author: TAMILIA, Judge:

text:
    535 A.2d 169
    COMMONWEALTH of Pennsylvania v. Paul DESABETINO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 13, 1987.
    Filed Dec. 24, 1987.

      Bruce A. Carsia, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com.
    Before TAMILIA, POPOVICH and CERCONE, JJ.
   TAMILIA, Judge:

By an Order dated May 5, 1987, appellant brings this appeal nunc pro tunc. The facts and procedure are as follows.

Appellant was charged on July 25, 1984 with three counts in connection with a July 26, 1983 robbery of an Allegheny County pharmacy. The counts included robbery, 18 Pa.C. S.A. § 3701(a)(1)(h), theft by unlawful taking, 18 Pa.C.S.A. § 3921(a), and criminal conspiracy, 18 Pa.C.S.A. § 903(a)(1). Although appellant had been arrested and charged with one count of robbery and one count of criminal conspiracy on July 28, 1983, the charges against him were dismissed on August 11, 1983 by a district justice because no witness could positively identify him at the hearing or at the photo array. An investigating grand jury which convened in February of 1984 concluded probable cause did exist from the record to warrant the filing of a criminal complaint against appellant and, accordingly, he was charged with the above. Appellant, on December 28, 1984, filed an omnibus motion and a motion to quash the information and to suppress statements. The motion to quash was denied on January 10, 1985, while the motion to suppress was withdrawn. Appellant pled not guilty and proceeded to trial. A jury, on January 17, 1985, returned a verdict of guilty at all three counts.

Trial counsel filed motions for new trial and in arrest of judgment on January 28, 1985; however, counsel then sought leave to withdraw and different counsel was appointed to represent the appellant. New counsel filed an additional post-verdict motion on May 29, 1985. Appellant then retained a third counsel to represent him and, on June 3, 1985, that counsel argued post-verdict motions. The motions were denied on July 9, 1985 and appellant was sentenced to serve ten (10) to twenty (20) years in prison for the robbery conviction and to serve five (5) to ten (10) years in prison for criminal conspiracy. After his motion to modify or reconsider sentence was denied, he appealed to Superior Court on August 23, 1985. This Court, on October 9, 1985, granted appellee’s motion to quash, based upon Commonwealth v. Green, 320 Pa.Super. 85, 466 A.2d 1074 (1983).

Appellant’s counsel then reargued post-trial motions nunc pro tunc; on January 31, 1986, the trial court denied the post-trial motions. A second appeal was filed with this Court on February 28, 1986. On June 3, 1986, the trial court filed an Opinion supporting the denial of the post-verdict motions. On September 8, 1986, the Superior Court dismissed appellant’s second appeal without prejudice to his rights under the Post Conviction Hearing Act. Appellant then took this appeal nunc pro tunc from the January 1986 Order as directed by Judge Robert Dauer in his Order dated May 5, 1987.

The facts surrounding the robbery are as follows. Shortly after 12:00 noon on July 26, 1983, two white men wearing stocking masks entered a pharmacy, pointed a gun at the owner, Molly Winek, and another person who was in the store, Patricia Harms, and ordered them to lie on the floor. The men demanded certain schedule 2 drugs. Winek directed the men to the drugs and the men took the drugs from the shelf and put them into a bag. The men then ordered the women to remain on the floor, face down, and the men fled the store.

James O’Toole, who was sitting in his car just outside the entrance to the pharmacy, observed the two men walk past his car and enter the pharmacy. During the robbery, O’Toole, still in his car, noticed some scuffling taking place in the store. He then observed the same two men as they ran out of the pharmacy and jumped into a waiting car. O’Toole then entered the store and called the police. Officer Richard Montgomery of the Hampton Police Department testified that he received a call pertaining to an armed robbery at the Apothecary Shop at approximately 12:20 that day. Upon his arrival at the scene, James O’Toole gave him a description of the car used in the robbery; O’Toole described it as a red and white Pontiac Ventura, with the top white and the bottom red. O’Toole had said the vehicle was headed south on Route 8. (At trial, O’Toole testified the car used was a red and white Pontiac Ventura, with a full white vinyl top and was “orangish” red in color, with a sports wheel on the front with a whitewall, and no hubcap in the back. He said he had given that description to the police.) Officer Montgomery broadcast the description of the car over the police radio. Irwin Michaels, who was listening to his police scanner and heard the report, observed a car fitting the description drive up Cole Avenue. Michaels testified he saw a white male with a heavy dark beard run up Cole Avenue. He then notified the police. Both parties agree that Michaels did not identify appellant as the man he saw running up the street.

Sergeant Thomas Duffy located the car and transported O’Toole from the pharmacy to the place where the car was located. O’Toole positively identified the vehicle as the one used in the robbery. The car was parked near the home of appellant’s sister, JoAnn DeSabetino, and was registered to John Theakston. Search warrants for both the car and JoAnn DeSabetino’s home were obtained and executed, however, no evidence was found.

On July 28, 1983, after the home of JoAnn DeSabetino was searched, O’Toole was shown a series of twenty-seven photographs at the police station. O’Toole narrowed those down to three or four who could possibly be the offender. O’Toole testified that eventually he was able to narrow the photos down to one which was of a man with a receding hairline. He said he did not recall whether he told the police of his degree of certainty that day, but later, at the grand jury proceeding, he had responded he was 75-80 per cent sure, and at trial he was 75-80 per cent certain appellant was the same man. He further testified he was not able to positively say at the time of the photo identification that the photograph was of the perpetrator because the photographs were old and black and white, and hairstyles were different when the photos were taken (T.T. 1/10/85, p. 114). He also explained the appellant’s appearance had changed since the robbery in that at the grand jury proceeding he was clean shaven and was dressed nicely, whereas at the robbery he had had a scrubby beard and had worn a sweatshirt. O’Toole said on the date of trial appellant’s hairline, sideburns “and so forth” were similar to his appearance at the robbery.

According to the findings of the grand jury, appellant, when questioned by police, admitted to having the car at the time of the robbery. He said he was at his sister JoAnn DeSabetino’s house on Cole Avenue. He further stated he and his wife had dropped off the car’s owner, John Theakston, on the north side of Pittsburgh that morning, and they had arrived at his sister’s house at approximately 12:20 p.m. He had left the house at around 12:30 and the car overheated so he left it at the corner of Kirk and Miller Avenues. Later, before the grand jury, appellant gave a different story which placed him, his wife and their son walking from the overheated car up Cole Avenue and arriving at his sister’s house at about 2:30 to 3:00 p.m. The grand jury based its finding that appellant participated in the robbery on: (1) appellant’s admitted possession of the vehicle used in the robbery at the time of the robbery; (2) witness identification of appellant as one of the robbers; and (3) appellant’s inconsistent explanations of his whereabouts at the time of the robbery.

On appeal, appellant first argues the trial court erred in submitting the case to the grand jury and in denying his motion to quash the information. That motion had averred the indictment was violative of appellant’s sixth amendment rights, the district attorney had failed to advise the grand jury that the exact charges had been previously dismissed, and no new evidence connecting appellant to the crime was submitted to the grand jury. He argues to this Court that this casé did not warrant a grand jury investigation. We disagree. Appellant relies on cases which were decided prior to the enactment of the Investigating Grand Jury Act, 42 Pa.C.S.A. § 4541, in late 1980. The act provides at section 4543 for an attorney for the Commonwealth to make application to the president judge of the appropriate court of common pleas for an Order directing that a county investigating grand jury be summoned, stating in such application that the convening of a county investigating grand jury is necessary because of the existence of criminal activity within the county which can best be fully investigated using the investigative resources of the grand jury. The act further provides:

§ 4550. Submission of investigations by attorney for the Commonwealth to investigating grand jury
(a) General rule. — Before submitting an investigation to the investigating grand jury the attorney for the Commonwealth shall submit a notice to the supervising judge. This notice shall allege that the matter in question should be brought to the attention of the investigating grand jury because the investigative resources of the grand jury are necessary for proper investigation. The notice shall allege that one or more of the investigative resources of the grand jury are required in order to adequately investigate the matter.
(b) Effect of notice. — After the attorney for the Commonwealth has filed the notice submitting a matter to the investigating grand jury any or all of the investigative resources of the investigating grand jury may be used as regards the investigation.

42 Pa.C.S.A. § 4550.

The Commonwealth acted pursuant to and within the parameters of the statute which provides more extensive powers to investigate criminal activity than were previously available at common law. Particularly the power to subpoena and the power to recommend contempt proceedings, grants of immunity and actions for perjury provide the ability to reach to the heart of a criminal matter from witnesses which would not be forthcoming under earlier grand jury proceedings or before a district justice. Although no new evidence was produced in a general sense, the information derived from that same evidence and the same witnesses was quantitatively and qualitatively superi- or, enabling a prima facie case to be established which might not have occurred otherwise. Appellant’s contention in this regard is, therefore, without merit.

