author: MONTEMURO, Judge:

text:
    452 A.2d 1035
    Kenneth G. WALDO, Appellant, v. BESSEMER & LAKE ERIE RAILROAD COMPANY, a Pennsylvania Corporation.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1981.
    Filed Oct. 15, 1982.
    Reargument Denied Dec. 22, 1982.
    Petition for Allowance of Appeal Denied March 14, 1983.

      Arnold L. Schulberg, Pittsburgh, for appellant.
    Henry M. Wick, Jr., Pittsburgh, for appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   MONTEMURO, Judge:

The instant case began as an action in Equity for a determination of a leasehold interest in land used as a right-of-way by appellee railroad since 1892. Appellant, successor in interest to the original lessors, alleges that by May 2, 1973 the supposed right-of-way had been abandoned for all intents and purposes, and that by letter of June 19, 1973 he informed the appellee that under the terms of the leasehold agreement the property had reverted to him. It is undisputed on the record that at present trees have grown up between the tracks and that the tracks and ties are completely buried in various locations. It is also undisputed on the record that a portion of the same right-of-way located on the appellant’s property has already been the subject of an Interstate Commerce Commission [hereafter “I.C.C.” or “Commission”] determination of abandonment.

Appellant filed his complaint on May 9, 1979; appellee filed preliminary objections on June 27, 1979, alleging that the I.C.C. had exclusive jurisdiction over “abandonment of railroad branch lines”; that appellant had not exhausted statutory remedies; and that the leasehold issues could not be determined by the I.C.C.

After hearing on the matter, the trial court dismissed the complaint, deferring to jurisdiction in the I.C.C. We disagree and reverse for the following reasons:

We find considerable merit in appellant’s argument that the wording of the Interstate Commerce Licensing Act [The Act] clearly contemplates that the provisions therein would be utilized by petitioner railroads. Samples of the language in two of the sections as quoted below assuredly support this contention.

§ 10903. Authorizing abandonment and discontinuance of railroad lines and rail transportation
(a) A rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter 1 of chapter 105 of this title may—
(1) abandon any part of its railroad lines; or
(2) discontinue the operation of all rail transportation over any part of its railroad lines;
only if the Commission finds that the present or future public convenience and necessity require or permit the abandonment or discontinuance. In making the finding, the Commission shall consider whether the abandonment or discontinuance will have a serious, adverse impact on rural and community development.
§ 10904. Filing and procedure for applications to abandon or discontinue
(a)(1) An application for a certificate of abandonment or discontinuance under section 10903 of this title [49 USCS § 10903], and a notice of intent to abandon or discontinue, must be filed with the Interstate Commerce Commission at least 60 days before the day on which the abandonment or discontinuance is to become effective.
(2) When a rail earner providing transportation subject to the jurisdiction of the Commission under subchapter 1 of chapter 105 of this title [49 USCS §§ 10501 et seq.] files an application and notice of intent, the notice shall include—
(Á) an accurate and understandable summary' of the rail carrier’s application and the reasons for the proposed abandonment or discontinuance;
(B) a statement indicating that each interested person is entitled to recommend to thé Commission that it approve, deny, or take other action concerning the application; and
(C) (i) a statement that the line is available for subsidy or sale in accordance with section 10905 of this title [49 USCS § 10905], (ii) a statement that the carrier will promptly provide to each interested party an estimate of the subsidy and minimum purchase price required to keep the line in operation, calculated in accordance with section 10905 of this title [49 USCS § 10905], and (iii) the name and business address of the person who is authorized to discuss sale or subsidy terms for the carrier.
(3) The rail carrier shall
(A) send by certified mail a copy of the notice of intent to the chief executive officer of each State that would be directly affected by the proposed abandonment or discontinuance;
(B) post a copy of the notice in each terminal station on each portion of a railroad line proposed to be abandoned or over which all transportation is to be discontinued;
(C) publish a copy of the notice for 3 consecutive weeks in a newspaper of general circulation in each county in which each such portion is located;
(D) mail a copy of the notice, to the extent practicable, to all shippers that have made significant use (as designated by the Commission) of the railroad line during the 12 months preceding the filing of the application; and
(E) attach to the notice filed with the Commission an affidavit certifying the manner in which clauses (A)-(D) of this paragraph have been satisfied, and certifying that clauses (A)-(D) have been satisfied within the most recent 30 days prior to the date the application is filed.
(b) The burden is on the person applying for the certificate to prove that the present or future public convenience and necessity require or permit the abandonment or discontinuance. . . . (Emphasis supplied)

It is undeniable, however, that upon rare occasions parties other than the railcarriers have been permitted to file for abandonment. In 1924 the court in Thompson v. Texas Mexican Railroad Co., 328 U.S. 134, 66 S.Ct. 937, 90 L.Ed. 1132 stated that “persons other than carriers” may “take the initiative” under the Act. We note, however, that the “persons” the court had in mind were a second railroad in a trackage arrangement with the primary carrier and a city and county, entities quite dissimilar to an individual holding a leasehold interest in land as appellant is herein.

Appellee has introduced into this record a recent decision of the I.C.C., dated October 2, 1981 and entitled “Modern-Handcraft-Abandonment in Jackson County Missouri.” (“Decision”) (R. following p. 15). This decision appears to present recent action on a similar set of facts, but although we have found it most useful, we do not find it dispositive of the instant action. The case appears from its title to afford relief to a corporation whose land abuts the right-of-way therein discussed; in fact, however, the stronger applicant, and the one who eventually obtained relief, was Kansas City, which was also eager to have the right-of-way condemned. The corporate applicant had failed to get relief originally from a review board of the I.C.C. on grounds that it was unable to prove that the carriers did indeed “intend” to abandon the line. (This, despite the fact that in that case, as in this, a patent abandonment had taken place.)

Meanwhile, the city had pursued a court case in an effort to have the property condemned. The Decision of the I.C.C. states that the attempts of the State of Missouri to have the property condemned had been repeated over “many years.” The State Supreme Court denied relief and returned the case to the jurisdiction of the I.C.C. The city and the corporate applicant now combined as applicants before the I.C.C. to obtain an abandonment decision despite the railroad’s opposition. The subsequent decision by the I.C.C. determined the issues solely on the arguments of the city, not the corporate applicant.

The I.C.C. at last took the matter in hand and made a firm decision. It heartily rejected the concept that jurisdictional arguments could properly be used

... to shield a carrier from the legitimate purposes of State law where there is no overriding federal interest in Interstate Commerce. Where as here there have been no operations for over twelve years and no attempt at rail service, we can find no benefit in preventing a State condemnation proceeding. (R. Brief of Appellant, following p. 15, “Decision” at p. 5.

It is indisputable that the I.C.C. has thus expressed an aversion to being used as an evasion of duty by the carriers. De facto abandonment of a line in contravention of the clear dictates of the law requiring the railcarrier to apply for permission to abandon sixty days before actual abandonment is hardly a legitimate means of retaining control of the property. We agree with the Commission, and furthermore we find it odd that the appellee should expect relief from an Equity Court when with unclean hands it offers its own non-compliance with law as a legitimate reason to bar relief to a plaintiff.

As a proof that the instant appellant has any action whatsoever that could prevail before the I.C.C., all the cited examples supra fail. The applicants were either railcarriers themselves or states or municipalities, and the reasoning of the decisions is based on public interest. Even assuming that it is possible for an individual leaseholder to file and to prove all the requested informations required by the Act, it is not a simple nor a desirable solution to the instant problem.

More relevant to our own case are the facts of Lacy v. East Broad Top Railroad and Coal Co., 168 Pa.Super. 351, 77 A.2d 706, 710 (1951), where the judgment of the lower court to sustain preliminary objections was also reversed. In that case, the mere existence of a certification of abandonment issued by the I.C.C. was held to be insufficient to prove abandonment, and the appellate court found that the lower court should properly have tried the property and contractual rights involved, and should have made its own determination of abandonment by the trier of fact:

The Commission did not attempt to, and manifestly could not, determine or adjudicate the property or contractual rights of the parties to this litigation.... At most, the proceedings before the Commission constitute only the expression of the railroad’s intention to abandon its right of way, the Commission’s conditional approval ... and the consent of the Commonwealth thereto.... “The question of abandonment is one of fact for the determination of the jury, depending upon all the facts and circumstances disclosed by the evidence of each particular case.” Lacy v. East Broad Top Railroad & Coal Co., 168 Pa.Super. 351, 77 A.2d 706, 710 (1951) and cases cited therein.

The Lacy court is not alone in finding that the state court has jurisdiction over questions of law and fact, even where I.C.C. jurisdiction exists, so long as the administrative determination involved is not germane to the solution in the court.

Uniformity of regulation of interstate railroad common carriers, and the supremacy of the federal authority within its sphere, may be secured by appropriate judicial proceedings without preliminary administrative determinations, though the courts may defer judicial action pending authorized administrative determinations in matters where such a course will facilitate the administration of applicable law, particularly where exhaustive consideration of complicated facts and circumstances and statutory administrative discretion are involved: for example, cases involving rates of or unlawful discrimination by common carriers. Where, however, questions of law, and not voluminous facts or discretionary administrative functions, are involved, the courts may act without administrative determinations. Ultimate review by the federal Supreme Court secures uniformity of regulations and the supremacy of the authority of Congress.

State ex rel. Davis v. Atlantic Coast Line R. Co., 95 Fla. 14, 116 So. 48 (1928). (Emphasis supplied). The instant facts appear uncomplicated, and the issue of “abandonment” is properly within the scope of the trier of fact and need not be settled administratively prior to trial in court.

