author: OLSZEWSKI, Judge: SPAETH, President Judge,

text:
    488 A.2d 68
    COMMONWEALTH of Pennsylvania v. Alan D. NEISWONGER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1984.
    Filed Feb. 1, 1985.

      Raymond H. Bogarty, Assistant Public Defender, Pittsburgh, for appellant.
    James P. Epstein, Assistant District Attorney, Sharon, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

In this case, appellant contests the admission into evidence of the opinion testimony of a police officer. The officer testified at a jury trial that, in his opinion, appellant was under the influence of alcohol “to a degree that rendered him incapable of safe driving.” Appellant was convicted; the trial court denied appellant’s motion for reconsideration of sentence, which was based on the theory that the testimony was inadmissible. We agree with the trial court that the testimony was admissible, and affirm the judgment of sentence.

Appellant was stopped by a police officer on May 4, 1982, in Mercer County after his car was seen speeding. Appellant was requested to perform coordination tests, and in the middle of the tests, a second officer, Officer John Piatek, arrived. Officer Piatek observed that appellant performed two of the tests badly, that he smelled of alcohol, that he had slurred speech, and that he staggered and swayed. Appellant was arrested for driving under the influence of alcohol. The arresting officer, John Piatek, had not seen appellant driving.

First, we must note that the parties stipulated that the question on appeal would be as follows:

(O)fficer Piatek, being the arresting officer, was asked whether or not he could form an opinion as to whether the Defendant was under the influence to such a degree as to have a substantial impairment of his ability to drive and therefore be an unsafe driver, to which the witness answered yes, and his opinion was that the Defendant was under the influence to such a substantial degree as to be an unsafe driver. All of this was objected to by counsel for the Defendant.

Appellant concedes that testimony by non-experts on whether a person is intoxicated is admissible. In the Interest of Wright, 265 Pa.Super. 278, 401 A.2d 1209 (1979). Appellant contends, however, that before opinion evidence may be admitted on whether a person is so intoxicated as to be unable to drive safely, the witness must be qualified as an expert on the effect intoxication has on driving practices. We note that no cases exist on whether a witness must be qualified as such an expert to be able to testify as the officer did here.

We begin our analysis by noting that Federal Rules of Evidence 701 and 704 have been adopted in the Commonwealth. Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941 (1978). The rules are:

Rule 701. Opinion Testimony by Lay Witnesses.
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
Rule 704. Opinion on Ultimate Issue.
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

Under these rules, opinion testimony is admissible as long as the witness is competent to testify — that is, as long as the witness has perceived the events upon which his opinion is based. The opinion may embrace the ultimate issue to be decided by the trier of fact.

Under our own case law, opinion testimony is admissible to prove a state of intoxication. In the Interest of Wright, supra. Appellant thus would have this Court draw a line between opinion testimony on intoxication and opinion testimony on ability to drive a vehicle safely. In appellant’s view, witnesses can observe a defendant’s acts and speech and opine on whether he was drunk, but cannot opine on whether that degree of drunkenness was sufficient to impair driving ability.

We think this line is too fine to see unless the viewer is using an electron microscope. The appearance of capacity of safe driving is as much a matter of common knowledge as is the appearance of intoxication. Most people who drive can tell when their ability to drive is impaired, much as they can tell when they themselves are intoxicated. We hold that a police officer, if he has perceived a defendant’s appearance and acts, is competent to testify to his opinion as to the defendant’s state of intoxication and to his ability to drive a vehicle safely.

Accordingly, the admission of the officer’s opinion was correct. The judgment of sentence is affirmed.

SPAETH, President Judge, files a concurring statement.

SPAETH, President Judge,

concurring:

Appellant bases his argument on Commonwealth v. Reynolds, 256 Pa.Super. 259, 389 A.2d 1113 (1978). That case, however, was an expert witness case: the doctor examined the defendant some five hours after the arrest and testified, on the basis of his knowledge of the rate at which alcohol is absorbed in the body, that appellant was intoxicated at the time of the accident. This is not an expert witness case. The issue, rather, is the permissible extent of “lay” opinion, and on that issue I agree with the majority that the officer was competent to express the opinion. Although the officer testified as to the ultimate issue — that appellant was too intoxicated to drive safely— he based his opinion upon his observations of appellant.

      . Pa.R.App.P. 1924 permits the parties to agree to a statement of the case, upon the approval of the lower court.

      . Intoxication is not a condition outside the realm of understanding or powers of observation of ordinary persons. Commonwealth v. Boer-ner, 268 Pa.Super. 168, 407 A.2d 883 (1979). In all fairness, we acknowledge that expert opinions have been used as well to establish intoxication. See, e.g., Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980). In Arizini, appellant had been convicted on driving under the influence. He contested the conviction, basing his appeal on testimony that he had not appeared to the arresting officer to have been intoxicated. It was held that blood test results and the testimony of a physician that some people would not exhibit the usual signs of intoxication with such a blood alcohol level was sufficient evidence to support the conviction.

      . Appellant phrases his statement of the question involved as “Whether or not the trial court erred in permitting Officer John Piatek to testify that 'the defendant was under the influence of alcohol to a degree that rendered him incapable of safe driving,’ in that this was permitting an ‘expert opinion’ as to the defendant’s guilt.” We do not read the question as whether the witness was giving an “expert opinion” on appellant’s guilt. The officer was not qualified as an expert in anything. The mere fact that his opinion embraced the ultimate issue — whether appellant was intoxicated to an extent that rendered him incapable of safe driving — does not mean that it could not be stated.

      . We find this Court’s opinion in Commonwealth v. Richardson, 307 Pa.Super. 191, 452 A.2d 1379 (1982) helpful. In Richardson, we upheld a conviction for driving while intoxicated where the witness police officer had smelled a strong odor of alcohol upon removing appellant from the accident vehicle, and had observed seven empty beer bottles in the vehicle.


source: Caselaw Access Project

author: SPAETH, President Judge:

license: Public Domain

text:
    488 A.2d 277
    COMMONWEALTH of Pennsylvania v. Russell HAMILTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 26, 1984.
    Filed Feb. 8, 1985.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and MONTGOMERY, JJ.
   SPAETH, President Judge:

This is an appeal from judgments of sentence for arson and burglary. Appellant argues that the Commonwealth did not establish, on the arson charge, that the fire was of incendiary origin and that appellant set the fire, and on the burglary charge, that appellant entered the house to commit a crime. We find the evidence sufficient to support both convictions. However, because the sentences are inconsistent as recorded, they are vacated and the case is remanded for resentencing.

-1-

To be sufficient to support a conviction of arson, the evidence must establish that there was (1) a fire (2) of incendiary origin (3) set by the defendant. Commonwealth v. Galloway, 302 Pa.Super. 145, 151, 448 A.2d 568, 571 (1982). Appellant concedes that there was a fire. Brief for Appellant at 8. His argument is that the evidence was insufficient to establish the second and third elements.

In determining the sufficiency of evidence, we must view all the evidence, together with all reasonable inferences from it, in the light most favorable to the Commonwealth. Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). In arson cases, circumstantial evidence is often especially important. Commonwealth v. DiNicola, 503 Pa. 90, 468 A.2d 1078 (1983); Commonwealth v. Colon, 264 Pa.Super. 314, 399 A.2d 1068 (1979). Viewed in this light, the evidence was as follows.

On June 13, 1980, at about 12:15 a.m., a neighbor heard the sound of glass breaking at a nearby residence at 504 Southern Avenue in Pittsburgh. The neighbor looked out her window and saw a man, whom she later identified as appellant, push the glass out, unlatch the window, and climb through the window into the house. Leaving her window only long enough to call the police, the neighbor then saw the man leave the house through the front door, return to the house and leave, and return and leave a third time. Each time the man was inside the house only a brief time — no longer than five minutes. It appeared to the neighbor that when the man came out of the house the first time, and leaned against the wall, he was “more or less” drunk. N.T. 12/7/82, 24. When he came out of the house the last time, she saw him go down the street, disappear briefly, and return smoking a cigarette. He waited a few minutes for the bus, and when the bus arrived, he boarded it.

Another neighbor, after having been told by his sister that she had heard glass breaking, walked toward 504 Southern. This neighbor also saw a man, whom he later identified as appellant, leave 504 Southern. The man asked the neighbor for a cigarette and matches. The neighbor gave him a cigarette, told him to keep the matches, and then saw him go back to the house. N.T. 12/7/82, 82-88. He testified that he heard the man stepping, or what sounded like stepping, on broken glass. Then the man “ran out of the house” and caught the bus. N.T. 12/7/82, 33. The neighbor gave a description of the man to a police officer in a patrol car and told the officer that the man had gotten on a bus. Within 10 to 15 minutes, the neighbor saw a “fire flash” at 504 Southern. N.T. 12/7/82, 34, 40. He and a friend ran inside and tried to put the fire out. He saw piles of garbage on the floor spread like “a trail [arranged] one piece of paper to another piece of paper to start a fire.” N.T. 12/7/82, 35.

A Pittsburgh fire captain with eighteen years of experience responded to the call and found four “trailers,” two on each floor. The captain described a trailer as “rubbish, papers ... laid in a line for the fire to follow to another pile of rubbish.” N.T. 12/7/82, 51. There was no furniture in the apartment, N.T. 12/7/82, 52, and the utilities had been turned off, N.T. 12/7/82, 60. The captain testified that “[t]he fire couldn’t have been started accidentally.” N.T. 12/7/82, 54. “The wall that the fire was on there was nothing near that area that could have caused ... [the fire].” Id. While he agreed on cross-examination that no accelerant was found at the scene, N.T. 12/7/82, 59-60, he maintained that the fire was not accidental because “[t]here was nothing there to start that pile of rubbish on fire,” N.T. 12/7/82, 60. When asked whether “the policemen and the other people who came in after the fire moved the papers,” he pointed out that there were also trailers on the second floor, which had not caught on fire. N.T. 12/7/82, 56-58. There was no evidence that the neighbors had been on the second floor.