Appellant next argues frequent references to the photographic array created an undue prejudice to him in that the references denote prior criminal activity. He says failure of counsel to object to these references and to the submission of the three file folders of photographs into evidence and their being shown to the jury constituted ineffective assistance of counsel.

Our Supreme Court recently said in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), counsel’s performance is to be evaluated in light of its reasonableness once it is determined the underlying claim is of arguable merit. In addition, the defendant must demonstrate in what way the ineffectiveness prejudiced him. See, e.g., Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Thus we must first examine the reasonableness of appellant’s claims above. In Commonwealth v. Brown, 511 Pa. 155, 512 A.2d 596 (1986), the Supreme Court said:

Once, therefore, a police photo file is used that fact can neither be denied nor obviated. It is part of the case and we must accept the fact that there is a possible prejudice. It is here that we must rely upon the common sense of the jurors, their commitment to their oath, fundamental fairness and the implacable logic that the mere possession by the police of one’s photo does not prove a prior conviction or the present accusation.
Given that, police photo files are an absolute necessity for the detection of crime, we must accept that where used, the jury can be instructed and will respond to a definitive charge by the court that possession by the police of one’s picture, of itself, proves no accusation, is irrelevant to any consideration before them, and is not inconsistent with innocence.
The rationale of our previous decisions are not here altered. Previous conviction is not now, as heretofore, an argument that may be used to bolster an accusation. Hence, neither a reference nor an argument may be made from the existence of police photo files that indicate that they imply or suggest a previous record of conviction. Where used in evidence the court shall charge the jury, when requested by a defendant, that because one’s photo is in the possession of the police does not prove a previous conviction, and suggests no more than that there was a previous police contact, the reason for which, is not known and has no bearing on the issues before them.

Id., 511 Pa. at 161-163, 512 A.2d at 599-600.

On the basis of Brown, supra, we find no merit to the underlying claims of ineffectiveness asserted in appellant’s brief. We also note that while the failure of appellant’s counsel to request that the jury be charged as above may have constituted ineffective assistance of counsel, the matter has not been preserved for our review.

The third issue raised by appellant is that counsel was ineffective for failure to request a cautionary instruction on identification testimony or to object to the court’s failure to so charge the jury. In support of this argument, he relies on Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954). The Supreme Court, in Kloiber, said:

[WJhere the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution.

Id., 378 Pa. at 424, 106 A.2d at 826-27. We agree with the trial court’s Opinion that the identification testimony of the witness O’Toole was consistent throughout. “[H]is testimony was that at the photographic array, at the preliminary hearing and at trial, he was '75% to 80% sure’ that defendant was the man he saw leaving the pharmacy.’’ Slip Op., Dauer, J., 5/29/86, p. 4. Moreover, he testified he was in a position to clearly observe the appellant as he entered the store; the time was around 12:00 noon. We conclude that because the witness had a good opportunity for positive identification and his identifications were not weakened by prior failures to identify appellant or by cross-examination, appellant’s contention is without merit. See Commonwealth v. Starkes, 268 Pa.Super. 108, 407 A.2d 853 (1979). Additionally, as the jury was made aware of the degree of the witness’ certitude, a Kloiber charge was not necessary and its absence did not, therefore, result in prejudice to appellant.

Appellant’s fourth issue is that counsel was ineffective for failure to file a pre-trial motion to suppress identification testimony, since pre-trial identification procedures were unduly suggestive. We agree with the trial judge that the pre-trial procedure was not unduly suggestive and we, accordingly, do not find merit to appellant’s underlying claim. The trial court said:

It must be recalled that the indentification [sic] testimony of the witness O’Toole was consistent throughout: his testimony was that at the photographic array, at the preliminary hearing and at trial, he was '75% to 80% sure’ defendant was the man he saw leaving the pharmacy. O’Toole’s testimony at trial concerning the photographic array contains no indication the procedure was in any way suggestive. Similarly, nothing in the record indicates any undue suggestiveness surrounded the confrontation at the preliminary hearing. Indentification [sic] derived from a pre-trial procedure will be inadmissible if it was obtained from a procedure so impermissibly suggestive and conducive to irreparable mistaken identity as to deny the accused of due process. Commonwealth v. Voss, 333 Pa.Super. 331, 482 A.2d 593 (1984). Even if defendant’s complaint concerning the propriety of the identification procedure had been preserved by the filing of a pre-trial motion to suppress or by objection at trial, which it has not, the complaint would be, as it is, without merit.

Slip Op., 5/29/86, p. 4-5.

Appellant also avers the evidence was insufficient to support the guilty verdict. He bases this claim on O’Toole’s failure to “positively” identify him, and on searches of the appellant’s home, his sister’s home and the car involved which produced none of the stolen drugs. Our scope of review in evaluating claims based on the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. Commonwealth v. Griscavage, 336 Pa.Super. 141, 485 A.2d 470 (1984); Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979). Guilt beyond a reasonable doubt can be shown wholly by circumstantial evidence. Commonwealth v. Shirey, 343 Pa.Super. 189, 494 A.2d 420 (1985); Commonwealth v. Alvarado, 333 Pa.Super. 63, 481 A.2d 1223 (1984). A thorough review of the record in this case reveals ample evidence upon which appellant could have been convicted.

Appellant’s last issue is that the sentence is excessive. Sentencing is within the sound discretion of the court and absent an abuse of discretion will not be disturbed. Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760 (1986). Appellant was sentenced for both robbery, a first degree felony, and criminal conspiracy, a second degree felony. See 18 Pa.C.S.A. § 3701(b) and 18 Pa.C.S.A. § 905(a). Title 18 Pa.C.S.A. § 106(b)(2) and (b)(3) provide that a person convicted of a felony of the first degree may be sentenced to a term of imprisonment, the maximum of which is more than ten years, while a person convicted of a felony of the second degree may be sentenced to a term of imprisonment, the maximum of which is not more than ten years. Appellant was sentenced to serve ten (10) to twenty (20) years in prison for the robbery conviction and five (5) to ten (10) years in prison for criminal conspiracy. Thus this sentence was within the statutory maximum.

As this Court acknowledged in Simpson, supra, “[i]n order to be considered an abuse of discretion, a sentence must exceed the statutory limits or be manifestly excessive.” Id., 353 Pa.Superior Ct. at 477, 510 A.2d at 761-62. Appellant was, therefore, sentenced within the confines of the law and we find no manifest abuse of discretion.

Appellant contends the court erred in sentencing him outside the minimum and aggravated ranges of the sentencing guidelines. This Court recognized in Commonwealth v. Terrizzi, 348 Pa.Super. 607, 502 A.2d 711 (1985):

In Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), the Supreme Court held that the trial court must state the reasons for its sentence on the record, as such a statement is ‘invaluable’ in determining ‘whether the sentence imposed was based upon accurate, sufficient and proper information.’ Id., 474 Pa. at 131, 377 A.2d at 148. In addition, the legislature has required a statement of reasons: ‘In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentence, a statement of the reason or reasons for the sentence imposed.’

Id., 348 Pa.Superior Ct. at 609, 502 A.2d at 712.

In Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984), we said:

In the instant case, the judge gave his reasons for imposing sentence at the sentencing proceedings, in the appellant’s presence, and his statement was recorded and ultimately transcribed as part of the record. We hold that the judge’s statement of reasons for the sentence made of record at sentencing in the defendant’s presence constitutes a ‘contemporaneous written statement’, within the meaning of the act. The purpose of the contemporaneous written requirement would appear to be to advise the defendant of the reasons for deviating from the guideline and provide a memorial for his use and for appellate review. It would be unreasonable to conclude that the legislature intended that the court do more than that when the sentence imposed is outside the sentencing guidelines.

Id., 328 Pa.Superior Ct. at 69, 476 A.2d at 457.

