author: MONTEMURO, Judge:

text:
    477 A.2d 537
    COMMONWEALTH of Pennsylvania v. Bernard VALLONE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 6, 1984.
    Filed June 1, 1984.

      Stephen LaCheen, Philadelphia, for appellant.
    Stephen B. Harris, First Assistant District Attorney, Doylestown, for Commonwealth, appellee.

      Before ROWLEY, MONTEMURO and JOHNSON, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of the Court of Common Pleas, Bucks County, denying appellant’s motion to withdraw a guilty plea.

Two issues are raised on appeal: (1) whether, as a result of counsel’s failure to request the lower court judge to recuse himself, appellant was denied effective assistance of counsel; and (2) whether the court below erred in refusing to grant appellant’s motion to withdraw his guilty plea.

Appellant was charged on five indictments for various offenses which fall into the broad category of assault, firearms violations, and possession of controlled substances. On August 20, 1974, suppression motions were litigated, and denied, on two of the indictments. The next day a jury was selected and sworn. After the first witness had begun to testify, appellant decided to plead guilty. On that same day, pleas of guilty were entered on all five indictments.

The court deferred sentencing and permitted appellant to remain free on bail. Appellant did not appear for the scheduled sentencing on September 13, 1974. He was eventually located on September 21, 1978, when he was arrested on federal charges in North Carolina.

On February 22, 1979, appellant filed a motion to withdraw his guilty pleas. After numerous continuances and delays, a hearing was held before the Honorable Kenneth G. Biehn, who denied the motion by opinion and order dated November 9, 1981.

The case was again scheduled for sentencing on March 5, 1982. Once again appellant failed to appear. Appellant was subsequently located and sentenced on April 30, 1982. On May 10, 1982, appellant filed a petition for reconsideration of sentence/motion to withdraw guilty plea. The petition was denied as to both matters on July 2, 1982, and this appeal followed.

We now turn to disposition of the issues.

Underlying appellant’s claim that counsel should have requested recusal is the fact that Judge Biehn was the District Attorney in Bucks County at the time that appellant was arrested, prosecuted, and entered his pleas of guilty.

This court, in determining whether a criminal defendant was afforded effective assistance of counsel, will make an independent review of the record, Commonwealth v. Strader, 262 Pa.Super. 1616, 396 A.2d 697 (1978), and examine counsel’s actions in light of the available alternatives. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Gray, 297 Pa.Super. 123, 443 A.2d 330 (1982). Counsel will be deemed effective if this court determines that the course of action chosen had some reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, supra; Commonwealth v. Johnson, 280 Pa.Super. 309, 421 A.2d 737 (1980). However, where the claim concerns an issue or a motion not raised, it is only where the claim is of arguable merit that we must make an inquiry into counsel’s decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

At the outset then, we must examine the applicable authority and decide whether the claim — that Judge Biehn should not have heard appellant’s motion — has arguable merit.

In the case of Commonwealth ex rel. Allen v. Rundle, 410 Pa. 599, 189 A.2d 261 (1963), the hearing judge in the court below had been a District Attorney at the time the indictment was returned. In that capacity he had signed the bill of indictment and was responsible for the prosecution of the defendant. The supreme court vacated and remanded, stating that:

Our examination of the record satisfies us that the failure of the hearing judge to disqualify himself from passing on this petition was in no way prejudicial to petitioner. The record is entirely free from even the slightest suggestion of prejudice or impropriety on his part. Despite the complete impartiality exercised by the hearing judge and the total absence of any element of unfairness, we are nevertheless of the opinion that it is more desirable to have such petitions heard by a judge who, prior to ascending the bench, had no association with either the prosecution or the defense in the trial of.the'case.

Id., 410 Pa. at 600, 189 A.2d at 262.

In accord is the case of Commonwealth v. Young, 439 Pa. 498, 269 A.2d 18 (1970). The petitioner therein was collaterally attacking his conviction. .The hearing judge in the Post-Conviction Hearing Act proceedings had been the Assistant District Attorney who prosecuted the petitioner in the proceeding which he was attacking. Relying on Commonwealth ex rel. Allen v. Rundle, supra, the supreme court ruled that the hearing judge should have disqualified himself, and that the petitioner must be granted a new hearing.

Although Allen was cited, a harmless error approach was used in Commonwealth v. Pavkovich, 444 Pa. 530, 283 A.2d 295 (1971). Therein the court rejected appellant’s argument that he was prejudiced by inclusion in the court en banc, which decided post-trial motions filed subsequent to his post-conviction hearing, of a judge who had been the prosecuting attorney at his trial. The court stated that, “A person who acted as counsel in a criminal case, on either side of the prosecution or the defense, should not later participate in the matter as a judge. Commonwealth ex rel. Allen v. Bundle, 410 Pa. 599, 189 A.2d 261 (1963). In the instant case, however, we perceive no possible prejudice in what occurred, and the error was harmless.” Id., 444 Pa. at 531, 283 A.2d 295 (1971). As is relevant here, this finding of harmless error was based on the fact that, with one exception, the post-trial motions presented subsequent to the post-conviction hearing, were the same as those previously presented. The second court en banc merely denied the motions based on the opinion of the prior court en banc.

The most recent comment on this precise question from our supreme court is found in the case of Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983). One of the arguments made by appellant therein was that recusal of the trial judge was required because he had occupied the office of District Attorney when the offenses were committed. Another argument for requiring recusal was that when he was the District Attorney, the trial judge had prosecuted appellant on unrelated charges. While the court ultimately held that the appellant was entitled to be sentenced by a different judge, it essentially rejected both of the arguments set forth above. Specifically, the court stated that "... we have never held and are unwilling to adopt a per se rule that a judge who had participated in the prosecution of a defendant may never preside as judge in future unrelated cases involving that defendant.” Id., 501 Pa. at 22, 459 A.2d at 731. Yet, in the preceding paragraph it was acknowledged that:

Our Court has held the appearance of judicial integrity and impartiality requires a judge who had represented a party to remove himself from further participation in the case. Commonwealth v. Pavkovich, 444 Pa. 530, 283 A.2d 295 (1971); Commonwealth ex rel. Allen v. Rundle, 410 Pa. 599, 189 A.2d 261 (1963). Indeed, the Code of Judicial Conduct requires no less.

Id.

The Commonwealth argues that, “Prior to the hearing on the motion to withdraw the guilty pleas, Judge Biehn informed counsel that he had no knowledge whatsoever of the cases before him.” (Commonwealth’s brief, 10). Recognizing that the case law in this area is not readily reconcilable, the Commonwealth argues that in light of the judge’s lack of knowledge, we should apply the harmless error reasoning of Commonwealth v. Pavkovich, supra, rather than the rule set forth in Commonwealth ex rel. Allen v. Run-dle, supra.

We do not find the Commonwealth’s argument persuasive. Initially we note that the court’s harmless error reasoning in Pavkovich was not based on any lack of knowledge on the part of the judge who sat on the court en banc, but was instead based primarily on the pro forma nature of what the court en banc had done in that case. More importantly, we emphasize that even if this were not so, we would be compelled to reject the Commonwealth’s argument. Its assertion as to what Judge Biehn said to counsel does' not appear of record, therefore, we may not consider it. Gee v. Eberle, 279 Pa.Super. 101, 420 A.2d 1050 (1980).

Based on the record which we have before us, we can ascertain nothing more than that Judge Biehn occupied the office of District Attorney at the time in question. This we know by virtue of the fact that his name, title, and authorized signature appear on certain documents of record. As the subject of recusal was not raised prior to this appeal, matters such as the nature and extent of Judge Biehn’s involvement as a prosecutor or the state of his knowledge of appellant’s case have never been explored.

Accordingly, we hold that in view of the somewhat equivocal statement of the law on recusal due to prior prosecutorial involvement, appellant has, for purposes of an ineffectiveness claim, raised an issue of arguable merit. Consequently, we will remand for a hearing on the question of why counsel did not pursue the matter.

In view of our disposition on the first issue, we find it inappropriate at this juncture to address the second.

Order reversed and case remanded. We do not retain jurisdiction.

      . We note that appellant was not sentenced by Judge Biehn, but was instead sentenced by the Honorable Issac S. Garb.

       Canon 3(C) of the Code of Judicial Conduct, provides in part:
      C. Disqualification
      (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

      (b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning material witness concerning it: [Emphasis added].


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    477 A.2d 540
    COMMONWEALTH of Pennsylvania v. Gerald RAWLS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1984.
    Filed June 8, 1984.

      Norris E. Gelman, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CIRILLO, BECK and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from a denial of relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551, in which appellant claims he was denied full appellate rights and the right to the representation of competent counsel on a prior direct appeal from judgment of sentence.

On July 21, 1977, appellant Rawls waived a jury and proceeded to trial in the Philadelphia County Court of Common Pleas on charges of second-degree murder, robbery, burglary, and conspiracy. Rawls was convicted and sentenced to life imprisonment for murder, ten to twenty, years imprisonment for robbery, ten to twenty years for burglary, and five to ten years for conspiracy, all sentences to run concurrently. He filed a direct appeal to the Supreme Court, which placed the appeal on the Superior Court Special Transfer Docket. The Superior Court affirmed the judgment of sentence in Commonwealth v. Rawls, 270 Pa.Super. 432, 411 A.2d 796 (1979). Neither Rawls nor his appellate counsel sought allocatur in the Supreme Court.