This evidence was sufficient for the trial court, which was sitting without a jury, to find that the fire was of incendiary origin. This case is distinguishable from Commonwealth v. Carthon, 467 Pa. 73, 354 A.2d 557 (1976). In Carthon, the fire marshal could not rule out accidental causes; the evidence only established that the defendant brought gasoline into the house and a fire developed after it was spilled onto the floor. Here, the fire captain did rule out accidental causes, and the evidence disclosed deliberate placing of materials in a pattern to facilitate a fire. Nor does Commonwealth v. Patterson, 247 Pa.Super. 527, 372 A.2d 1214 (1977), cited by appellant, support appellant’s position. To the contrary, in Patterson, as here, the authorities “found no indication that the fires were started by an incendiary device,” id., 247 Pa.Superior Ct. at 530, 372 A.2d at 1216, and yet we found the evidence sufficient, pointing out that “if this fact [the lack of evidence of an incendiary device] alone were dispositive, it would be almost impossible to prove corpus delicti where an arsonist was careful to hide his tracks.” Id. Cf. Commonwealth v. Moore, 466 Pa. 510, 514-15, 353 A.2d 808, 810 (1976) (finding that fire incendiary sustained where evidence of noise of a scuffle shortly before fire ignited and experienced fire marshal concluded that “most probable accidental causes could be ruled out”).

Appellant argues, however, that he was intoxicated the night of the fire and could not have had the necessary mens rea to commit arson. Appellant states that he “recognizes that a defendant may not claim voluntary intoxication to negate a finding of intent for a particular crime,” Brief for Appellant at 11, citing 18 Pa.C.S. § 308, and urges that the “evidence of intoxication does prove [his] claim that he could have accidentally dropped a cigarette in the house already full of garbage.” Id.

It has been argued elsewhere that § 308 does not preclude evidence of intoxication for the purposes of proving accident. Murphy, Has Pennsylvania Found a Satisfactory Intoxication Defense? 81 Dick.L.Rev. 199, 202-03 (1977). However, we do not agree that the legislature intended that evidence of intoxication could be used in this manner. In Commonwealth v. Rumsey, 309 Pa.Super. 137, 454 A.2d 1121 (1983), we stated:

[I]t is apparent that in amended § 308 the legislature in effect redefined the mens rea element of intentional or knowing crimes to include those cases where the putative offender performed the criminal act but was unable to form the criminal intent otherwise required solely because he was voluntarily drunk or drugged.
Id., 309 Pa.Superior Ct. at 140, 454 A.2d at 1122.

This redefinition of mens rea could be circumvented were we to permit evidence of intoxication to establish an accident in this case. For appellant’s disclaimer that he seeks to negate a finding of intent is disingenuous: arguing accident is arguing absence of intent, here, the “intent of destroying a building.” 18 Pa.C.S. § 3301(b)(1). Moreover, circumvention would be easy, for intoxication is “a defense peculiarly subject to fabrication and false claims.” Commonwealth v. Rumsey, supra, 309 Pa.Superior Ct. at 144, 454 A.2d at 1124 (citations omitted).

The evidence was also sufficient for the trial court to find that appellant broke into the house with the intent to commit arson, and that while inside the house, he did commit arson. The trial court could reasonably infer that while inside the house, appellant laid out the papers on the first and second floors so that a fire would travel from one pile to another, and that seeking a starter, appellant left the house, got a cigarette and matches from the neighbor, brought them back with him into the house, and used them to start the fire that “flash[edj” up shortly after he left. The inconsistency in the testimony of the two neighbors was not such as to require the trial court to have a reasonable doubt; the court could reject that part of the testimony of the neighbor standing at the window about what happened after appellant got the cigarette and matches, and believe the other neighbor’s testimony that appellant returned to the house with a cigarette and matches. Commonwealth v. Dumas, 299 Pa.Super. 335, 445 A.2d 782 (1982) (factfinder can believe all, part, or none of the evidence). Both neighbors placed appellant inside the house, which was uninhabitated and had been secured, just prior to the fire. Given the events surrounding appellant’s presence at the scene, the conviction may not be said to rest only on evidence of appellant’s proximity to the scene of the crime. Cf. Commonwealth v. Trafford, 312 Pa.Super. 578, 459 A.2d 373 (1983).

-2-

We raise the legality of appellant’s sentence sua sponte. Commonwealth v. Betoni, 254 Pa.Super. 26, 28, 385 A.2d 506, 507 (1978). See also Commonwealth v. Brown, 290 Pa.Super. 448, 453, 434 A.2d 838, 840 (1981). The record reveals that appellant received a sentence of incarceration and a suspended sentence, but it is unclear which sentence was imposed for burglary and which for arson. The sentencing transcript reveals that the trial court imposed a IV2 to 3 year term of incarceration on count 2 of the information (arson) and a suspended sentence on count 1 of the same information (burglary). N.T. 1/31/83, 10. However, the certified copy of the docket entries, and the sheet stapled to the information itself, which is signed by the trial judge, both show separate entries indicating that the term of incarceration and suspended sentence were imposed on count 2 (arson). When there is a discrepancy between the sentence as recorded and as announced, the former usually controls. Commonwealth ex rel. Middleton v. Banmiller, 195 Pa.Super. 45, 169 A.2d 343 (1961). Here, however, the sentences as recorded are irreconcilable. Since the court apparently intended to impose a suspended sentence for burglary, we note that the court did not have the authority to impose such a sentence. Since a suspended sentence is not provided for in the Sentencing Code, 42 Pa.C.S. § 9721(a), it is an illegal sentence. See Commonwealth v. Ferrier, 326 Pa.Super. 331, 337, 473 A.2d 1375, 1378 (1984) (“indefinitely suspended sentence is not a sanctioned sentencing alternative”).

Judgments of sentence vacated and case remanded for resentencing consistent with this opinion.

      . At the time of appellant’s arrest, arson was defined as
      (b) Endangering property. — A person commits a felony of the second degree if he:
      (1) starts a fire or causes an explosion with intent of destroying a building or occupied structure of another;
      18 Pa.C.S. § 3301(b)(1).
      This provision was amended by Act of Apr. 29, 1982, P.L. 363, No. 101, § 1, effective in 90 days, 18 Pa.C.S. § 3301(b)(1); Act of Dec. 7, 1982, P.L. 811, No. 227, § 1, effective in 60 days, 18 Pa.C.S. § 3301(c)(1).

      . 18 Pa.C.S. § 3502.

      . An incendiary fire is one that is willfully and maliciously set. Commonwealth v. Trafford, 312 Pa.Super. 578, 581, 459 A.2d 373, 374 (1983); see also Commonwealth v. Nasuti, 385 Pa. 436, 441-42, 123 A.2d 435, 437 (1956). The prior statute defining arson used this terminology. Act of June 24, 1939, P.L. 872, § 905, IS P.S. § 4905 (repealed and superseded). See also note 1, supra.

      . See note 1, supra.


text:
    488 A.2d 281
    COMMONWEALTH of Pennsylvania v. Lloyd Martin McCUTCHEON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 26, 1984.
    Filed Feb. 8, 1985.

      William L. Walker, Meadville, for appellant.
    John M. Dawson, Assistant District Attorney, Meadville, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and MONTGOMERY, JJ.
   SPAETH, President Judge:

This is an appeal from judgment of sentence for driving under the influence of alcohol. Appellant argues that the trial court improperly granted the Commonwealth’s petition for an extension of time under Pa.R.Crim.P. 1100. We agree and therefore reverse the judgment of sentence and discharge appellant.

The criminal complaint was filed on March 1, 1982. After a preliminary hearing on April 6, 1982, appellant was held over for court. A member of the District Justice’s staff misfiled the papers on appellant’s case; instead of transmitting them to the County Clerk of Court, she filed them in the “closed file.” N.T. 12/13/82, 11. In November 1982 appellant’s counsel happened to meet the police officer who had filed the complaint. Counsel asked the officer about the case. The officer said he would check into it, and telephoned the District Attorney’s office, to be told that the papers had never been received, N.T. 12/13/82, 6-7.: On November 12, 1982, a member of the District Attorney’s office called the District Justice’s office, and, upon learning about the misfiling, directed that the papers be sent to the courthouse immediately. N.T. 12/13/82, 12. On November 15, 1982, the complaint and transcript were filed. On November 30, 1982, the Commonwealth filed a petition for an extension of time under Rule 1100, identifying the source of the delay and alleging its “due diligence.” Appellant filed an answer and moved for a dismissal of the charges against him. The trial court denied appellant’s motion and granted the petition for an extension. Appellant was tried and convicted, and after being sentenced, took this appeal.