Here, Judge Dauer made the following remarks to appellant at sentencing which ultimately became part of the sentencing transcript:

The Court has taken into consideration in relating your sentence the information contained in the presentence reports that were furnished to me by the Bureau of Probation and Parole. Court has considered probation which it finds totally inappropriate in this case. The Court has considered the guidelines promulgated by the Pennsylvania Commission on Sentencing. It has also taken into account your previous record. Numerous felonies, felonies of first degree which the Commonwealth of Pennsylvania has made most serious crimes except murder.
As the District Attorney said, I can’t see any particular future for you except a future of crime. Judges are supposed to take into consideration not only what a person has done but what he could be. You have been given many chances by the Court — by different Courts, I should say. You have flunked them all.
As your attorney says, the Court very seldom goes outside the guidelines. The Pennsylvania Commission on Sentencing. Not that I agree with those, but we at least concur with what they are trying to do. However, there are some cases I feel the Court has no alternative. You don’t even fit into the aggravated range here as far as I am concerned. All these crimes. Your Attorney seems to think that perjury is not a serious crime. By definition, it is not a crime of violence, but I am not so sure if it doesn’t have the same effect as crimes of violence. I have talked to a couple of psychiatrists of people who have been burglarized, and they never get over it. Not as serious as the crime you have committed in this case. Robbery. I am sure the ladies that you had lying on the floor, I believe it was a pharmacy or a store of some sort, won’t ever get over it. They were in fear of their lives. I don’t know whether you have ever been placed in fear of your life, Mr. DeSabetino, but you did that to these ladies.
For those reasons, sir, at No. 8411001, at the first count charged with robbery, it is the sentence of this Court you be incarcerated in the State Correctional Institution at Pittsburgh for a period of ten to twenty years.
At the charge of criminal conspiracy, count number three, it is the sentence of this Court you be incarcerated in the State Correctional Institution for a period of five to ten years, that to be consecutive to the sentence imposed at count number one.
Count number two would merge for purposes of sentence.
Mr. DeSabetino, that is the maximum I can give you under the law, and it is the opinion of this Court you deserve it.

S.T., 7/23/85, p. 7-8. We find these statements to be adequate reasons for going outside the guidelines.

Last, appellant urges the court erred in sentencing him to serve the conspiracy time consecutive to the robbery time. We disagree. In Commonwealth v. Brachbill, 363 Pa.Super. 615, 527 A.2d 113 (1987), we said a conviction of criminal conspiracy does not merge into the offense which was the object of the conspiracy. Thus we find no error.

Judgment of sentence affirmed.

      . As to applying the guidelines in this case, they would not be made irrelevant by Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), as footnote 2 therein provides:
      2 This ruling is applicable to cases where the issue [of constitutionality] has been "properly preserved at all stages of adjudication up to and including any direct appeal.” Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).
      We note that the Supreme Court, in Sessoms, did not bar the trial court from considering the guidelines in determining an appropriate sentence. Also, Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404 (1987) provides at note 4, "Inasmuch as Samuels failed to preserve his challenge to the constitutionality of the sentencing guidelines, Commonwealth v. Sessoms, [supra ] is inapplicable."


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    535 A.2d 176
    COMMONWEALTH of Pennsylvania, Appellant, v. William R. TAIT, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 20, 1987.
    Filed Dec. 29, 1987.

      Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Com., appellant.
    Scott Waters, Williamsport, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

In this appeal, the Commonwealth challenges an order dismissing a charge of driving under the influence of alcohol. We reverse the order and reinstate the charge.

On November 3, 1985, appellee William Tait was arrested on a charge of driving under the influence. Pursuant to Pa.R.Crim.P. 130(b), he was promptly released from custody, and on November 7, 1985, a complaint was timely filed in accordance with Pa.R.Crim.P. 130(d). A preliminary hearing was held on February 10, 1986. Because the Commonwealth was unable to locate a witness, the charge was dismissed.

A second complaint was filed on February 26, 1986, and a summons was issued scheduling a second preliminary hearing. Appellee filed a motion to dismiss the refiled charge, and, following a hearing on that motion, the complaint was dismissed as having been filed in violation of the rule established in Commonwealth v. Hatcher, 345 Pa.Super. 481, 498 A.2d 925 (1985). Specifically, the court found that the dismissal of the first complaint was warranted because the Commonwealth had failed to establish a prima facie case at the preliminary hearing. Relying upon Hatcher, the Court concluded that the Commonwealth was barred from refiling the charge against appellee. The Commonwealth now questions the propriety of the order dismissing the second complaint.

Our disposition of this matter is controlled to a great extent by the recent decision of our Supreme Court in Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987), a decision which overruled Hatcher. Upon an examination of the circumstances at issue in Hatcher, our Supreme Court made clear that the Commonwealth is not barred from rearresting a defendant following a dismissal at the preliminary hearing, provided the statute of limitations has not expired. Revtai, 516 Pa. at 74, 532 A.2d at 11, citing, Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). Importantly, it was the belief of the Revtai Court that where an original charge of driving under the influence was dismissed, a defendant “stands in the same position as all other criminal defendants who are subjected to rearrest after a favorable preliminary hearing determination.” Id., citing, Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981). As for the applicability of Rule 130 to a rearrest situation, the Court stated: “[wjhere the arrest is for a crime which falls under Rule 130, the Rule will apply from the date of the rearrest.” Id. Noting that the complaint against Mr. Hatcher had been filed the same day as his rearrest, the Court found no violation of Rule 130(d). Id.

Under the rule of Revtai, the Commonwealth acted properly in refiling the charge against appellee. Instantly, the record indicates that the first complaint against appellee was dismissed at the preliminary hearing because the Commonwealth was unable to locate a witness and, thus, had failed to establish a prima facie case. Under such circumstances, the first complaint was a nullity and appellee was subject to-rearrest. See Genovese, 493 Pa. at 70, 425 A.2d at 370. See also, Revtai, 516 Pa. at —, 532 A.2d at 11.

We believe, however, that Revtai does not govern our resolution of the question regarding the application of Rule 130. As we noted above, the Revtai Court found no Rule 130 violation because the second complaint was filed the same day that Mr. Hatcher was rearrested. According to the record before us, the proceedings against appellee were initiated when the second complaint was filed; thereafter, appellee was “rearrested.” Given that this case proceeded on a complaint, not upon an arrest and the subsequent filing of a complaint, we conclude that Rule 130 is inapplicable to the present case. Consequently, we need not concern ourselves with the five day limitation of Rule 130(d).

Order reversed. The complaint is reinstated and the case is remanded for trial. Jurisdiction is relinquished.

      . Rule 130 provides as follows:
      (a) Except as provided in paragraphs (b) or (c), when a defendant has been arrested without a warrant in a court case, a complaint shall be filed against the defendánt and the defendant shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay.
      (b) When a defendant has been arrested without a warrant for driving under the influence of alcohol or controlled substances, the arresting officer may, when he deems it appropriate, promptly release the defendant from custody rather than taking him before the issuing authority.
      ******
      (d) When a defendant is released pursuant to paragraphs (b) or (c), a complaint shall be filed against the defendant within five (5) days of the defendant’s release. Thereafter, a summons, not a warrant of arrest, shall be issued and the case shall proceed as provided in Rule 110.
      Pa.R.Crim.P. 130.

      . See Pa.R.Crim.P. 101 (listing four means by which court proceedings are instituted). See also, Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (1976) (discussing alternative means of instituting proceedings pursuant to Rule 101).


author: BECK, Judge:

text:
    535 A.2d 178
    COMMONWEALTH of Pennsylvania v. Neil A. EBERT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 10, 1987.
    Filed Dec. 29, 1987.

      William Caprio, III, Williamsport, for appellant.
    Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Com.
    Before BECK, TAMILIA and POPOVICH, JJ.
   BECK, Judge:

This is an appeal by Neil A. Ebert from a judgment of sentence of eighteen months probation imposed by the Court of Common Pleas of Lycoming County. The issue is whether the Lycoming County district attorney violated appellant’s rights by denying appellant entry into the Accelerated Rehabilitative Disposition (ARD) program on account of appellant’s record as a juvenile offender. We agree with the trial court that the district attorney’s decision not to recommend appellant for ARD was a proper exercise of prosecutorial discretion. Accordingly, we affirm the judgment of sentence.

In 1986, appellant was charged with the theft of services valued at $177.46, a misdemeanor of the second degree. See 18 Pa.Cons.Stat.Ann. § 3926 (Purdon Supp.1987). He filed a request for ARD with the district attorney. The district attorney’s office responded by sending appellant a letter which stated that, “we find that you are ineligible for the program for the following reason(s): 1. Prior record.” R.R. at 9. Appellant had no criminal record as an adult. His record consisted exclusively of adjudications of delinquency imposed after he committed a series of burglaries as a juvenile.

Appellant filed a motion with the trial court in which he asked the court to order his admission into the ARD program. This motion was denied. Appellant was then tried by a jury and convicted of the theft of services charge. Following the denial of post-verdict motions, he appealed his judgment of sentence to this court. He raises two questions for review: whether the district attorney abused his discretion by preventing appellant from participating in the ARD program; and whether appellant was denied the equal protection of the law.