The alleged leasehold interest presented by the Complaint in this matter presents an interest in land and in contract-issues absolutely within the province of the common pleas eourt. Even appellee admits that relief as requested would not be properly administered by the I.C.C. (R. Defendants Brief in Support of Preliminary Objections, p. 2). Those issues can clearly be settled by the court of common pleas of Butler County under its own jurisdiction, without reference to the jurisdiction also present in the I.C.C. to issue a certificate of abandonment after application properly submitted by the appellee to the I.C.C.

The order of the lower court is reversed, the matter is remanded for the filing of an Answer and trial on the merits. It is so ordered.

      . Finance Docket No. 293301, embracing also Finance Docket No. 29485, Decided September 30, 1981, service date October 2, 1981.

      . Kansas City Area Transportation v. Ashley, Mo., 555 S.W.2d 9 (1977).


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    452 A.2d 1039
    COMMONWEALTH of Pennsylvania v. Ronald KAUFMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 26, 1981.
    Filed Nov. 12, 1982.

      William J. Furber, Jr., Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and McEWEN, JJ.
   McEWEN, Judge:

We here consider an appeal from the conviction of appellant by a jury of possession of a controlled substance and possession of a controlled substance with intent to deliver. The appellant was sentenced by the learned Montgomery County Common Pleas Court Judge Mason Avrigian to pay a fine of $5,000 and to serve a term of imprisonment of from five years to ten years. We affirm.

The evidence presented by the Commonwealth included testimony by an enforcement agent that he paid $1,000 to appellant and in return for this payment received from appellant a white substance which a chemist later identified as cocaine.

Appellant asserts “the verdict was against the evidence and the weight thereof” and that, therefore, the trial court erred when it denied the motions of appellant for a new trial and an arrest of judgment. As we reiterated in Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981), a court will not grant a new trial on the ground that the verdict was against the weight of the evidence unless the verdict of the jury was such as to shock our sense of justice. Our study of the record compels the conclusion that the jury performed its duty in quite proper fashion. It might even be said that this contention of appellant is frivolous in view of the fact that the testimony of the enforcement agent regarding the delivery and the payment was uncontradicted by the defense.

As for the contention of appellant that the evidence was insufficient, we held in Commonwealth v. Anderson, 265 Pa.Super. 494, 402 A.2d 546 (1979), that the uncorroborated testimony of the police officer who positively and unequivocally identified the appellant as the individual who sold him a quantity of heroin was sufficient to prove the appellant guilty of selling heroin in violation of The Controlled Substance, Drug, Device and Cosmetic Act. Likewise, in Commonwealth v. Lane, 236 Pa.Super. 462, 345 A.2d 233 (1975), we held that the uncorroborated testimony of an undercover agent was sufficient evidence upon which to base convictions for possession and delivery of controlled substances.

In Commonwealth v. Anderson, supra 265 Pa.Super. at 499, 402 A.2d at 548, we stated:

‘Proof beyond a reasonable doubt of the identity of the accused as the person who committed the crime is essential to a conviction.’ Commonwealth v. Hickman, 453 Pa. 427, 430, 309 A.2d 564, 566 (1973). Where a witness’ opportunity to identify the accused is good and his identification remains positive and unshaken even after cross-examination, his testimony is clearly sufficient proof of identity. Id. Accord, Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954).

Therefore, it is clear that the positive and uncontroverted identification provided by the enforcement agent of appellant as the individual who sold him the cocaine is sufficient proof of the identity of the appellant as the person who unlawfully sold the contraband. We believe that the evidence produced by the Commonwealth at trial was sufficient to allow the case to go to the jury for a determination by their verdict of whether the appellant was guilty beyond a reasonable doubt.

Appellant next claims it was error for the trial judge to deny the demurrer to the bill of information. The Second Count of the information charges, “That on the same day and year, in said county, the above defendants) did unlawfully, knowingly or intentionally possess a controlled or counterfeit substance.” The Fifth Count charges, “That on the same day and year, in said county, the above defendants) did feloniously manufacture, knowingly create, deliver or possess with intent to manufacture or deliver, a controlled substance or counterfeit controlled substance classified in Schedule I, II or III.” The description of the charges against appellant failed to allege that appellant was not authorized to possess the controlled substance. Appellant contends (1) that the bill of information, by reason of that omission, is defective insofar as the charge of a controlled substance is concerned and (2) there was no evidence produced that related to a counterfeit substance.

We reject this claim of error. This court made clear in Commonwealth v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979), that the Commonwealth has the burden of proving nonlicensure in cases involving The Controlled Substance, Drug, Device and Cosmetic Act only when the defendant comes forward with credible evidence that he is licensed to possess the controlled substance. Commonwealth v. Minoske, 295 Pa.Super. 192, 441 A.2d 414 (1982). Appellant rested without presenting any testimony or evidence of any type. The court properly refused to sustain the demurrer.

Appellant further asserts that the court erred when it determined that certain Commonwealth exhibits were admissible, namely, two exhibits that actually contained the pertinent illegal substances and two certificates from the pertinent agencies of the Commonwealth that appellant was not authorized to manufacture, distribute, sell, prescribe or possess controlled substances.

Appellant contends the prosecution failed to properly establish the chain of custody of the two exhibits containing the contraband since the prosecution did not present as a witness a certain technician who was responsible for the delivery of the substances from the evidence locker to the laboratory. This court has in the past rejected such a contention. We held in Commonwealth v. Herman, 288 Pa.Super. 219, 431 A.2d 1016 (1981) that the testimony of a custodian who had handled the evidence in the crime lab was not necessary to establish the chain of custody. The Commonwealth is not required to produce every person who came into contact with the evidence nor is it necessary to prove there was no possibility of tampering. Commonwealth v. Snyder, 254 Pa.Super. 186, 385 A.2d 588 (1978); Commonwealth v. Rick, 244 Pa.Super. 33, 366 A.2d 302 (1976). Rather, it is sufficient that the Commonwealth presents sufficient evidence to establish by a reasonable inference that the identity and condition of the exhibits remain unimpaired. Commonwealth v. Miller, 234 Pa.Super. 146, 339 A.2d 573 (1975), aff’d., 469 Pa. 24, 364 A.2d 886 (1976).

Nor do we accept the contention that the two certificates of non-licensure were inadmissible hearsay. The admissibility of these certificates is governed by 42 Pa.C.S.A. § 6103(b) which provides:

A written statement that after an examination of the records of the government unit no record or entry of a specified tenure is found to exist in the records designated by the statement, authenticated as provided in sub-section (a), is admissible as evidence that the records contain no such records or entry.

The authentication requirement referred to therein, namely § 6103(a), provides in part:

The certificate may be made by any public officer having a seal of office and having official duties with respect to the government unit in which the record is kept, authenticated by the seal of his office . . .

Since the signatories of the certificates have official duties as agents of their governmental department and since each of these exhibits is impressed with the official seal of the governmental department, the exhibits were properly admitted by the trial court as evidence that appellant was not authorized to distribute or possess the controlled substance.

Appellant proceeds to assert that the following statement of the assistant district attorney expressed during closing argument was an expression of the personal belief of the prosecutor and was, therefore, a basis for the mis-trial:

From the evidence, there can be no doubt of the defendant’s guilt of the crime of possession of a controlled substance.

It is clearly established that the prosecutor may not assert his personal opinion and that any statement during closing argument must be limited to facts in evidence and to legitimate inferences from those facts. Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980). The prosecutor may, however, argue to the jury that the evidence establishes the guilt of the defendant and that certain facts in evidence are conclusive of such guilt. Commonwealth v. Oglesby, 274 Pa.Super. 586, 418 A.2d 561 (1980). We are of the view that the statement in question was a valid statement of persuasion and was not improper. The court properly denied the motion of appellant for a mis-trial based upon that statement.

Appellant contends the sentence of the court, namely, the term of imprisonment from five to ten years and a $5,000 fine, was unduly harsh and excessive. A timeless principle of this area of the law is that appellate courts are reluctant to intrude upon the sentencing discretion of the trial court and normally leave the sentence undisturbed because the trial court is in a far better position to weigh the factors involved in such a determination. This discretion has, however, been circumscribed by not only judicial decisions but also by the sentencing code (42 Pa.C.S.A. § 9701 et seq.) and by the Rules of Criminal Procedure.

The Pennsylvania Supreme Court in Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976) mandated that the court must, in a sentencing determination, consider the character of the defendant as well as the circumstances of the offense. The Sentencing Code (42 Pa.C.S.A. §§ 9721 through 9726) provides several possible dispositions for criminal offenses as well as guidelines for the sentencing court to consider as it selects the sentence for imposition. Both the Sentencing Code (42 Pa.C.S.A. § 9701 et seq.) and Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) have provided a mandate that the sentencing court state on the record the reasons for the sentence; and this court has held that when determining whether the sentencing judge has abused his discretion by imposing a manifestly excessive sentence, we must review the reasons expressed by the judge for the sentence imposed. Commonwealth v. Valentin, 259 Pa.Super. 496, 393 A.2d 935 (1978).

Our review of the record compels the conclusion that the trial court observed all of the procedural requirements placed upon it. The court had sufficient and accurate information concerning both the offenses as well as the character and background of the defense, including a presentence report; the court evaluated this information; the court heard from both counsel for appellant and the appellant himself; and the court provided a clear expression of the reasons for the sentence. We cannot say the sentence of the court was excessive.