On July 14, 1981, Rawls filed a counselled petition under the PCHA. After an evidentiary hearing, the PCHA court, Blake, J., denied relief in an opinion and order dated December 16, 1982.

Appellant first argues that his court-appointed trial/appellate counsel abandoned him after this Court affirmed the judgment of sentence on direct appeal, and that therefore he was denied his right to seek further appellate review in the Supreme Court of Pennsylvania. After the Superior Court denied relief, counsel effectively withdrew from the case, apparently in the mistaken belief that he had no duty to continue representing Rawls. If Rawls indeed wished to appeal our order, counsel’s failure to continue representation was improper under the mandate of Commonwealth v. Daniels, 491 Pa. 289, 420 A.2d 1323 (1980).

However, Rawls has never maintained that he wished to appeal our order to the Supreme Court. Instead, he now seeks the right to file a petition for allowance of appeal to the Supreme Court so that he may present two new claims that were not before our Court on the prior direct appeal. These two claims are: 1) that the felony-murder rule as applied to his case is unconstitutional, and 2) that the elements of a jury trial waiver colloquy should be expanded in a homicide case to “inform [the defendant on the] record of the unique powers of a jury in a homicide prosecution in Pennsylvania.” Brief for the Appellant at 25. Appellant frames prior counsel’s failure to raise these issues in terms of ineffective assistance of counsel, and seeks alternative relief in the form of a new trial.

There is a presumption under the PCHA that appellant’s failure to pursue these issues in earlier proceedings was knowing and understanding. 42 Pa.C.S. § 9544(c). In the PCHA court appellant presented no evidence to overcome this presumption. His entitlement to relief on his two belated claims, therefore, is contingent upon proof that extraordinary circumstances justified his failure to raise these issues earlier in the case. Id. §§ 9543(4), 9544(b).

Appellant asserts that counsel’s ineffectiveness was an extraordinary circumstance which prevented his earlier raising these issues. In assessing ineffectiveness of counsel claims, we are guided by the standard set down by the Supreme Court in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967):

We cannot emphasize strongly enough ... that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record.

Also, in order to succeed under Maroney a petitioner must show that the course of action now advocated posed a substantially greater potential for success than the course counsel actually pursued. Id., 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8; Commonwealth v. Jones, 324 Pa.Super. 359, 471 A.2d 879 (1984); Commonwealth v. Williams, 314 Pa.Super. 355, 460 A.2d 1178 (1983). Under this standard, we believe appellant has failed to make out prior counsel's ineffectiveness.

The first issue counsel is charged with not pursuing is a challenge to the constitutionality of the felony-murder statute. Rawls was convicted of second-degree murder under 18 Pa.C.S. § 2502(b), (d), which provide:

(b) Murder of the second degree. — A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
(d) Definitions. — As used in this section the following words and phrases shall have the meanings given to them in this subsection:
“Perpetration of a felony.” The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.

This statute proscribes the crime commonly known as felony-murder. Appellant alleges that counsel was ineffective for not arguing that appellant’s conviction under the statute violates his federal constitutional right to due process as enunciated in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Sandstrom held that where intent is an element of the crime, a presumption that a person intends the ordinary consequences of his voluntary acts offends due process. Appellant argues that the Pennsylvania felony-murder statute also offends due process because it conclusively presumes malice, an element of the crime of murder, where a killing occurs in the course of one of the statutorily enumerated felonies.

Appellant fails to see a crucial distinction between the presumption condemned in Sandstrom and that employed under the Pennsylvania felony-murder statute. Sandstrom outlawed a mandatory or “burden-shifting” presumption that relieved the prosecution of the burden to prove beyond a reasonable doubt an element of the crime charged, in that case intent under the Montana deliberate homicide statute. In Pennsylvania, the malice “presumed” under the felony-murder law is nothing more than the malice which accompanies perpetration of the underlying felony. Commonwealth v. Yuknavich, 448 Pa. 502, 295 A.2d 290 (1972); Commonwealth v. Nunez, 312 Pa.Super. 584, 588 n. 2, 459 A.2d 376, 377 n. 2 (1983). The Commonwealth is not relieved of the burden to prove that the defendant engaged in the underlying felony with the requisite mens rea. Since each crime enumerated in the felony-murder statute is a crime of specific intent, the Commonwealth must prove such intent. Once such intent is shown, the felony-murder doctrine merely imputes the malice incident to the intentional felony over to the killing, which, moreover, must be accomplished in furtherance of the intentional felony. Commonwealth v. Waters, 491 Pa. 85, 418 A.2d 312 (1980).

Equating the malice necessary to commission of certain intentional felonies with the legal malice essential to prove second-degree murder is a permissible legislative choice reflecting the gravity with which this Commonwealth views killings perpetrated in the course of serious felonies. Our courts in the past have repeatedly sustained the felony-murder doctrine of imputed malice, and have shown no inclination to strike it down even in the face of due process challenges. See, e.g., Commonwealth v. Yuknavich, supra; Commonwealth v. Geiger, 475 Pa. 249, 380 A.2d 338 (1977); Commonwealth v. Middleton, 320 Pa.Super. 533, 542 n. 3, 467 A.2d 841, 845 n. 3 (1983) (dictum); Commonwealth v. Stanton, 316 Pa.Super. 397, 463 A.2d 19 (1983). Compare also, Drake v. Francis, 727 F.2d 990 (11th Cir. 1984) (felony-murder rule upheld against Sandstrom challenge) with Lockett v. Arn, 728 F.2d 266 (6th Cir.1984) (contra). Accordingly, counsel’s failure to challenge the constitutionality of the felony-murder rule does not establish his ineffectiveness.

As for appellant’s claim that the jury trial waiver colloquy should be expanded in homicide cases, our courts increasingly display reluctance to strictly interpret present colloquy requirements, let alone to expand the requirements even further. See, e.g., Commonwealth v. Carson, 503 Pa. 369, 469 A.2d 599 (1983); Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commonwealth v. Klinger, 323 Pa.Super. 181, 470 A.2d 540 (1983); Commonwealth v. Hazen, 315 Pa.Super. 557, 462 A.2d 732 (1983); Commonwealth v. Harris, 311 Pa.Super. 216, 457 A.2d 572 (1983); Commonwealth v. Campbell, 309 Pa.Super. 214, 455 A.2d 126 (1983); Commonwealth v. Anthony, 307 Pa.Super. 312, 453 A.2d 600 (1982); Commonwealth v. Herberg, 306 Pa.Super. 245, 452 A.2d 536 (1982); Commonwealth v. For tune, 289 Pa.Super. 278, 433 A.2d 65 (1981). Appellant admits that the colloquy in his case fully comported with the mandates of Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). We therefore refuse to find counsel ineffective after the fact for not raising appellant’s challenge to the colloquy.

Order affirmed.


author: WIEAND, Judge:

text:
    477 A.2d 544
    Antonio GENTILE, t/a Antonio Gentile Construction Company, a/k/a Antonio Gentile Building Contracting v. Selwyn WEISS, t/a S.S.W. Associates, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1983.
    Filed June 15, 1984.

      Frederick N. Frank, Pittsburgh, for appellant.
    Jennifer F. Rabold, Pittsburgh, for appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   WIEAND, Judge:

Once again this Court has been called upon to acknowledge and then proceed according to the distinction between statutory and common law arbitration to determine the power of a court to modify an award because of alleged errors of law.

Antonio Gentile, appellee, contracted with Selwyn Weiss, appellant, to rehabilitate and convert Weiss’ vacant building into apartments. A year later, Weiss exercised the termination provisions of the contract and discontinued Gentile’s employment as general contractor. Gentile thereupon commenced an action in the Court of Common Pleas of Allegheny County to recover damages for an alleged wrongful termination of the contract. A Petition to Stay the proceedings was granted by the court on January 14, 1980, and the parties were ordered to arbitration under the terms of their contract. On August 19, 1981, a board of arbitrators awarded Gentile damages of $31,513.14 and denied Weiss’ counterclaim. Weiss then filed in the Court of Common Pleas a Motion for Modification and Correction of Arbitration Award, in which he asked the court to modify the award by denying Gentile’s claim and by entering an award on Weiss’ counterclaim in the amount of $203,395.44. The sole reason cited in appellant’s exceptions to the award was that the award was “against the law and [was] such that had it been a verdict of the jury, [the court] would have entered judgment against [Gentile] and for [Weiss] on his counterclaim notwithstanding the verdict.” Gentile filed an Answer containing New Matter, and an evidentiary hearing was held. The court thereafter entered an order as follows:

[AJfter oral argument in open Court and upon review of the briefs and pleadings filed, it appearing to the Court that the language in the Contract giving rise to the dispute provides for Arbitration under common law, and the Defendant not alleging that there was any fraud, corruption or misconduct on the part of the Arbitrators, it is hereby ORDERED and DECREED that the Motion of the Defendant to Modify and Correct the Arbitration Award be and the same is denied.