ARD is a pretrial disposition of certain cases through which the defendant can earn dismissal of the charges against him if he successfully completes a rehabilitation program. See generally Pa.Rs.Crim.P. 175-185. The district attorney is entrusted with the primary responsibility for determining who should benefit from this special opportunity to avoid prosecution. See Pa.R.Crim.P. 175. In Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985), the Pennsylvania Supreme Court established a general standard for reviewing the district attorney’s exercise of his discretion in selecting candidates for ARD. Lutz provides in relevant part:

What is relevant in moving a particular defendant’s admission to ARD is whether he is the type of person who can benefit from the treatment offered by an ARD program____
This judgment, in turn, rests in the sound discretion of the district attorney. Such discretion, of course, is not without limitation, and, as is indicated by Professor Davis in Discretionary Justice, may be usefully circumscribed by a requirement of openness: ... In all of the cases consolidated herein, the prosecutors have openly specified their reasons for not submitting the cases for ARD, and those reasons, while they may be subject to disagreement as to their wisdom, do not amount to an abuse of discretion.
Since the judgment about who can benefit from ARD is subjective, and since society may be seriously damaged by a wrong judgment, the district attorney is not to be faulted if he errs on the side of caution____ [T]he decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent an abuse of that discretion involving some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based on his view of what is most beneficial for society and the offender.

Id., 508 Pa. at 309-310, 495 A.2d at 935.

Lutz restricts the district attorney’s discretion in two significant respects. First, the prosecutor must openly specify reasons for not submitting a case for ARD. Commonwealth v. Manning, 367 Pa.Super. 624, 626-627, 533 A.2d 448, 450 (Pa.Super.1987); Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986). Second, these reasons must relate to the protection of society or to the likelihood of the candidate’s successful rehabilitation. Both of these requirements were satisfied in the case sub judice. The Lycoming County district attorney disclosed that appellant was not accepted for ARD because of his delinquent acts as a juvenile. It is reasonable to conclude that an individual who is charged with violating the law after having been adjudicated delinquent may be less easily deterred from further criminal activity than a first time offender with no prior contact with the criminal justice system. We cannot say that the prosecutor’s decision not to recommend appellant for ARD was an abuse of discretion sufficient to justify court intervention.

Appellant does not dispute that his juvenile record is relevant to an assessment of his potential for rehabilitation. He argues instead that the district attorney’s consideration of an adjudication of delinquency is prohibited by the Pennsylvania Juvenile Act. We find that the Act does not create an exception to the Lutz standard for reviewing the discretion of the district attorney in the ARD context.

Section 6341 of the Act empowers the court of common pleas to adjudicate a child delinquent. Section 6354 provides in part:

(b) Effect in subsequent judicial matters. — The disposition of a child under this chapter may not be used against him in any proceeding in any court other than at a subsequent juvenile hearing, whether before or after reaching majority, except:
(1) in dispositional proceedings after conviction of a felony for the purposes of a presentence investigation and report; or
(2) if relevant, where he has put his reputation or character in issue in a civil matter.

The critical question is whether the district attorney’s preliminary decision not to select a particular defendant for ARD is a “proceeding in any court” within the meaning of section 6354(b). We find that it is not. ARD proceedings are initiated only after the district attorney has already decided to recommend a case for the ARD program. See Pa.R.Crim.P. 177. It is only after the district attorney’s office completes its internal screening process that the case is submitted to a judge and an ARD hearing is scheduled. If the prosecution rejects the defendant’s ARD request, the need for a court proceeding on admission to ARD is obviated.

We also note that section 6354(b) was designed to deal with the effect of an adjudication of delinquency on “subsequent judicial matters”. The district attorney’s decision not to submit a case for ARD is less a “judicial matter” than an aspect of law enforcement within the province of the executive branch of government. See Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977) (requirement that prosecutor authorize ARD placement does not violate separation of powers doctrine). We therefore conclude that the Juvenile Act was not violated when the district attorney declined to choose appellant for the ARD program.

Appellant’s final argument is that by discriminating against him because of his juvenile record, the Commonwealth denied him the equal protection of the law. U.S. CONST, amend. XIV. The equal protection clause, however, does not ordinarily restrain prosecutorial discretion unless the exercise of that discretion is based on an unjustifiable standard such as race or religion or an arbitrary classification. See Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962). As we previously indicated, an individual’s status as a former juvenile offender is not an arbitrary classification for purposes of admission to the ARD program. A district attorney may rationally conclude: 1) that the best way to protect the public is to suspend the prosecution of only those classes of defendants who are likely to be rehabilitated; and 2) that former juvenile delinquents who have been charged with crimes as adults are not a class of defendants with strong prospects for successful rehabilitation. Thus, we cannot agree with appellant’s allegation that his constitutional rights were abridged. Cf Shade v. Commonwealth, Dept, of Transp., 394 F.Supp. 1237 (M.D.Pa.1975); Pyle v. Court of Common Pleas of Cumberland County, 494 Pa. 323, 431 A.2d 876 (1981); Commonwealth v. Mowry, 358 Pa.Super. 233, 516 A.2d 1270 (1986); Commonwealth v. Kindness, 247 Pa.Super. at 107-111, 371 A.2d at 1350-1351 (1977) (rejecting equal protection challenges to denial of ARD).

Judgment of sentence affirmed.

      . Rule 175. Motion for Accelerated Rehabilitative Disposition Before Information or Indictment
      After a defendant is held for court by an issuing authority, the attorney for the Commonwealth, upon his own motion or upon request of the defendant’s attorney, may submit the transcript returned by the issuing authority to a judge empowered to try cases on information or indictment and may move that the case be considered for accelerated rehabilitative disposition.

      . 42 Pa.Cons.Stat.Ann. §§ 6301-6365 (Purdon 1982 & Supp.1987).

      . Rule 177. Notice of Motion by Attorney for the Commonwealth

        When accelerated rehabilitative disposition proceedings are initiated, the attorney for the Commonwealth shall advise the defendant and his attorney of his intention to present the case to an appropriate judge. Notice of the proceedings shall be sent also to any victim or victims of the offense charged.

        Comment: A form of Notice which has been used in Philadelphia is as follows:
      TO THE DEFENDANT IN THIS CASE:
      You will note from the subpoena attached to this letter that you have been ordered to appear in Room__This means that your case has been selected by the District Attorney’s office as a proper case for the Accelerated Rehabilitative Program____


text:
    535 A.2d 181
    COMMONWEALTH of Pennsylvania v. Robert K. GOETZ, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1987.
    Filed Dec. 21, 1987.

      Michelle Kahan, York, for appellant.
    Glenn Davis, Drexter Hill, for Com.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

This appeal is from judgment of sentence imposed following appellant’s conviction at a bench trial of violations of section 1301 of the Vehicle Code (75 Pa.C.S.A. § 1301, et seq.). The sentences imposed were: cost of prosecution and a fine of $75 at # 333362 and cost of prosecution and a fine of $1,770 at # 333361.

Appellant, a resident of Maryland with a valid Maryland vehicle operator license, owns and operates a business known as Goetz Demolition Company in Pennsylvania, which involves the use of tractor trucks and trailers in excavation work throughout Pennsylvania and Maryland. The operators of appellant’s excavation vehicles work on jobs in either state and store the vehicles at a garage and maintenance facility in Pennsylvania, or at various job sites in Pennsylvania or Maryland. In October of 1985, appellant was performing excavation work with his tractors and trailers on two jobs in the Harrisburg area hauling excavated materials to a location in the Hagerstown, Maryland area.

On October 22, 1986, a tractor and the trailer it pulled, owned by the defendant and driven by his employee, became disabled and the operator moved them to the side of the interstate highway and left the area. The Pennsylvania State Police tagged the vehicles as they were not completely off an exit ramp, and on October 25, 1985, after receiving complaints that they were obstructing the flow of traffic, the state police had the 18-wheel tractor trailer towed off the road to a storage facility in Cumberland County. Both the tractor and trailer bore a current registration issued to the appellant by the state of Maryland. Neither unit was registered in Pennsylvania. For purposes of registration, the tractor and trailer are considered separate vehicles and each would be cited.

Following an investigation, the Pennsylvania State Police issued two citations against the defendant whose address, and that of the tractor trailer, was listed as Hagerstown, Maryland. The citations charged Mr. Goetz with being an owner and knowingly permitting the operation of the tractor and trailer in Pennsylvania without being properly registered in this Commonwealth in violation of the Vehicle Code at 75 Pa.C.S.A. § 1301.

Following appellant’s appeal from a conviction on both citations before a district justice, a de novo trial was held in the trial court on October 24, 1986 where appellant was again found guilty on both citations. This appeal followed.

The Vehicle Code, 75 Pa.C.S. § 1301, sets forth the registration requirements for vehicles in this Commonwealth. That section, in pertinent part, specifically provides:

Registration and certificate of title required
(a) Driving unregistered vehicle prohibited. — No person shall drive or move and no owner shall knowingly permit to be driven or moved upon any highway any vehicle which is not registered in this Commonwealth unless the vehicle is exempt from registration.
(b) Proof of residency. — A person charged under this section has the burden of proving that he is a nonresident whenever he asserts a defense based on section 1303 (relating to vehicles of nonresidents exempt from registration). If he produces at the office of the issuing authority satisfactory proof that he is a nonresident and is in compliance with section 1303 within five days after being charged with a violation of this section, the issuing authority shall dismiss the charge.

