author: HOFFMAN, Judge: CIRILLO, President Judge,

text:
    536 A.2d 428
    COMMONWEALTH of Pennsylvania v. Kevin L. MYERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 6, 1987.
    Filed Jan. 21, 1988.

      Daniel F. Wolf son, York, for appellant.
    Donald R. Lam, Assistant District Attorney, York, for Com., appellee.
    Before CIRILLO, President Judge, and HOFFMAN and CERCONE, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for robbery. Appellant contends that the sentencing court erred in (1) including his prior juvenile adjudications of delinquency in calculating his prior record score without first making a finding on the record regarding the “nature of these adjudications”; and (2) failing to set forth adequate reasons on the record to justify the disparity between his sentence and that of his co-defendant. For the reasons that follow, we affirm the judgment of sentence.

Appellant entered a plea of guilty to four counts of robbery, two counts of theft, three counts of receiving stolen property, and one count of criminal attempt to commit robbery. He was sentenced to a forty-four-to-eighty-eight-month term of imprisonment for the robbery counts and the other charges merged for sentencing purposes. Under the Sentencing Guidelines, 204 Pa. Code 303.1-.9, reprinted following 42 Pa.C.S.A. § 9721, robbery, 18 Pa.C. S.A. § 3701(a)(1)(h), (iii), carries an offense gravity score of seven. See 204 Pa. Code § 303.8. At the time of the instant offense, appellant’s prior criminal record included juvenile adjudications for three counts of burglary. Based on that record, appellant was assigned a prior record score of six. See id. § 303.7. His sentence was within the mitigated range of the sentencing guidelines. See id. § 303.9. Appellant filed a motion to modify his sentence, which was denied, and this appeal followed.

Both contentions raised in this appeal concern discretionary aspects of sentencing. The requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) therefore apply. Appellant has failed to include in his brief “a concise statement of the reasons relied upon for allowance of appeal” as required by Rule 2119(f) and Tuladziecki. In Commonwealth v. Krum, 367 Pa. Superior Ct. 511, 533 A.2d 134 (1987), however, this Court, sitting en banc, recently held that an appellant’s failure to comply with Rule 2119(f) and Tuladziecki, if not objected to by the appellee, is a waivable procedural violation. Id., 367 Pa.Superior Ct. at 519-520, 533 A.2d at 138. Here, the Commonwealth has not objected to the Rule 2119(f) defect in appellant’s brief. Accordingly, the Commonwealth has waived any objection based on the absence of such a statement. We must therefore proceed to examine each of appellant’s sentencing claims and “determine, in [our] own discretion, whether there is a substantial issue requiring [us] to review the discretionary aspects of the sentence imposed by the trial court.” Commonwealth v. Krum, supra.

Appellant first contends that the sentencing court applied the sentencing guidelines erroneously because it included prior juvenile adjudications of delinquency in calculating his prior record score without first making a finding regarding the nature of the adjudications. In Commonwealth v. Tilghman, 366 Pa. Superior Ct. 328, 531 A.2d 441 (1987), (en banc), our Court recently concluded that this type of claim presents a substantial question that the sentence imposed is inappropriate. See id., 366 Pa.Superior Ct. at 332 & n. 2, 531 A.2d at 443-44 & n. 2 (substantial question exists if, inter alia, it appears that sentencing court erroneously applied sentencing guidelines). See also 42 Pa.C.S.A. § 9781(c)(1). Accordingly, we grant the petition for allowance of appeal as to this issue and turn to the merits of the claim.

In computing a defendant’s prior record score, the Sentencing Guidelines direct a sentencing court to score, inter alia, “[a]ll prior juvenile adjudications of delinquency where there was an express finding that the adjudication was based on the commission of a felony or one of the weapons misdemeanors listed in subsection (a)(3) where the adjudication occurred on or after the defendant’s 14th birthday.” 204 Pa. Code § 303.7(b)(l)(ii) (emphasis supplied). Appellant’s argument is that the court made no findings with regard to the nature of his adjudications for delinquency, and thus violated § 303.7(b)(1)(h) when it included them in calculating his prior record score. We disagree.

A review of the sentencing hearing shows that the court indeed found that appellant’s prior adjudications of delinquency were based on the commission of felonies. The court stated that

We also note that the prior record of the Defendant occurred in 1981 in which, as a juvenile, he was charged with three counts of burglary and placed on probation for a period of two years. The three burglaries of which the Defendant was convicted as a juvenile are felonies, and therefore, in the prior record score, increases the range of the sentence under the sentencing guidelines. Again, the Court obviously must consider the guidelines and must follow them unless there are exceptional circumstances.

N.T. July 21, 1986 at 5. Accordingly, we conclude that appellant’s first claim is meritless.

Appellant next contends that the sentencing court abused its discretion by failing to set forth adequate reasons to justify the disparity between his sentence and that of his co-defendant. “[F]or a trial judge to impose different sentences on co-defendants, he [or she] must find differences between the co-defendants to justify the sentences.” Commonwealth v. Velez, 329 Pa. Superior Ct. 15, 16, 477 A.2d 879, 880 (1984). Moreover, “[t]he reason that one co-defendant receives a more severe sentence than another must be stated on the record.” Id. Because appellant’s contention, if it proves to have merit, would require that we remand the case for resentencing, see id., 329 Pa.Superior Ct. at 18, 477 A.2d at 881, it presents a substantial question that the sentence imposed was inappropriate. Accordingly, we grant the petition for allowance of appeal as to this issue and turn to the merits of the claim.

A sentencing court is not required to impose the same sentence on all participants in a crime. Commonwealth v. Sinwell, 311 Pa. Superior Ct. 419, 427, 457 A.2d 957, 960 (1983). Moreover, when a defendant’s accomplice is tried, or pleads guilty, in a separate proceeding, and is sentenced by a different judge, the sentencing court is not required to explain a disparity between the defendant’s sentence and that of the accomplice. Commonwealth v. Craft, 304 Pa. Superior Ct. 494, 500, 450 A.2d 1021, 1023 (1982). See also Commonwealth v. Holler, 326 Pa. Superior Ct. 304, 310, 473 A.2d 1103, 1107 (1984) (it is not incumbent upon court to be guided by sentence different court imposes on co-defendant). But see id., 326 Pa.Superior Ct. at 311, 473 A.2d at 1107 (even when different courts sentence co-defendants, there should not be great disparity in sentences imposed unless facts exist to warrant unequal sentences).

In the instant case, appellant pleaded guilty, and was sentenced to a forty-four-to-eighty-eight-month term of imprisonment, while appellant’s co-defendant, Sweitzer, who also pleaded guilty, was sentenced, pursuant to a plea arrangement, to two concurrent two-to-four year terms of imprisonment. Appellant and his co-defendant pleaded guilty, and were sentenced, before different judges. N.T. August 11, 1986 at 2-3. Under Commonwealth v. Craft, supra, because appellant and his co-defendant appeared before different judges, it was not incumbent upon the sentencing court to explain the disparity in the sentences. Moreover, even if the disparity is so great that reasons should have been given, see Commonwealth v. Holler, supra, a review of the sentencing hearing reveals that the court articulated factors that were sufficient to support appellant’s sentence. The court noted that appellant’s co-defendant, unlike appellant, was sentenced pursuant to a plea arrangement. N.T. August 11, 1986 at 2-3. In addition, the sentencing court had the benefit of a pre-sentence investigation and report, while no such report was prepared regarding appellant’s co-defendant. Id. Finally, the court below provided ample justification for the sentence imposed: the court was aware of the co-defendant’s sentence, appellant’s background and circumstances, his improved behavior since his arrest, as well as the encouraging statements of a witness who testified on appellant’s behalf. Id. at 5. In light of all of these positive factors, the court then sentenced appellant to the lowest possible minimum sentence available within the mitigated minimum range of the sentencing guidelines. On this record, we cannot conclude that the sentence imposed constituted an abuse of discretion.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge,

dissenting opinion:

I respectfully dissent. I disagree with the majority’s decision to reach the merits of this appeal. Myers challenges discretionary aspects of the sentence imposed. Where a purely discretionary aspect of sentencing is being challenged, the appellant must include in his brief a “concise statement of the reasons relied upon for allowance of appeal.” 42 Pa. C.S. § 9781(b). This statement must show that there exists a “substantial question that the sentence imposed is not appropriate under [the Sentencing Code].” Id.; Pa. R.A.P. 2119(f); see also Commonwealth v. Tuladzeicki, 513 Pa. 508, 522 A.2d 17 (1987).

