, if the Church did not agree to these terms, a demonstration would be held which the Church would not like. (N.T., 20).

After deliberating on Appellants’ request, a special meeting of the Church’s Session (the governing body of the Church) was called during which it was decided that Appellants would be refused permission to address the congregation. (N.T., 21). Following this meeting, a spokesman of the DMS and Network was contacted and informed of the Sessions’ resolution. (N.T., 22).

Approximately at 10:00 a.m. on April 7, 1985, Easter Sunday, police were stationed outside of the Church and received a radio call that a caravan of DMS and Network people was proceeding towards the Church. (N.T., 30). The group of 20 to 30 individuals was lead by Appellants. Appellants were carrying a box in which was contained a steel beam. (N.T., 31-33). The demonstrators marched up the sidewalk of Amberson Avenue and came to the church entry walkway where they were stopped by Arthur Gilkes, the Church’s representative. (N.T., 33). Mr. Gilkes informed the gathering that they were not welcome at the Church. (N.T., 35). Appellant-Roth’s response to this admonition was that they were going to enter the Church and place the scrap metal on the altar. Mr. Gilkes repeated his caution. (N.T., 35).

When it became apparent that the assembly was not going to leave, Mr. Gilkes stepped aside so that members of the Pittsburgh Police Department could deal with the situation. (N.T., 36). Inspector Herman Mitchell reminded the group that they had received an official resolution from the Church that they were not to come onto its property or into its building. (N.T., 55). At this point, the group did not leave the walkway, but talked among themselves as Appellant-Soul read from the Bible. (N.T., 35-36). Assistant Superintendent Ralph Pampeña issued a second warning to the demonstrators. (N.T., 69). Appellant-Roth then stated to his followers “let’s go in.” Appellants then took a step forward onto the Church’s walkway. (N.T., 59, 71). Superintendent Pampeña proceeded to place Appellants under arrest. (N.T., 71).

Upon reviewing the record, which includes a videotape of the occurrence, we find that the evidence was sufficient to support Appellants’ convictions for disorderly conduct. Appellants were charged with the violation of 18 Pa.C.S.A. § 5503(a)(4) which provides:

(a) Offense defined. — A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.

That Appellants intended to cause “public inconvenience, annoyance or alarm” is readily apparent from the record. Appellants attempt to argue that their only intent was to peaceably lay their symbolic offering before the church’s altar so that their dissatisfaction with the plight of the poor and unemployed in the Mon Valley might be brought to the attention of certain Church members. However, Appellants’ altruistic motives in walking towards the Church’s property after repeated warnings are irrelevant. What is of the moment is that Appellants were apprised of the fact that neither their physical presence nor their symbolic offering were wanted on the Church’s property. Yet Appellants intentionally disregarded this notice and plodded onward to address an audience that specifically did not wish to receive their message. Clearly, Appellants’ actions in this respect manifested the intent to “cause public inconvenience, annoyance, or alarm.”

The record demonstrates, too, that the Commonwealth proved beyond a reasonable doubt that Appellants’ activity on Easter Sunday 1985 created a “hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor”. Although case law has not defined a “hazardous” condition in reference to § 5503(a)(4), the accepted meaning is that which involves “danger [or] risk”. American Heritage Dictionary. See State v. Clark, 39 Or.App. 63, 591 P.2d 752 (1979) (the term “hazardous” found in similar disorderly conduct statute interpreted to mean “involving risk or danger”).

The occurrences of that day were steeped in an emotionally charged atmosphere. Some members of the congregation who knew of the demonstrators’ plans refrained from attending services that day. (N.T., 93). Those who attended were frightened for their safety as well as for the welfare of the young and elderly members present. (N.T., 83). The fear was grounded partly on the literature concerning the demonstration. (N.T., 82). A certain amount of apprehension was caused by fear of a reoccurrence of a “skunk oil” attack which had been visited upon the Church during a prior Christmas celebration. (N.T., 110).

Accompanying the fear of many was the determination of others not to allow their services to be disrupted. Ushers were stationed at each entrance of the church building to ensure the congregation’s safety. Some of these ushers expressed that they would not permit any demonstrators to enter the building. (N.T., 67). Another parishoner stationed himself at the top of the steps leading to the Church nursery so that no one could disturb the children present there. (N.T., 119).

It is apparent from our reading of the record that many of the Church members felt that their Church was under siege while others were determined not to “let the battle be fought” inside their church. (N.T., 83). When Appellants proceeded to disrupt the Church services, albeit peaceably, they in reality engendered a “hazardous” condition. Appellant’s conduct of moving towards the Church’s property certainly created a dangerous situation in which altercations between the demonstrators and Church members could have occurred.

Likewise, Appellants’ activity would not have served any legitimate purpose; that is, conduct which is lawful and constitutionally protected. See Commonwealth v. Duncan, 239 Pa.Super. 539, 363 A.2d 803 (1976) (“no legitimate purpose” phrase present in harassment statute found to mean conduct which is not constitutionally protected). We are unconvinced that Appellants’ plan to place the steel scrap before the church’s altar where it was clearly unwelcome, can be characterized as being either lawful or constitutionally protected. Thus, the final element that the actor’s conduct served no legitimate purpose has been shown by the Commonwealth.

We stress that neither standing on a public sidewalk expressing dissatisfaction with the status quo nor reading from the Bible are grounds on which Appellants’ convictions rest. Such activity is constitutionally protected as an exercise of the right to free speech. However, Appellant’s action transgressed from peaceful protest to civil disobedience when, despite warnings to the contrary, they moved to gain entry of a church in which they were adamantly unwelcome.

Next, Appellants’ allege, and the Commonwealth concedes, that there was insufficient evidence to support their convictions of Failure of Disorderly Persons to Disperse upon Official Order. 18 Pa. C.S.A. § 5502. That offense is defined as follows:

[w]here three or more persons are participating in a course of disorderly conduct which causes or may reasonably be expected to cause substantial harm or serious inconvenience, annoyance or alarm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate- vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a misdemeanor of the second degree.

The gravamen of this section is the failure to obey an order by a police officer or other public official to disperse when three or more persons are engaged in a course of disorderly conduct, as defined by § 5503 of the Crimes Code. Commonwealth v. DeFrancesco, 481 Pa. 595, 607, 393 A.2d 321, 327 (1978).

We agree that insufficient evidence was adduced during trial that would establish Appellants’ violations of § 5502. Appellants were told by the police to disperse prior to their taking a step towards the Church’s property. (N.T., 59, 71). We have concluded, supra, that Appellants’ conduct did not reach the level of disorderly conduct until they moved forward. The police’s order to disperse was issued prematurely. Thus, the element of disorderly conduct, which is essential to sustaining a § 5502 conviction, was not present. Likewise, we note that Appellants were immediately arrested following their engagement in disorderly conduct. Accordingly, we must vacate the judgments of sentence for these convictions.

Second, Appellants posit that the disorderly conduct convictions are in violation of their constitutional rights to First Amendment free speech and assembly. Essentially, Appellants argue that these constitutional rights were infringed upon when the police arrested them as they demonstrated on a public sidewalk in front of the Church. In support of this position, Appellants cite a bastion of United States Supreme Court cases which discuss the dynamics of First Amendment rights. See: Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (fundamentals of safeguards afforded demonstrators on public sidewalk discussed); Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973) (expressive activity on public street constitutionally protected when it was directed at an individual and did not incite imminent lawfulness); Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (civil rights demonstration in front of South Carolina State House constitutionally protected since defendants engaged in no violence and police protection was sufficient to meet foreseeable disorder); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) (actions by civil rights protestors constitutionally protected when the atmosphere was found not to be explosive and the number of police present was sufficient to handle the crowd).

We duly recognize that public streets and sidewalks have been scrupulously honored as forums for assembly and the communication of thoughts between citizens. Moreover, this interchange of ideas may occur in a variety of ways including the spoken word and symbolic gestures. This, and much more, falls within the aegis of the First Amendment.

In the case at bar, we agree with Appellants’ assertion that “the protections of the First Amendment extend not only to the statements made by [the] defendants in this case, but to their expressive activity as well, including both their procession along the sidewalk and their holding of a symbolic offering while standing on the public sidewalk in front of the Church.” (Brief for Appellants, 29) (Emphasis supplied). Nevertheless, Appellants’ arguments in this respect are awry by virtue of the fact that Appellants were not arrested for their misuse of the public sidewalks. To the contrary, the public sidewalks in front of the Church were appropriate areas on which to protest the predicament of the poor and unemployed of the Mon Valley. It was only when Appellants maneuvered to enter Church property so as to inflict their viewpoint on its congregation did Appellants abandon the protection afforded by the First Amendment. Likewise, it was at this point the elements of disorderly conduct coalesced. On these grounds Appellants’ convictions rest. Thus, Appellants’ attempt to categorize their arrests as abridgements of their constitutional rights must fail.

Parenthetically, we note that the Commonwealth advances arguments on the public versus private property dichotomy associated with First Amendment rights. However, that precise issue is not before us today. By their Reply Brief, Appellants specifically state that they do not base their constitutional arguments on the contention that they had a First Amendment right to enter Church property. (Reply Brief for Appellants, 15). Insofar as Appellant has not raised this particular issue on appeal, we shall not explore its merits.

