text:
    555 A.2d 906
    COMMONWEALTH of Pennsylvania, Appellee, v. Anthony MERRIWETHER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1988.
    Filed March 2, 1989.

      James R. Wilson, Pittsburgh, for appellant.
    Scott A. Bradley, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and KELLY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence following appellant’s conviction for violations of the Pennsylvania Uniform Firearms Act, 18 Pa.C.S.A. § 6101, et seq. We affirm.

The procedural history of this case follows. A criminal complaint against appellant was filed on March 13, 1985. On August 23, 1985, appellant filed an omnibus pre-trial motion seeking suppression of certain evidence. A hearing on this motion was held before the Honorable Samuel Strauss on August 27,1985. After all the evidence relating to the suppression motion had been presented, the trial judge adjudicated appellant guilty. At this point, a clerk reminded the judge that the proceeding was only a suppression hearing. The judge then denied the suppression motion. Following the judge’s decision on the suppression motion, the Commonwealth proceeded to incorporate the evidence presented into its case in chief. Before the Commonwealth rested, however, the trial judge stated that appellant was guilty “unless he had something to offer.” The defense rested at this point. The Commonwealth, however, requested permission to introduce further evidence pertaining to the merits of the case. It was necessary at this point for the Commonwealth to remind the trial judge that this evidence pertained to the merits of the case and not to the sentencing of appellant. Following introduction of this evidence, the trial judge again found appellant guilty.

On September 9,1985 appellant filed post-verdict motions. These motions were denied by the trial court on December 11, 1985. On April 24, 1986, appellant filed amended post-verdict motions stating, inter alia, that he was never advised of his right to a jury trial. On April 30, 1986, appellant was granted a new trial based on the absence of an on-the-record colloquy of jury trial waiver.

On July 28, 1986 appellant filed an omnibus pre-trial motion seeking suppression of evidence. A hearing on this motion was held before the Honorable Donna Jo McDaniel. Appellant’s counsel also made an oral motion to dismiss based on the violation of Rule 1100. These motions were denied and appellant proceeded immediately to a bench trial where he was convicted. Post-trial motions were timely filed and denied. Appellant was sentenced and thereafter filed the instant appeal.

Initially, we deal with appellant’s claim that he was brought to trial in violation of Rule 1100 of the Pennsylvania Rules of Criminal Procedure. The crux of appellant’s claim is that the proceeding before Judge Strauss did not amount to a trial for the purposes of Pa.R.Crim.Pro. 1100. Therefore, appellant contends, as a proper trial did not commence until October 1986, his rights under the Speedy Trial Act were violated and his conviction should be vacated and the charges against him dismissed.

Pennsylvania Rule of Criminal Procedure 1100(a)(2) requires that a defendant be brought to trial within 180 days from the date the complaint was filed. If a defendant is not brought to trial during this time, he may petition the court to dismiss the charges pursuant to Rule 1100(f). For purposes of Rule 1100, a trial is deemed to commence on the date the judge calls the case to trial or the defendant tenders a plea of guilty or nolo contendré. Rule 1100(b) (emphasis supplied). Further elucidation of the above standard is provided by the following comment to Rule 1100.

For the purpose of this rule a trial commences when the trial judge determines that the parties are present and directs them to proceed to voir dire or to opening argument, or to the hearing of any motions which had been reserved for the time of trial, or to the taking of testimony, or to some other such first step in the trial. With regard to the hearing of motions reserved for the time of trial, see Jones v. Commonwealth, 75 Pa. 403, No. 39, January Term, 1979 (filed 9/24/81).

Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981), sought to determine when a trial commences for Rule 1100 purposes. In so doing, Jones recited the above comment to Rule 1100 and emphasized the phrase “or the hearing of any motions which had been reserved for the time of trial.” Jones also referred to concurring opinion of former Chief Justice Eagen in Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977), which is often cited for its discussion of the meaning of the above comment. In his concurrence, Chief Justice Eagen stated the following:

For example, if a case were called to trial and after determining the parties were present, the trial judge held a hearing on a Suppression Motion which had been reserved for the time of trial, presumably the trial would have commenced for purposes of Rule 1100. This leads to the conclusion that the principle concern behind Rule 1100 is simply that the commencement of trial be marked by a substantive, rather than a pro forma, event. Moreover, each of the events specifically referred to in the foregoing portions of the comment represents a degree of commitment of the Court’s time and resources such that the process of determining the defendant’s guilt or innocence follows directly therefrom. Accordingly, the beginning of any stage which leads directly into the guilt determining process is a “first step” in the trial for the purposes of Rule 1100.

473 Pa. at 260, 373 A.2d at 1361 (Eagen, C.J., concurring) (emphasis supplied).

Based on the above, the Jones court decided that trial commenced in the case before it with the hearing on the Motion to Suppress since that Motion expressly was made “returnable at the time of trial before the trial judge.” Jones, 495 Pa. at 496, 434 A.2d at 1200.

With respect to pretrial motions, our Court has followed the Jones case in finding that when the motion has been expressly reserved for the time of trial and the “guilt determining process” directly follows a decision on the motion, trial has commenced for purposes of Rule 1100. See, Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984); Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111 (1983); Commonwealth v. Machi, 294 Pa.Super. 338, 439 A.2d 1230 (1982) (first requirement met where court had ordered motion to be heard “on the date of trial, immediately prior to trial”); Commonwealth v. Whitner, 278 Pa.Super. 175, 420 A.2d 486 (1980).

We have reviewed the transcript of the hearing on the suppression motion in the instant case and have found that immediately prior to proceeding on the Motion to Suppress, individuals who were going to testify at trial were asked by the court to stand and be sworn in. We believe that this satisfies the purpose underlying the first requirement as appellant and his counsel were then made aware that trial would be commencing at the close of the suppression hearing. See, Commonwealth v. Jackson, 262 Pa.Super. 151, 396 A.2d 690 (1978) (first requirement not met where, among other things, there was no mention made at the time of the suppression motion that trial was then beginning).

The next factor to consider in determining whether a trial has commenced for purposes of Rule 1100 is a finding of when the trial court first embarked on the “guilt determining” process. In reviewing the instant case, we are mindful of Justice Eagen’s admonition that the principle concern behind Rule 1100 is that the commencement of trial be marked by a substantive, rather than a pro forma event. Instantly, the transcript from the hearing on the motion to suppress and the subsequent trial in August 1985 revealed that the proceedings suffered from formal inadequacies. It is evident, however, that once the initial confusion regarding the nature of the proceeding was clarified, the motion to suppress was denied and a proceeding commenced which consisted of the Commonwealth presenting its case, the defense stating that it had no further testimony and the trial judge adjudicating the defendant guilty. A review of the transcript reveals that following denial of the suppression motion the court engaged in a process which was directed to determining the guilt or innocence of the defendant. We find therefore, that the proceeding before Judge Strauss in August 1985 constituted a trial for purposes of Rule 1100.

Appellant’s next claim of error concerns the search of his person which yielded the evidence which was admitted against him at trial. The facts as found by the suppression court follow.

A review of the evidence establishes that on that date, [March 13, 1985] detectives from the Allegheny County Police were conducting a search with a warrant of a residence in Braddock, Pennsylvania. While the officers were engaged in the search, Detective Duffy answered a knock at the door and confronted the defendant. The defendant entered the apartment and said “you don’t know me but I was told I could buy some bans here.” [1. testimony established that “bans” is the street name for a controlled substance] Detective Duffy identified himself, conducted a pat down search and found a syringe and a loaded .32 caliber revolver on the defendant’s person. The defendant was then informed of his arrest on the gun violation.

(Opinion of McDaniel, J., at pp. 2-3).

Appellant contends that this warrantless search of his person cannot be justified under any exception to the Fourth Amendment prohibition against such searches. Therefore, he argues, the evidence should have been suppressed.

Initially, we note our standard of review in an appeal from the denial of a suppression motion.

... The suppression court must make findings of fact and conclusions of law in determining whether evidence was obtained in violation of the defendant’s rights ... On appeal [this Court] must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the [suppression] court’s finding of fact.
In considering whether the record supports the [suppression] court’s finding of facts we must restrict ourselves to reviewing the evidence presented by the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. In addition, where the suppression court’s findings are amply supported by the record they may not be disturbed on appeal.

Commonwealth v. Eliff, 300 Pa.Super. 423, 428, 446 A.2d 927, 929 (1982) (citations omitted); See also, Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986); Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983).

Instantly, we have determined that the facts as found by the suppression court are amply supported by the record. We therefore proceed to a review of the suppression court’s conclusion that probable cause to arrest appellant was established and that the protective pat-down search conducted by the police was proper under Commonwealth v. Rehmeyer, 349 Pa.Super. 176, 502 A.2d 1332 (1985), alloc. denied, 516 Pa. 613, 581 A.2d 780 (1987).

To be constitutionally valid, a warrantless arrest must be supported by probable cause. Commonwealth v. Anderson, 360 Pa.Super. 466, 520 A.2d 1184 (1987), citing Commonwealth v. Voss, 333 Pa.Super. 331, 482 A.2d 593 (1984), appeal denied, 514 Pa. 617, 521 A.2d 932 (1987). Probable cause exists where the facts and circumstances at the time of the arrest would warrant a reasonable person in believing that an offense had been committed and that the suspect was the perpetrator of the offense. Commonwealth v. Anderson, supra; Commonwealth v. Ellis, 354 Pa.Super. 11, 510 A.2d 1253 (1986). Instantly, the suppression court found that the police were executing a search warrant at a residence where it was suspected that drug trafficking was being conducted. Appellant presented himself at this residence and expressly stated that he wished to purchase a controlled substance. It was reasonable to conclude on these facts that appellant had committed a violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa.S.A. § 780-101 et seq.