We also reject the contention of appellant that the maximum legal sentence was a term of imprisonment of from two and one half years to five years. While that is the maximum sentence for the first such offense, the record clearly reflects that appellant had earlier been convicted of a distribution offense. The court is authorized by statute, specifically 35 P.S. § 780-115(a), to impose upon a second offender a sentence that is double the maximum sentence for a first offender. Therefore, the sentence imposed was legal.

Appellant concludes his argument with the contention that trial counsel for appellant was ineffective. The record reflects there was a twelve week delay between the date of the sale of the contraband by appellant and the arrest of appellant for that sale. Appellate counsel argues that this lapse of time was an unnecessary and unreasonable delay that prejudiced the ability of appellant to conduct a proper defense so that appellant was thereby deprived of due process of law. Appellate counsel asserts that trial counsel was ineffective by reason of a failure to file a pre-trial motion to quash the instant information based upon this deprivation of due process.

When we study a claim of ineffectiveness, we must first determine whether the claim is of arguable merit. Only if the underlying claim is of arguable merit do we proceed to consider whether the strategy chosen by trial counsel has some reasonable basis designed to effectuate the interest of his client. Commonwealth v. Evans, 489 Pa. 85, 94, 413 A.2d 1025, 1028 (1980). We find that the underlying claim lacks arguable merit and we need not, therefore, proceed to conduct the second inquiry since counsel may not be deemed to be ineffective for a failure to raise a meritless claim. Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154, 1162, cert. denied, Penn v. Pennsylvania, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1981); Commonwealth v. Henry, 295 Pa.Super. 47, 54, 440 A.2d 1215, 1219 (1982).

When an accused relies upon an excessive delay between the date of the crime and the date of his arrest as a basis for a claim that he has been deprived of due process, he must demonstrate both that he has been prejudiced by the delay and also that the purpose of the delay was to gain a tactical advantage over him. Commonwealth v. Grey, 292 Pa.Super. 460, 437 A.2d 765 (1981); See United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). The competing notions during a study of a claim of prejudice are the right of a defendant to identification testimony which is trustworthy and the right of the public for effective law enforcement. Commonwealth v. McCloud, 218 Pa.Super. 230, 235, 275 A.2d 841, 844 (1971).

In the instant case appellant argues that, as a result of the failure of trial counsel to raise this issue of delay, the record is insufficient to permit this court to study the question of whether appellant was prejudiced by the delay. Contrary to the assertions of appellant that the record is inadequate, the evidence at trial is quite adequate to allow our consideration of this issue.

The issue of delay was discussed in Commonwealth v. Barnes, 237 Pa.Super. 407, 352 A.2d 107 (1975) where this court held that a six month delay between the criminal behavior and the arrest was not unreasonable where there was a certain identification of the accused by the undercover agent, even though the identification was uncorroborated. A review of the record in the instant case makes clear that the enforcement agent testified with certainty as to all the details of the drug sale to which both he and appellant were parties and that the agent had met appellant prior to the meeting when the sale was completed. We conclude that the testimony of the enforcement agent was based upon his independent recollection and rule that appellant was. not prejudiced by any lapse of time. As a result, we need not proceed to consider whether the delay was impermissible by reason of a design to gain a tactical advantage. Since, therefore, the underlying claim of appellant lacks arguable merit, trial counsel may not be deemed to be ineffective.

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(16) and (30).

      . Act of April 14, 1972, P.L. 233, No. 64, § 1 et seq., as amended, 35 P.S. § 780-101 et seq.


author: BECK, Judge:

text:
    452 A.2d 1045
    COMMONWEALTH of Pennsylvania v. Edward C. SILVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 12, 1982.
    Filed Nov. 15, 1982.
    Petition for Allowance of Appeal Denied Aug. 15, 1983.

      Joseph C. Barnhart, Tionesta, for appellant.
    Paul H. Millin, District Attorney, Tionesta, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   BECK, Judge:

Appellant Edward C. Silvis, convicted of first degree murder and sentenced to life imprisonment, has presented' his third petition for Post Conviction Relief. The Supreme Court, on direct appeal, affirmed his conviction and sentence. Commonwealth v. Silvis, 445 Pa. 235, 284 A.2d 740 (1971). The Court of Common Pleas has dismissed all three of his petitions for Post Conviction Relief. The Supreme Court affirmed denial of relief in the second. Commonwealth v. Silvis, 458 Pa. 653, 327 A.2d 871 (1974). The third of these three dismissals is now appealed.

The first issue before the Court in this instance is whether failure to raise the allegations in the present petition were waived by failure to raise them in appellant’s prior appeals and petitions. The Post Conviction Hearing Act, 19 Pa.C.S. 1180-4(b) stipulates that any issue which is not presented either on direct appeal or in a previous petition is deemed waived, absent proof of extraordinary circumstances which justify the failure. Ineffective assistance of counsel would constitute “extraordinary circumstances” sufficient to preclude finding of a waiver. Com. v. Sisak, 249 Pa.Super. 159, 375 A.2d 808 (1977); Com. v. Ferguson, 257 Pa.Super. 497, 390 A.2d 1347 (1978). Silvis, now represented by his fourth attorney in these matters, is claiming ineffectiveness on the part of his trial counsel, appellate counsel, and evidentiary counsel.

Claims of ineffective assistance of counsel are subject to the standard set out in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967); whether a “particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interest. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record.” (Emphasis in the original). Attacks on counsel may not be used to circumvent the consequences of failing to preserve issues for appeal. Com. v. Hubbard, 472 Pa. 259, 279, 372 A.2d 687, 696 (note 8) (1977). Counsel will not be deemed ineffective for failing to raise frivolous issues, or advance baseless claims. Com. v. Shore, 487 Pa. 534, 537, 410 A.2d 740, 741-2 (1980); Com. v. Johnson, 489 Pa. 129, 133, 413 A.2d 1047, 1049 (1980).

Silvis, in the instant appeal, raises three claims. The first is that the trial court erred by refusing to grant his request for private individual voir dire of prospective jurors. Pa.R.Cr.P. 1106(e) requires individual voir dire in capital cases. Subsection (1)(A) provides that “Voir dire of prospective jurors shall be conducted individually and may be conducted beyond the hearing and presence of other jurors.” (Emphasis added). Here the trial judge did conduct individual voir dire, albeit within the presence of other jurors. The rule itself clearly allows the trial court’s discretion in deciding whether to question individual jurors beyond the hearing and presence of the others. The conduct of voir dire examination rests in the sound discretion of the trial judge, so long as it is done within the applicable procedural rules, and his decision will not be reversed absent palpable error. Com. v. Fulton, 271 Pa.Super. 430, 432, 413 A.2d 742, 743 (1979); Com. v. Stanton, 269 Pa.Super. 305, 308, 409 A.2d 901, 903 (1979); Com. v. Boone, 286 Pa.Super. 384, 388, 428 A.2d 1382, 1384 (1981). Here, we find that appellant has failed to show that the trial judge abused his discretion in the manner of voir dire, or that any prejudice resulted from the manner of the individual examinations. This first claim is without merit.

Second, appellant claims that he did not have an impartial judge at his trial because the judge acted as an advocate of the Commonwealth, frequently interjecting himself in the examination of witnesses. This claim is quickly disposed of. For the most part, the trial judge’s remarks and questions were clearly directed at the legitimate purposes of clarifying testimony and maintaining proper court room procedures. There is no indication of favoritism, or exceeding the limits of appropriate interrogation.

Finally, appellant now claims that the court’s charge to the jury was unduly confusing and incomplete, because the trial judge refused a proper charge to the jury as to voluntary manslaughter. Silvis himself admits that in 1970, at the time of his trial, there was no duty to charge as to voluntary manslaughter if the evidence failed to establish a reasonable basis for such an instruction. Appellant cites Com. v. Jones, 457 Pa. 563, 319 A.2d 142 (1974), in which the trial court had refused to charge on voluntary manslaughter under a murder indictment when the evidence provided no basis for a claim of passion or legal provocation. Jones established the rule that henceforth a defendant under indictment of murder was entitled, upon request, to have the jury advised of its power to return a verdict of voluntary manslaughter. Even in Jones, the Court held that the defendant was not prejudiced by the absence of the instruction on voluntary manslaughter, since the evidence did not support such a verdict.

Indeed, at Silvis’ trial, the court did advise the jury that they could return a verdict of guilty of murder in the first or second degree or voluntary manslaughter. He defined voluntary manslaughter for their information, and twice explicitly told them that they had the power to bring in such a verdict. The judge then proceeded to instruct them that there was no evidence in the case which warranted a verdict of voluntary manslaughter. Since Silvis based his own defense on intoxication and accidental shooting of the victim, we agree with the court below that the record does not substantiate a charge of voluntary manslaughter. The third claim is also without merit.

We therefore conclude that appellant has failed to establish any basis for concluding that he was ineffectively represented by counsel in his trial or subsequent appeals and petitions. The order of the court in the Third Post Conviction Hearing is affirmed.

      . Appellant cites five instances of the judge’s alleged undue interrogation. A careful reading of the record shows that one was a question relating to taking the body to the funeral home; one was a routine question to a medical expert; one was a correction of an improper question which called for an opinion by a lay witness; and one was a directive to counsel to make objection in proper form for the court’s ruling, rather than directly attacking opposing counsel. In the final instance, the court noted: “Yes. He killed a person for his wife, unless he wanted to get something or would he?” We agree with the court below that this last remark was improper. However, it is an isolated remark, ambiguous at best, standing alone in over 300 pages of testimony, and does not rise to the level of unfair prejudice on the part of the trial court.


author: SPAETH, Judge:

text:
    452 A.2d 1047
    COMMONWEALTH of Pennsylvania v. Joseph MAGUIRE, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1982.
    Filed Nov. 19, 1982.
    Petition for Allowance of Appeal Denied Feb. 7, 1983.