Additional requirements concerning vehicle registration are contained in 75 Pa.C.S.A. § 1303.

Vehicles of nonresidents exempt from registration
(a) General rule. — A nonresident owner of any foreign vehicle may operate or permit the operation of the vehicle within this Commonwealth without registering the vehicle in this Commonwealth or paying any fees to the Commonwealth, provided the vehicle at all times when operated in this Commonwealth is duly registered and in full compliance with the registration requirements of the place of residence of the owner and further provided the vehicle is not:
(2) regularly operated in carrying on business within this Commonwealth;
(c) Carrying on business in this Commonwealth. —Every non-resident, including any foreign corporation, carrying on business within this Commonwealth and operating in the business any vehicle within this Commonwealth unless exempted from registration under the terms of a reciprocity agreement, shall be required to register each such vehicle according to the laws of this Commonwealth.

The trial court found that appellant was a non-resident and, therefore, resident exemptions, pursuant to section 1302(6), were not applicable to him. Further, the court held non-resident exemptions were not applicable to appellant because his business was principally operated in Pennsylvania and subject to section 1303(c). Section 1302(6) allows Pennsylvania residents to avoid multiple state registration of their vehicles when another state requires that the vehicles be registered in that state because those vehicles are based and used principally in that state. The court, therefore, found that appellant cannot avoid the registration requirements of this Commonwealth merely because he dwells in Hagerstown and the units are used to conduct his business in Maryland as well as Pennsylvania.

The court noted the use of the term “resident” in the exemption provision at section 1302(6) refers to a resident of the Commonwealth of Pennsylvania, not an out-of-state resident. As referred to in section 1301, non-resident exemptions are covered under section 1303. From the standpoint of section 1302(6), the subject tractor and trailer were not required to be registered in Maryland because the equipment was based and used principally out of the facility in Orrtanna, Adams County, Pennsylvania. It was not based or used principally out of the apartment in Hagerstown, where the appellant keeps some records regarding his business operations.

Neither was there evidence of an exemption, pursuant to section 1303(c), under any reciprocity agreement presented as to the regular operation of the subject units in this Commonwealth, and the court found appellant is not exempt from the registration requirement in section 1301(a).

Appellant argues that while the evidence presented did show he was carrying on business in the Commonwealth of Pennsylvania with other vehicle units, there was no evidence presented that proved the subject vehicles cited were operated in relation to his ongoing business in Pennsylvania. Rather, he maintains the majority of business for which the vehicles in question are used is performed outside of this Commonwealth and the vehicles are, therefore, registered in full compliance with the laws of Maryland.

The standard for reviewing the sufficiency of evidence has been stated as follows:

Where a defendant challenges his conviction on appeal the test of the sufficiency of the evidence is whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984).

In accordance with the above standards, we find the trial court could have found the vehicles in question were regularly operated in the Commonwealth in furtherance of the appellant’s business in this Commonwealth and there was no evidence of an exemption under any reciprocity agreement. The appellant admitted the vehicles were owned by him and that his business was based in Pennsylvania. Further, evidence was presented which showed no facilities capable of storing or maintaining such vehicles existed at appellant’s address in Maryland and we find this sufficient to prove beyond a reasonable doubt a violation of section 1301.

Appellant next argues he is entitled as a non-resident to an exemption under section 1303 of the Vehicle Code. This argument must fail. The trial court found as a fact that appellant was a resident of Maryland and, therefore, a non-resident of Pennsylvania, and his business was being carried on within Pennsylvania and that the vehicles were, therefore, subject to this Commonwealth’s registration laws. Appellant had the burden of proving “credible evidence” with respect to statutory exemptions under section 1303: (1) that as owner, he was a non-resident and (2) that the vehicle was being operated in compliance with section 1303. Appellant failed to present the evidence necessary to avail himself of an exemption and the Commonwealth need not negate an exemption beyond a reasonable doubt. See Commonwealth v. Parrott, 287 Pa.Super. 83, 429 A.2d 731 (1981). The trial court was correct in holding appellant was not entitled to the non-resident exemption under section 1303.

Appellant also contends the trial court was incorrect in finding section 1301 of the Vehicle Code is constitutional. He argues the burden of asserting “proof of residency” in a criminal statute places an undue burden on the defendant and is, accordingly, unconstitutionally impermissible. We disagree and hold the provisions are well within constitutional limits. As stated previously in Parrott, supra, the defendant in the case of a statutory exemption has the burden of producing “credible evidence” of a reciprocity agreement before the government need negate an assumption beyond a reasonable doubt. Appellant failed to present any evidence whatsoever.

Appellant argues the trial court’s interpretation of section 1301 is in violation of the commerce clause. This contention is without merit. The federal government has not passed legislation covering nationwide registration of commercial vehicles and, therefore, Pennsylvania may provide legislation in the registration field under the International Registration Plan (75 Pa.C.S. § 6145) enacted on an individual basis in some thirty states.

Appellant asserts the requirement of registration both in Maryland and in Pennsylvania placed an undue burden on interstate commerce. This Court has addressed similar registration requirements under sections of the Vehicle Code that preceded the current section 1301 and upheld their constitutionality as not imposing an undue burden on interstate commerce. See Commonwealth v. Pittsburgh & Weirton Bus Co., 114 Pa.Superior Ct. 290, 173 A. 887 (1934). Registration permits the various states to have some control over vehicles for the protection of their citizens and to avoid multiplicity of registration and a burden on interstate commerce; the reciprocity provisions mentioned above serve to alleviate such a claim.

Lastly, appellant maintains the Commonwealth is precluded from asserting at this time the vehicles in question should be registered in Pennsylvania because they are “in-state” vehicles as a result of different procedures provided for “Pennsylvania registered trucks” and “trucks registered in other jurisdictions” for the acquisition of an axle tax decal. Appellant argues the vehicles in question were accepted as “trucks registered in other jurisdiction” when it accepted payment for the axle tax decal and that this acceptance confers out-of-state status upon said vehicles.

This argument is without merit and has no bearing upon the appellant’s non-compliance with the registration laws of this Commonwealth. If in fact the Commonwealth did accept payment of the axle tax decal from appellant as a “truck registered in other jurisdiction” when in fact the vehicles in question are vehicles that should be registered in the Commonwealth, that fact only points to another violation of the laws of this Commonwealth by appellant and certainly will not help to buttress his argument that we should vacate his judgment of sentence. We find the trial judge has correctly interpreted the law in this case and the Commonwealth has provided evidence sufficient to establish appellant’s guilt beyond a reasonable doubt.

Judgment of sentence affirmed.


text:
    535 A.2d 185
    COMMONWEALTH of Pennsylvania, v. Appellant, August G. BENNARDO.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1987.
    Filed Dec. 21, 1987.

      Andrea F. McKenna, Harrisburg, for Com.
    Joseph E. Vogrin, III, Pittsburgh, for appellee.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

This is a direct appeal as of right pursuant to Pa.R.A.P. 311(a)(3) from an interlocutory Order entered on February 3, 1987, changing venue in a criminal case from Dauphin County to Allegheny County. On June 19, 1986, appellee Bennardo was charged with nine counts of failure to file sales tax returns and nine counts of failure to remit sales tax (72 P.S. § 7268(b)). Appellee resides in Allegheny County where he operates a business licensed to collect sales tax. The charges were filed against appellee in Harrisburg, Dauphin County, pursuant to the practice of the Office of Attorney General since this Court’s decision in Commonwealth v. Boyle, 347 Pa.Super. 602, 500 A.2d 1221 (1985) reversed 516 Pa.Super. 105, 532 A.2d 306 (1987). At issue in Boyle was whether jurisdiction was proper in Crawford County, a county which does not contain a Department of Revenue branch.

In Boyle, we held that since the main office of the Department of Revenue is located in Dauphin County, and no branch office was located where the defendant operated his business (Crawford County), Crawford County Common Pleas Court lacked jurisdiction to hear and decide the subject case therein. The conclusion of the majority was based on the premise that the filing of tax returns could only be accomplished in Dauphin County (the location of the main office) and that no essential element of the offense had been committed in Crawford County. Pertinent to this case was a statement in Boyle as follows: “In order for appellant to comply with the filing requirements, filing could have been made in Harrisburg, the main office for the Department of Revenue, or any one of the other branch offices.” Id., 347 Pa.Superior Ct. at 605, 500 A.2d at 1222 (emphasis in original).