Although the police in the instant case had probable cause to arrest appellant, they did not do so until they conducted a search of appellant’s person. Appellant contends that this fact requires that the evidence seized as a result of the search be suppressed. We disagree and rely, as the suppression court did, on Commonwealth v. Rehmeyer, supra, in support of our position.

Commonwealth v. Rehmeyer held that “if probable cause to arrest exists, but the officer does not effectuate the arrest, the officer may nevertheless conduct a protective pat-down search when he decides to transport the individual in the patrol car.” 502 A.2d at 1335. Appellant contends that the fact that the officer in Rehmeyer would be transporting the defendant in a patrol car created a situation of peril for the officer which does not exist in the instant case. Therefore, appellant contends, Rehmeyer is effectively distinguished and does not control the instant case. We disagree. Instantly, it was apparent that appellant arrived at the residence, which was being searched, for the purpose of buying drugs. It is not unreasonable to assume that once identified as law enforcement officials, the police officers may have been in some danger from appellant. It was therefore proper for the officers to neutralize this danger by conducting a limited pat-down search of appellant. In so finding, we note that although the Rehmeyer holding dealt with the transportation of a defendant in a patrol car, the Rehmeyer court cited with approval the following passage:

[T]he mere fact that the trooper reversed the procedure, conducting the search before the arrest, did not render it illegal as long as probable cause to arrest existed at the time of search____ Any other holding would, without rational basis, exalt form over substance.

United States v. Jenkins, 496 F.2d 57, 73 (2d Cir.1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1119, 43 L.Ed.2d 394 (1975) (emphasis supplied). For the reasons set forth above, therefore, we affirm the trial court’s denial of appellant’s suppression motion.

Finally, appellant contends that trial counsel was ineffective for failing to present the defense of justification. When faced with a challenge to the effectiveness of counsel, we must first determine whether the underlying claim is of arguable merit. If the underlying claim presents arguable merit, we must evaluate whether the course chosen by counsel had some reasonable basis aimed at promoting the appellant’s interests. Finally, the appellant must establish that the alleged ineffectiveness prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

The defense of justification is codified at 18 Pa.C. S.A. § 503(a) entitled “Justification Generally.” In order to be entitled to an instruction of justification as a defense, the actor must offer evidence which will demonstrate the following:

1. that the actor was faced with a clear and imminent harm, not one which is debatable or speculative;
2. that the actor could reasonably expect that the actor’s actions would be effective in avoiding this greater harm;
3. that there is no legal alternative which will be effective in abating the harm; and
4. that the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.

Commonwealth v. Capitolo, 508 Pa. 372, 376-380, 498 A.2d 806, 808-809 (1985).

Appellant contends that he was justified in carrying a firearm because he had allegedly received telephone threats by individuals against whom he had testified at an unrelated murder trial. These alleged threats, however, do not constitute clear and imminent harm. Furthermore, there was a legal alternative available to appellant as he could have notified the authorities and informed them of these threats. Appellant was, therefore, not entitled to the defense of justification; consequently, counsel cannot be found ineffective for failing to pursue such a claim.

JUDGMENT OF SENTENCE AFFIRMED.

      . We acknowledge that Rule 1100 was amended in December 1987. As the proceedings in the instant case took place prior to this date, however, the amendments have no effect on appellant’s case.

      . The criminal complaint was filed on March 13, 1985, making the mechanical run date for Rule 1100 purposes August 27, 1985.

      . 35 Pa.S.A. § 780-113(a)(19) provides as follows:
      (a) the following acts and the causing thereof within the Commonwealth are hereby prohibited:

        ******

      (19) The intentional purchase of knowing receipt in commerce by any person of any controlled substance, other drug or device from any person not authorized by law to sell, distribute, dispense or otherwise deal in such controlled substance, other drug or device.


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    555 A.2d 912
    COMMONWEALTH of Pennsylvania ex rel. Barry SALTZBURG v. Thomas A. FULCOMER, Superintendant Huntingdon Prison. Appeal of Barry SALTZBURG.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1988.
    Filed March 7, 1989.

      Thomas J. McBride, Philadelphia, for appellant.
    Joseph J. Mittleman, Assistant District Attorney, Media, for appellee.
    Before CAVANAUGH, WIEAND and McEWEN, JJ.
   McEWEN, Judge:

We here consider an appeal from an order which denied, without a hearing, the petition for writ of habeas corpus, filed by appellant in the Common Pleas Court of Delaware County, in which appellant asserted that the Pennsylvania Board of Probation and Parole and the Bureau of Corrections were holding him in confinement in violation of the equal protection and due process clauses of the United States Constitution.

Appellant was found guilty after a jury trial on October 20, 1981, and was sentenced by the eminent Judge Melvin G. Levy to serve consecutive terms of imprisonment of from three years to six years for robbery and from two years to four years for criminal conspiracy. This Court on direct appeal affirmed the judgment of sentence. Commonwealth v. Saltzburg, 324 Pa.Super. 621, 472 A.2d 1166. The Supreme Court denied the petition for allowance of appeal. Commonwealth v. Saltzburg, No. 244 E.D., 1984; July 30, 1984.

The record reveals that on December 29, 1986, appellant was transferred from the state prison at Huntingdon to a Community Service Center in Allentown. Four months thereafter, however, on April 20, 1987, appellant was, as a result of a misconduct charge, removed from the Community Service Center in Allentown and returned to prison confinement. The misconduct charge arose from a criminal complaint against appellant charging the offense of “former convict not to own firearm,” 18 Pa.C.S. § 6105. The charge was dismissed at the preliminary hearing on October 13, 1987, as a result of the failure of the Commonwealth to establish a prima facie case. Appellant alleges that although the misconduct charge was also dismissed with prejudice, he was not returned to the Community Service Center but remained incarcerated in state prison. Appellant became eligible for parole in October of 1987. As a result, counsel for appellant undertook the following correspondence:

A letter of October 15, 1987, to appellant’s counselor in the prison confirming that appellant was eligible for parole and that the misconduct charge had been dismissed with prejudice.
A letter of November 20, 1987, to the secretary for the Board of Probation and Parole confirming (1) that the delay that had occurred to that date was not due to any criminal or misconduct charges, and (2) that the Board would very shortly render a decision upon the parole status of appellant.

The Parole Board did not reach a decision when it considered appellant’s application for parole, but instead, on December 8, 1987, continued the case “pending the receipt of additional information.”

Appellant, thereafter, in February of 1988, filed the instant petition for writ of habeas corpus alleging that:

Appellant had been released from total confinement to a program administered by the Bureau of Corrections which provided for less than total confinement.
When appellant was unable to provide information to officers of several law enforcement agencies, the State Police contrived to secure the issuance of a search warrant and charge of misconduct against appellant. The misconduct charge was subsequently dismissed.
Criminal charges brought against appellant were subsequently dismissed by reason of the failure of the Commonwealth to present a prima facie case against appellant.
Appellant is eligible for release (1) into the program to which he had earlier been admitted, or (2) under parole. The Bureau of Corrections refuses to release appellant into a program of less than total confinement, and the Board of Probation and Parole refuses to act upon his application for parole, by reason of a conspiracy between and among representatives of the Pennsylvania Board of Probation and Parole, the Pennsylvania State Police, the Philadelphia Police Department, the District Attorney of Philadelphia County, and the District Attorney of Bucks County so as to force appellant into providing information upon criminal activity of which they presume he is aware.

We focus first not upon relief, but upon recourse. The threshold issue is not whether appellant is entitled to release, but whether he is to have access to a forum and the opportunity to prove his assertions that the forces of government have conspired to deny him the rights guaranteed by the Constitution and afforded him by statute. The forum where his case is to be heard is, of course, to be determined by the type of relief he seeks.

The thrust of appellant’s claim against the Bureau of Corrections is that it failed to act in accordance with its own regulations by not reinstating him to the Community Service Center after the dismissal of the misconduct charge against him. Appellant does not seek review of a decision of the Bureau of Corrections. Rather, appellant seeks an order directing the Bureau to act in conformity with its own regulations. Bureau of Corrections Administrative Directive 301 states:

V. Sanctions

A. No sanction shall be imposed for any misconduct charge, for which the inmate is found not guilty.

Appellant was removed from the Community Service Center and returned to prison as a result of the charge of misconduct. The essence of his claim is that, once the misconduct charge was dismissed, the failure to return him to the Community Service Center composes an imposition of sanction, and that such a sanction violates the Bureau of Corrections’ own regulation, 301(V)(A). It is well settled that administrative regulations which are duly authorized and promulgated have the same force and effect as law, and are binding upon the agency. Girard School District v. Pittenger, 481 Pa. 91, 392 A.2d 261 (1978); Fumo v. Commonwealth Insurance Dept., 58 Pa.Cmwlth. 392, 427 A.2d 1259 (1981). Appellant seeks to force the Bureau of Corrections to comply with its own regulations, which have the same effect as a statute, and to return appellant to the Community Service Center in Allentown.

