text:
    470 A.2d 1020
    Commonwealth v. Porter, Appellant.
    Petition for Allowance of Appeal Denied April 26, 1984.
    Submitted September 9, 1983.
    Irene H. Cotton, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Affirmed in part and remanded for an evidentiary hearing on counsel’s effectiveness.

Jurisdiction is not retained.


source: Caselaw Access Project

license: Public Domain

text:
    470 A.2d 1021
    Commonwealth v. Posey, Appellant.
    Submitted March 23, 1983.
    Judith A. Calkin, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CIRILLO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1021
    Commonwealth v. Ruiz, Appellant.
    Submitted November 15, 1983.
    James O’Brien, Assistant Public Defender, for appellant; Ernest D. Preate, Jr., District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   The judgment of sentence is affirmed.


text:
    472 A.2d 229
    Commonwealth v. Schroth, Appellant.
    Reargument Denied March 14, 1984.
    Petition for Allowance of Appeal Denied August 13, 1984.

      Submitted November 7, 1983.
    Spero Thomas Lappas, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    470 A.2d 1021
    Commonwealth v. Taylor, Appellant.
    Submitted October 24, 1983.
    James S. Bruno, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Appeal quashed.


text:
    470 A.2d 1021
    Commonwealth v. Vasquez, Appellant.
    Submitted October 21, 1983.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1022
    Lockard v. Lockard, Appellant.
    Submitted May 19, 1983.
    Daniel M. Preminger, for appellant; Martin P. Mullen, for appellee.
    Before HESTER, BROSKY and BECK, JJ.
   Order affirmed.

BECK, J., did not participate in the consideration or decision of this case.


text:
    470 A.2d 1022
    Porr et al. v. Vinskie et al. Appeal of Fred W. Porr, Administrator of the Estate of Pamela Porr, Fred W. Porr, individually, Gladys Porr and Pamela Porr.
    Petition for Allowance of Appeal Granted July 24, 1984.

      Argued January 27, 1983.
    P. Alexander, for appellants; Christian S. Erb, Jr., for appellees.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   Order affirmed.

WICKERSHAM, J., did not participate in the consideration or decision of this case.


text:
    470 A.2d 1022
    Schaffer, Appellant, v. Mack Trucks, Inc.
    Petition for Allowance of Appeal Denied May 2, 1984.
    Argued October 11, 1983.
    Donald H. Lipson, for appellant; Wilbur C. Creveling, Jr., for appellee.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   Order affirmed.


text:
    January 20, 1984.
    470 A.2d 1023
    Coleman, Appellant, v. Fisher.

      Submitted October 14, 1983.
    John Patrick Lydon, for appellant; Louis Anstandig, for appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The judgment of the learned Allegheny County Common Pleas Court Judge Francis A. Barry is affirmed.


text:
    470 A.2d 1023
    Commonwealth v. Alvarado, Appellant.
    Petition for Allowance of Appeal Denied Oct. 25, 1984.
    Submitted March 31, 1982.
    Moira Dunworth, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   The order of the learned Philadelphia County Common Pleas Court Judge Edward J. Blake is affirmed.


text:
    470 A.2d 1023
    Commonwealth v. Ashford, Jr., Appellant.
    Petition for Allowance of Appeal Denied June 12, 1984.
    Submitted October 11, 1983.
    Penn Bradford Glazier, for appellant; Joseph C. Madenspacher, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1024
    Commonwealth v. Beasom, Appellant.
    Petition for Allowance of Appeal Denied May 14, 1984.
    Submitted November 8, 1983.
    Frederick B. Gieg, Jr., for appellant; Frank Joseph Hartye, First Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Order affirmed.


text:
    470 A.2d 1024
    Commonwealth v. Berkheimer, Appellant.
    Submitted October 21, 1983.
    Arthur Lucian Zulick, Assistant Public Defender, for appellant; Elmer D. Christine, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1024
    Commonwealth v. Berthesi, Appellant.
    Petition for Allowance of Appeal Denied June 20, 1984.
    Argued October 20, 1983.
    Joseph T. Kelley, Jr. for appellant; Mark A. Kompa, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   Affirmed.


text:
    470 A.2d 1024
    Commonwealth v. Brewer, Appellant.
    Submitted November 7, 1983.
    Judith A. Calkin, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    470 A.2d 1025
    Commonwealth v. Calhoun, Appellant.
    Petition for Allowance of Appeal Denied Sept. 24, 1984.
    Submitted November 8, 1983.
    John A. Halley, for appellant; Dara A. DeCourcy, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Order affirmed.


text:
    470 A.2d 1025
    Commonwealth v. Cannon, Appellant.
    Submitted July 27, 1983.
    H. Larner, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.

      Before ROWLEY, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1025
    Commonwealth v. Carter a/k/a Hall, Appellant.
    Submitted October 7, 1983.
    Fred A. Faber, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Order affirmed.


text:
    470 A.2d 1025
    Commonwealth v. Clark, Appellant.
    Argued October 26, 1983.
    Raymond Harry Bogaty, Assistant Public Defender, for appellant; Charles S. Hersh, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence is affirmed.


text:
    470 A.2d 1026
    Commonwealth v. Clifford, Appellant.
    Submitted November 7, 1983.
    Judith A. Calkin, for appellant; Katherene E. Holtzinger, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   The order of the Court is affirmed in part and reversed in part, and the matter is remanded for an evidentiary hearing.


text:
    470 A.2d 1026
    Commonwealth v. Conaway, Appellant.
    Submitted November 7, 1983.
    Robert Bruce Evanick, Public Defender, for appellant; Floyd Paul Jones, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   The order of the learned York County Common Pleas Court Judge James E. Buckingham is affirmed.


text:
    470 A.2d 1026
    Commonwealth v. Corish, Appellant.
    Submitted November 7, 1983.
    Jeffery M. Cook, Assistant Public Defender, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    472 A.2d 229
    Commonwealth v. Cromwell, Appellant.
    Reargument Denied March 14, 1984.
    Petition for Allowance of Appeal Denied Oct. 1, 1984.
    Submitted March 9, 1983.
    Alan Ellis, for appellant; John F. Nelson, III, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    470 A.2d 1027
    Commonwealth v. Davis, Appellant.
    Argued September 15, 1983.
    Marc Alan Krefetz, for appellant; Ann Lebowitz, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1027
    Commonwealth v. Dobbs, Appellant.
    Petition for Allowance of Appeal Denied May 1, 1984.
    Submitted October 3, 1983.
    Douglas M. Johnson, Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   The judgment of sentence of the trial court is affirmed.


text:
    470 A.2d 1027
    Commonwealth v. Farmer, Appellant.
    Submitted September 9, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1028
    Commonwealth v. Galeotti, Appellant.
    Petition for Allowance of Appeal Denied June 22, 1984.
    Submitted November 8, 1983.
    James K. Angelí, for appellant; Jeffrey E. Leber, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1028
    Commonwealth v. Grumbine, Jr., Appellant.
    Submitted November 7, 1983.
    Robert Henry Grumbine, appellant, in propria persona; Anthony Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    470 A.2d 1028
    Commonwealth v. Hartley, Appellant.
    Submitted November 15, 1983.
    Lewis J. Bott, Assistant Public Defender, for appellant; Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1028
    Commonwealth v. Helterbran, Appellant.
    Petition for Allowance of Appeal Denied May 29, 1984.

      Argued November 17, 1983.
    Michael A. McGinley, for appellant; Adam Bavolack, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1029
    Commonwealth v. Henry, Appellant.
    Submitted October 24, 1983.
    Douglas M. Johnson, Public Defender, for. appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 230
    Commonwealth v. Hill, Appellant.
    Reargument Denied March 14, 1984.
    Petition for Allowance of Appeal Denied Oct. 1, 1984.

      Submitted March 9, 1983.
    Robert C. Fogelnest, for appellant; John F. Nelson, III, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    470 A.2d 1029
    Commonwealth v. Hillman, Appellant.
    Submitted June 21, 1983.
    Charles P. Mirarchi, III, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence vacated and case remanded for the filing of post-verdict motions nunc pro tunc.

