text:
    452 A.2d 789
    COMMONWEALTH of Pennsylvania, v. Harold J. BOTTCHENBAUGH, Appellant. COMMONWEALTH of Pennsylvania v. James COLLINS, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed Nov. 19, 1982.

      John P. Koopman, Bristol, for appellants.
    Theodore Fritsch, Jr., Assistant District Attorney, Doyles-town, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

This case involves an appeal from a summary conviction for violation of section 7105 of the Crimes Code, 18 Pa.C.S.A. § 7105, Violation of Pool and Billiard Regulations. Appellants were found guilty by a district justice. They appealed to the Court of Common Pleas of Bucks County for a de novo hearing. Following this hearing, the Honorable Oscar S. Bortner also found appellants guilty of violating the Pool and Billiard regulations and this appeal followed.

A review of the record disloses that appellants failed to file any post-verdict motions. Our recent decision in Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981) as well as the comment to Pa.R.Crim.P. 1123 (effective July 1,1981) make it clear that post-verdict motions must now be filed in cases involving summary convictions. However, because appellants filed their appeal prior to the filing of Koch and the effective date of the comment to Rule 1123, we hold that appellants have not waived their right to file post-verdict motions. While the usual remedy applied by this court has been to remand for the filing of post-verdict motions, judicial economy permits us to reach the merits of appellants’ argument.

The sole question raised by this appeal concerns whether Pennsylvania Crimes Code Section 7105 is constitutional. We find that this regulation of pool and billiard rooms is constitutional and therefore affirm the decision of the lower court.

Section 7105 provides:

A person is guilty of a summary offense if he, being a licensed keeper, proprietor, owner or superintendent of any public poolroom or billiard room except as otherwise provided in this section for cities of the first class, permits such place to remain open on Sunday or between the hours of one o’clock antemeridian and six o’clock antemeridian of any secular day, or knowingly allows or permits any person under the age of 18 years to be present in any public poolroom or billiard room, or if he, being a licensed keeper, proprietor, owner or superintendent of any public poolroom or billiard room having at least six tables, in a city of the first class, permits such place to remain open on Sunday, except between the hours of one o’clock postmeridian and ten o’clock postmeridian, or knowingly allows or permits any person under the age of 16 years to be present in any such public poolroom or billiard room.

Act of December 6, 1972, P.L. 1482, No. 334, § 1, effective June 6, 1973, 18 Pa.C.S.A. § 7105.

First, several of appellants’ arguments may be disposed of summarily. Appellants were charged with violating section 7105 of the Crimes Code because they operated a pool room after 1 a.m. in a city not of the first class. They were not charged with either “operating on Sunday” or “allowing any person under the age of eighteen to be present in the •poolroom.” While a defendant in any enforcement proceeding generally has standing to assert any claim that challenges the authority to impose its force upon him, he does not have standing to object to the constitutionality of a statute unless he is affected by that particular feature alleged to be in conflict with the constitution. Commonwealth v. Haldeman, 288 Pa. 81, 135 A. 651 (1927); Commonwealth v. Dollar Savings Bank, 259 Pa. 138, 102 A. 569 (1917); Mesta Machine Co. v. Dunbar Furnace Co., 250 Pa. 472, 95 A. 585 (1915); Smith v. Yellow Cab Co., 87 Pa. Super. 143 (1926), aff’d 288 Pa. 85, 135 A. 858. Cf. Commonwealth v. Van Emburg, 467 Pa. 445, 359 A.2d 178 (1976); Commonwealth v. MacDonald, 464 Pa. 435, 347 A.2d 290 (1975) cert denied 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976). Accordingly, we shall not consider appellants’ arguments regarding the constitutionality of those portions of section 7105 making it criminal to either “operate the poolroom on Sunday” or “allow any person under the age of eighteen to be present in the poolroom” but shall confine ourselves to that portion of section 7105 which regulates the operating hours of pool and billiard rooms in cities not of the first class which are required to be licensed by the individual municipality.

Appellants also argue that courts have held section 7105 is not applicable in townships which did not require pool and billiard rooms to be licensed. Commonwealth v. Hamme, 35 Pa.D. & C.2d 539 (1965); Commonwealth v. Saloom, 40 Pa.D. & C.2d 388 (1966). The plain language of section 7105 limits the applicability, of the section to only those pool or billiard rooms required to be licensed. But we need not consider this argument since appellants are licensed to operate a poolroom in a township which requires poolrooms to be licensed.

Therefore, the constitutional question involved is whether or not the regulation of pool and billiard rooms operating under section 7105 only in cities other than those of the first class which require pool and billiard rooms to licensed, violates the Equal Protection clauses of either the United States or Pennsylvania Constitutions or the Due Process Clause of the United States Constitution.

The standard by which we review an asserted violation of the equal protection clause is well established.

Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions. . ., our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest (Emphasis added)

New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511, 517 (1976) on remand Dukes v. New Orleans 537 F.2d 856 (CA 5 1976); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) on remand McLaughlin v. State 172 So.2d 460 (Fla., 1965).

The Equal Protection clause dictates that:

A classification “must be reasonable, not arbitrary, and must rest upon some grounds of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”

Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147, 155 (1981).

Since the appellants do not contend that their activities in operating a poolroom or billiard room involves either a fundamental right or a suspect classification, their claim of discrimination must be judged by the rational basis test. This inquiry employs a relatively relaxed standard reflecting the judiciary’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520, 525 (1975).

Generally speaking, a legislative classification will not be violative of equal protection if facts may be reasonably conceived to justify the distinction. Adler v. Montefiore Hospital Association of Western Pennsylvania, 453 Pa. 60, 311 A.2d 634 (1973), cert. denied 414 U.S. 1131, 94 S.Ct. 870, 38 L.Ed.2d 755 (1974). Nevertheless, the presumption of validity is not absolute. Commonwealth v. Beam, 227 Pa. Super. 293, 324 A.2d 549 (1974).

The United States Supreme Court recently stated that:

‘The Fourteenth Amendment does not prohibit legislation merely because it is special or limited in its application to a particular geographical or political subdivision of the state’ . . . Rather the Equal Protection Clause is offended only if the State’s classifications ‘rests on grounds wholly irrelevant to the achievement of the State’s objective’ .. .

Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 71, 99 S.Ct. 383, 390, 58 L.Ed.2d 292 (1978).

Appellants cite Kroger Co. v. O’Hara Township, et al., 481 Pa. 101, 392 A.2d 266 (1978) to contend that the classifications of section 7105, like the Blue Law classifications of Kroger, are unreasonable, arbitrary and lack a fair and substantial relation to a legislative objective because it fails to treat all persons similarly situated alike. We disagree. The facts of Kroger are recognizably distinguishable from the present case. Kroger involved Sunday Blue Laws and the patchwork regulation of businesses to create a uniform day of rest. The present case involves a legislative grant of power to cities other than those of the first class to regulate the daily operating hours of pool and billiard rooms through the municipalities licensing powers. 53 P.S. § 23107.

Under the “Home Rule Charter and Optional Plans Law”, 53 P.S. § 1-101 et seq., the legislative and corporate powers of municipalities and the duties of the officers thereof are determined by classifications based upon population. 53 P.S. § 101. However, Philadelphia is the only municipality in the Commonwealth to qualify as a city of the first class under this scheme. The legislature of this Commonwealth in enacting 53 P.S. § 1-101 et seq. granted cities of the first class broad legislative powers, 53 P.S. § 16254, while limiting lesser municipalities to only those police powers specifically delegated by the legislature. 53 P.S. § 23103 (Cities of the Second Class); 53 P.S. § 36006 (Cities of the Third Class). The power to regulate such amusements had not been specifically granted to municipalities prior to section 7105.

Section 7105 of the Crimes Code permits lesser municipalities to minimally regulate the operating hours of pool and billiard rooms through the licensing power the legislature had previously delegated to them, but also guarantees the operators of pool and billiard rooms the right to operate between 10 a.m. and 1 a.m. daily. 18 Pa.C.S.A. § 7105; 53 P.S. § 23107, 53 P.S. § 37601 et seq.

This legislative delegation of police power is analogous to the legislature’s delegation of its police power with regard to the grant of liquor licenses under the Liquor Code. 47 P.S. § 4—472. The distinction of whether the municipality must choose by ordinance or by referendum is not fatal to the analogy. In either case, the legislature has chosen to permit the municipality itself to determine whether the activity needs to be regulated. A municipality might not see any need to require pool and billiard rooms to be licensed and thus, pool and billiard rooms could operate during any hours they chose.

Section 7105 of the Crimes Code provides the maximum regulation of pool and billiard rooms that a municipality could establish while being consistent with appellants’ right to operate a pool and billiard room. We find the legislature’s delegation of this police power previously limited to only cities of the first class to be reasonable since it permits all municipalities in this Commonwealth to minimally regulate this activity if the need arises. Thus we hold that section 7105 is not violative of the Equal Protection clauses of either the United States or Pennsylvania Constitutions.

Appellants also argue that section 7105 violates the Due Process Clause of the United States Constitution. However, appellants erroneously premise this argument on that portion of section 7105 which closed pool and billiard rooms on Sundays which had been suspended by 4 P.S. § 40.1 prior to Kroger. Section 40.1 suspended section 7105 only in so far as it prohibited the operation of pool and billiard rooms on Sundays. We therefore find this argument to be without merit.

For all of the aforementioned reasons, we hold that section 7105 of the Crimes Code is constitutional.

Affirmed.

      . Failure to notify the Attorney General under Pa.R.A.P. 521(a) that an appellant challenges the constitutionality of a statute has been held to be a waiver of that issue. Commonwealth v. Duncan, 279 Pa.Super. 395, 421 A.2d 257 (1980); Commonwealth v. Ashford, 268 Pa.Super. 225, 407 A.2d 1328 (1979). But in the interest of judicial economy and since the plain language of Rule 521(a) excludes its effect where the Commonwealth is a party, the recent policy of this court has been to dispose of these issues on the merits. Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981); Commonwealth v. Linder, 284 Pa.Super. 327, 333 n. 4, 425 A.2d 1126, 1129 n.4 (1981).