Pursuant to this statement and appellee’s motion for a change of venue and jurisdiction, the trial court ordered a change of venue from Dauphin County to Allegheny County. Subsequently, the Supreme Court reversed our Court’s decision in Boyle, and contrary to our conclusion that the Tax Code specifies that prosecutions may be brought for failure to file returns in the “place for performance”, i.e. a branch office, the Court stated the Department has never specifically designated any of its branch offices as a place for filing returns, nor does the Tax Code do so.

The trial Opinion in this case was issued prior to the Supreme Court reversal of Boyle. The judge cited our decision in Boyle in support of the proposition that jurisdiction to hear a criminal tax prosecution will lie in a county which does house a Department of Revenue branch office. In addition, the trial court noted the Court of Common Pleas of Dauphin County did have subject matter jurisdiction of the action but changed venue to Allegheny County on the basis of their interpretation of Pa.R.Crim.P. 312 which states, “venue or venire may be changed by the court when it is determined after hearing that a fair and impartial trial cannot otherwise be had in the county where the case is currently pending.” The court felt the prejudice shown by the appellee in this case (in having to defend the action in Dauphin County as opposed to Allegheny County) allowed the court to order its transfer under Rule 312 or by virtue of the court’s inherent power to prevent abuses of prosecutorial discretion.

We believe the trial court abused its discretion in this case. Pursuant to the Supreme Court’s finding in Boyle, supra, that no branch office has ever been designated as the office for filing returns, we find the trial court erred in transferring venue and jurisdiction from a locus where it admittedly properly lay (Dauphin County) to Allegheny County, based on the fact that a branch office exists there. Further, we do not believe a change in venue in a criminal trial can be based upon a showing of inconvenience to the defendant, but instead, must be granted only upon a showing that the defendant will be unable to obtain a fair and impartial trial in the county where the case is pending.

Accordingly, we vacate the Order of the lower court which transfer’s jurisdiction to Allegheny County and remand the case for trial in Dauphin County.

Jurisdiction relinquished.

WIEAND, J., concurs in the result.


author: DEL SOLE, Judge:

text:
    535 A.2d 187
    COMMONWEALTH of Pennsylvania, Appellant, v. Joseph YAPSUGA, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1987.
    Filed Dec. 30, 1987.

      Christopher T. Spadoni, Assistant District Attorney, Bethlehem, for Com.
    Jack Panella, Easton, for appellee.
    Before McEWEN, OLSZEWSKI and DEL SOLE, JJ.
   DEL SOLE, Judge:

Appellee was convicted in a non-jury trial of Driving Under the Influence of Alcohol pursuant to 75 Pa.C.S.A. § 3731(a)(4). Following his conviction, Appellee filed post-verdict motions for a new trial and in arrest of judgment. In granting Appellee’s motion to arrest judgment, the trial court concluded the Commonwealth’s evidence was insufficient to establish Appellee had a blood weight level in excess of 0.10% at the time he was operating his vehicle. The Commonwealth contends the disposition of Appellee’s motion was error. The Commonwealth also maintains the trial court erred by engaging in a post-verdict factual redetermination which resulted in changing its original verdict of guilty to not guilty.

For the reasons which follow, we vacate the Order arresting judgment and remand for a consideration of whether or not a new trial pursuant to Appellee’s Rule 1122 Motion for a New Trial should be granted.

The facts, but for one crucial exception, are undisputed. Appellee admitted at trial he had consumed alcohol while attending a party on December 31, 1985. On his way home he was involved in a one-car accident. The record indicates this incident occurred around midnight. Appellee received a ride back to the party and called his father for assistance. While waiting for his father to arrive, we are told Appellee ingested additional alcohol. This testimony was disputed at trial by the arresting officer who testified Appellee responded in the negative when asked whether he had consumed additional alcohol after his accident.

Thirty to forty minutes later, Appellee and his father returned to the scene of the accident where they observed a State Trooper conducting an investigation of the incident. Having ascertained Appellee was the driver of the vehicle, and detecting an odor of alcohol on Appellee’s breath, the Trooper proceeded to test Appellee’s sobriety. Appellee failed to properly recite the alphabet and was placed under arrest. No other field sobriety tests were administered.

Approximately one and one-half hours after the accident, Appellee was asked to submit to an intoxilyzer test. Appellee’s blood level exceeded 0.10% proscribed by statute on two separate readings of 0.121% and 0.127%. Testimony at trial revealed the standard deviation factor for these tests as 0.02%.

The trial court’s standard of review for granting a motion in arrest of judgment is limited to a determination of absence or presence of that quantum of evidence necessary to establish the crime. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977). The granting of Appellee’s Motion was based on the ground that the evidence presented by the Commonwealth at trial was insufficient to establish the elements necessary to sustain the verdict of guilt pursuant to 75 Pa.C.S.A. § 3731(a)(4). We do not agree.

Section 3731(a)(4) provides two essential elements in order to establish a prima facie case of guilt pursuant to this provision of the Motor Vehicle Code. This Section reads:

(a) [a] person shall not drive, operate or be in actual physical control of the movement of any vehicle while: (4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

A challenge to the sufficiency of the evidence in this matter would require a showing that the Commonwealth has not met its burden of establishing a prima facie case of guilt as defined by this Section. However, the Commonwealth proved the defendant’s operation of the vehicle and a blood alcohol weight in excess of 0.10%.

The language of the trial court’s opinion evinces its confusion with questions regarding the sufficiency and weight of the evidence. This confusion stems from the court’s post-trial determination that the ingestion of additional alcohol after Appellee’s accident but before the administering of his intoxilyzer test casts a considerable question over whether or not Appellee had a blood alcohol weight beyond the level proscribed by law at the time he was operating his vehicle. In this regard, it is critical to note that the credibility of Appellee’s blood alcohol test result is a question which goes directly to the weight of the evidence, not its sufficiency. See Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986) and Commonwealth v. Slingerland, 358 Pa.Super. 531, 518 A.2d 266 (1986).

Therefore, we believe the Commonwealth has established the requisite elements of 75 Pa.C.S.A. 3731(a)(4) to support Appellee’s conviction. However, whether or not this prima facie evidence is overshadowed by the introduction of testimony concerning the ingestion of additional alcohol is a matter which goes to the weight of the evidence and should be addressed in the defendant’s Rule 1123 Motion. We conclude that the trial court’s ruling on Appellee’s motion to arrest judgment was not proper in that such a motion goes to the sufficiency and not the weight of the evidence.

We vacate the Order arresting judgment' and remand for a consideration of Appellee’s Rule 1123 Motion.


author: WIEAND, Judge:

text:
    535 A.2d 189
    COMMONWEALTH of Pennsylvania v. Robert GAY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 17, 1987.
    Filed Jan. 4, 1988.

      John Packer, Assistant Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.
    Before CIRILLO, President Judge, and WIEAND and WATKINS, JJ.
   WIEAND, Judge:

Robert Gay was tried by jury and was found guilty of aggravated assault, recklessly endangering another person, possession of an instrument of crime, and carrying a firearm without a license on a public street as a result of a nonfatal shooting during a group altercation at a carnival in West Philadelphia. Alice Brown, who was injured, was running away from the altercation at the time of the shooting and did not know who in the crowd had drawn a gun and shot her. Trevor Frisby and Keith Warren identified Gay as the person who had fired the gun. At trial, the defense offered to show that Frisby and Warren, who were friends, were both on juvenile probation. The purpose of this evidence was to show a motive for their testifying on behalf of the Commonwealth and minimizing their own involvement in the fracas. The trial court sustained prosecution objections and disallowed such evidence. On direct appeal, Gay contends that this was error. We are constrained to agree. Therefore, we reverse and remand for a new trial.

As a general rule, a witness in a criminal trial may not be impeached by a showing that he has a juvenile record. Commonwealth v. Upchurch, 355 Pa.Super. 425, 434, 513 A.2d 995, 999 (1986). See also: 42 Pa.C.S. § 6354(b). However, in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court of the United States held that the Sixth Amendment right of confrontation requires that a defendant be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias derived from the witness’s probationary status as a juvenile. Pennsylvania has followed the holding in Davis v. Alaska, supra. Most recently, the Supreme Court of Pennsylvania articulated the rule to be followed in this Commonwealth in Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), as follows:

[WJhenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it.
The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise a doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury’s determination of the case.