It is thus evident that appellant seeks to compel the Bureau of Corrections to act, and that, therefore, his method of remedy is that of mandamus, and not of habeas corpus. The Pennsylvania Supreme Court has stated:

A mandamus is an extraordinary writ of common law, designed to compel performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant, and want of any other adequate and appropriate remedy. Philadelphia Newspaper, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978). A court of law of competent jurisdiction issues a mandamus to a public official, board or municipality directing them to perform a particular duty which results from their official station or operation of law. Goodman v. Meade, 162 Pa.Super. 587, 60 A.2d 577 (1948). A mandamus will not lie to compel discretionary acts, Paige v. Pa. Bd. of Parole, 311 F.Supp. 940 (E.D.Pa.1970), nor will it be issued to restrain official activities. Board of Com’r. of Potter County v. Turner, 33 Pa.Cmwlth. 639, 382 A.2d 1248 (1978). A proceeding in mandamus is available to compel the Board of Probation and Parole to conduct a hearing or correct a mistake in applying the law. Davis v. Pa. Bd. of Parole, 484 Pa. 157, 398 A.2d 992 (1979); Moore v. Roth, 231 Pa.Super. 464, 331 A.2d 509 (1974).

Bronson v. Pennsylvania Board of Parole, 491 Pa. 549, 554, 421 A.2d 1021, 1023 (1980).

Appellant’s assertions against the Parole Board are also in the nature of mandamus since appellant does not challenge the discretionary nature of a decision by the Parole Board, but claims that the Board refuses to act upon his application for parole, which, if proven, is a violation of 61 P.S. § 331.22. Consequently, we must treat the instant proceeding, for purposes of determining the issues on the merits, as mandamus in character.

The trial court here quite understandably reasoned that it did not have authority to grant the relief requested by appellant in light of the decision of the Commonwealth Court in Reider v. Commonwealth of Pennsylvania Board of Probation and Parole, 100 Pa.Cmwlth. 333, 514 A.2d 967 (1986). In Reider, however, the Commonwealth Court held that decisions of the Parole Board are not subject to judicial review. Appellant does not seek judicial review of the discretionary decisions of the Bureau of Corrections or Board of Probation and Parole, but seeks instead to compel these state agencies to act in accordance with the regulations to which each is subject. Thus, it would seem, Reider is inapplicabale.

Having concluded that the claims presented in the writ of habeas corpus are essentially different from those raised in Reider v. Commonwealth of Pennsylvania Board of Probation and Parole, supra, and are, as a result, subject to judicial review, we must determine which court entertains proper jurisdiction over such matters.

Section 761 of the Judicial Code provides, inter alia:

(a) General Rule. — The Commonwealth Court shall have original jurisdiction of all civil actions or proceedings:
(1) Against the Commonwealth government, including any officer thereof, acting in his official capacity, except:
(i) actions or proceedings in the nature of applications for a writ of habeas corpus or post-conviction relief not ancillary to proceedings within the appellate jurisdiction of the court;
(ii) eminent domain proceedings;
(iii) actions or proceedings conducted pursuant to Chapter 85 (relating to matters affecting government units);
(iv) actions or proceedings conducted pursuant to the Act of May 20, 1937 (P.L. 728, No. 193), referred to as the Board of Claims Act; and
(v) actions or proceedings in the nature of trespass as to which the Commonwealth government formerly enjoyed sovereign or other immunity and actions or proceedings in the nature of assumpsit relating to such actions or proceedings in the nature of trespass.
(2) By the Commonwealth government, including any officer thereof, acting in his official capacity, except eminent domain proceedings.

42 Pa.C.S. § 761(a).

Although appellant brought the instant action in the form of habeas corpus, a proceeding specifically excepted from the original jurisdiction of the Commonwealth Court by 42 Pa.C.S. § 761(a)(l)(i), the action is, under the preceding analysis, in essence and nature, of mandamus and, thus, within the original jurisdiction of the Commonwealth Court pursuant to 42 Pa.C.S. § 761(a)(1). See also: Green v. Pennsylvania Board of Probation and Parole, 56 Pa.Cmwlth. 408, 424 A.2d 639 (1981). Accordingly, we transfer this matter to the Commonwealth Court.

Case transferred.

      . The specific order from which this appeal has been taken provided:

        AND NOW, this 2nd day of March, 1988, a petition for writ of habeas corpus having been filed on behalf of defendant Barry Saltzburg, and the Court having scheduled a hearing for March 8, 1988 on said petition, and it appearing to the Court that ... this Court has no authority to grant the relief sought in said petition, it is ORDERED that the rule heretofore allowed on said petition shall be and the same hereby is vacated, and the hearing scheduled for March 8, 1988 is cancelled.

      . It has become routine in the past decade or more for the plainclothes police, in a fashion only mildly variant from the infamous "press gangs” of another century, to impress criminals into government service as informers, so that the accused becomes accuser. There is intense disagreement among jurisprudential scholars as to the ethicity of permitting government agents to enlist informants with blandishments composed of “offers which cannot be refused”. It is not helpful to address the suggestion that the police conduct these efforts in such tandem with the media that they appear as surrogates, or even acolytes, for the media. There is, however, an undisputed evil, namely, the great potential for the offeree, tempted by the benefits and rewards to be reaped, to falsely implicate individuals by telling the plainclothes police what they make so obvious they want to hear. The argument is made that the urgent errand of the plainclothes police requires the use of such blandishments to secure information. Surely, however, no one would suggest that the plainclothes police may employ the terror of extended incarceration to secure information, since whatever the possibility that lies will follow promise of reward, the potential for falsehood is even greater in the face of threats of continued imprisonment. It is undisputed that the natural law demands that society be protected from the marauder. On the other hand, the Constitution proclaims that every citizen is worthy of protection from police abuse. To preserve the precious balance between the need to protect society and the mandate of the equal protection clause, is the charge of the courts. Thus appellant has a right to a forum.

      . Act of August 6, 1941, P.L. 861, § 22, as amended, Act of May 27, 1943, P.L. 767, § 11, 61 P.S. § 331.22. This Act provides, in relevant part, that an “[alpplication [for parole] shall be disposed of by the board within six months of the filing thereof. Except in cases where the Pardon Board has reduced a minimum term by commutation, the board shall initially act on the application, if possible, before the expiration of the minimum term so fixed, and in no case more than thirty days thereafter.”

      . Errors in form are viewed with great tolerance by modern courts. Bell Telephone Co. of Pa. v. B & O R.R., 155 Pa.Super. 286, 38 A.2d 732 (1944); See also: Bronson v. Commonwealth Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980) (civil action in form of mandamus, although not mandamus in character, reviewed by court as constitutionally guaranteed appeal); Pridgen v. Board of County Commissioners, 389 So.2d 259 (Fla.Dist.Ct.App.1980); Appeal of Connolly, 122 N.H. 678, 448 A.2d 422 (1982); 1A C.J.S. Actions § 73.


author: OLSZEWSKI, Judge:

text:
    555 A.2d 916
    J. Barry MacNEAL & Harold F. Scattergood, Appellees, v. I.C.O.A., INC. & Gerald L. Brodsky, Chairman-I.C.O.A., Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1988.
    Filed March 17, 1989.

      Paul R. Rosen, Philadelphia, for appellants.
    Jean C. Hemphill, Philadelphia, for appellees.
    Before OLSZEWSKI, BECK and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal following the trial court’s certification that a substantial issue of jurisdiction exists pursuant to Pa.R.A.P. 311(b)(2). We affirm the trial court’s order dismissing appellants’ preliminary objections.

The procedural history of this appeal follows. Appellees are shareholders of I.C.O.A. In April of 1987, appellees brought an action against I.C.O.A., a Nevada corporation conducting business in Pennsylvania and Illinois, and Gerald Brodsky, the former president of I.C.O.A., requesting the court to compel I.C.O.A. to permit the appellees to inspect its corporate books and records. This suit was brought pursuant to the Pennsylvania Business Corporation Act, 15 P.S. § 1308 C. At the time of this action, I.C.O.A.’s corporate books and records were maintained in Philadelphia. Following a hearing on this matter, a stipulation was entered into by the parties wherein I.C.O.A. agreed to release on-going financial information to the shareholders on a quarterly basis, file a 10-K or S-l Registration Statement with the Securities and Exchange Commission, and forego further legal action on the matter in exchange for the plaintiffs’ agreement to mark the matter settled, discontinued and ended. On June 8, 1987, a stipulated order was entered in the Court of Common Pleas, Philadelphia County. The trial court presiding over the present action found that appellant I.C.O.A. complied with this stipulated order. (Finding of Fact No. 15, filed May 2, 1988).

On February 8, 1988, appellees brought a second action against I.C.O.A. pursuant to 15 P.S. § 1308 C seeking to inspect the corporate books and records. I.C.O.A. filed preliminary objections to this action arguing, inter alia, that the Court of Common Pleas of Philadelphia County did not have jurisdiction over its books and records as they were not located in the Commonwealth, and that the action was barred by the doctrine of res judicata as the same action was litigated in 1987. Following a hearing on I.C.O. A.’s preliminary objections, the trial court entered an order dismissing the preliminary objections and filed findings of facts and conclusions of law which maintained that the court had jurisdiction over the action and that the action was not barred by res judicata. On May 24, 1988, the trial court signed an order certifying the jurisdictional issue for appeal as a substantial issue of jurisdiction was presented. Notice of appeal was filed on May 26,1988. Appellees filed a motion to quash the instant appeal on August 16, 1988, and this motion to quash was denied on September 14, 1988.