-1-

A petition for an extension of time must be filed “prior to the expiration of the period for commencement of trial.” Pa.R.Crim.P. 1100(c)(1). The “period for commencement of trial” is 180 days. Pa.R.Crim.P. 1100(a)(2). In counting these 180 days, certain days are excluded. Pa.R. Crim.P. 1100(d). Specifically, “there shall be excluded”: the period between the filing of the complaint and the defendant’s arrest, where the defendant’s whereabouts were unknown and could not be determined by due diligence; any period for which the defendant waives the rule; and such period as results either from the unavailability of the defendant or his attorney, or from a continuance granted at the request of the defendant or his attorney. Id. Here, there was no period fitting any of these categories. The only period in question was the period from April 6, 1982 (the date of the preliminary hearing) to November 12, 1982 (the date the District Justice’s office discovered that the papers had been misfiled). This period may not be excluded — nor does the Commonwealth claim that it may be — for judicial delay is not excludable under Rule 1100(d). Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. Ellison, 249 Pa.Super. 339, 378 A.2d 325 (1977). Since no days may be excluded, the 180 day period for the commencement of appellant’s trial ended August 30, 1982. Accordingly, the Commonwealth’s petition for an extension of time, not being filed until November 15, 1982, was not filed “prior to the expiration of the period from commencement of trial”, Pa.R.Crim.P. 1100(c), and should have been denied. Commonwealth v. Shelton, supra (application for extension must be filed prior to expiration of period).

-2-

The Commonwealth argues that its petition for an extension of time was properly granted because it exercised “due diligence.” This argument, however, is not available to the Commonwealth. Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977); Commonwealth v. Franklin, 306 Pa.Super. 382, 452 A.2d 777 (1982). Cf. Commonwealth v. Bolden, 336 Pa.Super. 243, 485 A.2d 785 (1984) (timely petition to extend improperly denied where clerk erroneously recorded that all charges against defendant had been dropped, district attorney arranged to have case reopened, and date for trial not set before run date); Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983) (timely petition to extend properly granted for delay caused by defendant not having been brought from jail due to Trial Coordinator’s error and next available court date beyond run date); Commonwealth v. Wroten, 305 Pa.Super. 340, 451 A.2d 678 (1982) (timely petition to extend improperly denied where defendant not brought to court because defendant transferred without notice to court, district attorney asked that defendant be brought down the next day; and where next available court date beyond run date); Commonwealth v. Lewis, 287 Pa.Super. 64, 429 A.2d 721 (1981) (timely petition to extend properly granted where court administrator failed to recall case and this delay was attributable to court and where rescheduling resulted in trial date beyond run date).

Even if the Commonwealth did have available the argument that it exercised due diligence, we should find the argument without merit. It was the Commonwealth’s burden to prove due diligence in the prosecution of appellant. See Commonwealth v. Jones, 314 Pa.Super. 515, 461 A.2d 276 (1983). While it is clear that the Commonwealth was diligent once it learned that the papers on appellant’s case had been misfiled in the District Justice’s office, there is no evidence on the record that it exercised due diligence between the filing of the complaint and the date on which it learned that the papers had been misfiled. See Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982) (proof of due diligence must appear on record). So far as appears, the Commonwealth had no system to assure that cases held for court, especially those in which the Commonwealth attorney was not present at the preliminary hearing, were properly processed. Such a failure in recordkeeping “precludes a finding of due diligence.” Commonwealth v. Metzger, 249 Pa.Super. 107, 113, n. 4, 375 A.2d 781, 784, n. 4 (1977) (citations omitted). Although the standard of due diligence does not require the Commonwealth to exercise every conceivable effort, it does require the Commonwealth to make reasonable efforts. Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981); Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983). Here the record is devoid of evidence of any effort to follow cases in which a preliminary hearing has been held where a Commonwealth attorney is not present and the defendant is bound over for court. Except for the happenstance of appellant’s counsel asking the police officer about the status of the case, the Commonwealth would evidently continue to be unaware of the case. “It is clear that the burden of seeing that trial is commenced rests on the Commonwealth, not the defendant.” Commonwealth v. Bennett, 320 Pa.Super. 150, 155, 466 A.2d 1362, 1364 (1983).

Judgment of sentence reversed and appellant discharged.

      . 75 Pa.C.S. § 3731. The offense occurred prior to the effective date of the amendment of this provision. Act of Dec. 15, 1982, P.L. 1268, No. 289, § 9, effective in 30 days.

      . Because we agree with appellant’s Rule 1100 argument, we do not reach his other arguments.

      . No one from the District Attorney's office testified at the hearing on the petition to extend. The record therefore does not disclose what procedure, if any, was followed for keeping track of cases held over for court. The docket entries for the preliminary hearing do not indicate that an attorney for the Commonwealth was present.

      . The petition is dated November 23, 1982, but the date of filing stamped on the petition is November 30, 1982, and the docket entries confirm the 30th as the date of filing.

      . The Commonwealth concedes that this period was a period of judicial delay, characterizing it as the result of, the “oversight ... of the judiciary.” Brief for Appellee at 7. This was also the trial court’s characterization. Opinion and Order Sur Commonwealth’s Petition for Extension of Time, 12/23/82, at 4.

      . The Commonwealth alleged in its petition for an extension of time, and the trial court found, that the period ended August 26, 1982. Petition, para. 4; Opinion and Order Sur Commonwealth’s Petition for Extension of Time, 12/23/82, at 2. According to our calculations, August 26 was the 178th day, and, because the 180th day fell on a Saturday, the run date was August 30, 1982. However, this discrepancy does not affect the analysis in any way.


author: WIEAND, Judge:

text:
    488 A.2d 284
    Allen FEINGOLD, Appellee, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Darrell K. Duncan, Appellants.
    Superior Court of Pennsylvania.
    Argued May 9, 1984.
    Filed Jan. 30, 1985.

      Perry S. Bechtle, Philadelphia, for appellants.
    M. Mark Mendel, Philadelphia, for appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

Allen Feingold, a member of the Philadelphia Bar, was injured when his vehicle was struck in the rear by a Southeastern Pennsylvania Transportation Authority (SEPTA) bus operated by Darrell Kenneth Duncan. A jury awarded compensatory damages to Feingold in the amount of $218,000.00 against both defendants and punitive damages in the amount of $50,000.00 against SEPTA. The trial court molded the verdict to include delay damages allowed by Pa.R.C.P. 238. On appeal, it is argued that the trial court erred (1) by denying a defense request for continuance; (2) by refusing to allow the defense to call plaintiff’s treating physician as a defense witness after plaintiff had failed to call him; (3) by refusing to allow two Philadelphia judges to testify to plaintiff’s active practice in order to rebut plaintiff’s testimony that his law practice had been curtailed by his injuries; (4) by allowing the jury to award punitive damages against SEPTA; and (5) by assessing delay damages against SEPTA. These are interesting issues, and we will consider them seriatim.

The grant or denial of a motion for continuance lies in the discretion of the trial court; absent a clear abuse of discretion or manifest error, the court’s decision will not be overturned on appeal. Phoenix Mutual Life Insurance Co. v. Radcliffe on the Delaware, Inc., 439 Pa. 159, 165, 266 A.2d 698, 701 (1970); Ragnar Benson, Inc. v. Bethel Mart Assoc., 308 Pa.Super. 405, 417, 454 A.2d 599, 604 (1982). This Court, in Krupa v. Williams, 316 Pa.Super. 408, 463 A.2d 429 (1983), enumerated four factors to be considered in determining whether a continuance should be granted: (1) whether a delay will cause prejudice to the opposing party; (2) whether opposing counsel is willing to continue the case; (3) the length of the delay requested; and (4) the complexities involved in presenting the case. Id., 316 Pa.Superior Ct. at 419, 463 A.2d at 434. See also: Snyder v. Port Authority of Allegheny County, 259 Pa.Super. 448, 453, 393 A.2d 911, 914 (1978).

The motion for continuance in the instant case was made on the first day of trial. It was based upon plaintiffs delayed supplying of information pertaining to his injuries which had been requested by defense interrogatories. The trial court denied the continuance because the request therefor had not been filed timely as required by Pa.R.C.P. 216(C) and because defendants had failed to take earlier steps to compel prompt disclosure of the information sought to be discovered. This did not constitute an abuse of discretion. See: Ragnar Benson, Inc. v. Bethel Mart Assoc., supra; Love v. Harrisburg Coca-Cola Bottling Co., 273 Pa.Super. 210, 417 A.2d 242 (1979). The fact that SEPTA had changed counsel three months before trial did not excuse almost five years of failure to propound interrogatories calculated to discover the nature and extent of the plaintiffs injuries. Cf. Princess Hotels International v. Hamilton, 326 Pa.Super. 226, 473 A.2d 1064 (1984).

We begin our discussion of the second issue by observing that Feingold’s pre-trial statement had included the name of his treating physician among the witnesses whom he intended to call at trial. Deeming the witness’ testimony unfavorable, however, Feingold determined not to call his doctor at trial as his witness. When the defense attempted to call the physician as a defense witness, the trial court precluded the witness from testifying, in response to plaintiff’s objection, because the witness had not been listed in the defendant’s pre-trial statement.

This ruling precluding the doctor’s testimony as a defense witness was premised upon the Civil Trial Manual of the Court of Common Pleas of Philadelphia which required:

In addition to concisely setting forth his factual contentions, each party shall include the following in his pre-trial statement: ... (4) a list by name and address of all witnesses the party intends to call at trial, except those who may be used for rebuttal or impeachment purposes. If the parties learn the names of any additional witnesses after the pre-trial conference, they will promptly exchange names and addresses.

(Civil Trial Manual, pp. 41, 42). The Trial Manual also required the pre-trial conference judge, at the conclusion of the conference, to dictate an order which would include “(c) a list of all non-rebuttal witnesses who may be called at trial.” In the instant case, however, the pre-trial conference judge did not dictate such an order.