JOHNSON, J., filed a memorandum dissenting statement.


text:
    470 A.2d 1029
    Commonwealth v. Hockenberry, Appellant.
    Submitted November 7, 1983.
    Steven V. Manbeck, for appellant; Michael Johnston, District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Judgment of sentence vacated and remanded for resentencing. Jurisdiction is relinquished.


text:
    470 A.2d 1030
    Commonwealth v. Jackson, Appellant.
    Submitted October 14, 1983.
    Paul Bogdon, for appellant; Dara A. DeCourcy, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The order of the learned Allegheny County Common Pleas Court Judge Joseph H. Ridge is affirmed.


text:
    470 A.2d 1030
    Commonwealth v. Johnson, Appellant.
    Petition for Allowance of Appeal Denied April 30, 1984.
    Submitted October 3, 1983.
    Francis X. Grabowski, for appellant; C. Theodore Fritsch, Jr., Assistant District Attorney, for Commonwealth, appellee. '
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   The judgment of sentence of the trial court is affirmed.


text:
    470 A.2d 1030
    Commonwealth v. Jones, Appellant.
    Submitted November 7, 1983.
    Douglas W. Herman, Assistant Public Defender, for appellant; John R. Walker, District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1031
    Commonwealth v. Kale, Sr., Appellant.
    Submitted November 7, 1983.
    Bradford H. Charles, for appellant; John Edward Feather, Jr., Assistant District Attorney, for Commonwealth, appellee.

      Before McEWEN, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1031
    Commonwealth v. Mower, Appellant.
    Submitted November 7, 1983.
    Clarence A. Mower, appellant, in propria persona; John Edward Feather, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Appeal quashed, without prejudice to Appellant’s right to petition the trial court for leave to file appropriate appeals nunc pro tunc, in compliance with Pa.R.Crim.P. 67.

POPOVICH, J., filed a memorandum concurring and dissenting statement.


text:
    470 A.2d 1031
    Commonwealth v. Murphy, Appellant.
    Petition for Allowance of Appeal Denied April 24, 1984.
    Submitted October 14, 1983.
    John H. Corbett, Jr., Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1031
    Commonwealth v. Perry, Appellant.
    Petition for Allowance of Appeal Denied May 24, 1984.
    Submitted October 21, 1983.
    Catherine M. Harper, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1032
    Commonwealth v. Prentice, Appellant.
    Submitted October 7, 1983.
    Douglas M. Johnson, Public Defender, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1032
    Commonwealth v. Reith, Appellant.
    Submitted October 14, 1983.
    Charles E. Weston, for appellant; Robert F. Hawk, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The order of the learned Butler County Common Pleas Court President Judge John C. Dillon is affirmed.


text:
    470 A.2d 1032
    Commonwealth v. Richardson, Appellant.
    Submitted November 7, 1983.
    Susan Claire DeYoung, Assistant Public Defender, for appellant; Katherene E. Holtzinger, Deputy District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    470 A.2d 1033
    Commonwealth v. Robinson, Appellant.
    Petition for Allowance of Appeal Denied June 7, 1984.
    Submitted June 23, 1983.
    Jacqueline M. Roberts, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   The order denying P.C.H.A. relief is affirmed.


text:
    470 A.2d 1033
    Commonwealth v. Robinson, Sr., Appellant.
    Submitted November 7, 1983.
    Barbara Lee Krier, Assistant Public Defender, for appellant; Sheryl Ann Dorney, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1033
    Commonwealth v. Rosenthal a/k/a Vance, Appellant.
    Submitted November 8, 1983.
    Shelley Stark, Assistant Public Defender, for appellant; Dara A. DeCourcy, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1033
    Commonwealth v. Schram, Appellant.
    Petition for Allowance of Appeal, Denied July 16, 1984.
    Submitted November 8, 1983.
    John H. Corbett, Jr., Public Defender, for appellant; Dara A. DeCourcy, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1034
    Commonwealth v. Spells, Appellant.
    Submitted November 7, 1983.
    Scott Lee Kelley, for appellant; Sheryl Ann Dorney, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    470 A.2d 1034
    Commonwealth v. Stanley, Appellant.
    Submitted October 24, 1983.
    Louis Sherman, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1034
    Commonwealth v. Torres, Appellant.

      Submitted October 7, 1983.
    Robert A. Longo, for appellant; Joseph C. Madenspacher, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Order affirmed.


text:
    470 A.2d 1034
    Commonwealth v. Wallace, Appellant.
    Argued September 20, 1983.
    Daniel M. Preminger, for appellant; Mariana C. Sorensen, Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    472 A.2d 230
    Commonwealth v. Cromwell, Appellant Commonwealth v. Winter, Appellant Commonwealth v. Hill, Appellant
    (at No. 28).
    (at No. 30).
    (at No. 141).
    Reargument Denied March 14, 1984.
    Petition for Allowance of Appeal Denied Oct. 1, 1984.

      Submitted March 9, 1983.
    Robert C. Fogelnest, for Cromwell appellant (at No. 28) and Winter, appellant (at No. 30); Daniel F. Clark, for Hill, appellant (at No. 141); Michael Johnston, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   Orders affirmed.


text:
    470 A.2d 1035
    Commonwealth v. Wormsley, Appellant.
    Submitted October 14, 1983.
    Paul R. Gettleman, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Order affirmed.


text:
    470 A.2d 1035
    Commonwealth v. Zink, Appellant.
    Submitted November 7, 1983.
    Barbara Lee Krier, Assistant Public Defender, for appellant; Andrea S. Eveler, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   Judgment of sentence is affirmed.


text:
    470 A.2d 1035
    Community Assn. Services v. Groff, Appellant.
    Petition for Allowance of Appeal Denied June 12, 1984.
    Argued November 15, 1983.
    Richard D. Groff, appellant, in propria persona; Brian J. McCollough, for appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   Order affirmed.


text:
    470 A.2d 1035
    Edinger, Appellants, v. State Farm Ins. Co.
    Argued November 17, 1983.
    April L. Cordts, for appellant; Michael P. Shay, for appellee.

      Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Affirmed.


text:
    470 A.2d 1036
    Greenaway v. Greenaway, Appellant.
    Submitted November 7, 1983.
    John D. Flinchbaugh, for appellant; Mark David Frankel, for appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   The order of the learned York County Common Pleas Court Judge Emanuel A. Cassimatis is affirmed.


text:
    470 A.2d 1036
    Kaye v. Abcon, Inc., Appellant.
    Petition for Allowance of Appeal Denied May 8, 1984.
    Argued October 18, 1983.
    Richard P. McBride, for appellant; Russell D. Henkin, for appellee.
    Before McEWEN, BECK and HOFFMAN, JJ.
   Affirmed.


text:
    470 A.2d 1036
    Martin, Appellant, v. Itoh & Co.
    Argued November 21, 1983.
    James L. Martin, appellant, in propria persona; Frank J. Goldenberg, for appellees.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   Order affirmed.


text:
    472 A.2d 231
    McDaniel, Appellant v. Chrysler Corp. Solomond, Appellant v. Chrysler Corp.
    (at No. 252),
    (at No. 253),
    Reargument Denied March 19, 1984.
    Petition for Allowance of Appeal Granted July 16, 1984.
    Argued November 29, 1983.
    Mark B. Aronson, for appellants; Frederick N. Egler, Jr., for appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   Order affirmed.


text:
    470 A.2d 1036
    Shotsinger v. Shotsinger, Appellant.
    Argued September 27, 1983.
    Leonard A. Costa, Jr., for appellant; R. Downie, Jr., for appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   Appeal quashed.


text:
    471 A.2d 562
    Skomski v. Simkovich, etc., Appellants.
    Reargument Denied March 6, 1984.
    Argued October 27, 1983.
    Damon John Faldowski, for appellants;. Charles Skomski, appellee, in propria persona.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Order of October 5, 1982 affirmed.


text:
    470 A.2d 1037
    Stopyra, Appellant, v. Prudential.

      Argued October 19, 1983.
    Allen L. Feingold, for appellant; Pamela Gagne, for appellee.
    Before McEWEN, BECK and MONTEMURO, JJ.
   Case remanded. Jurisdiction is relinquished.


text:
    470 A.2d 1037
    Westcott v. Moore, Appellants.
    Petition for Allowance of Appeal Denied May 31, 1984.
    Submitted October 3, 1983.
    Edward Blumstein, for appellants; Joseph L. London, for appellee; Jill A. Douthett, Assistant City Solicitor, for participating party.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Appeals quashed.


text:
    470 A.2d 1037
    Woodyard, Appellant, v. Woodyard.

      Submitted November 7, 1983.
    J. Christian Ness, for appellant; Peter D. Solymos, for appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   The order of the learned York County Common Pleas Court Judge John F. Rauhauser, Jr. is affirmed.


text:
    January 27, 1984.
    470 A.2d 1038
    Barto v. Barto, Appellant.
    Argued October 25, 1983.
    Henry Miller, III, for appellant; Marjorie Fox, for appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Appeal quashed.


text:
    470 A.2d 1038
    Commonwealth v. Africa, Appellant.
    Submitted June 22, 1983.
    James J. Phelan, Jr., for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.

      Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1038
    Commonwealth v. Alston, Appellant.
    Submitted October 7, 1983.
    Thomas I. Puleo, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, MONTGOMERY and CERCONE, JJ.
   Order affirmed.


text:
    470 A.2d 1038
    Commonwealth v. Brown, Appellant.
    Submitted June 22, 1983.
    Barnaby Wittels, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.

BROSKY, J., filed a memorandum concurring statement.


text:
    470 A.2d 1039
    Commonwealth v. Brudnicki, Appellant.
    Submitted October 24, 1983.
    Robert T. Gownley, Jr., Assistant Public Defender, for appellant; Ernest D. Preate, Jr., District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Affirmed.


text:
    470 A.2d 1039
    Commonwealth v. Clark, Appellant.
    Submitted October 4, 1983.
    George Henry Newman, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   Appeal quashed.

WIEAND, J., filed a memorandum dissenting statement.


text:
    470 A.2d 1039
    Commonwealth v. Davenport, Appellant.
    Submitted October 24, 1983.
    Douglas M. Johnson, Public Defender, for appellant; Ronald Thomas Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Order vacated and case remanded for appointment of counsel. Jurisdiction is not retained.


text:
    472 A.2d 231
    Commonwealth v. Dorian, Appellant.
    Reargument Denied Feb. 6, 1984.
    Submitted November 8, 1983.
    John A. Halley, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1040
    Commonwealth v. Foster, Appellant.
    Submitted June 21, 1983.
    Jeremy C. Gelb, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.

BROSKY, J., filed a memorandum concurring opinion.


text:
    470 A.2d 1040
    Commonwealth v. Goldy, Appellant.
    Petition for Allowance of Appeal Denied June 5, 1984.
    Submitted October 3, 1983.
    Douglas M. Johnson, Public Defender, for appellant; Ronald Thomas Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1040
    Commonwealth v. Green, Appellant.
    Petition for Allowance of Appeal Denied June 13, 1984.
    Submitted October 24, 1983.
    Lee Merdith Herman, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   Affirmed.


text:
    470 A.2d 1041
    Commonwealth v. Hollingsworth, Appellant.
    Argued September 27, 1983.
    Dennis Y. Williams, for appellant; Michael R. Cauley, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   The judgment of sentence of the learned Erie County Common Pleas Court Judge Lindley R. McClelland is affirmed.


text:
    470 A.2d 1041
    Commonwealth v. Jenkins, Appellant.
    Submitted September 9, 1983.
    James Robert Protasio, Assistant Public Defender, for appellant; Kenneth D. Brown, District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1041
    Commonwealth v. Lewis, Appellant.
    Petition for Allowance of Appeal Denied May 21, 1984.
    Submitted June 23, 1983.
    Paul Perry de Marco, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1041
    Commonwealth v. Mack, Appellant.
    Petition for Allowance of Appeal Denied July 20, 1984.
    Submitted June 9, 1982.
    Dennis Brogan, Assistant Public Defender, for appellant; Frank Capaldo, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Judgment of sentence affirmed:


text:
    470 A.2d 1042
    Commonwealth v. Martin, Appellant.
    Petition for Allowance of Appeal Denied May 11, 1984.
    Submitted September 9, 1983.
    Joseph A. Canuso, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CAVANAUGH and HOFFMAN, JJ.
   Order affirmed.


text:
    470 A.2d 1042
    Commonwealth v. Moore, Appellant.
    Submitted October 11, 1983.
    M. Emmons Stivers, for appellant; Helen T. Kane, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1042
    Commonwealth v. Morris, Appellant.
    Petition for Allowance of Appeal Denied July 20, 1984.
    Submitted October 3, 1983.
    George Henry Newman, for appellant (at No. 305); Jeffrey M. Voluck, for appellant (at No. 366); Leslie Anne Sudock, Assistant District Attorney and Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.

      Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Judgments of sentence affirmed.

SPAETH, President Judge, concurred in the result.


text:
    470 A.2d 1043
    Commonwealth v. Newkirk, Appellant.
    Submitted November 4, 1983.
    Anne L. Wall, Assistant Public Defender, for appellant; William P. Carlucci, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1043
    Commonwealth v. Roman, Appellant.
    Submitted December 14, 1983.
    Douglas M. Johnson, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.

      Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1043
    Commonwealth v. Shannon, Appellant.
    Submitted October 3, 1983.
    Karen Deanna Williams, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and HESTER and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1043
    Commonwealth v. Thomas, Appellant.
    Petition for Allowance of Appeal Denied Aug. 1, 1984.
    Submitted October 21, 1983.
    John S. DiGiorgio, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.

      Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   The judgment of sentence for robbery is vacated. The judgments of sentence for murder in the second degree and criminal conspiracy are affirmed.


text:
    470 A.2d 1044
    Commonwealth v. Toothaker, Appellant.
    Petition for Allowance of Appeal Denied June 28, 1984.
    Argued December 14, 1983.
    Gary R. Eqoville, Assistant Public Defender, for appellant; Joseph J. Hylan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    470 A.2d 1044
    Commonwealth v. Walters, Appellant.
    Petition for Allowance of Appeal Denied June 5, 1984.

      Submitted June 21, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Order affirmed.


text:
    470 A.2d 1044
    Commonwealth v. Williams, Appellant.
    Submitted October 21, 1983.
    Donald C. Cofsky, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   Order affirmed.


text:
    472 A.2d 231
    Commonwealth ex rel. Sechler v. Sechler, Appellant.
    Reargument Denied April 3, 1984.
    Argued October 26, 1983.
    David Jeffrey Flower, for appellant; Jon Albert Barkman, for appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Order affirmed.


text:
    470 A.2d 1045
    Dougherty v. Ricciardi, Appellant.
    Argued December 7, 1983.
    Lawrence J. Avallone, for appellant; Joseph T. Quinn, for appellees.
    Before CAVANAUGH, BROSKY and POPOVICH, JJ.
   Order affirmed.


text:
    470 A.2d 1045
    Eter, Appellant, v. College Misericordia.
    Submitted November 4, 1983.
    Patrick J. Flannery, for appellant; Donald H. Brobst, for appellees.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   Order affirmed.


text:
    470 A.2d 1045
    Huha v. Manganell, Jr., Appellant.
    Submitted December 13, 1983.
    Frank Manganell, Jr., appellant, in propria persona; Peter John Fagan, for appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   Order affirmed.


text:
    470 A.2d 1045
    In the Estate of Pohutsky. Appeal of Bernard Pohutsky, Executor of The Estate of Elizabeth Pohutsky.
    Argued September 7, 1983.
    Thomas E. Mack, for appellant; J. Earl Langan, for participating party.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   The decree of the lower court is affirmed.


text:
    470 A.2d 1046
    In the Interest of Joseph R. Spade.
    Argued October 27, 1983.
    Carmela R.M. Presogna, Assistant Public Defender, for appellant; Dana S. Jones, Assistant District Attorney, for participating party-
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Appeal dismissed.


text:
    470 A.2d 1046
    Krippendorff, Appellant, v. Krippendorff.
    Argued September 20, 1983.
    Charles C. Shainberg, for appellant; Mary Cushing Doherty, for appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   Order affirmed.


text:
    470 A.2d 1046
    Maurer, et ux. v. Oshnock, et al., Appellants.

      Argued October 27, 1983.
    Albert C. Odermatt, Jr., for appellants; Kenneth B. Burkley, for appellees.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Appeal quashed.


text:
    470 A.2d 1046
    Rhodes, et al. v. Travelers Insurance Co., Appellant.
    Submitted October 14, 1983.
    Paul T. Grater, for appellant; Frank C. Lewis, for appellees.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Affirmed in part, reversed in part and remanded. Jurisdiction is relinquished.


text:
    470 A.2d 1047
    Schafer, et al. v. Schafer, Appellant.
    Petition for Allowance of Appeal Denied May 29, 1984.
    Submitted October 14, 1983.
    James Gregory Moore, for appellant; Daniel J. Kuhn, for appellee; and John P. Eppinger, for participating parties.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The order of the lower court dismissing appellant’s exceptions and confirming the sale is affirmed.


text:
    470 A.2d 1047
    Stoops, Appellant, v. Stoops.
    Submitted October 26, 1983.
    Richard W. Roeder, for appellant; Robert J. Felton, for appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   Appeal quashed.


text:
    470 A.2d 1047
    Tulloch v. Thorpe, Appellants. Thorpe, Appellants, v. Birmingham Township. Thorpe v. Birmingham Township, Appellant. Tulloch, Appellants, v. Thorpe.
    Argued October 19, 1983.
    Fred Beecher Fromhold, for appellants (at Nos. 667 and 668) and appellees (at Nos. 669 and 858); Francis T. Sbandi, for appellant (at No. 669) and appellee (at No. 668); Fronefield Crawford, Jr., for appellants (at No. 858) and appellees (at No. 667).
    Before McEWEN, BECK and MONTEMURO, JJ.
   The appeals at Nos. 858 and 667 Philadelphia 1982 are quashed. The orders are affirmed in appeals at Nos. 668 and 669 Philadelphia 1982.


author: McEWEN, Judge: BECK, Judge,

text:
    471 A.2d 93
    COMMONWEALTH of Pennsylvania v. Tony BOSSCHE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1983.
    Filed Jan. 20, 1984.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   McEWEN, Judge:

Appellant entered counseled pleas of guilty to the offenses of theft by deception and bad checks. In this direct appeal, appellant argues that the sentence imposed by the sentencing court in response to a petition for modification of sentence filed by the Commonwealth violated principles of double jeopardy. We do not agree and, accordingly, affirm.