Weiss appealed. He asks that we reverse and remand with instructions to the trial court to consider the errors of law allegedly committed by the arbitrators. In support thereof he argues (1) that the court erred by applying principles pertaining to common law arbitration and (2) that, in any event, Gentile should be estopped from arguing the applicability of common law principles because in the averments of his answer he cited and relied upon principles applicable to the enforcement and modification of statutory arbitration awards. We find these arguments unpersuasive and affirm the order of the trial court.

The agreement between the parties in this case provided in pertinent part as follows:

All claims ... shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise____ Agreement shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

“The Arbitration Act does not apply unless it is expressly or impliedly provided for by the parties and its procedures are followed.” Runewicz v. Keystone Insurance Co., 476 Pa. 456, 460, 383 A.2d 189, 191 (1978) (footnote added). Its provisions are applicable “only if the arbitration agreement specifically refers to the Act or there is other evidence, subsequent to the agreement, that the parties expressly or implicitly agreed that it should apply.” Hart v. State Farm Mutual Automobile Insurance Co., 288 Pa.Super. 53, 57, 431 A.2d 283, 285 (1981), overruled on other grounds, White v. Concord Mutual Insurance Co., 296 Pa.Super. 171, 442 A.2d 713, aff'd, 500 Pa. 103, 454 A.2d 982 (1982). See also: Gallagher v. Educator and Executive Insurers, Inc., 252 Pa.Super. 414, 417, 381 A.2d 986, 987 (1977). Here, neither the agreement to arbitrate nor any subsequent agreement between the parties provided for statutory arbitration. Common law principles, therefore, were applicable. Campbell-Ellsworth, Inc. v. Holy Trinity Serbian Orthodox Church-School Congregation, 233 Pa.Super. 126, 336 A.2d 346 (1975). Moreover, the parties in the instant case agreed that the arbitration was to be held according to rules of the American Arbitration Association; and they agreed to be bound by the result. This “constitutes failure to follow the procedures of the Arbitration Act and [is], therefore, inconsistent with it so as to be sufficient in itself to make the arbitration at commonlaw.” Runewicz v. Keystone Insurance Co., supra, 476 Pa. at 461, 383 A.2d at 191.

“The decision of the arbitrator in a common-law arbitration is binding and cannot be attacked unless it can be shown by clear, precise and indubitable evidence that a party was denied a hearing, or that there was fraud, misconduct, corruption or other irregularity which caused the rendition of an unjust, inequitable or unconscionable award.” Cargill v. Northwestern National Insurance Co., 316 Pa.Super. 139, 143, 462 A.2d 833, 834-835 (1983). See also: 42 Pa.C.S. § 7341. No such allegations were made by appellant in this case.

The application of common law principles to the enforcement of the award of arbitrators was not waived or forfeited because of averments contained in the New Matter in appellee’s Answer. New Matter must state facts, not conclusions of law. Bureau for Child Care v. United Fund, 416 Pa. 617, 622, 207 A.2d 847, 850 (1965); Bowman v. Mattei, 309 Pa.Super. 486, 488, 455 A.2d 714, 716 (1983). The facts alleged in the petition and answer in this case disclosed an agreement between the parties calling for common law arbitration. The agreement was not subsequently altered by mutual agreement, express or implied, to provide for proceedings under the Act of 1927. These facts demonstrated an intent to arbitrate according to common law principles. Appellee’s decision to plead, in the alternative, those requirements which are necessary to modify an award of arbitrators proceeding according to statute, was proper. See: Pa.R.C.P. 1020(c). See also: Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 626, 375 A.2d 1285, 1291 (1977); Eckrich v. DiNardo, 283 Pa.Super. 84, 91 n. 7, 423 A.2d 727, 730 n. 7 (1980); Department of Transportation v. Bethlehem Steel Corp., 33 Pa.Cmwlth. 1, 6, 380 A.2d 1308, 1311 (1977). Pleading in the alternative did not constitute a waiver of and did not estop appellee from arguing the applicability of common law principles.

Affirmed.

      . The trial court’s order was amended on April 16, 1982 to provide for confirmation of the arbitration award. The trial court amended its order at the request of the appellant in order to make it abundantly clear that a final order had been entered. A second appeal was taken from the amended order, and both appeals were consolidated for argument before this Court.

      . Act of April 25, 1927, P.L. 381, No. 248, 5 P.S. §§ 161-179, repealed, Act of October 5, 1980, P.L. 693, No. 142, § 501(c). The current Uniform Arbitration Act, 42 Pa.C.S. § 7301 et seq., provides:
      An agreement to arbitrate a controversy on a nonjudicial basis shall be conclusively presumed to be an agreement to arbitrate pursuant to Subchapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to this subchapter or any other similar statute, in which case the arbitration shall be governed by this subchapter.
      42 Pa.C.S. § 7302(a).

      . By way of contrast, the scope of review accorded a statutory arbitration pursuant to the Act of 1927 is the same as that upon a motion for judgment notwithstanding the verdict of a jury, empowering the court to correct the award for mistake of law. Act of April 25, 1927, supra, § 11(d), 5 P.S. § 171(d). See also: Cargill v. Northwestern National Insurance Co., supra, 316 Pa.Superior Ct. at 143 n. 2, 462 A.2d at 835


author: BECK, Judge:

text:
    477 A.2d 547
    Diane J. SITES and Dorine M. Mihaly v. Thomas V. CLOONAN, Stephen P. Conneely, All-Ireland Athletic Association, John Nee, Knights of Columbus. Appeal of Diane J. SITES and Dorine M. Mihaly. Diane J. SITES and Dorine M. Mihaly, Appellants, v. Thomas V. CLOONAN, Stephen P. Conneely, All-Ireland Athletic Association, John Nee, Knights of Columbus.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1982.
    Filed June 15, 1984.

      Robert G. Xides, McKeesport, for appellants.
    Herbert N. Rosenberg, Pittsburgh, for Conneely, appel-lee.
    James E. Coyne, Pittsburgh, for All-Ireland, appellee.
    John W. Jordan, Pittsburgh, for Nee, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   BECK, Judge:

This case involves the issue of whether a third party has a cause of action in negligence against a social host who furnishes alcoholic beverages to an adult guest who, after becoming intoxicated, leaves the social gathering and injures the third party. Appellants Sites and Mihaly, plaintiffs below, were struck by an automobile driven by defendant Cloonan, who is not involved in this appeal. Cloonan was intoxicated. He had consumed liquor at a non-commercial social event sponsored by appellee All-Ireland Athletic Association on the premises of appellee Knights of Columbus. Appellee Conneely was the bartender who served liquor to Cloonan. Appellee Nee is a member of the Knights of Columbus who was present at the affair and who had been entrusted by the Knights with the keys to the premises. Appellees were also defendants below.

Sustaining appellees’ preliminary objections, the lower court dismissed appellants’ complaint with respect to all appellees, holding that no cause of action existed against appellees as gratuitous suppliers of liquor. We affirm. This case is controlled by the recent decision of our Supreme Court in Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983). In Klein, the Supreme Court held that “there can be no liability on the part of a social host who serves alcoholic beverages to his or her adult guests.” 504 Pa. at 148, 470 A.2d at 511. It is clear that appellees were acting strictly as social hosts. No sales of liquor took place at the affair in question, and no appellee was a licensee or an employee or agent of a licensee under Article IV of the Liquor Code, 47 P.S. §§ 4-401 et seq. Therefore, the trial court correctly dismissed appellants’ complaint against ap-pellees.

Order affirmed.

      . Our disposition of this appeal makes it unnecessary to address the claims of appellees Nee and Knights of Columbus that they were only providers of space and therefore were not liable as social hosts, because they did not furnish liquor to Cloonan and had no duty to supervise the serving of liquor by appellees All-Ireland and Conneely.

      . Because we find that the event at which Cloonan consumed alcohol was clearly a private social gathering sponsored by a noncommercial organization, our decision is limited to that context. We do not reach here the question whether liability should be imposed on a defendant who becomes something more than a purely social host, e.g. by opening his doors to the general public and/or accepting some consideration for the liquor served, even if he has not secured a license under the Liquor Code.


author: PER CURIAM:

text:
    477 A.2d 548
    COMMONWEALTH of Pennsylvania v. Steven BLACKBURN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 7, 1983.
    Filed June 15, 1984.
    Petition for Allowance of Appeal Denied Sept. 20, 1984.

      Norris E. Gelman, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   PER CURIAM:

Appellant was convicted of first degree murder and conspiracy and was sentenced to life in prison. Upon direct appeal this court affirmed the judgment of sentence. Commonwealth v. Blackburn, 272 Pa.Superior Ct. 1, 414 A.2d 638 (1979). The Supreme Court granted appellant’s petition for allocatur and simultaneously remanded “for the appointment of new counsel and a determination of the claim that counsel failed to interpose objection to the violation of the Interstate Agreement on Detainers Act and to preserve this claim for appellate review.” The trial court on remand conducted a hearing after which it found that, excluding delays occasioned by defense counsel’s requests for continuances, appellant was tried within the time constraints of the Interstate Agreement on Detainers Act (hereafter referred to as the I.A.D.), and hence counsel was not ineffective in not pursuing a motion to discharge.