To preclude the testimony of a witness is a drastic sanction, and it should be done only where the facts of the case make it necessary. Gill v. McGraw Electric Co., 264 Pa.Super. 368, 382, 399 A.2d 1095, 1102 (1979). In determining whether to allow the testimony of a witness who has not been included in a pre-trial memorandum or in the court’s order entered following pre-trial conference, a trial court should consider:

bad faith on the part of the party seeking to call witnesses not listed in his pretrial memorandum; see Clark v. Pa.R.R. Co., 328 F.2d 591 (2d Cir.1964), cert. denied, 377 U.S. 1006, 84 S.Ct. 1943, 12 L.Ed.2d 1054 (1964); ability of the party to have discovered the witnesses earlier, see Hunt v. Pa.R.R. Co., 41 F.R.D. 349 (E.D.Pa.1967); validity of the excuse offered by the party, Thompson v. Calmar Steamship Corp., 331 F.2d 657, 662 (3d Cir. 1964); willfulness of the party’s failure to comply with the court’s order, Taggart v. Vermont Transportation Co., 32 F.R.D. 587 (E.D.Pa.1963), aff'd, 325 F.2d 1022 (3d Cir.1964); the parties’ intent to mislead or confuse his adversary, Pakech v. American Export Isbrandtsen Lines, Inc., 69 F.R.D. 534 (E.D.Pa.1976); and finally, the importance of the excluded testimony, Clark, supra. Underlying the cases to which we have adverted are these basic considerations: (1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court, and (4) bad faith of [sic] willfulness in failing to comply with the court’s order.

Gill v. McGraw Electric Co., supra, 264 Pa.Superior Ct. at 382, 399 A.2d at 1102, quoting Meyers v. Pennypack Woods Home Ownership Ass’n., 559 F.2d 894, 904-905 (3d Cir. 1977). In the absence of bad faith or willful disobedience of the rule, the most significant considerations are the importance of the witness’ testimony and the prejudice, if any, to the party against whom the witness will testify.

In Nowosielski v. Kryzosiak, 280 Pa.Super. 243, 421 A.2d 703 (1980), the defendant had failed to include a copy of a physician’s medical report in her pre-trial statement, but plaintiffs were well aware that the doctor was a prospective witness because the witness had attended the wife-plaintiff and had been listed by the defendant in her pre-trial statement. This Court held that the trial court did not err in allowing the witness to testify even though a local rule of court specifically provided that when the report of an expert witness has not been furnished, the witness should not be permitted to testify. In view of the lack of prejudice, the Court concluded, the drastic sanction of excluding the testimony of an examining physician was not warranted. Id., 280 Pa.Superior Ct. at 248, 421 A.2d at 706.

The Philadelphia practice requiring a pre-trial identification of non-rebuttal witnesses is analogous to Pa.R.C.P. 4003.5(b). This latter rule provides that an expert witness whose identity has not been disclosed as required by Pennsylvania’s discovery rules shall not be permitted to testify on behalf of the defaulting party, absent extenuating circumstances beyond the control of the defaulting party. It has been held repeatedly, however, that whether an undisclosed witness shall be permitted to testify is discretionary with the trial court and that the trial court should not preclude testimony in the absence of prejudice. Thus, in Royster v. McGowen Ford Inc., 294 Pa.Super. 160, 439 A.2d 799 (1982), this Court said:

In order for a party to obtain a sanction as a result of another party’s failure seasonably to disclose the identity of an expert witness and the substance of the expert’s report, prejudice to the complaining party must be shown.... Therefore, assuming that a party has not acted in bad faith and has not misrepresented the existence of an expert expected to be called at trial, no sanction should be imposed unless the complaining party shows that he has been prejudiced from properly preparing his case for trial as the result of a dilatory disclosure.

Id., 294 Pa.Superior Ct. at 168-169, 439 A.2d at 804 (citations omitted) (footnote omitted). In Kemp v. Qualls, 326 Pa.Super. 319, 473 A.2d 1369 (1984), where there had been late disclosure of an expert witness’ identity and qualifications, the trial court’s decision permitting the expert to testify was upheld by this Court because “it is apparent that the appellant has not demonstrated any real prejudice flowing from the appellee[’s] untimely disclosure of [the expert’s] identity and qualifications.” Id., 326 Pa.Superior Ct. at 330, 473 A.2d at 1374. The Court observed that the appellant had had thirteen days prior to the witness’ appearance in which to investigate the expert’s reputation and expertise and that the trial court had expressly offered to accommodate any difficulty caused by the late disclosure. Id.

Most recently in Augustine v. Delgado, 332 Pa.Super. 194, 481 A.2d 319 (1984), the trial court had permitted expert testimony of a medical doctor in the face of a contention that prior to and during trial appellants had been “subjected to and surprised by deviations in his theories and changes in his expert opinion.” Id., 332 Pa.Superior Ct. at 205, 481 A.2d at 324. This Court found, contrary to appellants’ arguments, that the expert’s testimony had not unfairly prejudiced appellants’ preparation or presentation of their case. The Court observed that the opposing party had been aware of the expert; the expert had testified approximately fifty days after the appellants had been informed of his possible participation; the appellants had received reports, slides, and answers; after trial had commenced, the court had provided the appellants with an opportunity to depose the expert; and the appellants had been able to present rebuttal testimony. The Court concluded that “appellants had the ability and opportunity to cure any prejudice or surprise and that appellees did not demonstrate such bad faith as to require the drastic sanction of precluding” the expert’s testimony. Id., 332 Pa.Superior Ct. at 210, 481 A.2d at 327.

In the instant case, the plaintiff could not have been surprised. The testimony which the defense offered was to be elicited from plaintiff’s treating physician. Plaintiff himself had listed the physician as a trial witness at the time of the pre-trial conference. Not only had the physician’s records been available to the plaintiff for examination, but the plaintiff knew what the substance of his physician’s testimony would be. It was because he knew the nature of the witness’ testimony and that it would be unfavorable to his contentions at trial that plaintiff made the decision not to call his treating physician as his witness. This decision may well have been sound trial strategy. However, the trial court should not have permitted plaintiff’s trial strategy to have the effect of concealing and keeping from the jury the relevant information which this important witness had to impart. Having listed his treating physician as a witness and then having elected not to call him, the plaintiff should not have been heard to cry “prejudice” when the defendant offered to call the physician as a defense witness. The likelihood of achieving a just result in any given trial is directly proportionate to the fact finder’s knowledge and understanding of the relevant facts. In a trial where the primary, if not only, issues are the nature and evaluation of a person’s injuries, that person’s treating physician has a valuable, if not essential, contribution to make. The facts known to him, as well as his medical opinions, should not lightly be excluded.

Appellee argues, and the trial court held, that the physician’s testimony was excludable because appellants had failed in their pre-trial statement to reserve the right to call witnesses listed in appellee’s pre-trial statement. Such a “reservation” is a formality at best. The absence of such an assertion in a pre-trial statement by one party is not an adequate basis on which to reject the testimony of a witness whose identity has been disclosed in the pre-trial statement of the other party and whose substantive testimony is known to both parties. A pre-trial conference may serve as an aid in expediting the resolution of disputed issues of fact at the time of trial by limiting the issues to be decided and directing the future course of the action. Where issues are defined and witnesses fully disclosed, however, relevant testimony cannot properly be precluded at trial according to which party identified the witness at the pre-trial conference. A contrary rule, which would permit exclusion of testimony from a disclosed witness would be fraught with danger and would impair rather than enhance the fact finding responsibilities of a jury. The exclusion of testimony from plaintiff’s treating physician under the circumstances of this case was an abuse of discretion.

We are also of the opinion that it was an abuse of discretion to exclude the testimony of Judges Greenberg and Braig on the basis of the Philadelphia rule. Although pre-trial statements had been prepared by the parties and a pre-trial conference had been held, there had been no order entered which defined issues or limited the witnesses to be called at trial. When the trial court refused to receive testimony from Judge Greenberg and Judge Braig, it relied exclusively on the rule in the Philadelphia Trial Manual. Therefore, we are not now concerned with the Rules of Civil Procedure which pertain to pre-trial discovery. There has been no argument made and, indeed, no basis for supposing that appellants violated any pre-trial discovery rule. We also are not concerned with a pre-trial order of court defining issues for trial and limiting the number and identity of witness. The sole issue, rather, is whether the testimony of these witnesses could properly be precluded by relying upon the local rule. Was the testimony of these witnesses subject to exclusion because the witnesses had not been disclosed in appellants’ pre-trial statement?

Exclusion of testimony from undisclosed witnesses, in the absence of a pre-trial order limiting witnesses, is not required by the language of the local rule. Whether it was necessary to identify Judge Greenberg and Judge Braig as defense witnesses prior to trial, moreover, depended on whether they were to be used for rebuttal or impeachment purposes. If they were to be used to rebut or impeach, the rule did not require that their names be disclosed prior to trial.