Id., 511 Pa. at 224-225, 512 A.2d at 631-632 (footnote omitted). However, the possibility of motive or bias must be more than mere speculation. Commonwealth v. Mines, 321 Pa.Super. 529, 533, 468 A.2d 1115, 1117 (1983). There must be a logical connection between the facts to be proven and the inference to be drawn from the facts. Commonwealth v. Case, 322 Pa.Super. 24, 31-32, 469 A.2d 162, 165-166 (1984); Commonwealth v. Bryner, 351 Pa.Super. 196, 198, 505 A.2d 335, 336 (1986). In Commonwealth v. Erie, 361 Pa.Super. 44, 521 A.2d 464 (1987), the defense to a charge of rape was consent. The defense attempted to introduce a juvenile order showing that the complainant, who had been adjudged a dependent child, was under a restrictive order limiting the conditions under which she could see her boyfriend and imposing an 11 p.m. curfew. Because the alleged rape occurred while the complainant was in violation of the court imposed curfew, the defense theorized that she had a motive to fabricate in order to avoid punishment for the curfew violation. The court held that the defense should have been permitted to present the curfew violation to the jury. It expressly refused to speculate whether the defense theory would have been accepted by the jury. Id,., 361 Pa.Super. at 49-53, 521 A.2d at 466-469.

In the instant case, appellant attempted to show that Frisby was on probation for a prior assault and that Warren was on probation for robbery. Because the witnesses were themselves on probation, the defense theorized, Frisby may have testified as a Commonwealth witness in the belief that he could thereby avoid an action to revoke his probation as a result of the fracas at the carnival and Warren may have believed he could curry favor with the Commonwealth. Under these circumstances, we are required to conclude that the offered evidence was relevant and that to refuse to allow it was error.

The trial court did not have the benefit of the Supreme Court decision in Evans at the time of trial in this case. The court concedes that had it had knowledge of that decision, its evidentiary ruling might have been different. The trial court has suggested, however, that the error was harmless. We are unable to agree with this assessment. This was not a case that was crystal clear. The shots were fired during a general melee in which a crowd of people had gathered to watch an altercation. Of all the people present, only Frisby and Warren identified appellant as the person who had fired a gun. The prosecuting attorney argued to the jury that they had no reason to lie. When all these circumstances are considered, we are unable to conclude beyond a reasonable doubt that it was harmless to disallow evidence suggesting a motive on the part of Frisby and Warren to testify as they did. See: Commonwealth v. Evans, supra; Commonwealth v. Joines, 264 Pa.Super. 281, 286, 399 A.2d 776, 779 (1979). For this reason, we conclude, this case must be remanded for a new trial.

Appellant also contends that the trial court erred when it overruled defense objections to statements made by the prosecuting attorney during closing argument. These statements were (1) that counsel believed the witnesses, Frisby and Warren, and (2) that “[i]f you don’t want senseless violence like this to occur, then you must say to the defendant, yes, you did the shooting in this case____”

The latter argument was improper. In the first place, it was a non sequitur. A desire to prevent violence did not require a finding that it had been appellant who did the shooting in this case. Secondly, the argument sought to divert the jury from its duty to decide the case on the evidence by injecting an issue broader than the guilt or innocence of appellant. It suggested that a conviction of appellant was necessary if the jurors wanted to prevent senseless violence. This was in violation of Section 5.8 of the ABA Standards Relating to the Prosecution Function.

In Commonwealth v. Cherry, 474 Pa. 295, 378 A.2d 800 (1977), the prosecuting attorney had asked the jury to tell the people of Philadelphia that “shootings on the street like the wild west” will not be tolerated. This, the Supreme Court held, was improper because it was “an invitation to the jurors to shift their inquiry from the guilt or innocence of appellant to the need to make an example of someone accused of participating in a public shooting.” Id., 474 Pa. at 305, 378 A.2d at 805. For the same reason, the argument of the prosecuting attorney in the instant case was impermissible and requires that a new trial be granted.

It was also improper for the prosecuting attorney to express her personal opinion regarding the credibility of the prosecution witnesses. See: Commonwealth v. Pfaff, 477 Pa. 461, 471, 384 A.2d 1179,1184 (1978); Commonwealth v. Cherry, supra. In this case, the expression of opinion by the prosecuting attorney was not so egregious that, standing alone, it would require the granting of a new trial. Since this matter must be remanded, however, it may not be amiss to suggest that upon a retrial, counsel would be well advised to allow the jury to decide issues of credibility unimpeded by an expression of counsel’s personal opinion.

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

      . Although Warren was not on probation at the time of the shooting, he was on probation at the time of trial and might, therefore, have been inclined to testify to please the prosecution. In this regard, we note that before his adjudication for robbery, Warren said he never saw Gay with a gun, but that after he was put on probation he testified he saw Gay fire the weapon.


author: WIEAND, Judge: BROSKY, Judge,

text:
    535 A.2d 192
    COMMONWEALTH of Pennsylvania, Appellee, v. James J. DIDYOUNG, Appellant.
    Superior Court of Pennsylvania.
    Argued May 6, 1987.
    Filed Jan. 4, 1988.

      Thomas S. McCready, Lansford, for appellant.
    Richard W. Webb, District Attorney, Jim Thorpe, for Com.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

James J. Didyoung was tried by jury and was found guilty of attempt to commit homicide and aggravated assault because of the May 27, 1985 beating of his sleeping brother about the head with a crowbar. Post-trial motions were denied, and Didyoung was sentenced to serve a term of imprisonment for not less than five years nor more than ten years. On appeal, he argues that he should receive a new trial because a juror failed to disclose during voir dire (1) that the juror’s uncle, who died in 1968, had been a police officer; and (2) that the cousin of the juror’s wife was married to Chief of Police Thomas Mase, who had been the arresting officer. Appellant also contends that the trial court abused its discretion by imposing an excessive sentence. We find no merit in these contentions and affirm the judgment of sentence.

Prior to trial the prospective jurors were given a questionnaire which asked, inter alia, the following question:

Are (have) you or any member of your immediate family: ... presently (or in the past been) a member of any law enforcement agency?

During voir dire, the following questions were asked by the prosecution:

Is there anyone here who knows Chief [Thomas] Mase and, because of their knowledge of Chief Mase, would feel they could not decide the case solely on the evidence?
Does anybody in this prospective panel have family members who are involved in law enforcement?

One of the jurors, Dennis McHugh, failed to give an affirmative answer to any of the foregoing questions and was seated as a juror. Appellant contends that the juror’s failure to disclose that his deceased uncle had been a policeman and that his wife’s cousin was then married to the arresting officer was improper and deprived him of a fair trial.

“ ‘It is the duty of the parties to ascertain, by proper examination at the time the jury is impaneled, the existence of any reasons for objection to the jurors.... [T]he failure to do so and to make objection at the proper time operates as a waiver....’” Commonwealth v. Aljoe, 420 Pa. 198, 206, 216 A.2d 50, 55 (1966), quoting Commonwealth v. Walker, 283 Pa. 468, 472-473, 129 A. 453, 454 (1925). Such a waiver will be excused, however, where “ ‘the party affected has been intentionally misled or deceived by the juror or the opposite party____’” Id., quoting Traviss v. Commonwealth, 106 Pa. 597, 607 (1884).

In Brown v. United States, 356 F.2d 230 (10th Cir.1966), where the defendant had been charged with murder, defense counsel asked the potential jurors during voir dire examination whether they “or anyone in their immediate family” had ever been the victim of an attack upon their person. None of the jurors answered affirmatively, and a jury was seated. After defendant had been convicted of murder in the second degree, he learned that a brother of one of the jurors had been murdered during the years prior to trial. Defendant filed a motion for new trial, contending that he had been denied a fair trial and had been denied the effective use of peremptory challenges by the juror’s failure to disclose the murder of his brother. The trial court denied the motion, and defendant appealed. In affirming the defendant’s conviction the Court of Appeals said:

Certainly the voir dire oath administered to potential jurors obligates them fully to tell the truth. However, no reason appears for concluding that the juror was in fact not fully responsive to the actual interrogatory, which referred to the juror’s “immediate family.” Such a term is indeed ambiguous, for depending upon such circumstantial variables as age and marital status, it can import different meanings to different individuals. Defense counsel was free to explain to the jury what was meant by “immediate family”, and could have expanded his inquiry to include “family” and “relatives”, but he elected to pursue the point no further. It cannot be presumed that the juror’s failure to respond to the question was not proper, and an inference of intentional or ■ inadvertent non-disclosure is unwarranted.
Disruptive consequences to the trial of criminal cases are suggested by permitting defense counsel to come forth after conviction and successfully contend that, notwithstanding the absence of actual bias, and notwithstanding his own failure sufficiently to pursue voir dire inquiry to expose possible predilections on the part of a prospective juror, that nevertheless probable prejudice must be imputed to the juror as a matter of law and a new trial thereafter granted. “A disqualification which by reasonable diligence could have been discovered before verdict, may not afterwards be made the subject of an attack upon a verdict.” Spivey v. United States, 5 Cir., 109 F.2d 181, 186, cert, denied 310 U.S. 631, 60 S.Ct. 1079, 84 L.Ed. 1401.