I disagree with the majority decision in Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc), which held that an appellant’s failure to comply with Pa. R.A.P. 2119(f) and Tuladziecki, if not objected to by the appellee, is a waivable procedural violation. Compliance with the rule is necessary in order to invoke this court’s jurisdiction. The Krum majority, in my opinion, has misinterpreted Tuladziecki. See Krum, 367 Pa.Super. at 520, 533 A.2d at 139 (Brosky, J., dissenting); see also Commonwealth v. Tilghman, 366 Pa.Super. 328, 531 A.2d 441 (1987) (en banc) (Cirillo, P.J., concurring). In failing to include a Rule 2119(f) statement in his brief, Myers has failed to properly invoke this court’s jurisdiction. The proper course, under the supreme court’s ruling in Tuladziecki, is to quash this appeal.

      . Without including the juvenile adjudications, appellant's prior record score would have been zero. The mitigated minimum range for an offense gravity score of seven and a prior record score of zero with a weapons enhancement is 16-to-20 months. See 204 Pa. Code § 303.9. Thus, his minimum sentence of forty-four months was considerably longer than that recommended for a prior record score of zero.

      . We note that two recent en banc decisions of this Court have determined that the question whether juvenile adjudications may properly be included in computing prior record scores implicates a discretionary aspect of sentencing and not sentencing legality. See Commonwealth v. Krum, 367 Pa. Superior Ct. 511, 533 A.2d 134 (1987); Commonwealth v. Tilghman, 366 Pa. Superior Ct. 328, 531 A.2d 441 (1987).

      . We note that appellant has not challenged the constitutionality of the Sentencing Guidelines. According, Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) is inapplicable. Id., 516 Pa. at 380 n. 2, 532 A.2d at 782 n. 2.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    536 A.2d 431
    Dennis E. VAUGHN, Sr., Appellant v. Margaret E. VAUGHN.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1987.
    Filed Jan. 21, 1988.

      Claudia DeArment, Hanover, for appellant.
    Lewis P. Sterling, York, for appellee.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

Appellant and appellee were married on April 29, 1961 at which time appellant was in the service of the United States Navy. Appellant retired from active duty on February 17, 1978. Appellee and appellant subsequently separated and were divorced on January 10, 1985. Equitable distribution of the marital property, with the exception of appellant’s military retirement pension, was accomplished pursuant to an agreement between the parties. As of December, 1984, appellant’s total monthly pension was $743.58.

A master was assigned to take testimony regarding the distribution of appellant’s pension. Following two hearings on the matter, the master determined that the military pension was subject to equitable distribution and apportioned to appellee sixty (60) percent of the pension. At the time of the master’s report, appellant’s pension had been increased to $790.00 monthly. The lower court accepted the master’s recommendation and exceptions to the award were denied. This appeal followed.

The sole issue before this court is whether the lower court erred in awarding sixty (60) percent of appellant’s military retirement pension to appellee as part of the equitable distribution of the marital property. Our standard of review was recently reiterated by this court in Metzger v. Metzger, 369 Pa.Super. 17, 534 A.2d 1057 (1987):

An order of equitable distribution of marital property shall not be reversed absent a finding that the trial court abused its discretion. Baraff v. Baraff, 338 Pa.Super. 203, 210, 487 A.2d 925, 929 (1985). “Under this standard, we do not usurp the hearing court’s duty as fact finder. Rather, we apply the legislative guidelines of the Divorce Code to the record to determine whether or not the hearing court has abused its discretions.” Barnhart v. Barnhart, 343 Pa.Super. 234, 237, 494 A.2d 443, 444 (1985).

Id., 369 Pa.Superior Ct. at 24, 534 A.2d at 1060.

Preliminarily, we note that the lower court correctly held that military retirement pensions are subject to equitable distribution. Section 1408(c)(1) of the Uniform Services Former Spouses’ Protection Act provides that “a court may treat disposable or retainer pay payable to a member for pay periods ... either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.” 10 U.S.C. § 1408(c)(1). Further, the Pennsylvania Divorce Code excepts from equitable distribution only military disability compensation rather than military retirement pensions. 23 Pa.S.A. § 401(e)(6). See also Major v. Major, 359 Pa.Super. 344, 518 A.2d 1267 (1986).

Turning to the issue at bar, we find that the lower court’s determination was correctly guided by the considerations mandated by section 401(d) of the Divorce Code, 23 Pa.S.A. § 401(d). Specifically, the lower court considered as relevant that the parties were married for over twenty-three (23) years, that appellant enjoys good health and earns $243.54 per week in addition to his pension benefits, that appellee suffers from leukemia which has in the past interrupted her ability to earn an income, and that appellee had contributed to the marriage her skills as a homemaker during appellant’s military service. Additionally, the lower court noted that appellee’s gross weekly earnings during the periods of her employment are $128.00 and that appellee has waived her right to rehabilitative alimony.

Our review of the record discloses that the lower court thoroughly and thoughtfully addressed the issue on appeal in accordance with the requirements of section 401(d) of the Divorce Code. As such, we find no abuse of discretion on the part of the lower court. Affirmed. Jurisdiction relinquished.

      . 23 Pa.S.A. § 401(d)(1).

      . Id. § 401(d)(3) & (6).

      . Id. § 401(d)(3).

      . Id. § 401(d)(7).

      . Id. § 401(d)(6).


text:
    536 A.2d 433
    COMMONWEALTH of Pennsylvania v. Charles COONEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1987.
    Filed Jan. 21, 1988.

      Wieand, J., concurred in result.
    Allen C. Welch, Harrisburg, for appellant.
    Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgment of sentence imposed after appellant, Charles Cooney, was convicted in two separate trials of robbery and former convict not to own a firearm.

Appellant seeks review of the following issues: (1) whether appellant’s due process rights which he alleges exist under the Agreement on Detainers Act, 42 Pa.C.S.A. § 9101 et seq. (Detainers Act) were violated when he was tried on charges other than those for which he was transferred to Pennsylvania; and (2) whether the trial court erred in determining that Pa.R.Cr.P. No. 1100, 42 Pa.C.S.A. rather than the 120 day rule pursuant to Article IV(c) of the Detainers Act, 42 Pa.C.S.A. § 9101 applied to appellant’s charges.

Appellant was brought to Pennsylvania from the state of New Jersey under the Detainers Act to face burglary charges lodged against him by the Harrisburg, Pennsylvania police. While in Pennsylvania on those charges, he was charged with two counts of robbery and former convict not to own a firearm by the Lower Paxton Township, Pennsylvania police. Subsequently, the burglary charges under the Detainers Act were dismissed and appellant proceeded to trials by jury on the robbery and firearm charges for which he was convicted. Timely post-trial motions were filed and denied by the court. This appeal followed. For the following reasons, we perceive no merit in the issues raised by appellant and affirm his judgment of sentence.