“Rebuttal evidence” is defined in Black’s Law Dictionary (5th ed. 1979) as “[ejvidence given to explain, repel, counteract, or disprove facts given in evidence by the adverse party.” However, the term has also been used to mean “[ejvidence which is offered by a party after he has rested his case and after the opponent has rested in order to contradict the opponent’s evidence.” Id. The Philadelphia rule does not define the term “rebuttal” or suggest which definition was intended. The fact that the rule refers to “rebuttal and impeachment purposes” and requires that such witnesses be treated the same suggests an intent to adopt the former. To “impeach” is “[tjo dispute, disparage, deny or contradict____” Black’s Law Dictionary (5th ed. 1979). “[A] witness may be impeached with respect to prior inconsistent statements, contradiction of facts, bias or character.” Id. (definition of impeachment) (emphasis added). See also: Commonwealth v. Hamm, 474 Pa. 487, 500 n. 11, 378 A.2d 1219, 1226 n. 11 (1977) (witness may be impeached by testimony of other witnesses whose version of facts differs from that of witness being impeached). All witnesses, whether called by plaintiff or defendant, may be impeached by the other side. It is not at all unusual during a trial that unanticipated testimony on one side may require rebuttal and/or impeachment by the other side. A rule speaking of witnesses intended to rebut and impeach, therefore, was intended to include witnesses called either by the defense or by the plaintiff.

The purpose of the local rule was to compel pre-trial disclosure of the names of witnesses; it will not be interpreted as a device for excluding relevant rebuttal and impeachment evidence. Where there is ambiguity, the rule will be construed in a manner which is calculated to secure a just determination of the action. This will more likely be achieved by receiving relevant evidence than by excluding it.

The trial court’s decision to preclude the witnesses from testifying was peculiarly inappropriate in this case. The only significant issues to be decided at trial were the nature and evaluation of plaintiff’s injuries. Plaintiff’s answers to pertinent interrogatories had not been filed until five days before trial. Although, as we have held, the trial court could properly deny defendants’ motion for continuance, appellants could not properly, or fairly, be precluded from offering evidence intended to rebut and impeach plaintiff’s testimony regarding the disabling effect of his injuries because rebuttal witnesses had not been identified at a pre-trial conference held prior to the filing of answers to interrogatories.

Whether punitive damages can be assessed against an agency or instrumentality of the Commonwealth has not been considered by the appellate courts of this State in recent years. The general rule, as stated by our Supreme Court as long ago as 1847, is that punitive damages are not recoverable against a municipality. This rule has been followed by a majority of jurisdictions, whose courts have held that in the absence of legislative authority therefor, punitive damages are not recoverable against a state or municipality. See: Annot., 1 A.L.R.4th 448. As a matter of policy, these courts have determined that the purposes to be achieved by assessing punitive damages cannot be achieved where the party to be punished is the Commonwealth or an agency thereof. Therefore, they have held that punitive damages cannot be recovered against a state agency or municipality.

“The purpose[s] of punitive damages [are] to punish the wrongdoer for his outrageous conduct and to deter him and others from engaging in similar conduct in the future.” Feld v. Merriam, 314 Pa.Super. 414, 436, 461 A.2d 225, 236 (1983). In comparison, compensatory damages are meant to compensate for the injury sustained. “[T]he award should be limited to compensation and compensation alone____ [E]xcept in those cases where public policy allows punitive damages, the loss sustained should be compensated with the least burden to the wrongdoer consistent with the idea of fair compensation to the injured.” Incollingo v. Ewing, 444 Pa. 299, 307, 282 A.2d 206, 228-229 (1971).

A plaintiff who receives punitive damages has already been compensated for the wrong suffered by an award of compensatory damages. To the extent that an award of punitive damages is not intended as compensation, the courts have said, it is a windfall to the plaintiff. Punitive damages should be awarded, therefore, only if they serve a valid purpose. As punishment or as a deterrent against a municipality or agency of the state, an award of punitive damages has been held to be ineffective. It is unlikely that state or municipal employees will be deterred by an award of punitive damages against the state or municipality which employes them. Rather, the courts have said, a greater deterrent effect can be achieved when state and municipal officials discipline wrongdoing employees. The courts have also observed that the wealth of the defendant, a relevant factor in assessing punitive damages, is an inappropriate standard for computing punitive damages against a state or municipality which possesses the power to tax. Finally, the courts have observed, the people who must bear the weight of such an award are citizens and taxpayers, the very persons who are to benefit from making a public example of the wrongdoer. See: Chappell v. Springfield, 423 S.W.2d 810, 814 (Mo.1968) (aims of assessing punitive damages not met in municipal context because: (1) payment would ultimately be assessed against taxpayers who are meant to benefit from public example made of wrongdoer; (2) virtually unlimited taxing power of city precludes examination of its wealth, but if trier of fact does not look at wrongdoer’s wealth, punishment is inappropriate; and (3) punishment of municipal employees may better be carried out by superiors who are responsible to electorate); Ranells v. Cleveland, 41 Ohio St.2d 1, 321 N.E.2d 885 (1975) (punitive damages not available where husband and wife were killed when chlorine gas escaped from municipal filtration plant located across street from their home; the court observed the possibility of astronomical awards with municipal defendants while also noting that to eliminate the financial wealth of the defendant would destroy the punishment rationale); Smith v. District of Columbia, 336 A.2d 831 (D.C.App.1975) (punitive damages not available where a citizen sued for false arrest and assault, the court noting that deterrence would not be achieved in municipal context); George v. Chicago Transit Auth., 58 Ill.App.3d 692, 693, 15 Ill.Dec. 896, 897, 374 N.E.2d 679, 680 (1978) (punitive damages not available where fare-paying passenger injured in train collision; “[tjhere is no justification for punishing taxpayers or attempting to deter them from future misconduct committed by CTA employees over whom they would have no control.”); Sharapata v. Islip, 82 App.Div.2d 850, 441 N.Y.S.2d 275 (1981), aff'd, 56 N.Y.2d 332, 339, 452 N.Y.S.2d 347, 350, 437 N.E.2d 1104, 1107 (1982) (“Were sovereign entities open to punitive damage, would this then mean that the monetary worth of the taxing power of the State or locality against whom such a claim might be directed would be a societally acceptable factor, no matter how relevant to the calculation of a just award? To ask the question is to answer it.”). Accord: Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); Newcastle Products, Inc. v. School Dist. of Blair Twp., 18 F.Supp. 335 (W.D.Pa.1936); Fisher v. Miami, 172 So.2d 455 (Fla.1965); Gary v. Falcone, 169 Ind.App. 295, 348 N.E.2d 41 (1976); Berg-Bakis Ltd. v. Yonkers, 90 A.D.2d 784, 455 N.Y.S.2d 645 (1982). See also: Woodsum v. Pemberton, 172 N.J.Super. 489, 412 A.2d 1064 (1980), aff'd, 177 N.J.Super. 639, 427 A.2d 615 (1981) (punitive damages barred expressly by statute, N.J.S.A. 59:9 — 2(c)); Punitive Damage Liability of Municipal Corporations in Pennsylvania, 84 Dick.L.Rev. 267 (1980).

These considerations continue to be valid. SEPTA is an agency and instrumentality of the Commonwealth. Pennsylvania Urban Mass Transportation Law of July 10, 1980, P.L. 427, No. 101, § 3; 55 P.S. § 600.101 et seq. An award of punitive damages against SEPTA is not likely to deter its employees in the future; internal discipline has a better record for achieving employee performance. See: Gary v. Falcone, supra; Chappell v. Springfield, supra. Moreover, an award of punitive damages would in the long run punish the very people the award was intended to benefit — the citizens of Pennsylvania. See: Gary v. Falcone, supra; Fisher v. Miami, supra. “Neither reason nor justice suggests that such retribution should be visited upon the shoulders of blameless or unknowing taxpayers.” Newport v. Fact Concerts, Inc., supra 453 U.S. at 267, 101 S.Ct. at 2760, 69 L.Ed.2d at 632. Where the rationale supporting an award of punitive damages has collapsed, an award cannot be made. Ranells v. Cleveland, supra 41 Ohio St.2d at 7, 321 N.E.2d at 889.

Appellee argues that the traditional rule in Pennsylvania has been altered by decisions of the Supreme Court abolishing sovereign immunity. See: Reinert v. Pennsylvania Department of Transportation, 482 Pa. 612, 394 A.2d 490 (1978); Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978); Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). We do not so interpret these decisions. The Supreme Court abolished the doctrine of sovereign immunity so that citizens would not be denied proper redress for wrongs committed. This redress is accomplished by an award of compensatory damages. Punitive damages, as we have observed, are intended to punish and deter the defendant; they are not intended as compensation for wrongful injury. The Supreme Court, when abolishing sovereign immunity, neither discussed nor considered the allowance of punitive damages against a state or municipality. When a similar argument was made in George v. Chicago Transit Auth., supra, the Court said: “Granting immunity from punitive damages, [as distinguished from sovereign immunity], is based on the lack of utility of punishing taxpayers who are guilty of no wrongdoing and in no position to exert direct control to prevent future misconduct____ [Abrogation of the doctrine of sovereign immunity did not include immunity from punitive damages.” Id. 58 Ill.App.3d at 694, 15 Ill.Dec. at 898, 374 N.E.2d at 681.

We conclude, for the foregoing reasons, that punitive damages are not recoverable against an agency of the Commonwealth and that it was error to instruct the jury otherwise in this case.

Different considerations guide our determination of plaintiff’s right to recover damages for delay pursuant to Pa.R.C.P. 238. Such damages are “merely an extension of the compensatory damages necessary to make a plaintiff whole.” Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 66, 436 A.2d 147, 154 (1981), appeal dismissed sub nom. Bucheit v. Laudenberger, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982). The purposes of Rule 238 are valid and effective regardless of the identity of the defendant. See: Commonwealth v. Twentier, 76 Pa. Cmwlth. 537, 464 A.2d 642 (1983). In view of the fact that the case must go back for another trial, however, delay damages will have to be recalculated following a new verdict.

Reversed and remanded for a new trial on the issue of damages. Jurisdiction is not retained.