      Linda DiCicco, Assistant Public Defender, Norristown, for appellant.
    Joseph Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   SPAETH, Judge:

This appeal is from judgment of sentence for attempted burglary. Appellant was also charged with, and a jury found him guilty of, criminal conspiracy and possession of an instrument of crime. He argues that all of the charges should have been dismissed because he was not brought to trial as speedily as required by Pa.R.Crim.R. 1100. In the alternative, he argues that he should only have been sentenced for possession of an instrument of crime, and that the lower court should have “arrest[ed] judgment” on the other charges. We affirm.

-1-

On March 28, 1980, appellant was arrested and charged with criminal conspiracy, criminal attempt (burglary), and possession of an instrument of crime. Under Pa.R.Crim.P. 1100, his trial was required to start within 180 days, or no later than September 24, 1980. On September 18, 1980, the Commonwealth filed a motion for an extension of time. After a hearing, the lower court granted the motion on October 6, 1980, and appellant’s trial started that day. Appellant argues that the evidence at the hearing did not support the grant of an extension.

In support of its motion for an extension, the Commonwealth called Dolly Strizziere, the Criminal Trial Assignment Clerk in the Court Administrator’s Office. It appears from Mrs. Strizziere’s testimony that appellant’s case was first listed for trial on July 9, 1980, N.T. 3, but was not reached within the 180 day period because of a shortage of judges. The gist of her testimony was that only five judges were available to try criminal cases, and that they were not available all of the time because of summer vacations, and because one of the judges had been hurt in an accident. Also, she testified that in listing cases for trial, she listed those with the “more immediate Rule 1100 time problem” first. N.T. 11. After hearing argument, the lower court found that “the Commonwealth has proven a judicial delay through no fault of the District Attorney’s Office ... . ” N.T. 27.

The wording of the lower court’s finding is subject to being misunderstood. The Commonwealth’s burden was not to prove “no fault” but “due diligence.” In its opinion the lower court states: “The Commonwealth always had an Assistant District Attorney assigned to this case, and filed for an extension prior to the ‘run date.’ So, there was no lack of due diligence in pursuing the matter.” Slip op. at 5. The Commonwealth did prove that it always had the same assistant district attorney assigned to appellant’s case. N.T. 13. But that proof was not by itself enough to support a finding of due diligence. Indeed, evidence of an unchanged assignment might even prove lack of diligence, if, for example, the assigned assistant district attorney had an unrealistic backlog of cases, while another assistant district attorney had no backlog. See, Commonwealth v. Bayani, 261 Pa.Super. 369, 396 A.2d 443 (1978) (No due diligence where case was “first assigned to an assistant district attorney whose backlog prevented [timely] trial ..., and was not reassigned [to another assistant district attorney] until it was too late to commence trial within 180 days.” “Better monitoring” held necessary.)

Nevertheless, here we are satisfied that the Commonwealth was, as it claimed to the lower court, N.T. 20, ready to proceed with the trial, and that it was prevented from doing so by judicial delay that could not reasonably have been avoided. The lower court therefore properly granted the Commonwealth’s motion for an extension of time within which to bring appellant to trial.

-2-

As we have mentioned, appellant was charged with criminal conspiracy, criminal attempt (burglary), and possession of an instrument of crime. The jury found him guilty of all charges. The lower court denied appellant’s post-trial motions, and sentenced him to IIV2 to 23 months in prison for the attempted burglary. The court suspended sentence on the other charges. Appellant argues that he should only have been sentenced for possession of an instrument of crime, and that the court should have “arrest[ed] judgment on [the other] two of the three charges of which appellant was found guilty.” Brief for Appellant at 2, 11-13.

Appellant’s argument involves confusions of terminology that appellant does not identify, much less resolve. Although appellant was “found guilty” of all three charges, the lower court sentenced him on only one—the attempted burglary charge. It is true that each' of the three charges was a charge of an inchoate crime. 18 Pa.C.S.A. § 901 et seq. It is also true that 18 Pa.C.S.A. § 906 provides that “[a] person may not be convicted of more than one [inchoate crime] for conduct designed to commit or to culminate in the commission of the same crime.” But appellant construes “convicted” as equivalent to the jury’s “verdict,” which it is not. “When the law speaks of a ‘conviction,’ it means a judgment, and not merely a verdict, which in common parlance is called a ‘conviction.’ ” Commonwealth v. Black, 267 Pa.Super. 598, 602, 407 A.2d 403, 405 (1979), quoting Smith v. Commonwealth, 14 Serg. & R. 69, 70 (1826). Therefore, when the jury found appellant guilty of all three inchoate crimes, that was its verdict, to which Section 906 is inapplicable. Thereafter the judge convicted appellant of one inchoate crime by imposing a judgment of sentence for attempted burglary.

When a trial court is faced with a jury verdict of guilty of more than one inchoate crime, it is required by Section 906 to render a judgment of sentence for no more than one of those crimes. That means the court must make a choice. Appellant argues that the court must choose the least serious crime, which here was possession of an instrument of crime. 18 Pa.C.S.A. §§ 906, 907. This argument has no merit. Commonwealth v. Jackson, 280 Pa.Super. 522, 421 A.2d 845 (1980). Indeed, where the trial court has erroneously convicted and sentenced an appellant for two inchoate crimes, the remedy has been either to amend the sentence, as in Commonwealth v. Turner, 290 Pa.Super. 428, 434 A.2d 827 (1981), where we vacated the sentence for the lesser offense, or to remand for resentencing for either one or the other, Commonwealth v. Jackson, supra; Commonwealth v. Crocker, 256 Pa.Super. 63, 389 A.2d 601 (1978). But see Commonwealth v. Black, supra (where trial judge sentenced on lesser of two charges he gave appellant undeserved leniency). The lower court therefore committed no error in imposing sentence for attempted burglary only.

Affirmed.

      . 18 Pa.C.S.A. § 901.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 907.

      . Appellant also argues that the lower court erred in denying his motion to suppress certain evidence as seized incident to an illegal arrest; that the lower court erred in admitting fingerprint evidence despite the Commonwealth’s failure to establish a proper chain of custody; that the verdict was against the law, against the evidence, against the weight of the evidence, and insufficient to sustain the verdict; and that the sentence was unduly harsh and severe. The opinion of the lower court has adequately disposed of these arguments.

      . “Such motion [for an extension] shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.” Pa.R. Crim.P. 1100(c)(3).

      . See note 5, supra. See also Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Stabler, 251 Pa.Super. 194, 380 A.2d 444 (1977).

      . We note that the Sentencing Code contains no provision for a “suspended” sentence. Sentencing alternatives provided by the Code, 42 Pa.C.S.A. § 9721, include: an order of probation; a determination of guilt without further penalty; partial confinement; total confinement; or a fine. To avoid ambiguity, exemplified by this case, the better practice is to avoid the use of the word “suspended” when referring to a sentence. But see Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981).

      . Appellant’s argument that the lower court should have “arrest[ed] judgment on [the other] two of the three charges of which appellant was found guilty” reflects appellant’s confusion of terminology. It assumes that three judgments were rendered. Only one was.


author: BROSKY, Judge: POPOVICH, Judge,

text:
    452 A.2d 1050
    Virginia BERNHART, Appellant v. Michael KOVACH.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1981.
    Filed Nov. 19, 1982.
    Petition for Allowance of Appeal Denied Feb. 10, 1983.

      Joseph L. Foley, Abington, for appellant.
    James A. Cunningham, Gilbertsville, for appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   BROSKY, Judge:

This paternity action was commenced by appellant and dismissed by the court below following the filing of preliminary objections by appellee. The central question for our determination is whether the lower court erred in applying a two-year, rather than a six-year, statute of limitations. Finding that it did, we reverse and remand.

The relevant facts are as follows. A “paternity and support” complaint was filed by Virginia Bernhart in which she alleged that appellee Michael Kovach is the father of her daughter, Sara Bernhart, who was born on October 26, 1976. The lower court concluded that until January, 1977, appellee contributed $600 to the support of the child, although he denied that she was his. The complaint was filed on May 17, 1979.

The applicable statute of limitations is found at 42 Pa.C. S.A. § 6704(e) which provides:

(c) Limitation of actions—All actions to establish the paternity of a child born out of wedlock brought under this section must be commenced within six years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case an action may be commenced at any time within two years of any such contribution or acknowledgment by the reputed father.

The lower court found that the voluntary payment in January, 1977 marked the beginning of a two-year statute of limitations, even though the action was brought within six years of the birth of the child. Appellee argues that the two-year statute of limitations comes into play when support payments are made, even if the effect is to shorten the six-year statute of limitations.

Although we have found no cases addressing this issue, we have been guided in our review of this case by this court’s decision in Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982) (allocatur denied August 27, 1982). In that case, 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. Most important to our decision in the present appeal, however, is the factual history of the Williams case.

The child for whom support was sought in Williams was born on September 17, 1973. The last contribution toward support was made on September 23, 1974. The complaint for support was filed on September 27, 1979, clearly more than two years after the last support payment was made.