      . 4 P.S. § 40.1 suspended those portions of section 7105 which regulated the Sunday hours of pool and billiard rooms prior to Kroger Co. v. O’Hara Township et al., 481 Pa. 101, 392 A.2d 266 (1978).

      . Except Sunday, See footnote 2, supra.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    452 A.2d 793
    COMMONWEALTH of Pennsylvania v. Lance LAWSON, Appellant.
    Superior Court of Pennsylvania.
    Argued April 5, 1982.
    Filed Nov. 19, 1982.

      Mary McNeill Zell, Philadelphia, for appellant.
    Frank Capaldo, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   CAVANAUGH, Judge:

At 1:30 p.m. on September 9, 1980, the owner of a 1979 white Chevrolet Camaro Z 28 automobile reported to the police of Plymouth Township, Montgomery County, that her car had been stolen. At about 3:30 p.m. on the same day police of Tredyffrin Township, Chester County, were notified that gasoline had been stolen from an ARCO Station in Berwyn, Chester County and that a white Camaro Z 28 was involved in the offense. Tredyffrin Township police observed a Camaro automobile meeting the description and gave pursuit. While chasing the suspected vehicle the police officers were advised that the car had been reported stolen earlier in the afternoon.

Appellant, Lance Lawson, was one of the occupants of the automobile and was apprehended by Tredyffrin Township police. He was charged by the police with criminal conspiracy, receiving stolen property, and unauthorized use of an automobile. While the appellant was in the custody of the Tredyffrin Township police, an officer from Easttown Township, Chester County, arrived and served him with a citation charging retail theft of the gasoline from the ARCO Station in Berwyn. This charge involved a summary offense under The Crimes Code, 18 Pa.C.S.A. § 3929 as the amount involved was less than $100.00. On the same evening the appellant was arraigned on the charges of unauthorized use of an automobile, receiving stolen property and criminal conspiracy.

The appellant requested a hearing before a district justice on the charge of retail theft and he was. found not guilty of the charge on January 7, 1981. Subsequently, he filed a motion to quash the information on the other charges since he had been found not guilty of the summary offense. The court below dismissed the motion to quash and the appellant has appealed to this court from the order of dismissal.

The sole issue for our determination is whether the finding of not guilty of the summary offense of retail theft requires dismissal of the charges of receiving stolen property, unauthorized use of a motor vehicle and criminal conspiracy. The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 384 § 1, et seq. 18 Pa.C.S.A. § 110, sets forth the circumstances in which prosecution is barred by former prosecution for a different offense as follows:

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:

(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or
(iii) the same conduct, unless:
(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or

Under the above statute, prosecution is barred following acquittal in a former prosecution “for any offense based on the same conduct or arising from the same criminal episode ...” The appellant relies on the case of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), to support his contention that he would have been placed in double jeopardy if he was tried for the misdemeanor offenses after having been acquitted of the charge of retail theft, a summary offense, as the charges were based on the same criminal episode. In Campana, the defendant was involved in an incident with a police officer and was charged with disorderly conduct. Following a hearing before a justice of the peace he was found not guilty. He was subsequently found guilty of resisting arrest and assault on a police officer. The Supreme Court held that, the defendant was subjected to double jeopardy as the charges arose from the same criminal episode and should have been consolidated at one trial.

The concept of same criminal episode was defined in Commonwealth v. Campana, supra, as “an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series.” 452 Pa. at 248, 304 A.2d at 439. See also Commonwealth v. Green, 232 Pa.Super. 134, 335 A.2d 493 (1975).

A concrete example of what constitutes the same criminal episode is illustrated in Commonwealth v. Breitegan, 276 Pa.Super. 181, 419 A.2d 155 (1980) where the defendant was involved in a two car collision. The driver of the other vehicle was killed and the defendant was hospitalized in critical condition. The defendant was cited for three motor vehicle violations and entered a guilty plea. Subsequently, additional misdemeanor charges were placed against the defendant. The court reversed an order of the lower court denying defendant’s motion to quash the information containing the three misdemeanor charges. This court held that it was clear that all criminal charges brought in both prosecutions arose from the same criminal episode, the fatal accident of July 4, 1978 and the manner in which the appellant operated her motor vehicle immediately prior thereto. In Commonwealth v. Green, supra, this court determined that a defendant’s activities constituted a single episode when he drew a knife and in an ensuing scuffle, two men and a woman were stabbed.

In the instant case, the theft of the gasoline in Berwyn occurred some two hours after the automobile in question was removed from the Plymouth Meeting Mall in Montgomery County. The offense of receiving stolen goods pertaining to the car as well as the charges of criminal conspiracy and unauthorized use of a motor vehicle were completed prior to the offense of retail theft of the gasoline and were unrelated to it. Appellant contends that all that transpired was one criminal episode. He argues that the gasoline was taken in order that the occupants of the Z 28 Camaro might flee the authorities and enjoy the use of their stolen auto and that the purpose of using the automobile was at least partly to avoid apprehension for the retail theft of gasoline. This argument is not based on the record and overlooks the fact that the misdemeanors occurred a considerable time prior to the summary offense, and, of course, the appellant could have been tried for the misdemeanors even if the theft of the gasoline had not occurred.

The appellant relies on Commonwealth v. Edwards, 264 Pa.Super. 223, 399 A.2d 747 (1979) to establish that the offenses in the instant case arose from one criminal episode. In that case two parcels were stolen from a United Parcel Service truck. A man was observed running from the truck and entering an automobile which then sped off. Shortly thereafter a police officer stopped the vehicle and discovered one of the stolen packages inside. The defendant was one of the occupants and repeatedly gave the police officer false identification. He was charged with making unsworn falsification to authorities and entered a guilty plea to this charge in June, 1977. In October, 1977, the defendant was tried for the offenses of criminal conspiracy, theft by unlawful taking and receiving stolen property. Subsequently, the appellant’s motion to quash the indictments charging these offenses was denied by the lower court. On appeal to this court we reversed on the grounds that the Commonwealth erred in not consolidating the unsworn falsification charge with the other charges for trial as the offenses arose from the same criminal episode. This court gave great weight to the fact that the appellant’s attempt to mislead the police occurred within one-half hour of the other alleged offenses and while he was still in the company of his accomplices making their getaway. The court also noted at 264 Pa.Super. 223, 399 A.2d at 750:

And, finally, appellant’s false statements were relevant evidence against him in his trial for the principal offenses; his actions in misleading the police reflected a guilty state of mind. One of the more important considerations in determining whether criminal offenses may and should be joined for trial is whether proof of one offense is relevant to proving the other.

The facts in Edwards, supra, are readily distinguishable from those in the instant case and proof of the offense of retail theft is not relevant to proving the misdemeanor charges against the appellant.

Our case falls within the framework of incidents where the court has found that the activities were not part of the same criminal episodes. In Commonwealth v. Lee, 291 Pa.Super. 164, 435 A.2d 620 (1981) the defendant stabbed a man in the chest and stomach over a debt. He then walked up the street to talk to his girlfriend and forty minutes later he stabbed her in the chest. The defendant argued that since he had a plan to assault a number of people that night as it was “grudge night” on North Woodstock Street, each assault was part of the same criminal episode. This court held that the assaults, although close in proximity in time, were separate activities and not part of a continuous activity. Accordingly, the Commonwealth did not have to consolidate all known charges under the Crimes Code, 18 Pa.C.S.A. § 110(1)(ii). Another case involving an example of a separate episode was where a defendant was stopped for speeding. While the police officer was seated in his patrol car writing a citation, an altercation ensued and the defendant was arrested for aggravated assault and other offenses. The defendant was found guilty of the speeding charges. The court denied his motion to quash the indictments charging aggravated assault, recklessly endangering another person and resisting arrest as the episodes were separate. Commonwealth v. Hackman, 73 D & C 2d 311 (Northampton County—1975).

Finally, the Commonwealth argues that even if the charges in this case arose out of the same criminal episode the summary prosecution for the retail theft occurred after the prosecution.for the misdemeanor charges. We do not reach the merits of this argument as we find that the summary charge on which the appellant was acquitted arose from a different criminal episode than those on which the misdemeanor charges were based.

Order affirmed.

      . The crimes with which the appellant was charged are set forth in the Crimes Code as follows:
      (1) Criminal conspiracy, 18 Pa.C.S.A. § 903.
      (2) Unauthorized use of an automobile, 18 Pa.C.S.A. § 3928.
      (3) Receiving stolen property, 18 Pa.C.S.A. § 3925.

      . This court may hear appeals from an order denying a motion to quash where the motion is based on the appellant’s privilege not to be placed twice in jeopardy. See Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977); Commonwealth v. Edwards, 264 Pa.Super. 223, 399 A.2d 747 (1979).

      . Commonwealth v. Campana, supra, was based on occurrences that took place prior to the effective date of the Crimes Code. However, it was stated in Commonwealth v. Campana at 455 Pa. 622, 314 A.2d 855, 856:
      The result this Court reached in Campana is entirely in harmony with section 110 of our Crimes Code, which became effective shortly after our decision and is now in effect. 18 Pa.S. § 110 (1973) (effective June 6, 1973).