Appellant claims violation of his due process rights under the Detainers Act as he was tried on charges other than those for which his custody was sought by the Commonwealth. Specifically, appellant asserts that in order to try him on new charges, he should have been returned to New Jersey, the sending state, and his custody again requested for the purpose of prosecuting him on the charges of robbery and convict not to own a firearm. In that way appellant could seek review of his case and possible denial of the request for transfer which he claims is a due process right guaranteed by the Detainers Act. Appellant’s issue is one of first impression in our Commonwealth; our research has failed to disclose any cases on point in this jurisdiction or sister states. However, we have reviewed cases from which we can obtain guidance to analyze appellant’s assertion.

Article V(d) of the Detainers Act states that prosecution can be had after a transfer pursuant to the Detainers Act only on indictments which existed at the time of the transfer and which were the basis for the detainer which was lodged against the defendant. Here, charges were lodged against appellant subsequent to his transfer on crimes which were committed before he fled Pennsylvania and which were unrelated to those for which he was extradited. As to this situation, the Detainers Act is silent. Appellant urges that since the Detainers Act is remedial and liberally construed in favor of the detainee. See, Commonwealth v. Merlo, 242 Pa.Super. 517, 364 A.2d 391 (1976), the Detainers Act should be interpreted by this court as mandating strict interpretation of Article V(d).

Although the Detainers Act is silent on appellant’s situation, it is understood that under the Detainers Act the Commonwealth may not seek to bring an accused into Pennsylvania on one charge for the purpose of questioning him on another. However, nothing in the Act precludes the interrogation of someone on unrelated crimes so long as that interrogation is not the basis of his being detained or brought into the receiving state. See, 26 Standard Pennsylvania Practice 2d § 132.188; Commonwealth v. Frison, 301 Pa.Super. 498, 448 A.2d 18 (1982); 42 Pa.C.S.A. § 9101, Art. V(d).

Both the lower court and the Commonwealth suggest that appellant’s situation is akin to that of the appellant in Frison. In Frison, the appellant averred that because he was extradited only for credit card charges, he could not be questioned about a robbery that was unrelated to those charges. The court opined that:

We agree that the Commonwealth may not extradite an accused on' one charge for the purpose of questioning him on another. Here, however, appellant was extradited, not to be questioned about the Zipkin robbery, but at his own request, to resolve the outstanding credit card charge. Thus, when appellant was questioned about the Zipkin robbery, and then fingerprinted, he was being properly held on the credit card charge. Nothing in the Interstate Agreement on Detainers precludes the interrogation of someone on unrelated crimes so long as that interrogation is not the basis of his being detained or brought into the receiving state.

Commonwealth v. Frison, 301 Pa.Super. 498, 510, 448 A.2d 18, 24 (1982).

Likewise, our sister state of Iowa decided an issue analogous to appellant’s. There in State v. Casuso, Iowa, 253 N.W.2d 919 (1977) the court held that the Iowa authorities did not violate Iowa’s Detainers and Extradition Act by obtaining temporary custody of a federal prisoner in order to try him on a false check charge, for which a detainer had been filed against him, and by also trying him for the crime of sodomy, which he allegedly committed while in temporary custody in Iowa.

In Casuso, appellant claimed that holding and trying him for an offense not included on the request for temporary custody was a violation of the Act. Appellant relied upon Article V(d) of the Interstate Agreement of Detainers Act to support his argument. In its opinion the court stated:

There seems to be no question that the custody of the defendant was requested by the Scott County authorities of the Texarkana correctional institution in order that defendant could be prosecuted for the crime of false drawing of a check____ The Agreement on Detainers, chapter 759A, The Code, certainly did not envision or contemplate a factual situation such as is presented in the case before us here. The sodomy act had not even been committed at the time the custody of the defendant was requested in order that he could be prosecuted on the check charge. Defendant argues that the Agreement on Detainers was violated and became void when he was tried on the sodomy charge because it was not referred to in the request for temporary custody, and that therefore the district court of Scott County lost jurisdiction over him. We find no violation of chapter 759A, The Code, under these circumstances ...
The defendant contends he should have been returned to the sending state and that his custody should have again been requested for the purpose of prosecuting him on the charge of having committed an act of sodomy. Jurisdiction over the defendant in the sodomy case was not defeated by the manner in which he was brought before the Iowa court from the other jurisdiction.

State v. Casuso, Iowa, 253 N.W.2d at 920.

From the cited cases it becomes clear that there is no violation of the Detainers Act in bringing a prisoner into the requesting state on indictments charged pursuant to the Act and then either questioning him on unrelated charges or charging him with crimes committed once he is in the requesting state. In the case sub judice, appellant was brought into Pennsylvania under the Detainers Act by the Harrisburg police to face a burglary charge and then charged by the Lower Paxton Township police with the separate crimes of robbery and firearms offense which he committed. We do not find the difference between appellant’s case and those cited infra to be fatal. We hold that once a prisoner is brought into the Commonwealth according to the dictates of the Detainers Act, the authorities may indict him or her on the commission of crimes unrelated to those for which extradition was sought when the crimes charged were committed in the requesting state prior to the time he or she was returned under the Detainers Act. It would be an unnecessary burden on the penal system to adopt appellant’s argument that the Detainers Act requires the authorities to return a prisoner to the sequestering state so that charges outstanding in the requesting state, other than those for which the prisoner was originally extradited, can be brought against him. Cf. Frison, supra.

Appellant next maintains that the time limitation for bringing him to trial is that of 120 days as described in the Article IV(c) of the Detainers Act rather than Rule 1100. Appellant’s argument is that since no proceeding could have been commenced without his transfer pursuant to the Detainers Act, he should have been tried within 120 days. We disagree.

The Detainers Act provides that if a request for final disposition is initiated by a prisoner, pursuant to the Detainers Act, he is to be brought to trial within 180 days after he causes to be delivered to the prosecuting officer and the appropriate court written notice of the place of his imprisonment and his request for final disposition. Also, the Detainers Act provides that when requests for custody or availability are initiated by the authorities trial must be commenced within 120 days of the arrival of the prisoner in the receiving state. See, 42 Pa.C.S.A. § 9101, Art. 111(a); Art. IV(c). However, the charges in question here were not those for which appellant was transferred to the Commonwealth but those with which he was charged subsequent to his arrival. Consequently, since the charges brought in this case are separate and apart from any charge under the Detainers Act, it is Rule 1100 which determines the time of trial. Because appellant failed to raise any issues in this appeal under Rule 1100 it is found that his conviction is not hampered by the rule’s application.

Accordingly, appellant’s judgment of sentence is affirmed.

WIEAND, J., concurs in result.

      . The issues raised herein do not apply to appellant’s trial for this charge.

      . Article V(d) reads as follows:
      The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction ...
      42 Pa.C.S.A. § 9101, Art. V(d).


author: MONTEMURO, Judge:

text:
    536 A.2d 436
    COMMONWEALTH of Pennsylvania v. Harry M. GREEN, Sr., Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1987.
    Filed Jan. 19, 1988.

      Elliot J. Segel, Erie, for appellant.
    Ernest J. DiSantis, Jr., Assistant District Attorney, Erie, for Com., appellee.
    Before WIEAND, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

Appellant Harry M. Green, Sr., appeals from an Order denying his motion to dismiss on grounds of double jeopardy and/or various discovery violations. We affirm.