The six-year statute of limitations was applied. The Williams opinion contains, however, no discussion of the issue before us. While we do believe that Williams could be read as an implied rejection of appellee’s argument, we are reluctant to base our decision on a case in which the court was not presented with the issue before us. We need not, however, rest our decision on such grounds, because we conclude that even if appellee were correct in arguing that the payments of support shortens the statute of limitations (and we do not believe it does), he has not made the type of payments that qualify as support.

In our recent decision in Hummel v. Smith, 301 Pa.Super. 276, 447 A.2d 965 (1982), we said that a mother seeking to show that payments by a putative father amounted to support must produce evidence that shows that the payments were made in circumstances from which it may reasonably be inferred that in making them, the father was recognizing the child as his own. While the Hummel case was one in which the mother sought to extend the statute of limitations by proof of support payments, its holding unarguably controls the situation before us. The two-year statute of limitations provision contained in § 6704(e) applies only in the event that the father has made payments under circumstances from which it may reasonably be inferred that in making them, is recognizing the child as his own.

We will not permit appellee who has never wavered in his position that Sara is not his daughter, to invoke the protection of this statute of limitations.

Appellee urges us to affirm the decision of the lower court, if not on statute of limitation grounds, then because of defects in the service and filing of the complaint. He first made those arguments in preliminary objections which he filed as an amended responsive pleading by leave of court. Because the lower court dismissed the action on statute of limitations grounds, it did not address the procedural claims.

On remand, appellee can present the remaining preliminary objections to the lower court, which is in a better position than are we to assess their validity. This is especially so because the record is unclear as to certain of the arguments made by appellee. For example, although it does appear that this civil complaint was filed in the clerk of courts office (as if it were a criminal proceeding), it was nonetheless treated as a civil case by the lower court.

Order reversed and remanded for proceedings consistent with this opinion.

POPOVICH, J., files concurring statement.

POPOVICH, Judge,

concurring:

Consistent with my position set forth in Williams v. Wolfe, 297 Pa.Super. 270, 281, 443 A.2d 831, 837 (1982) (POPO-VICH, J., Concurring Statement), I concur in the result reached in the instant case.

      . The complaint did not allege that such support payments had been made; in fact, it averred that no support had been given. Our review of the record fails to disclose the source of the admission of payment by appellee, but for purposes of this appeal, we will assume that the payments were made.

      . Act of April 28, 1978, P.L. 202, No. 53 § 10(88); § 6704 is entitled “Commencement of Support Actions.”

      . We note parenthetically that the amendment to the Civil Procedural Support Law which provides the six-year statute of limitations, increased the number of years in which such actions could be brought on behalf of children born out of wedlock. To find that the amendment increasing the rights of children born out of wedlock did not extend to those whose fathers acknowledge paternity would be an illogical conclusion. Statute of limitations exist, inter alia, because of evidentiary problems. The U.S. Supreme Court noted in its recent decision in Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982):
      Paternal support suits on behalf of illegitimate children contain an element that such suits for legitimate children do not contain: proof of paternity. Such proof is often sketchy and strongly contested, frequently turning upon conflicting testimony from only two witnesses.... Therefore, in support suits by illegitimate children more than in support suits by legitimate children, the State has an interest in preventing the prosecution of stale or fraudulent claims, and may impose greater restrictions on the former than it imposes on the latter.
      It seems clear that the evidentiary problems are fewer in cases in which there has been an acknowledgment of paternity. We will not impute to the General Assembly the intention to impose a shorter statute of limitations in cases which pose fewer problems of proof.

      . We note that we need not and have not held that there are no circumstances in which payments from a putative father who denies paternity will be deemed to have been support payments. We leave other cases to be decided upon their own facts. We add that we have not discussed the constitutionality issue raised by appellant because she raises it for the first time before us. This issue has been waived. See: Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975).


author: BROSKY, Judge:

text:
    452 A.2d 1052
    Michele ZVOLENSKY, Appellant, v. Dixie Lee KING v. Lois J. RODMAN v. Dixie Lee KING.
    Superior Court of Pennsylvania.
    Argued June 16, 1982.
    Filed Nov. 19, 1982.

      Andrew M. Schifino, Pittsburgh, for appellant.
    Mark Russell Hamilton, Pittsburgh, for appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   BROSKY, Judge:

This action was commenced by appellant, Michele Zvolensky, who seeks to recover damages for injuries she suffered in an automobile accident. Ms. Zvolensky was a passenger in an automobile operated by appellee Lois Rodman which was involved in an accident with a vehicle driven by appellee Dixie Lee King. Appellees sought and obtained compulsory nonsuit on the grounds that appellant had failed to meet the $750 threshold amount which the No-Fault Motor Vehicle Act imposes as a prerequisite to that recovery. We do not agree with the lower court’s conclusion and therefore reverse.

Section 301 of the No-Fault Act provides in relevant part:

(a) Partial abolition.—Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance or use of a motor vehicle, except that:
(B) the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care and recovery of the victim, exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars ($100) is in excess of seven hundred fifty dollars ($750). For purposes of this subclause, the reasonable value of hospital room and board shall be the amount determined by the Department of Health to be the average daily rate charged for a semi-private hospital room and board computed from such charges by all hospitals in the Commonwealth; or

The lower court found that appellant had failed to prove that she sustained medical services the value of which exceeded $750 and therefore granted appellees’ motion for compulsory nonsuit.

In Adams v. Euliano, 299 Pa.Super. 348, 349-50, 445 A.2d 788, 789 (1982), we cited PeAir v. Home Ass’n. of Enola Legion No. 751, 287 Pa.Super. 400, 403, 430 A.2d 665, 666-667 (1981), and explained:

A nonsuit should be entered only in a clear case. McMillan v. Mountain Laurel Racing Inc., 240 Pa.Super. 248, 367 A.2d 1106 (1976); DiGiannantonio v. Pittsburgh R. Co., 402 Pa. 27, 166 A.2d 28 (1960); Dunmore v. McMillan, [396 Pa. 472, 152 A.2d 708] describing how clear the case must be, it has been said that a nonsuit can be entered only when it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved. Borisoff v. Penn Fruit [Company, Inc., 165 Pa.Super. 572, 69 A.2d 167 (1949)]

Ms. Zvolensky sustained what her doctor termed an acute cervical soft tissue injury. Several days after the accident, she was admitted to Braddock Hospital where she remained for approximately twelve days. In a deposition, her doctor described appellant’s hospital treatment in the following way:

She was basically at bed rest with cervical traction in bed, was receiving the appropriate medications for her problem and was being sent to physical therapy on a two-times-a-day basis for application of heat, massage of the muscles and the use of some intermittent cervical traction to overcome the muscle spasm in her neck.

The total charge for Ms. Zvolensky’s hospital stay was $1,678.90. The lower court found that although that amount certainly exceeds $750, appellant nevertheless failed to satisfy the requirements of Section 301 because the medical services rendered her were in the nature of physical therapy and therefore could be included in computing the $750 amount only up to $100.

In the recent case of Dragun v. Volk, 301 Pa.Super. 443, 447 A.2d 1381 (1982), we held that physical therapy costs were in the nature of the “rehabilitation” costs which Section 301 says can be included only up to $100 in reaching the threshold amount. We, therefore, agree that if all of appellant’s costs were for physical therapy, she would not have met the threshold amount. However, we believe that appellant’s hospitalization distinguishes her case from Dragan in which it was undisputed that the costs in question were incurred for physical therapy.

In Dragan, we concluded that physical therapy was a type of “rehabilitation” rather than a “medical” service. We said that Section 301 is actually composed of three parts:

1) “reasonable and necessary medical and dental services including prosthetic devices.” (included)
2) “necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care, and recovery of the victim” (included)
3) “diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars” (excluded)

Id., 301 Pa.Superior Ct. at 449, 447 A.2d at 1384.

We further noted at 301 Pa.Superior Ct. 449, 447 A.2d at 1384,

The language, taken as a whole, indicates that “recovery” expenses are those tied into hospitalization and professional nursing and are completely includable, while “rehabilitation” expenses connote “diagnostic and evaluative procedures,” “physical and occupational therapy” and other “necessary therapies” as described in § 103. These are recompensed by the terms of § 102, but are not includable (except for $100.00) under § 301(a)(5)(B).
Plaintiffs’ therapy expense is not claimed as medical, dental, or prosthetic. It was not incurred in payment of an independently practicing professional such as a chiropractor or podiatrist, or for recovery under professional nursing care or hospitalization. It falls into the third category, being, specifically, physical therapy, and as such it is excluded under § 301(a)(5)(B). (Emphasis added in part.)

Unlike the plaintiff in Dragun, appellant’s expense was incurred largely for hospitalization and the care of a medical doctor. The bill which she received from the hospital was broken down as follows:

$1,320.00 - Room and Nursing Service
30.40 - Drugs
1.00 - Dress Supplies
59.00 - Laboratory
50.00 - X-rays
213.00 - Physical Therapy
5.50 - Telephone
$1,678.90

Clearly, the x-ray and physical therapy costs which total $263 are not includable in reaching the $750 amount. However, based on our interpretation of Section 301 in Dragun, we do not reach the same conclusion as to the room and nursing service charge.

We do not agree with the lower court’s finding that the deposition of appellant’s doctor shows that her hospitalization was in fact part of her physical therapy. The doctor stated that he saw appellant every day that she was in the hospital. Of her hospitalization, Ms. Zvolensky’s doctor said, “So she was seen on a daily basis while in the hospital, and we monitored her treatment program. And at such time that we felt she was able to receive her treatment as an outpatient, she was discharged.”