As has already been mentioned, appellees brought an action against I.C.O.A. seeking to inspect the corporate records. This action was brought pursuant to 15 P.S. § 1308 C, which provides as follows:

C. If the corporation, or an officer or agent thereof, refuses to permit an inspection sought by a shareholder or attorney or other agent acting for the shareholder pursuant to subsection B of this section or does not reply to the demand within five business days after the demand has been made, the shareholder may apply to the court of common pleas of the county in which the registered office of the corporation is located for an order to compel such inspection. Such court of common pleas is hereby vested with exclusive jurisdiction to determine whether or not the person seeking inspection is entitled to the inspection sought. The court may summarily order the corporation to permit the shareholder to inspect the share register and the other books and records of the corporation and to make copies or extracts therefrom; or the court may order the corporation to furnish to the shareholder a list of its shareholders as of a specific date on condition that the shareholder first pay to the corporation the reasonable cost of obtaining and furnishing such list and on such other conditions as the court deems appropriate. Where the shareholder seeks to inspect the books and records of the corporation, other than its share register or list of shareholders, he shall first establish (1) that he has complied with the provisions of this section respecting the form and manner of making demand for inspection of such document; and (2) that the inspection he seeks____

Based upon the above statute, appellees MacNeal and Scattergood contend that the trial court was vested with jurisdiction in this case. Appellants, in their preliminary objections, allege that I.C.O.A. is a foreign corporation doing business in Pennsylvania, whose books and records of account are not located within the jurisdiction at the time of the written demand. Before resolving the above dispute, we must be mindful of the fact that an appeal from an order dismissing preliminary objections challenging trial court’s subject matter jurisdiction over a complaint is interlocutory and ordinarily not appealable. See, Davis Supermarkets, Inc. v. United Food and Commercial Workers, Local 23, 368 Pa.Super. 290, 533 A.2d 1068 (1987). An interlocutory appeal of right exists, however, where the order of the trial court sustains jurisdiction over a person or real property if the court states in an order that a substantial issue of jurisdiction is presented. Pa.R.A.P. 311(b); see, City of Philadelphia v. Franklin Smelting and Refining Co., 303 Pa.Super. 393, 449 A.2d 745 (1982). Such is the situation presented by the case sub judice. For purposes of our review, therefore, we apply the standard utilized by cases in which our Court had to determine whether the trial court was correct in concluding it had subject matter jurisdiction. Specifically, we accept as true all facts averred in the complaint. Glen Alden Corp. v. Tomchick, 183 Pa.Super. 306, 130 A.2d 719 (1957). We now begin our review of the instant case.

In their complaint, appellees aver that I.C.O.A. is a Nevada corporation with its principal place of business in Philadelphia and that the corporation is registered to do business in Pennsylvania. Appellants responded with preliminary objections which alleged that I.C.O.A. is a foreign corporation doing business in Pennsylvania whose books and accounts are not physically located in the jurisdiction at the time of appellees’ written demand in February of 1988. Following a hearing on this issue, the trial court issued its determination that “it does not appear with certainty that upon the facts averred, that the law will not permit Plaintiffs to review the books and records of I.C.O.A. Therefore, the Plaintiffs must be permitted to proceed forward.” (Conclusion of Law No. 5, filed May 2, 1988).

Appellants raise three issues for our review: (1) whether the trial court improperly expanded its mandamus jurisdiction beyond its statutory limits in permitting an inspection of a foreign corporation’s books and records when the books and records are not located within the Commonwealth; (2) whether the trial court misquoted the Pennsylvania Business Corporation Act and granted relief which is not contained in the statute; and (3) whether the trial court should have dismissed the action under the doctrine of res judicata. Appellant’s brief at 2. Regarding the first two issues, appellees counter with the assertion that the trial court’s determination in this matter was a limited one in that it simply found that it had jurisdiction to entertain the action and did not rule as to what documents were to be produced for inspection. Appellees rely on the case of Witney v. City of Lebanon, 369 Pa. 308, 85 A.2d 106 (1952), in support of their position that the trial court’s ruling was proper. Witney v. City of Lebanon stated the following:

In Zerbe Township School District v. Thomas, 353 Pa. 162, 44 A.2d 566, we stated principles which are here applicable, namely that even though a plaintiff has no standing to bring his action, even though his complaint be demurrable, even though he fail to establish its allegations, even though the court should finally conclude that the relief he seeks should not be granted, not any or all of these circumstances would enter into, much less determine, the question of whether the court had jurisdiction of the litigation. We there pointed out that the test of jurisdiction was the competency of the court to determine controversies of the general class to which the case presented for its consideration belonged,-^whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case; that the Act of 1925 was not intended to furnish a short cut to a determination of the issues of law or fact raised by the pleadings and that it was not concerned with matters going to the right of the plaintiff to recover on his cause of action but only with his right to have his cause of action heard and determined. In support of those principles many decisions of our appellate courts were cited, and a host of later authorities have since been added to the long list there set forth. (Citations omitted.)

369 Pa. at 311-12, 85 A.2d at 108.

We agree with appellees that the trial court’s holding was a limited one in that it held simply that plaintiffs (appellees) should be permitted to proceed with their action, thereby implicitly holding that jurisdiction was properly vested in the Philadelphia Court of Common Pleas. Moreover, we cannot agree with appellants’ contention that the true issue presented by the instant situation is not whether the trial court may enter upon the inquiry, but whether it has the power under 15 P.S. § 1308 C to order the books and records to be brought back into this Commonwealth. In making such an assertion, appellants are assuming a fact that is not before us: that the trial court has already permitted inspection of the books and records. We find that the only issue in this regard before the trial court, and the only one properly before us, is whether the trial court had “the power to enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case____” Witney, supra, 369 Pa. at 312, 85 A.2d at 108.

The issue we must decide, therefore, is whether the trial court properly denied appellants’ preliminary objections upon determining that appellants failed to establish that the trial court did not have jurisdiction to entertain the action. In making its determination, the trial court opined as follows:

Based on the Court's findings that (1) I.C.O.A. has five full-time employees located at its Philadelphia Office; (2) that the “editorial staff” is located in Philadelphia; (3) that Ms. Virginia Higgins, who is in charge of stockholder relations maintains her office in Philadelphia; (4) that Gerald L. Brodsky, the Chairman of I.C.O.A. maintains his office in Philadelphia; and (5) the hearing testimony indicates that the business of I.C.O.A. is the gathering, editing and dissemination of medical information and that this is done in and through the Philadelphia, Pennsylvania office, it appears that the place of business of I.C.O.A. is in Philadelphia, Pennsylvania and the defendants, moving parties, have failed to carry their burden.
That being so, it does not appear with certainty that upon the facts averred, that the law will not permit Plaintiffs to review the books and record of I.C.O.A. Therefore, the Plaintiffs must be permitted to proceed forward. Patton [v. Republic Steel Corp., 342 Pa.Super. 101, 492 A.2d 411 (1985)].
Additionally, based on the aforementioned findings of fact, notwithstanding I.C.O.A.’s assertion that the books and records are not maintained in Philadelphia, Pennsylvania, the record fails to establish with certainty that the books and records are not required to be maintained in Philadelphia, under § 1308(A). 15 P.S. § 1308(A); See, Patton, supra. The defendants, moving parties, as to the Preliminary Objections, have failed to establish with certainty that the principal place of business of I.C.O.A. is somewhere other than Philadelphia, nor does it appear with certainty that books and records are not or should not be maintained in Philadelphia. _

Opinion at 4-5. Our review of the record, appellants’ brief and arguments, the applicable law, and the trial court’s thorough opinion reveal that there is no merit to appellants’ contention. Accordingly, we affirm the determination of the trial court.

We also find no merit in appellants’ final assertion that the trial court erred in dismissing the preliminary objection asserting the defense of res judicata. It is well settled in this Commonwealth that unless the complaint sets forth in detail the essential facts and issues pleaded by the prior suit, the affirmative defense of res judicata must be raised in a responsive pleading under the heading of new matter and not by preliminary objection. Del Turco v. Peoples Home Savings Association, 329 Pa.Super. 258, 267-68, 478 A.2d 456, 461 (1984), citing Callery v. Blythe Township Municipal Authority, 432 Pa. 307, 243 A.2d 385 (1968); Keily v. J.A. Cunningham Equipment Inc., 387 Pa. 598, 128 A.2d 759 (1957); Goodrich Amram 2d § 1017(b):11. Our scrutiny of appellees’ complaint reveals that, while the prior action is mentioned, the complaint does not set forth in detail the essential facts and issues pleaded by the prior suit. Therefore, the affirmative defense of res judicata was not properly raised by preliminary objection.

The order of the trial court denying appellants’ preliminary objections is affirmed.

      . Appellees sought to inspect the following:
      (1) the share register;
      (2) tax returns;
      (3) bank statements and reconciliations, check books, cash receipts and disbursement journals;
      (4) audited and unaudited financial statements, including, but not limited to, reports with respect to the assets, liabilities, working capital, income and expenses of the Company;
      (5) contracts and agreements relating to the salé or proposed sale or purchase or proposed purchase of assets of the Company;
      (6) computer-generated financial reports prepared for management.
      (Proposed Order of Appellees, February Term 1988).


author: KELLY, Judge:

text:
    555 A.2d 920
    COMMONWEALTH of Pennsylvania v. Stephen M. LYONS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 29, 1988.
    Filed March 13, 1989.

      Dean N. Livermore, Jersey Shore, for appellant.
    Brett O. Feese, District Attorney, Williamsport, for Com., appellee.
    Before OLSZEWSKI, KELLY and HESTER, JJ.
   KELLY, Judge:

Appellant, Stephen M. Lyons, appeals from the judgment of sentence imposed following his conviction of resisting arrest. We affirm.

Appellant has raised four contentions of error for our consideration. Primarily, we are concerned with appellant’s first contention, i.e. whether a county parole/probation officer may lawfully request the assistance of local law enforcement personnel to effectuate a warrantless arrest of a parole violator, and if so, whether local law enforcement personnel may make such an arrest without a court order and without the physical presence of the parole/probation officer but, at the request of a parole/probation officer who had left the scene shortly before the parole violator reappeared. We find the following. First a county parole/probation officer is authorized to effectuate a warrant-less arrest of a parole violator. Second, local law enforcement personnel have statutory authority to aid a county parole/probation officer who requests their assistance in effectuating a warrantless arrest of a parole violator. Third, this arrest of a parole violator was legal even though it was effectuated by local law enforcement personnel, acting upon a request of assistance by a county parole/probation officer who was not physically present at the time of the arrest.