We see no need to recount either the procedural or factual history of this case as such has been detailed both in our previous opinion in this case and the several opinions of the Court of Common Pleas of Philadelphia County. It suffices to state that appellant was tried one hundred thirty-nine (139) days after his return to Pennsylvania pursuant to the I.A.D. That Act, as adopted by this Commonwealth provided:

(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

19 P.S. § 1431, Art. IV(c). Appellant contends that since he was not tried within 120 days of his return to Pennsylvania he should have been discharged and that he would have been, except for counsel’s failure to raise such claim. Therefore, he suggests that counsel was ineffective. We disagree.

As the record demonstrates, and the hearing court found, various continuances were requested and granted at the defense’s request. Hence, this case is clearly distinguishable from Commonwealth v. Gregg, 470 Pa. 323, 368 A.2d 651 (1977), relied upon by appellant, where the record did not support or justify a finding that counsel was, or would be, unavailable for trial. Instead, the result here is controlled by Commonwealth v. Scott, 219 Pa.Superior Ct. 470, 281 A.2d 754 (1971), where we held that delay caused by counsel’s request for a continuance, because of his need for additional time to prepare, amounted to “good cause” and it was “reasonable” to toll the I.A.D. period. Here, counsel’s various requests extended the time in which appellant could be brought to trial, see Reaves v. State, 242 Ga. 542, 250 S.E.2d 376 (1978) (delay causes by pre-trial motions equaled “good cause” under I.A.D.); see also Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979) (120 day period was tolled by either defendant’s consent or own actions). Appellant was tried within such extended period.

Accordingly, as appellant’s substantive contention is without merit, counsel will not be deemed ineffective in failing to pursue it. Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983); Commonwealth v. Courts, 315 Pa.Superior Ct. 108, 461 A.2d 820 (1983).

Appellant also complains that the court unduly restricted the hearing solely to counsel’s ineffectiveness concerning the I.A.D. claim, instead of permitting him to explore other alleged areas of ineffectiveness. We may not fault the court for proceeding in, as the appellant describes, this piecemeal fashion as it was following the directive of the Supreme Court. Furthermore, such course was dictated by appellant’s failure to raise his other claims earlier before the Supreme Court. In light of the fact that the hearing has already been held on the I.A.D. claim, we accept the reasoning offered by the Commonwealth, that the goal of judicial economy would not be served by remanding for a broader hearing at this point in time.

Order affirmed.

      . Since reenacted at 42 Pa.C.S.A. § 9101, Art. IV(c).

      . The various continuances were requested because of illness and to allow counsel to prepare various pre-trial motions.


author: WATKINS, Judge: CAVANAUGH, Judge,

text:
    477 A.2d 550
    J.B. VAN SCIVER COMPANY v. Clifford SMITH a/k/a Clifford S. Jeffries and Gail Jeffries, His Wife, Appellants.
    Superior Court of Pennsylvania.
    Submitted Feb. 16, 1984.
    Filed June 22, 1984.

      Hugh C. Clark, Philadelphia, for appellants.
    David I. Grunfeld, Philadelphia, for appellee.
    Before CAVANAUGH, CIRILLO and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Philadelphia County and involves defendants’-appellants’ appeal from an order of the court below which refused to set aside a Sheriffs Sale of appellants’ property.

On January 13, 1981 appellee sued appellants in assump-sit for failure to pay for furniture purchased from appellee, pursuant to an Installment Sales Security Agreement. Appellants failed to defend the action and on February 20, 1981, appellee entered a judgment by default against them in the amount of $2168.61. Damages were assessed against appellants by the Prothonotary bringing the total amount due to $3925.18, which included interest calculated from June 19, 1975.

Appellee then caused a Writ of Execution to be issued and a Sheriff’s Sale of appellants’ real estate was set for September 8, 1981. Appellee notified appellants of the sale after which appellants called appellee’s attorneys to make arrangements to pay the debt and avert the Sheriffs Sale. Based upon the telephone call appellee’s attorneys postponed the sale until October 5, 1981. On September 16, 1981 appellants paid $500.00 to appellee’s attorney at the attorney’s office. At this time the attorney advised appellants that the sale scheduled for September 8, 1981 had been postponed until October 5, 1981 by which time they had to make payment in full of the amount owed. On September 16, 1981 and again on September 28, 1981 appel-lee’s attorney wrote to appellants advising them of the balance due and of the fact that the sale had been rescheduled until 2:00 P.M. on October 5, 1981. The sale took place on that date wherein the real estate was sold for $6300.

On October 10, 1981 appellee’s attorney returned from lunch to find that appellants had brought the sum of $200.00 to his office. He then wrote again to appellants advising them of the fact that the sale had taken place.

On October 27, 1981 appellants filed a Petition to Set Aside the Sheriffs Sale. On May 20, 1982 the court below denied the petition. Appellants then took the instant appeal. During the proceedings before the court below the court ordered that depositions be taken. Appellants’ attorney deposed appellee’s counsel and that deposition was submitted to the court below. Appellants failed to arrive on time for their deposition and the testimony was concluded before their testimony could be taken.

Appellants argue that the Sheriff’s Sale was invalid because they did not receive notice of the date of the sale after it was postponed from September 8, 1981 until October 5, 1981. Where there is a postponement of a Sheriff’s Sale at the direction of the plaintiff, to a date certain within 45 days of the postponed sale, then no new notice to the defendant is required. Pa. Rule Civil Procedure 3129(d). The postponement in the instant case was to a date certain within 45 days of the postponed sale. Furthermore appellants were advised by appellee’s counsel on September 16, 1984 while in his office, of the date and time of the postponed sale. He also wrote to them on September 16, 1981 and September 28, 1981 advising them of the date and time of the sale. A petition to set aside a Sheriff’s Sale is addressed to the discretion of the court and its decision will be reversed only upon a showing that it abused such discretion. Marine Bank v. Huhta, 279 Pa.Superior Ct. 130, 420 A.2d 1066 (1980). We find no abuse of discretion here as all of the procedural rules governing Sheriff’s Sales were followed by the appellee.

Appellants also argue that the sale should be set aside because the sales price was grossly inadequate. Appellants’ real estate was assessed for tax purposes at $8700. They now argue that their property was worth three times that amount. However, they produced no evidence before the court below to sustain that claim. We will not assume, as appellants ask us to do, that the property was worth any specific amount based upon its assessed value. See Keebler Co. v. The Board of Revision of Taxes of Philadelphia, 496 Pa. 140, 436 A.2d 583 (1981). Moreover, mere inadequacy of price is not sufficient to set aside a Sheriff sale of real estate. Fidelity Bank v. Pierson, et ux., 437 Pa. 541, 264 A.2d 682 (1970). While gross inadequacy of price may be grounds to set aside such a sale, if equity compels such a result, we cannot set aside a sale for that reason when the appellant-defendant has produced no more evidence of the value of the real estate than was produced here.

Order affirmed.

CAVANAUGH, J., files a dissenting statement.

CAVANAUGH, Judge,

dissenting:

I would find that the lower court abused its discretion in failing to set aside the sheriffs sale, and would reverse.


text:
    477 A.2d 552
    COMMONWEALTH of Pennsylvania, Appellant, v. Charles E. WISE, Jr.
    Superior Court of Pennsylvania.
    Argued Nov. 21, 1983.
    Filed June 22, 1984.

      Theodore B. Smith, III, Assistant District Attorney, Car-lisle, for Commonwealth, appellant.
    Edward Guido, Public Defender, Carlisle, for appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   PER CURIAM:

The Commonwealth has appealed the order of the lower court which granted the petition of appellee, Charles E. Wise, Jr., to withdraw his guilty plea, pursuant to Pa.R. Crim.P. 320. For the reasons which follow, we are constrained to quash this appeal as interlocutory.

Appellee was charged with three counts of theft by failure to make required disposition of funds and with one count of theft by unlawful taking. The charges arose out of appellee’s employment as a used car salesman, whereby he is alleged to have sold three cars and failed to turn over the full amount received from the sale of the cars to his employer. On September 28, 1981, appellee entered a plea of guilty to one count of theft by failure to make required disposition of funds. It was agreed that $836.10 was the proper amount of restitution. A presentence report was ordered. Prior to sentence, appellee petitioned the court to withdraw his plea of guilty; in doing so, he asserted his innocence and proffered a defense. After a hearing on March 9, 1982, the court permitted the withdrawal of the plea and appellee was directed to appear for trial on May 10, 1982. However, on March 29, 1982, the Commonwealth appealed the court’s order, citing in its Statement of Jurisdiction our authority under 42 Pa.C.S.A. § 742. Appellee urges us to quash the appeal as interlocutory.

