author: OLSZEWSKI, Judge:

text:
    637 A.2d 1025
    COMMONWEALTH of Pennsylvania, Appellant, v. Rudolph KUBIN, Jr., Appellee. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Dee. 9, 1993.
    Filed March 2, 1994.

      James J. Narlesky, Asst. Dist. Atty., Easton, for Com., appellant.
    Robert S. Trotner, Easton, for appellee.
    Before CAVANAUGH, CIRILLO and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

The Commonwealth appeals from orders dismissing two cases against Rudolph Kubin, Jr. for the Commonwealth’s failure to bring Kubin to trial within the time period mandated by Rule 1100. The following timetables give the relevant dates pertaining to Case 1947 and Case 2331 and other dates applicable to both cases.

CASE 1947

Sept. 19, 1989 Complaint lodged
Mar. 5-Sept. 80, 1990 Apr. 5, 1990 Kubin waived Rule 1100 rights Kubin placed on ARD
Nov. 7, 1990 Kubin taken off ARD
Dec. 10, 1990-Feb. 1, 1991 Kubin waived Rule 1100 rights
Feb. 11-Apr. 30, 1991 Kubin waived Rule 1100 rights

CASE 2331

Jan. 8, 1991 Complaint lodged
May 4-June 30, 1992 Kubin waived Rule 1100 rights

DATES RELEVANT TO BOTH CASES

Mar. 28, 1991 Kubin imprisoned in N.J.
Apr. 12, 1991 Kubin bench warranted for failure to appear for trial; Commonwealth knows of N.J. incarceration
June 5, 1991 Bench warrant lifted at Kubin’s request; Commonwealth does not object
June 28, 1991 Bench warrant reinstated; Commonwealth mailed Form V to N.J.
Sept. 5, 1991 Telephone verification that N.J. prison received Form V
Sept. 16, 1991 N.J. administrator informs Commonwealth’s administrator that Kubin not contesting the extradition
Apr. 1, 1992 N.J. administrator informed Commonwealth’s administrator that Kubin to be paroled the next day
Apr. 10, 1992 Kubin returned to Pennsylvania after waiving extradition

The Commonwealth concedes that 190 days in Case 1947 and 104 days in Case 2331 of Rule 1100 time are chargeable against the Commonwealth.

At issue here is whether the Commonwealth should be charged with the time between April 12, 1991, when it found out Kubin was incarcerated in New Jersey and April 10, 1992, when Kubin was returned to this jurisdiction. A defendant out on bail must be brought to trial within 365 days from the date the complaint is filed. Pa.R.Crim.P. 1100(a)(3), 42 Pa.C.S.A. When a defendant is unavailable, however, that time is excluded from calculation for Rule 1100 purposes. Id. at 1100(c)(3). Incarceration in another state, however, does not automatically constitute unavailability. A defendant is only unavailable if the delay in returning him to Pennsylvania is due to the other state causing the delay; the prosecution, however, must exercise due diligence in attempting to bring the defendant back for trial. Commonwealth v. Lloyd, 370 Pa.Super. 65, 80, 535 A.2d 1152, 1160, alloc. denied, 518 Pa. 637, 542 A.2d 1367 (1988). A lack of due diligence will cause the time to be charged against the Commonwealth. Here, the Commonwealth failed to make any inquiries between September 16, 1991, and April 1, 1992. This clearly evidences a lack of due diligence.

Due diligence is to be determined on a case-by-case basis. Commonwealth v. DeMarco, 332 Pa.Super. 315, 325, 481 A.2d 632, 637 (1984). Furthermore, “[d]ue diligence does not require perfect vigilance and punctilious care, but rather a showing by the Commonwealth that a reasonable effort has been made to secure the defendant’s attendance at trial.” Id. at 323, 481 A.2d at 636. While we recognize that the Commonwealth cannot force another jurisdiction to act, inaction on the Commonwealth’s part, without some reliance on the assurances of the other state, does not constitute due diligence.

In Commonwealth v. Alexander, 318 Pa.Super. 344, 464 A.2d 1376 (1983), this Court held under similar facts to the present case that the time period when the Commonwealth failed to act was not excludable from Rule 1100 calculation. In Alexander, the Commonwealth was held accountable for two periods of inactivity. First, the Commonwealth waited 65 days from finding out the defendant was in jail in New Jersey, January 22, 1980, before beginning the extradition process on March 27, 1980. These 65 days were not excludable. Second, the district attorney waited until July 10, 1980, before inquiring about why he had received no response to his request to have the defendant returned to Pennsylvania. The district attorney stated that in addition to waiting 30 days to allow for a defendant to take advantage of his right to appeal his transfer to the New Jersey Governor, he would wait another 10 days to allow for mailing time. Accepting this 40 day wait as reasonable this Court wrote:

[T]he span of time between when Attorney Dalfonso “should have” received a response from New Jersey prison officials to his March 27, 1980 letter (i.e., “sometime early May” of 1980) and when he, in fact, did act after receiving no such response (by July 10, 1980) consists of some 60 days that are unaccountable for in terms of the “due diligence” standard.

Id. at 360, 464 A.2d at 1385 (emphasis in original).

Here, the Commonwealth sent New Jersey its request to detain Kubin and return him to Pennsylvania for trial on June 28, 1991. Two months later the Commonwealth attempted to find out the status of its request and finally made contact with the appropriate New Jersey official on September 16, 1991. On that date, the Commonwealth was informed that Kubin was not contesting extradition. To then wait 198 days until April 1, 1992, before inquiring what was causing the delay clearly shows a lack of due diligence.

Commonwealth v. Alexander is directly on point. The Commonwealth relies on cases which are clearly distinguishable. First, the prosecutors in Commonwealth v. Lloyd, supra, did not just sit by and do nothing. They were in constant contact with federal authorities who told the district attorney that they would not release defendant to Pennsylvania because of defendant’s previous escapes. Furthermore, the entire process of obtaining defendant for trial only took approximately seven months, despite the noncooperation of the federal authorities. Here, the district attorney’s office did not constantly prod New Jersey officials; instead, the Commonwealth chose to wait approximately six months before inquiring about the delay.

Also, the Commonwealth relies on Commonwealth v. Forrest, 508 Pa. 382, 498 A.2d 811 (1985), where defendant’s counsel conceded that the Commonwealth acted diligently. Although Forrest does not provide detailed facts, it is apparent from the case that the prosecutors had several contacts with the New Jersey authorities who then informed them that defendant would not be released until after disposition of the New Jersey charges. As soon as the charges were disposed of, the prosecutors acted promptly in having defendant returned for trial. Id. at 388, 498 A.2d at 814. In Commonwealth v. Johnson, 305 Pa.Super. 310, 451 A.2d 546 (1982), prosecutors also waited to extradite a defendant until after the New Jersey charges were disposed of because the New Jersey officials told them that they would not release defendant until then. Here, the district attorney’s office did not rely on assertions from New Jersey officials that Kubin would not be returned. On the contrary, the extradition secretary failed to act despite being told by the New Jersey official that Kubin was not fighting extradition. Thus, Forrest and Johnson are clearly distinguishable.