      . To support this argument the Commonwealth relies on Commonwealth v. Erisman, 247 Pa.Super. 476, 372 A.2d 925 (1977) and its genre Commonwealth v. Beatty, 286 Pa.Super. 166, 428 A.2d 624 (1981). In Commonwealth v. Erisman, 247 Pa.Super. 476, 372 A.2d 925 (1977), the defendant was arrested on August 23rd and charged with operating under the influence. On October 2, the officer who made the arrest brought a summary charge of operating a motor vehicle after revocation of operating privileges. On November 1, the defendant entered a guilty plea to the summary charge. On December 3, he was charged with operating under the influence. This Court in an opinion by Spaeth, J. (concurring opinion by Cercone, J. in which Price joined; dissenting opinion by Hoffman, J.) found that the defendant’s trial and conviction for operating under the influence was not barred by Section 110(l)(ii) because the prosecution for the summary offense was not a “former” but a “subsequent” prosecution. The reasoning was based on the fact that the warrant for operating under the influence was issued on August 24, and the prosecution commenced on that date. The summons on the summary charge of operating after revocation was not issued until October 2, and therefore the prosecution for operating under the influence was “former” to and could not be barred by the summary prosecution for operating after revocation of privilege. Judge Hoffman dissented on the ground that Section 110 barred the prosecution for operating under the influence and that the majority engaged in a “tortuous reading” of Section 110. 247 Pa.Super. at 482, 372 A.2d at 928.

        In Commonwealth v. Beatty, 286 Pa.Super. 166, 428 A.2d 624 (1981), this court was again confronted with criminal activity arising out of the same criminal episode. This court held that on the basis of Commonwealth v. Erisman, supra, the summary proceedings did not bar prosecution for aggravated assault, as the aggravated assault prosecution was commenced before the prosecution for the summary offense and therefore it was “former” to the summary offense. Judge Wickersham in a dissenting opinion stated that former prosecution should refer to the first trial or guilty plea proceeding and not to the first crime charged against the defendant, and noted his disagreement with “... Erisman and its convoluted formula.” 286 Pa.Super. at 171, 428 A.2d at 627.


text:
    452 A.2d 797
    COMMONWEALTH of Pennsylvania v. Lorenzo FRANKLIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1982.
    Filed Nov. 19, 1982.

      William F. Ochs, Public Defender, Reading, for appellant.
    George C. Yatron, District Attorney, Reading, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   CAVANAUGH, Judge:

Appellant, Lorenzo Franklin, following a jury trial was found guilty of burglary, criminal trespass, and criminal conspiracy. The lower court denied post verdict motions and sentenced the appellant to concurrent terms of incarceration of not less than two years nor more than eight years on each conviction, a fine of $250.00 on each conviction and the costs of prosecution on each conviction.

The first question raised on appeal is whether the evidence was sufficient to support appellant’s conviction for burglary. Our review of the record leads us to the conclusion that the evidence was sufficient to support his conviction of burglary and, accordingly, the judgment of sentence is affirmed.

When appellant challenges the sufficiency of the evidence supporting his conviction, we must accept as true all the evidence upon which the finder of fact could properly have reached its verdict and give the Commonwealth the benefit of all reasonable inferences arising from the evidence. Commonwealth v. Gonzales, 297 Pa.Super. 66, 443 A.2d 301 (1982) citing Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818, 820 (1979). So considered the facts of this case are as follows: On July 29, 1980, at or about 2:55 p.m., Sergeant Charles R. Broad of the Reading Bureau of Police, following a request for an investigation by Gerald Hertz, found three black males in a one-floor showroom-warehouse at 407 N. Front Street in Reading, Pennsylvania. Appellant and one co-defendant, Kevin Scott were found standing in the showroom while co-defendant John Alvarez was up a ladder in the warehouse unscrewing a plate which held up the automatic door opener. (N.T. p. 38).

When Sergeant Broad questioned the three individuals as to their names, addresses, dates of birth and phone numbers, appellant identified himself as Frank Lorenzo and not as Lorenzo Franklin. (N.T. p. 61). When questioned about why they had entered the premises, co-defendant Kevin Scott first stated that they had observed several juveniles enter the building and were concerned for their safety. After being told that the officer found no other individuals in the premises, Mr. Scott stated that they were employed by and given permission by Wayne Knox of Neighborhood Housing Services to be in the premises. Appellant agreed with this explanation by Mr. Scott. Sergeant Broad did not detain the three individuals at that time.

At the time of the incident, the premises, two attached buildings (a warehouse and a showroom) were owned by Hertz Enterprises, Incorporated (Hertz) according to Gerald Hertz, president and sole shareholder of Hertz. Mr. Hertz testified that the premises had been used to store plumbing, heating and industrial related supplies for fifteen years (N.T. p. 18, 19, 25). Mr. Hertz stated on the record that these premises were not vacant and that he did not give appellant permission to enter the premises or remove anything from the premises, (N.T. p. 21) nor were the premises open to the public. Finally, Mr. Hertz testified that though the building had been vandalized to quite an extent, the windows which had been knocked out were boarded up a month prior to the incident. (N.T. p. 33).

Further, James Witchell, the owner of a neighboring business of the premises, watched the premises for Mr. Hertz. Mr. Witchell stated that on a regular basis both he and his employee, Henry Hunsicker, had to either scare off intruders or call the police. Mr. Witchell testified that Sergeant Broad had asked him to accompany him while he inspected the premises on July 29, 1980. At trial, Mr. Witchell identified the appellant as one of the intruders questioned by Sergeant Broad that day. Finally, Mr. Wit-chell stated that he had not given the appellant permission to enter or to remove anything from the premises, nor were the premises open to the public on July 29,1980.

Wayne Knox, executive director of Neighborhood Housing Services of Reading, testified that he knew both of the defendants and that neither had been contacted by or in any way associated with Neighborhood Housing Services on July 29, 1980. (N.T. p. 72-73). Mr. Knox conceded that he had spoken to Kevin Scott on a prior occasion about renovating old houses but reiterated that Mr. Scott was not working for Neighborhood Housing Services on that date.

Appellant challenges the sufficiency of the evidence to convict him of burglary because he claims that the Commonwealth failed to prove that the appellant entered the premises with the intent to commit a crime. We disagree.

Under the Crimes Code of Pennsylvania, a person is guilty of burglary if he enters a building or occupied structure with the intent to commit a crime therein, unless the premises are at the time open to the public or the person who enters is licensed or privileged to do so. 18 Pa.C.S.A. § 3502(a). In order to prevail at trial, the Commonwealth must prove beyond a reasonable doubt the following three elements: (1) entry of a building or occupied structure by the defendant; (2) with the contemporaneous intent on the part of the defendant of committing a crime therein; (3) at a time when the premises are not opened to the public and the defendant was not then licensed or privileged to enter. Commonwealth v. Tingle, 275 Pa.Super. 489, 419 A.2d 6 (1980); Commonwealth v. Brosko, 243 Pa.Super. 312, 315, 365 A.2d 867, 868 (1976).

Commonwealth v. Gonzales, supra, 297 Pa.Super. at 72, 443 A.2d at 304.

At trial, the evidence showed that the appellant, Kevin Scott and John Alvarez entered the building without the permission of either Gerald Hertz (owner) or James Witchell (who watched the premises for Mr. Hertz) at a time when it was not open to the public. Thus, our focus, as appellant agrees, is limited to whether sufficient evidence was adduced at trial to prove beyond a reasonable doubt that appellant intended to commit a crime at the time appellant entered the warehouse.

The Commonwealth may prove its case by circumstantial evidence, and the specific intent to commit a crime necessary to establish the second element of burglary may thus be found in the defendant’s words or conduct, or from the attendant circumstances together with all reasonable inferences therefrom. Commonwealth v. Madison [263 Pa.Super. 206, 397 A.2d 818], supra; Commonwealth v. Nutter, 256 Pa.Super. 111, 389 A.2d 626 (1978).

Commonwealth v. Gonzales, supra, 297 Pa.Superior Ct. at 73, 443 A.2d at 304-305.

Applying these principles to the present case and accepting all of the Commonwealth’s evidence as true, we conclude that there was sufficient evidence to support the jury verdict that the appellant was guilty of burglary beyond a reasonable doubt. Neither Mr. Hertz or Mr. Witchell had given appellant permission to enter the premises nor was the premises open to the public. When discovered, appellant and Kevin Scott were holding an automatic door opener in their hands while still inside the showroom. When questioned about what they were doing on the premises, Kevin Scott fabricated two different stories which the appellant agreed with. See Commonwealth v. Crocker, 280 Pa. 470, 421 A.2d 818 (1981) (story fabricated in response to police questioning need not be believed—i.e. question of credibility for the trier of fact).

Indeed, we believe that the circumstances in this case taken together give rise to an exceedingly strong inference that appellant entered the building with the intent to commit a theft. Commonwealth v. Turner, 290 Pa.Super. 428, 434 A.2d 827 (1981). Accordingly, we hold that there is sufficient evidence to support appellant’s conviction for burglary. Commonwealth v. Gonzales, supra, (entry of garage not open to public without permission creates inference of intent to commit theft); Commonwealth v. Madison, supra.

Appellant also argues that the lower court erred by charging the jury with the elements of theft because (1) appellant had not been formally charged by information with theft; (2) no evidence was presented at trial concerning theft; and (3) neither the defense nor the prosecution requested the theft charge. We disagree.

The criminal information charged appellant as follows: The DISTRICT ATTORNEY of Berks County by this Information charges that on or about the 29th day of July, 1980, LORENZO FRANKLIN aka FRANK LORENZO; FIRST COUNT: the defendant above named, in the County of Berks, did enter, without license or privilege, a certain building or occupied structure, to wit, READING HERTZ SUPPLY, 407 N. FRONT STREET, CITY OF READING, BERKS COUNTY, PA., or separately secured or occupied portion thereof, which said permises were not then open to the public, with intent to commit a crime therein, in violation of Section 3502(a) of the Crimes Code, the Act of December 6, 1972, No. 334.