Appellant’s treatment as described in the hospital bill and by her treating physician include hospital and nursing costs which we specifically stated were not present in Dragun. Her doctor did not testify that appellant’s hospitalization was merely incident to her physical therapy and we believe it was error to conclude that such was clearly the case.

Compulsory nonsuit should not have been granted. Judgment reversed and remanded for trial. This court relinquishes jurisdiction.

      . Act of July 19, 1974, P.L. 489, No. 176; 40 P.S. 1009.101, et seq.


author: ROWLEY, Judge:

text:
    452 A.2d 1055
    COMMONWEALTH of Pennsylvania v. Joseph NICOLELLA, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 9, 1982.
    Filed Nov. 19, 1982.

      Frank H. Morgan, Jr., Ardmore, for appellant.
    John A. Reilly, District Attorney, Media, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   ROWLEY, Judge:

On April 23, 1981, appellant was convicted, after a jury trial, of conspiracy to deliver a controlled substance. Post-trial motions were filed and denied and appellant was sentenced to not less than six months or more than twenty-three months imprisonment. This appeal followed.

The facts of the case are as follows. On January 15,1981, appellant, then an inmate at the Delaware County Prison, allegedly asked another inmate, James Hamm, to inquire if one of the guards would do him a “favor”. The favor consisted of obtaining marijuana. Appellant gave Hamm $30.00 and a note containing the name and address of a contact. Hamm gave the money and the note to prison guard John Showed. Showed alerted his superiors. The next day, prison guard Robert Roane, accompanied by the police, went to the address set out in the note and picked up a package containing marijuana from a woman, who it turned out was appellant’s mother.

On appeal, four issues are raised: 1) Was appellant’s conviction supported by sufficient evidence?; 2) Was appellant denied his constitutional right to counsel of his choosing?; 3) Did the trial judge err in failing to recuse himself?; and 4) Was appellant’s trial counsel ineffective?

I.

In reviewing the sufficiency of the evidence to support a conviction, we must view that evidence in the light most favorable to the Commonwealth. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979). All of the evidence received must be considered, whether trial rulings thereon-were right or wrong. Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965). Using that standard, appellant’s claim that the evidence was insufficient is without merit.

Appellant argues that the evidence was insufficient in two respects. First, appellant claims that the Commonwealth’s exhibits were never received into evidence. Second, appellant claims there was insufficient evidence to prove that the note given to Hamm was written by appellant.

Appellant’s first argument is totally without merit. As the trial court stated in its opinion, there are no “magic words” that must be used in order to receive exhibits into evidence. It is clear from the court’s response to the Commonwealth’s motion that the exhibits be admitted that these exhibits were in fact received into evidence.

We find appellant’s second argument also to be without merit. The Commonwealth’s handwriting expert compared the note given to Hamm (exhibit C-l) with six examples of appellant’s writing (exhibits C-6 through C-ll). The expert stated that in his opinion, C-l had been written by the same person who wrote C-6 through C-ll. Furthermore, when later recalled to the witness stand, the expert compared appellant’s signature on his Notice of Pre-trial Arraignment (exhibit C-15) with the signatures on exhibits C-6 through C-ll. He concluded that the signatures were all made by the same person. He also went on to state that characteristics of appellant’s handwriting appeared throughout the writings, as well as in the signatures. This evidence was sufficient to support the jury’s conclusion that exhibit C-l was written by appellant.

II.

Appellant next argues that he was denied his right to counsel of his choice.

Appellant was represented by privately retained counsel Frank J. Marcone, Esquire, from the time of his preliminary hearing through the filing of post-trial motions. On the morning of appellant’s trial, at a side-bar conference prior to voir dire, appellant informed the court that he wished to discharge Mr. Marcone and retain new counsel, due to a disagreement over trial strategy. The request was denied.

A criminal defendant has the right to be represented by counsel of his own choice. However, this right is not absolute and must be balanced against the need for the efficient and effective administration of justice. Commonwealth v. Atkins, 233 Pa.Super. 202, 336 A.2d 368 (1975). The decision as to whether a defendant will be granted a continuance to retain new counsel is within the discretion of the trial court. There are no mechanical tests for determining this question. Each case must be decided on its particular circumstances. Commonwealth v. Kittrell, 285 Pa.Super. 464, 427 A.2d 1380 (1981). We have concluded that under the circumstances of this case, the trial court abused its discretion in denying appellant’s request.

It is true that appellant waited until the day of trial to make his request, a practice which has been condemned. See Commonwealth v. Kittrell, supra. However, the record shows that counsel had not spoken with appellant since the date of his preliminary hearing. Appellant did not know until the morning of trial how counsel intended to conduct his defense. Therefore, he was not aware that there was any disagreement between them until that time.

There is no evidence that the Commonwealth would have been prejudiced by the granting of a continuance. See Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978). The request was made ninety-seven days after appellant’s arrest, well within the 180 day period for trial allowed by Pa.R.Crim.P. 1100. No claim has been made that witnesses or evidence would be lost if the requested continuance were granted.

Nor was this a case where the defendant was continually requesting new counsel when disagreements arose. See Commonwealth v. Velasquez, 437 Pa. 262, 263 A.2d 351 (1970). Here, there had been no previous continuances requested.

Furthermore, trial counsel agreed with appellant that a difference between them did exist, stating that he “obviously” did not have “the confidence of (his) client”. See Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976).

Our conclusion is reinforced by the events that occurred during a conference in the court’s chambers prior to commencement of the trial. According to the Commonwealth’s brief, the conference occurred almost immediately after appellant’s request for new counsel had been denied. At the conference, the court refused to consolidate appellant’s case with that of Mr. Hamm. The court went on to state that he believed Mr. Marcone had a conflict of interest in representing both appellant and Hamm. Therefore, the court directed that new counsel be appointed to represent Hamm. This indicates that the appointment of new counsel for one of appellant’s co-defendants apparently presented no problem for the court.

We further note that it was improper for Mr. Mar-cone to continue to represent either the appellant or his co-defendant, Mr. Hamm. Mr. Hamm was the principal witness against appellant. Thus, Mr. Marcone was in the position of defending appellant against the testimony of Mr. Hamm, Marcone’s former client. Appellant and Hamm obviously had divergent interests. Mr. Marcone’s continued involvement in the case created at least the appearance of impropriety. See Code of Professional Responsibility, Canon 9.

Furthermore, the record shows that an actual conflict of interest continued even after Mr. Marcone was removed from Hamm’s case. In addition to representing appellant, Mr. Marcone also represented appellant’s mother. At one point during appellant’s trial, the following exchange took place:

THE COURT: Are you trying the next case? You better worry about this client, not the next one.

MR. MARCONE: I’m not worried about Nicolella.

THE COURT: You’re worried about his mother when you’re doing that.

There is even more merit to appellant’s claim for a new trial in this case than there was in the case of Commonwealth v. Metzger, 498 Pa. 678, 450 A.2d 981 (1982) where the Court held that the trial court had erred in refusing a defense request for a brief continuance during trial and a new trial was ordered.

In view of all of the circumstances of this case, we hold that the trial court abused its discretion in refusing appellant’s request for a continuance in order to obtain new counsel. Therefore, appellant is entitled to a new trial.

IH.

Because of our disposition of the right to counsel issue, it is not necessary for us to discuss the questions raised by appellant concerning failure of the trial judge to recuse himself and ineffective assistance of counsel.

The Judgment of Sentence is vacated and the case is remanded for a new trial.


author: POPOVICH, Judge:

text:
    452 A.2d 1058
    COMMONWEALTH of Pennsylvania v. Napoleon DAVENPORT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 20, 1982.
    Filed Nov. 19, 1982.

      William John Fulton, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

After a non-jury trial, the appellant, Napoleon Davenport, was convicted of criminal conspiracy (18 Pa.C.S.A. § 903) and unlawful delivery of a controlled substance (35 Pa.C. S.A. § 780-113(a)(30)). On June 1, 1981, a sentence of 3 to 10 years imprisonment was entered for each offense and ordered to be served concurrently. This appeal followed.

On appeal, appellant assails the sufficiency of the evidence and claims that the trial court erred in allowing opinion testimony to be admitted into evidence regarding the typical modus operandi of drug sellers and erred in refusing to grant a mistrial. We affirm the judgment of sentence.

The test to be utilized in evaluating appellant’s sufficiency of evidence argument is whether, viewing the entire record in the light most favorable to the Commonwealth, a finder of fact could reasonably have found that all elements of the crime charged had been proved beyond a reasonable doubt. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976).

Examination of the evidence pursuant to the preceding standard reveals the following: From May until September of 1980, Philadelphia police officer Miles Edward, Jr., was assigned to the Harrisburg area to conduct, in conjunction with the Pennsylvania State Police, a drug investigation in an undercover capacity for the Federal Drug Enforcement Administration. Also, during this period of time, the undercover agent traveled with an informant.

On July 23, 1980, at approximately 9:40 p.m., Officer Edward and his informant were standing on the corner of Third and Verbeke Streets in Harrisburg. A vehicle approached and the informant stated something to the driver, who reacted by pulling the vehicle over to the side of the street and parking. However, neither the driver nor the other occupant stepped out of the vehicle. Rather, the ensuing discussion and transaction were effectuated with the agent and informant standing on the passenger side of the vehicle. The appellant was visible to the officer, for he (appellant) was sitting in the front seat.