We also find that the Commonwealth did not act diligently when it delayed in sending the Form V requesting the return of Kubin. At the latest, the Commonwealth found out on April 12, 1991, that Kubin was imprisoned in New Jersey. It did not send the Form V until June 28, 1991. For some reason, the Commonwealth’s brief does not address this portion of time despite the fact that the trial court’s disposition on Case 2331 turned on this period of time. We note with approval the trial court’s analysis on this matter:

As mentioned, when defendant did not appear for trial on April 10, 1991, the court issued a bench warrant for his arrest. Because this bench warrant branded defendant as a fugitive from justice, his family was forced to forfeit the bail that it had posted for him. On June 5, 1991, defendant’s attorney, knowing that defendant had not willingly failed to appear for trial, sought to avoid the forfeiture by having the bench warrant vacated. In response to this, the Assistant District Attorney representing the Commonwealth at that hearing responded, “There’s no real opposition to this,” and expressed concern only with regard to defendant’s attorney simultaneously representing defendant and the sureties and that the solic[i]tor’s office being notified that the forfeiture had been vacated.
Considering this, we reject the Commonwealth’s argument that its initial effort to effect extradition “was undermined by defendant’s counsel’s insistence of the lifting of the bench warrant.” The Commonwealth’s initial effort was, in fact, “undermined” by its decision to accom[m]odate defendant without regard to the subsequent effect of that decision under Rule 1100. At the June 5th hearing, the Commonwealth failed to oppose the dismissal of the bench warrant and to explain to the court that a bench warrant was necessary as a detainer in order to effect extradition. The same bench warrant that was vacated on June 5, 1991 was reinstated on June 28,1991 with the provision that the bail forfeiture remain vacated. In light of this, it is beyond our comprehension why the Commonwealth could not have argued for this very arrangement at the June 5th hearing, thereby possibly preventing the bench warrant from ever having been dismissed, or at least insisted on a waiver of Rule 1100 as the price for the dismissal of the bench warrant.
There is nothing in the record to indicate that the defendant’s attorney’s request that the bench warrant be lifted was in any way improper, or even unreasonable. It was not the duty of the defendant’s attorney to ensure that the District Attorney’s Office was properly pursuing extradition, or to advise the court as to the procedures necessary to effect extradition. If the bench warrant was needed in order to act as a detainer for extradition purposes, then it was the duty of the Commonwealth to raise this issue at the June 5th hearing. Its failure to do so clearly evidences a lack of due diligence under Rule 1100.

Trial court opinion, June 16, 1993 (Case 2331), at 9-10.

We also note that this Court has held the Commonwealth accountable under Rule 1100 for unexplained delays in initiating extradition proceedings. Alexander, supra (65 days between notification of defendant’s out-of-state incarceration and initiation of extradition proceedings not excludable); Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977) (en banc) (district attorney’s delay of 8 months in filing requisite written request evidenced a lack of due diligence); Commonwealth v. McNeal, 261 Pa.Super. 332, 396 A.2d 424 (1978) (en bane) (6½-month delay in requesting extradition not excludable). Therefore, the 77-day delay in initiating extradition proceedings is not excludable from Rule 1100 calculation.

Now, through simple addition, we find that 465 days of Rule 1100 time have run in Case 1947 and 379 days have run in Case 2331. The Commonwealth exceeded the permissible 365 days in both cases. We therefore affirm the dismissal of charges in Cases 1947 and 2331.

Orders affirmed.

CAVANAUGH, J., concurs in the result.

      . The trial court opinion calculated this time span to be 196 days. Our calendar counting indicates that the proper figure is 198 days.

      . In Case 1947 we add the 190 days which the Commonwealth concedes have run to the 198 days from September 16, 1991, to April 1, 1992, and the 77 days from April 12, 1991, to June 28, 1991, which we found unexcludable due to the Commonwealth’s lack of due diligence. In Case 2331 we add the conceded 104 days to the 198 and 77 days found unexcludable.


source: Caselaw Access Project

author: ROWLEY, President Judge.

license: Public Domain

text:
    637 A.2d 1029
    Raymond DeMARCHIS and Irma DeMarchis, His Wife, v. George D’AMICO and Mary D’Amico, His Wife, Appellants. George D’AMICO and Mary D’Amico, His Wife, Appellants, v. Raymond DeMARCHIS and Irma DeMarchis, Individually and as Husband and Wife, and T/A DeMarchis Brothers and/or DeMarchis Servicenter.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1993.
    Filed March 4, 1994.

      Marcel L. Groen, Bensalem, for appellants.
    Robert J. Rebstock, Philadelphia, for appellees.
    Before ROWLEY, President Judge, and OLSZEWSKI and BECK,-JJ.
   ROWLEY, President Judge.

George D’Amico and his wife, Mary, (hereinafter “appellants”) have appealed from a final decree in equity which was entered in favor of Raymond and Irma DeMarchis (hereinafter “appellees”) following the trial of these actions, which were consolidated by the trial court. As stated in the trial court’s opinion, appellants and appellees “have come before this Court to resolve disputes arising over alleged partnership agreements concerning an automobile repair business and the real estate and buildings it occupies.” (Trial Court Opinion, 4/16/92, p. 1).

Appellants contend that they have been in partnership with appellees from 1964 to the present for the purpose of operating an automotive repair business, but that the land and improvements upon which the business is located is exclusively theirs, inasmuch as they alone hold record title to the realty. Appellees, on the other hand, insisted in the trial court that they are the sole owners of the business but that they have a 50% interest in the land upon which the business is situated, as well as a 100% interest in the improvements thereon. On appeal, however, they contend that the trial court’s conclusion that they own an 83% interest in the land and improvements was correct.

The procedural background of this case is as follows. In 1987, appellees filed an action in equity against appellants, claiming that appellants were attempting to sell the land and buildings occupied by the business and that equitable relief was necessary to prevent appellants from being unjustly enriched in the event that a sale of said property should be accomplished. Appellees requested, inter alia, that the court enter an order declaring a constructive trust on the land in favor of appellees and awarding them 50% of the proceeds from the sale of the land, and all of the proceeds of the sale of the buildings on the land, as well as the repair business itself.

Appellants filed an answer, new matter and counterclaim, averring that “in approximately 1964, [appellants and appellees] entered into an agreement whereby [appellees] would operate an automotive service center with related services, on the property owned by [appellants] and would pay to [appellants] a full one half (%) partnership share of the profits [from the business] in lieu of rent.” In their prayer for relief, appellants requested a full accounting of the profits of the business from 1964 to the present and a one-half share of those profits, or in the alternative, the fair rental value of the property, plus interest, from 1964 to the present. It does not appear that appellees filed a response to either appellant’s counterclaim or new matter.