Appellant entered pleas of guilty to the third degree felony of theft by deception, the second degree misdemean- or of bad checks and the summary offense of bad checks. After appellant waived a pre-sentence investigation, the distinguished Judge Richard L. Nygaard imposed a sentence of seven years probation upon the conviction for theft by deception, while concurrent terms of two years probation and ninety days probation were imposed on the convictions for bad checks. Appellant was also sentenced to pay restitution to the victims of his crimes.

During the sentencing hearing, the assistant district attorney, defense counsel and appellant all indicated to the court that this was the first criminal offense ever committed by appellant. The sentencing judge stated as he imposed sentence: “And this is your first offense as you stand before the Court. I believe that under the circumstances some leniency is in order____” [N.T. 10] A few hours after the conclusion of the sentencing proceedings, the Commonwealth filed a petition for modification of sentence pursuant to Pa.R.Crim.P. 1410 alleging that the sentence imposed upon appellant had been based upon erroneous information. The hearing on the petition for modification of sentence was held one day later and the Commonwealth introduced evidence which established that appellant had, during the few months prior to the sentencing hearing in this court: (1) entered a plea of guilty before a district justice to a charge of bad checks for which he was sen-fenced to a term of imprisonment of thirty days; (2) entered pleas of guilty before a district justice to the offenses of bad checks and theft by deception for which he was sentenced to a term of imprisonment of ninety days; and (3) entered a plea of guilty before a district justice to a charge of bad checks for which he was sentenced to a term of thirty days imprisonment. The Commonwealth also introduced evidence that a detainer had been filed against appellant by the State of Ohio on a charge of possession of a controlled substance. In response to this information, the accuracy of which was conceded by appellant, the sentencing judge granted the petition for modification by the Commonwealth as follows:

Accordingly, I am granting the Commonwealth’s motion, petition to modify the sentence, and I am now modifying it---- With respect to count two, which is a felony of the third degree, one to two years at Mercer Correctional. With respect to count five, I believe the sentence remains the same, five years probation.[] With respect to count seven, I believe the sentence remains the same, ninety days, all to be served concurrently. Thus, I believe the only modification is as to count two, and it’s changed from seven years total probation and reduced from [sic] one to two and to be served as time____ The only thing modified is count two. [N.T. 13-14] (footnote supplied).

Appellant did not file a petition for modification of this sentence but, rather, filed a notice of appeal to this court. Rule 1410 of the Rules of Criminal Procedure requires that the aggrieved party “file a motion to modify sentence with the sentencing court before obtaining appellate review of a sentence.” Commonwealth v. Anderson, 304 Pa.Super. 476, 478, 450 A.2d 1011, 1012 (1982). The failure to file a petition for modification of sentence results in a waiver on appeal of all issues regarding the propriety of the sentence imposed. Commonwealth v. Lightly, 307 Pa.Super. 239, 453 A.2d 14 (1982); Commonwealth v. Anderson, supra 304 Pa.Super. at 481, 450 A.2d at 1014; Appellant argues that his sentence, as modified, violated the principles of double jeopardy and was, therefore, illegal. See Commonwealth v. Roach, 307 Pa.Super. 506, 508, 453 A.2d 1001, 1003 (1982). We need not, therefore, determine whether appellant in the instant case was required to file a petition for modification of sentence in response to the modified sentence imposed upon him in order to preserve issues for appellate review, since the illegality of a sentence cannot be waived by a failure to properly raise the issue in the trial court. Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Mitchell, 319 Pa. Super. 170, 465 A.2d 1284 (1983); Commonwealth v. Fortune, 305 Pa.Super. 441, 451 A.2d 729 (1982); Commonwealth v. Kerr, 298 Pa.Super. 257, 258, 259, 444 A.2d 758, 759 (1982).

An en banc panel of this court in Commonwealth v. Anderson, supra, held that the principles of double jeopardy are not violated by the right of the Commonwealth to petition, pursuant to Pa.R.Crim.P. 1410, for an increased sentence. “The ‘Double Jeopardy clause does not require that a sentence be given a degree of finality that prevents [review and] later increase.’ ” Id. 304 Pa.Super. at 481, 450 A.2d at 1014 quoting United States v. DiFrancesco, 449 U.S. 117, 137, 101 S.Ct. 426, 437, 66 L.Ed.2d 328 (1980). As succinctly summarized by our venerable colleague Judge J. Sydney Hoffman, the Supreme Court in United States v. DiFrancesco, supra, held that the double jeopardy clause did not bar a prosecutorial appeal of an allegedly lenient sentence when the right to such an appeal had been afforded by statute because:

(1) a sentence lacks “such finality ... as would prevent a legislative body from authorizing its appeal by the prose-ration,” id. at 135, 101 S.Ct. at 436, 66 L.Ed.2d at 345; (2) it also lacks “the qualities of constitutional finality that attend an acquittal,” id. at 135, 101 S.Ct. at 436, 66 L.Ed.2d at 345; (3) the “double jeopardy considerations” —unwarranted exposure of the defendant to harassment, “embarrassment, expense, anxiety and insecurity,” of repeated prosecutions and the threat of being “found guilty even though innocent” — “have no significant application to the prosecution’s statutorily granted right to review a sentence,” id. at 136, 101 S.Ct. at 437, 66 L.Ed.2d at 346; and (4) because the defendant has no “right to know at any specific moment in time what the exact limit of his punishment will be” his “legitimate expectations are not defeated if his sentence is increased on appeal,” id. at 136, 101 S.Ct. at 437, 66 L.Ed.2d at 346. Moreover, the prohibition against multiple punishment, see Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874), is inapplicable when the sentencing guideline is explicit and any sentence imposed thereunder is specifically subject to prosecutorial appeal. Id. at 138, 101 S.Ct. at 438, 66 L.Ed.2d at 346.

Commonwealth v. Love, 295 Pa.Super. 276, 284-285, 441 A.2d 1230, 1234 (1982) (Hoffman, J., concurring).

Appellant was sentenced pursuant to the provisions of the Sentencing Code, Act of December 30, 1974, P.L. 1052, No. 345, § 1, 42 Pa.C.S. § 9701 et seq. Provision is made in the Sentencing Code for a prosecutorial appeal of an illegal or inappropriate sentence. 42 Pa.C.S. § 9781(a), (b). Therefore, the rationale of Commonwealth v. Anderson, supra is applicable to the sentence here reviewed. See also Commonwealth v. Hunter, 321 Pa.Super. 333, 468 A.2d 505 (1983).

Moreover, by affirmatively misrepresenting to the sentencing court that he had never previously committed a criminal offense, appellant caused the sentencing court to rely upon erroneous information in determining the appropriate sentence under the Sentencing Code. See 42 Pa.C.S. § 9721. This erroneous information prompted the sentencing court to waive a pre-sentence investigation report and to impose a sentence of probation rather than a sentence of confinement upon appellant. However, this sentence was procured by appellant by such fraud as would make a complete nullity of the sentencing proceedings. Appellant did not merely fail to correct an erroneous assumption on the part of the sentencing court regarding his prior conduct but, rather, appellant argued that a sentence of probation was appropriate based upon his lack of prior criminal conduct. See and compare Commonwealth v. Coleman, 271 Pa.Super. 581, 584-586, 414 A.2d 635, 637-638 (1979). Appellant’s initial sentence which was procured as. a result of a fraud upon the court was, therefore, a nullity. The order vacating this sentence and imposing a sentence based upon accurate information regarding the prior criminal conduct on the part of appellant did not, therefore, violate principles of double jeopardy.

Since we find the modification of the sentence imposed upon appellant did not constitute a violation of the principles of double jeopardy, we hereby affirm the judgment of sentence.

BECK, J., filed a concurring statement.

BECK, Judge,

concurring:

I join in the excellent opinion of the majority and write separately solely to place the majority’s characterization of the conduct of appellant and his counsel as a “fraud upon the court” in its proper context. I emphasize that it is not necessary to this Court’s holding that the misstatements concerning appellant’s record be intentional, and the issue of whether or not they were intentional was not before us on this appeal.