FACTS AND PROCEDURAL HISTORY

On March 11, 1987, appellant was paroled to the Adult Probation Office for Lycoming County. Special conditions had been placed upon his parole which required that appellant be intensively supervised. Appellant’s case was assigned to Officer Scott L. Metzger, an adult probation officer. On April 22, 1987, Officer Metzger consulted with his supervisor concerning appellant’s violations of his parole, i.e., repeated failures to report as scheduled and/or as requested and failure to notify and obtain permission to move from his authorized residence with his grandmother to his mother’s residence at Powy’s Park. Officer Metzger’s supervisor thereupon directed Officer Metzger to apprehend appellant for violating the conditions of his parole. After two unsuccessful attempts to apprehend appellant at Powy’s Park were made by Officer Metzger and two fellow county parole/probation officers, appellant was arrested on April 27, 1987, by four local deputy sheriffs. Appellant’s resistance to the arrest by the local deputy sheriffs resulted in the filing of the resisting arrest charge which is the subject of this appeal. We are not concerned here with the eventual disposition of the parole violation charge which gave rise to appellant’s arrest.

Following arraignment, appellant filed an omnibus pre-trial motion which challenged the legality of his arrest. The motion was denied. On October 14, 1987, a jury found appellant guilty of resisting arrest. Post-verdict motions were filed and denied. Appellant was sentenced to a term of imprisonment of one to two years in a state correctional institution to run concurrent with the remainder of the sentence he was serving prior to being paroled. This timely appeal followed.

On appeal, appellant contends that: (1) his arrest by the deputy sheriffs who were acting on the oral request of a county parole/probation officer, without a warrant, was not a lawful arrest for purposes of the crime of resisting arrest; (2) the evidence was insufficient to establish the degree of resistance required for the offense; (3) an improper reference to his prior criminal conduct compels a grant of a new trial; and (4) trial counsel was ineffective for failing to object timely to testimony of appellant’s unrelated prior criminal behavior. We find each of appellant’s contentions to be without merit. Accordingly, we affirm the judgment of sentence.

I. THE LEGALITY OF THE ARREST

Appellant contends that his arrest without a warrant by the deputy sheriffs was illegal. He argues first that a county parole/probation officer cannot order or authorize another law enforcement officer (other than a parole/probation officer) to arrest a parolee on a technical parole violation without a warrant or court order. Secondly, he claims that deputy sheriffs cannot make a valid arrest of a parole violator without a court order. Appellant concludes that because his arrest was illegal, his conviction of resisting arrest cannot stand and he must be discharged. We do not agree.

Before addressing appellant’s contention, we will first make a closer examination of the facts particularly relevant to this issue. Appellant had been placed on parole with special conditions which required intensive supervision. However, appellant repeatedly failed to meet the conditions of his parole. He failed to report, as scheduled and/or as requested, at least five times. He also failed to notify and receive permission from Officer Metzger to change his address as required by the terms of his parole before he moved from his grandmother’s home to his mother’s home which was located above a bar. As a result of appellant’s failure to comply with the conditions of his parole, Officer Metzger consulted with his supervisor, who then concluded that appellant's conduct constituted material violations of his special intensive supervision parole status, and directed Officer Metzger to arrest appellant as a parole violator.

Officer Metzger went to Powy’s Park twice with two other county parole/probation officers to effectuate a legal warrantless arrest. The first time appellant escaped by leaving through one of the many exits from his mother’s home, wading across Lycoming Creek, and running up the mountain on the other side. The second time appellant was not there. As a result of these fruitless visits, Officer Metzger became well aware of the layout of Powy’s Park, its several exits, and its close proximity to Lycoming Creek. Realizing that appellant could easily escape from the three parole/probation officers, Officer Metzger requested assistance from the local Sheriff’s office.

The first attempt to apprehend appellant at Powy’s Park with the assistance of the local deputy sheriffs, as well as members of the ^Pennsylvania State Police, was unsuccessful because appellant was not there. Later that day, however, Mrs. Lyons called the Sheriffs office to inform them of her son’s return, and to ask them to return. Because they were uncertain how to proceed, the deputy sheriffs made police radio contact with the county parole/probation officers who had initially asked them for their assistance. The parole/probation officers asked the deputy sheriffs to go ahead and attempt to apprehend appellant because the deputy sheriffs had already received extra back-up from other local police, because the parole/probation officers were minutes away and would arrive shortly thereafter, and because the parole/probation officers were concerned that appellant might escape before they could return to the site. The deputy sherrifs then arrested appellant.

Appellant argues that a county parole/probation officer cannot order or authorize another law enforcement officer (other than a parole/probation officer) to arrest a parolee on a technical parole violation without a warrant or court order. We cannot agree.

A county parole/probation officer is not required to obtain a warrant or a court order in order to arrest a parolee who is in violation of parole; 61 Pa.S.A. § 309.1 provides:

Probation officers heretofore or hereafter appointed by any court of record of this Commonwealth are hereby declared to be peace officers, and shall have police powers and authority throughout the Commonwealth to arrest with or without warrant, writ, rule or process, any person on probation or parole under the supervision of said court for failing to report as required by the terms of his probation or parole or for any other violation of his probation or parole.

61 Pa.S.A. § 309.1 (emphasis added).

Appellant attempts to distinguish between the arrest of a parolee on a technical parole violation and the arrest of a parolee on a criminal parole violation, implying that a warrantless arrest may only be made to effectuate the latter. The plain wording of the statute contains no such restriction or distinction, and we have neither the authority nor the inclination to engraft such a restriction or distinction upon it. See Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987). Indeed, the sole example given by the act plainly involves a technical violation rather than a criminal violation, i.e. failure to report.

Appellant further argues that a warrant or court order is required in order for a county parole/probation officer to order or authorize another law enforcement officer to arrest a parole violator. Again, we cannot agree.

Deputy sheriffs in Pennsylvania are statutorily authorized to come to the assistance of county parole/probation officers. The powers and duties of deputy sheriffs are defined in 16 Pa.S.A. § 1216:

Peace Officers; power and duties.
Constables, county detectives, sheriffs, deputy sheriffs, waterways patrolmen and game protectors shall perform all those duties authorized or imposed on them by statute.

16 Pa.S.A. § 1216 (emphasis added).

One of the duties “authorized or imposed” on deputy sheriffs by statute is to maintain the peace and dignity of this Commonwealth. Section 8952 provides in pertinent part:

Primary municipal police jurisdiction.
Any duly employed municipal police officer shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office anywhere within his primary jurisdiction as to:
(2) Any other event that occurs within his primary jurisdiction and which reasonably requires action on the part of the police in order to preserve, protect or defend persons or property or to otherwise maintain the peace and dignity of this Commonwealth.

42 Pa.C.S.A. § 8952 (emphasis added).

This broad grant of statutory authority plainly includes the authority to aid a parole/probation officer in effectuating a warrantless arrest of a parole violator. Any doubt as to the deputy sheriffs’ authority in this respect is removed by the provisions of 42 Pa.C.S.A. § 8953 which provides in pertinent part:

Statewide municipal police jurisdiction
(a) General Rule. — Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
******
(3) Where the officer has been requested to aid or assist any local, State or Federal law enforcement officer or park police officer or otherwise has probable cause to believe that the other officer is in need of aid or assistance.

42 Pa.C.S.A. § 8953(a)(3) (emphasis added). Deputy sheriffs have express authority to come to the aid of county parole/probation officers outside of their own jurisdiction. Obviously, the broad grant in Section 8952 includes such authority within their own jurisdiction.

In the instant case, the county parole/probation officers who had requested assistance were not physically present when appellant was arrested. Rather, the deputy sheriffs were asked to attempt to effectuate appellant’s arrest before the parole/probation officers arrived because appellant had successfully evaded arrest previously. We do not consider the parole and probation officer’s physical absence to be a material consideration. Under the circumstances, we have no doubt that the “assistance” rendered did not exceed that authorized and intended by the legislature. We find that the county parole/probation officers not only acted properly but commendably in handling this situation. Hence, appellant’s contention fails.

II. SUFFICIENCY OF THE EVIDENCE

Appellant contends that the evidence was not sufficient to establish the degree of resistance required to support a verdict of guilty to the offense of resisting arrest. Appellant argues that he did not resist arrest, but merely attempted to flee from the officers who were about to arrest him. Appellant asserts that he committed no physical act which could have exposed the officers to a substantial risk of danger or bodily injury which is required under 18 Pa.C.S.A. § 5104. For the reasons that follow, we find appellant’s contention to be without merit.

The standard by which we review a challenge to the sufficiency of the evidence is well established.

In reviewing the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. Where the evidence is conflicting, it is the province of the fact finder to determine credibility; it is the prerogative of the fact finder to believe all, part, or none of the evidence presented.

Commonwealth v. Pearsall, 368 Pa.Super. 327, 329-330, 534 A.2d 106, 108 (1987) (citations omitted).

The degree of resistance necessary to support a charge of resisting arrest is set forth in 18 Pa.C.S.A. § 5104 which provides in pertinent part:

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

18 Pa.C.S.A. § 5104. Appellant asserts that the act of fleeing from an arrest is not a criminal act. During the first attempt by Officer Metzger and the two other county parole/probation officers, appellant did simply flee from arrest. However, when appellant was finally arrested by the local deputy sheriffs, appellant did more than simply flee from arrest.