      . See also: Pa.R.C.P. 4019(i).

      . Judge Greenberg had been the calendar control judge, and Judge Braig had been specially assigned to a program designed to hear appeals from boards of arbitration.

      . Hermits of St. Augustine v. County of Philadelphia, 4 Clark 120, 7 Pa.L.J. 124 (1847).

      . The provisions of 42 Pa.C.S. § 8528 are not applicable to and do not determine the issue in the present case because they did not become effective until December 5, 1980. It may be observed, however, that this statute, which allows recovery of only limited damages against Commonwealth agencies, does not permit recovery of punitive damages.


author: WICKERSHAM, Judge:

text:
    488 A.2d 293
    COMMONWEALTH of Pennsylvania v. Rigoberto C. HERNANDEZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 15, 1984.
    Filed Feb. 1, 1985.

      William C. Costopoulos, Lemoyne, for appellant.
    R. Scott Cramer, District Attorney, New Bloomfield, for Commonwealth, appellee.
    Before WICKERSHAM, JOHNSON and HOFFMAN, JJ.
   WICKERSHAM, Judge:

On February 5, 1983 at approximately 7:15 p.m., a car driven by appellant Rigoberto Hernandez was involved in a head-on collision with another car on Route 850 in Perry County. The driver of the second car, Kathy Kenee, age 20, died as a result of the collision. Evidence produced at trial showed that appellant was traveling in excess of the speed limit and had crossed the center line into the victim’s lane of traffic. Appellant’s blood alcohol content tested at .26%. Appellant was charged with involuntary manslaughter, 18 Pa.C.S. § 2504(a); homicide by vehicle, 75 Pa.C.S. § 3732; homicide by vehicle while driving under the influence, 75 Pa.C.S. § 3735(a); driving under the influence while impaired, 75 Pa.C.S. § 3731(a)(1); driving under the influence — .10%, 75 Pa.C.S. § 3731(a)(4); and operation of a vehicle with suspended or revoked license, 75 Pa.C.S. § 1543(a).

On March 18, 1983, the Honorable Keith B. Quigley denied appellant’s pre trial motion to dismiss the charges brought under the New Drunk Driving Law on constitutional grounds. In June of 1983, a jury found appellant guilty of all counts. Post trial motions were filed and denied, and on July 15, 1983, appellant was sentenced to the following terms of imprisonment: three (3) to seven (7) years on the homicide by vehicle while driving under the influence conviction; two and one-half ffli) to five (5) years on the involuntary manslaughter conviction; two and one-half (2V2) to five (5) years on the homicide by vehicle conviction; and one (1) to two (2) years on the driving under the influence while impaired conviction. A motion to modify sentence based on constitutional issues was filed and denied. This appeal timely followed.

Appellant raises a number of issues addressing the constitutionality of the New Drunk Driving Law.

Our analysis begins with the strong presumption of constitutionality and the heavy burden of pursuasion [sic] upon one who challenges the constitutionality of an Act of the General Assembly. Snider v. Thornburgh, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981); Commonwealth v. Barnes and Tucker Co., 472 Pa. 115, 123, 371 A.2d 461 (1977), appeal dismissed 434 U.S. 807, 98 S.Ct. 38, 54 L.Ed.2d 65 (1977). Accordingly, legislation will not be declared unconstitutional unless it “clearly, palpably and plainly” violates the constitution. Snider v. Thornburgh, supra; Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 16, 331 A.2d 198 (1975).

Commonwealth v. Mikulan, 504 Pa. 244, 247, 470 A.2d 1339, 1340 (1983).

Appellant’s first attack on the New Drunk Driving Law [hereinafter referred to as the “New Law”] concerns its mandatory sentencing provisions. The New Law establishes several mandatory sentences. In the instant case, appellant received a mandatory minimum sentence of three years imprisonment for his conviction on the charge of homicide by vehicle while driving under the influence. See 75 Pa.C.S. § 3735(a). There are also a number of mandatory minimum sentences, one of which applied to appellant, for driving under the influence convictions. See 75 Pa.C.S. § 3731(e)(1). Appellant urges us to declare these mandatory sentencing provisions unconstitutional for five different but closely related reasons.

First, appellant argues that by setting the penalties to be imposed under the New Law, the legislature has violated the separation of powers doctrine; sentencing of convicted criminals is for the judiciary and not the legislature. We agree with appellant that while some overlap of functions between the branches of government is inevitable, certain aspects of each branch must remain wholly apart from the control of the others. See In re 42 Pa.C.S. § 1703, 482 Pa. 522, 394 A.2d 444 (1978) (power to make rules is that of judiciary alone). Nevertheless, there is a basic distinction between criminal rights which are “procedural,” over which the judiciary has exclusive and express constitutional authority, and rights which are “substantive,” over which the legislature has the power to declare what acts are crimes and to prescribe the punishment for their commission. See Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982); Commonwealth v. Wharton, 495 Pa. 581, 435 A.2d 158 (1981). Although it is the judiciary’s function to impose sentences upon conviction, it is for the legislature to establish criminal sanctions, and, as one of its options, it may prescribe a mandatory minimum term of imprisonment.

Bearing this distinction in mind, we find no significant difference in the language or rationale of the mandatory sentencing provisions in sections 3731(e)(1) and 3735 and the mandatory sentencing provisions in 18 Pa.C.S. § 1102 and 42 Pa.C.S. § 9711 (sentences for murder), or 18 Pa.C.S. § 2704 (sentence for assault by life prisoner). The constitutionality of the latter statutes have been upheld on numerous occasions. See Commonwealth v. Waters, 334 Pa.Super. 513, 483 A.2d 855 (1984); Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983); Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980); Commonwealth v. Middleton, 320 Pa.Super. 533, 467 A.2d 841 (1983); Commonwealth v. Dessus, 262 Pa.Super. 443, 396 A.2d 1254 (1978); Commonwealth v. Bryant, 239 Pa.Super. 43, 361 A.2d 350 (1976). It is neither new nor unique that the legislature has prescribed mandatory sentences. We find no unconstitutional violation of separation of powers herein. “[T]he selection of the [mandatory sentence], being a legislative determination, carries a strong presumption of validity, and of constitutionality.” Commonwealth v. Middleton, supra 320 Pa.Super. at 544, 467 A.2d at 846.

Second, appellant argues that the mandatory sentencing provisions of the New Law impose cruel and unusual punishment in that convicted persons are automatically sentenced to prison terms for “unintentional” crimes. Our supreme court has concluded that the ultimate punishment for a crime — death—does not constitute cruel and unusual punishment. Commonwealth v. Zettlemoyer, supra. Nor is mandatory life imprisonment for first degree murder or assault by a life prisoner cruel and unusual punishment. Commonwealth v. Waters, supra; Commonwealth v. Sourbeer, supra; Commonwealth v. Dessus, supra.

[T]he Pennsylvania prohibition against “cruel punishment”, like its federal counterpart against “cruel and unusual punishment”, is not a “static concept. As Mr. Chief Justice Warren said, in an oft-quoted phrase, ‘[t]he [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ ” Gregg v. Georgia, [428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859, 874 (1976)], quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion). We believe that the most accurate indicators of those “evolving standards of decency” are the enactments of the elected representatives of the people in the legislature.
“[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.” Gregg v. Georgia, supra 428 U.S. at 175-76, 96 S.Ct. at 2926-2927, quoting Furman v. Georgia, supra, 408 U.S. at 383, 92 S.Ct. at 2800.

Commonwealth v. Zettlemoyer, supra 500 Pa. at 74-75, 454 A.2d at 967-68. Our legislature has determined that the current “standards” of decency are met by mandatory sentencing for convictions under the New Law. See Lower ct. op. at 2-4; Congini v. Portersville Valve Co., 504 Pa. 157, 166-68, 470 A.2d 515, 520-21 (1983) (dissenting opinion by Zappala, J.). Also, the mandatory sentences are not disproportionate to the gravity of the problems caused, even if unintentionally, by drunk drivers on our highways. Compare Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980) (upholding the constitutionality of 42 Pa.C.S. § 3732, which imposes criminal liability for unintentional causation of death). The statutes do not impose a penalty so out of proportion to the crimes as to shock a balanced sense of justice.

Third, appellant argues that imposition of the mandatory sentences also violates due process since the individual is denied an opportunity to set forth any mitigating circumstances and is thus deprived of an opportunity to be heard. This same argument was offered and rejected in discussing the constitutionality of the mandatory life sentence imposed in Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1977) and Commonwealth v. Waters, supra. We reject it also. The foundation of due process is the protection of the individual against arbitrary action of the government. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Although the provisions of the New Law state mandatory minimum sentences, there is room for consideration of ameliorative factors in determining the precise sentence between that minimum and the maximum allowed under the Sentencing Code, 18 Pa.C.S. § 1101 et seq. “[T]he Eighth Amendment requirement for individualized consideration of offender and crime in capital cases has not been extended to noncapital offenses.” Commonwealth v. Waters, supra 334 Pa.Super. at 526, 483 A.2d at 861.

The problems caused by drunk drivers in our Commonwealth is well documented. See, Governor’s DUI Task Force Report (October 14, 1982, Harrisburg). We cannot say that an obligatory prison term under 75 Pa.C.S. §§ 3731 or 3735 lacks a rational relationship to the public policy, voiced by our legislature, of reducing the number of fatalities, injuries, and accidents caused by drunk drivers. The fixing of an adequate penalty is properly a matter of legislative concern. The legislature defines the contours of a crime, sets the limits for punishment, and provides for implementing and administering the penal system. It is not our place to interpose constitutional limitations where none need be found. In the instant case, each sentence imposed was within the range of statutory limits under the Sentencing Code. We find that due process of law is not violated when courts accede to legislative authority to frame a coherent statutory scheme for the administration of sentencing for certain criminal offenses. The mandatory sentencing provisions, designed by the legislature to protect human life and property, represent sound public policy, are reasonably related to the ends sought to be accomplished, and are not constitutionally impermissible.