Thereafter, the record indicates that no action was taken by the parties for two years. On April 5,1989, appellants filed an action in ejectment against appellees, asserting that the business used appellants’ property from 1964 to the present without honoring “an agreement whereby [appellees] would operate the service center and related services on the property owned by [appellants] and would pay to [appellants] [a] full one-half (]i) partnership share of the profits [from the business] in lieu of rent....” Appellants requested, inter alia, that the trial court enter an order giving them a fair and equitable share of the business profits, with interest, or in the alternative, the fair rental value of the property from 1964 to the present, with interest.

Appellees then filed preliminary objections to appellants’ complaint, contending that it should be dismissed because it merely reiterated the claim already advanced by appellants in their counterclaim to appellees’ complaint. The trial court then consolidated the two cases for trial upon the motion of appellants. It does not appear from our review of the record that appellees ever filed an answer to appellants’ complaint.

. The trial commenced on' February 12,1991 and was concluded on February 14, 1991. As plaintiffs in the first action, appellees presented their case-in-chief on the first two days of trial. Both appellees testified, as did their real estate expert. At the close of the second day of trial, appellees rested their case. The next day, appellants were to present evidence in support of their counterclaim for lost profits, or alternatively, lost rent. However, appellants did not appear in court to present any such evidence. After diligent, but unsuccessful, efforts to locate them, the trial proceeded to a close without the presence of appellants. All of the record evidence was provided by appellees.

Following trial, both sides to this dispute filed proposed findings of fact and conclusions of law, as requested by the trial court. On April 16 of the following year, 1992, the trial court entered a decree nisi and an opinion containing findings of fact and conclusions of law. The trial court concluded that “[appellants] have no partnership interest in the DeMarchis Servicenter and that [appellee husband] has an 83% partnership interest and [appellants] have a 17% partnership interest in the real estate and its improvements.”

On April 27, 1992, appellants filed exceptions to the trial court’s findings of fact, conclusions of law, and decree nisi. Almost another year later, on April 15, 1993, the exceptions filed by appellants were denied by the trial court and the decree nisi was entered as the final decree. Appellants then filed the instant timely appeal.

I.

The factual underpinnings of this case, which follow, are not in dispute because appellees were the only ones to present evidence at trial. Appellant wife, Mary D’Amico, and appellee husband, Raymond DeMarchis, are siblings. Prior to 1964, Chester and Johnny DeMarchis, also siblings of Mary and Raymond, operated a scrap yard business out of a small building located on land owned by appellants, tax parcel 4-5-4. Appellants purchased that parcel in 1947.

In 1964, appellants and appellees bought the scrap business known as “DeMarchis Brothers” from Johnny and Chester. There are no writings evidencing the terms of this “buy-out” nor is there any indication of record as to the consideration which was paid by the parties in the transaction. The trial court found as a fact that the business was purchased by the parties for the purpose of starting a “new venture” between appellants and appellees. Shortly after “DeMarchis Brothers” was purchased by the parties, the salvage business was discontinued, and the automotive repair business was begun. The name “DeMarchis Brothers” was retained.

Appellee husband was the primary employee of the new “DeMarchis Brothers,” and as such, he performed the automobile repair work and managed the daily operations of the business. He received a salary from the business as a result of his labor. Appellants did not involve themselves in the day-to-day operations of the repair shop, although they were consulted from time to time by appellee husband.

In 1965, appellees bought a narrow strip of land, tax parcel 4-5-8, which is adjacent to the land upon which the business was located. That narrow strip of land provides ingress and egress for tractor trailers from Old Route 13 to the repair shop. Passenger vehicles can enter the premises via an entrance located on tax parcel 4-5-4, whereas tractor trailers can not.

From the beginning of the repair business until the present, appellees have paid for the expenses of the business, including liability insurance premiums out of profits from the business Appellants, who are the record title owners of the real estate upon which the business is located, paid the real estate taxes from 1964 until 1968 or 1969, when appellees began paying them out of business profits.

In 1972, appellants and appellees borrowed $48,000.00 from Fidelity Bank in order to build a larger garage on tax parcel 4-5-4, which would permit expansion of the business. All four parties, Mary, George, Ray, and Irma, signed the loan documents and all four were personally responsible for the loan’s repayment. All loan payments were made from the proceeds of the business and in April of 1981, the loan was fully satisfied.

After the new garage was built, there were a number of additions and improvements required for it to be certified as a State Inspection unit. In making these improvements, which included the installation of hydraulic lifts and a 14 x 14 foot garage door, appellees expended approximately $67,000.00 out of business income.

Thereafter, in 1977, due to a lucrative contract which was acquired by the business for the repair of tractor trailers, appellees and appellants decided to further improve the real estate by constructing an addition to the large garage which was constructed in 1972. The parties applied to Fidelity Bank for a $60,000.00 loan to finance the addition, but the bank refused to approve the loan because the narrow parcel of land which provided tractor trailer access to the business was recorded solely in the names of appellees, while the land on which the buildings that house the business is situated was recorded exclusively in the names of appellants. The parties were told that the bank would not grant the loan unless the two separately owned parcels, 4-5-4 and 4-5-8, were joined into one deed.

As a result of the Bank’s decision, appellees transferred title to the narrow strip of land, tax parcel 4-5-8, to appellants for $1.00 consideration. The trial court found as a fact that the land was transferred to appellants with an understanding between the parties that the two parcels would be merged into one, with all four names to appear on a new deed. However, for reasons which do not appear of record, a new deed placing title to both tracts in the names of all four parties was never prepared. The loan was nevertheless issued by the bank in all four names. All payments on the $60,000.00 loan were made from the proceeds of the business and the loan was fully satisfied in May of 1989.

In 1980, appellants approached appellees, seeking a distribution of profits for the first time since the business’ inception. In response to appellants’ request, $40,000.00 was withdrawn from proceeds of the business which had been deposited in an investment account. Of the sum withdrawn, appellants received $20,000.00 and appellees received $20,000.00.

Throughout the years of the business’ operation, the parties discussed the possibility of a “buy-out” because appellants offered to sell their interest in the “property” to appellees. However, each time the subject was raised, appellees rejected the idea because they did not believe they could afford it. In 1982, the automotive repair business known as “DeMarchis Brothers” was incorporated as “DeMarchis Servicenter.”

In 1987 and 1989, respectively, the instant lawsuits were filed. Sometime thereafter, appellants began interfering with appellees’ operation of the repair business. The Bristol Police were called in response to the disruptive behavior of appellants on three separate occasions. On one such occasion, appellants pulled their car up to the front door of the garage and refused to move it, physically blocking customers and employees from entering the business for almost an hour during business hours. On February 25, 1991, after the trial of this matter had been concluded, the trial court issued a permanent injunction ordering appellants to permanently cease, desist and refrain from acts calculated or expected to harass, intimidate, endanger or annoy appellees or customers and/or employees of the repair business.