When the local deputy sheriffs arrived to arrest appellant, he ran into the middle of Lycoming Creek and attempted to swim downstream with the current. The water level of the creek was waist deep and, because it was early spring, the water temperature was frigid. The creek had a slippery streambed and a swift current. Two of the deputy sheriffs went into the creek after appellant. One officer, after three unsuccessful attempts, managed to get a grip of appellant who was kicking and struggling to get away. When the other officer then managed to grab appellant’s arm, appellant went limp, pulled his feet underneath him, refused to walk, and became rigid. As a result, the two officers literally had to carry him to the bank, losing their balance a few times along the way. The two officers asked appellant to walk, but he refused. When they were within four to five feet of the bank, the two officers who were waiting on the shore, jumped in and together the four officers carried appellant up to the bank where appellant was then handcuffed.

Appellant argues that there was no evidence presented that he, at any time, assaulted or attempted to assault the officers or that he had a weapon. Appellant claims that he was simply fleeing from arrest and that no evidence was introduced which demonstrated that he created a substantial risk of bodily injury to the deputy sheriffs. His arguable claim is inapposite.

The statute does not require serious bodily injury. Nor does it require actual injury to the arresting officer. Rather, sufficient resistance is established if the arrestee’s actions created a substantial risk of bodily injury to the arresting officer. See Commonwealth v. Butler, 354 Pa.Super. 533, 512 A.2d 667 (1986). Appellant’s struggle with the two deputies in the middle of a frigid stream with a rocky uneven bed was sufficient to meet that requirement.

Moreover, the statute includes the disjunctive phrase “or employs means justifying or requiring substantial force to overcome resistance.” Appellant’s actions unquestionably fall within the ambit of this portion of the statute. It took four deputy sheriffs to finally subdue appellant. Substantial force was thus required to overcome appellant’s resistance to the arrest. Commonwealth v. Butler, supra; Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985); Commonwealth v. Lumpkins, 324 Pa.Super. 8, 471 A.2d 96 (1984).

In light of the foregoing, we find the evidence sufficient to support the conviction of resisting arrest. Hence, appellant’s second contention is found to be without merit.

III. REFERENCE TO PRIOR CRIMINAL CONDUCT/INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant’s third and fourth contentions are predicated upon the same argument and therefore will be treated together. Appellant contends that an improper reference was made of his prior criminal conduct which compels the grant of a new trial. Appellant further contends that trial counsel was ineffective for failing to object to this improper reference in a timely manner and preserve this issue in post-trial motions. We find both of appellant’s contentions meritless.

Appellant, in his brief, directs us to the following exchange between the prosecutor and Deputy Sheriff Matthews:

Q. Now, at that point in time, back at noontime on April 27, 1987, when they told you they needed assistance in regard to Stephen Lyons, did you know the individual they were referring to?
A. Yes, I did,
Q. And how long had you known Mr. Lyons?
A. I would say between two or three years prior to that time.
Q. During the course of that two to three years, can you tell me is [sic] you can recall approximately how many face-to-face in person contacts you had had with Mr. Lyons?
A. I would say between thirty and fifty.

(N.T. 10/14/87 at 33). No objection was made to this exchange at trial. Appellant, however, claims that this reference implies prior criminal conduct, was highly prejudicial, and necessitates the grant of a new trial.

The law is well established that the prosecution may not introduce evidence of a defendant’s prior criminal conduct as substantive evidence of his or her guilt of the present charge. Such evidence predisposes the jury and strips the defendant of innocence. However, our Supreme Court has stated that “[t]o warrant a characterization as prejudicial the testimony must convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense.” Commonwealth v. Carpenter, 511 Pa. 429, 437, 515 A.2d 531, 535 (1986) (citations omitted) (emphasis omitted). The reference challenged here warrants no such characterization.

The witness was not questioned where those contacts with appellant occurred or under what circumstances. The witness testified merely that he knew appellant, and had between thirty and fifty previous contacts with him. No criminal activity was alluded to by this testimony. Rather, to conclude that appellant had committed prior crimes from this testimony, the jury would have had to indulge in gross speculation. See Commonwealth v. Starks, 484 Pa. 399, 409, 399 A.2d 353, 357 (1979) (“the testimony of Detective Porter [that he knew the appellant from ‘other contacts’] does not expressly or by reasonable implication convey the impression of prior criminal activity____”).

Because an objection could not have been properly sustained, there is no merit to appellant’s contention of error, and trial counsel cannot be deemed ineffective for failing to object or preserve this issue. See Commonwealth v. Carelli, 377 Pa.Super. 117, 546 A.2d 1185 (1988); Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987).

CONCLUSION

Based upon the foregoing, the judgment of sentence is affirmed.

      . 18 Pa.C.S.A. § 5104.

      . From the record, it appears that appellant’s mother lived on the second floor above a bar in a building called Powy’s Park.

      . Both appellant and the Commonwealth agree that the deputy sheriffs and the parole/probation officers are law enforcement officers.

      . Appellant argues that his assertions are supported by the following excerpt from our opinion in Commonwealth v. Pincavitch, 206 Pa.Super. 539, 214 A.2d 280 (1965):
      ... [I]t is only parole officers who are specifically given the right to arrest parolees without a warrant for visible violations of parole____ We find no authority for general police officers to do so.

        Commonwealth v. Pincavitch, supra, 206 Pa.Superior Ct. at 543, 214 A.2d at 282. Appellant’s reliance is misplaced.
      In Commonwealth v. Pincavitch, supra, the defendant, a parolee, was arrested by a police officer without a warrant for the summary offense of underage drinking solely because the arresting officer smelled alcohol on the defendant’s breath. This Court, invalidating the arrest, merely noted in passing that the fact that the defendant was a parolee was not relevant as he had not been declared a parole violator and was not being arrested for a parole violation.
      The instant case may be easily distinguished. The deputy sheriffs were assisting the county parole/probation officers in effectuating the arrest of appellant, a properly declared parole violator, who had successfully evaded previous attempts to arrest him. Here, unlike the case in Pincavitch, the fact that appellant was a parolee and was in violation of the conditions of parole is not merely relevant, the violation of parole was the sole reason of the arrest. Hence, appellant’s reliance on Commonwealth v. Pincavitch, supra, is misplaced and his argument fails.


author: PER CURIAM:

text:
    555 A.2d 926
    Kathleen HALL and Wayne Hall, Appellants, v. Lonna Sue REEB and Earl L. Reeb, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1989.
    Filed March 15, 1989.
    Stanley M. Stein, Pittsburgh, for appellants.
    Charles A. Buechel, Jr., Pittsburgh, for appellees.
    Before CAVANAUGH, DEL SOLE and MONTGOMERY, JJ.
   PER CURIAM:

Plaintiff-Appellants appeal from the order entered by the Honorable Bernard J. McGowan quashing their appeal from the award entered in favor of the Defendant-Appellees by a board of arbitrators. For the reasons which follow, we reverse the order.

The Halls initiated the underlying action to recover damages allegedly sustained when the automobile being driven by Kathleen Hall was involved in a collision with the automobile being driven by Lonna Sue Reeb. In the Plaintiff-Appellants’ complaint, it was alleged that Kathleen Hall suffered an injury which was permanent in nature as a result of the collision. At a pre-trial conciliation, Judge McGowan, over objection by counsel for the Halls, ordered the case transferred to arbitration. The Halls’ motion requesting that Judge McGowan reconsider his order was denied. Subsequently, the Halls failed to appear at the scheduled arbitration hearing and, accordingly, an award was entered in favor of the Reebs. As previously noted, the Halls’ timely appeal from that award was quashed by order of Judge McGowan thereby prompting the instant appeal.

In quashing the Halls' appeal for trial de novo, Judge McGowan framed the issue as “whether or not a party ordered to Arbitration over her or his objection has the right to deliberately circumvent the transfer order by not appearing before the Arbitrators and then[,] upon entry of an ex parte[sic] default award against the party, appeal the same to the Civil Division for a Judge and jury trial.” Trial Court opinion at 3. Parenthetically, we note that the Plaintiff-Appellants admit in their brief to this Court that “[b]y prior understanding between counsel so that the defense would not have to unnecessarily produce witnesses, Plaintiffs did not appear at the hearing____” Brief for Plaintiff-Appellants at 7. The Halls assert that despite their conduct, Judge McGowan, in the absence of a rule or legislative pronouncement, was without authority to quash their appeal for a de novo trial.

We begin our analysis with a review of the statute pertaining to compulsory arbitration, 42 Pa.C.S. § 7361. There, certain civil matters are required to “first be submitted to and heard by a board of three members of the bar of the court.” 42 Pa.C.S. § 7361(a). The types of civil matters to which subsection (a) applies are set forth in subsection (b) and are not critical to our inquiry. The process by which a party may appeal an award from the board of arbitrators is set forth clearly and unambiguously in 42 Pa.C.S. § 7361(d) which, in pertinent part, provides that “[a]ny party to a matter shall have the right to appeal for trial de novo in the court. The party who takes the appeal shall pay such amount or proportion of fees and costs and shall comply with such other procedures as shall be prescribed by general rules.”