While appellant recognizes that it is not necessary in a burglary prosecution to specify in the Criminal Information the crime which the accused intended to commit, Commonwealth v. Madison, supra, it is incumbent upon the Commonwealth to prove that a defendant intended to commit a crime in the building. 18 Pa.C.S.A. § 3502(a). Presently, the Commonwealth sought to prove that appellant intended to commit the crime of theft of the automatic garage door opener that the appellant and Kevin Scott were holding as stated in the criminal complaint. The lower court properly instructed the jury on the crime that the appellant intended to commit to clarify what the Commonwealth had to prove in order to convict the appellant of burglary. Commonwealth v. Madison, supra. To not require the Commonwealth to specify which crime the accused in a burglary prosecution intended to commit, yet prohibit a jury instruction on the crime the Commonwealth sought to prove that a defendant intended to commit, would effectively deny the defendant an instruction on one of the elements of burglary —i.e., that appellant intended to commit a theft therein— and would leave a jury to speculate.

Since sufficient evidence was presented concerning theft at trial, the lower court properly instructed the jury concerning theft though not requested by either the Commonwealth or the defense.

Finally, appellant argues that the crimes of burglary and criminal trespass merge and that he can not, therefore, be convicted of both. Criminal trespass is not a lesser included offense of burglary, Commonwealth v. Voltz, 285 Pa.Super. 614, 427 A.2d 1215 (1980) citing Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660 (1978), and thus appellant was properly convicted of both crimes. However, the two crimes do, in this case, merge for sentencing purposes. The following statements of this court in the recent case of Commonwealth v. Cadogan, 297 Pa.Super. 405, 443 A.2d 1185, 1186-87 (1982) are relevant here.

“[I]n merger of sentence cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be a merger and only a single sentence may be imposed.”² Commonwealth v. Crocker, 280 Pa. Superior Ct. 470, 475, 421 A.2d 818, 820 (1980) (burglary and criminal trespass). See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976) (rape and statutory rape); Commonwealth v. Eberts, 282 Pa. Superior Ct. 354, 422 A.2d 1154 (1980) (robbery and reckless endangerment); Commonwealth v. Lezinsky, 264 Pa. Superior Ct. 476, 400 A.2d 184 (arson and criminal mischief). Applying these principles, we hold that the lower court erred in imposing separate sentences for burglary and criminal trespass, for in practical effect, appellant participated in but one unlawful entry. Accordingly, we vacate the judgment of sentence for criminal trespass. Because the sentence for the less serious crime of criminal trespass did not influence the sentences for burglary and conspiracy,³ we need not remand for resentencing. Commonwealth v. Crocker, supra; Commonwealth v. Eberts, supra. (Footnotes omitted).

Judgment of sentence for criminal trespass is vacated. Judgments of sentence for burglary and criminal conspiracy are affirmed.

      . 18 Pa.C.S.A. § 3502(a).

      . 18 Pa.C.S.A. § 3503.

      . 18 Pa.C.S.A. § 903.

      . Although appellant did not argue merger below, this issue is not waived. Commonwealth v. Walker, 468 Pa. 323, 330 n. 3, 362 A.2d 227, 230 n. 3 (1976) (imposing multiple sentences for single criminal act is “beyond the power” of a sentencing court); Commonwealth v. Crocker, 280 Pa.Super. 470, 474 n. 2, 421 A.2d 818, 820 n. 2 (1980).


author: BROSKY, Judge:

text:
    452 A.2d 801
    Stephanie Jo JENNIS, on Behalf of herself and behalf of Lauren JENNIS, her natural daughter, Appellants, v. Alan STILLMAN.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1979.
    Filed Nov. 19, 1982.
    Petition for Allowance of Appeal Denied March 21, 1983.

      Mark B. Dischell, Lansdale, for appellants.
    Francis Recchuiti, Norristown, for appellee.
    Before WICKERSHAM, BROSKY and ROBERTS, JJ.

       Justice Samuel J. Roberts of the Supreme Court of Pennsylvania is sitting by designation.

   BROSKY, Judge:

On October 9, 1974, Stephanie Jo Jennis gave birth to a daughter, Lauren Jennis, out of wedlock. A criminal prosecution in support/paternity against appellee, the putative father, was brought on or about April 20, 1977, more than two years after Lauren’s birth. The criminal action was subsequently “nolle-prossed” by the district attorney. On March 7, 1979, appellant filed a civil complaint for support pursuant to the Civil Procedural Support Act, as amended. Appellee therafter filed preliminary objections to the complaint on the ground that the statute of limitations barred appellant’s action. On May 9, 1979, the court below sustained appellee’s preliminary objections, holding that because the amended civil statute under which appellant’s complaint was brought, became effective after the prior criminal statute had run, allowance of appellant’s civil action would involve a retroactive application of the civil statute, forbidden by the Statutory Construction Act of 1972. Accordingly, the court held that appellant’s complaint was barred by the prior criminal statute of limitations.

Appellant argues that the intent of the Legislature in establishing 62 P.S. § 2043.31 et seq. was to provide for a new, independent means of securing support, for children born out of wedlock. Since her child was born within six years of the filing of her civil complaint, appellant contends that her action is timely and not barred. We agree and therefore reverse the order of the court below.

In Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982), allocatur denied August 27,1982, and Commonwealth ex rel. Johnson v. King, 297 Pa.Super. 431, 444 A.2d 108 (1982), we held that the enactment of the new civil support statute provided a new and independent procedure for the enforcement of an existing and continuing right to receive support, and that this right was not extinguished by the repeal of the criminal statute of limitations in 1978. Such analysis, we held, is not “[ajnalogous to applying the new statute of limitations retroactively.” Williams v. Wolfe, supra, 297 Pa.Super. at 277, 443 A.2d at 835.

Where, as here, no vested right or contractual obligation is involved, an act is not retroactively construed when applied to a condition existing on its effective date even though the condition results from events which occurred prior to that date. “A statute is not retrospective . .. because a part of the requisites for its action is drawn from a time antecedent to its passing”: Endlich, Interpretation of Statutes, § 280. “However, a statute is not regarded as operating retroactively because of the mere fact that it relates to antecedent events, or draws upon antecedent facts for its operation”: 50 Am.Jur.Statutes, § 476. See also 59 C.J., Statutes, 690.

Id., 297 Pa.Superior Ct. at 277, 443 A.2d at 835, quoting Creighan v. City of Pittsburgh, 389 Pa. 569, 575-76, 132 A.2d 867, 871 (1957).

Also, as in Williams, appellant is seeking support only for the period of time forward from the date of the filing of her complaint, March 7, 1979, and therefore “[i]t cannot be said that the statute would be retroactive as to the duty of support prior to the effective date of the new act ... . ” Williams v. Wolfe, supra 297 Pa.Super. at 277, 443 A.2d at 835.

In the case at bar, a criminal prosecution was commenced subsequent to the child’s second birthday, but was concluded via the nolle prosequi which was prior to the effective date of the repeal of the prior criminal statute of limitations on June 27, 1978.

As we held in Williams v. Wolfe, supra, “[t]he repeal of the criminal statute of limitations never extinguished the civil right to support, but only the ancillary criminal enforcement remedy.” Id., 297 Pa.Superior Ct. at 278, 443 A.2d at 835.

Accordingly, we hold that appellant’s civil action for support is not barred, and we reverse the lower court’s May 9, 1979 order and remand the case for further proceedings consistent with this opinion.

      . Act of April 28, 1978, P.L. 106, No. 46, § 2, eff. June 27, 1978.

      . See footnote 1, supra.

      . 18 C.P.S.A. § 4323(b).

      . 1 Pa.C.S.A. § 1926.

      . 42 Pa.C.S.A. § 6701 et seq.


text:
    452 A.2d 803
    COMMONWEALTH of Pennsylvania v. Catherine GOTTO, Appellant.
    Superior Court of Pennsylvania.
    Argued March 10, 1980.
    Filed Nov. 19, 1982.
    Petition for Allowance of Appeal Denied May 9, 1983.

      Robert C. Brown, Jr., Easton, for appellant.
    John E. Gallagher, District Attorney, Easton, did not file a brief on behalf of Commonwealth, appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

Appellant, Catherine C. Gotto, was convicted of homicide by vehicle and driving while under the influence of alcohol, by a jury, on April 26, 1978. She was convicted also of the summary offense of “Meeting of Vehicles Proceeding in Opposite Direction” by the court on May 15, 1978. Post-verdict motions were denied. On May 2, 1979, Gotto was sentenced to serve one year imprisonment. This appeal followed. We affirm the decision of the trial court.

The following issues are raised in this appeal:
1. The homicide by vehicle statute is unconstitutional.
2. The homicide by vehicle statute is contrary to common law.
3. The summary conviction is a nullity.
4. That blood-alcohol test results obtained by the Commonwealth were inadmissible.
5. That statements made to the police shortly following the accident were inadmissible.
6. That cross-examination was wrongfully limited.
7. That photographic evidence concerning the accident scene was relevant and should have been admitted.
8. That requested points for charge should have been read.
9. That the court’s charge invaded the province of the jury.

We will address the issues in the order which they have been presented us.

This case has arisen out of the following circumstances. Gotto was involved in a three-car accident in Bushkill Township, Northampton County, on October 14,1977 at 11:20 p.m. At the time of the accident it was raining. Gotto testified that she lost control of her car because a truck driven by Brooks Engler had crossed the center line in the approaching traffic. Gotto then lost control, drove in the opposite lane, and struck an oncoming car operated by Elwood Sandt. Sandt was killed. Engler testified the accident occurred when Gotto crossed the center line striking his truck. That she subsequently lost control and finally collided with the vehicle driven by Sandt.

Gotto was injured in the accident. She was taken to the emergency room at St. Luke’s Hospital in Bethlehem. She consented to having blood drawn to be used for medical purposes. She signed a consent form. Gotto, however, has no recollection of signing a consent form. Some time later, the police arrived at the hospital to ask Gotto some questions related to the accident. The police subsequently asked the hospital to test the blood they had taken from Gotto, with her consent, for its alcohol content. The test was performed on October 17, 1977. It indicated a .2 percent alcohol level.

We have said very recently that the statute defining homicide by vehicle is constitutional and that it is not contrary to common law. Accordingly, we are satisfied that the trial court correctly held that the statute was constitutional and not contrary to common law. Commonwealth v. Koch, supra.