Third, Appellants assert that § 5503(a)(4) of the disorderly conduct statute is unconstitutionally overbroad and vague. We have reviewed Appellants’ post-verdict motions and note that the vagueness issue was not raised therein. It is established in this Commonwealth that the failure to raise an issue in post-verdict motions results in the preclusion of its review by an appellate court. Insofar as the vagueness issue was not preserved in Appellants’ post-verdict motions, we are constrained to find that it has been waived.

We shall consider Appellants’ allegation that § 5503(a)(4) is unconstitutionally overbroad. An overbroad statute characteristically authorizes the punishment of constitutionally protected conduct. A statute need not be vague in order to be overbroad. Commonwealth v. Stenhach, 356 Pa.Super. 5, 514 A.2d 114, 124 (1986). Indeed, “ ‘a clear and precise enactment may nevertheless be “overbroad” if in its reach it prohibits constitutionally protected conduct.’ ” Id., 356 Pa.Superior Ct. at 25, 514 A.2d at 124, quoting Grayned v. City of Rockford, 408 U.S. 104, 114-5, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972). The crucial question is whether the statute prohibits that which may not be punished.

Specifically, Appellants challenge two aspects of the language found in § 5503(a)(4). The first portion is the phrase “serves no legitimate purpose”. Appellants charge that this language is overbroad because it could easily be applied to constitutionally protected expressions. We disagree. As established, supra, activity which serves no legitimate purpose is that which is not constitutionally safeguarded. Thus, contrary to Appellants’ viewpoint, this particular language in the statute could not be interpreted to prohibit activity which is protected under the First Amendment. Moreover, we note that in Commonwealth v. Duncan, supra, the appellant challenged the constitutionality of a harassment statute containing the identical language on grounds that it was vague and overbroad. In that case, we held that the statute was neither vague nor overbroad inasmuch as it “specified] that the conduct must be of a non-legitimate nature — conduct which is not constitutionally protected.” Id., 239 Pa.Superior Ct. at 549, 363 A.2d at 808. For these reasons, we find that the phrase, “serves no legitimate purpose” does not render § 5503(a)(4) overbroad on its face.

Equally unconvincing is Appellants’ attempt to demonstrate the overbreadth of this phrase by applying it to the facts of this case. Appellants erroneously characterize their convictions as the trial court’s regulation of expressive activity on the basis of its content. (Appellants’ Brief, 41). The record does not support this position. Appellants’ convictions under § 5503(a)(4) were not content-based. Rather, there was sufficient evidence adduced at trial from which to conclude that Appellants’ plan of disruption to communicate their message did not constitute a legitimate purpose. We emphasize that it was Appellants’ scheme to disturb, not the topic of their protest, that served no legitimate purpose and was unprotected by the First Amendment. Accordingly, we cannot agree that this particular application, of the phrase demonstrates its overbreadth.

Next, Appellants charge that the language “creates a hazardous or physically offensive condition” is overbroad. We find not. Our Supreme Court has held that a state, in a valid exercise of its police power, may enact laws to protect the public peace even though such ordinances may curtail free speech or assembly. Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54, 58 (1980). See: Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942) (right of free speech found not to be absolute where language tends to incite an immediate breach of the peace). Instantly, we do not share Appellants’ view that the phrase “creates a hazardous or physically offensive condition” could be used to punish anyone exercising a protected First Amendment right. Our legislature specifically limited the breadth of the statute in subsection (a) which states that the offense of disorderly conduct requires an “intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.” Thus, we are of the opinion that the statute demonstrates a narrowly confined exercise of the Commonwealth’s police powers, which cannot be utilized to prohibit constitutionally protected conduct.

Finally, Appellants allege that the trial court erred by admitting into evidence irrelevant testimony which was prejudicial. Appellants point to three specific portions of the testimony adduced at trial. The first concerns a statemertt made by a Church member that an anonymous telephone caller threatened to unload truekfulls of scrap metal on Church grounds. (N.T., 26). The second is a witness’ testimony that he had heard reports that Church members intended to use force if the demonstrators entered the church. (N.T., 67). The third relates to statements made by another Church member concerning a skunk oil attack which occurred one year previous to the Easter Sunday incident. (N.T., 102).

In determining whether evidence was properly admitted, it is axiomatic that the trial judge has broad discretion in allowing or excluding evidence. Commonwealth v. Lumpkins, 324 Pa.Super. 8, 471 A.2d 96, 99 (1984). A basic requisite for the admissibility of any evidence in a criminal case is that it be competent and relevant. “Evidence is relevant when it tends to establish facts in issue or in some degree advances the inquiry and thus has probative value. Not all relevant evidence is admissible, however, and the trial court may exercise its discretion to exclude evidence that, though relevant, may confuse, mislead, or prejudice the jury.” Id., 324 Pa.Superior Ct. at 15, 471 A.2d at 99-100.

As previously noted, one of the elements of the offense of disorderly conduct is the requirement that Appellants either intentionally or recklessly caused public inconvenience, annoyance or alarm. It is patently clear that these three excerpts of the testimony elicited at trial tended to prove this element of the crime for which Appellants were arrested. Evidence indicating that Church grounds would be littered, that some of its members were apprehensive, and thát others would resort to physical force in order to keep the demonstrators out certainly was relevant in this respect. Therefore, we find no abuse of discretion by the trial court in admitting this evidence.

Accordingly, the judgments of sentence are affirmed in part, and vacated in part.

      . We have reviewed the videotape of Appellants’ arrests. Appellants argue that the videotape supports their contention that they did not take a step forward to gain entrance to the church. Appellants concede only that the videotape shows a barely noticeable movement by the defendants. We disagree. We note from our review of the videotape that the sequence of events was filmed from above Appellant’s mid-torsos. Thus, it is impossible to discern whether or not Appellants stepped forward. Moreover, from a careful viewing of the videotape, it is readily perceivable that Appellants made a movement towards the church. Accordingly, the videotape in no way contradicts the testimony by the Commonwealth’s witnesses that Appellants proceeded to step towards the Church in order to realize their goals.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    531 A.2d 1141
    Joanne DiFABIO, Appellant, v. CENTAUR INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued June 15, 1987.
    Filed Oct. 6, 1987.

      Roger J. Harrington, Philadelphia, for appellant.
    Margaret A. Wurzer, Philadelphia, for appellee.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   MONTEMURO, Judge:

Appellant Joanne DiFabio challenges the entry of summary judgment in favor of appellee Centaur Insurance Company. We agree with Ms. DiFabio that the terms of the “special multi-peril” policy of insurance issued to her by Centaur obligate Centaur to cover the loss here in question. We therefore reverse the order of the Philadelphia County Court of Common Pleas and remand for the entry of partial summary judgment in favor of Ms. DiFabio.

Neither party disputes the material facts. Ms. DiFabio owns a laundromat in Croydon, Bucks County. In January of 1983, she obtained from Centaur Insurance Company a “special multi-peril” insurance policy to cover various risks of loss to the premises where the laundromat is located. Centaur agreed in part to insure the premises against “all direct loss” caused by “WINDSTORM OR HAIL, excluding loss caused directly or indirectly by frost or cold weather ... whether driven by wind or not.” Cross-Motion for Summary Judgment, exhibit “A” at 2 (emphasis added). The Company added that it would not cover “loss to the interior of the building(s) or the property covered therein caused ... by water from sprinkler equipment or from other piping unless such equipment or piping be damaged as a direct result of wind or hail.” Id. (emphasis added). In December of 1983, during the coverage period of the multi-peril policy, high winds blew the back doors off Ms. DiFabio’s laundromat. As a result, water pipes inside the laundromat froze and burst. Although Centaur paid Ms. DiFabio for the loss of the doors, it has refused to pay for any damage to the interior of building. Ms. DiFabio therefore filed this action against Centaur to recover the withheld amounts.

On December 31, 1985, Ms. DiFabio filed a motion for partial summary judgment on the issue of liability. Centaur responded with an answer and a cross-motion for summary judgment. By order filed April 29, 1986, the court entered summary judgment in favor of Centaur and dismissed Ms. DiFabio’s action with prejudice. This timely appeal followed.

The sole issue presented by Ms. DiFabio is whether the multi-peril policy obligates Centaur to cover the damage to the interior of the laundromat. Centaur maintains that its policy clearly excludes coverage of losses “caused directly or indirectly by frost or cold weather” and that this exclusion applies to the water-damaged interior. Ms. DiFabio, however, contends that the policy just as clearly covers losses caused by “water from sprinkler equipment or from other piping” when the equipment or piping is “damaged as a direct result of wind.” Ms. DiFabio further contends that this language at least renders the policy ambiguous and that the court should have resolved the ambiguity in favor of the insured. We agree.