Rules 1301-1314 of the Pennsylvania Rules of Civil Procedure, 42 Pa.C.S., apply to actions submitted to compulsory arbitration. Pa.R.C.P. 1308 specifies the steps necessary to perfect an appeal from the arbitrators’ award. These prerequisites must be satisfied, as they are jurisdictional. Pullium, v. Laurel School District, 316 Pa.Super. 339, 462 A.2d 1380 (1983). Pa.R.C.P. 1308(a) requires that “[a]n appeal from an award shall be taken by” filing the appropriate notice of appeal not more than thirty days after entry of the award, and payment of the arbitrators’ compensation to the prothonotary, unless the court permits the appellant to proceed in forma pauperis. An examination of the record certified to this Court reveals that the Halls complied with the mandates of Pa.R.C.P. 1308(a) in perfecting their appeal.

Additionally, Pa.R.C.P. 1303, pertaining to the hearing and notice thereof, provides that “[wjhen the board is convened for hearing, if one party is ready and the other is not the case shall proceed and the arbitrators shall make an award unless the court orders a continuance.” Pa.R.C.P. 1303(b). In discussing this particular subsection, the Explanatory Notes comment:

A problem frequently encountered in present practice is the failure of a party to appear at the hearing. Present practice does not permit a nonsuit of a non-appearing plaintiff. Indeed a nonsuit would be impractical, since there is no machinery by which a nonsuit could be removed by the arbitrators. Rule 1303(b) provides that if a plaintiff does not appear, the arbitrators shall, unless the court has ordered a continuance, proceed to enter an award. Similarly, if a defendant does not appear, and the court has not ordered a continuance, the arbitrators proceed to hear the matter and enter an award. The remedy for dissatisfaction with the award is to appeal.

We do not, under any circumstances, countenance the temerity of any member of the bar who instructs or encourages a party to intentionally fail to appear at a scheduled arbitration hearing so as to exercise an “automatic right” to appeal the arbitrators’ award to the Court of Common Pleas for trial de novo. We share Judge McGowan’s frustration since such abuses of the arbitration system impede the judiciary’s ability to expeditiously dispose of pending litigation which is the overall objective of compulsory arbitration. Our decision today is not meant to foreclose the possibility that a Rule of Civil Procedure could, if adopted, result in the waiver of the right to appeal. Possibly, the Civil Procedural Rules Committee could examine this issue. Nevertheless, we conclude that the Halls complied with all the necessary steps in perfecting their appeal and that Judge McGowan erred in quashing their appeal for trial de novo. Pa.R.C.P. 1303(b), 1308.

The order is reversed and the case remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

      . Judge McGowan ordered the case transferred to arbitration pursuant to Allegheny County local rule 212 which provides: "VIII. The judge presiding at the pre-trial conciliation conference, ... shall transfer to arbitrators all cases where the amount actually in controversy does not exceed the jurisdictional limits____”

      . In light of our disposition of this case, we need not reach the second issue presented by the Halls which posits that Judge McGowan abused his discretion by transferring the case, sua sponte, to arbitration.


author: DEL SOLE, Judge:

text:
    555 A.2d 928
    Marvin J. APPLE, Appellant, v. Thelma GRACE, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1988.
    Filed March 15, 1989.
    Joel E. Hausman, Pittsburgh, for appellant.
    Lynn MacBeth, Pittsburgh, for appellee.
    Before BROSKY, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

Marvin Apple, Appellant, filed a Complaint against Thelma Grace, Appellee, for unpaid rents due under a residential lease agreement. Apple also filed a Certificate of Service of the Complaint. When Apple received no responsive pleading from Grace, he entered a Default Judgment. Grace then presented a Petition to Open and/or Strike the Default Judgment. The trial court ordered the Default Judgment be stricken. We find that the trial court erred in striking the Default Judgment and reverse.

The trial court struck the Default Judgment because it found that Apple had not met the requirements of Pa. Rule of Civil Procedure 237.1 “Notice of Praecipe for Entry of Default Judgment.” Rule 237.1 reads, in pertinent part:

(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe.

The trial court found that Apple did furnish certification that such notice was given, along with a copy of the notice itself. However, the court found that the certification was insufficient because it did not set forth when or how the notice was furnished. Apple’s certification read: “I certify that Notice of the entry of this judgment was given pursuant to Pa.R.C.P. 237.1. A copy of said Notice is Attached.” (It should be noted that the form of the notice used by Apple was in compliance with Rule 237.1 and is not at issue here.)

Apple appeals from the trial court’s order and argues that the certification was sufficient. We agree. We can find no basis in the caselaw for the strict requirements demanded by the trial court. The explanatory note to Rule 237.1 reads:

Method of Notice
The notice of intention to enter default judgment may be mailed or delivered. Registered or certified mail is not required.

There is no requirement to set forth when or how the notice was furnished. Rule 237.1 “requires only that the notice be mailed or delivered to the party against whom judgment is to be entered. The explanatory note expressly states that simply mailing the notice constitutes compliance with the rule. Notice by certified mail is unnecessary.” Central Penn Nat. Bank v. Williams, 362 Pa.Super. 229, 234, 523 A.2d 1166 (1987). In Central Penn Nat. Bank v. Williams, this court found that Rule 237.1 does not require that the defaulting party receive actual notice of the intention to file the Praecipe for Entry of Default Judgment.

The stringent requirements which the trial court demands from Apple come not from cases involving Praecipes for Entry of Default Judgments, but from cases involving the service of a Summons or a Complaint. Neff v. Tribune Printing Company, 421 Pa. 122, 218 A.2d 756 (1966); Sharp v. Valley Forge Medical Center, 422 Pa. 124, 221 A.2d 185 (1966). The trial court’s reliance on these cases is in error.

Order of the trial court reversed. Case remanded for disposition of the Rule to show cause why judgment should not be opened. Jurisdiction relinquished.


text:
    555 A.2d 930
    COMMONWEALTH of Pennsylvania v. Joseph A. CIOTTO, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1988.
    Filed March 13, 1989.

      David H. Acker, New Castle, for appellant.
    Angelo Papa, Assistant District Attorney, New Castle, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and KELLY, JJ.
   KELLY, Judge:

Appellant, Joseph Ciotto, appeals from judgment of sentence imposed following his jury trial convictions of terroristic threats and harassment by communication relating to a series of abusive telephone calls to his estranged wife. We vacate and remand for the filing of post-verdict motions nunc pro tunc.

The relevant facts are not in dispute. Appellant was found guilty of the above offenses on November 20, 1987. On November 30, 1987, appellant’s court appointed counsel filed post-verdict motions. However, because counsel failed to file any brief in support of the post-verdict motions, they were summarily denied on February 2, 1988. On February 10, 1988, prior counsel withdrew and new counsel was appointed to represent appellant. New counsel then moved to have the February 2, 1988 order summarily denying the post-verdict motions vacated based upon prior counsel’s ineffectiveness with respect to the procedural default. New counsel sought allowance of an opportunity to brief the previously filed motions and argue them on their merits. The prosecuting attorney specifically noted in writing that he did not oppose the motion. Nonetheless, the motion was denied. Appellant was then sentenced to a term of 30 days to one year and 364 days and a concurrent term of 30 days to one year. No motion to modify sentence was filed. Timely notice of appeal, however, was filed.

On appeal the sole issue raised is whether appellant is entitled to pursue post-verdict motions nunc pro tunc based on original counsel's procedural default in failing to file a brief in support of post-verdict motions. Appellant contends that the failure of his court appointed counsel to follow procedural rules cannot constitutionally be permitted to deny him his right to a direct appeal. The Commonwealth responds that although the motions were denied without benefit of briefs or arguments, the opinion of the trial court indicates that they were disposed of on their merits.

The trial court opinion provides in pertinent part:

From November 30, 1987 until March 4, 1988 nothing was filed with this court and no communication was made to the court regarding the issues raised by the defendant. Had the defense in some way indicated their desire to make a reply, albeit tardy, the result may have been different. We recollect even contacting the defense to gain information as to a forthcoming response but to no avail. In the interest of the finality of judgments and noting nothing on the face of the original petition to suggest merit, we dismissed the petition. For the same reasons we denied the request to rescind the dismissal order.

Trial Court Opinion at 2. (Emphasis added).

We find that appellant was effectively denied his right to a direct appeal when original counsel failed to brief or argue timely filed post-verdict motions. We reject the Commonwealth’s assertion that the trial court properly disposed of the post-verdict motions on their merits. Appellant had a right to the zealous advocacy of competent counsel or the protections of formal withdrawal procedures. Here there was neither zealous advocacy nor a proper formal withdrawal. Cf. Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). In similar contexts, we have held that the trial court may not properly pass on the merits of issues raised by a defendant until the defendant has had a full, fair, and counselled opportunity to present his claims. See Commonwealth v. Harris, 381 Pa.Super. 206, 216, 553 A.2d 428, 433 (1989); Commonwealth v. Logan, 370 Pa.Super. 348, 350, 536 A.2d 439, 440 (1988). Appellant had no such opportunity. Consequently we find the disposition of the claims on their merits to be fatally flawed.

When a defendant establishes that counsel’s ineffective assistance denied him entirely his right to a direct appeal, he is entitled to a direct appeal nunc pro tunc without regard to his ability to establish the merit of the issues which he seeks to raise on direct appeal. See Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982). Likewise, we hold that when counsel’s procedural default effectively waives all post-verdict motions, appellant is entitled to pursue post-verdict motions nunc pro tunc, without regard to his ability to demonstrate the merit of the claims waived by the default.

Conclusion

Judgment of sentence is vacated. The case is remanded for consideration of post-verdict motions nunc pro tunc.