Section 742 of the Judicial Code confers exclusive appellate jurisdiction in this Court of appeals from final orders of the Courts of Common Pleas. Pa.R.A.P. 341(c) states that an appeal may be taken by the Commonwealth from any final order in a criminal matter only in the circumstances provided by law. However, as “final order” has been defined, we are unable to include a Commonwealth appeal from a court’s order granting a defendant’s petition to withdraw his guilty plea prior to sentence as an example of a “final order”. An order is a “final order”, so as to be appealable, if it ends the litigation or disposes of the entire case. Esh v. Awglis, 291 Pa.Superior Ct. 528, 436 A.2d 242 (1981). This is not the result of the order from which the Commonwealth appeals. Unlike the situation wherein a trial court grants all or part of a suppression motion, thereby substantially handicapping the Commonwealth and necessitating review by this court, as in Commonwealth v. Lapia, 311 Pa.Superior Ct. 264, 457 A.2d 877 (1983), in the instant case, the Commonwealth concedes it is not even prejudiced by the court’s order, unless we accept the Commonwealth’s contention that a seven month delay occasioned by the plea withdrawal is prejudice per se. This we cannot do absent a result that effectively puts the Commonwealth out of court. See Commonwealth v. Mosley, 283 Pa.Superior Ct. 28, 423 A.2d 427 (1980).

Nor is the instant situation listed in Pa.R.A.P. 311, Interlocutory appeals as of right. The Commonwealth argues in its reply brief that section (a)(5), New trials, is applicable herein. We cannot agree that the lower court’s granting a defendant his motion to withdraw a guilty plea prior to sentence is akin to the award of a new trial, as such a withdrawal after sentencing would be. See Commonwealth v. Burno, 310 Pa.Superior Ct. 564, 456 A.2d 1080 (1983) and Commonwealth v. Nelson, 319 Pa.Superior Ct. 66, 465 A.2d 1056 (1983).

Rather, the Commonwealth should proceed in these situations pursuant to Pa.R.A.P. 312, Interlocutory appeals by permission.

Thus, we quash the appeal.

      . At any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.

      . 18 Pa.C.S.A. §§ 3927; 3921.

      . Jurisdiction of the Commonwealth's appeal, which was also from a pre-sentence withdrawal of a guilty plea, was not an issue in that case. However, it is likely that it was an interlocutory appeal under the “exceptional circumstances” principle of Commonwealth v. Swanson, 424 Pa. 192, 225 A.2d 231 (1967), a situation now covered by Pa.R.A.P. 312. See Note, Pa.R.A.P. 311.


text:
    477 A.2d 554
    COMMONWEALTH of Pennsylvania v. Maximino Cruz PEREZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 28, 1983.
    Filed June 22, 1984.

      Brian S. Quinn, Havertown, for appellant.
    Sandra L. Elias, Deputy District Attorney, Media, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   PER CURIAM:

On October 25, 1981 at approximately 12:15 a.m., the body of Luisa Vazquez was discovered at 807 Madison Street, Chester, Pennsylvania in the second floor bathroom. Ms. Vazquez’s throat had been slashed with a knife, the obvious victim of a homicide. Chester Police officers and detectives from the Criminal Investigation Division arrived on the scene and conducted an investigation. After interviewing the family, including the defendant, and reviewing the physical evidence, defendant was arrested on October 25, 1981 and charged with homicide. On December 7, 1981, defendant was arraigned and informations were filed. On March 23, 1982 a jury trial began before the Honorable Domenic D. Jerome on the charge of first degree murder with Michael Malloy representing the defendant. The Commonwealth was not seeking the death penalty. On March 25, 1983, the jury found the defendant guilty of first degree murder. Defendant’s timely post-trial motions were denied by Judge Jerome on June 23, 1983. On July 21, 1983, defendant was sentenced to life in prison, and on July 21, 1983 defendant filed a timely notice of appeal, pro se. Brian S. Quinn, Esquire was appointed to represent defendant on appeal.

Appellant frames the statement of questions involved in the following manner:

I. Should a mistrial be granted where a prosecutor makes prejudicial and inflammatory remarks during the opening statement?
II. Did the trial counsel's failure to use a reliable, independent interpreter at all stages of the matter constitute ineffective assistance of counsel?
III. Did trial counsel’s failure to advise appellant of his right to participate in the selection of the jury constitute ineffective assistance of counsel?
IV. Did trial counsel’s decision to have appellant testify at trial without adequately preparing that aspect of the case despite appellant's reluctance to testify constitute ineffective assistance of counsel?

Brief for Appellant at iii.

As to the first issue relating to alleged prejudicial and inflammatory remarks made by the prosecutor during the opening statement, such issue was initially raised by Attorney Malloy in defendant’s motion for new trial and in arrest of judgment. The issue was briefed, argued and the subject of an opinion dated June 23, 1982 written by Judge Jerome. Judge Jerome found that the remarks of the assistant district attorney in her opening address, if error, was harmless error. Our review of the record convinces us that Judge Jerome’s conclusion was correct and we adopt the analysis and logic and conclusion from Judge Jerome’s opinion under date of June 23, 1982 in response to the first issue in this appeal.

Unfortunately, we are not in a position to determine the remaining issues raised in this appeal as they all deal with alleged ineffectiveness of trial counsel and an eviden-tiary hearing will be necessitated in order to develop a proper record relating to the allegations of ineffective assistance of trial counsel. Obviously the trial record before us is completely silent as to whatever advice trial counsel may have given appellant relating to his right to participate in the selection of the jury and the record is equally silent as to whatever discussion took place between trial counsel and the defendant relating to the subject of whether or not appellant would testify at trial.

As was said in Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978):

Wade’s final argument, advanced through new appellate counsel, alleges a series of omissions by trial counsel which are said to establish that Wade was denied his right to effective representation. As we stated in Commonwealth v. Hubbard, supra, [472 Pa. 259, 372 A.2d 687 (1977)] before a defendant on direct appeal is entitled to relief under a theory of ineffective assistance of trial counsel, it must appear that the lawyer’s act of omission or commission was arguably ineffective representation, and that it is likely that such ineffectiveness was prejudicial to the defendant. To resolve these matters it is frequently necessary for an appellate court to remand to the trial court for an evidentiary hearing. Such a remand is not necessary, however, when it is clear from the record that the actions or non-actions claimed to constitute ineffectiveness are devoid of merit or were within the realm of trial strategy. Commonwealth v. Turner, 469 Pa. 319, 365 A.2d 847 (1976).

Id. 480 Pa. at 172-73, 389 A.2d at 566-67.

The judgment of sentence is vacated and the case is remanded to the trial court for an evidentiary hearing to determine the factual background to the allegations of trial counsel’s alleged ineffectiveness. Should the trial court conclude that ineffectiveness of counsel did exist, a new trial shall be granted; if counsel is deemed to have been effective, the judgment of sentence shall be reinstated. Thereafter, either party may appeal.

Jurisdiction is relinquished.

       Since new counsel raised the ineffectiveness claim at the first stage of the proceeding in which he represented appellant, the issue is properly before the Court. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).


author: ROWLEY, Judge: POPOVICH, Judge,

text:
    477 A.2d 555
    COMMONWEALTH of Pennsylvania v. Raymond MARTIN, Appellant.
    Superior Court of Pennsylvania.
    Argued July 12, 1983.
    Filed Feb. 3, 1984.

      Francis M. Walsh, Assistant Public Defender, Norris-town, for appellant.
    J. William Ditter, III, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER, CA-VANAUGH, WICKERSHAM, ROWLEY, WIEAND and POPOVICH, JJ.
   ROWLEY, Judge:

Appellant entered guilty pleas to one count each of robbery, burglary, theft, criminal conspiracy, terroristic threats and unlawful restraint. He was sentenced to a term of imprisonment for not less than two nor more than ten years on the burglary charge and a consecutive term of ten years probation for robbery. Sentence on all other counts was suspended. Appellant’s motion for modification of sentence was denied without a hearing. He has filed a direct appeal to this court from the judgment of sentence.

The sole issue raised by appellant on appeal is whether “the sentence imposed [was] unduly harsh and excessive under the circumstances?” The case was scheduled for argument before the Court en banc to consider whether an excessive sentence claim also presents for our review, as a separate issue, the question whether the trial court “sufficiently articulate[d] his reasons for imposing sentence” pursuant to the Sentencing Code and Commonwealth v. Riggins, 474 Pa. 115, 877 A.2d 140 (1977). We affirm the judgment of sentence and hold that the excessiveness issue raised by appellant does not raise the sufficiency of the trial court’s reasons for sentence as a separate and independent ground for relief.

I.

This court has held that the trial judge has broad discretion in imposing sentence. Commonwealth v. Rhodes, 272 Pa.Super. 546, 416 A.2d 1031 (1979); Commonwealth v. Johnson, 285 Pa.Super. 185, 340 A.2d 515 (1975). If the sentence imposed is within statutory limits, there is no abuse of discretion, unless the sentence is manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Garrison, 292 Pa.Super. 326, 437 A.2d 407 (1981); Commonwealth v. Shoemaker, 226 Pa.Super. 203, 313 A.2d 342 (1973). Absent an abuse of discretion, a sentence imposed by the trial court will not be disturbed on appeal. Commonwealth v. Gillespie, 290 Pa.Super. 336, 434 A.2d 781 (1981); Commonwealth v. Campolei, 284 Pa.Super. 291, 425 A.2d 818 (1981); Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980).

In imposing sentence, the sentencing court must consider the particular circumstances of the offense and the character of the defendant in reaching its determination. Commonwealth v. Giffin, 279 Pa.Super. 264, 420 A.2d 1134 (1980); Commonwealth v. Goldbard, 276 Pa.Super. 193, 419 A.2d 161 (1980). That was done in this case.