The rules that govern our construction of insurance contracts are familiar. As a means of fostering stability and predictability in contractual relationships, the common law has assigned to the court the task of interpreting the intent of the parties. See Hutchinson v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385 (1986); Standard Venetian Blind Co. v. American Empire Ins., 503 Pa. 300, 469 A.2d 563 (1983); Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979). When the language of the contract clearly reflects the parties’ intent, the court must give effect to that language. See Hutchinson v. Sunbeam Coal Corp., supra; Standard Venetian Blind Co. v. American Empire Ins., supra; Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). When the language is ambiguous, however, the court must resolve the ambiguity against the insurer, as drafter of the contract, and in favor of the insured, who typically lacks bargaining leverage regarding the terms of the coverage. See Rusiski v. Pribonic, 511 Pa. 383, 515 A.2d 507 (1986); Standard Venetian Blind Co. v. American Empire Ins., supra; Mohn v. American Cas. Co. of Reading, 458 Pa. 576, 326 A.2d 346 (1974). Of course, this general rule of construction does not absolve the court of its obligation to consider the circumstances from which the written instrument sprang. If extrinsic evidence will aid in the resolution of ambiguities, the court must look to it. If, moreover, the extrinsic evidence raises disputed issues of material fact, the court must refer those issues to the fact finder. See Hutchinson v. Sunbeam Coal Corp., supra; Gonzalez v. United States Steel Corp., supra. Only in the absence of useful extrinsic evidence will the court construe ambiguous contract language against the drafter as a matter of law. See Hutchinson v. Sunbeam Coal Corp., supra 513 Pa. at 202 n. 5, 519 A.2d at 391-92 n. 5; Restatement (Second) of Contracts § 206 comment a (1981).

The threshold determination of whether a writing is “ambiguous” necessarily lies with the court. See Hutchinson v. Sunbeam Coal Corp., supra; Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986). In making that determination, the court must assess the writing as a whole and not in discrete units. See Musisko v. Equitable Life Ins. Co., 344 Pa.Super. 101, 496 A.2d 28 (1985); Huffman v. Aetna Life and Cas. Co., 337 Pa.Super. 274, 486 A.2d 1330 (1984). A contract is “ambiguous” if “reasonably intelligent persons ... would differ regarding its meaning.” Musisko v. Equitable Life Ins. Co., supra 344 Pa.Super. at 106, 496 A.2d at 31. See also Hutchinson v. Sunbeam Coal Corp., supra; Metzger v. Clifford Realty Corp., 327 Pa.Super. 377, 476 A.2d 1 (1984). Thus, we will not allow an overly-subtle or technical interpretation to defeat the reasonable expectations of the insured. See Huffman v. Aetna Life and Cas. Co., supra. On the other hand, we will not convolute the plain meaning of a writing merely to find an ambiguity. See Techalloy Co. v. Reliance Ins. Co., 338 Pa.Super. 1, 487 A.2d 820 (1984).

The multi-peril policy at issue in the present case unquestionably excludes coverage of losses caused “directly or indirectly” by cold weather. The trial court focused entirely upon this “cold weather” exclusion in deciding to grant Centaur Insurance Company’s cross-motion for summary judgment. If we were to consider the exclusion in isolation, we would have to agree that Centaur clearly never intended to cover the losses caused by the frozen pipes. The court, however, overlooked the language upon which Ms. DiFabio bases her claim. That language strongly suggests that the multi-peril policy covers losses to the interior of the laundromat caused by water from pipes “damaged as a direct result of wind.” The cold weather exclusion and the damaged pipe provision thys appear to conflict under the circumstances of this case. Certainly both the wind and the cold weather contributed to the loss suffered by Ms. DiFabio.

Centaur nevertheless argues that the pipes inside Ms. DiFabio’s laundromat were not damaged as a direct result of wind. This argument assumes that the policy covers the risk of loss caused by water from interior sprinkler systems and pipes only if the damage to those interior systems and pipes results from their exposure to or contact with the violent force of high-velocity winds. We cannot agree with so narrow an interpretation of the phrase “direct result.” We must give reasonable and ordinary meaning to the words of an insurance contract, unless the parties clearly intended a technical, specialized or otherwise narrow usage. The drafter of the policy, who has better reason to know of uncertainties in the policy language and who can more easily rectify those uncertainties, must either “delineate as precisely as possible the full extent of coverage or bear the consequences for failing to do so.” Techalloy Co. v. Reliance Ins. Co., supra, 338 Pa.Superior Ct. at 7, 487 A.2d at 823. See also Collister v. Nationwide Ins. Co., 479 Pa. 579, 388 A.2d 1346 (1978); Restatement (Second) of Contracts § 206 comment a. In ordinary usage, the phrase “direct result” certainly suggests immediacy of consequence, in terms of both time and space. Webster’s defines the adjective “direct” as “stemming immediately from a source” and “characterized by close logical, causal or consequential relationship.” Webster’s Ninth New Collegiate Dictionary 358 (1986). A result, however, can follow closely or immediately from a cause even though the cause does not itself collide with the result and even though other causes contribute to the result. In Trexler Lumber Co. v. Allemannia Fire Ins. Co., 289 Pa. 13, 136 A. 856 (1927), for example, our supreme court interpreted a policy of insurance that provided coverage of windstorm loss only when “windstorm was the direct cause of the damages.” The policy covered the insured’s lumber sheds, which collapsed from the combined effect of high winds and accumulated snow. The court concluded that the wind was the “direct cause” of the loss even though snow accumulation, which was not a covered risk, had contributed to the collapse of the sheds. In so concluding, the court construed the phrase “direct cause” to mean “proximate cause.” Trexler Lumber Co. v. Allemannia Fire Ins. Co., supra, 289 Pa. at 18, 136 A.2d at 858. See also Marks v. Lumbermen’s Ins. Co., 160 Pa.Super. 66, 49 A.2d 855 (1946) (equating words “direct loss by windstorm” with “proximately caused by windstorm”); Anno., 65 ALR 3d 1128 (1975) (many courts have concluded that “the phrase ‘direct loss’ requires only that the windstorm be the proximate cause of the loss”). We need not decide in the present case whether use of such language as “direct loss” or “direct result” always requires a “proximate cause” analysis similar to that which we would use in an ordinary common-law tort action. We are satisfied that Centaur could not invoke the phrase “damaged as a direct result of wind” to limit its liability under the multi-peril policy to those rare cases in which the strength and velocity of the wind alone rends the water pipes inside the covered premises.

In the present case, the strength and velocity of the winds allowed cold air to enter an otherwise secure building. The cold air exclusion would appear to preclude coverage of any resulting loss to the interior of the building caused by the frozen pipes. The provision that addresses wind damage to interior water pipes, on the other hand, would appear to cover these losses. The circumstances of this case thus expose a latent ambiguity in the terms of the windstorm coverage. The parties, moreover, have neither pleaded facts nor offered extrinsic evidence that would aid the court in resolving the ambiguity. We must therefore resolve the problem by construing the contract against the drafter and in favor of coverage for Ms. DiFabio.

For the above reasons, we reverse the order of the Philadelphia County Court of Common Pleas. Moreover, because the decision on the issue of liability in this case requires nothing more than application of law to undisputed fact, we remand for the entry of partial summary judgment in favor of Ms. DiFabio. The issue of damages, of course, remains unlitigated and undecided.

Order reversed; case remanded. Jurisdiction relinquished.

      . The windstorm clause of the contract provided in full as follows: "This policy insures against all direct loss to the property covered under this form caused by:
      C. WINDSTORM OR HAIL, excluding loss caused directly or indirectly by frost or cold weather, or ice (other than hail), snow or sleet, whether driven by wind or not.
      1. This Company shall not be liable for loss to the interior of the building(s) or the property covered therein caused:
      (a) by rain, snow, sand or dust, whether driven by wind or not, unless the building(s) covered or containing the property covered shall first sustain an actual damage to roof or walls by the direct action of wind or hail and then shall be liable for loss to the interior of the building(s) or the property covered therein as may be caused by rain, snow, sand or dust entering the building(s) through openings in the roof or walls made by direct action of wind or hail; or (b) by water from sprinkler equipment or from other piping, unless such equipment or piping be damaged as a direct result of wind or hail.” (R-18a).
      Cross-Motion for Summary Judgment, exhibit "A" at 2.


author: KELLY, Judge: POPOVICH, Judge,

text:
    531 A. 2d 1144
    COMMONWEALTH of Pennsylvania, v. Darryl DARDEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 13, 1987.
    Filed Oct. 6, 1987.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before KELLY, POPOVICH and WATKINS, JJ.
   KELLY, Judge:

Appellant, Darryl Darden, petitions for allowance of appeal from the discretionary aspects of sentence. We grant allowance of appeal and affirm judgment of sentence.

On Tuesday, February 25, 1986, appellant and four other young men surrounded and robbed seventy-year-old Minnie Darling, as she was attempting to enter a restaurant in downtown Philadelphia. During the course of the robbery, the victim was thrown through the door of the restaurant and onto the pavement. Appellant and his companions were apprehended as they attempted to flee with the wallet taken from the victim’s purse.