Appellant was convicted by jury of rape, statutory rape, corruption of minors, and indecent assault. On February 22, 1983, appellant was sentenced to consecutive terms of ten (10) to twenty (20) years on each of the rape charges. Appellant filed a timely appeal from the judgment of sentence, raising fourteen issues. A panel of this Court held that a prejudicial hearsay violation had been committed and remanded the case for a new trial. Commonwealth v. Green, (No. 00410 Pittsburgh, 1983, memorandum opinion, Filed May 10, 1985). We also commented that the Commonwealth violated the doctrine promulgated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Pa.R.Crim.P. 305(B)(1) by failing to disclose exculpatory results of the physical examinations of the victims, which showed that there was no evidence of physical trauma. Green, supra. On remand appellant claimed that his retrial was barred by the Double Jeopardy Clause of the Fifth and Fourteenth Amendments. After conducting a hearing at which the examining physician testified, the trial court denied appellant’s motion based on the fact that appellant could not prove intentional misconduct on the part of the Commonwealth. This timely appeal followed.

Appellant frames the following issue for our review:

Whether Commonwealth’s concealment of exculpatory and material evidence, to wit, exculpatory hospital/medical reports of alleged sex offense victims, and its misrepresentation to the physician who examined said alleged victims, that he need not appear as a witness because appellant had plead guilty, constitutes intentional and bad faith prosecutorial misconduct and overreaching, thus barring on double jeopardy grounds, any retrial of the appellant?

In 1982 the United States Supreme Court held in Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), that the constitutional protection against double jeopardy will prohibit retrial of a defendant following a defense-requested mistrial only where the prosecutorial misconduct on which the defense motion was based was intended to provoke the defendant into moving for a mistrial. Id. at 679. Our supreme court adopted the Oregon v. Kennedy standard in Commonwealth v. Simmons, 514 Pa. 10, 15, 522 A.2d 537, 540 (1987). In Simmons, the defendant and his accomplice were convicted of second degree murder and robbery. Both appealed claiming that a new trial was warranted because the prosecutor had concealed from the jury the terms of a plea agreement between a witness and the Commonwealth. The cases were remanded for a joint hearing on the issue and the trial court determined that new trials were warranted. In affirming the denial of motion to dismiss on double jeopardy grounds, our supreme court announced:

In light of the altered basis of [Commonwealth v. Starks [490 Pa. 336, 416 A.2d 498 (1980) ], we now declare that henceforth double jeopardy will attach only to those mistrials which have been intentionally caused by prosecutorial misconduct.

Id., 514 Pa. at 16, 522 A.2d at 540.

Consequently, we read Simmons as holding that a criminal defendant may invoke the bar of double jeopardy at a subsequent trial where it is determined that the prosecutorial misconduct giving rise to the mistrial or retrial after successful appeal was intended to provoke the defendant into moving for a mistrial, (emphasis added). While at first glance it may appear that Kennedy and Simmons are dispositive, we believe that a different line of reasoning is warranted in the instant case. Our belief is based on the fact that appellant’s new trial was granted as a result of a successful appeal finding a prejudicial hearsay violation, and not as a result of prosecutorial misconduct.

The law is well-settled that the Double Jeopardy Clause does not impose a “limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed because of insufficiency of the evidence.” Kennedy, supra 456 U.S. at 676 n. 6, 102 S.Ct. at 2090 n. 6. See also U.S. v. Leppo, 634 F.2d 101 (3d Cir.1980) (double jeopardy bars retrial after defendant’s conviction has been overturned as a result of insufficient evidence, but does not bar retrial in cases in which the judicial process was defective as a result of improper receipt of evidence); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983). In discussing the various contexts in which double jeopardy claims have arisen, the United States Supreme Court opined:

Finally, if the first trial has ended in a conviction, the double jeopardy guarantee ‘imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside.’ ‘It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.’ ‘[T]o require a criminal defendant to stand trial again after he has successfully invoked his statutory right of appeal to upset his first conviction is not an act of governmental oppression of the sort which the Double Jeopardy Clause was intended to protect.’

United States v. DiFrancesco, 449 U.S. 117, 131, 101 S.Ct. 426, 434, 66 L.Ed.2d 328 (1980) (citations omitted).

In the case at bar, while we did offer guidance to the trial court in the form of dicta that the results of the physical examinations of the victims was exculpatory evidence that was discoverable under Pa.R.Crim.P. 305(B)(1), we ordered a new trial because prejudicial hearsay had been admitted at the first trial and not because of the inadvertence or misconduct of the prosecutor. Were we to hold that reversal of a conviction on grounds other than intentional prosecutorial misconduct would bar reprosecution, it is doubtful that appellate courts would be as zealous as they should be in vindicating improprieties committed at the trial and pretrial stage. By successfully exercising his right to appeal, appellant’s original conviction has, at his own behest, been nullified and the slate wiped clean. The erroneous admission of hearsay at trial, which was the basis for overturning the guilty verdict, and the mistaken belief that the physical examination results were nondiscoverable, have been corrected by providing appellant with another opportunity to obtain “a fair adjudication of his guilt free from error.” Vogel, supra 501 Pa. at 327, 461 A.2d at 611. At the same time we have accommodated “society’s valid concern for ensuring that the guilty are punished.” Id. Because appellant was granted a new trial as a result of an appellate determination that prejudicial hearsay had been admitted at his first trial, and not as a result of prosecutorial misconduct, double jeopardy may not be invoked as a bar to his retrial.

Accordingly, the order of the trial court is affirmed.

Order affirmed.

      . We note that even if we were to apply the Oregon v. Kennedy standard, we would agree with the trial court’s determination that the objective facts of this case do not demonstrate the type of intentional conduct required to invoke the bar of double jeopardy. The trial court found that the failure to disclose the results of the victim’s physical examinations was a result of the "mistaken belief that the results were inconsequential and not mandatorily discoverable." Trial Court Op. at 4. This finding is supported by the record and we will not disturb it. See Commonwealth v. Mack, 313 Pa.Super. 372, 376, 459 A.2d 1276, 1278 (1983).


text:
    536 A.2d 439
    COMMONWEALTH of Pennsylvania v. Edward Thomas LOGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 19, 1987.
    Filed Jan. 22, 1988.

      John R. Kalenish, Johnstown, for appellant.
    Timothy P. Creany, District Attorney, Ebensburg, for Com.
    Before DEL SOLE, CERCONE and HESTER, JJ.
   CERCONE, Judge:

This is an appeal from an order of the trial court dismissing appellant’s petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. § 9541 et seq. For the reasons set forth herein, we reverse.

Appellant and another person were arrested and charged with murder on December 6, 1971. On October 2, 1972, appellant was found guilty by a jury of murder in the first degree and was subsequently sentenced to life imprisonment. Appellant filed a pro se PCHA petition on September 5, 1986 in which he alleged ineffectiveness of trial counsel. Appellant also filed a petition for the appointment “of counsel to represent him at a PCHA hearing and for leave to proceed in forma pauperis. Both petitions were summarily denied by the trial court pursuant to the order in question. This appeal followed.

Pennsylvania Rule of Criminal Procedure 1503 provides that “when an unrepresented petitioner satisfies the court that he is unable to procure counsel, the court shall appoint counsel to represent him____” Pa.R.Crim.P., Rule 1503(a), 42 Pa.C.S.A. See also Pennsylvania v. Finley, — U.S. —, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (finding that Pennsylvania has chosen to offer assistance of counsel to those seeking PCHA relief). A subsequent PCHA petition may be summarily dismissed only “when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he was afforded the opportunity to have counsel appointed or was represented by counsel in proceedings thereon.” Pa.R.Crim.P., Rule 1504, 42 Pa.C.S.A. Thus, an indigent petitioner is entitled to the assistance of counsel in filing his or her initial PCHA petition.