      . 18 Pa.C.S. § 3922; 18 Pa.C.S. § 3903(a).

      . 18 Pa.C.S. § 4105.

      . The sentencing judge repeatedly noted that he intended to modify only the sentence imposed on count two. The original recorded judgment of sentence as well as the recorded modified judgment of sentence indicate that the sentence imposed on count five was a term of probation of two years. It would appear the reference by the court to a five year term on this count was simply an inadvertent oversight.

      . Overruled on other grounds by Commonwealth v. Anderson, supra.


author: CIRILLO, Judge:

text:
    471 A.2d 96
    COMMONWEALTH of Pennsylvania v. Eugene LUMPKINS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 8, 1983.
    Filed Jan. 20, 1984.
    Petition for Allowance of Appeal Denied May 25, 1984.

      John A. Halley, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   CIRILLO, Judge:

The appellant, Eugene Lumpkins, Jr., was charged with three counts of simple assault, two counts of aggravated assault, two counts of violating the Uniform Firearms Act, and one count each of terroristic threats, unlawful restraint, and resisting arrest or other law enforcement. He was tried on February 23, 1982 before the Honorable Robert E. Dauer and a jury. The following day, the jury returned a verdict of guilty on all counts. Motions for a new trial and in arrest of judgment were subsequently filed and denied and on April 22, 1982 the appellant was sentenced to a series of prison terms totalling 7V2 to 15 years. This appeal followed.

The appellant raises three questions for our review: 1) Was the evidence sufficient to sustain a conviction for terroristic threats? 2) Was the evidence sufficient to sustain a conviction for resisting arrest? 3) Did the trial court err in allowing a Commonwealth witness, a police officer, to display his gun in front of the jury?

In reviewing challenges to the sufficiency of the evidence, the test is whether, “viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.” Commonwealth v. Keblitis, 500 Pa. 321, 323, 456 A.2d 149, 150 (1983).

Commonwealth v. Jackson, 316 Pa. Super. 553, 555, 463 A.2d 1036, 1037 (1983); see also: Commonwealth v. Williams, 317 Pa. Super. 456, 464 A.2d 411 (1983); Commonwealth v. Miller, 303 Pa. Super. 504, 450 A.2d 40 (1983). So viewed, the facts are as follows:

Detectives Robert McCabe and Ronald Freeman of the Pittsburgh Police Department were investigating a murder and had received a tip from an informant that the murder victim had been in contact with a prostitute shortly before his death. Pursuant to this tip, the officers travelled to the Greyhound Bus Terminal in downtown Pittsburgh in the early morning hours of September 19, 1981. There they observed a white female and a black male, later identified as the appellant, talking outside of the bus station. A few moments later, the female left with a white male companion and the appellant left shortly thereafter. The officers, who were in plain clothes, then approached the appellant, identified themselves as police, showed him identification, and informed him that they would like to ask him a few questions. The appellant was not a suspect to the murder.

The appellant, at that point, reached into his coat pocket and pulled out a handgun. A struggle ensued as the officers tried to subdue the appellant. Both detectives were struck and kicked by the appellant. Eventually, the appellant grabbed Officer McCabe by the shirt, spun him around and pointed the gun at his head. Officer Freeman, in the meantime, retreated to a nearby parked car. While holding Officer McCabe hostage, the appellant repeatedly threatened to kill both officers, indicated a desire to take Officer McCabe with him to enable him to escape, and struck and kicked the officer several times. After a short period of time, the appellant suddenly released the officer, turned and ran. The officers gave chase and fired their weapons at the appellant. The appellant was apprehended later that morning.

The appellant alleges that his utterances were the result of a spur-of-the-moment fear for his own safety and that the evidence does not show that he possessed the requisite “intent to terrorize” for a conviction of terroristic threats. The elements of the offense of terroristic threats are: 1) a threat to commit a crime of violence, and; 2) communication of such threat with intent to terrorize or with reckless disregard of the risk of causing such terror. Commonwealth v. Ferrer, 283 Pa. Super. 21, 423 A.2d 423 (1980); see also: Commonwealth v. Speller, 311 Pa. Super. 569, 458 A.2d 198 (1983).

In Commonwealth v. Griffin, 310 Pa. Super. 39, 456 A.2d 171 (1983), a panel of this Court held that statements under section 2706 of the Crimes Code need not be considered in a vacuum, but rather, should be looked at in light of the surrounding circumstances. Thus, the statement “I ought to kill you,” made during the course of a robbery by someone brandishing a gun and kicking the person to whom the statement was made, is sufficient to constitute a threat under 18 Pa.C.S.A. § 2706. Id., 310 Pa.Superior Ct. at 45, 456 A.2d at 174.

In the present matter, the appellant threatened to kill the police detectives while holding Officer McCabe hostage, pointing the revolver alternately at each of the officers and inflicting bodily injury on Officer McCabe. Clearly, in view of the attendant circumstances, the evidence was sufficient to support a conviction of terroristic threats. We, therefore, find no merit to the appellant’s allegation.

The appellant next argues that he could not be convicted of resisting arrest since neither of the officers performed an act which indicated to the appellant that he was being placed in their custody. The appellant was convicted under section 5104 of the Crimes Code which reads as follows:

A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

When the homicide detectives approached the appellant, on the morning of the incident, to question him regarding a murder, they were discharging an authorized duty. The appellant’s subsequent actions of drawing his revolver and pointing it at Officers Freeman and McCabe, as well as striking and kicking the officers, created a substantial risk of bodily injury to these public servants. So too, substantial force was needed to overcome the resistance as both officers attempted to subdue the appellant by physical force and even fired their weapons at him as he fled. These events are plainly within the scope of section 5104. Therefore, we reject this claim made by the appellant. Compare: Commonwealth v. Eberhardt, 304 Pa. Super. 222, 450 A.2d 651 (1982) (Where defendant’s actions were only an attempt to escape and were not aggressive assertions of physical force against officers, he could not be convicted under 18 Pa.C.S.A. § 5104).

The appellant also contends that the lower court committed reversible error when it permitted Officer McCabe, a witness for the Commonwealth, to display his handgun to the jury. During direct examination, the following exchange occurred between Officer McCabe and Assistant District Attorney Rodney Baxter:

WITNESS: Yes, this appears to be the gun that was pointed at me that evening.
MR. BAXTER: And tell us who it was that was pointing this handgun at you.
WITNESS: It was the defendant in this case, Lumpkins, Eugene Lumpkins.
MR. BAXTER: How close to it did you get to be able to observe it?
WITNESS: It was right up against my face like this, I was looking right up that barrel.
MR. BAXTER: And you had your weapon on you at the time?
WITNESS: Yes, I did.
MR. BAXTER: Describe your weapon for us.
WITNESS: It’s a .38 caliber revolver, Smith and Wesson. MR. BAXTER: Did you bring it to court with you? WITNESS: Yes.
MR. BAXTER: Could you display it to the jury, please? WITNESS: This is my weapon.
MR. BAXTER: Is that the weapon that you used to fire after the Defendant, Mr. Lumpkins?
WITNESS: Yes, it is.

(N.T., 2/23/82 at 71).

It is axiomatic that a judge has broad discretion as to the manner in which a trial is to be conducted, particularly with regard to the admission or exclusion of evidence. Commonwealth v. Niemetz, 282 Pa. Super. 431, 422 A.2d 1369 (1981). Upon an examination of the applicable rules of evidence, one finds that a basic requisite for the admissibility of any evidence in a criminal case is that it be competent and relevant. Commonwealth v. Potts, 314 Pa. Super. 256, 460 A.2d 1127 (1983). Evidence is relevant when it tends to establish facts in issue or in some degree advances the inquiry and thus has probative value. Commonwealth v. Sinwell, 311 Pa. Super. 419, 457 A.2d 957 (1983). Not all relevant evidence is admissible, however, and the trial court may exercise its discretion to exclude evidence that, though relevant, may confuse, mislead, or prejudice the jury. Commonwealth v. Perry, 307 Pa. Super. 327, 453 A.2d 608 (1982). Since rulings on the relevancy of evidence rest within the sound discretion of the trial court, they will not be reversed absent a manifest abuse thereof. Commonwealth v. Costanzo, 269 Pa. Super. 413, 410 A.2d 324 (1979).

As previously noted, one of the elements of the offense of resisting arrest or other law enforcement is the requirement of substantial force to overcome the resistance. The display of Officer McCabe’s revolver to the jury demonstrated the amount of force that was necessary to overcome the appellant’s resistance. Therefore, this evidence is relevant.