On August 5, 1986, appellant entered an open plea of no contest (nolo contendré) to charges of robbery and conspiracy after a comprehensive colloquy during which it was correctly explained that a plea of no contest {nolo contendré) “has the same effect as a guilty plea if the Judge accepts it.” (N.T. 8/5/86 at 7); see Commonwealth v. Hayes, 245 Pa.Super. 521, 523, 369 A.2d 750, 751 (1976). On October 14, 1986, appellant was sentenced to a term of imprisonment of three and one-half to seven years imprisonment on the robbery conviction and a consecutive seven year term of probation on the conspiracy conviction. No motion to withdraw the plea was filed. A motion to vacate and/or modify sentence was filed and denied. Timely notice of appeal was filed on October 30, 1986. The case is now properly before this Court for disposition. We grant allowance of appeal and affirm.

I.

Appellant’s sole contention on appeal is that the sentence imposed on the robbery conviction was an unreasonably harsh deviation from the sentencing guidelines as the minimum sentence imposed was more than twice the highest recommended minimum sentence in the aggravated range of the applicable guidelines. (Appellant’s Brief at 2, 5-6). This is a challenge of the discretionary aspects of sentence.

Under Pennsylvania law, neither the defendant nor the Commonwealth may take an appeal as of right from the discretionary aspects of sentence. Rather, “[t]he defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code].” 42 Pa.C.S.A. § 9781(b). Our Supreme Court indicated in Commonwealth v. Tuladziecki, 513. Pa. 508, 522 A.2d 17 (1987), that three distinct steps must be taken to properly raise a challenge to the discretionary aspects of sentence: there must be a timely notice of appeal {see Pa.R.A.P. 902 & Note; Pa.R.A.P. 903); the challenge must be set forth in the statement of questions presented (see Pa.R.A.P. 2116(b)); and, the appéllant must include in the brief, immediately preceding argument in support of the challenge, a separate, concise statement of the reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(c) (see Pa.R. A.P. 2119(f)). 522 A.2d at 18-19.

In the instant case, timely notice of appeal was filed and appellant’s challenge to the discretionary aspects of sentence was set forth in the statement of questions involved. (See Appellant’s Brief at 2). Appellant’s brief does not contain a separate, concise statement pursuant to Pa.R. A.P. 2119(f) separately delineated by a heading such as “Substantial Question” or “Statement of Reasons for Allowance of Appeal.” Nonetheless, though the “Summary of Argument” in appellant’s brief does not comply with the letter of Pa.R.A.P. 2119(f), we find that it offers substantial (therefore, sufficient) compliance with the rule to permit limited review as to whether a “substantial question” is raised. Cf Commonwealth v. Muller, 364 Pa.Super. 346, 350 & n. 2, 528 A.2d 191, 193 & n. 2 (1987).

Appellant’s “Summary of Argument” alleges that:

Appellant was convicted of robbery as a third degree felony. If the lower court had noted the presence of specific additional aggravating factors, a sentence in the aggravated range might have been permissible. However, the lower court not only failed to place any such findings on the record (other than appellant’s criminal history, which was already accounted for in the prior record score) but it also proceeded to sentence appellant to the statutory maximum amount of imprisonment (3lh to 7 years incarceration). The sentence was more than double the highest sentence recommended by the aggravated sentencing guideline range (12 to 18 months imprisonment). This departure from the sentencing guideline range to such a substantial degree renders the sentence unreasonable, and therefore requires a remand for resentencing.

(Appellant’s Brief at 5). (Emphasis supplied). Succinctly, appellant contends that he was sentenced outside the guidelines and that the sentence imposed is unreasonable because: no sufficient aggravating factors were noted; appellant’s prior criminal history was considered as an aggravating circumstance even though it was already accounted for in the prior record score; and, the deviation was so substantial to render the sentence unreasonable.

In Commonwealth v. Tuladziecki, supra, our Supreme Court made it clear that our determination as to whether a substantial question was presented was to be made separate and distinct from any review of the merits of the petition. 522 A.2d at 19-20. Consequently, we must accept appellant’s assertions of fact as a true and complete statement of the relevant facts for the limited purpose of determining whether appellant has raised the appearance of a substantial question. With this in mind, we find that appellant has raised the appearance of a substantial question that the sentence imposed was outside the guidelines and unreasonable. See 42 Pa.C.S.A. § 9781(c)(3).

We note, however, that the allegation of facts which, if accepted as a true and complete statement of the pertinent facts would establish grounds for vacating the sentence under 42 Pa.C.S.A. § 9781(c), does not entitle the appellant to the grant of allowance of appeal. The statute provides:

Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

42 Pa.C.S.A. § 9781(b). (Emphasis added). Thus, while the appearance of a. substantial question under 42 Pa.C.S.A. § 9781(b) determines whether allowance of appeal may be granted, the sound discretion of this Court shall determine whether it will be granted.

In exercising this discretion we may, of course, look to the trial court opinion and/or the record. When the allegations set forth in the separate, concise statement of reasons for allowance of appeal are unsupported or contain material omissions apparent from the face of the record, this Court may deny allowance of appeal despite the appearance of a substantial question based upon appellant’s unfounded or misleading allegations. Although there are factual omissions and. variances apparent from the face of the record in the instant case, we nonetheless exercise our discretion to grant allowance of appeal in order to address the significant legal issues presented.

II.

Appellant contends that the sentence imposed was an unreasonable deviation from the guidelines. He argues that: insufficient grounds were stated for the deviation; that his criminal history has been given undue weight; and that the deviation was so substantial as to be unreasonable. We cannot agree. We address each argument seriatim.

A.

Appellant argues that the statement of reasons for sentencing outside the guidelines is inadequate. The court made the following statements of reasons for the sentence imposed after argument of counsel and prior to imposition of sentence:

THE COURT: I have reviewed the presentence report and the mental health evaluation concerning the defendant and taken into consideration the statements made by counsel for the Commonwealth as well as counsel for the defense.
A careful review of the defendant’s presentence report indicates that as a juvenile he had 15 arrests and eight adjudications, along with four commitments. As an adult he already has 12 arrests, five convictions and three commitments, and violated his probation a number of times. For that reason the Court will go beyond the recommended Guideline sentence.

(N.T. 10/14/86 at 5-6). Though brief, we find this statement adequate to fulfill the requirements of Common wealth v. Riggins, 474 Pa. 507, 378 A.2d 1229 (1977) and 42 Pa.C.S.A. § 9721(b). Cf. Commonwealth v. Osborn, 364 Pa.Super. 505, 528 A.2d 623 (1987). The trial court filed an opinion which explained:-

The defendant argued in his motion for reconsideration of sentence that the aggravated guideline range for the offense was a minimum term of imprisonment of 12 to 18 months and that this Court abused its discretion in exceeding those guidelines.
This Court concluded that the background and characteristics of this defendant justified' the departure form [sic] the sentencing guidelines.
The defendant’s prior record score of ‘3’ does not reflect the true extent of the defendant’s criminality and need for appropriate punishment. .The defendant is only 21 years of age, yet has [sic] has accumulated a record of fifteen arrests and eight adjudications as a juvenile. As an adult, in less than a three year period, he has been arrested twelve times and has had five convictions. The present case involved the robbery of a 70 year old woman who was thrown to the pavement by the defendant and four others. The defendant has consistently relied upon his criminal activities as his means of support and to support a daily drug habit. The presentence report accurately describes the defendant as being, since the age of thirteen, ‘a one man crime spree based on his record of twenty seven arrests and thirteen convictions’ and that his numerous commitments have not deterred him from a life of crime ... despite ... opportunities for rehabilitation ... ’. The report also notes that the defendant has refused to take any action to improve his education, vocational or employment skills, but has instead chosen a life of crime.
For these reasons the sentence imposed was necessary and appropriate.

Trial Court Opinion at 1-2. This amplification of the trial court’s reasons for the deviation should dispel any doubts as to the adequacy of the statements of the reasons for deviating from the guidelines. It is a clear and concise statement of each of the relevant factors in the instant case.

B.

Appellant argues that it was improper to cite his criminal history as an aggravating factor as it was already accounted for in his prior record score. It is true that a sentencing court should not sentence in the mitigated minimum range, the aggravated minimum range, or outside the applicable guideline ranges based solely upon criterion already incorporated into the guidelines. See Commonwealth v. Stevens, 349 Pa.Super. 310, 314, 503 A.2d 14, 16 (1986). However, it is readily apparent that a prior record score of three did not begin to account for appellant’s staggering record of criminal activity.

None of appellant’s prior adult misdemeanors, juvenile felony adjudications, parole and probation violations, or unexpunged arrests were incorporated in the computation of the prior record score. Nevertheless, “[pjrior connections of whatever nature, with law enforcement authorities are unquestionably among the circumstances to be scrutinized” in determining the appropriate sentence. See Commonwealth v. Lupatsky, 341 Pa.Super. 338, 341-42, 491 A.2d 845, 847 (1985); see also Commonwealth v. Scheinert, 359 Pa.Super. 423, 431-32, 519 A.2d 422, 427 (1986) (Kelly, J., concurring; Cavanaugh, J., joins) (prior ARD acceptances, arrests, and even arrests followed by acquittals may properly be considered at subsequent sentencing hearings as aggravating factors). When relevant sentencing factors have not been incorporated into the computation of the standard minimum range, it necessarily follows that such factors may be considered as factors to justify a sentence in the mitigated minimum range, the aggravated minimum range, or outside the guideline ranges. See Common wealth v. Lupatsky, supra, 341 Pa.Superior Ct. at 342, 491 A.2d at 847; Commonwealth v. Washington, 357 Pa.Super. 548, 567-68, 516 A.2d 397, 407 (1986) (Kelly, J., dissenting). Collectively, appellant’s unincorporated record of criminal conduct constitutes a significant aggravating factor.