      . We note generally that dismissal of post-verdict motions on the basis of a procedural default in a criminal case, like a similar dismissal of a criminal appeal, improperly places the entire burden of counsel’s errors on the powerless client, rather than the offending counsel. The more appropriate course in such cases is to direct counsel to comply with the procedural mandate on pain of contempt. See Commonwealth v. Ely, 381 Pa.Super. 510, 515, 554 A.2d 118, 121 (1989); Commonwealth v. Osteen, 381 Pa.Super. 120, 125, 552 A.2d 1124, 1126 (1989).


text:
    555 A.2d 931
    COMMONWEALTH of Pennsylvania v. Michael J. RUDINSKI, Appellant.
    Superior Court of Pennsylvania.
    Dec. 8, 1988.
    Filed Feb. 1, 1989.
    Reargument Denied April 3, 1989.
    Petition for Allowance of Appeal Denied Sept. 7, 1989.
    John P. Campana, Williamsport, for appellant.

      Robert W. Ferrell, Assistant District Attorney, Williams-port, for Com.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

Appellant, Michael J. Rudinski, appeals from a judgment of sentence imposing a fine of $15.00 for violation of a Williamsport city ordinance governing overtime parking and a $15.00 fine for violation of 75 Pa.C.S.A. § 3353(a)(3), parking in restricted areas. Appellant contends that: (1) the trial court erred in refusing to arrest judgment; and (2) the trial court violated appellant’s constitutional right to due process. For reasons discussed below, we affirm the determination of the trial court.

On June 1, 1987, in the City of Williamsport, a parking ticket for parking in a restricted zone was issued to appellant’s car. Subsequently, law enforcement authorities issued a second parking ticket to appellant’s vehicle for overtime parking. When the tickets were not paid, appellant received citations pursuant to Pa.R.Crim.P. 95 which permits law enforcement officials to institute criminal proceedings by issuing a citation following non-payment of a parking ticket. A District Justice found appellant guilty of overtime parking, City Ordinance 521.02, and parking in restricted areas, 75 Pa.C.S.A. § 3353(a)(3). The case was subsequently heard de novo by the trial court, which found appellant guilty of all charges. This appeal follows denial of appellant's motions in arrest of judgment and for new trial.

Appellant claims that the trial court erred in denying his motion in arrest of judgment and denied his right to due process when the Commonwealth did not prove beyond a reasonable doubt the identity of the perpetrator. Appellant contends that because the trial court permitted the Commonwealth to rely upon the presumption that an owner of an automobile parked it, the burden of proof has been unconstitutionally shifted to appellant to establish that he did not park the car. Appellant asserts that the Commonwealth was required to establish beyond a reasonable doubt: (1) the illegal parking of an automobile, and (2) the identity of the person parking the car; and cites Commonwealth v. Slaybaugh, 468 Pa. 618, 364 A.2d 687 (1976), in support of his argument that the presumption that the owner of a vehicle is responsible for parking violations is unconstitutional.

In Slaybaugh, our Supreme Court held that 75 P.S. § 1212 (repealed) was unconstitutional. The provision provided in pertinent part:

In any proceeding for a violation of the provisions of this act or any local ordinance, rule or regulation, the registration plate displayed on such vehicle or tractor shall be prima facie evidence that the owner of such vehicle was then operating the same____

75 P.S. § 1212 (repealed). While we agree with the Supreme Court’s holding in Slaybaugh, it has subsequently been applied exclusively to situations in which the presumption of ownership was used to convict a driver of a moving violation. See, e.g., Commonwealth v. Leaman, 255 Pa.Super. 481, 388 A.2d 330 (1978). In our opinion, the distinction between a moving violation and a parking violation is crucial to the resolution of the present matter.

Instantly, two parking tickets were issued to appellant’s vehicle. The Commonwealth presented no evidence that appellant actually parked the vehicle himself. Appellant urges that the imposition of liability to the owner without proof that he illegally parked the car violates appellant’s constitutional right to due process guaranteed under the United States Constitution. We disagree.

Preliminarily, we acknowledge that in criminal matters, the due process clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). In a series of United States Supreme Court cases, however, the high court carved out an exception to the general criminal due process considerations in the area of public welfare offenses. In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the Supreme Court characterized these regulations as being:

... in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize____ The accused, it he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably exact from one who assumed his responsibilities.

Id. at 255-256, 72 S.Ct. at 246, 96 L.Ed. at 296-297. “Violations of traffic regulations fall squarely within a proper classification of public welfare offenses.” Iowa City v. Nolan, 239 N.W.2d 102 (Iowa 1976), citing 33 Col.L.Rev. 55, 73, 77.

Because this is an issue of first impression for the appellate courts of this Commonwealth, we find other jurisdictions that have upheld the constitutionality of similar ordinances to be instructive in our disposition of this case. When upholding a Boston ordinance imposing liability for illegal parking on the car owner, the Supreme Court of Massachusetts provided:

As was pointed out in [Commonwealth v. Ober, 286 Mass. 25, 32, 189 N.E. 601, 603], “The inconvenience of keeping watch over parked vehicles to ascertain who in fact operates them would be impracticable, if not impossible, at a time when many vehicles are parked____ [T]he rules and regulations of the Boston Traffic Commission ... were framed and intended to cover and make punishable any violation ... by the owner of any vehicle registered in his name____”
This doctrine is not impaired by Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288, or Lambert v. People of State of California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228, both of which recognize that many public welfare crimes that require no intent are valid.
The defendant argues that where the penalty is not minor, absence of a scienter requirement may result in a deprivation of property without due process of law____ In the case at bar, the penalty of a fine not exceeding $20 is very definitely minor____ This is but another instance where the penalty is “relatively small, and conviction does no grave damage to an offender’s reputation.” Morissette v. United States, supra, 342 U.S. [at] 256, 72 S.Ct. [at] 246.

Commonwealth v. Minicost Car Rental, Inc., 354 Mass. 746, 242 N.E.2d 411 (1968).

Particularly helpful is the following excerpt from an opinion of the Supreme Court of Missouri:

The purpose of ordinances regulating parking is to permit the public streets to be used to their best advantage by the public. The maximum penalty is a relatively small fine and no potential incarceration. There is not public stigma attached to receiving a parking ticket and it has no effect upon one’s driver’s license or insurance cost. If the ticket is paid promptly, no court appearance is required. The movement of automobile traffic is a major problem in the cities of this state. Cars illegally parked contribute substantially to that problem and the enforcement of parking regulations is difficult and expensive. Most cars are driven by the owner, some member of the owner’s family, or his employee or lessee and with the owner’s consent. An ordinance imposing liability for the parking violation fine on the owner as well as the driver may very well result in fewer violations and thereby assist in the reduction of traffic problems.

City of Kansas City v. Hertz Corp., 499 S.W.2d 449, 453 (1973).

The parking prohibitions in the instant case are clearly within a permissible regulation in the interest of permitting the public to use public streets to their best advantage. Moreover, the penalty involved is minor and their is no public stigma attached to receiving* a parking ticket. We find that under the public welfare doctrine, it is clear that prima facie strict criminal responsibility may be imposed upon the registered owner of an illegally parked vehicle. Therefore, by proving (1) the existence of an illegally parked vehicle, (2) registered in the name of the defendant, the Commonwealth can make out a prima facie case for imposing responsibility for the violation upon the vehicle’s owner. See Iowa City, supra. This standard, nonetheless, permits an owner to come forward with evidence that someone else was operating his vehicle in order to rebut the inference that the registered owner is responsible for a vehicle’s operation. “In the area of public welfare offenses, such burden shifting is not constitutionally infirm.” Id., citing U.S. v. Park, 421 U.S. 658, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975). We emphasize that the result which appellant advocates would create utter chaos for our municipalities, law enforcement officials and in our court system and, therefore, as a practical matter, we refuse to impose a requirement of identifying the driver in parking violation cases.

The record in the present case indicates that the Commonwealth established that a vehicle registered to appellant was illegally parked on two occasions. Accordingly, based upon the foregoing, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Moreover, we note that subsequent to Slaybaugh, supra, our legislature created 42 Pa.C.S.A. § 6143, which was "substantially a reenactment of [75 P.S. § 1212].” Official Source Note, 42 Pa.C.S.A. § 6143. The new rule was drafted in light of Slaybaugh and provided that:
      In any action or proceeding for the recovery of a civil penalty for an infraction of the provisions of any law relating to the ownership or operation of any conveyance by air, land or water or any game or fish law or any local ordinance, rule or regulation relating thereto, the registration number displayed on a conveyance shall sustain any inference that the person to whom the registration number was officially assigned is the owner of the conveyance and was then operating the conveyance.
      42 Pa.C.S.A. § 6143(a).
      The Rule, therefore, creates an inference that the owner of a vehicle was operating the vehicle for purposes of imposing a civil penalty for infractions of laws or local ordinances relating to the operation of a vehicle. Instantly, a municipality issued parking tickets to appellant’s vehicle. Our Rules of Criminal Procedure provide that:
      Political subdivisions may use parking tickets to inform defendants of parking violations and to offer defendants an opportunity to avoid criminal proceedings by paying an amount specified on the ticket. When a political subdivision does use parking tickets and a ticket has been handed to a defendant or placed on a vehicle windshield, a criminal proceeding shall be instituted only if the defendant fails to respond as requested on the ticket. In that event, the criminal proceeding shall be instituted by a law enforcement officer filing a citation with the proper issuing authority.
      Pa.R.Crim.P. 95(a). Important for our disposition, the Comment to Pa.R.Crim.P. 95 proclaims that a parking ticket “[i]s not a citation and does not constitute the instituting of a summary proceeding----” Arguably, the resolution of the instant matter did not become criminal until appellant chose not to pay the parking tickets. Therefore, at the outset, the penalty sought fell within the parameters of 42 Pa.C.S.A. § 6143 and proof needed to establish the parking violations enjoyed the benefit of the inference created by the statute.