Furthermore, we disagree with the appellant’s bold and unsubstantiated assertion that he was prejudiced by the display of the gun. There is no per se rule against the trial tactic used in this instance. The display was not done in an inflammatory manner as Detective McCabe only showed the .38 caliber revolver to the jury, he did not demonstrate its use. See: Commonwealth v. Harris, 492 Pa. 389, 424 A.2d 1245 (1981). Moreover, the display was brief, was for a limited purpose, and was not objected to by defense counsel at the time it happened. Consequently, we conclude that the trial court committed no error in allowing the detective to display his revolver to the jurors. Since the relevancy of the evidence was established, it was for the jury to decide what weight, if any, was to be given thereto.

Judgment of sentenced affirmed.

      . Act of December 6, 1972, P.L.1482, No. 334, § 1, 18 Pa.C.S.A. § 2701(a)(1) and (3).

      . Id., as amended, 18 Pa.C.S.A. § 2702(a)(3).

      . Id., 18 Pa.C.S.A. §§ 6105 and 6106.

      . Id., 18 Pa.C.S.A. § 2706.

      . Id., as amended, 18 Pa.C.S.A. § 2902.

      . Id., 18 Pa.C.S.A. § 5104.


author: POPOVICH, Judge: MONTGOMERY, Judge,

text:
    471 A.2d 100
    Shirley H. WEINGRAD, Administratrix of the Estate of Richard H. Weingrad, Deceased, Appellant v. PHILADELPHIA ELECTRIC COMPANY, Donald Lippy, and Montgomeryville Airport, Inc.
    Superior Court of Pennsylvania.
    Argued Sept. 7, 1983.
    Filed Jan. 20, 1984.
    Petition for Allowance of Appeal Denied May 31, 1984.

      Keith S. Erbstein, Philadelphia, for appellant.
    Patrick W. Kittredge, Philadelphia, for Phila. Electric, appellee.
    Ronald C. Scott, Philadelphia, for Lippy, appellee.
    Martin W. Bashoff, Philadelphia, for Montgomeryville, appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

On the afternoon of October 19, 1974, Richard Weingrad, a flight instructor, was administering a bi-annual flight review of the owner and pilot of an aircraft. As part of this review, the instructor requested that the pilot, Donald Lippy, demonstrate his ability to land the plane at an airport during a simulated low altitude engine failure. During the course of this exercise, the aircraft hit a pole owned by the Philadelphia Electric Company (hereinafter referred to as PECO), which resulted in the death of Mr. Weingrad. Thereafter, Shirley H. Weingrad, administratrix of the estate of the deceased, instituted an action in trespass against both Mr. Lippy and PECO On January 23, 1981, the jury rendered a verdict against the plaintiff and in favor of all defendants. The trial court denied plaintiff’s motion for a new trial, and ordered that judgment be entered on the verdict. This appeal followed. We affirm.

Appellant raises several questions for our review. However, only one of these issues merits discussion, i.e., whether the court below committed reversible error by informing the jury that Donald Lippy had settled with appellant prior to trial. The remaining issues were adequately disposed of by the lower court in its opinions of October 28, 1981, and January 22, 1980, and need no further comment.

Before any testimony was given, and after hearing the arguments of counsel on the settlement issue, the trial court made the following statement to the jury:

“THE COURT: Ladies and gentlemen of the jury, before we commence the testimony there is an aspect of this case by which I believe I should advise you. The plaintiffs claim against the defendant, Lippy, has been settled. I shall not mention the amount of the settlement, although plaintiff is free to mention it if she wishes. That means that the amount Lippy is obliged to pay has been fixed, regardless of what action the jury may take. This settlement, however, in no way reduces your responsibility, as you must still determine what defendant, or defendants, under the law is liable to the plaintiff. If you find one or more defendants liable to the plaintiff, you must still determine what sum of money would be fair and adequate compensation for the decedent’s death. I am not asking you to draw any inference from the facts of the settlement, though various Counsel may wish to ask you to draw an inference. You may or may not consider the facts of this settlement significant in evaluating the position of the parties and the testimony of the witness. This will be entirely up to you.” (Notes of Testimony, Jan. 19, 1981, pp. 98, 99).

Aside from permitting appellant to mention the amount of the settlement, the court also allowed Mr. Lippy to be cross-examined by both PECO and appellant, as if he were truly an adversary of both parties. The events immediately preceding the crash were testified to by Mr. Lippy during cross-examination by the attorney representing PECO. According to Mr. Lippy, appellant’s decedent, as instructor, was in control.of the throttle of the aircraft during the simulated engine failure. Mr. Lippy was to guide the plane to an emergency landing. It became immediately obvious to Mr. Lippy that they were too far out to make a safe landing at the airport unless Mr. Weingrad gave more power to the engine. Mr. Lippy told his instructor three times that they were too low and were not going to make it, but Mr. Weingrad insisted only that Mr. Lippy make as steep a turn as possible and did not give any more power to the engine. Mr. Lippy stated that with more power they would have had no problem in clearing the obstructions.

As we previously stated, appellant contends that the court erred in disclosing to the jury that Mr. Lippy had settled. We agree. The court below considered our decision in Cartmel v. Williams, 207 Pa.Super. 144, 215 A.2d 282 (1965), where we held that the trial court did not err in refuging to admit a joint-tortfeasor release into evidence. The’ trial court interpreted our holding in Cartmel, supra, as leaving resolution of this evidentiary question to the trial judge’s discretion. Regardless of the correctness of the trial court’s interpretation of Cartmel, that case is irrelevant to the case at bar because it predates the following statute, which provides in relevant part:

“§ 6141. Effect of certain settlements
(a) Personal injuries. — Settlement with or any payment made to an injured person or to others on behalf of such injured person with the permission of such injured person or to anyone entitled to recover damages on account of injury or death of such person shall not constitute an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary.
(b) Damages to property. — Settlement with or any payment made to a person or on his behalf to others for damages to or destruction of property shall not constitute an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary.
(c) Admissibility in evidence. — Except in an action in which final settlement and release has been pleaded as a complete defense, any settlement or payment referred to in subsections (a) and (b) shall not be admissible in evidence on the trial of any matter.”

42 Pa.C.S.A. § 6141.

Because the settlement in the instant case has not been pleaded as a complete defense, it “shall not be admissible in evidence on the trial of any matter.” Clearly, the trial court erred in informing the jury of the settlement.

Nevertheless, this error does not necessarily require that a new trial be held. “To constitute reversible error, a ruling on evidence or an instruction to a jury must be shown not only to have been erroneous but harmful to the party complaining.” Anderson v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965). “It is axiomatic that ‘the ... admission of evidence^ even if erroneous,] is not considered a ground for a new trial where no harm or prejudice has resulted.’ ” Kolb v. Hess, 227 Pa.Super. 603, 611, 323 A.2d 217, 221-222 (1974). Appellant argues that introduction of the settlement created the risk of confusing the jury and causing speculation as to whether the liable party was still in the case, or whether the plaintiff had received all of the damages to which she was entitled. Appellant asserts that we can never know to what extent the jury considered the settlement.

Were it not for the special findings of the jury in this case, we would be persuaded by appellant’s argument. However, in response to special interrogatories, the jury found that Donald Lippy was not negligent, that PECO was not negligent, that the airport was not negligent, but that the deceased was negligent in that he failed to exercise reasonable care for his own safety and that such negligence was a substantial factor in causing his own death. “The special findings of the jury which served to resolve the factual dispute between the parties must be taken as a final adjudication of these factual questions, unless, for some proper reason, the court set [sic] them aside.” Berliner v. Bee Em Manufacturing Co., 383 Pa. 458, 119 A.2d 65 (1956). Although we would envision that in most cases the improper admission of a joint-tortfeasor release would constitute reversible error, we fail to see how appellant could have been harmed in this case. In Jaski v. West Park Daily Cleaners and Dyers, 334 Pa. 12, 5 A.2d 105 (1939) the plaintiffs own testimony showed a want of care upon her part, thus allowing the Supreme Court to ignore her contentions of trial court error. Id., 334 Pa. at 15, 5 A.2d at 106. In the instant case, it is obvious that the factfinder believed Mr. Lippy’s testimony that he had warned appellant’s decedent that they were flying too low. Thus, the jury found that the deceased was contributorily negligent. Although Mr. Lippy was not the plaintiff, he was the only living eye-witness to the events inside the cockpit immediately preceding the crash. More importantly, because he had already settled, Mr. Lippy was not appellant’s true adversary during the trial. Since the jury specifically found Mr. Lippy not to have been negligent, there is no basis in fact for appellant’s fear that the jury might improperly have assumed that the party who had settled was the only liable party. For this reason, and because the jury found appellant’s decedent to have been contributorily negligent, appellant’s concern that the jury may have unfairly considered that appellant had received all of the damages to which she was entitled is also unfounded. Therefore, because of the unusual factual circumstances surrounding this case, we find that appellant was not prejudiced by the trial court’s error. Accordingly, we must affirm the judgment of the court below.