Next, Gotto claims that her summary conviction for “Meeting of Vehicles Proceeding in Opposite Directions” is a nullity because she was convicted more than three days after trial in violation of Pennsylvania Rule of Criminal Procedure, Rule 1122. Summary proceedings are actually governed by Pennsylvania Rule of Criminal Procedure, Rule 63 which in pertinent part states:

(e) The verdict and sentence, if any, shall be announced in open court immediately upon the conclusion of the trial.

We have held that an issue raised on appeal concerning the court’s compliance with Rule 63(e) is waived if the defendant fails to object to the court’s actions. Gotto failed to object to the court taking the summary charge under advisement. The issue is waived. Commonwealth v. Wadzinski, 239 Pa.Super. 76, 361 A.2d 790 (1976).

Gotto asserts that the results of a blood-alcohol test were improperly admitted into evidence because the test was performed in violation of her statutory rights under Section 1547 of the Motor Vehicle Code. Specifically, she argues that her consent to a blood test could not have been a knowing one because she had not been advised of her right to submit instead to a breath test.

The suppression court found as a fact that a police officer who met with appellant at the hospital on the evening of the accident asked for her permission to conduct a blood alcohol test. Appellant agreed and signed a written consent form. The test was subsequently made on a blood sample that had been drawn earlier for medical purposes.

We do not agree that appellant’s consent was vitiated because she was not told that a breath test might have been made.

Section 1547 of the Motor Vehicle Code provides in pertinent part:

(a) General rule.—Any person who operates a motor vehicle in this Commonwealth shall be deemed to have given consent to a chemical test of breath or blood for the purpose of determining the alcoholic content of blood if a police officer shall have reasonable grounds to believe the person to have been driving a motor vehicle while under the influence of alcohol. The test shall be administered by qualified personnel and with equipment approved by the department. Qualified personnel means a physician or a technician acting under the physician’s direction or a police officer who has fulfilled the training requirements in the use of such equipment in a training program approved by the department.
(g) Blood test in liew of breath test.—If for any reason a person is physically unable to supply enough breath to complete a chemical test, a physician or nurse or a technician acting under a physician’s direction may withdraw blood for the purpose of determining its alcoholic content. The chemical analysis of the blood taken under these circumstances shall be admissible in evidence in the same manner as are the results of the breath chemical test. .The operating privilege of any person who refuses to allow a blood test under the above circumstances shall be suspended pursuant to subsection (b).

The specific provision of subsection (g) do suggest that a blood test is to be made as an alternative to the first choice breath test. This court has termed the blood test the “less desirable alternative.” See Commonwealth v. Funk, 254 Pa.Super. 233, 385 A.2d 995 (1978).

However, in Funk, supra, we also said that the Vehicle Code is to be interpreted with a “gloss of reasonableness.” In Funk, the appellant driver was seriously injured in an automobile accident and at the time the blood test was administered, was passing in and out of consciousness. We wrote: “the decision to take a blood sample, the less desirable alternative, will not be faulted where there is a reasonable basis for believing that a driver in a precarious medical condition will not be able to summon enough breath to complete a breathalyzer test.”

We are not given reason to believe that appellant in the instant matter was unable to take a breathalyzer test. Perhaps the police should have instead requested that test.

We are not, however, prepared to reverse the decision on the grounds that lack of information as to the breathalyzer test rendered appellant’s consent involuntary. This is because we believe that under the circumstances of this case, the testing of blood rather than breath was if error at all, harmless error. Appellant’s blood had been drawn before the request to test was made by the police. She was subjected to no further intrusion or search.

Gotto complains that any statements she made to the police at the hospital shortly after the accident were improperly admitted into evidence.

In Commonwealth v. Bussey, 486 Pa. 221, 232, 404 A.2d 1309, 1315 (1979), our Supreme Court said that statements given to police, who are engaged in an interrogation of a defendant, shall only be admissible if the defendant is proven to have waived his rights prior to giving the incriminating statements. In the instant case, Gotto was read her Miranda warnings and gave a statement to the police. There is a signed waiver form in the record. Gotto contends that the waiver was not valid because of her unclear mental condition at the time of the investigation. We are satisfied after a review of the record, that her waiver was valid. However, Gotto complains that she was not informed that a death had occurred in the accident, that therefore, she was unaware that she could be charged with homicide by vehicle, and that accordingly the waiver could not be valid. In Commonwealth v. Reaves, 279 Pa.Super. 581, 586, 421 A.2d 351, 354 (1980), we said:

Defendant cites the case of Commonwealth v. Dixon, 475 Pa. 17, 379 A.2d 553 (1977) in support of his proposition. In that case the court held that a defendant’s waiver of her Miranda rights was ineffective because she misapprehended which of two offenses the police were investigating when she was questioned. The defendant thought that she was being questioned about her failure to make restitution in connection with a malicious mischief charge when instead the questioning concerned a murder. During the questioning the defendant admitted killing her son and was charged with that murder. The Supreme Court held that defendant’s statement in which she admitted killing her son to the police was inadmissible at trial because the defendant was not aware of the nature of the investigation at the time she waived her rights. Dixon, supra, therefore, stands for the proposition that an accused must be aware of the nature of the investigation at the time of the questioning before a waiver of Miranda rights can be held to be effective. It does not mean that an accused must be aware of all the consequences which might flow from a waiver of his Miranda rights before he can effectively waive them. A suspect, therefore, need not have knowledge of the “technicalities” of the criminal offense involved; rather, it is necessary only that he be aware of the “transaction” involved. Commonwealth v. Dixon, supra; Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974). We also hold that a defendant need not be aware of every conceivable consequence which might flow from a waiver of his Miranda rights in order to effectuate such a waiver as it is impossible to foresee every such possible consequence. We merely hold that the defendant must be informed that his statements can and will be used against him in a court of law as required in Miranda. Since the defendant was informed of this we hold that his waiver was effective and we refuse to hold that because he was also informed that his statements could be used against him in a juvenile proceeding that such warning constituted a promise to him that he would be handled as a juvenile.

The record indicates that Gotto was completely aware of the criminal transaction involved in her interrogation. We are convinced that the waiver was valid.

Gotto remonstrates also that her cross-examination of Mr. Brooks Engler was improperly limited. Specifically, Gotto complains that she should have been permitted to ask En-gler, one of the other drivers in the accident, whether he had been arrested or charged with any crime arising out of the accident. Gotto argues that since Engler was not charged with any crimes following the accident, and because under his version of the accident he should have been charged, that her questioning would have demonstrated Engler’s bias or prejudice.

The scope of cross-examination in a criminal prosecution is within the discretion of the trial court and will not be reversed absent an abuse of discretion. Commonwealth v. Rhem, 283 Pa.Super. 565, 424 A.2d 1345 (1980). Gotto essentially contends that Engler caused the accident. She sought to pursue this theory during her cross-examination of Engler. We are unable to find that the trial court abused its discretion because Gotto was able to present this defense through her own testimony. The record indicates that she would not have been able to extend further credence to her theory through the cross-examination she suggests herein that she was improperly denied.

Next, Gotto claims that photographic evidence concerning the accident scene was relevant and should have been admitted. These photographs taken on Gotto’s behalf showed the accident scene not immediately following the accident but some time after all the wreckage had been cleared. Gotto desired to admit the photographs into evidence in order to show a sampling of traffic and the traffic patterns followed. The record indicates that two of the photographs showed cars swerving out of their lane into the opposing lane. The other photograph showed a car in the proper lane. Gotto sought to use these photographs to prove that Engler probably swerved out of his lane. The admission of photographs into evidence is a matter within the discretion of the trial court. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). We cannot find an abuse of discretion here because Gotto was able to present this defense through her own testimony.

Gotto asserts further that her requested points for charge should have been read. Five of the six requested points for charge which were not adopted by the trial court concerned the degree of culpability required in order to be convicted of homicide by vehicle. Each requested charge stated that Gotto must be proven to have intentionally, recklessly and knowingly drove in a manner which resulted in the two deaths. We are satisfied that the trial court’s charge in this respect was proper. Commonwealth v. Koch, supra. Gotto asserts also that it was improper for the trial court not to charge as requested in point No. 14 which she contends correctly states the law concerning driving while under the influence of alcohol.

The requested point for charge, number 14, states:

14. If you find the Commonwealth has failed to prove beyond a reasonable doubt that on the night of the accident the Defendant, Catherine Gotto, was incapable of safely driving her automobile due to the consumption of alcohol then you must return a verdict of not guilty as to that charge.

We are persuaded that the trial court properly charged the jury as to the driving while under the influence of alcohol charge. The record indicates that while the trial court did not adopt requested point for charge 14, it did properly charge the jury.

Finally, Gotto contends that the court’s charge invaded the province of the jury. This assertion is not supported by the record. Gotto complains about the following portion of the charge:

If you believe the testimony of the Commonwealth, legally, there is ample testimony before you to arrive at that conclusion. If there were not legally sufficient testimony, I would have thrown the case out before it started or at the end of the Commonwealth’s case.

However, the court said also:

Now, the defendant comes before you. The defendant’s contention is equally clear and equally simple. The defendant says, “True, that on that particular evening, I was drinking, but the amount that I had to drink did not in any way influence me and did not in any way influence my ability to drive. That the accident happened not because of my not having the intellect that I usually have and the alertness and control that I usually have, but that the accident was caused on that night by the driving of another person,” and she told you that as she approached this intersection, she saw the lights. She could see that the lights were on the wrong side of the road. She pulled over as far as she could and as they came to the crest of the hill, the other car, going back into his own side of the road—she hit the rear end of that truck and then careened into the car that was immediately behind it, namely, the car of Mr. Sandt; and that, therefore, the only thing that caused that accident was nothing that she did because she did everything that a driver, under complete control of the automobile, would do, but that everything that she did was proper, but it was caused by the fact that the truck was on the wrong side of the road, hit her car and that her car was forced into the other side of the road and hitting the other car.
I say to you that if you accept that testimony as true, you have no alternative but to acquit.
It will be up to you to review all of the testimony of all of the parties and find out in this particular case wherein the proof and the facts lie and then take those facts and apply them to the law and decide whether you are convinced beyond a reasonable doubt of each and every element of that crime before you can come out with a verdict of guilty.