Instantly, appellant satisfactorily averred that he was indigent and requested the appointment of counsel for assistance in preparing his first PCHA petition. The trial court summarily dismissed his petitions, concluding that his claims were “patently frivolous and without a trace of support in the record.” This was error. Commonwealth v. McClinton, 488 Pa. 598, 413 A.2d 386 (1980); Commonwealth v. Scott, 469 Pa. 381, 366 A.2d 225 (1976). The point in time at which a trial court may determine that a PCHA petitioner’s claims are frivolous or meritless is after the petitioner has been afforded a full, fair and counseled opportunity to present those claims. See Commonwealth v. Sawyer, 355 Pa.Super. 115, 512 A.2d 1238 (1986). Hence, we reverse the order of the trial court and remand for proceedings consistent with this decision. Jurisdiction is relinquished.


author:
KELLY, Judge:
      HOFFMAN, Judge,

text:
    536 A.2d 440
    In the Interest of Corey PARKS. Appeal of Corey PARKS.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1987.
    Filed Jan. 27, 1988.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before BECK, KELLY and HOFFMAN, JJ.
   KELLY, Judge:

Appellant, Corey Parks, appeals from his adjudication of delinquency in connection with eleven burglary offenses. We affirm.

Appellant is a sixteen year old juvenile. On the afternoon of January 23, 1986, appellant and another youth were arrested in the vicinity of a burglary which occurred approximately twenty minutes earlier. Stolen property was recovered from the juveniles at the time of the arrest. On January 23, 1986 and January 28, 1986, appellant made three detailed confessions regarding his participation in numerous burglaries. On May 1, 1986, appellant’s motion to suppress his confessions was denied. On May 13, 1986, appellant was adjudicated delinquent on all eleven petitions presented to the juvenile court (each alleging a single burglary offense). Post-adjudication motions were denied. Timely notice of appeal was filed, and this appeal is now properly before this Court for disposition.

Appellant contends on appeal that: based upon the doctrine of incontrovertible facts the evidence is insufficient to sustain the adjudications with regard to two of the eleven burglary offenses; appellant was subjected to an unreasonable search and seizure when he was driven around the city by the police to point out the locations of burglaries he had committed, as the police were in violation of an order directing the police to transport appellant for charging and then return him to the youth study center; appellant’s rights under 42 Pa.C.S.A. § 6326(a) and Pa.R.Crim.P. 122 and 130 were violated by holding appellant for investigation and interrogation on January 23, 1986 and January 28,1986, before returning appellant to the Youth Study Center; and finally, the trial court erred in failing to suppress appellant’s detailed confessions based upon the Commonwealth’s failure to meet its burden of proof that appellant made a voluntary, knowing and intelligent waiver of his Miranda rights under the totality of the circumstances test established in Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984). We find no merit in these contentions.

I.

Appellant first contends that based upon the incontrovertible facts doctrine, the evidence is insufficient to sustain the adjudications with respect to two of the burglary offenses. Appellant argues that because public records indicate appellant was incarcerated at the Youth Study Center on the days that two of the burglaries were alleged to have occurred, the incontrovertible facts doctrine applies. We cannot agree.

The incontrovertible facts doctrine applies, if at all, only when an undisputed fact negates the existence of a required element of an offense. Commonwealth v. New man, 323 Pa.Super. 394, 470 A.2d 976 (1984). The mere fact that public records indicate that appellant was incarcerated on the date that two of the eleven burglaries took place does not conclusively establish that he could not have committed the burglaries. The records could be in error, appellant could have been incarcerated after the offense were committed on those days, or he could have been released or otherwise absent from the facilities at any time on those dates. The doctrine upon which appellant bases his first claim simply does not apply. We note that appellant’s confessions regarding both of the burglaries in question contained specific details regarding the burglaries which were corroborated by the victims’ reports of those burglaries, including details regarding the method of entry and items stolen. {See Commonwealth Exhibits Nos. 2 and 3; N.T. 3/20/86 at 86, 116). Thus, we reject appellant’s first contention on appeal.

II.

Appellant next contends that he was subjected to an unreasonable search and seizure when he was driven around the city by police to point out the locations of his numerous burglaries, as the police were allegedly in violation of an order directing the officers to take appellant for charging and then return him to the Youth Study Center. Appellant’s contention, however, was waived by appellant’s failure to raise this issue/theory in the juvenile court during the suppression hearing. It is axiomatic that appellate courts will not entertain for the first time on appeal issues or theories not posited first in the courts below. Commonwealth v. Johnson, 355 Pa.Super. 123, 140-41, 512 A.2d 1242, 1251 (1986).

Moreover, we note that the juvenile court found, as fact, that after being charged and prior to his return, appellant initiated a conversation with the investigating officers and indicated a desire to make a statement regarding the burglaries. Under these circumstances, the subsequent delay in returning appellant to the Youth Study Center while appellant voluntarily assisted the officers in identifying the scenes of the various burglaries was not unreasonable. We note that the court which issued the order (which appellant claims had been violated) took no action to enforce its order or sanction the alleged violation. Thus, we reject appellant’s second contention on appeal.

III.

Appellant next contends that the police violated appellant’s rights pursuant to 42 Pa.C.S.A. § 6326(a), Pa.R. Crim.P. 122, and Pa.R.Crim.P. 130 by unreasonably detaining appellant on January 23, 1986 and January 28, 1986 for questioning before returning him to the Youth Study Center. Appellant argues that the statements made during these interrogations should have been suppressed. We cannot agree.

Appellant voluntarily offered to make statements regarding various burglaries immediately after his arrest was processed, and again after a subsequent arraignment. Our review of the record discloses no unnecessary delay as envisioned by 42 Pa.C.S.A. § 6326, Pa.R.Crim.P. 122, or Pa.R.Crim.P. 130. Rather, any delay was the consequence of the number of separate crimes to which appellant confessed. We see nothing unreasonable in the delay occasioned by the officers driving appellant to the scene of the burglaries at appellant’s request in order that specific addresses could be determined. (Commonwealth Exhibit No. 3, at 3) (“I could do better if you take me around my route and I can show them to you”). We also note that a portion of the alleged delays was occasioned by the officers’ efforts to enable appellant to speak with an “interested adult” whom appellant had falsely identified as his mother, then later as his aunt and guardian. (N.T. 3/20/86 at 37-38, 50, 56-7, 141 & 147). Succinctly, the confessions were not the product of delay, nor were the delays occasioned by the confessions unreasonable. Compare In Interest of Anderson, 227 Pa.Super. 439, 313 A.2d 260, 263 (1973) (police may detain juvenile for processing and reasonable interrogation), with In Interest of Schirner, 264 Pa.Super. 185, 399 A.2d 728 (1979) (detention unreasonable when statements not made until nine and one-half hours after arrest). Thus, we reject appellant’s third contention on appeal.

IV.

Finally, appellant contends that the Commonwealth failed to meet its burden to establish by the preponderance of the evidence that under the totality of circumstances, appellant’s waiver of Miranda rights and subsequent confessions were knowingly, intelligently, and voluntarily made. Appellant argues that there was no evidence presented regarding appellant’s age, experience, or comprehension and that the purported opportunity to consult with an interested adult was inadequate; and therefore, the suppression court erred in finding that the confessions were admissible. We cannot agree.

In Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984), our Supreme Court held:

The requirements of due process are satisfied, and the protection against the use of involuntary confessions which law and reason demand is met by application of the totality of circumstances analysis to all questions involving the waiver of rights and the voluntariness of confessions made by juveniles. All of the attending facts and circumstances must be considered and weighed in determining whether a juvenile’s confession was knowingly and freely given. Among those factors are the juvenile’s youth, experience, comprehension, and the presence or absence of an interested adult.