A review of the entire record reveals the following facts. On January 18, 1981, at approximately 2:00 a.m., appellant and an accomplice entered the home of a seventy-three year old woman by breaking a basement window. The victim lived alone. In order to insure their isolation, appellant and his accomplice cut the telephone lines into the victim’s home. Upon hearing noises coming from upstairs, the accomplice went upstairs and into the victim’s bedroom. The accomplice told the victim to stay in bed and make no noise; he forcibly took a ring from, her finger. Before departing, the burglars again told the victim not to move or make any noise and that someone would be downstairs listening to make sure she obeyed. In all, the victim was held in her bedroom for approximately two hours. Appellant and the accomplice stole approximately $20,000.00 worth of property, mostly jewelry and silverware. The victim has been unable to resume living in her home because of the fear created by the burglars.

At the time he committed these offenses, appellant was serving a five-year term of probation imposed after he had pled guilty to burglary in 1976. Prior to both the 1976 burglary and the present offense, appellant had been employed by the victims as a painter. After being permitted to enter and work in the victims’ homes, he returned to burglarize them.

In addition to being familiar with the details of the offense the trial court was fully aware of appellant’s background and character. The court had before it, and considered, a pre-sentence report to which no objection has been raised by appellant. The trial judge’s comments show that he considered all of the factors relevant to the proper determination of a sentence: “the protection of the public, the gravity of the offense[s] as [they] relate to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). Appellant fails to show,. and we have been unable to find, that the trial court considered any improper or irrelevant material in imposing sentence.

Furthermore, on the facts of this case, it was not an abuse of discretion for the court to reject a sentence of probation or partial confinement. Probation had been imposed after appellant’s earlier guilty plea and had proven to be an ineffective rehabilitative tool. In addition, the sentence imposed was well within the applicable statutory limits. Appellant faced a combined possible maximum term of imprisonment of up to sixty years and fines of up to $90,000.00. For the burglary and robbery alone, appellant could have been sentenced to a total of forty years and fines totalling $45,000.00. Appellant’s sentence of from two to ten years for the burglary is also less than the “normal” term of five to ten years imprisonment for second offenders in Montgomery County.

In spite of these circumstances, appellant argues that the trial court improperly imposed an excessive sentence because (1) his crimes were related to a drug and alcohol addiction; (2) he has, since his arrest for these offenses, had substantial success in curing his addiction through therapy; (3) he freely admitted his complicity, returned the stolen property in his possession and worked closely with the authorities in their investigation and prosecution of his accomplice and the person who “fenced” the stolen goods; ■and (4) he has offered to make full restitution to the victim. The trial court, after considering each of these arguments, concluded that they did not sufficiently mitigate the other circumstances so as to justify a sentence of less than total confinement. In reaching that conclusion, the trial judge did not abuse his discretion. Neither drug nor alcohol addiction is legal justification for committing any crime. Also, appellant’s offer of “full restitution” rings hollow. He worked for his father-in-law full time as a painter and plumber’s helper for four months immediately prior to sentencing without making any payments on account of restitution to the victim. Furthermore, his rehabilitative efforts and his cooperation with the authorities, while commendable, took place only after he was arrested for the instant offenses and was confronted with maximum sentences of sixty years. Furthermore, these two factors undoubtedly contributed to the less than “normal” sentence imposed by the trial court. We cannot say that the court was required to reduce that sentence still further.

Considering the entire record in this case, we are assured that appellant’s sentence was individualized and fair. The sentence is well within the limits prescribed by statute. The Court did not overlook any pertinent facts or disregard the force of evidence in reviewing the circumstances of the crime and appellant’s individual background. The court considered and made allowance for the gravity of the offense, appellant’s rehabilitative needs, and the need to protect the public. In short, the court’s sentence is not manifestly excessive and, there having been no abuse of discretion by the trial court in imposing it, we will not disturb it.

II.

The suggestion is made, however, that the trial court’s statement of reasons for the sentence imposed, standing alone, is inadequate under Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), and for that reason the sentence must be vacated and the case remanded for resen-tencing. Compare, Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982). We need not address that question, however, because we hold that it has not been properly preserved for review.

In certifying this case for en banc review, our Court was mindful of the suggestion contained in some recent panel opinions that the issue of manifest excessiveness of a sentence, properly preserved in the trial court and raised on appeal, also properly presents for appellate review, as a separate issue, the question of whether or not the trial court placed on the record at the time of sentencing an adequate statement of the reasons for the sentence imposed. See: Commonwealth v. Smith, 301 Pa.Super. 204, 447 A.2d 314 (1982) [Wieand, J., dissenting], and Commonwealth v. Kraft, 294 Pa.Super. 599, 440 A.2d 627 (1982) [Cavanaugh, J., concurring in the result]. We decline to approve the broad language of Kraft and Smith, however.

We are of the opinion that the decision of our Court in Commonwealth v. Brown, 288 Pa.Super. 171, 481 A.2d 343 (1981) correctly articulated the proper standard for reviewing a claim that the sentence imposed was excessive. In Brown, this Court refused to consider appellant’s claim that the trial court had failed to give an adequate statement of reasons for the sentence as required by Commonwealth v. Riggins, supra. The Court held that such a claim was not included within the claim that his sentence was excessive. In Brown, the appellant had originally been convicted of possession with intent to deliver a controlled substance as well as with simple possession. The trial court arrested judgment on the charge of possession with intent to deliver and sentenced the appellant only on the conviction for simple possession. On appeal, the appellant raised, for the first time, two allegations of error which he had not specifically raised in the trial court. This court dismissed the appellant’s arguments as having been waived, saying:

Appellant’s last two claims are that the trial judge improperly considered the conviction for possession with intent to deliver, which had been overturned, in sentencing on the conviction for simple possession, and that the judge failed to give an adequate statement of reasons for the sentence, as required by Commonwealth v. Riggins, ---- While appellant filed a timely motion to modify sentence under Pa.R.Crim.P. 1410, the only issue raised in the motion, rephrased in various forms, was that the sentence was excessive. Neither of the sentencing issues appellant now seeks to raise were included in that motion, and they are therefore waived.
Id., 288 Pa.Superior Ct. at 175, 431 A.2d at 345 (footnote and citations omitted; emphasis added.)

Thus, it was clear, under Brown, that the so-called Riggins issue was not preserved for appellate review by merely claiming that the sentence was excessive. Interestingly, the sentence in the case before us was imposed on October 27, 1981, more than four months after the decision in Brown and prior to the decisions in Smith and Kraft.

The opinion in Kraft makes no reference to the decision in Brown. The only reference to Brown in the Smith opinion is contained in footnote 1, 301 Pa.Super. at 205, 447 A.2d at 315, where the Court said that Commonwealth v. Brown, supra, had been “implicitly overruled” by the Supreme Court of Pennsylvania in Commonwealth v. Townsend, 497 Pa. 604, 443 A.2d 1139 (1982). Initially, it should be noted that this statement is dictum. More importantly, however, we are of the opinion that Brown was not overruled by Townsend. In Townsend the Supreme Court affirmed a judgment of sentence of five to fifteen years for third degree murder. On appeal the sole issue raised was whether the sentence was excessive. In his opinion for a unanimous Court, Mr. Justice [now Chief Justice] Roberts said that since the record contained “a commendably complete picture of both the specific circumstances of appellant’s offense and appellant’s personal history” the Court was assured “that appellant’s sentence was both individualized and fair”. As a result the Court found “the sentence to have been well within the court’s discretion”. Thus, the Court in Townsend considered the entire “record”, as we have done here. The record included not only the trial court’s reasons for the sentence, but also included a pre-sentence report, the testimony of nine witnesses, and the information obtained by the sentencing judge when he had previously accepted appellant’s plea. There is no suggestion in the opinion that the Court considered, as a separate issue, the adequacy of the trial court's reasons for the sentence. Interestingly, Commonwealth v. Riggins, supra, is not mentioned in Townsend. Therefore, Kraft and Smith are not controlling in the case before us. To the extent that they may be read to be in conflict with the

principles enunciated in Brown, which we approve, they are hereby overruled.

Moreover, the record in this case illustrates graphically the impropriety of allowing an appellant to raise for the first time on appeal, as a separate issue, the so-called Riggins issue when he has only challenged previously the alleged excessiveness of his sentence. Prior to the decisions in Kraft and Smith, it was uniformly acknowledged that sentencing errors not raised by specific exception in the court below were waived for purposes of appellate review. Commonwealth v. Collins, 492 Pa. 405, 424 A.2d 1254 (1981); Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Shoemaker, 462 Pa. 342, 341 A.2d 111 (1975); Commonwealth v. Ellison, 293 Pa.Super. 329, 439 A.2d 136 (1981); Commonwealth v. Brown, 288 Pa.Super. 171, 431 A.2d 343 (1981); Commonwealth v. Ruschel, 280 Pa.Super. 187, 421 A.2d 468 (1980); Commonwealth v. Morris, 273 Pa.Super. 477, 417 A.2d 748 (1979), reversed on other grounds, 492 Pa. 565, 424 A.2d 1336 (1981). In Commonwealth v. Ellison, supra, this court explained the need for raising, before the trial court, alleged errors in a post-sentence motion to modify the sentence.