Appellant’s fourth argument is closely related. He contends that the mandatory sentences deny equal protection since the provisions treat similarly situated persons unequally, with no rational basis for the different treatment. Specifically, appellant points to the inequality of treatment of a drunken driver who kills another person and is thus subject to a mandatory jail sentence, and a drunken non driver who kills someone but is not subject to a mandatory jail sentence. ■

A classification distinguishing between those persons subject to the provisions of the Vehicle Code and those not subject to the Code is not a suspect classification. Under the equal protection clause of the fourteenth amendment, the test of the validity of a statutory classification which does not affect with particularity a “suspect class” is whether the classification bears a rational relationship to a legitimate state interest. Commonwealth v. Hicks, 502 Pa. 344, 466 A.2d 613 (1983), appeal dismissed, — U.S. —, 104 S.Ct. 1260, 79 L.Ed.2d 668 (1984). The classification herein is rationally related to a legitimate state interest, i.e., safety on the highways of our state. The creation of a class of persons who drive on public highways with a certain level of alcohol in their blood is neither irrational nor arbitrary. The New Law’s purpose is to decrease automobile accidents and injuries by imposing a penalty upon those who have shown that they are most likely to cause these accidents. By singling out a convicted drunk driver for mandatory sentencing, our legislature has merely addressed itself to a problem urgently requiring remedial action. The deterrence of the misuse of alcohol by drivers is a legitimate governmental interest and the imposition of a mandatory minimum sentence bears a rational relationship to that goal.

In his final attack on the mandatory sentencing provisions, appellant claims that the New Law is unconstitutional because it places excessive and unreviewable discretion in the hands of the prosecuting authority. Appellant argues that if a prosecutor does not wish to see a certain defendant subjected to the mandatory penalties of the New Law, he or she may elect to proceed against that defendant under a different section of the Vehicle Code. This is a slightly different argument than that made in Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977), in which our court held that the discretion of the prosecutor to move or not to move for A.R.D. in a particular drunk driving case does not constitute an improper delegation of the sentencing power. Nevertheless, we find the language in Kindness concerning the discretion of the prosecutor to be applicable herein. Prosecutorial discretion, in and of itself, is not unconstitutional. A prosecutor, especially since the abolition of the grand jury, is vested with considerable discretion in deciding who will or will not be charged. We agree with the lower court that

[a] person charged is either guilty or not guilty. The risk that someone will be charged who should not be charged is not of serious concern because of the safeguard of a trial. The risk that someone will not be charged who should be charged is not greater or lesser now than it was before this [New Law].

Lower ct. op. at 4. The fact that a prosecutor fails to prosecute others similarly situated does not constitute a violation of due process or equal protection and does not render a law or the prosecutor’s conduct unconstitutional. Commonwealth v. Phillips, 248 Pa.Super. 400, 375 A.2d 158 (1977).

Appellant’s second attack on the New Law concerns the constitutionality of the mandatory minimum sentence of 48 hours in jail for convicted first offenders under section 3731. Appellant argues that this section exacts a penalty for the free exercise of a defendant’s right to trial by jury because if that defendant chooses to stand trial, he or she must waive the opportunity to enter the A.R.D. program, which is only available to those who do not request trial by jury. In the instant case, appellant was charged with two counts of driving under the influence. Even assuming, arguendo, that appellant was a first offender under this section, we find that this issue does not arise from appellant’s situation. The alternative disposition of this case by use of A.R.D. was never available to appellant due to the death of Ms. Kenee. Section 3731(d)(3) prohibits the prosecuting attorney from submitting a charge for A.R.D. if “an accident occurred in connection with the events surrounding the current offense and any person, other than the defendant, was killed or seriously injured as a result of the accident.” The accident in which appellant was involved resulted in the death of Ms. Kenee. Therefore, appellant was not faced with the choice of trial by jury or A.R.D., because A.R.D. was never available to him. We will not decide abstract propositions of law that are not necessary to the disposition of actually pending controversies, especially abstract questions which raise constitutional issues. See In re Gross, 476 Pa. 203, 382 A.2d 116 (1978); Wortex Mills, Inc. v. Textile Workers Union, 369 Pa. 359, 85 A.2d 851 (1952).

Appellant’s third attack on the constitutionality of the New Law involves the per se drunk at .10% rule of 75 Pa.C.S. § 3731(a)(4). Appellant argues that this section, which makes it a crime to drive under the influence of alcohol if the amount of alcohol by weight in a person’s blood is .10% or greater, is unconstitutional for several reasons: no rational basis exists for applying the rule to all persons; the rule is vague and uncertain because it fails to provide persons with reasonable notice of the conduct proscribed; and the rule derogates the Commonwealth’s constitutionally mandated burden of proof beyond a reasonable doubt and is a conclusive presumption. Our Supreme Court has recently addressed the due process and vagueness arguments in Commonwealth v. Mikulan, supra, declaring that section 3731(a)(4) is neither void for vagueness nor offends due process. The court in Mikulan, however, did not address the issue of the burden of proof or conclusive presumption.

75 Pa.C.S. § 1547(d) details the applicable presumptions permissible for the amount of alcohol in a driver’s body as determined by chemical testing. If, for example, the B.A.C. (blood alcohol content) tests at .05% or less, it is presumed that the driver was not under the influence and he or she cannot be charged with any violation under section 3731(a)(1) or (4). Should the B.A.C. be more than .05% but less than .10%, such result does not give rise to any presumption but is merely one piece of evidence to be considered. The old presumption of driving under the influence if the B.A.C. is .10% or more has been eliminated under the New Law and now a B.A.C. of .10% or greater “may be introduced into evidence if the person is charged with violating section 3731.” 75 Pa.C.S. § 1547(d)(3). Furthermore, a refusal to submit to chemical testing may be introduced into evidence, but does not give rise to a presumption. 75 Pa.C.S. § 1547(e). Finally, none of the previous sections limit the introduction by either side of any other competent evidence bearing upon whether the defendant was under the influence. 75 Pa.C.S. § 1547(f). See generally Commonwealth v. Griscavage, 336 Pa.Super. 141, 485 A.2d 470 (1984).

Appellant argues that the New Law establishes a new offense — that of driving with a .10% or greater B.A.C. — and effectively erects a conclusive presumption of driving under the influence, shifting the burden to the defendant. We note that there is no .longer a “presumption” of driving under the influence when a defendant registers a B.A.C. or .10% or more. Even under the two previous drunk driving laws in effect before January 14, 1983, however, what the statutes referred to as a “presumption” was, strictly speaking, only a standardized permissible inference. See Commonwealth v. DiFrancesco, 458 Pa. 188, 329 A.2d 204 (1974).

[W]here the presumed fact comprises an element of the crime charged, the inference authorized by a presumption can never be compelled by the court. See generally Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974).
Of course a permissible inference may affect the burden of production in the practical sense that it increases the risk that a defendant who fails to produce countervailing evidence may suffer an adverse verdict. In this sense, the evidence forming the basis of a statutory inference functions no differently from the other evidence in the prosecution’s case: the stronger the evidence against a defendant the greater will be the pressure on him to come forward with evidence in his own defense. It is in this loose, practical sense that courts and legislatures occasionally speak of shifting a burden to the defendant in a criminal case.

Id., 458 Pa. at 193-194 n. 3, 329 A.2d at 208 n. 3.

DiFrancesco went on to hold that the constitutionality of a standardized permissible inference invoked to establish an essential element of the crime charged must be judged by the reasonable doubt standard. The DiFrancesco court found that the permissible inference created by the old driving under the influence laws did satisfy the reasonable doubt standard. We have no doubt that the studies supporting the inference of driving under the influence at .10% or greater under the old laws also support an inference of driving under the influence at .10% or greater under the New Law. The legislature in both cases considered evidence demonstrating that, in virtually all drivers, driving ability is significantly affected by a B.A.C. of .10% or more. See Commonwealth v. Mikulan, supra, and Commonwealth v. DiFrancesco, supra. “It 'is now virtually universally accepted that a person with a [blood alcohol percent] of 0.10 should not be driving.’ ” Commonwealth v. Mikulan, supra 504 Pa. at 249, 470 A.2d at 1341, citing Burg v. People, 144 Cal.App.3d 169, 192 Cal.Rptr. 531, 534 (1st Dist.1983). We find that the .10% rule does nothing more than specify a quantum of evidence which is legally sufficient to sustain proof of this element of the crime. So long as the connection between the test results and the “presumed” fact of being under the influence meets the required standard of rationality under the due process clause, the statute passes constitutional muster. Common wealth v. DiFrancesco, supra, 458 Pa. at 194, 329 A.2d at 208.

Appellant’s fourth attack on the constitutionality of the New Law involves the prohibition against reduction or modification by district justices of the charges brought against a defendant under 75 Pa.C.S. § 3731. Section 3731(f) states that the district justice “shall not reduce or modify the original charges.” Appellant claims that this section is facially unconstitutional as a violation of separation of powers because it forces the district justice to bind over for trial cases for which a prima facie case has not been made out.