By the same reasoning, it follows that facts regarding the nature and circumstances of an offense, which are not necessary elements of the offense for which appellant has been convicted, are also proper, factors to be considered in deciding whether to sentence in the mitigated minimum range, the aggravated minimum range, or outside the guidelines. In the instant case, the age of the victim is not an element of the crime of robbery; consequently, the fact that appellant and his accomplices chose to victimize a defenseless seventy-year-old female was • properly considered as a substantial aggravating factor. Certain crimes against children of tender years or senior citizens have been designated for special mandatory sentencing; most if not all other crimes against children of tender years or senior citizens should be considered as offenses accompanied by a substantial aggravating factor. Cf. 42 Pa.C.S.A. §§ 9717, 9718. The court properly did so in the instant case.

C.

Finally, appellant contends that the sentence is unreasonable because it is a substantial deviation from the applicable guidelines. Appellant relies heavily upon this Court’s dictum that “only in exceptional cases and for sufficient reasons may a court deviate from the guidelines.” Commonwealth v. Fluellan, 345 Pa.Super. 167, 171, 497 A.2d 1357, 1359 (1985), quoting Commonwealth v. Hutchinson, 343 Pa.Super. 596, 598, 495 A.2d 956, 958 (1985). (Emphasis supplied). The efficacy of reliance on the dictum was substantially eroded if not destroyed, sub silentio, by our Supreme Court’s decision in Commonwealth v. Tuladziecki, supra.

In Commonwealth v. Tuladziecki, supra, our Supreme Court reviewed at length the broad discretion vested in the sentencing court regarding the application of “general principles” espoused in the Sentencing Code, and the final selection of the sanction options. 513 Pa. at 514 & n. 1, 522 A.2d at 20 & n. 1. Our Supreme Court then concluded:

It is apparent that the legislature has vested broad discretion in the trial court to impose a sentence appropriate to each case which comes before it. It is also apparent that the legislature has provided a thorough, though not exhaustive, outline of considerations to focus the court’s deliberations in choosing an appropriate sentence. It is only where a party can articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.

Commonwealth v. Tuladziecki, supra, 513 Pa. at 515, 522 A.2d at 20. (Emphasis added). Thus, while the sentencing court is required to “consider” the applicable guidelines, and while the reasons for any deviation from the applicable standard range of the guidelines must be explained in writing, the determination of whether the sentence is “not appropriate,” “clearly unreasonable,” or “unreasonable” must be made with reference to the Sentencing Code as a whole, not solely with reference to the provisions of the sentencing guidelines. Commonwealth v. Tuladziecki, supra, 513 Pa. at 514, 522 A.2d at 20; see also 42 Pa.C.S.A. §§ 9781(b) and (c).

III.

As indicated above, appellant’s extensive unincorporated criminal history and appellant’s victimization of a defenseless seventy-year-old woman were substantial aggravating factors. We note that if the unincorporated criminal record were included in the prior record score pursuant to the provisions now applicable, appellant would have a prior record score of six, an offense gravity score of five, and appellant’s minimum sentence of three and one-half years (42 months) would fall within the applicable aggravated minimum range (36-45 months). While these guidelines do not apply to the instant case, they clearly demonstrate the reasonableness of the trial court’s attempt to give proper weight to significant factors which were not incorporated in the guideline ranges applicable at the time of sentencing in this case. Thus, we find no abuse of discretion by the trial court.

CONCLUSION

Based upon the foregoing, judgment of sentence is affirmed. We agree with the Commonwealth and the trial court, it is high time this youthful career criminal serves a substantial sentence of incarceration.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

Consistent with the position espoused by this writer in Commonwealth v. Hawthorne, 364 Pa.Super. 125, 527 A.2d 559 (1987), and joined in by Montemuro and Watkins, JJ., I cannot endorse the Majority’s receptive embrace of the appellant’s appeal regarding his challenge of the discretionary aspects of his sentence. Accord Commonwealth v. Bogden, 364 Pa.Super. 300, 528 A.2d 168 (1987).

This Court pointed out that the appellant in Hawthorne, as had been the case in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), had divided the appellate brief into the following sections: 1) Statement of Jurisdiction; 2) Statement of Questions Involved; 3) Statement of the Case; 4) Summary of the Argument; and 5) Argument.

Nonetheless, the appellants’ failure in both Hawthorne and Tuladziecki to set down in a separate section (“somewhere”) in the brief a concise statement of reasons why their appeals should be granted was fatal, and this flaw could not be remedied by reference to the “argument on the merits” section without running afoul of the Rules of Appellate Procedure and 42 Pa.C.S. § 9781(b).

Instantly, the Majority is doing exactly what Tuladziecki ruled against, i.e., filling the absence of a separate section somewhere in an appellant’s brief reciting a “concise statement of reasons”/“substantial question” assailing the discretionary aspects of one’s sentence by looking to the “argument on the merits” section to fill the void, or, as is the case at bar, at the “summary of argument” section. I see no distinction whether resort is had to the latter instead of the former. I read Tuladziecki to condemn both.

Reference to either the “argument on the merits” or “summary of argument” in determining the presence of a “substantial question” that the sentence imposed is not appropriate under the Sentencing Code cannot be utilized to circumvent the clear language of the Tuladziecki calling for “precise” compliance with the applicable rules of procedure. 513 Pa. at 508, 522 A.2d at 17. As much was stated by this Court in Hawthorne; to-wit:

The Majority in Tuladziecki would appear to require the party (be it the Commonwealth or a defendant) appealing the discretionary aspects of a sentence to set forth “at some point” in his brief (preferably, immediately preceding the argument on the merits) reasons (“statement”) why an appeal should be granted. This is consistent with the treatment by the Rules of Appellate Procedure of one’s Notice of Appeal as a “petition for allowance of appeal” under the Sentencing Code (see Note to Pa.R.App.P. 902 and 42 Pa.C.S. § 9781(b)), which, in effect, defers the formal submission of a petition for allowance of appeal until the briefing stage. Tuladziecki, supra.
Once at the briefing stage, given Tuladziecki’s view that a “Notice” is the equivalent of a “petition”, we deem it advisable to look to Pa.R.App.P. 1115 for some direction as to the form and content one’s brief should take in perfecting an appeal from the discretionary aspects of a sentence. For example, Pa.R.App.P. 1115 requires that the petitioner list various items of information, one of which is a “concise statement of the reasons relied upon for allowance of an appeal.” Rule 1115(a)(5). The order in which it is to be included in the petition (which, instantly, would be one’s brief) is recommended, insofar as practicable, to be in the sequence which appears in the Rule. This has been interpreted by the Supreme Court as requiring the presentment and examination of such a statement of reasons “at some point” in this procedural maze, but always “prior to examination of and ruling on the merits of the issue of the appropriateness of the sentence[.]” 513 Pa. at 512, 522 A.2d at 19.
There can be no substitution for this “concise statement of reasons” by referring to the argument section of one’s brief, as appears to have occurred by the Superior Court panel in Tuladziecki and made mention of by Justice Larsen in footnote 2 of his dissent. To do so, according to the Majority in Tuladziecki, would be to permit an appellate court “to rely on its assessment of the argument on the merits of the issue to justify post hoc a determination that a substantial question exists.” 513 Pa. at 513, 522 A.2d at 19. Thus, an assessment of the merits of the issue(s) must be preceded by a demonstration by the appellant that a “substantial question” exists in the case on appeal.

364 Pa.Super. at 134, 527 A.2d at 563.

The Majority has appeared to act contrary to the teachings of Tuladziecki by utilizing the “summary of argument” section of the appellant’s brief to extrapolate a compliance with § 9781(b)’s substantial question requirement.

■ I read Tuladziecki to require the setting forth “somewhere” in one’s appellate brief a “concise statement of reasons”, sufficient to satisfy § 9781(b), questioning the discretionary aspects of the sentence issued, but certainly not under the guise of the “summary of argument” section can one say that this condition precedent has been satisfied in the wake of Tuladziecki.

There being no compliance with our Supreme Court’s pronouncement detailing the rigors of appellate briefing, which must be met with precision in the area of assaulting the discretionary aspects of one’s sentence, I would quash the appeal. See Hawthorne, supra. Because the Majority deems it proper to hold to the contrary, I must respectfully dissent.

      . Prior misdemeanor convictions and certain juvenile adjudications are now included in the computation of the prior record score, but were not at the time of sentencing in the instant case. 204 Pa.Code §§ 303.7(a) and (b) (effective June 5, 1986).