As noted above, on appeal, appellants claim that the trial court erred as a matter of law in concluding that they do not have a partnership interest in the DeMarchis Servicenter, but that appellees have an 83% interest in the land, and its improvements, upon which the repair business is located. Appellants insist that they have a 50% interest in the business, and a 100% interest in the land and its improvements. Appellees contend that the trial court was correct in its conclusions as a matter of law.

II.

Before addressing the merits of appellants’ claims, we note that:

“the scope of appellate review of a decree in equity is particularly limited, and that the findings of the Chancellor will not be reversed unless it appears that the Chancellor clearly committed an abuse of discretion or an error of law. Where credibility of witnesses is important to a determination, the findings of the Chancellor are entitled to particular weight because the Chancellor has the opportunity to observe their demeanor. Although an appeals court cannot sit as a trier of issues of fact and must accept the findings of fact of the [trial] court as the basis for its review, an appellate court is not bound to accept the findings of the Chancellor which are without support in the record or have merely been derived from other facts. Thus, the Chancellor’s conclusions of law or fact which are derived from nothing more than reasoning from underlying facts and not involving a determination of credibility of witnesses, are reviewable. (citations omitted).”

Dudash v. Dudash, 313 Pa.Super. 547, 552-553, 460 A.2d 323, 326 (1983) (emphasis added).

Appellants first argument is that the trial court erred as a matter of law in concluding that they did not have a partnership interest in the automotive repair business. A question as to whether a partnership exists must be determined by reference to the parties’ intent. As appellants note, this Court has stated that:

“[i]t is entrenched in the law of the Commonwealth that the existence of a partnership depends upon the intentions of the parties as to being partners and that no formal or written agreement need be executed in order for a valid partnership to exist. As the Pennsylvania Supreme Court ... opined:
There is no requirement that partnership agreements be in writing. They may be made orally or may be found to exist by implication from all attending circumstances (i.e., the manner in which the alleged partners actually conducted their business, etc.). Murphy v. Burke, 454 Pa. 391, 311 A.2d 904, at 907 (1973). (citations omitted).”

Barbet v. Ostovar, 273 Pa.Super. 256, 265, 417 A.2d 636, 641 (1979) (emphasis added).

In this case, despite its factual finding that the automotive repair business was purchased for the purpose of beginning a “new venture” between appellees and appellants, the trial court nevertheless arrived at the legal conclusion that a partnership did not exist between the parties for the operation of that business. In reaching this conclusion, the trial court erred as a matter of law by rejecting a crucial bit of prima facie evidence, which has not been rebutted, that compels the legal conclusion that a partnership existed.

Prima facie evidence is that which is "... good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim or defense, and which if not rebutted or contradicted, will remain sufficient.” The term has also been defined as “[a]n inference or presumption of law, affirmative or negative of a fact, in the absence of proof.... to overcome the inference.” Black’s Law Dictionary 1071 (5th Ed.1979) (emphasis added).

In determining whether a partnership exists, 15 Pa.C.S.A. § 8812(4) provides that “[t]he receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business ...” In the instant case, the trial court found that $40,000.00 was withdrawn from an investment account containing proceeds of the business and appellants received $20,000.00 of that money. The trial court was required to view this fact as prima facie evidence that a partnership existed between appellants and appellees for the operation of the automotive repair business, which if unrebutted, would remain sufficient to establish the existence of a partnership. Once the evidence of a profit distribution was introduced, the burden of proof shifted to appellees, as the party denying the partnership’s existence, to show that the payment was not a profit distribution, or that a partnership did not exist.

Section 8312(4) specifically sets forth examples of five situations in which prima facie evidence of a partnership, such as that present in the instant case, can be overcome or rebutted. In that regard, the statute provides that:

“no such inference [of a partnership] shall be drawn if the profits were received in payment:
(i) As a debt by installments or otherwise.
(ii) As wages of an employee or rent to a landlord.
(iii) As an annuity to a surviving spouse or representative of a deceased partner.
(iv) As interest on a loan though the amount of payment varies with the profits of the business.
(v) As the consideration for the sale of the goodwill of a business or other property by installments or otherwise.”

1988, Dec. 21, P.L. 1444, No. 177, § 103, effective Oct. 1, 1989.

In the instant case, appellees have not provided any evidence that the 1980 withdrawal of profits fell into any of the five categories delineated by § 8312(4). Indeed, there was positive evidence that the one-time withdrawal of business profits in 1980 was not a payment for wages or rent. Thus, unless appellees could produce some other evidence to rebut the prima facie evidence that a partnership existed, we will be constrained to conclude that a partnership existed between appellants and appellees. Appellees did not present any such evidence, however; indeed, all of the evidence which they presented actually supported and strengthened the statutory inference that the parties were partners.

As gleaned from the testimony of appellees themselves, the trial court found the following facts: (1) all four of the parties bought the scrap yard business from Johnny and Chester DeMarchis in 1964 for the purpose of starting a new venture together; (2) all four of the parties were required to sign the loan documents which were executed in 1972 and 1977, yet all the payments on these loans were made out of the proceeds from the business; (3) appellees conveyed the small strip of land to appellants with the understanding that the two separately owned parcels of land would be merged in one parcel, with the new deed to bear all four names; (4) appellants supplied the land upon which the business was run without ever requesting or receiving any rent for over twenty years; and finally, (5) in 1980, when a portion of the profits from the business were withdrawn, they were distributed equally between appellants and appellees. All of these facts, together with the statutory prima facie case, show that a partnership existed between appellants and appellees with respect to the automotive repair business.

Because appellees have not pointed to anything of record which contradicts the statutory prima facie case that a partnership existed, or the inference of a partnership arising from the foregoing facts, we are constrained to conclude that the trial court erred as a matter of law in rejecting appellants’ contention regarding the existence of a partnership in the repair business. We decide that the parties were in partnership and furthermore, that appellants’ request for an accounting should be granted.

In arriving at this decision, we note that although the trial court found it significant that appellants approached appellees requesting a distribution in order that they could put “some money” down on a house, we do not find this in the least significant. The mere fact that appellants intended to and did use the money they received in the profit distribution for a down payment on a house does not in any way undermine the statutory inference that a partnership existed between the parties.

We also note that despite the trial court’s heavy reliance upon appellants’ failure to demand regular profit distributions as evidence that the parties were not partners, we do not find that fact to be of any consequence because appellees testified that they “never took any profits either.” Our review of the record indicates an intention on the part of both appellants and appellees to re-invest the profits back into the business to foster its continued growth and success. We find that the actions of the parties in this regard are consistent with our holding that a partnership exists between the parties for the operation of the automotive repair business.

in.