Pa.R.Crim.P. 1410 requires that a motion to modify a sentence be in writing and be filed within ten days after the imposition of sentence. The comment to Rule 1410 states that “[tjhis rule provides a procedure whereby a motion to modify sentence must be raised in the first instance before the sentencing court, thereby giving that court the first opportunity to modify the sentence.” (Emphasis added.) Moreover, Pa.R.Crim.P. 1405(c) requires, inter alia, that the judge at the time of sentencing advise the defendant that he has the right to challenge the propriety of his sentence, and that only claims raised in the lower court may be raised on appeal. Read together, these rules require that challenges to the propriety of a sentence must be raised in the lower court or the claim will be waived on appeal. These rules reflect the princi-pie that the lower court should be given the opportunity to correct its errors and these rules are in accord with the rule that “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302. Finally, numerous cases have held that failure to raise particular issues at the time of sentencing or in a motion to modify sentence results in waiver on appeal. Id. 293 Pa.Super. at 332-333, 439 A.2d at 138 (citations omitted; emphasis added).

Cf. Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983).

In the case before us, appellant did not raise before the trial court the claim that the trial court did not adequately state the reasons underlying the sentence it chose. Moreover, he did not raise it as a separate issue in the statement of questions contained in his appellate brief before us. If as in Commonwealth v. Brown, supra, an appellant is barred from raising the issue for the first time on appeal, an appellant who never raises the issue at all, either in the trial court or on appeal, should likewise be precluded from having that issue reviewed. To raise an issue concerning the adequacy of the statement of reasons for the sentence imposed under a claim of excessiveness is contrary to the well-founded traditional requirement that the specific error allegedly requiring correction be first raised before the trial court. The excessiveness claim pressed both here and in the trial court does not provide adequate notice to either the trial court or the Commonwealth of any claimed deficiency in the trial court’s statement of reasons.

The rationale for the requirement that issues not presented to the trial court are waived was forcefully set forth by Mr. Justice Nix in Commonwealth v. Waters, 477 Pa. 430, 434-435, 384 A.2d 234, 236-237 (1978):

The requirement of specific written motions is intended to enhance the quality of review at both the trial and appellate levels. At the trial level, counsel’s precise statement of issues and grounds relied upon in written forms insures that both the trial court and the Commonwealth will have adequate notice of the legal theories being advanced. Thus the prosecution is better able to respond and the court has the benefit of the issues being clearly defined. Such practice should foster alert and zealous advocacy and encourage reflective and reasoned judgments by the court in the resolution of the questions raised.
The post-verdict review was developed in recognition of the stress and pressures surrounding trial rulings. Its purpose was to provide a more objective setting for review of disputed trial rulings prior to the commencement of appellate review. As we have noted, if a new trial is necessary, it may be granted by the trial court without subjecting both the litigants and the courts to the expense and delay inherent in appellate review. Furthermore, where the party litigants are satisfied that there has been a meaningful review below they are less likely to resort to the appellate process except in those cases where there exists substantial questions of law to be resolved. The decrease in meritless appeals obviously advances the orderly and efficient use of our judicial resources.
Also, at the appellate level, written motions which have been filed and made part of the record provide a precise basis for determining the issues contested at the trial level. Failure to specify in writing the reasons urged in support of motions for a new trial and in arrest of judgment complicates the appellate task of determining whether alleged trial errors have been properly preserved for appellate review.
Where boiler plate variety motions are filed, it is often difficult, if not impossible, to determine with precision the issues actually argued before the court below. The trial court’s opinion may not refer to all questions touched upon in oral argument; the trial court may sua sponte address an issue not presented by the parties; and finally, the court may misperceive the issue actually urged by the party.
In sum, the insistence upon the requirement of specific written post-verdict motions in accordance with Rule 1123(a) enhances the quality of review; encourages professional advocacy; discourages pursuit of frivolous claims; and promotes judicial economy. (Citations, quotations and footnotes omitted.)

These comments are as relevant in the matter under consideration as they were in the context in which they were delivered.

The course of argument and rebuttal which has taken place in this litigation is a prime example of why a specificity requirement is necessary. Appellant’s argument, in support of his claim that the sentence was excessive, was that the trial court erred in failing to give adequate weight to several factors as noted above. Thus, appellant did not focus on or discuss the adequacy of the reasons stated by the trial court on the record. Appellant’s argument was essentially that, as a matter of law, on the record before us the trial court could not have found him to be a proper candidate for incarceration.

In response, the Commonwealth likewise eschewed all discussion of whether or not adequate reasons were placed on the record by the trial court. Rather, all of the Commonwealth’s argument was devoted to a recapitulation of those record facts which showed that the trial court was correct in concluding that appellant was a proper subject for incarceration. The Commonwealth correctly pointed out that appellant stole a large amount of property from a seventy-five year-old woman who had, in effect, reposed a trust in appellant by permitting him inside her home to paint it. The victim was so thoroughly intimidated by this experience that she cannot return to her home. Furthermore, the appellant had a prior record of convictions, one of which was a burglary carried out in the same methodical fashion in which this crime took place. Finally, at the time of the commission of his offense in this case, appellant had not yet completed the five-year probationary term imposed by the court after the earlier burglary conviction. Thus, the Commonwealth did not feel that an argument on the Riggins issue was necessary.

Finally, the trial court’s opinion does not contain a citation to Riggins, let alone any discussion of that issue. The trial court’s opinion is framed in the same fashion as were the arguments of appellant and the Commonwealth. It addresses the limits of its discretion and the correctness of its decision to incarcerate appellant. The court did not address the reasons for exercising its discretion. We should rightfully pass only upon those claims that are actually preserved and presented by the parties. The state of this record convinces us that appellant not only failed to preserve and present a Riggins issue, but also that he never had the slightest intention of ever doing so. Thus, there is no reason for us to raise the issue ourselves, or allow it to be raised at this late date, as a separate and independent ground for relief.

In conclusion, we specifically reject the suggestion of cases such as Commonwealth v. Kraft, supra, and Commonwealth v. Smith, supra, that it is proper to reach a Riggins issue when that issue has not been raised specifically both before the trial court and before this Court. If the defendant fails to raise a Riggins issue specifically at both stages, the issue is waived. Furthermore, if, in the context of an excessive sentence claim, we can determine from the entire record before us, that the sentence imposed was not excessive and there was no abuse of discretion, as we have done in the instant case, the inquiry is at an end. We will not assess the adequacy of the reasons offered by the trial court in support of the sentence imposed, nor will we, in that context, remand for further elaboration by the trial court, even though the reasons, by themselves, may not be sufficiently detailed under Riggins and, if properly challenged, would prove insufficient to support the sentence.

Judgment of sentence affirmed.

WIEAND, J., concurs in the result.

POPOVICH, J., filed a dissenting statement.

POPOVICH, Judge,

dissenting:

Just five years ago, this Court in a unanimous en banc opinion (Spaeth, J., joined by Jacobs, Cercone, Price, Van der Voort, and Hester, JJ.) rejected the position espoused today by a majority of this same Court when it said the following:

“In determining whether the sentencing judge has abused his discretion by imposing a manifestly excessive sentence we must review the judge’s reasons for imposing the sentence. See Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1970); Commonwealth v. Bolyard, 256 Pa.Super. 57, 389 A.2d 598 (1978) (7/12/78); Commonwealth v. Wertz, 252 Pa.Super. 584, 384 A.2d 933 (1978).” Commonwealth v. Valentin, 259 Pa.Super. 496, 500, 393 A.2d 935, 937 (1978). (Emphasis added).

In Valentin, the only issue raised was whether “the sentence was manifestly excessive.” Id., 259 Pa.Superior Ct. at 500, 393 A.2d 936. In fact, this Court specifically noted that “[ajppellant has not asserted that the court’s reasons were improper or inadequate.” Id., 259 Pa.Superior Ct. at 500 n. 3, 393 A.2d at 936-7 n. 3. (Citations omitted).

Five years later, the majority is presented with the same issue and reaches the opposite result. In doing so, the Court en banc overrules Commonwealth v. Valentin, supra, and its progeny without addressing the more basic question of why the rule of law which this Court recently pronounced in Valentin was in error. Because, in this writer’s view, the Superior Court’s decision in Valentin was not an error in the law which was in need of correction, I must dissent.

      . Judge Hoffman did not participate in the consideration or decision of the case.


author: MONTGOMERY, Judge:

text:
    477 A.2d 563
    HARLEYSVILLE MUTUAL INSURANCE CO., Appellant, v. Mary Lou DEMARCO (Seals).
    Superior Court of Pennsylvania.
    Argued Feb. 21, 1984.
    Filed June 22, 1984.

      David Rosenberg, Media, for appellant.
    William R. Solvibile, Philadelphia, for appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

Appellant, Harleysville Mutual Insurance Company, files this appeal from two orders of the lower court which dismissed the Appellant’s petition to vacate an arbitration award. We find no merit in the appeal.