Initially, the informant engaged the driver in a conversation which elicited a remark that “he (the driver) only had a fifty dollar package of heroin,” specifically referred to by the driver in street jargon as “boy”. (N.T. 12) The officer then asked if he could have three packages for $120.00. The driver responded that he would sell him three $50.00 packages for $125.00. The officer agreed and handed $130.00 to the appellant to give to the driver, since the appellant was in between the two. After the appellant asked the officer if he had the exact amount, the $130.00 was passed to the driver, who, in turn, gave the appellant the three packages of heroin to give to the officer. At this point, appellant asked the driver if he could have change for ten dollars so he could give the officer the $5.00 owed to him. The driver said, “No.” As a result, appellant exited the vehicle and made his way over to a tavern located at Verbeke and Susquehanna Streets. Upon returning, the appellant gave the officer his change.

After the transaction was completed, the group dispersed and the officer copied down the license number of the vehicle. The substance was, thereafter, tested and found to be heroin. Following this determination, the appellant was arrested and charged with the instant offenses.

In proving a conspiracy, direct and positive testimony of the corrupt agreement is not necessary. Commonwealth v. Tumminello, 292 Pa.Super. 381, 437 A.2d 435 (1981); Commonwealth v. Holman, 237 Pa.Super. 291, 352 A.2d 159 (1975). This is so, for the unlawful agreement, which is at the heart of every conspiracy and the nexus which will invoke principles of vicarious liability, will rarely be proven by direct evidence of a formal agreement with precise terms. Indeed, the very nature of the crime of conspiracy makes it susceptible to proof usually by circumstantial evidence. Thus, the courts have traditionally looked to the relation, conduct, and circumstances of the parties and the overt acts of the co-conspirators in order to find a corrupt confederation. Commonwealth v. Dolfi, 483 Pa. 266, 396 A.2d 635 (1979); Commonwealth v. Waters, 463 Pa. 465, 345 A.2d 613 (1975); Commonwealth v. Tumminello, supra; Commonwealth v. Minnich, 236 Pa.Super. 285, 344 A.2d 525 (1975). Additionally, it must be remembered that “[t]he fact that the evidence establishing a defendant’s participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence.” (Citations omitted) Commonwealth v. Lovette, 498 Pa. 665, 670, 450 A.2d 975, 977 (1982). Restated, the facts and circumstances need not be absolutely incompatible with defendant’s innocence, but the question of any doubt is for the fact-finder unless the evidence “be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.” Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943). Accord Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977).

As this Court has stated recently:

“Regardless of the type of proof advanced by the Commonwealth, however, proof of a common understanding among the alleged co-conspirators is an indispensable element of the crime. Thus, the courts have held that mere association is not sufficient; . . . nor is mere presence at the scene of the crime sufficient to prove the agreement without a showing that the accused had prior knowledge of his alleged co-conspirator’s criminal intent. Indeed, one’s knowledge that another proposes unlawful action will not establish a conspiracy, . . ., absent proof that the accused became an active partner in the criminal enterprise with knowledge of the agreement.” (Citations omitted) (Emphasis in original) Commonwealth v. Lynch, 270 Pa.Super. 554, 570, 411 A.2d 1224, 1232 (1979); see also Commonwealth v. Yobbagy, 410 Pa. 172, 188 A.2d 750 (1963); Commonwealth v. Henderson, 249 Pa.Super. 472, 378 A.2d 393 (1977).

Appellant contends that the delivery and conspiracy convictions cannot stand because the Commonwealth failed to prove the existence “of a prior unlawful agreement^] ... shared criminal intent [or] . .. association between the parties and appellant.” (Appellant’s Brief at 13) Appellant attempts to analogize the instant case to Commonwealth v. Anderson, 265 Pa.Super. 494, 402 A.2d 546 (1979). In Anderson, the facts reveal that an undercover agent approached the accused and told him he wished to buy some heroin. The appellant agreed to sell the agent 11 bags of heroin for $50.00. At appellant’s request, the agent accompanied him to his residence. Upon arrival, appellant’s wife was sitting on the front steps. “While in his wife’s presence, appellant directed [the agent] to give the money to her. [The agent] handed [the wife] $50 in pre-recorded bills, and remained outside with her while appellant went inside the building and returned with 11 glazed paper packets. While still in his wife’s presence, appellant handed the packets to [the agent] and told him to see him again anytime.” (Footnote omitted) Id., 265 Pa.Superior Ct. at 499, 402 A.2d at 548.

After reviewing the evidence, the Anderson Court sustained appellant’s conviction for selling heroin, but reversed his conviction of conspiring with his wife to sell such drug. The reversal was premised upon this Court’s ruling in Commonwealth v. Stephens, 231 Pa.Super. 481, 331 A.2d 719 (1974). In Stephens, the accused was standing near his alleged co-conspirator when said person offered to sell marijuana to a plainclothes police officer. From Stephens’ mute and unresponsive reaction to the unlawful deal, the Commonwealth sought to establish an inference that he had prior knowledge of the deal and in fact made an agreement prior to it. We rejected this contention, noting:

“Appellant did not induce Cafurello[—the alleged co-conspirator], to sell marijuana, nor did he aid or assist him at the time of the sale. There was also no showing that appellant had received any money from Cafurello. In short, the only thing that was shown was that appellant stood mute and unresponsive after overhearing the conversation between the [police officer] and Cafurello. That evidence, while supporting an inference of knowledge, cannot support the further inference of agreement ... . ” (Emphasis added) Id., 231 Pa.Superior Ct. at 489, 331 A.2d at 723.

Instantly, unlike in Anderson, the accused “overheard the initial discussion” between the undercover agents and his co-conspirator as to the terms of the proposed sale. On this point, it is to be noted that appellant does not argue that he was unaware that the slang term “boy”, as utilized by the parties in conversation regarding the purchase to be made, referred to heroin. In fact, appellant concedes that “[t]he case at bar is stronger in light of [his] arguable knowledge that a drug transaction was taking place.” (Appellant’s Brief at 13); see generally Commonwealth v. Goodyear, 235 Pa.Super. 544, 547, 344 A.2d 672, 674 (1975). Such evidence is, at the very least, supportive of “an inference of knowledge” attributable to the appellant that an illegal transaction would and did take place. See Commonwealth v. Stephens, supra. However, “proof of guilt on a charge of conspiracy fails if it shows only that the accused was present at the scene of the crime and knew of its commission.” (Citations omitted) Commonwealth v. Henderson, supra, 249 Pa. Super, at 480, 378 A.2d at 398. Consequently, it is important to determine whether the evidence established the conspiratorial agreement and the requisite intent. While these elements must be shown beyond a reasonable doubt, both an agreement to commit a criminal act and shared criminal intent can be proven circumstantially. Common wealth v. Wilson, 449 Pa. 235, 296 A.2d 719 (1972); Commonwealth v. Wright, 235 Pa.Super. 601, 344 A.2d 512 (1975).

The intent required for criminal conspiracy is identical to that required for accomplice liability. In both crimes, a defendant must act with the “intent of promoting or facilitating the commission of the offense.” Commonwealth v. Gardner, 246 Pa.Super. 582, 587, 371 A.2d 986, 989 (1977). In the case at bar, we have evidence that the appellant was cognizant of the terms (price and quantity) of the heroin sale, handled the money and drugs during the transa ction and inquired if the undercover agent had the correct amount to effectuate the purchase. Moreover, the testimony of the officer established that when he was unable to produce the exact amount, and the co-conspirator responded he had no change, appellant, of his own volition, alighted from the vehicle and secured change from a nearby tavern. Thus, unlike in Anderson and Stephens, here we do have the commission of various overt acts by the accused from which an “active participation” in a conspiracy can be inferred. For example, “[appellant’s ... return to the scene [after securing change from the tavern] amounted to conduct which aided in the planning and commission of the crime[s].” Commonwealth v. Wright, supra, 235 Pa.Super. at 606, 344 A.2d at 515. Ergo, with this additional evidence the trier of fact was “ready to take the step from inferring knowledge to inferring intent and agreement.” Commonwealth v. Stephens, supra, 231 Pa.Super. at 489, 331 A.2d at 722. Consequently, while the circumstances recounted supra are insufficient standing alone, they furnish a “web of evidence” linking the accused to the conspiracy beyond a reasonable doubt “ ‘when viewed in conjunction with each other and in the context in which they occurred.’ ” Commonwealth v. Anderson, supra, 265 Pa.Super. at 501, 402 A.2d at 549. As to the delivery count, we have reviewed the evidence and find it clearly sufficient to establish a violation under The Controlled Substance, Drug, Device and Cosmetic Act. 35 Pa.C.S.A. § 780-113(a)(30); see also Common wealth v. Cameron, 247 Pa.Super. 435, 440, 372 A.2d 904, 907 (1977) (Defining “Delivery”).

Appellant’s last argument concerns alleged trial court errors in: 1) overruling his objection to Officer Edwards testifying that the informant used the phrase “known drug dealers” in pointing out the appellant and the co-conspirator; and 2) allowing, again over his objection, Officer Edwards to opine that, based on his 9 years of service with the narcotic division, “usually the dealer does have the second person with them for protection and the second person has the title of which is called the lieutenant . .. . ” (Appellant’s Brief at 14-15)

Appellant urges that based on the prejudicial nature of such comments, the trial court erred in declining to grant a mistrial.