      . See 204 Pa.Code § 303.7(b) (effective June 5, 1986).


author: ROWLEY, Judge:

text:
    531 A.2d 1152
    LOOMIS LAKE ASSOCIATION By Hamilton S. HUGHES, Trustee ad Litem v. Floyd C. SMITH, Jr., and Reva Smith, his wife, Appellants (Two Cases).
    Superior Court of Pennsylvania.
    Argued April 10, 1987.
    Filed Oct. 7, 1987.

      Peter G. Loftus, Scranton, for appellants.
    Laurence M. Kelly, District Attorney, Montrose, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and WIEAND, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

These are consolidated appeals from an order entered in a trespass action and a summary judgment entered in an ejectment action, both of which involve the same parties and the same parcel of land. Appellants, Floyd C. and Reva Smith (Smiths), were defendants in an action in trespass brought by plaintiff-appellee, Loomis Lake Association (Association), on July 9, 1976. The Association alleged that the Smiths wrongfully trespassed on property owned by the Association and caused damage thereon by removing trees and erecting a fence. The case went to trial and on September 14, 1977, the jury found for the Association awarding it nominal damages of $2.00. The Smiths filed a timely motion for a new trial. On September 28, 1979, the trial court filed an order denying the Smiths’ motion for new trial because they had failed to pursue it. Judgment on the verdict was entered by the Association on December 17, 1984. No appeal was ever taken from this judgment.

After the trial court’s denial of the Smiths’ motion for a new trial, but prior to the entry of judgment in the trespass action, the Association, in 1980, instituted an action in ejectment to oust the Smiths from the property at issue in the trespass action. The Smiths counterclaimed raising a claim of adverse possession. The Association moved for summary judgment on the issue of adverse possession based on the doctrine of res judicata.

On January 2, 1985, in an attempt to invalidate the claim of res judicata in the ejectment action, the Smiths filed a motion to open or, in the alternative, to strike the judgment entered in the trespass action erroneously alleging that the trial court had not ruled on their post-trial motion. The Smiths also claimed that they were prejudiced by the Association’s late filing of the praecipe for judgment in the trespass action. On August 8, 1985, the court, after argument on the petition to open or strike, entered the following order:

AND NOW TO WIT, this 8th day of August, 1985, the Motion for New Trial in this matter, having been filed on the 16th of September 1977, being without merit, the same are [sic] hereby dismissed and the court affirms the judgment heretofore entered by the Prothonotary on the Praecipe of the plaintiff.

On August 13, 1985 the court entered the following order in the trespass action:

NOW TO WIT, this 13th day of August, 1985, this matter has lain dormant since the verdict of the jury of the 14th of September, 1977. That verdict was in favor of the plaintiff, Loomis Lake Association. Motions were filed for a new trial and never presented to the court. Such motions were usualboilerplate, (sic), raising no issues relative to the verdict of the jury. The Motions for a New Trial is (sic), therefore, dismissed nunc pro tunc. The motion to Open or in the Alternative to Strike Judgment, filed by the defendant on the 17th of Seprember, (sic) 1984, is therefore, dismissed.

The Smiths, on September 5, 1985, appealed from the August 8, 1985 order entered in the trespass action. That appeal is filed at No. 2410 Philadelphia, 1985.

On August 13, 1985, the trial court also entered summary judgment in the ejectment action in favor of the Association after concluding that all of the issues necessary to determine the title and interest of the Association to the land in question were resolved in the trespass action. The Smiths’ second appeal, at No. 2529 Philadelphia, 1985, is from this judgment. The appeals have been consolidated for disposition.

I. Appeal at No. 02410 Philadelphia, 1985 (Trespass)

Judgment was entered in the trespass action on December 17, 1984. Although appellants’ petition to open or strike the judgment was filed on January 1, 1985, within the 30-day appeal period permitted by Pa.R.A.P. 903, no appeal was ever taken from the judgment. Therefore, at the end of the 30-day appeal period, the judgment became final. Simpson v. Allstate Insurance Co., 350 Pa.Super. 239, 504 A.2d 335 (1986). Although the order of August 8, 1985, from which appellants appeal, purports to dismiss the Motion for New Trial which was filed on September 16, 1977 and to affirm the judgment of December 17, 1984, the court had already dismissed the Motion for New Trial on September 28, 1979, and the judgment had become final and no longer appealable on January 16, 1985. Therefore, the order of August 8, 1985, was an unnecessary order which had no effect. Because the order affected no rights of any party and because it put no party out of court who was not already out of court, the order was not final and appealable. See: Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978).

However, it appears that what the trial court intended to do by the August 8, 1985 order was to deny the petition to open or strike the judgment. The order was entered following argument on the petition to open or strike the judgment which was the only matter before the court in the trespass action at that time. Within five days, on August 13, 1985, the court entered another order yet again purporting to dismiss the post-trial motion, as had the August 8, 1985 order, and specifically dismissing the petition to open or strike the judgment. Because the petition to open or strike the judgment was the only matter before the court on August 8, 1985, and because the order which was filed only five days after the August 8, 1985 order, when nothing more was pending before the court, was nearly identical to the August 8, 1985 order except that it specifically disposed of the petition which had been pending immediately before the August 8, 1985 order, it is apparent that the trial court had intended to dismiss the petition to open or strike in the August 8, 1985 order.

The Smiths’ Notice of Appeal does not say that the appeal is from the August 13, 1985 order dismissing the petition to open or strike the judgment, but only states that the appeal is from the August 8, 1985 order. However, as we have already noted, the August 8, 1985 order in fact accomplished nothing which had not already been done by a previous order, and therefore was not final and appealable. We therefore quash the appeal at No. 02410 Philadelphia, 1985. However, even if we were to consider the August 8, 1985 order as, in effect, denying the petition to open or strike, we would affirm the order.

When a judgment is entered by the trial court in a contested civil action and becomes final, such as in the trespass action in this case, it cannot ordinarily be modified, rescinded, or vacated by the trial court. Simpson v. All state, 350 Pa.Super. 239, 504 A.2d 335 (1986); Hunter v. Employers Insurance of Wausau, 347 Pa.Super. 227, 500 A.2d 490 (1985). The trial court’s discretionary power over a judgment entered in a contested action is extremely limited. Such a judgment can be opened only if there has been fraud or circumstances so grave and compelling as to constitute “extraordinary cause.” Klugman v. Gimbel Brothers, Inc., 198 Pa.Super. 268, 182 A.2d 223 (1962). Our review of the record in this case shows that the trial court did not err when it denied the petition to open or strike.

The Smiths have alleged neither fraud nor extraordinary circumstances which might justify opening or striking the judgment which had become final. The Smiths’ sole argument is that the delay between the jury verdict and the praecipe for judgment, a period of more than seven years, was too long to allow a valid judgment to be entered. The Smiths have cited no authority which imposes any time limitation on when a verdict must be reduced to judgment, and our research similarly has revealed none. Although the Smiths discuss the requirement that a judgment lien on real property must be revived every five years (42 Pa.C.S. § 5526) and that an action on a judgment must be brought within six years (42 Pa.C.S. § 5527), these statutes are irrelevant here. Both statutes apply only after there is a judgment. The jury verdict, in this case, is not the same as a judgment. A verdict is the jury’s findings of fact; a judgment, however, is the court’s determination of the case upon the jury’s verdict. 46 Am.Jur.2d Judgments § 4. Therefore the time limitations in these statutes have no application here.

Equally without merit is the Smiths’ contention that they have been severely prejudiced by the entry of the judgment because several witnesses have died. . The Smiths could have praeciped for judgment and taken an appeal any time after the verdict was rendered and the trial court denied their post-trial motions in September, 1979. However, the Smiths never praecipied for judgment, and even after judgment was entered on praecipe of the Association, the Smiths failed to pursue an appeal raising any substantive argument that the jury’s verdict was improper. Because the Smiths’ argument is without merit and they have shown neither fraud nor extraordinary circumstances warranting the opening or striking of the judgment, we conclude that even if we were to consider the appeal as being from an order denying the petition to open or strike, the trial court did not err in denying the Smiths’ petition.

II. Appeal at No. 02529 Philadelphia, 1985

The trial court granted summary judgment in the ejectment action on August 13, 1985 on the basis that the issue of ownership of the land was res judicata by virtue of the judgment in the trespass action. The Smiths have appealed therefrom and raise eight issues. We find no merit to any of the issues and affirm the judgment.

Our scope of review of an appeal from summary judgment is clear.

A motion for summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). See also Rybas v. Wapner, 311 Pa.Super., 50, [54], 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 172, 452 A.2d 269, 270 (1982). In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, [83], 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, [124], 469 A.2d 212, 213 (1983); Wilk v. Haus, 313 Pa.Super. 479, [482], 460 A.2d 288, 289-290 (1983). It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, supra at [482], 460 A.2d at 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 378, 380 A.2d 826, 829 (1971).

Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930-931 (1984). Accord Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 203-204, 412 A.2d 466, 468-469 (1979); Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 231, 464 A.2d 1313, 1316 (1983); Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109-110 (1983).

However, parties seeking to avoid the entry of summary judgment against them may not rest upon the averments contained in their pleadings. On the contrary, they are required to show, by depositions, the answers to interrogatories, admissions or affidavits, that there is a genuine issue for trial. Pa.R.C.P. 1035(d). The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings. Pfaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973); Younginger v. Heckler, 269 Pa.Super. 445, 410 A.2d 340 (1979).

Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 289, 515 A.2d 980, 981 (1986).

The Smiths’ first argument is that for the doctrine of res judicata to apply, the issue to which it applies must have been actually litigated. The Smiths contend that in the prior action, title to the real estate was not established. After thoroughly reviewing the transcript of the trespass trial and the charge to the jury in that case, we find that the issue of whether the Smiths or the Association owned the land in question was actually litigated and necessarily decided by the jury. The jury was charged that before it could find that the Smiths had trespassed, it first had to determine that the land involved was owned by the Association. Because the jury found that the Smiths had trespassed, the jury necessarily also found that the land was owned by the Association. Therefore, we find no merit to this argument.

Next, the Smiths argue that the jury in the trespass action did not determine ownership of the land by returning a verdict against the Smiths because the jury had questioned the court as to whether the Smiths would lose any of their land if they returned a verdict against them and the jury was told that the Smiths would not.. Although there is nothing in the record in the trespass action to show that the jurors submitted such a question to the trial judge or what his answer was, the Smiths support their argument by affidavits from several jurors .'in the trespass action. The affidavits state that based on “further instruction from the judge that the farmer would not lose his land due to the decision that was made” the jurors returned a verdict against the Smiths. (Emphasis added.) As-stated by the affidavits and by the Smiths, however, the question of the jurors was whether the Smiths’ own land would be taken from them. However the issue in the trespass action was whether or not the Smiths were trespassing on the Association’s land. If the jury returned a verdict against the Smiths, the only land that would be taken from the Smiths would be the Association’s land and not the Smiths’ land. We conclude that even though the jurors understood that the Smiths’ own land would not be taken from them if the verdict was returned against them, nothing in the record shows that the jury did not understand that by returning a verdict against the Smiths, land of the Association would be taken from the Smiths. Consequently, the affidavits of the jurors do not affect our conclusion that the issue of ownership of the land was litigated and decided in the trespass action.

The Smiths also argue that the transcript in the trespass action was not completely transcribed to include the jurors’ question and the court’s answer thereto, and therefore the record on appeal is incomplete. Even if the substantive issue concerning the jurors’ question had merit, we would still find the issue of the incomplete transcript to be frivolous. It is the responsibility of the appellants to ensure that the record on appeal is adequate. Commonwealth v. Williams, 357 Pa.Super. 462, 516 A.2d 352 (1986). Therefore, the Smiths cannot raise the issue of the record’s inadequacy as a basis for reversing the judgment when it is their obligation to provide us with a complete record.

Next the Smiths argue that judgment in the trespass action has never been finalized because an appeal from the prior trespass' judgment is presently before the Court. As discussed in our disposition of the appeal at No. 02410 Philadelphia, 1985, no timely appeal was taken from the judgment in the trespass action, and therefore the judgment became final on January 16, 1985. We find no merit to this issue.

The Smiths also argue that the Association should have raised the issue of collateral estoppel. The Smiths’ argument was not raised in the trial court and therefore is waived. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

The Smiths next argue that there was a disputed issue of fact that prevents entry of summary judgment, namely, ownership of the entire tract of land. The Smiths assert that the claim of res judicata upon which the motion for summary judgment was based related solely to the counterclaim. The Smiths do not state why this is a significant fact. The counterclaim does not describe the property it relates to other than by saying “the land in question.” We therefore assume that the counterclaim refers to the identical property claimed in the complaint. Because the ownership of the property in the counterclaim is res judicata, the issue of ownership of the entire tract in question is res judicata, and there was no factual dispute precluding the entry of a summary judgment. In claiming that there was a disputed issue of fact, the Smiths also rely on their denial, in their answer, of the averments of the complaint. However, the Smiths failed to present any deposition, answers to interrogatories, affidavits or admissions to show that there was an issue of fact to be determined, and they cannot rely on a controverted fact in the pleadings to avoid the entry of summary judgment. Washington Federal Savings and Loan v. Stein, 357 Pa.Super. 286, 515 A.2d 980 (1986). Therefore, the issue is without merit.

The Smiths argue that summary judgment in ejectment cannot be entered against them because a trespass action cannot be prosecuted to judgment until the question of title in an ejectment action has been finally settled. However, this appeal is from the summary judgment in the ejectment action and not from the judgment in the trespass action. The issue of whether the trespass action could be prosecuted to final judgment before the ejectment action was concluded could only have been raised in an appeal from the judgment in the trespass action before the judgment in the trespass action became final. The Smiths chose not to appeal from the judgment in that action. Therefore, they have waived the issue, Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), and cannot now raise it in the ejectment action.

The Smiths’ final issue is that the trial court erred in denying their preliminary objection to the amended complaint because the defect of lack of capacity to sue, which was the basis of the court’s sustaining of their preliminary objection to the complaint, was not cured in the amended complaint. Although the Smiths’ brief is utterly devoid of any discussion of this issue and fails to elucidate why they believe that the Association lacked capacity to sue, by examining the briefs filed in the trial court along with the preliminary objections, it appears that the basis of the Smiths’ argument is that the Association failed to register its name in compliance with the Fictitious Name Act, Act of 1945, May 24, P.L. 967, § 1, 54 P.S. § 28.1, in effect when the complaint was filed, and therefore is precluded from bringing any action pursuant to § 4 of the Act (54 P.S. § 28.4). However, the Fictitious Name Act applies only to individuals who “carry on” or “conduct” business, and it specifically exempts from the term “business” any non-profit or professional activities.

In the new Fictitious Names Act, 54 Pa.C.S. § 301 et seq., which became effective after the complaint and amended complaint were filed in this case, unincorporated associations, one of which the Association claims to be, are specifically exempted from the mandatory requirement of registering the fictitious name. 54 Pa.C.S. § 303(b)(2)(iv). Although unincorporated associations were not specifically exempt or non-exempt prior to the effective date of 54 Pa.C.S. § 303, the Official Source Note to the new Act states that the “applicability of the filing requirements to ... unincorporated associations are clarified” by the new Act. Therefore, although it may have been unclear prior to the new Act whether unincorporated associations were exempt from the filing requirement, the legislature amended the statute so that it was clear that the legislature intended unincorporated associations to be exempt. We are aware of no appellate decisions in Pennsylvania, and appellants have cited none, which hold that under the former Fictitious Name Act, unincorporated associations were required to register their names. Considering that the new Act clarifies what may have been ambiguous in the old Act, that the legislature intended that unincorporated associations not be required to register their names, we find no error in the trial court’s refusal to sustain appellants’ preliminary objection on the basis that appellee had failed to register its fictitious name.

The appeal at No. 02410 Philadelphia, 1985 is quashed; the judgment appealed at No. 02529 Philadelphia, 1985 is affirmed.

WIEAND, J., concurs in the result.


author: HESTER, Judge:

text:
    532 A.2d 22
    COMMONWEALTH of Pennsylvania v. Aurelio RAMOS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 3, 1987.
    Filed Oct. 6, 1987.

      Janis Smarro, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and HOFFMAN and HESTER, JJ.
   HESTER, Judge:

On October 18, 1986, appellant, Aurelio Ramos, was convicted by a jury of third degree murder and possession of an instrument of crime. Following denial of his motion for a new trial, he was sentenced, on February 2, 1987, to twelve and one-half to twenty-five years in prison, and he filed a timely appeal. As we conclude that his allegations of trial error are meritless, we affirm the judgment of sentence.

The evidence establishes that the murder victim, Frank Morales, was a drug dealer in the vicinity of Eighth and Butler Streets in Philadelphia, Pennsylvania, the area upon which trial testimony centered. On June 27, 1985, at 5:30 in the evening, appellant approached Morales and shot at him four times with a revolver; three shots hit the victim.

Two eyewitnesses to the incident, George Garcia and Marcie Streger, identified appellant as the murderer. Garcia, a neighbor, was conversing with Morales when both men saw appellant approach. Morales pulled Garcia in front of himself, and they went down together as the shooting occurred. Garcia was not harmed.

Streger, who knew appellant prior to the incident, witnessed the shooting from across the street. She observed appellant with three male companions walking along the street, when two of the men broke off and stood on a corner. Appellant and the older male continued down the street, passing directly in front of her. Streger watched appellant cross the street toward Morales, pull a gun from his trousers, and shoot Morales, once while Morales was standing next to Garcia and three times while Morales lay on the ground. When the police arrived, Streger told them that appellant, whom she knew by the nickname “June Bug,” was the assailant. Later, she identified appellant’s picture from a photographic array. Streger was positive in her identification of appellant as the murderer. N.T., 10/15/86, at 2.183-84.

At trial, the Commonwealth sought to establish that appellant was guilty of first degree murder for shooting Morales, an independent drug dealer, on the instructions of Hawk Pagan, a rival drug dealer in the Eighth and Butler Street area. The trial court permitted testimony on this subject by three witnesses. The witnesses were Adelita Gines, the victim’s sister; Broderick Bass, a friend of the victim; and Philadelphia police officer William Bailey, who conducted narcotics investigations in the area during early 1985.