Appellants’ second issue concerns the trial court’s legal conclusion that the evidence supports “... the existence of a partnership [in the real estate and its improvements] between the parties from the very beginning.” (Trial Court Opinion, 4/16/92, p. 14) (emphasis added). The trial court decided that appellees have an 83% interest in parcels 4-5-4 and 4-5-8, and the improvements thereon, while appellants have only a 17% interest in those assets. Appellants claim that this conclusion is erroneous in that their names are the only ones listed on the deed to the subject property and therefore, they are entitled to a full 100% interest therein. In this regard, we do not wholeheartedly agree with either the trial court or appellants.

We do not agree with the trial court’s conclusion that appellants and appellees were not in partnership with respect to the operation of the business, but were in partnership with regard to the real estate, and the improvements thereto. “A partnership is an association of two or more person to cany on as co-owners [of] a business for profit.” 15 Pa.C.S.A. § 8311(a).

In this case, it is clear that both tax parcels and the various improvements thereto were all integral parts of the business and were intended to be assets of the business from its inception. First, we note that despite their record ownership of the land and small garage in which the original business was located, appellants never requested rent from appellees for the business’ use of the premises from 1964 to the present. In the absence of any explanation from appellees as to why appellants were willing to forego over twenty years of rent, we believe this is strong evidence that appellants permitted the business to use tax parcel 4-5^4 in return for a portion of the profits of that business.

Secondly, in order to accommodate expansion of the business, appellants not only permitted the construction of a new, much larger building to house the business on the land, and later, an addition thereto, but they actually advanced their own credit, together with appellees, to obtain the financing necessary for said construction. Appellants were jointly liable for repayment of all loans taken out for expansion of the business premises.

Finally, although only appellants’ names appear on the deeds to the subject property, the trial court found that appellees and appellants intended to merge their separately owned parcels of land into one large parcel, at the request of the lender, so that all four parties would own an interest in the land upon which the business was situated. In light of all these facts and in view of our conclusion that a partnership exists between the parties for the operation of the repair business, we are compelled to conclude that the property upon which the business is operated, and the improvements thereto, are partnership assets such that appellants and appellees are each entitled to an interest, as partners, therein.

In situations such as the instant one, a constructive trust will be imposed in order to avoid the unjust enrichment of one party at the other’s expense. In that regard, this Court has recently stated that:

“[a] constructive trust arises when a person holding title to property is subject to an equitable duty to convey it to another on the ground he would be unjustly enriched if he were permitted to retain it. Yohe v. Yohe, 466 Pa. 405, 353 A.2d 417 (1976); Denny v. Cavalieri, 297 Pa.Super. 129, 443 A.2d 333 (1982). The necessity for such a trust may arise from circumstances evidencing fraud, duress, undue influence or mistake. Id. The controlling factor in determining whether a constructive trust should be imposed is whether it is necessary to prevent unjust enrichment. Roberson v. Davis, 397 Pa.Super. 292, 580 A.2d 39 (1990).”

Hercules v. Jones, 415 Pa.Super. 449, 457-458, 609 A.2d 837, 841 (1992).

In this case, appellants would be unjustly enriched if permitted to retain 100% of the property upon which the business is built because the parties mistakenly believed that when appellees conveyed tax parcel 4-5-8 to appellants, the two separately owned land parcels would merge into one large parcel, and all four parties would be listed as the record owners of the business property. We conclude that a constructive trust is necessary in the instant case to prevent the unjust enrichment of appellants. Appellants will hold the subject property, and improvements thereto, in a constructive trust for the benefit of the business until such time as either the partnership is dissolved or the business, and underlying property, are sold.

For all of the foregoing reasons, we vacate the final decree in equity and remand this matter to the trial court for appropriate proceedings consistent with this decision. It is so ordered.

      . Although the record is not entirely clear as to whether each and every business expense was paid out of business proceeds, there is testimony to the effect that loans taken out by the parties for the business were paid off with business proceeds. There is no positive testimony that any of the business expenses were paid out of the personal funds of appellees. As will shortly be seen, it was appellees burden to overcome the prima facie evidence that a partnership existed such that the lack of any evidence to the effect that business expenses were paid by appellees personally must be held against them.

      . Appellee husband is the President of the corporation known as “DeMarchis Servicenter,” and until her death, appellee wife was its Secretary/Treasurer. There is nothing of record to indicate who the shareholders of the corporation are, nor is there anything to indicate the identity of any other corporate officers which may exist. None of the parties have made an issue of this event and we, for that reason, decline to consider what effect, if any, it may have on the respective rights of the parties.

      . An appeal from the injunction was never filed by appellants and it is not an issue on appeal. We need not, therefore, address it further.

      . While appellee husband did receive a salary of $410.00 or $420.00 per week for his full-time work as an employee of the business, such payments are not considered to be a distribution of profits under § 8312(4).

      . Appellees testified that they had never paid rent and further, that appellants had never requested that they do so in the twenty-eight years that the service shop had been in business. Therefore, the $20,000.00 distribution could not possibly fall under the exception to § 8312(4) dealing with rental payments.

      . Although we have not relied upon it in arriving at our conclusion that a partnership exists between the parties in the instant case, we note with great interest that in paragraph six of appellees’ complaint, it was averred that there was an "unwritten understanding” between the parties that appellants “would share in some of the profits of [appellees'] business.”

      . Although appellants seek a distribution of one-half of the profits realized by the business since 1964, in addition to an accounting, the respective rights and interests of the parties in the business can only be determined following an accounting and further hearings in the trial court to determine the respective interests of appellants and appellees in the partnership. In addition, if the partnership should be dissolved in the future, appellants’ interest in the partnership assets should be determined at that time.


author: JOHNSON, Judge:

text:
    637 A.2d 1036
    COMMONWEALTH of Pennsylvania v. William Robert BIRDSEYE, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1993.
    Filed March 4, 1994.

      Thomas A. Crawford, Jr., Pittsburgh, for appellants.
    Thomas N. Farrell, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

We are asked to determine whether prostitution is an offense dangerous to life or limb -within the sweep of both federal and state wiretapping statutes so as to warrant wiretapping for investigations of conduct promoting prostitution. We find, on the record presented on this appeal, that the trial court committed no error in concluding that promoting prostitution does involve danger to life or limb, and that the Pennsylvania Wiretapping and Electronic Surveillance Control Act was not violated. Accordingly, we affirm the judgments of sentence.

A jury found the Birdseyes guilty of the following charges: corrupt organizations, 18 Pa.C.S. § 911(b)(3); promoting prostitution, 18 Pa.C.S. § 5902(b)(7); selling obscene materials (two counts), 18 Pa.C.S. § 5903(a)(2); interception of wire communications, 18 Pa.C.S. § 5703(1); and, possession of intercepting devices, 18 Pa.C.S. § 5705(1). Post-trial motions were filed and denied. Father was sentenced to not less than five nor more than twenty years’ imprisonment, and Son was sentenced to not less than three nor more than twenty years’ imprisonment. Motions to modify their sentences were denied, and these appeals followed.