In reviewing the validity of appellant’s claims, our examination of the record indicates that trial counsel, who is also appellate counsel, filed a boiler plate post-trial motion asserting that the evidence was insufficient to support the verdicts and that the verdicts were contrary to the law. Although the motion contained a request to file additional and supplemental reasons “when the Notes of Testimony taken at trial ha[d] been transcribed and a copy thereof made available to ... counsel[,]” the record reflects no effort to supplement such motion. This is contrary to the trial court’s opinion, which addressed the appellant’s claims, that such matters were “presented]” in the motion. Moreover, although the issues were considered by the court presiding over appellant’s post-verdict motion, “there is no assertion or indication of record that these issues were raised in a brief presented to that court.” Commonwealth v. Burton, 491 Pa. 13, 17 n. 1, 417 A.2d 611, 613 n. 1 (1980). The Commonwealth correctly points out that our Supreme Court in Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) held that specific post-trial motions had to be submitted sixty days after the filing of that decision. In particular, the lead opinion of Chief Justice Eagen stated:

“The Commonwealth argues the issues now advanced by Gravely are not properly preserved for appellate review since they were not included in written post-verdict motions. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). A brief raising the issues was presented to the post-verdict motion court, and the court considered the issues. Since a majority of this Court has heretofore considered such a brief, along with consideration of the issues raised therein by the trial court, sufficient to preserve issues for review under Commonwealth v. Blair, supra, on the basis of substantial compliance with Pa.R. Crim.P. 1123(a), we must reject the Commonwealth’s argument. Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978); Commonwealth v. Hitson, 482 Pa. 404, 393 A.2d 1169 (1978); Commonwealth v. Jones, 478 Pa. 172, 386 A.2d 495 (1978); Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977); Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977).
But this Court’s experience with Commonwealth v. Grace, supra, and its progeny has not been very satisfying. Counsel have more often than not failed to include the briefs in the record and, indeed, have often failed to even mention a brief was presented or filed in the trial court in the oral arguments and briefs before this Court. This unsatisfactory situation is perhaps best typified by Commonwealth v. Slaughter, supra, wherein we had to grant reargument because counsel failed to adequately advise us of the existence of a brief. Accordingly, in order to conclude this unsatisfactory situation, we now rule that sixty days after the filing of this opinion, only those issues included in post-verdict motions will be considered preserved for appellate review.” Commonwealth v. Gravely, supra, 486 Pa. at 198-199, 404 A.2d at 1297-1298.

In the case sub judice, appellant filed his post-trial motion on March 6, 1981, which is well after the effective date (September 4, 1979) of the Gravely decision. See Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1982). Therefore, in compliance with the dictates of Gravely, the issues are held waived. Commonwealth v. Seeley, 297 Pa. Super. 498, 444 A.2d 142 (1982); see also Commonwealth v. Canady, 297 Pa.Super. 292, 443 A.2d 843 (1982); Commonwealth v. Vitacolonna, 297 Pa.Super. 284, 443 A.2d 838 (1982) and compare Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982).

Judgment of sentence affirmed.

      . Even if, for the sake of argument, we were to hold that the issues were preserved for review, we find that the trial court’s actions were not tantamount to the type of error warranting the relief requested. See Lower Court Opinion at 4-6; see also Commonwealth v. Williamson, 243 Pa.Super. 139, 364 A.2d 488 (1976) (verdict of a judge, sitting without a jury in criminal proceeding, need not be nullified merely as a consequence of exposure to prejudicial evidence); Commonwealth v. Harris, 186 Pa.Super. 59, 140 A.2d 344 (1958) (because of witness’ long experience with narcotics, his testimony was that of an expert and was admissible as such).


author: LIPEZ, Judge:

text:
    452 A.2d 1064
    COMMONWEALTH of Pennsylvania, Appellant, v. Romano R. CUGNINI.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1981.
    Filed Nov. 19, 1982.

      Dennis McAndrews, Assistant District Attorney, Media, for Commonwealth, appellee.
    Francis Recchuiti, Norristown, for appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   LIPEZ, Judge:

This Commonwealth appeal is brought from the trial court’s order sustaining defendant’s demurrer at the close of the prosecution’s evidence in a non-jury trial. The Commonwealth contends that the evidence advanced by it and the reasonable inferences arising therefrom are sufficient to support a verdict of guilty of the crimes charged and that the demurrer was therefore erroneously sustained. We agree.

As a result of the search of his home on December 11, 1980, defendant Cugnini was charged with possession of a controlled substance, 35 P.S. § 780-~113(a)(16), and possession of a controlled substance with intent to deliver, 35 P.S. § 780-113(a)(30). The search, conducted by state and local police pursuant to a valid warrant, covered the entire house and resulted in the seizure of various items, including substances believed to be narcotics, paraphernalia associated with the use or sale of drugs, and letters, papers and clothing connecting defendant with the searched premises.

At trial, the articles seized were offered as exhibits by the Commonwealth and were identified by State Trooper Thomas Stern, the prosecution’s only witness. Trooper Stern testified that the entire home had been searched and that he had inventoried and taken into his possession all of the property seized as a result of that search. He stated that he had personally searched only one bedroom of the house and had found and inventoried a total of 206 grams of marijuana in a number of small plastic bags, 100 methaqualone tablets, .72 grams of cocaine, a centigram scale, a Deering strainer and various letters and papers in that room. In other rooms he inventoried and took possession of items found and pointed out to him by other troopers. He testified that these items were not disturbed between the time of their discovery by the other troopers and the time at which he inventoried and seized them. At the close of Trooper Stern’s testimony, the court admitted into evidence most of the Commonwealth’s exhibits, including all of the controlled substances seized in the various rooms of the house and the apparatus found by Trooper Stern in the bedroom that he searched. The Commonwealth then rested its case. Defendant demurred, and the demurrer was sustained by the court.

The test to be applied in ruling on a demurrer by a defendant is whether the Commonwealth’s evidence and all reasonable inferences therefrom are sufficient to support a verdict of guilty of the crime under consideration. Commonwealth v. Smith, 262 Pa.Super. 258, 267, 396 A.2d 744, 748 (1978). In applying this test, the trial judge is to read the evidence in the light most favorable to the Commonwealth. Commonwealth v. Kaulback, 256 Pa.Super. 13, 15, 389 A.2d 152, 153 (1978). The trial judge should not, at this stage, weigh the evidence or pass on the credibility of witnesses. Rather, the court should apply the law to the facts as inferable from the Commonwealth’s evidence and determine, not whether it would find the defendant guilty on the evidence, but whether the evidence is legally sufficient to sustain a verdict of guilty. See Commonwealth v. Parrish, 250 Pa.Super. 176, 180, 378 A.2d 884, 885-86 (1977).

Here, the trial court determined that the evidence was “insufficient by virtue of the manner and method by which it was discovered, seized, accounted for, marked for identification and preserved for trial.” Opinion of the lower court at 7. On these facts, we think that the lower court erred in holding that flaws in the chain of custody of the Commonwealth evidence so destroyed its probative value as to render it insufficient as a matter of law to support a verdict of guilty.

While the Commonwealth bears the burden of demonstrating some reasonable connection between the prof-erred exhibits and the true evidence, Commonwealth v. Pedano, 266 Pa.Super. 461, 467, 405 A.2d 525, 528 (1979), it need not establish the sanctity of its exhibits beyond a moral certainty. E.g., Commonwealth v. Miller, 234 Pa.Super. 146, 155, 339 A.2d 573, 578 (1975), aff’d, 469 Pa. 24, 364 A.2d 886 (1976). The Commonwealth need not produce every individual who came into contact with an item of evidence, nor must it eliminate every hypothetical possibility of tampering. Commonwealth v. Rick, 244 Pa.Super. 33, 38, 366 A.2d 302, 304 (1976). A complete chain of custody is not required so long as the Commonwealth’s evidence, direct and circumstantial, establishes a reasonable inference that the identity and condition of the exhibits have remained the same from the time they were first received until the time of trial. Commonwealth v. Oates, 269 Pa.Super. 157, 163, 409 A.2d 112, 115 (1979); Commonwealth v. Miller, supra. Any gaps in testimony regarding the chain of custody go to the weight to be given the testimony, not to its admissibility. Commonwealth v. Bolden, 486 Pa. 383, 388-89, 406 A.2d 333, 335-36 (1979).

The trial court properly applied these principles in ruling that the Commonwealth’s exhibits were admissible into evidence. In ruling on the defendant’s demurrer, however, the court went beyond a purely legal determination of sufficiency of the evidence. Once it had determined that the chain of custody was demonstrated to an extent that established the relevance, and therefore the admissibility, of the Commonwealth exhibits, its further consideration of chain of custody problems and inconsistencies in Trooper Stern’s testimony amounted to a weighing of evidence beyond the province of the court at the demurrer stage.

The trial court’s grant of defendant’s demurrer turned on its doubts about the chain of custody of the Commonwealth’s exhibits during the period between the discovery of the exhibits by various state troopers and their seizure and inventory by Stern. We think that Trooper Stern’s testimony regarding the method in which the search was conducted was sufficient to allow a fact finder to infer that the evidence seized was not altered or tampered with during that period. Moreover, Stern’s testimony established an unbroken chain of custody as to the items seized in the bedroom that he himself searched. Even if all of the Commonwealth’s other evidence were discounted by the fact finder, these items, which included both controlled substances and apparatus associated with their sale, would have been sufficient to sustain a verdict of guilty of the crimes charged. We therefore find that defendant’s demurrer was improperly sustained.

Order vacated, and case remanded for a new trial.