In Commonwealth v. Emmi, 290 Pa.Super. 86, 434 A.2d 142 (1981), we reasserted the frequently stated rule that a trial judge may not express to the jury his opinion that the accused is guilty. Such a declaration would invade the province of the jury and thereby violate the accused’s rights. Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972). We are convinced that the trial judge herein did not invade the province of the jury. He did not state any opinion as to guilt. The record indicates clearly that the trial judge restated the positions expressed by the Commonwealth and by Gotto. He said that if the jury believed the Commonwealth it should find Gotto guilty and if it believed Gotto it should find her innocent. We cannot find that the trial judge acted improperly.

Accordingly, having determined that the trial court acted properly, we affirm the judgment of sentence it imposed.

SPAETH, J., concurs in result.

      . 75 Pa.C.S.A. § 3732.

      . 75 Pa.C.S.A. § 3731.

      . The resolution of this appeal has been delayed pending the filing of our opinion in Commonwealth v. Koch, 297 Pa.Super. 350, 443 A.2d 1157 (1982).

      . 75 Pa.C.S.A. § 3302.

      . We are satisfied that the punishment provided under the homicide by vehicle statute is neither cruel or unusual. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).

      . Act of June 17, 1976, P.L. 162, No. 81, 75 Pa.C.S.A. § 1547.

      . The suppression court’s ruling that the results of the blood alcohol test were admissible was based only ori constitutional, not statutory grounds. No constitutional argument is presented to us as to the blood test. The statutory argument advanced before us was made to the trial court.

      . Gotto also complains that the blood-alcohol test results were inadmissible because the Commonwealth failed to prove that the test was performed by equipment approved by the Pennsylvania Department of Health. The equipment used to perform the blood-alcohol test was approved by the Commonwealth Department of Health pursuant to regulations found in the Pennsylvania Bulletin, Vol. 8, No. 4 (January 28, 1978). This approval was made prior to trial, though after the tests were undertaken. We are satisfied that the tests were administered by properly approved equipment. Commonwealth v. Benson, 280 Pa.Super. 20, 421 A.2d 383 (1980).


text:
    452 A.2d 809
    COMMONWEALTH of Pennsylvania, Appellant, v. Frank STUMPO.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1981.
    Filed Nov. 19, 1982.
    Petition for Allowance of Appeal Denied Feb. 25, 1983.

      Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Nicholas J. Nastasi, Philadelphia, for appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   BROSKY, Judge:

On January 1, 1978, while on duty as a Philadelphia policeman, appellee, Frank Stumpo, was involved in a series of incidents. As a result of these events, he was charged with eight criminal counts and brought to trial. During Stumpo’s trial, the judge granted a demurrer to four of these charges. After the demurrers, the trial by jury continued, resulting in guilty verdicts on three counts. A post-verdict en banc court granted a motion in arrest of judgment on those three counts and discharged the defendant. The basis for this decision was their finding a Pa.R. Crim.P. 1100 violation. The Commonwealth has brought this appeal. We reverse two of the four demurrers and remand for retrial on those reversed demurrers. The motion in arrest of judgment is also reversed and we remand for sentencing on the three convictions.

On January 1, 1978, Officer Stumpo, an on-duty, armed and uniformed Philadelphia police officer, became involved in a series of verbal and physical altercations with several people at the Sheraton Airport Motor Inn in Philadelphia. There was testimony at the trial to the following events.

Shortly after 2:00 a.m. on January 1,1978, Ernest Funaro, a member of the band playing at the Sheraton that night, saw two uniformed Philadelphia police officers near the service bar. They were later identified as the defendant-ap-pellee, Officer Stumpo, and his partner, Officer Dennis Mongello. Funaro testified that he saw Stumpo duck under the service bar opening and go into the bar area. After Mongello spoke to him, Stumpo came back out.

Shortly thereafter, Cynthia DeSpain, a cocktail waitress, attempted to leave the service bar and Stumpo blocked her way with his body. After asking him twice to move, she nudged him and he got out of her way. DeSpain cleared some tables and when she was back in the bar, Stumpo yanked on her brassiere strap several times, pulling her towards him. He also pulled down the top of her leotard off her shoulder. When DeSpain returned to the bar a second time, this time with glasses on a tray, Stumpo blocked her access again. DeSpain called for a security guard and Stumpo grabbed her arm and said, “All right bitch.” De-Spain broke away and stayed behind the cashier’s desk until Stumpo went elsewhere.

Stumpo then demanded a drink which the bartender initially refused because it was past the legal serving time. The manager was sent for and gave permission to serve Stumpo, who demanded and received a full glass of gin. He quickly downed that drink and then another. The evidence reveals that he then went from table to table mixing the dregs from used glasses and drinking the resulting alcoholic concoction.

The next series of episodes occurred in the hotel parking lot. The band members were loading their equipment on a van when Stumpo and his partner drove up in a patrol car and asked if they had any “booze.” Stumpo then went into the van and began opening boxes and tossing them around. At one point he snatched a toaster oven box from Marilyn Johnson, a band member, tore it open and shoved it back at her, knocking her backwards. Crying, Johnson ran inside to get a security guard. Funaro also went to call the police at this point.

Stumpo was continuing to ransack the van when Leonard Benyak, a friend of a band member, asked him not to throw the boxes. Stumpo’s response was, “Who the fuck are you?” After demanding, and receiving, Benyak’s identification, Stumpo announced, for no apparent reason, that he was going to arrest Benyak. As Benyak moved toward the police car, Stumpo grabbed him and shoved him stomach first onto the car hood.

Funaro returned from calling the police and Stumpo’s attention was drawn to him. Again, Stumpo asked for identification and wanted to know who the leader was. Funaro characterized Stumpo’s behavior as “very aggressive, very belligerent.” Stumpo dropped the contents of Funaro’s wallet and drunkenly staggered around.

Another band member, Stephen DeMarco, then came out to the parking lot. Again Stumpo asked, “Who the fuck are you?” Then, without any provocation, Stumpo slammed DeMarco against the van, grabbed his hair and pulled him down. DeMarco was hit two or three times on the head with a “very hard” “metallic” object which, due to his position, he could not see. Benyak, who was still on the scene, testified that Stumpo pulled out his revolver, aimed it, point-blank, at DeMarco’s head and said, “I’ve got him.” When Officer Mongello pulled Stumpo off DeMarco, the revolver was still in Stumpo’s hand.

The police were then called again by another band member and Stumpo was overheard saying on the police radio that he did not need any assistance. He asked for, and received, DeMarco’s identification which was dropped on the ground and scattered by the wind.

The third location of this bizarre chain of events was the hotel lobby. The band members had retreated to this lighted area and both police officers had followed them. One of the female members of the band was crying when two hotel managers happened to see this congregation of people. As it was after 3 a.m., they went to investigate. When one of the managers, Etkins, asked what was going on, Stumpo grabbed him by the jacket and shook him. The other manager, Flynn, spoke with Officer Mongello, and they agreed to get Stumpo outside. They approached Stumpo, one on each side, and took hold of his arms to pull him off Etkins. Stumpo then turned on Flynn and throttled him with both hands around Flynn’s neck. There was testimony that Flynn’s breath was cut off and that he was lifted off the ground by the hold on his neck. Officer Mongello and a security guard separated Flynn and Stumpo. Shortly thereafter, a police lieutenant arrived and took Stumpo away.

Demurrers

Bill of information No. 505 charging defendant with an act of official oppression against Cynthia DeSpain.

The trial judge granted a demurrer to this charge on the grounds that Stumpo’s acts relating to this charge were not performed under color of authority. The Commonwealth counters that Stumpo was “an on-duty, uniformed member of the Philadelphia Police Department” and that therefore his acts were performed in an official capacity. We reverse this demurrer and remand for trial.

In relevant part the crime of official oppression is defined as:

A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor of the second degree if, knowing that his conduct is illegal, he:
(1) subjects another to . . . mistreatment . . .

.18 Pa.C.S.A. § 5301.

Cynthia DeSpain’s testimony about this incident is concise and provides a more vivid understanding of the events than a summary of them would. It is therefore quoted below in relevant part:

I was starting to go under the service bar to go out and clean my tables and he was standing on the other side. .. And I asked him to move and he didn’t. I asked him to move again, and he didn’t. So I nudged him in the knee. And then he stood aside. Then I went out to clean my glasses, clean my tables. I brought my glasses back on a tray, and he pulled the back of my bra. I went out a second time, came back, and he blocked my way one (sic) again at the service bar entrance. And I asked him to move, and he wouldn’t. I called for security, and he grabbed me by the arm and he said, “All right, bitch.” And that was—that was all that happened there.
Q. When the defendant grabbed you by the arm and said, “All right, bitch,” what, if anything, did you have in your arm or hands?
A. I had a tray of glasses.
. Q. What, if anything, happened to the tray of glasses? A. The glasses fell off the tray...
Q. You said the defendant pulled your bra strap. Would you explain the circumstances under which that came about.
A. I was facing the wall of the service bar, and I was—I think I was putting my glasses on the bar. And he yanked the back of my bra strap and pulled me toward him a couple of times.

Another witness testified that, “One of the officers at that time, Officer Stumpo, did grab her leotard from the top and pulled it down over her shoulder.” That witness characterized DeSpain’s reaction as being “very angry.” A third witness said that DeSpain “was really upset.”