475 A.2d at 1288. In the instant case, the trial court applied the totality of circumstances test to the evidence presented and concluded that appellant’s waiver of his Miranda rights and his detailed confessions were knowingly, intelligently, and voluntarily made. Suppression Court Opinion 9/30/86 at 15-24.

Our scope of review of trial court decisions regarding the decision of a trial court on suppression issues is limited primarily to questions of law; we are bound by the trial court’s findings of fact if those findings are supported by the record. In determining whether the findings of fact are supported by the record, we are to consider only the evidence of the appellee and so much of the evidence of the appellant as remains uncontradicted. It is for the suppression court as the trier of fact, rather than the reviewing court, to determine credibility. Commonwealth v. White, 358 Pa.Super. 120, 123, 516 A.2d 1211, 1212 (1986). The suppression court found that the Commonwealth had met its burden to establish by a preponderance of the evidence that appellant’s confessions were the product of a knowing, intelligent and voluntary waiver of appellant’s Miranda rights. We find no basis to disturb this determination.

The record discloses that appellant was physically present at the suppression hearing (N.T. 3/20/86 at 82, 111); he was described by a witness as being in his teens (N.T. 3/20/86 at 20); and appellant’s age, 16, was indicated on several of the forms admitted as exhibits in the suppression hearing. {See Commonwealth Exhibits Nos. 1-3; Defense Exhibit No. 1). There was ample evidence presented to permit consideration of appellant’s age.

The record discloses that appellant, sometimes alone and sometimes with others, burglarized numerous homes over a period of several months (N.T. 3/20/86 at 40, passim; Commonweatlh Exhibits Nos. 1-3); appellant was previously known to the police, the police had his name and his photograph in the police car at the time of his arrest (N.T. 3/20/86 at 33); numerous (albeit vague) references to prior and contemporaneous criminal acts by appellant were made throughout the hearing (see e.g. N.T. 3/20/86 at 40, 145-146); appellant attempted to give the police a false name (N.T. 3/20/86 at 33), falsely gave his friend’s address as his home (N.T. 3/20/86 at 53, 145), and falsely stated that Mrs. Figueroa was his mom, then aunt (N.T. 3/20/86 at 37-38, 50, 56-7, 141, 147). Mrs. Figueroa explained that appellant was an “associate” of her son; appellant slept and ate at her house sometimes; she knew that appellant had identified her home as his residence and her as his aunt; and, she felt he was giving her address so that the police would not find out he was not where he was supposed to be. (N.T. 3/20/86 at 152). The record clearly supports the trial court’s conclusion that appellant’s conduct exhibited criminal sophistication, and thus provided an ample basis for evaluating appellant’s “experience.” See Suppression Court Opinion 9/30/86 at 18-19.

The record further discloses that appellant could read and write (N.T. 3/20/86 at 96, 117-118); in two of appellant’s confessions appellant specifically stated that he could read and write. (See Commonwealth Exhibit No. 1 at 3; Commonwealth Exhibit No. 2 at 3). He had sufficient perception, memory, and intellect to recall and describe to the officers details of numerous crimes and to direct them to the locations where they occurred. (N.T. 3/20/86 at 40, passim; Commonwealth Exhibits Nos. 1-3). Appellant was given his Miranda rights in simple, easy to understand language several times and each time indicated his willingness to waive his rights and to make statements. (Commonwealth Exhibits Nos. 1-3). We find there was a sufficient basis for the trial court to evaluate appellant’s ability to comprehend his rights and his waiver of those rights. With regard to the first three prongs of the four prong Williams test, we find the absence of litany responses to a colloquy regarding appellant’s age, experience, and comprehension did not impede consideration of those factors by the suppression court in the instant case.

Finally, we note that it was for the trial court to resolve the conflict in the evidence with respect to whether Mrs. Figueroa informed police that she was not appellant’s aunt and guardian and whether she authorized questioning after having been informed of appellant’s Miranda rights. The trial court was entitled to reject Mrs. Figueroa’s version of the facts in favor of the police officers’ testimony. (Compare, N.T. 3/20/86 at 37-38, and N.T. 3/20/86 at 141-43). Therefore, for the purpose of this appeal, we must accept that: the police contacted an individual who both the appellant and the individual identified as an interested adult; the individual was informed of appellant’s Miranda rights; and the individual authorized the police to question appellant. Suppression Court Opinion 9/30/86 at 21-24. While the fact that appellant did not actually speak to the person he identified as an interested adult is a factor which weighs against admissibility, we note that the suppression court found as fact that appellant had the “opportunity” to speak to Mrs. Figueroa, but that he declined it. Suppression Court Opinion at 23-24; {see also N.T. 3/20/86 at 121). We find the trial court’s conclusion that appellant declined his opportunity to speak to an interested adult to be a reasonable inference based upon the testimony presented.

We find no error of law in the trial court’s conclusion that under the totality of circumstances test announced in Commonwealth v. Williams, supra, the detailed confessions made by appellant were admissible. We note that appellant specifically stated in his confessions that he was not illiterate, intoxicated, under the influence of drugs, promised special treatment, or in any way coerced by the police. (Commonwealth Exhibits Nos. 1-3). No evidence was produced to disprove or to call those statements into question. Appellant’s fourth and final contention is without merit.

CONCLUSION

Based upon the foregoing, the order is affirmed.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge,

dissenting:

After carefully reviewing the record in this case, I conclude that I must dissent from the majority’s conclusion that the Commonwealth met its burden of proving that appellant’s confessions were made knowingly, intelligently, and voluntarily.

On January 23, 1986, appellant was arrested and charged with burglary. He was given Miranda warnings and then transported to the home of Lenora Figueroa, whom appellant had indicated was his mother. After learning that Ms. Figueroa was not at home, the police telephoned her at work. She told police that she was not appellant’s mother, but rather his aunt. N.T. March 20,1986 at 37. The police officer informed Ms. Figueroa of appellant’s rights and she gave the officer permission to question him. Id. at 38. Appellant did not speak with Ms. Figueroa. Two police officers then drove appellant through the neighborhood while appellant pointed out additional houses that he had burglarized. Appellant was returned to the police station where he signed a written statement detailing what he had earlier told police. Later that same evening, two other police officers drove appellant through the neighborhood while he pointed out more houses that he had burglarized. Again, appellant signed a written statement detailing his involvement in the burglaries. He then was turned over to the custody of the Youth Study Center.

On January 28, 1986, appellant was arrested on additional burglary charges. He was given Miranda warnings and then driven to Ms. Figueroa’s home. The police again telephoned Ms. Figueroa at work and she gave the officer permission to question appellant. Appellant did not speak to Ms. Figueroa. Two police officers then drove appellant through the neighborhood and appellant pointed out additional homes he had burglarized. He then signed another written statement detailing his involvement in the additional burglaries.

Appellant filed a motion to suppress his statements to the police and, following a hearing, the motion was denied. He was adjudicated delinquent on eleven charges of burglary following a hearing at which evidence was entered by stipulation. Appellant was committed to two years at Corn-wells Heights Security Unit and this appeal followed.

Appellant contends that the lower court erred in denying his motion to suppress his statements because the Commonwealth failed to meet its burden of proof that the confessions were the product of a knowing, intelligent, and voluntary waiver of his Miranda rights. I agree.

At a suppression hearing, the Commonwealth bears the burden of proving by a preponderance of the evidence that the challenged evidence was not obtained in violation of the accused’s rights. Commonwealth v. Otto, 343 Pa.Superior Ct. 457, 459 n. 1, 495 A.2d 554, 555 n. 1 (1985); Commonwealth v. Bonasorte, 337 Pa.Superior Ct. 332, 344, 486 A.2d 1361, 1368 (1984). See also Pa.R.Crim.P. 323(h). “If the suppression motion has been denied, the appellate court ‘will consider only the evidence of the prosecutor’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.’ ” Commonwealth v. Otto, supra (quoting Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977)).

In Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), our Supreme Court announced a per se rule requiring that a juvenile have an opportunity to consult with an interested adult before waiving his or her Miranda rights. The Court overruled McCutchen in Commonwealth v. Christmas, 502 Pa. 218, 465 A.2d 989 (1983), and reduced the per se requirement to a rebuttable presumption that a juvenile was incompetent to waive his or her constitutional rights without first having an opportunity to consult with an interested adult. Id., 502 Pa. at 223, 465 A.2d at 992. In Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984), our Supreme Court overruled Christmas and held that a juvenile need not consult with an interested adult prior to making a confession. Instead, the Court held that:

The requirements of due process are satisfied, and the protection against the use of involuntary confessions which law and reason demand is met by application of the totality of the circumstances analysis to all questions involving the waiver of rights and the voluntariness of confessions made by juveniles. All of the attending facts and circumstances must be considered and weighed in determining whether a juvenile’s confession was knowingly and freely given. Among those factors are the juvenile’s youth, experience, comprehension, and the presence or absence of an interested adult.

Commonwealth v. Williams, supra, 504 Pa. at 521, 475 A.2d at 1288. Although the per se McCutchen rule is no longer the law in Pennsylvania, “the absence of the juvenile’s right to confer with an interested adult will be viewed as an important factor among the totality of circumstances in determining if the waiver was voluntary.” Commonwealth v. Bebout, 335 Pa.Superior Ct. 275, 279-80, 484 A.2d 130, 132 (1984).

Applying a totality of the circumstances analysis, I find a dearth of evidence to support the conclusion that the Commonwealth proved that appellant's statement was voluntary. First, I note that appellant was not given an opportunity to consult with an interested adult. Ms. Figueroa was not present at any of the interrogations. Additionally, appellant was never given the opportunity to consult with her. While the lower court found that Ms. Figueroa gave the police her permission to question appellant, Lower Court Opinion at 23,1 would conclude that her mere permission to question appellant is insufficient to render his confession voluntary. The presence of an interested adult has been deemed important by our courts not because the adult must give the police permission, but rather because it gives the juvenile an opportunity, after the adult has been apprised of the juvenile’s rights and the circumstances of the arrest, to consult with the adult and receive advice concerning the waiver of his or her rights. The interested adult may not unilaterally waive those rights for the juvenile. Here, both the police officers and Ms. Figueroa testified that she only spoke to the police and never spoke to appellant. N.T. March 20, 1986 at 56, 98, 143.

The lower court concluded, however, that the fact that appellant never spoke with Ms. Figueroa was irrelevant because “he did have the ‘opportunity’ to speak with her but chose not to.” Lower Court Opinion at 23. I disagree. The testimony at the suppression hearing does not support the conclusion that appellant was given the opportunity to speak with Ms. Figueroa. Officer O’Connor testified that on January 23, 1986, the telephone connection was broken before his conversation with Ms. Figueroa was completed and that he did not try to call her back. N.T. March 20, 1986 at 56. Officer Maahs testified that on January 28, 1986, appellant replied “Fine, let’s go” when told that Ms. Figueroa had given the officer permission to take a statement from him. Id. at 121. It is apparent, therefore, that appellant was never asked if he wished to speak with Ms. Figueroa. Thus, it follows that he never made a choice not to speak with her.

The effect of the lower court’s conclusion that appellant’s confession was voluntary because he did not request to speak with Ms. Figueroa is to take away from the police the burden of protecting a juvenile’s rights and to place an affirmative burden on the juvenile to demand that the police give him or her the opportunity to consult with an interested adult. I cannot tolerate this result. The very purpose of allowing a juvenile the opportunity to speak with an interested adult is that a juvenile, because of his or her age, may not be able to comprehend the gravity of the situation and make a decision regarding his or her rights that would be in his or her best interests. For this reason, it would be incongruous for this Court to assume that the same juvenile who may be too young to waive his or her rights is mature enough to demand the counsel of an adult to protect those rights. Accordingly, because I do not believe a juvenile should be required to be so forthright, I would conclude that appellant was not given the opportunity to consult with an interested adult.

Although absence of an opportunity to consult with an interested adult is not conclusive proof that a juvenile’s confession was made voluntarily, see Commonwealth v. Williams, supra, the Commonwealth has failed to present any evidence of other Williams factors that would indicate that appellant’s confessions were voluntary. No formal evidence of appellant’s age or prior record was introduced. Moreover, no evidence was introduced regarding appellant’s education level, reading ability, or general intelligence. Although the lower court acknowledged that appellant’s education level is uncertain, it concluded that “it is at least clear that [appellant] was able to read since he read his statement in front of the police officer.” Lower Court Opinion at 19 (citing N.T. March 20, 1986 at 41). At best, the testimony of the police officer indicates that it appeared that appellant was able to read his statement. Appellant did not read his statement aloud to the police and it does not appear that any one asked appellant if he could read before giving him his statement to read and sign.

The lower court also concluded that “[c]ertainly, the [appellant’s] physical condition was normal at the time of his arrest and detention. Nor was the [appellant] subjected to physical or psychological abuse.” Lower Court Opinion at 18. The lower court fails to cite, and I am unable to find, any evidence in the record that would support the conclusion that appellant was in good physical condition at the time of arrest and detention. Moreover, there was no evidence regarding whether appellant had been physically or psychologically abused. Because the Commonwealth bears the burden of proof at all time during the suppression hearing, see Commonwealth v. Otto, supra; Commonwealth v. Bonasorte, supra, the absence of evidence that appellant was in poor physical condition or was not abused cannot automatically support the conclusion that appellant was in good physical condition or that he was not abused in any way. Furthermore, the Commonwealth failed to present evidence showing that appellant was free from the influence of alcohol or drugs at the time he made his statements. Accordingly, I would conclude that the lower court abused its discretion when it denied appellant’s suppression motion because the Commonwealth failed to meet its burden of proving that appellant made a knowing, intelligent, and voluntary waiver of his Miranda rights under the totality of the circumstances test enunciated in Commonwealth v. Williams, supra.

      . Appellant also argued in the trial court that his original detention and arrest were illegal; he has not raised this contention on appeal.

      . Williams expressly overruled Commonwealth v. Christmas, 502 Pa. 218, 465 A.2d 989 (1983) (recognizing a rebuttable presumption that a juvenile was incompetent to effect a valid waiver without having the opportunity to consult with an interested adult), which had overruled Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975) (announcing per se rule requiring that juvenile have an opportunity to consult with an interested adult before waiving Miranda rights). See Comment, Now My Son, You Are a Man: The Judicial Response to Uncounseled Waivers of Miranda Rights By Juveniles in Pennsylvania, 92 Dickinson L.Rev. 153, 156-166 (1987) (same); Comment, Around and Around on Pennsylvania’s Juvenile Confession Carousel: This Time Police Get the Brass Ring, 30 Vill.L.R. 1235, 1254-64 (1985) (tracing development of Pennsylvania juvenile confession law); Note, Prosecution May Show By a Totality of the Circumstances That a Juvenile Defendant Effectively Waived His or Her Miranda Rights, 58 Temple L.Q. 399, 399-407 (1985) (same).

      . Testimony at the suppression hearing revealed that Ms. Figueroa was not related to appellant nor was she his legal guardian. Ms. Figueroa testified that appellant was her son’s friend and that he spent the night at her house and had meals there frequently for several months prior to his arrest. N.T. March 20, 1986 at 145-49.