Gines testified that her brother sold drugs and that in September, 1984, she saw a physical confrontation between appellant and her brother. Pagan was present during the confrontation as were two other men. Pagan and accomplices shot at Morales, and Morales had a fist fight with appellant.

Bass testified that both Morales and Pagan sold drugs. N.T., 10/15/86, at 2.96-97. He described a June 24, 1985 incident during which Pagan, appellant and three other males shot at Morales. On another occasion, Bass heard Pagan threaten Morales, in appellant’s presence, with death if Morales did not stop selling drugs in his area.

Officer Bailey described the movements of Pagan and appellant in the area around the time of the shooting, characterizing their activities as a drug operation. He testified that Morales was a small-time drug dealer in the same area.

Appellant’s first objection to the proceeding relates to the testimony of Gines, Bass and Bailey. Their testimony, he alleges, was improperly admitted on two grounds. First, its introduction violated the general rule prohibiting introduction of prior criminal activities of the accused; second, the evidence of the criminal activity of Pagan, an unrelated third party, was irrelevant and prejudicial to his trial.

Regarding the first ground, the supreme court has recently restated the rule on this issue:

[Tjhe general rule prohibiting the admission of evidence of prior crimes [of the accused] nevertheless
allows evidence of other crimes to be introduced to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial, in other words, where there is such a logical connection between* the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.

Commonwealth v. Banks, 513 Pa. 318, 350, 521 A.2d 1, 17 (1987).

In this case, the evidence of appellant’s drug dealing activities directly established his motive for the murder. Similarly, the prior incidents of fighting and shooting established intent as well as motive. All of this evidence was properly introduced at trial. Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980) (where defendant was on trial for shooting his mother, evidence that he forged checks on her bank account and previously attempted to kill her was admissible to show motive and intent); Commonwealth v. Glass, 486 Pa. 334, 405 A.2d 1236 (1979) (evidence that appellant fired a gun at deceased’s home and beat her ten months prior to murder held admissible); Commonwealth v. Chism, 480 Pa. 233, 389 A.2d 1041 (1978) (evidence of defendant’s threats to victim and that he had forged victim’s signature on check admissible to show, motive); Commonwealth v. Coyle, 415 Pa. 379, 203 A.2d 782 (1964) (where defendant murdered policeman to avoid apprehension for previously committed crimes, all crimes were interwoven and admissible); Commonwealth v. Murphy, 346 Pa.Super. 438, 499 A.2d 1080 (1985) (defendant’s prior rape of murder victim’s wife admissible to show motive and history of event).

Appellant’s reliance upon Commonwealth v. Hoskins, 485 Pa. 542, 403 A.2d 521 (1979), Commonwealth v. Satzberg, 358 Pa.Super. 39, 516 A.2d 758 (1986); Commonwealth v. Bond, 261 Pa.Super. 311, 396 A.2d 414 (1978); and Commonwealth v. Hude, 256 Pa.Super. 439, 390 A.2d 183 (1978), is misplaced. In those cases, unlike the present one, the prior crimes had no connection to the crime for which the defendant was on trial.

Appellant’s contention that the evidence of Pagan’s criminal activities was irrelevant and inadmissible is addressed in Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985) and Commonwealth v. Gwaltney, 497 Pa. 505, 442 A.2d 236 (1982). Colson involved a murderer who had no apparent connection to his victim. At trial, however, it was established that the defendant was a drug dealer with the victim’s brother, who had a strong motive for killing him. The defendant objected to the introduction of testimony concerning his and the brother’s involvement in drug trafficking. The supreme court ruled that the testimony was admissible to show the relationships among the parties involved in the crime. Commonwealth v. Colson, supra, 507 Pa. at 464, 490 A.2d at 823.

In Gwaltney, evidence almost identical to that at issue here was ruled admissible. There, the evidence established motive by showing that the defendant and his victim were members of rival gangs in Philadelphia. The supreme court stated:

[EJvidence to prove motive, intent, plan, design, ill will or malice is relevant in a criminal case. Commonwealth v. Faison, 437 Pa. 432, 264 A.2d 394 (1970). The evidence presented concerning the relationship between appellant’s gang and the deceased’s gang, and the alleged stabbing of a member of appellant’s gang by the deceased is certainly probative of appellant’s possible motive.

Commonwealth v. Gwaltney, supra, 497 Pa. at 514, 442 A.2d at 241.

Cases relied upon by appellant in support of this claim are distinguishable. Here, unlike Commonwealth v. Krajci, 283 Pa.Super. 488, 424 A.2d 914 (1981), there was no danger that the jury would confuse the misdeeds of Pagan with those of appellant. Unlike the third party’s criminal activities in Commonwealth v. Hales, 384 Pa. 153, 119 A.2d 520 (1956), Pagan’s criminal activities were clearly connected to the appellant, the victim and the reason for the murder.

Appellant’s next allegation of error concerns his trial defense. In his defense, he testified that he was present at the shooting, but that his brother, Jose Ramos, was the murderer. Jose committed suicide on July 7, 1985. At trial, appellant was not permitted to introduce two pieces of evidence that allegedly would have supported his defense: 1) a conversation between Jose and himself during which Jose made statements inculpating himself as the murderer; and 2) the fact that Jose committed suicide.

While appellant argues strenuously regarding the exclusion of this evidence, he avoids the crux of the issues involved. Although evidence that someone else committed the crime is relevant, it must be otherwise competent in order to be admissible. The two pieces of evidence are inadmissible for different reasons.

Jose’s statements implicating himself as the murderer are hearsay. The supreme court recently announced that declarations of unavailable witnesses admitting culpability to a crime are not admissible unless the circumstances surrounding the declaration provide a clear assurance of their reliability. Commonwealth v. Bracero, 515 Pa. 355, 528 A.2d 936 (1987). In Bracero, the supreme court held that the trial court properly excluded testimony of a defense witness who would have testified that a third party admitted committing the crime. In this case, appellant’s unsupported testimony regarding statements allegedly made to him by his brother, unavailable for rebuttal, has less indicia of reliability than the testimony excluded in Bracero. Accordingly, his testimony regarding Jose’s statements was properly excluded by the trial court.

Regarding Jose’s suicide, the test of relevancy establishes why evidence of the suicide was inadmissible: evidence is relevant when the inference sought to be raised by the evidence bears upon a matter in issue in the case, and when the evidence renders the desired inference more probable than it would be without the evidence. Commonwealth v. Haight, 514 Pa. 438, 440, 525 A.2d 1199, 1200 (1987). The fact that Jose committed suicide does not support the desired inference that he committed the murder. Appellant had been arrested for the murder and had been identified positively by eyewitnesses. Jose had no reason to fear that he would be arrested. Thus, Jose’s commission of the murder was relevant, but the fact that he committed suicide did not, under these circumstances, make it more probable that he had committed the murder. Evidence of the suicide was therefore irrelevant.

Appellant’s final two arguments relate to pretrial publicity. He alleges that the trial court erred in disallowing jury voir dire on pretrial publicity and in failing to grant his motion for change of venue due to that publicity. Appellant describes the offensive publicity as follows:

At trial, the Commonwealth sought to show that Alberto Pagan, a/k/a “Hawk”, a drug dealer, had ordered the defendant to kill Morales in retaliation for encroaching upon Hawk’s territory. Hawk’s alleged territory was in the area of Eighth and Butler Streets only a few blocks from the scene of the killing. Throughout the testimony, there were numerous references to drugs and to th.e Eighth and Butler Street area.
Over the past year prior to trial there had been wide media coverage of the drug trafficking problems in the Eighth and Butler Streets area. On October 9, 1986, while jury selection was in progress, WCAU-AM, a Philadelphia radio station, broadcasted a weeklong expose on the drug problems and related crime in that area. On September 14, 1986, the Philadelphia Inquirer Newspaper devoted its Sunday magazine to the drug problem in that area, portraying drug sales in progress, dealers and users being arrested and drug homes being raided.
Additionally, prior to trial, the United States Attorney Edward Dennis and the Philadelphia District Attorney had conducted numerous press conferences to announce arrest of major figures in the drug operations conducted at Eighth and Butler Streets. Results of joint task force employed to combat the drug problems in that area have been announced.

Brief for Appellant at 37-38.

This media coverage did not mention the victim, Pagan, appellant or the murder, and the trial court did not abuse its discretion in failing to allow voir dire or change of venue on that basis. Pretrial publicity warrants a change of venue only when it is so pervasive, inflammatory, and inculpatory that a fair trial is unlikely. Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978); Commonwealth v. Grossman, 351 Pa.Super. 298, 505 A.2d 991 (1986). Further, a trial court’s decision regarding both the scope of voir dire examination and change of venue will not be reversed absent gross abuse of discretion. Commonwealth v. Lark, 350 Pa.Super. 558, 504 A.2d 1291 (1986) (voir dire); Commonwealth v. Casper, supra (venue). Since the publicity at issue made no reference to any events or parties in the trial, we fail to see how it could have been so inculpatory as to prevent a fair trial. The trial court did not abuse its discretion in this matter.

Judgment of sentence affirmed.