In granting the demurrer to this charge, Judge Guarino made the following oral remarks:

But this I am certain of: That we cannot accuse the defendant of official oppression as to Cynthia DeSpain. What he did with Cynthia DeSpain, he did not do under color of authority. That was the inception of his problems. And what he did in jocular mood and was taken as such, certainly he didn’t do because he was an officer. He wasn’t imposing himself on her because he had a uniform, but rather he was a man like any other, and we can’t consider any such mistreatment or such conduct as being official oppression, because it doesn’t fit the definition of official oppression. So I have also sustained the demurrer as to the bill charging him with official oppression as to Miss DeSpain.

We note at the outset that Stumpo’s jocularity when he grabbed DeSpain’s arm and called her a “bitch” is extremely doubtful. Further, there is no testimony to support the statement that it “was taken as such.” Indeed all the evidence indicates that DeSpain was angry and upset.

The central issue raised by this demurrer is whether Stumpo’s actions were within the definition of the statute. Judge Guarino concluded that Stumpo had not acted “under color of authority.” It is true that Stumpo was not performing an official act, such as making an arrest, in his dealings with DeSpain. However, as we read the statute, there is no requirement that the forbidden acts be those which only an official could perform.

After stating its applicability to acts committed in an official capacity, the statute goes on to specifically include “taking advantage of such actual or purported capacity.” We conclude that Stumpo’s mistreatment of DeSpain was taking advantage of his official capacity.

In another area of the law, extortion, Judge Montgomery of this court examined the “color of office” concept. He stated that even a veiled threat to use the power of his office would suffice to meet this requirement. Commonwealth v. Francis, 201 Pa.Super. 313 at 322, 191 A.2d 884 at 889 (1963). We recognize that neither the same exact terminology nor the same crime is involved here; but as we interpret this previously unexamined area of the law, we choose to reason by analogy to this allied subject matter.

A policeman wearing his badge of office, his uniform, pistol and nightstick carries with him at all times two unstated veiled threats, two capabilities: one is the use of force, the other is the power to arrest. These capabilities are known to people with whom the police officer deals and, together with a proper respect for his office, they engender an attitude of circumspection and deference. This attitude is greatly to the advantage of the police themselves. It affords them an important measure of protection and enables them to perform their official duties. Of course, it is also in the interests of the state to encourage this attitude. Thus, it becomes all the more important that improper actions taking advantage of this authority be within the scope of the crime of official oppression. The legislature has clearly provided for this coverage with the broad language of the statute.

The powers of a police officer to use force and to arrest are formidable. The implicit recognition of these powers by the public in dealing with a police officer is both usual and desirable. Therefore, while exceptions are conceivable, we hold as a general rule that a police officer in uniform is cloaked with the authority of his office; and that actions taken by him which constitute mistreatment of another may fairly be said, within the terms of the statute, to be “taking advantage” of that authority.

We reverse the demurrer on this charge and remand for retrial.

Bill of information No. 78-06-502 charging defendant with the simple assault of Leonard Benyak.

The testimony concerning the incident involving Benyak and Stumpo reveals the following. Leonard Benyak was a friend of a singer in a band which had been performing at a hotel in Philadelphia. After the band had finished playing, Benyak carried a box of band equipment out to a trailer. As Benyak approached the trailer, he saw Officer Stumpo inside it with a box in his hands and heard a band member protesting Stumpo’s searching through the boxes.

Benyak testified that Stumpo threw a box against an inner wall of the trailer. Benyak then said, “Look all you want but don’t throw the boxes against the side of the trailer.” Stumpo turned around, moved toward Benyak and Benyak backed out of the trailer. Stumpo then asked Benyak, “Who the fuck are you? Are you the leader?” Benyak replied that he wasn’t and that he was just helping. Stumpo asked Benyak for identification; and as Benyak was getting his wallet out, Stumpo told Benyak, “I’m going to take you in.” Benyak replied, “Fine, let’s go downtown” and moved toward the police car. At this point, Stumpo spun Benyak around and shoved him, forcing him to land on his stomach on the hood of the police vehicle.

Benyak testified: “I felt that my safety was in jeopardy, because it appeared that his equilibrium was unstable, and he just didn’t look like he had total control of his faculties. ... So I was concerned about staying there with him.... I was concerned that I could either be hit or something worse at that time.” He also testified that Stumpo was weaving, having difficulty standing up and regaining his balance and was not behaving rationally.

The crime of simple assault is defined in relevant part as follows:

A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another; . . .
(3) attempts by physical menace to put another in fear of imminent serious bodily injury.

18 Pa.C.S.A. § 2701.

Since a demurrer is a purely legal determination, the standard of review of a granted demurrer is the same standard that the trial court applies.

The test to be applied in ruling on a demurrer is whether the evidence and all reasonable inferences therefrom are sufficient to support a finding by the jury that the defendant was guilty beyond a reasonable doubt.

Commonwealth v. Duncan, 473 Pa. 62 at 66, 373 A.2d 1051 at 1053 (1977). “. . . and in making our determination we must read the evidence in the light most favorable to the Commonwealth.” Commonwealth v. Bey, 221 Pa.Super. 405 at 406, 292 A.2d 519 at 520 (1976).

Benyak testified that he was not injured and there was no evidence to contradict this. While causing bodily injury could not, therefore, have been proved, another alternative ground for commission of the crime remains.

Could a jury have properly found that Stumpo attempted by physical menace to put Benyak in fear of imminent, serious bodily injury? (This would meet the terms of subsection (3)). From Benyak’s testimony, quoted above, a jury certainly could have found that Benyak actually was “in fear of serious bodily injury.” He directly stated as much. Proof of the fear itself is relevant, but does not establish the violation.

The precise question before us is whether they could have found that Stumpo attempted by physical menace to put Benyak in such fear. Proof of that attempt can be provided by Stumpo’s actions. The focus then becomes: Can an attempt to put Benyak in fear of bodily injury be 'inferred from the nature of Stumpo’s acts? We find that the jury would have been justified in making that inference.

In reaching this conclusion, we have tried to sense the situation from the point of view of the participants at the time the events were occurring. The target of the acts described above would have been insensate had he not been afraid. Furthermore, Stumpo can fairly be said to have attempted to induce that fear. Accordingly, the demurrer to this charge is reversed and we remand for retrial on this charge.

Bill of information No. 78-06-499 charging defendant with recklessly endangering Stephen DeMarco.

Defendant was charged with three counts relating to the same incident with DeMarco: reckless endangerment, simple assault, and aggravated assault. A demurrer was granted on the reckless endangerment charge and the jury found Stumpo not guilty of aggravated assault and guilty of simple assault.

The appellee contends that elements of the crimes that reached the jury are also present in the charge of reckless endangerment and that, therefore, collateral estoppel bars retrial on that charge. We do not decide this collateral estoppel issue because the Commonwealth concedes its application.

The admitted existence of this bar to a new trial does not render the Commonwealth’s appeal as to this information moot since the collateral estoppel question would be ripe for disposition only if the Commonwealth moved for trial of this information on remand following this appeal. (Emphasis supplied.)

Since the Commonwealth has admitted the collateral es-toppel bar to retrial, we also decline to review the demurrer on this charge.

Bill of information No. 78-06-508 charging defendant with aggravated and simple assault of James Flynn.

In his demurrer to this charge, Judge Guarino stated:

As to Bill 503, Simple and Aggravated Assault, that bill charging the defendant with committing an act of aggravated assault and simple assault on one James Flynn: Two witnesses did testify in this case supportive of the fact that there could have been or might be an assault or an aggravated assault. Grabbing one by the throat, cutting off his breath, strangling him, lifting him off the ground, persisting in that conduct does have all the qualities of an aggravated assault. What disturbs the Court is that the victim does not support that theory. The victim says that he suffered no injury and the only thing that he did suffer was a discomfort. When I juxtapose the definition of aggravated assault with that or even simple assault with that, I don’t find that it rises to that level as to constitute the crime of aggravated or simple assault.
So I have granted the demurrer as to that.

Because of the nature of Judge Guarino’s remarks, we are unable to review this demurrer. Ordinarily, a demurrer raises only legal questions and thus can be appealed by the Commonwealth with no bar to retrial. Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569 (1976). However, when a demurrer is granted on factual instead of legal grounds, a retrial on that charge would work a violation of the double jeopardy clause of the Fifth Amendment: “. . . nor shall any person be subject for the same offense to be twice put in jeopardy. . . ” This protection accorded a criminal defendant is applicable to a state prosecution through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

In granting the demurrer to this charge, Judge Guarino appears to have been weighing the credibility of the various witnesses and noting discrepancies in their respective testimony. This is, of course, a role for the fact finder. The proper function of the trial judge was to determine whether there was sufficient evidence, if believed, to have allowed a jury to find the defendant guilty. (A more detailed treatment of this standard is given in the prior section of this opinion.)

Because the trial court exceeded its proper scope by invading the province of the jury to act as a fact finder in the way it ruled on the demurrer, retrial is barred. Nor is it dispositive that the ruling was called a demurrer. “... the trial judge’s characterization of his own action cannot control the classification of the action...” United States v. Jorn, 400 U.S. 470 at 479, n. 7, 91 S.Ct. 547 at 554, n. 7, 27 L.Ed.2d 543 (1971).

This issue has been decided by the Pennsylvania Supreme Court. Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1979). Justice O’Brien’s rationale in that case followed the U.S. Supreme Court opinion of United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed. 642 (1977). In Wimberly, as in the case before us, the trial judge had passed upon the credibility of witnesses in granting a demurrer. The Commonwealth’s appeal was dismissed, to avoid a double jeopardy situation. What the trial judge actually did, not what he said he did, was dispositive. “The trial court in the instant case, while characterizing its actions as the granting of a demurrer, actually entered a de facto judgment of acquittal.” Wimberly, supra, 488 Pa. at 173, 411 A.2d at 1195.

In the. case before us, Judge Guarino also entered a “de facto judgment of acquittal.” We cannot, therefore, review the demurrer on its merits, and consequently it stands. Justice O’Brien’s remarks in the Wimberly case, supra, about irregular actions of a trial court judge are most applicable when he stated:

We do not condone that practice in the instant case, nor do we anticipate the practice will be indulged in future cases.