The trial judge, the Honorable Raymond A. Novak, summarized the facts as follows:

The defendants are the owner-managers of several adult bookstores in Western Pennsylvania, one of which was located in Allegheny County. They were accused of maintaining a Corrupt Organization by using the bookstores for prostitution and the sale of pornography. The Commonwealth called many witnesses, including undercover state troopers, former employees of the Birdseyes’ store, former customers, former associates and even prostitutes who used the Birdseyes’ facilities. Additionally, the Superior Court of Pennsylvania authorized a wiretap of various telephones and the police obtained hundreds of taped telephone calls, a great number of which were introduced into evidence in the case.
The Commonwealth’s evidence tended to show that the Birdseyes were intimately involved in the operation of the bookstores. Two male prostitutes testified that they used the defendants’ bookstores for purposes of engaging in prostitution. The former manager of one of the stores testified that the use of the facilities by prostitutes was open and notorious; moreover, he testified about the alteration of the video booths with “glory holes” for purposes of engaging in sexual contact between the video booths. Many of the tapes indicated that [Son] would add holes and have some covered up from time to time; the carpenter who cut the holes between the video booths also testified.
A state trooper testified that he purchased a magazine entitled, “Tortured Ladies,” and a video entitled, “Breeders,” from the Boulevard Bookstore in downtown Pittsburgh. ...
A separate operation stemming from the bookstores involved only [Father]. He managed a “bachelor party” operation. Many of the tapes consisted of recorded phone calls between [Father] and prospective customers about hiring dancers for bachelor parties. [Father] told the callers that there would be an additional charge if the caller wanted the dancers to “play” after the party. Dancers testified about their performance at various parties. Two customers testified about the bachelor parties which they arranged through [Father]. Moreover, state troopers testified about an undercover operation in which they arranged for dancers and also, for an extra $200, for the dancers to “play” afterwards.
Finally, the defendants were charged with illegally taping the conversations of their employees, and in this regard, [a t]rooper testified about recovering the recording devices from their stores during the execution of a search warrant.
The defendants testified in their own behalf and indicated that they did not promote prostitution and ran a legitimate business.

Trial Court Opinion, dated November 7, 1991, at 3-5 (citations omitted).

On appeal, the Birdseyes argue that (1) the evidence was insufficient to sustain the verdict; (2) the verdict was against the weight of the evidence; (3) the interception of their wire communications violated Title 18 of the United States Code; (4) the interception of the wire communications was without sufficient probable cause; (5) the trial court abused its discretion by denying their motion to sever; (6) they were denied sufficient discovery; (7) they were denied sufficient particulars; (8) they were denied compulsory process; (9) they were denied the right to confront witnesses; (10) their right to present their case was limited; (11) the jury was erroneously instructed; and, (12) the sentence was improper.

The Birdseyes first assert that there was insufficient evidence to sustain the charges of corrupt organizations, promoting prostitution, obscenity and wiretapping. The Birdseyes also contend that Father was entrapped by government agents concerning his corrupt organizations charge based upon female prostitution. In presenting their argument on these issues, however, the appellants neither cite to the record nor do they cite to any case law to support their allegations. As a result, we will not review this argument and find that these issues have been waived. Pa.R.A.P. 2119 and 2132; Commonwealth v. Shaw, 494 Pa. 364, 370 n. 3, 431 A.2d 897, 900 n. 3 (1981) (failure to elaborate on mere assertion in brief that admission of confession violated fifth amendment results in waiver); Commonwealth v. Badman, 398 Pa.Super. 315, 322-23 n. 2 and n. 3, 580 A.2d 1367, 1370 n. 2 and n. 3 (1990) (issue waived if argument is mere assertion); Commonwealth v. Long, 367 Pa.Super. 190, 197-98, 532 A.2d 853, 857 (1987), appeal denied, 518 Pa. 617, 541 A.2d 744 (1988) (we will not review issues that are not properly developed by citation to the record and reference to supporting case law).

As their second issue, the Birdseyes maintain that the verdict was against the weight of the evidence for the same reasons that the evidence was insufficient to sustain their convictions. However, sufficiency of the evidence claims are distinct from weight of the evidence claims, as there are different standards of review as well as separate remedies involved. Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984). Indeed, in making a claim that the verdict was against the weight of the evidence, it is conceded that there was sufficient evidence to sustain the verdict. Commonwealth v. Murray, 408 Pa.Super. 435, 439, 597 A.2d 111, 113 (1991), appeal denied, 529 Pa. 668, 605 A.2d 333 (1992), citing Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984). Moreover, the Birdseyes failed to provide any separate argument in support of the weight of the evidence issue. Because the Birdseyes failed to distinguish between their sufficiency and weight of the evidence claims and presented no argument regarding the weight of the evidence, we deem their weight of the evidence issue waived. See Long, supra; see also Whiteman, supra (boilerplate allegation that verdict was against weight of evidence waives issue).

In their third issue, the Birdseyes argue that the trial court erred in finding that a judge of this Court, the Honorable Zoran Popovich, lawfully issued search warrants allowing the interception of wire communications. They contend that Title III of the Omnibus Crime Control & Safe Streets Act of 1968 (Title III), 18 U.S.C. § 2510-2520, prohibited the authorization of the wiretaps. Title III provides that state investigating agencies may utilize wiretaps:

when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marijuana or other dangerous drugs, or other crimes dangerous to life, limb, or property, and punishable by imprisonment for more than one year----

18 U.S.C. § 2516(2). The Pennsylvania Wiretapping and Electronic Surveillance Control Act (Wiretap Act), 18 Pa.C.S. § 5701 et seq., sets forth the following:

§ 5708. Order authorizing interception of wire or oral communications
The Attorney General ... may make written application to any Superior Court Judge for an order authorizing the interception of a wire or oral communication ... when such interception may provide evidence of the commission of any of the following offenses, or may provide evidence aiding in the apprehension of the perpetrator or perpetrators of any of the following offenses:
(2) Under this title, where such offense is dangerous to life, limb or property and punishable by imprisonment for more than one year:
}■« 5$i ^ H4
Section 5902 (relating to prostitution and related offenses)
(5) Any offense set forth under the act of November 15, 1972 (P.L. 1227, No. 272) [Corrupt Organizations statute].

18 Pa.C.S. § 5708. The trial court found that the crimes listed by the Commonwealth in the wiretap request satisfied the requirement of 18 U.S.C. § 2516(2) that the crime be “dangerous to life, limb, or property.” Judge Novak explained:

In its brief opposing the motion to suppress, the Commonwealth asked this court to take judicial notice of the Surgeon General’s report on AIDS [Acquired Immunodeficiency Syndrome]. After considering briefs on this issue, this court declined to take judicial notice of the entire report, but did take notice of the fact that at the time of the Commonwealth’s application to the Superior Court for the wiretap (1986), our country was experiencing a health crisis brought on by a sexually transmitted virus which causes the fatal disease known as AIDS. We concluded that this fact was so widely known in our society by the mid-eighties that to ignore it would be placing one’s head in the sand.