Judgment affirmed.

MONTGOMERY, J., files a dissenting statement.

MONTGOMERY, Judge,

dissenting:

I must respectfully dissent. I believe that the lower court committed reversible error when it informed the jury that the Defendant, Donald Lippy, had reached a settlement with the Plaintiff. I find significant merit in the Appellant’s contention that the jury may have unfairly considered that the Appellant had received all of the damages to which she was entitled in arriving at her settlement with Mr. Lippy.

The Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 6141, recited in the Majority Opinion, is clear in declaring that no evidence of any settlement or payment should be admitted into evidence in a trial such as the one which took place in the instant case. I believe that the legislative rationale for that statute was that a jury, upon learning of a settlement, could decide to reduce or eliminate any award to an otherwise eligible plaintiff based upon the conclusion that the plaintiff had already received a recovery to the extent that he or she was entitled to or satisfied with in the settlement which had been reached. The jurors could conclude that to award further damages would create a windfall. Moreover, since the jury specifically found Mr. Lippy not to have been negligent in this case, it is reasonable to speculate that the jury members could have reached the conclusion that the Plaintiff had received some monies from that defendant to which she was not entitled, so that the jury would therefore think it fair to deny her any recovery from any other party, against whom an award might otherwise have been made. There is simply no way to determine whether or not such prejudicial considerations resulted from the disclosure of settlement to the jury in the instant case.

I believe that the manifest violation of the statute created the clear potential of serious and prejudicial error in the instant case and I therefore feel that the Appellant is entitled to a new trial at which any evidence of settlement would be excluded.

      . PECO subsequently joined as additional defendants Montgomery-ville Airport, Inc., which managed and operated the airport; Amterre Management, Inc., which owned the land on which the airport was located at the commencement of the action; and, A.Q. Associates, a limited partnership which owned the property on which the airport was located until December, 1974. On January 22, 1980, the trial court granted motions for summary judgment filed by the latter two additional defendants.

      . 42 Pa.C.S.A. § 6141 is a substantial reenactment of the Act of July 31, 1968, P.L. 936, No. 284, §§ 1 to 4 (12 P.S. §§ 2089.11 to 2089.14).

      . In its opinion denying post-trial motions, the trial court stated:
      "There is one case, however, which we believe is on all fours with the present case, namely Hareng v. Blanke, 90 Wis.2d 158, 279 N.W.2d 437 (1979). In considering a similar situation, that Court stated (279 N.W.2d at 442):
      '... we conclude that the testimony was admissible. While public policy provides a limited privilege against disclosure of settlements and offers to settle, the privilege and the exclusion is not absolute. Sec. 904.08, Stats., "does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness ...” See also McCormick, Evidence (2d ed.), Sec. 274, p. 664.
      It is argued by defendants that the evidence of a prior settlement between Dr. Bowden and the Harengs was admissible to show prejudice on the part of Anne Hareng as a witness because she had a financial interest in playing down the negligence of Dr. Bowden and emphasizing that of Dr. Blanke and Dr. Kourakis. We agree, and we conclude that evidence of a settlement can be used, as in this case to show possible bias of a witness, although it cannot be used to prove liability or invalidity of a claim at issue.'
      We are in firm agreement with the Court in Hareng. Where a pretrial settlement causes a realignment of parties so that a settling defendant becomes an actual or potential ally of the plaintiff, we believe the fact of settlement should be disclosed to the jury. In the present case, for example, defendant Lippy testified that prior to trial, he had had a several-hour conference with his attorney and the plaintiff's attorney together. The posture of the plaintiff from the moment trial began was that she had concluded that Mr. Lippy was not at fault and that only PECO was at fault. It was suggested that this was a magnanimous conclusion based on the search for truth. We do not conclude that it was not; we do, however, believe the jury should have been able to evaluate this position and Mr. Lippy’s testimony with the knowledge that the adversary status of the plaintiff and defendant Lippy had terminated.” (Lower court opinion at pp. 8, 9).
      Section 904.08 of the Wisconsin statutes provides:
      “Compromise and offers to compromise Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This section does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, proving accord and satisfaction, novation or release, or. proving an effort to compromise or obstruct a criminal investigation or prosecution.”
      The comparatively inflexible Pennsylvania statute, 42 Pa.C.S.A. § 6141, would obviously inhibit a jury’s factfinding capability in cases where a co-defendant, who happens to be the sole eyewitness to an accident, has settled with the plaintiff prior to trial. It is the opinion of this Court that the public policy of promoting settlements would not be frustrated by a law similar to that in Wisconsin, which permits the admission of evidence of settlements when offered to prove bias or prejudice of a witness.


author: WIEAND, Judge:

text:
    471 A.2d 104
    COMMONWEALTH of Pennsylvania v. Leo A. BARONNER, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1983.
    Filed Jan. 27, 1984.

      Peter Henry Shaffer, Butler, for appellant.
    Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   WIEAND, Judge:

In a jury trial where the charges were rape, involuntary deviate sexual intercourse and simple assault, the trial court disallowed the defendant’s testimony regarding his prior sexual contacts with the alleged victim for the sole reason that the trial judge did not believe such testimony. The defendant was found guilty, post verdict motions were denied, and defendant was sentenced to a lengthy term of imprisonment. This appeal followed. We reverse and remand for a new trial.

On the morning of March 17, 1982, Sharon Kerlin, the alleged victim, and Leo A. Baronner, the appellant, engaged in sexual activity in an apartment which they shared with other persons. Sharon Kerlin testified that she had been forcibly compelled to engage in natural and deviate sexual intercourse. Appellant contended, however, that Sharon’s participation in the sexual encounter had been consensual. He offered to prove in support of his contention that he and Sharon had been sexually intimate on several prior occasions. Pursuant to the Rape Shield Law of May 18, 1976, P.L. 120, No. 53, 18 Pa.C.S. § 3104, he filed a written motion and offer of proof regarding such prior sexual conduct. The trial court held an in camera hearing at which appellant’s testimony was countered by testimony from the alleged victim that although she and appellant had dated on prior occasions, they had not previously engaged in sexual intercourse. Based on this testimony, appellant’s offer of proof was rejected, and he was not permitted to give trial testimony of Sharon Kerlin’s prior sexual conduct with appellant. The reason given by the trial court for the evidentiary ruling was: “The matter reduces itself to a matter of credibility and this Court elects to believe Sharon Kerlin.”

The credibility of appellant’s consent defense, however, was for the jury. It was not for the trial judge to reject relevant trial testimony and keep it from the jury merely because he did not believe it. The purpose of the in camera hearing required by the Rape Shield Law is to enable a trial court to determine whether tendered defense evidence of the victim’s prior sexual activity is relevant and admissible. This procedure is intended to provide the trial court with the means to eliminate “confusion of issues at trial and needless embarrassment of the prosecutrix by excluding irrelevant ... evidence concerning the prosecutrix’s prior sexual behavior.” Commonwealth v. Strube, 274 Pa.Super. 199, 218, 418 A.2d 365, 375 (1979) (Concurring Opinion by Spaeth, J.). The hearing is not intended to afford the trial judge an opportunity to determine the credibility of a tendered defense. If the evidence offered by the defense is relevant and admissible under applicable rules of evidence, the trial court is required to receive such evidence and permit the jury to assess its credibility.

In Reichman v. Wallach, 306 Pa.Super. 177, 452 A.2d 501 (1982), this Court reviewed pertinent authority pertaining to relevancy of evidence and concluded in general that

“ ‘any legally competent evidence which, when taken alone or in connection with other evidence, tends to prove or disprove a material or controlling issue or to defeat the rights asserted by one or the other parties, and sheds any light upon or touches the issues in such a way as to enable the jury to draw a logical and reasonable inference with respect to the matter or principal fact in issue, is relevant. As thus defined, relevancy means the logical relation between the proposed evidence and a fact to be established.’ Commonwealth v. Vukovich, 301 Pa.Super. 111, [118], 447 A.2d 267, 270 (1982), quoting 29 Am.Jur.2d 302, 303, Evidence § 252. ‘The law furnishes no. test of relevancy, but tacitly refers it to logic and general experience. Evidence is admissible which tends to make the fact at issue more or less probable or intelligible or to show the origin and history of the transaction between the parties and explain its character.’ Gregg v. Fisher, 377 Pa. 445, 454, 105 A.2d 105, 110 (1954).”