Wimberly, supra, 488 Pa. at 172, 411 A.2d at 1194.

Arrest of Judgment

After the trial, Judge Guarino authored an opinion for a three-judge en bane court which granted an arrest of judgment due to a pre-trial Rule 1100 violation. We reverse this order and remand for sentencing on the three convictions.

The relevant procedural history follows. During the period concerning us here, the Rule 1100 run-date for Stumpo’s trial to begin was November 20, 1978. On October 27, 1978, Judge Guarino declared a mistrial in Commonwealth v. Murphy, another case in which a police officer was charged with assault and related crimes while allegedly acting in an official capacity.

As a result of this mistrial, on November 2, 1978, the Commonwealth filed a motion to disqualify Judge Guarino in the instant case, which was scheduled for trial before him on November 6.

4. During the Murphy trial, the Court made statements both on and off the record which indicated a clear prejudice by the Court against criminal prosecutions of police officers by the District Attorney’s Office. For example, on at least four occasions, the Court stated that the District Attorney’s Office should not prosecute police brutality cases since to do so impairs the relationship between the District Attorney’s Office and the police.
5. The Court further demonstrated its prejudice by maligning, without any factual basis, the motives of the prosecution. For example, on innumerable occasions both on and off the record, the Court stated that the prosecution of Murphy was politically motivated and that as a result the purpose of the District Attorney’s Office was not to get to the truth of the matter but, rather, to “infect” the case with prejudicial error. On numerous other occasions, both on and off the record, the Court accused the District Attorney’s Office of “over-reaching” and being “over-zealous” out of a desire to convict a police officer for political gain. None of the Court’s accusations had factual basis.
6. The rulings of the Court on legal questions were clearly influenced by the prejudice.
7. On numerous occasions on and off the record, the Court likened the jury to “tinder” waiting to have its passions ignited by the introduction of the issue of police brutality into the courtroom.
This motion ended with the following paragraph:
Should the Court believe that disposition of this motion will require resolution of any factual matter raised herein, it is requested that the matter be referred to the calendar room judge for purposes of fact finding and disposition. ABA Standards Relating to Trial Courts, § 2.32. Additionally, should a factual resolution be deemed necessary, it is required that the notes of testimony of Murphy be transcribed forthwith.

Motion to Disqualify the Assigned Trial Judge.

Judge Guarino declined to have this matter decided by another judge and held a hearing on November 6. At this hearing, he indicated that he could decide the matter without the notes of testimony of the Murphy trial as soon as November 12; but that if those notes were desired by the Commonwealth to aid in making the decision that it would take thirty days or longer under those circumstances.

By letter the following day, the Commonwealth withdrew their request that the transcript of the Murphy trial be provided prior to a determination of the issue. In that letter, they stated that the transcript would not be necessary since Judge Guarino, and not another judge, as they had requested, would be deciding the matter. Judge Guarino, they stated, was already familiar with his own “commentary and actions during the Murphy trial” which had just recently taken place. The Commonwealth also expressed concern that the motion be ruled on immediately and without briefs so that the trial could commence before the run-date.

Judge Guarino then held a second hearing on November 10, at which he directed the Commonwealth to file a brief by November 17 and scheduled a third hearing for the run-date, November 20.

The Commonwealth filed on November 14 a petition to extend under Rule 1100(c). A hearing on this motion was held on November 20 before Judge Marutani, the Jury Calendar Judge. At the conclusion of the hearing, an extension was granted to ninety days after the disqualification decision.

A third hearing on the recusal motion was held before Judge Guarino, also on November 20. At that time, the motion was held under advisement. The notes of testimony of the Murphy trial were filed on January 18, 1979 and Judge Guarino’s opinion dismissing the disqualification motion was filed on March 29, 1979.

After other delays which are not relevant here, the trial began before a jury on October 15, 1979, resulting in a conviction on three counts on November 15,1979. A hearing on defendant’s post-trial motions was held on May 19, 1980 before a court en banc consisting of Judges Guarino, Wallace and Durham. Judge Guarino then issued an opinion on February 5, 1981, joined in by Judge Wallace and in which Judge Durham joined only the result. That opinion held that a Rule 1100 violation had been committed by Judge Marutani’s extension order of November 20, 1979. The motion in arrest of judgment was consequently granted and the defendant discharged. It is this order that is now before us on appeal.

Three grounds are given in the en banc opinion for finding a violation of Stumpo’s Rule 1100 rights. We will treat each one in turn.

First, the Commonwealth is said to have not exercised “due diligence” in bringing defendant to trial within the prescribed time. Commonwealth v. Mayfield, 469 Pa. 214 at 222, 364 A.2d 1345 at 1349 (1976). The motion to disqualify was characterized by the en banc court as “a dilatory motion that unquestionably was designed to delay defendant’s trial” and therefore constituted a lack of due diligence. We reject this conclusion.

There is no evidence whatsoever on the record that the Commonwealth was not able and willing to go to trial on or before the November 20 run-date. Quite to the contrary, there are ample indications that the prosecution was not interposing the motion to disqualify merely as a delaying tactic. The motion to disqualify was filed with reasonable promptness after the event which occasioned it. On November 7, the Commonwealth requested that Judge Guarino rule on the motion to disqualify immediately, without waiting for briefs or for a transcript of a trial over which he had just presided. Lastly, during the November 20 hearing on the Commonwealth’s petition to extend, the Assistant District Attorney stated unequivocally: “I’m ready to proceed to move to trial today.. .” Judge Marutani then offered to assign someone other than Judge Guarino to the trial, if the defense was willing—which they were not. If any dilatory actions were taken during the prolonged course of the prosecution, they are the responsibility of the defendant and the Court, not of the prosecution.

The other basis for finding a lack of due diligence was that “the petition was patently frivolous.” It is not our function here to review the trial court’s decision on the motion to disqualify. The Commonwealth chose not to appeal that ruling. The task before us is to determine whether that motion was so completely without merit that the Commonwealth was irresponsibly delaying the trial in making it. We have carefully considered the opinion of this court in Commonwealth v. Murphy, 282 Pa.Super. 274, 422 A.2d 1113 (1980); the motion to disqualify itself; the transcript of Stumpo’s trial and our other holdings in this opinion. This review has led us to one conclusion: that the motion to disqualify was not patently frivolous.

The third basis for a Rule 1100 violation was “that the extension of ninety (90) days beyond the decision of Judge Guarino was without evidentiary foundation and arbitrary.” We find this characterization not supported by the law.

In the leading Rule 1100 case, Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), the cause of the requested extension was the lack of available courtrooms. The May-field opinion held that where courtroom availability was the cause, “... the policies which prompted the adoption of Rule 1100 would not be served by disallowing a reasonable, limited extension ‘specifying the date or period within which trial shall be commenced.’ ” Mayfield, supra, 469 Pa. at 220, 364 A.2d at 1348. This statement was quoted with approval in Commonwealth v. Gibson, 248 Pa.Super. 348 at 352, 375 A.2d 132 at 134 (1977). The situation in Gibson parallels the one before us: the initial cause of the extension was not courtroom availability, but that became a valid factor in computing the term of the extension. In setting the 90-day limit after the decision on the motion to disqualify, Judge Marutani properly took into consideration courtroom availability. The propriety of this entering into his considerations is not an open point of law. Further, we find that this was a “reasonable, limited extension.”

Judge Guarino’s post-trial opinion faults Judge Marutani for making the ninety-day post ruling extension “without evidentiary foundation.” On May 29, 1980, just after the post-trial hearing, Judge Marutani wrote a memo to Judge Guarino. As it is quoted in Judge Guarino’s opinion, this memo stated that:

(t)his evaluation was made by the Calendar Judge who knew better than anyone in the court system the up-to-date status of cases in the felony program; to suggest that such a judge should make inquiry of those with lesser knowledge would have been serving form, and not consistent with reality.

Post-trial en banc opinion, quoting a May 29, 1980 memo from Judge Marutani to Judge Guarino.

We find this eminently reasonable. A judge who has an intimate, ongoing knowledge of the court calendar should be able, to take judicial notice of that knowledge. Commonwealth v. Jackson, 269 Pa.Super. 249 at 253-4, 409 A.2d 873 at 875 (1979).

As we have rejected all- three grounds on which the en banc court found a Rule 1100 violation, we reverse the arrest of judgment and remand for sentencing on the following three convictions: Bill No. 504, simple assault of DeMarco; Bill No. 506, official oppression of Flynn; Bill No. 507, official oppression of Benyak. Our reversál of the Rule 1100 violation also permits retrial on the two counts on which we reversed the demurrers. We remand for retrial on those two reversed demurrers: Bill No. 503, aggravated and simple assault of Flynn; Bill No. 505 official oppression of DeSpain. This court relinquishes jurisdiction of this case.

POPOVICH, J., concurs in result.

      . As will be seen below, the unreversed demurrers were not reviewed on their merits. We did not review one of these demurrers because it was not properly before this court; and did not review another due to a potential double jeopardy violation.

      . Of course, the same would be true of a plainclothes police officer known to be such by the persons with whom he was dealing.

      . There was testimony that before Benyak’s arrival on the scene, Officer Stumpo and his partner had driven up in a patrol car and one of them had asked, “Do you have any booze in there?” There was no testimony regarding any criminal act relating to the trailer other than Stumpo’s acts, or to any probable cause for a warrantless search.

      . Judge Guarino did not state his reasons for granting this particular demurrer.

      . As we find that the demurrer was improperly granted because a subsection (3) violation could have been proven, we will not reach the additional argument that Stumpo attempted to cause bodily harm.

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 2702.

      . Reply brief for appellant.

      . Numerous procedural events occurred in addition to those recounted in this opinion. They do not relate to the issue before this court and are therefore not included here.