Trial Court Opinion, supra at 14. “The doctrine of judicial notice is intended to avoid the necessity for the formal introduction of evidence in certain cases when there is no real need for it,—where a fact is so well established as to be a matter of common knowledge.” Commonwealth v. Brown, 312 Pa.Super. 383, 385, 458 A.2d 1012, 1012-13 (1983) (citing cases). Although the Birdseyes do not dispute the fact that AIDS was a health crisis in 1986, they do take exception to the judge’s decision to take judicial notice of this fact. The appellants assert that prostitution does not constitute a crime dangerous to life, limb or property, and, therefore, a wiretap should not have been authorized.

The spread of the fatal disease AIDS has caused an enormous health crisis in this country, hence, we cannot find that the trial court erred in taking judicial notice of that fact. As a result, we are unable to conclude that the trial court erred in its determination that a prostitution business, such as the one operated by the appellants, was a danger to life. Under the facts presented in this case, we are constrained to conclude that the wiretaps, which permitted further investigation of the prostitution activities, did not violate either the federal or state statutes.

In support of their argument that prostitution is not a crime dangerous to life, the Birdseyes rely on People v. Shapiro, 50 N.Y.2d 747, 431 N.Y.S.2d 422, 409 N.E.2d 897 (1980). This case, however, is factually distinguishable. In Shapiro, the defendant was convicted of sodomy and endangering the welfare of a minor. He was also charged with promoting prostitution as a result of a single incident in which other adults brought young male prostitutes to his home to engage in sexual behavior. This information was learned through court-ordered wiretapping on defendant’s telephone. The court, however, reversed his conviction holding, inter alia, that the wiretap exceeded the bounds of 18 U.S.C. § 2516(2). The majority reasoned that because Title III was designed to permit state wiretaps for a “class of major offenses that were either ‘intrinsically serious or * * * [were] characteristic of the operations of organized crime[,]’ ” the wiretap was declared invalid because the crime involved, a single event of promoting prostitution, was not a crime dangerous to life or limb. Shapiro, supra at 764, 431 N.Y.S.2d at 431-32, 409 N.E.2d at 907. We, however, agree with the trial court that Shapiro is inapposite. Shapiro dealt with only a single incident of promoting prostitution, and “not a vast criminal enterprise promoting anonymous sex for profit.... ” Trial Court Opinion, supra at 20.

The Birdseyes also cite to United States v. Millstone Enterprises, Inc. 684 F.Supp. 867 (W.D.Pa.1988), as support for their argument that organized prostitution is not a crime dangerous to life or limb. That case involved the same wire interceptions here under review. The distinguished district court Judge, Glenn E. Mencer, denied an application for a contempt sanction and ruled that a corrupt organization involved in prostitution was indistinguishable from the crimes considered in Shapiro. On appeal, the United States Court of Appeals for the Third Circuit reversed. United States v. Millstone Enterprises, Inc., 864 F.2d 21 (1988). It held that the question regarding the legality of the wiretap had been raised in the district court in an earlier, summons enforcement proceeding and the district court’s failure to rule on that issue when first raised precluded the court from considering the legality of the wiretap in the subsequent contempt proceeding. Id. at 23. The court of appeals expressly refused to rule upon the merits of the contention that the wiretap was illegal or upon the question whether such illegality could be raised in subsequent proceedings. Id. at 24 n. 1. The court of appeals remanded the matter to the district court for entry of an appropriate civil contempt sanctioning order. Id. at 24.

We conclude that neither of these cases, upon which the Birdseyes principally rely, provide support for the contention that Judge Novak erred in refusing to suppress the wiretap evidence received as a result from the warrants authorized by Judge Popovich.

Next, the Birdseyes claim that the interception of their wire communications was without sufficient probable cause in the affidavit. In this case, the District Attorney sought authorization to intercept the telephone communications of the Birdseyes concerning offenses in violation of 18 Pa.C.S. § 5902 (prostitution and related offenses) and 18 Pa.C.S. § 911 (corrupt organizations). The standard for determining whether probable cause existed for an order authorizing interception of telephone communications is the same as that used to determine probable cause for search warrants. Commonwealth v. Doty, 345 Pa.Super. 374, 397, 498 A.2d 870, 881-82 (1985), cert. denied, 479 U.S. 853, 107 S.Ct. 185, 93 L.Ed.2d 119 (1986). In determining probable cause for search warrants, Pennsylvania has adopted the “totality of the circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and followed in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The Birdseyes would have us apply the pre-Gray two-prong test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), which required that the issuing authority see, on the face of the affidavit of probable cause, both the informant’s basis for his knowledge and independent facts showing the reliability of the informant. This we cannot do. The test now utilized for analyzing warrants is as follows:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is' simply to ensure that the magistrate had a “substantial basis for ... concluding] that probable cause existed.”

Commonwealth v. Karns, 389 Pa.Super. 58, 61, 566 A.2d 615, 616 (1989), appeal denied, 525 Pa. 632, 578 A.2d 927 (1990) (citations omitted).

Similarly, in an application for a wiretap, the Commonwealth must establish probable cause to believe that (1) the person whose communication is to be intercepted has committed an offense as provided in the state wiretap law, 18 Pa.C.S. § 5701 et seq., (2) communications concerning that offense will be transmitted, and (3) such communications will be intercepted on the facility under surveillance. Doty, supra at 397, 498 A.2d at 882; see also 18 Pa.C.S. § 5710. In “reviewing the adequacy of the application to support the issuance of an order of authorization, we will interpret the application in a common sense manner, not overly technical, with due deference to the findings of the issuing authority.” Doty, supra at 395, 498 A.2d at 881.

Our review of the application in the present case persuades us that the application contained probable cause which was adequate to support the issuance of a wiretap order. The District Attorney first alleged that Father promoted prostitution in violation of § 5902 and violated the corrupt organizations statute by being involved in a pattern of racketeering activities, i.e., the business of female prostitution. Two confidential informants, Source One and Source Two, supplied information to the police on previous occasions. Their information led to the arrest and conviction of various individuals relative to charges of prostitution and related offenses. Source One stated specifically that he/she had dealt with Father both in person and by telephone, and had personally observed and/or participated in conversations with Father and that the telephone was used to make arrangements for females to be used in the prostitution business. Moreover, Source One indicated that the phone numbers given to him/her were Father’s numbers, a fact substantiated by police investigation of phone records. In addition, Source Two stated that he/she had spoken to Father in person and by telephone, at numbers provided by Father, about integrating a female into the prostitution business. Father had previously indicated to Source Two that he (Father) was involved in the prostitution business and was planning an expansion of that business. Also, officers in the organized crime unit made arrangements with Father for a party with two females. After arriving with the females, Father then solicited the officers by offering sex with the females in exchange for money.