Preliminary arraignments and hearings are governed by Rules 140-149 of the Pennsylvania Rules of Criminal Procedure. The district justice is directed either to discharge the defendant if a prima facie case against him or her is not established at the preliminary hearing (Rule 141(d)), or to hold the defendant for court if a prima facie case against him or her is established (Rule 143(a)). Under the Rules of Criminal Procedure, there is no right in the district justice to change any of the charges. At the preliminary hearing, the district justice’s job is merely to determine the existence or non-existence of a prima facie case. We see no conflict between these two alternatives available to the district justice and the provision of section 3731(f). The New Law does not prohibit the district justice from dismissing the case if a prima facie case is not established; it simply prohibits reduction or modification of the original charges. While one could view a dismissal of the charges as the ultimate reduction, we do not think that the legislature intended such an interpretation.

We agree with the lower court’s reasoning that:

[a] possible effect of (f) is to make it clear that the legislature considers its peace and dignity to be adversely affected by a violation of these amendments. The Commonwealth is clearly an affected or aggrieved party. It has directed by this legislation that it does not want cases of this nature settled except by full and complete judicial proceedings. Since the Commonwealth, an affected party, is not willing to agree to a settlement, just as an aggrieved individual may well not be willing to agree to such a settlement, the authority of the district justice to do anything but simply look for the existence of a prima facie case is non-existent.

Lower ct. op. at 7. We do not find any conflict between section 3731(f) and the Supreme Court Rules on the subject. We find the statute to be entirely consistent with standard criminal procedures. Therefore, we do not find section 3731(f) to be unconstitutional.

Appellant’s final challenge to the New Law involves the enhancement provisions of section 3731(e). The New Law establishes penalties for section 3731 offenses based upon the number of prior D.U.I. convictions. In the instant case, appellant’s conviction of driving under the influence was considered to be his second conviction, because he had a previous D.U.I. conviction under a prior drunk driving law. He was thus subject to section 3731(e)(l)(ii), which mandates a minimum mandatory 30 day imprisonment. Appellant argues that this enhancement provision is an unconstitutional violation of due process and constitutes an unconstitutional ex post facto law, because it applies to convictions under laws in force prior to the effective date of the New Law.

This court has already considered the argument that it is improper for the trial court to consider pre January 14, 1983 D.U.I. offenses in applying the mandatory provisions of the New Law and we have found it to be unpersuasive. In Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962 (1984), we held that the use of such prior convictions is not unconstitutional. Referring to the same provision of the law that appellant .questions, section 3731(e)(l)(ii), we said: “The Pennsylvania recidivist section to the ‘drunk driving law’ is not violative of constitutional provisions proscribing ex post facto laws.” Commonwealth v. Grady, supra 337 Pa.Super. at —, 486 A.2d at 966.

From the foregoing, it is clear that appellant’s constitutional objections to the New Law, and therefore to his sentence, must fail. “The legislature, pursuant to its broad police powers to regulate the use of the highways and alcoholic beverages, has infringed upon no constitutionally guaranteed rights or privileges and has clearly and precisely enumerated ascertainable standards of conduct.” Commonwealth v. Mikulan, supra 504 Pa. at 261, 470 A.2d at 1347.

We cannot affirm the judgment of sentence as it now stands, however. Among appellant’s various sentences were the following two: a two and one half to five year sentence for involuntary manslaughter and a two and one half to five year sentence for homicide by vehicle. Based upon our review of the relevant case law, we are constrained to hold that these two sentences cannot stand. Our supreme court has clearly held that under the constitutional prohibitions against double jeopardy, “punishment for homicide by vehicle cannot coexist with punishment for involuntary manslaughter.” Commonwealth v. Houtz, 496 Pa. 345, 349, 437 A.2d 385, 387 (1981). See Commonwealth v. Bostic, 500 Pa. 345, 456 A.2d 1320 (1983); Commonwealth v. Zaengle, 332 Pa.Super. 137, 480 A.2d 1224 (1984).

Once we have determined that a sentence is illegal, this court may either remand for resentencing or vacate and amend the invalid sentence directly. Commonwealth v. Padden, 335 Pa.Super. 51, 483 A.2d 950 (1984); Commonwealth v. Zaengle, supra. Instantly, we are satisfied that vacating the sentence imposed for homicide by vehicle would not affect the sentence imposed for involuntary manslaughter. Both crimes are misdemeanors of the first degree and the maximum sentence of five years was given by the trial court for both crimes. Therefore, it is clear that the trial court could not have increased appellant’s sentence for involuntary manslaughter had it known that the homicide by vehicle sentence would be found to be illegal.

We find the New Law constitutional in all areas raised by appellant. However, the judgment of sentence for homicide by vehicle must be vacated. Judgment of sentence imposed on all other convictions is affirmed.

      . The lower court did not sentence appellant on the driving under the influence — .10% conviction, because it felt that the two driving under the influence convictions merged.

      . Appellant frames the questions involved as follows:
      A. Whether the mandatory three year sentence imposed on persons convicted of "homicide by vehicle while driving under the influence” and the mandatory minimum sentence of 48 consecutive hours in jail imposed on those convicted of a first offense of "driving under the influence of alcohol” are unconstitutional.
      B. Whether the mandatory minimum sentence of 48 consecutive hours in jail for persons convicted of a first offense of “driving under the influence of alcohol” impinges upon, provides coercion against, and penalizes the free exercise of the constitutional right to trial by jury by denying the alternative disposition of charges by Accelerated Rehabilitation [sic] Disposition to defendants who elect a trial by jury and are subsequently convicted.
      C. Whether the "Per Se Drunk Rule at .10%,” which established as a violation of law any act of driving a vehicle while having a .10% or higher BAC, is unconstitutional.
      D. Whether the prohibition against reduction or modification by district magistrates of charges brought under the New Drunk Driving Law is facially unconstitutional as a violation of separation of powers and a denial of due process.
      E. Whether the enhancement of punishment that accompanies a prior conviction for drunk driving applies to convictions under laws in force prior to the effective date of the New Drunk Driving Law and [is] therefore unconstitutional.
      Brief for Appellant at 4.

      . Act of December 15, 1982, P.L. 1268, No. 289, §§ 9-11; 75 Pa.C.S. §§ 3731, 3732, 3735.

      . We are aware of numerous other provisions in which the legislature has determined mandatory sentences to be appropriate and that have not been challenged on constitutional grounds. For example, see 42 Pa.C.S. §§ 9712 (offenses committed with firearms); 9713 (offenses committed on public transportation); 9714 (second and subsequent offenses); 9715 (homicide); 9717 (offenses against elderly persons); and 9718 (offenses against infant persons).

      . We note that a number of cases from Bucks, Chester, Allegheny, and Lycoming Counties are currently pending in our court which question the discretion of the various prosecutors to refuse to recommend a DUI defendant for A.R.D. under the New Law. We offer no opinion herein as to that issue.

      . Other jurisdictions that have addressed the constitutionality of similar drunk driving laws have upheld such laws. See e.g. Burg v. Municipal Court, 144 Cal.App.3d 169, 192 Cal.Rptr. 531 (1983), cert. denied, appeal dismissed, ■ — - U.S. —, 104 S.Ct. 2337, 80 L.Ed.2d 812 (1984); Coxe v. State, 281 A.2d 606 (Del.Sup.1971); Roberts v. State, 329 So.2d 296 (Fla.1976); State v. Basinger, 30 N.C.App. 45, 226 S.E.2d 216 (1976); State v. Gerdes, 252 N.W.2d 335 (S.D.1977); Greaves v. State, 528 P.2d 805 (Utah 1974); State v. Franco, 96 Wash.2d 816, 639 P.2d 1320 (1982); State v. Ball, 264 S.E.2d 844 (W.Va.1980). For a comprehensive list of the per se drunk provisions of other states, see Comment, The New Pennsylvania Drunk Driving Law: Last Call for One-for-the-Road Era, 87 Dick.L.Rev. 805, 834 n. 258-59 (1983).

      . Appellant appears to raise a fourth theory — that the rule violates equal protection because the classification it creates does not have a fair relationship to the object of the legislation. However, based upon our review of the record, this particular theory was neither advanced in pre-trial nor post-trial motions; nor was it addressed by the lower court in its opinion. We cannot review a case upon a theory different from that upon which it was presented to the court below, or raised for the first time on appeal. Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287 (1983); Commonwealth v. Cohen, 270 Pa.Super. 90, 410 A.2d 1264 (1979); Commonwealth v. Waters, 248 Pa.Super. 123, 374 A.2d 1348 (1977).

      . 75 P.S. § 624.1(c) and 75 Pa.C.S. § 1547(d).

      . Pa.R.Crim.P. 145 does provide for dismissal of a non-forceful misdemeanor upon satisfaction or agreement, but the rule is basically designed to effect civil compromises between affected individuals so that substantial justice is achieved and the parties achieve mutual satisfaction. It is not applicable to the case herein.

      . If he had been considered a first offender, he would have been subject to the 48 hour imprisonment provision of section 3731 (e)( 1 )(i).

      . It is well settled that the illegality of sentence is not waivable and may be raised sua sponte by the reviewing court. Commonwealth v. Fulton, 315 Pa.Super. 420, 462 A.2d 265 (1983); Commonwealth v. Roach, 307 Pa.Super. 506, 453 A.2d 1001 (1982); Commonwealth v. Gilliam, 302 Pa.Super. 50, 448 A.2d 89 (1982); Commonwealth v. Thomas, 291 Pa.Super. 263, 435 A.2d 901 (1981).