Id. 306 Pa.Super. at 190, 452 A.2d at 508. When this test is applied to the testimony which appellant offered in the instant case, the relevancy of the evidence is clear. If appellant and Sharon Kerlin were sexually intimate on prior occasions, evidence thereof would tend to make consent to sexual contact more probable on the occasion being examined by the jury and would, in any event, illustrate the nature and history of the relationship between appellant and his accuser. Our conclusion need not rest alone on general principles of relevancy, however, for the Rape Shield Law has expressly recognized the relevance of the “alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue.” See: 18 Pa.C.S. § 3104(a).

Before it can be received, the testimony of prior sexual conduct must also be admissible according to applicable rules of evidence. In the instant case, the offer consisted of testimony from the appellant himself and included matters allegedly within his personal knowledge. This testimony was not barred by any exclusionary rule.

Because appellant’s testimony that he and the alleged victim had been sexually intimate on prior occasions was relevant and admissible upon the issue of the alleged victim’s consent on the occasion in question, the testimony should have been received. Its credibility was for the jury. By preventing the jury from hearing defendant’s testimony merely because he did not believe it, the trial judge fell into error.

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . The procedure to be followed where it is proposed to show prior sexual conduct in support of a consent defense is set forth at 18 Pa.C.S. § 3104(b) as follows:
      A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).


text:
    471 A.2d 107
    Robert T. RUSBARSKY, a Minor, By his Parent and Natural Guardian, Andrew V. RUSBARSKY, Appellant v. Joseph V. ROCK.
    Superior Court of Pennsylvania.
    Submitted Nov. 8, 1983.
    Filed Jan. 27, 1984.

      William S. Hays, Pittsburgh, for appellant.
    Raymond J. Seals, Pittsburgh, for appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   CIRILLO, Judge:

This appeal is from an order of the Court of Common Pleas, Allegheny County, entered April 27, 1982, denying appellant’s petition for reconsideration of a rule to show cause. Appellant requests the rule in order to supplement a release within a previously settled trespass action to reflect the true intention of the parties. The appellee joins with the appellant in this matter. The lower court denied the petition on the basis that the relief sought was to be instituted in equity. The appellant alleges error. We affirm.

On July 5, 1971, Robert T. Rusbarsky was seriously injured in a boat operated by appellee Joseph Rock. On August 20, 1971, appellant filed a complaint and petition for leave to settle, seeking and obtaining court approval of his claim against appellee in the amount of $100,000. Pursuant to the settlement and prior to receiving the aforementioned sum, appellant signed a receipt, release and discharge, the operative language of which included:

... (Plaintiffs) do hereby remise, release, quit claim and forever discharge the said JOSEPH V. ROCK, INSURANCE COMPANY OF NORTH AMERICA, AND ALL OTHER PERSONS, FIRMS, PARTNERSHIPS AND CORPORATIONS which are or might be claimed to be liable to (Plaintiffs), of and from all liability claims and demands of every name and nature ...

On June 30, 1973, appellant filed a suit in the Court of Common Pleas, Beaver County, against his attending physicians and hospital, alleging malpractice in the treatment of his injuries. The defendants pleaded the release as a bar to appellant’s claim, the result of which is still pending.

On September 18, 1981, the appellant petitioned the court for a rule to show cause why the signed release should not be amended, specifically limiting the applicability of the release to the appellee and appellee’s insurance company. The court denied appellant’s petition on the basis that the relief sought was a reformation of contract, an action to be instituted in equity.

After several intervening procedures, appellant filed a petition for reconsideration. The appellee joined in the petition, admitting the averments set forth by the appellant and requesting amendment of the release. On April 27, 1982, the lower court denied the petition.

On appeal, the appellant contends that the petition for a rule to show cause was a proper procedure by which to amend the previously signed release. Appellant claims that such a petition is auxiliary to the original trespass action over which the court had jurisdiction. Appellant also contends that should the procedure be improper, the failure of the appellee to object preliminarily constitutes an irrevocable waiver of the error. We disagree.

A rule to show cause is one that is made ex parte, directing an adverse party to show cause why an action should not be taken. The rule is not, except by statute, a proper substitute for original process, but is auxiliary. Commonwealth Department of Public Welfare v. Livingood, 22 Pa.Cmwlth. 530, 349 A.2d 816 (1976). Additionally, the rule must be based upon a real controversy, pertinent to the case in question which, when judicially determined, will have controlling force with respect to the subject matter involved. Petition of Malick, 133 Pa.Super. 53, 1 A.2d 550 (1938).

In the instant case, the settlement between the parties remains undisputed. Appellant is only seeking to limit the applicability of the release signed pursuant to the settlement. This, in essence, is a reformation of the cop-tract, and as the lower court stated, an action to be instituted in equity. McWilliams v. McAbe, 406 Pa. 644, 179 A.2d 222 (1962); Alderfer v. Pendergraft, 302 Pa.Super. 210, 448 A.2d 601 (1982). Since appellant’s rule to show cause has no basis in actual controversy, what the appellant is seeking is, in effect, an adjudication of his possible rights in the future against other parties, a decision which the courts will not render. Com. ex rel. Watson v. Montone, 227 Pa.Super. 541, 323 A.2d 763 (1974). The aforementioned defects in appellant’s petition for a rule to show cause cannot be waived by a failure on the part of the appellee to make preliminary objections.

Order affirmed.

CAVANAUGH, J., concurs in the result.


author: PER CURIAM:

text:
    471 A.2d 109
    Olga SZWECKI v. The TRAVELERS INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1983.
    Filed Jan. 27, 1984.

      Walter Faderewski, Pittsburgh, for appellant.
    W. Thomas Laffey, Jr., Pittsburgh, for appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

Appellant/defendant Travelers Insurance Company appeals from the judgment entered January 19, 1982. Said judgment was based on the trial court’s order of December 21, 1981 granting partial summary judgment in favor of appellee/plaintiff Olga Szwecki. As we find this appeal to be interlocutory, we quash.

Mrs. Szwecki’s husband was killed as a result of an automobile accident while insured by appellant. She then instituted an assumpsit action against appellant to recover both interest and attorney’s fees for appellant’s delayed payment of work loss benefits under the Pennsylvania No-fault Insurance Act, 40 P.S. § 1009.101 et seq.

The order in question states:

ORDER OF COURT

AND NOW, this 21st day of December, 1981, after argument and upon consideration of the parties’ briefs submitted in support thereof, it is hereby Ordered as follows:

1. Partial Summary Judgment shall be entered in favor of the Plaintiff insofar as it relates to Plaintiff’s entitlement to interest at the rate of eighteen per cent (18%) per annum on all “overdue” work loss payments. Said interest shall be calculated in accordance with the formula set forth in the foregoing Opinion.
2. Plaintiff’s Motion for Summary Judgment as it relates to the question of Plaintiff’s entitlement to attorney’s fees is denied and such entitlement, if any, shall be determined by the Court at the time of trial.
BY THE COURT s/ Staisey, J., J.
I CONCUR:
s/ Ralph H. Smith, Jr„ J.
Ralph H. Smith, Jr.

Although neither party on appeal has challenged the jurisdiction of this court, it is fundamental that neither silence nor agreement of the parties will confer jurisdiction where it otherwise would not exist. Giannini v. Foy, 279 Pa.Super. 553, 421 A.2d 338 (1980). Therefore, we shall consider the issue of appealability of this order sua sponte. Rohr v. Keystone Ins. Co., 294 Pa.Super. 179, 439 A.2d 809 (1982).

This court has jurisdiction over “all appeals from final orders of the courts of common pleas.” Act of July 9, 1976, P.L. 586, NO. 172, § 2, 42 Pa.C.S. § 742 (effective June 27, 1978) (emphasis added). “In determining what constitutes a final order we ... look to ‘a practical rather than technical construction’ of an order.” Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (citation omitted). “A final order is one which ends the litigation, or alternatively, disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974).” Pugar v. Greco, 483 Pa. at 73, 394 A.2d at 544-45. On the other hand, “an order is interlocutory and not final unless it effectively puts litigant ‘out of court.’ ” Giannini v. Foy, 279 Pa.Super. at 556, 421 A.2d at 339 (citations omitted).

Bagshaw v. Vickers, 286 Pa.Super. 246, 249, 428 A.2d 664, 665 (1981).

We find the facts in the instant case similar to those found in both Rohr v. Keystone Ins. Co., supra and Schaefer v. Am. States Ins. Co., 272 Pa.Super. 67, 414 A.2d 672 (1979). In both cases, partial summary judgment was rendered with respect to a part of the plaintiff’s claims, leaving other claims to be determined at a later time. In both cases, we held the appeals interlocutory.

The trial court’s order in the instant case clearly did not end the litigation or dispose of the entire case, as the issue of attorney’s fees remained to be adjudicated.

Appeal quashed.