The District Attorney also asserted that Father and Son violated the corrupt organization statute by engaging in various racketeering activities, i.e., distributing obscene materials in the adult bookstore business and promoting prostitution in the bookstores. Information set forth in the application for the wiretaps established the following: (1) Father and Son owned four adult bookstores, and Son was active in managing the stores; (2) police officers purchased several obscene magazines and videos in the Birdseyes’ bookstores; and (3) prostitutes picked up customers and brought them to the bookstores or met customers within the bookstores, performed sex acts in the privacy of booths located in the stores, and accepted pay for their services. Further, it was alleged that this prostitution activity was open and notorious; known to both employees and appellant/owners of the stores.

Based on the information provided in the application for the wiretaps, we find that there was a substantial basis for concluding that probable cause existed to order the interception of the telephone communication. See Kams, supra; Doty, supra.

Next, we turn to issues 5, 6, and 7, in which the Birdseyes argue that they were improperly denied a motion to sever counts, denied sufficient discovery and denied sufficient particulars. After a thorough review of the record, the briefs of the parties, the applicable law and the Opinion of the trial court, it is our determination that there is no merit to issues 5, 6 and 7 raised in the Birdseyes’ appeals. The Opinion of the trial judge, the Honorable Raymond A. Novak, comprehensively discusses and adequately disposes of the questions presented. As to issue 7, we would only add the more recent case of Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985), to show that the trial court properly denied the appellants’ request for a more detailed bill of particulars. Accordingly, we affirm issues 5, 6 and 7 on the basis of the Trial Court Opinion at 26-28, 33-40.

The Birdseyes, in their eighth and ninth issues, respectively, allege, without elaboration, that they were denied compulsory process when the court refused their request to reopen the case in order to call a witness, and were denied the right to confront their accusers. Again, we find that the appellants have failed to adequately develop an argument regarding these claims, and they also fail to cite to any authority that supports their assertions. See Commonwealth v. Long, supra. Furthermore, in the confrontation issue, the Birdseyes cite to various pages in the trial transcript, but in essence ask that we develop an argument for them. It is not this Court’s function or duty to become an advocate for the appellants. Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982). Thus, we conclude that these contentions have been waived. See Commonwealth v. Badman, supra.

Next, the Birdseyes contend that the right to present their case was limited. Specifically, they claim that the trial court restricted their proof of community standards regarding obscenity by limiting their comparable items to only one hour of videotape. Here, the Commonwealth objected to the use of videotapes to demonstrate community standards. This objection, however, was overruled, and the trial court decided to place a time limit of one hour on the video presentation. A review of the record shows that defense counsel had no objection to this time limitation and, moreover, stated that he “[didn’t] want to see more than one hour.” N.T., May 9-22, 1990, at 1193. Indeed, the jury was shown a one hour video composed of various excerpts from movies, and defense counsel made no objection or complaint about the time limitation. N.T., June 8-21, 1990, at 2336-39. Defense counsel’s acceptance of the one hour time limit, without objection, constitutes waiver. See Commonwealth v. Purcell, 403 Pa.Super. 342, 589 A.2d 217 (1991), appeal denied, 529 Pa. 657, 604 A.2d 248 (1992).

In their eleventh issue, the Birdseyes claim that the trial court erroneously instructed the jury regarding the law of obscene materials and corrupt organizations.

When reviewing a claim that the trial court erred in instructing the jury, the scope of appellate review is whether the court committed a clear abuse of discretion or an error of law which controlled the outcome of the case. This court will look at the charge in its entirety against the background of evidence in the case to determine whether error was made and whether it was prejudicial.

Butler v. Kiwi, S.A., 412 Pa.Super. 591, 596, 604 A.2d 270, 272 (1992), appeal denied, 531 Pa. 650, 613 A.2d 556 (1992) (citation omitted). First, the Birdseyes contend that the jury was confused when the trial court instructed that the jury could find all of the materials shown to be obscene. On the contrary, a review of the charge shows that the trial court instructed the jury as follows:

To a certain extent, you will in your deliberations, I presume, compare the various materials, but ultimately ... it is for you to determine what the community standards were at this time. You may conclude, after you have reviewed the evidence, that none is obscene ... or you can conclude that all of it is obscene.
Of course you are not charged with that conclusion in your responsibilities, but only to determine whether Breeders and Tortured Ladies are obscene. You could also conclude that some of it is obscene and some of it is not obscene.

N.T., June 8-21,1990, at 2746-47. The jury also was instructed that they should look at all of the evidence presented by the parties as well as utilizing their own experience. Id. at 2747.

The Birdseyes’ additional contention, that the trial court improperly instructed the jury as to corrupt organizations, is equally without merit. The judge told the jury that they must find that the appellants (1) were “associated with a certain enterprise; in this case, a chain of adult bookstores; and [ (2) ] ... participated directly or indirectly in the conduct of the affairs of that chain of adult bookstores through a pattern of racketeering activity.” Id. at 2748. The court’s charge followed the standard jury instructions and accurately explained the law of corrupt organizations. See Pennsylvania Standard Criminal Jury Instructions 12.911.; Bailey v. Pennsylvania Electric Co., 409 Pa.Super. 374, 598 A.2d 41 (1991), appeal denied, 534 Pa. 645, 627 A.2d 177 (1993).

Having reviewed the instructions as a whole, we find that the trial court adequately explained the law and properly charged the jury. Butler, supra; Bailey, supra. Thus, the trial court committed no error of law or abuse of discretion when giving its charge.

Finally, the Birdseyes allege that their sentences were improper and should have fallen within the mitigated range of available sentences. Since this contention concerns the discretionary aspects of sentencing, the requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), apply. The appellants, however, have failed to comply with Pa.R.A.P. 2119(f) which requires that a “concise statement of reasons relied upon for allowance of appeal” with respect to the discretionary aspects of the sentence be set forth in appellants’ brief immediately preceding the argument section. Only if it is determined that a substantial question has been presented as to the appropriateness of the sentence under the Sentencing Code, 42 Pa.C.S. § 9781(b), may this Court review the manner in which the sentencing court exercised its discretion. Tuladziecki, supra. Because the appellants have neglected to include a 2119(f) statement and the Commonwealth, aware of the omission, made proper objection in its brief, we are precluded from addressing the merits of appellants’ challenge. Commonwealth v. Miller, 414 Pa.Super. 56, 606 A.2d 495 (1992), appeal denied, 531 Pa. 639, 611 A.2d 711 (1992), citing Tuladziecki, supra; Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987).

Based on the foregoing reasons, the judgments of sentence for the Birdseyes are affirmed.

Judgments of Sentence AFFIRMED.