Brown v. United States, supra at 232-233.

Recently, in Commonwealth v. Stark, 363 Pa.Super. 356, 526 A.2d 383 (1987), this Court adopted the Tenth Circuit's reasoning. In Stark, the defendant was convicted by a jury of first degree murder because of the fatal shooting of a man who had at one time been his best friend but who had fallen out of favor with the defendant after he began to date the defendant’s estranged wife. During voir dire, defense counsel asked the potential jurors the following question: “Have any of you been separated or divorced from your husband or wife because of the fact that your best friend or a friend of yours had been dating your husband or wife?” None of the jurors ultimately impaneled indicated a positive response. After trial, however, defendant alleged that one of the jurors had intentionally deceived him by failing to reveal, in response to the question, that her husband had left her and had run away with the baby-sitter. The trial court denied defendant’s motion for a new trial and, on appeal, this Court affirmed holding that:

[D]efense counsel’s question was ambiguous; it is not at all clear that it was intended to refer to the conduct between a juror’s husband and a babysitter. Thus, there is no basis for inferring from the averments contained in [defendant’s] petition that the juror had falsified her answer to the question asked. In the absence of a false response, we will follow the reasoning of the Tenth Circuit and conclude that [defendant] may not now rely upon the juror’s [failure to disclose the information] to attack the verdict.

Id., 363 Pa.Superior Ct. at 376, 526 A.2d at 393.

In the instant case we can find no basis on which to infer that the juror intentionally falsified his answers to any of the questions asked of him. The first question, asked via questionnaire, was whether any member of the juror’s “immediate family” was or had been a member of a law enforcement agency. Another question, asked by the prosecution, was the same, except that it spoke only in the present tense and spoke generally of “family.” The terms “family” and “immediate family” are ambiguous and can import different meanings to different individuals. See: Brown v. United States, supra. It is not at all clear that these terms were intended to refer to a spouse’s cousin or to a deceased uncle, who had died in 1968 when the juror was only ten years of age. The juror’s failure to disclose these distant relationships in response to questions about his “family” and “immediate family” cannot be deemed an intentional deception. If appellant intended to ask the juror to identify his wife’s relatives or his long deceased uncle, he might have done so. He cannot now complain because he failed to do so.

The second question contained two parts which were joined in the conjunctive. The question was not whether the jurors knew Chief Mase but whether they knew Chief Mase “and would feel they could not decide the case solely on the evidence.” To fail to acknowledge knowing Chief Mase, in response to such a question, was not alone evidence of intentional deception. Although appellant introduced evidence that the juror knew Chief Mase, there was no evidence that he felt he could not put that relationship aside and decide the case on the evidence.

The record discloses that the foregoing questions were posed by the court and prosecuting attorney. Despite an opportunity to do so, defense counsel did not attempt to elicit information pertaining to the juror’s relatives or to his or her knowledge of persons engaged in law enforcement. Appellant cannot complain for the first time after trial that the juror failed to divulge information not specifically requested of him during voir dire.

The brief filed by appellant in this Court failed to include a statement, as required by Pa.R.App.P. 2119(f), demonstrating a substantial question that the sentence imposed was inappropriate. In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the Supreme Court held that, if properly preserved by appellee, such an omission was fatal to appellate review of the discretionary aspects of the sentence. See: 42 Pa.C.S. § 9781(b). See also: Pa.R.App.P. 902 and 2119(f). In the instant case, however, the defect in appellant’s brief has not been challenged by appellee. Therefore, we will determine for ourselves whether the sentencing issue raised by appellant is substantial.

Didyoung contends that the sentencing court abused its discretion by (1) imposing sentence based solely upon the nature of the crime; (2) disregarding the information contained in the pre-sentence report; (3) concluding that Didyoung had a mental problem despite psychiatric reports to the contrary; and (4) refusing to allow character witnesses to speak on Didyoung’s behalf. Because several of these allegations, if true, would pose substantial issues sufficient to entitle appellant to relief, we conclude that the issues should be reviewed further.

The imposition of a proper sentence is a matter which is vested in the sound discretion of the trial court, and it will not be disturbed on appeal unless the sentence exceeds the statutory maximum or is so excessive so as to constitute a manifest abuse of discretion. Commonwealth v. Sanders, 339 Pa.Superior Ct. 373, 381, 489 A.2d 207, 211 (1985). However, a sentencing court must consider the history, character, and condition of the defendant and not only the nature and circumstances of the crime in imposing sentence. 42 Pa.C.S.A. § 9725. See also Commonwealth v. Arent, 352 Pa.Superior Ct. 520, 522, 508 A.2d 596, 597 (1986). Additionally, the court must consider the rehabilitative needs of the defendant, the need for the protection of the public as well as the gravity of the offense. Commonwealth v. McCall, 320 Pa.Superior Ct. 473, 480, 467 A.2d 631, 634 (1983).

Commonwealth v. Peters, 358 Pa.Super. 94, 96-97, 516 A.2d 1197, 1198-1199 (1986).

Appellant contends that the sentencing court violated these principles and also the Sentencing Code when it failed to consider information about his background which appeared in the pre-sentence report and, instead, focused solely upon the nature of the crime in imposing sentence. This argument, however, is not factually supported. The record shows that the sentencing court not only considered the information appearing in the pre-sentence report but also gave Didyoung an opportunity to comment thereon. The record discloses further that the trial court considered Didyoung’s “condition” and concluded that although psychiatric reports indicated that he did not have a psychiatric disorder, a substantial prison term would enable additional psychiatric tests to be completed so that perhaps it could be determined why such a brutal attack would be committed upon appellant’s unsuspecting brother without any apparent remorse therefor. Appellant’s contention that the trial court considered only the nature of the crime, therefore, is without support in the record.

Didyoung’s final contention is that the trial court abused its discretion when it refused to permit character witnesses to speak on his behalf. The record shows, however, that Didyoung called no character witnesses. As the sentencing court was stating its reasons for the sentence which it was about to impose, an unidentified spectator stood up and attempted to make an unsolicited statement. The court admonished the spectator not to interrupt and proceeded to impose sentence. At no time during the hearing did Didyoung either object to the court’s refusal to permit the spectator to speak or offer the unidentified person as a witness. There was neither error nor abuse of discretion in the sentencing court’s admonishment of the spectator.

The judgment of sentence is affirmed.

BROSKY, J., files a concurring and dissenting opinion.

BROSKY, Judge,

concurring and dissenting:

I agree with the majority’s disposition of the first issue that appellant was not denied his right to a fair and impartial jury trial despite a juror’s failure to disclose during voir dire that that juror’s uncle, deceased since 1968, had been a police officer and that the spouse of the juror’s cousin had been the arresting officer.

The majority states the second issue to be whether the trial court abused its discretion by imposing an excessive sentence. It is true that this is the “issue” which appellant has briefed to this court in the argument portion of his brief and which the majority proceeds to address. However, it is equally apparent that appellant’s claim of excessiveness is not the issue properly before us. Instead, appellant’s second issue broached to us in the “Statement of Questions Involved” portion of the brief is as follows:

B. DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION FOR RECONSIDERATION OF THE SENTENCE WITHOUT A HEARING?

As stated above, this issue has not been briefed and is therefore waived. Pa.R.App.P. 2116(a) (“This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.”); Rago v. Nace, 313 Pa.Super. 575, 460 A.2d 337 (1983). See also, Commonwealth v. Stufflet, 322 Pa.Super. 176, 469 A.2d 240 (1983); Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982). Conversely, the claim briefed by appellant and addressed by the majority is similarly not before us as it was “not set forth in the statement of questions involved or suggested thereby.” Rule 2116(a), supra.

Because of the foregoing, my agreement with the majority to affirm the judgment of sentence is limited to the majority’s correct disposition of the first and only issue properly before us.

      . 18 Pa.C.S. §§ 901, 2501.

      . 18 Pa.C.S. § 2702(a)(1) and (4).

      . Although the brother survived the attack, he suffered extensive brain damage and remains in an apparently irreversible coma.

      . The sentencing court held that the aggravated assault had merged in the conviction for attempted homicide for sentencing purposes.

      . This information included Didyoung’s lack of a prior criminal record; his age (22 years); his good relationship with his family both prior to and after the commission of the instant offenses; and his attempts to further his education.

      . We reject the contention that the sentencing court improperly concluded that Didyoung had a psychiatric disorder despite a psychiatric report to the contrary. Although the court indicated that it had substantial doubts as to the accuracy of the report, it did not reach the conclusion that Didyoung had a psychiatric disorder. Rather, it concluded only that Didyoung should be evaluated further. This was not improper.