The record shows that on November 14, 1978, Appellee Mary Lou DeMarco (Seals) was injured in an automobile accident caused by an uninsured motorist. At the time of the accident Appellee resided in the home of her brother, John Carpenter, who owned two vehicles which were insured by the Appellant. The insurance policy provided uninsured motorist coverage to the Appellee, as a family member residing with her brother.

After filing a claim under her own policy, the Appellee asserted a claim under her brother’s policy. She filed a demand for arbitration in accordance with the terms of the policy. On May 15, 1981, a majority of a duly appointed panel of arbitrators awarded Appellee thirty thousand dollars ($30,000.00). Appellant then filed a petition to vacate the award, contending that it had no liability because its policy contained an exclusion denying uninsured motorist coverage when a covered party was occupying a vehicle not insured under the policy. The exclusion provided:

“A. We do not provide Uninsured Motorist Coverage for bodily injuries sustained by any person: (1) while occupying, or when struck by, any motor vehicle of any type, owned by you or any family member which is not insured for this coverage under this policy.”

In denying the petition, the lower court held that the arbitration had been conducted pursuant to common law and that its scope of review was therefore limited to the determination of whether a fair hearing had been denied or fraud was present. Appellant subsequently filed a motion for reconsideration alleging that a policy endorsement issued by it operated to bring the arbitration under the Pennsylvania Arbitration Act of 1927, P.L. 381, 5 P.S. § 161 et seq. Upon reconsideration, the lower court again found the arbitration to have been conducted under common law. Because it found that no fraud existed and that a fair hearing had been held, the lower court again concluded that it should not disturb the arbitrators’ award.

On this appeal Appellant again contends that the arbitration was conducted in accordance with the provisions of the Arbitration Act of 1927. Whether the arbitration was common law or statutory is significant, because a common law arbitration award is not reviewable on the basis of an error of law or fact by the arbitrator. The setting aside of such an award is proper only upon a showing of denial of a hearing or fraud, misconduct, corruption or similar irregularity leading to an unjust, inequitable or unconscionable award. On these points, see Runewicz v. Keystone Insurance Company, 476 Pa. 456, 383 A.2d 189 (1978). However, the lower court’s scope of review under the Arbitration Act of 1927 is the same as that upon a petition for judgment not withstanding the verdict of a jury, and thus the court is empowered in such cases to correct the arbitrators’ award for a mistake of law. Young v. United States Fidelity and Guaranty Company, 299 Pa.Super. 237, 445 A.2d 542 (1982).

In the instant case the lower court heard testimony and considered the relevant documents, and also considered briefs submitted by the parties before reaching its finding that the arbitration was conducted at common law. The court concluded, as a factual matter, that the policy endorsement issued by Appellant did not operate to bring the arbitration in issue under the Act of 1927, because there was no evidence that the endorsement was ever delivered to or explained to Appellee’s brother, the insured. The lower court also found that the failure of both parties to follow the procedures of the Arbitration Act of 1927 added further to the conclusion that the parties had been involved in common law arbitration. We note that the Arbitration Act does not apply unless it is expressly or impliedly provided for by the parties and its procedures are followed. Runewicz v. Keystone Insurance Company, supra.

We find no basis for a reversal in the lower court’s fact-finding or in its legal conclusions. It is well-established that the findings of the lower court will not be disturbed on appeal absent a clear abuse of discretion or an error of law. Minteer v. Wolfe, 300 Pa.Super. 234, 446 A.2d 316 (1982). We have carefully reviewed the record and conclude that the lower court did not abuse its discretion by finding that the arbitration had been conducted at common law. We also believe the lower court did not abuse its discretion in finding that the parties received a fair hearing and that there was no fraud or other irregularity to permit the court to disturb the arbitrators’ award.

The orders of the lower court are hereby affirmed.

      . Even if we were to decide that the arbitration was statutory and subject to review for an error of law, the result in this case might well be the same. Exclusionary clauses such as that contained in Appellant’s policy have been held unenforceable because they are repugnant to the remedial purposes of the Uninsured Motorist Act. See State Farm Mutual Automobile Insurance Company v. Williams, 481 Pa. 130, 392 A.2d 281 (1978); Marchese v. Aetna Casualty and Surety Company, 284 Pa.Super. 579, 426 A.2d 646 (1981).


author: CERCONE, Judge:

text:
    477 A.2d 565
    COMMONWEALTH of Pennsylvania v. Lonnie CADOGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 7, 1983.
    Filed June 22, 1984.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgment of sentence imposed following appellant’s conviction in a non-jury trial of theft by receiving stolen property and unauthorized use of an automobile. Appellant contends that the lower court erred in granting the Commonwealth’s petition for extension pursuant to Pa.R.Crim.P. 1100(c). We agree.

The complaint was filed on May 24, 1981. Hence, trial should have commenced no later than November 20, 1981, unless the period of delay beyond that run date was properly extended under Rule 1100(c). Appellant was arraigned on June 16, 1981, and the case was listed for trial on August 10, 1981. On that first trial date the Commonwealth was granted a continuance until September 22, 1981. On the second trial date, September 23, 1981, the case was designated “ready, not reached” because of the length of another trial which had an earlier Rule 1100 run date. Appellant’s case was continued until November 16, 1981. On November 16, however, the arresting officer was ill and the case was continued until January 4, 1982. On November 18, the Commonwealth timely filed a petition to extend pursuant to Rule 1100(c). On December 15, 1981, appellant filed both an answer to the Commonwealth’s petition and a motion to dismiss. There was no hearing held on the petition.

On January 4, 1982, the date set for trial the Honorable Bernard J. Avellino was unavailable because he was being administered the judicial oath of office. Appellant’s case was continued to February 23, 1982, still without a hearing on the petition.

On January 5, the Commonwealth amended its petition to extend alleging Judge Avellino’s unavailability on the preceding day and that the assistant district attorney had requested the case be relisted to the earliest possible date. Also on January 5, appellant filed an application for dismissal under Rule 1100. In addition, on February 1, appellant filed a supplemental motion to dismiss.

On February 23, after hearing stipulated evidence and argument, the trial judge granted the Commonwealth’s petition to begin trial on the same day, February 23 and denied appellant’s motion to dismiss. Appellant’s non-jury trial immediately followed.

In Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349-50 (1976), our Supreme Court enunciated the requirements which must be met before the Commonwealth may be granted an extension:

[T]he trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Moreover, it is axiomatic that:

The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c). Cf. Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Furthermore, in reviewing a hearing court’s ruling that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth and so much evidence, as fairly read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Mitchell, supra.

Commonwealth v. Ehredt, 485 Pa. 191, 194, 401 A.2d 358, 360 (1979).

In the instant case, an examination of the record compels the conclusion that the Commonwealth failed to carry its burden of proof. Specifically, the record is devoid of any evidence that the February 23, 1982 listing was the earliest possible date for trial after the continuance on January 4, 1982. Nor does the Quarter Sessions file contain any indication that February 23, 1982, was the earliest possible date consistent with the court’s business. At the extension hearing there was no evidence presented that the trial was scheduled for the earliest date consistent with the court’s business, nor was there any testimony explaining the causes of the court delay and why the delay could not be avoided. See Commonwealth v. Dixon, 295 Pa.Super. 425, 441 A.2d 1305 (1982); Commonwealth v. Freeman, 280 Pa.Super. 462, 421 A.2d 814 (1980). “'Rule 1100 requires evidence’ and not merely allegations in support of a petition to extend. (Emphasis in original).” Commonwealth v. Freeman, supra, 280 Pa.Super. at 469, 421 A.2d at 817, quoting Commonwealth v. Jackson, 269 Pa.Super. 249, 253, 409 A.2d 873, 875 (1979).

The Commonwealth’s explanation for these deficiencies is that in his supplemental motion to dismiss appellant denied the exercise of due diligence, but did not specifically deny that the case had been relisted for the earliest possible date. Based on this the Commonwealth argues that it had no notice of appellant’s desire to litigate this particular issue and, therefore, had no witnesses available to testify on the issue. In short, the Commonwealth takes the position that it was unaware that this was an issue in the case until appellant raised it at the extension hearing. This argument is untenable. As previously noted, the burden is upon the Commonwealth — not the defendant — to establish that the requirements of Rule 1100(c) have been met. Commonwealth v. Ehredt, supra. The various pleadings filed by appellant indisputably establish that he continuously challenged the Commonwealth’s petition for extension. To hold under these circumstances that appellant waived his right to have the basic requisites for an extension satisfied would be tanamount to sanctioning the very type of gamesmanship that the Commonwealth unjustifiably charges appellant with.

In sum, the record discloses that none of the continuances in this case were attributable to appellant. What the record does not show is that the Commonwealth met the conditions set forth in Commonwealth v. Mayfield, supra. Accordingly, the Commonwealth’s petition for extension was improperly granted.

Judgment of sentence vacated and appellant discharged.

      . Because of our disposition of the case, we need not address the other issues raised by appellant.

      . At the hearing on the Commonwealth's petition for extension, no evidence was presented to justify this continuance. Indeed, the petition to extend does not even indicate that the case was listed for trial on August 10, 1981. The Quarter Sessions file reflects that the continuance was granted because the arresting officer was ill.