      . The lower court also concludes that the police procedure was proper in this case because "telephonic participation has been approved” by our courts in Commonwealth v. Webster, 466 Pa. 314, 327, 353 A.2d 372, 378 (1975) (although juvenile was given chance to talk to his mother by telephone, statement was suppressed because no evidence that mother was advised of son's Miranda rights); and Commonwealth v. Hill, 305 Pa.Superior Ct. 560, 562, 451 A.2d 1019, 1019 (1982) (juvenile confession was voluntary because he had opportunity to speak with his mother by telephone). Lower Court Opinion at 22-23. These cases stand for the proposition that the actual physical presence of an interested adult is not required provided the juvenile has some meaningful opportunity to consult with the adult — in these cases, by telephone. These cases do not apply in the instant case because it is clear that appellant never spoke with Ms. Figueroa by telephone or otherwise.


author: WIEAND, Judge:

text:
    536 A.2d 447
    COMMONWEALTH of Pennsylvania v. Steven C. WEST, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1987.
    Filed Jan. 25, 1988.
    Petition for Allowance of Appeal Denied June 27, 1988.

      Mark Lovecchio, Williamsport, for appellant.
    Kenneth Osokow, Assistant District Attorney, Williams-port, for Com., appellee.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   WIEAND, Judge:

Steven West was tried non-jury on January 9, 1987 and was found guilty of driving while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(4). Oral post-trial motions, made immediately following trial, were denied. West was sentenced on March 13, 1987 to pay a fine of seven hundred ($700.00) dollars, plus costs, and to undergo imprisonment for not less than twenty (20) days nor more than one (1) year. On direct appeal, West asserts that the trial court erred by denying his suppression motion. He argues specifically that he should have been permitted to speak with an attorney before deciding whether or not to consent to a breathalyzer test. We find no merit in this contention and affirm the judgment of sentence.

At or about 11:45 p.m. on June 7,1986, two police officers observed West operating his car in an erratic manner in the City of Williamsport, Lycoming County. The officers followed West and observed that he was exceeding the speed limit and that he failed to stop at a stop sign. The police then stopped West’s car and observed beer bottles therein. When West responded belligerently to the stop, he was placed under arrest for disorderly conduct. While being transported to City Hall to be processed on the disorderly conduct charge, one of the officers detected the odor of alcohol on West’s breath and informed him that he would be charged also for driving while under the influence of alcohol. It was at this point that West asked to speak to an attorney.

At City Hall, West’s Miranda rights were read to him, and he again asked to see an attorney. The police asked West for his name and address, and then requested him to perform several sobriety tests. After he had failed to perform these tests satisfactorily, he was again told that he was under arrest for driving under the influence and was requested to submit to a breathalyzer test. West was advised of the consequences of failing to consent to the test, and thereafter he agreed to take a breathalyzer test. The results of the test indicated that his blood alcohol content was .17%.

Prior to his trial, West filed a motion to suppress both the results of the breathalyzer test and the video tape record compiled by the police on grounds that he had requested an attorney and had been denied an opportunity to obtain one. Following an evidentiary hearing, West’s suppression motion was denied. West then filed a motion for reconsideration of the suppression ruling, but, following another evidentiary hearing, the motion was again denied. Now, on direct appeal, West argues that his constitutional right to counsel was violated when his requests to speak with an attorney were not granted prior to his submission to a breathalyzer test. We do not agree.

In Commonwealth v. Morris, 218 Pa.Super. 347, 280 A.2d 658 (1971), this Court, in the context of a license suspension for refusal to take a breathalyzer test, was asked to decide whether police must honor a request by a licensee to speak with an attorney prior to consenting to take a breathalyzer test. In holding that such a request need not be honored, this Court stated:

The action of the secretary in suspending a license for refusal to take a breath test is a civil proceeding. Insofar as this civil proceeding is concerned, the licensee has no right to have an attorney present before deciding whether or not he will take the test. There also is no right, either constitutional or statutory, to be able to call an attorney before deciding whether or not to take the test.
Since no constitutional or statutory rights were abridged, it follows that appellee had no right to condition his taking the test upon being able to make a telephone call.

Commonwealth v. Morris, supra, 218 Pa. at 349, 280 A.2d at 659 (citations and footnotes omitted). See also: Claybaugh v. Commonwealth, Department of Transportation, Bureau of Traffic Safety, 86 Pa.Cmwlth. 147, 484 A.2d 196 (1984); Commonwealth, Department of Transportation, Bureau of Traffic Safety v. Mumma, 79 Pa.Cmwlth. 108, 468 A.2d 891 (1983); Weitzel Appeal, 41 Pa.Cmwlth. 235, 400 A.2d 646 (1979). In the instant case, however, the question with which we are faced is whether the right to speak with an attorney attaches when the results of a breathalyzer test will be used as evidence in a criminal proceeding. Our research has disclosed no appellate decisions in this Commonwealth resolving this issue.

Generally, the right to counsel attaches at all critical stages of a criminal proceeding. See: Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978); Commonwealth v. Barnette, 445 Pa. 288, 285 A.2d 141 (1971); Commonwealth v. Ritchey, 431 Pa. 269, 245 A.2d 446 (1968). This is true under both the Sixth Amendment of the United States Constitution and Article I, § 9 of the Pennsylvania Constitution. In re Gartley, 341 Pa.Super. 350, 365, 491 A.2d 851, 859 (1985), affirmed, 513 Pa. 429, 521 A.2d 422 (1987). This Court has described a critical stage as follows:

A “critical stage” of the prosecution has been defined as “any stage of the prosecution, formal or informal, in or out of court, where counsel’s absence might derogate from the accused’s right to a fair trial.” United States v. Wade, supra, 388 U.S. [218] at 226, 87 S.Ct. [1926] at 1932 [18 L.Ed.2d 1149 (1967) ]. The thrust of the right to counsel is the entrustment of the right to a fair trial. Thus, counsel’s presence at “critical stages” of the proceedings is mandated because “counsel’s legal training and expertise may then be employed on behalf of the accused to observe, discover and prevent possible unfairness or irregularity in ... procedures which may later irreparably prevent a basically fair determination of guilt or innocence.” United States ex rel. Stukes v. Shovlin, 329 F.Supp. 911, 913, (E.D.Pa.1971), aff'd, 464 F.2d 1211 (3d Cir.1972). We are required, therefore, to scrutinize the designated proceeding to determine whether the presence of counsel is necessary to preserve an accused’s basic right to a fair trial. This inquiry calls upon us to analyze whether potential substantial prejudice to an accused’s rights inheres in the particular proceeding and whether counsel would have the ability to help avoid that prejudice. United States v. Wade, supra.

Commonwealth v. Shirey, 333 Pa.Super. 85, 104, 481 A.2d 1314, 1324 (1984). See also: United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); United States ex rel. Stukes v. Shovlin, 329 F.Supp. 911 (E.D.Pa. 1971), aff'd, 464 F.2d 1211 (3d Cir.1972).

The United States Supreme Court in United States v. Wade, supra, reasoned that preparatory steps in the gathering of evidence by the prosecution, “such as systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like,” are not “critical stages at which the accused has the right to the presence of his counsel.” Id. 388 U.S. at 227, 87 S.Ct. at 1932, 18 L.Ed.2d at 1157-1158. Essential to this reasoning was the Court’s observation that

[knowledge of the techniques of science and technology is sufficiently available and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel’s absence at such stages might derogate from his right to a fair trial.

United States v. Wade, supra at 227-228, 87 S.Ct. at 1932, 1933, 18 L.Ed.2d at 1158. See also: Commonwealth v. Stukes, 435 Pa. 535, 257 A.2d 828 (1969).

Most state courts which have considered this issue have followed the reasoning of the United States Supreme Court and have held that submission to a breathalyzer test is not a critical stage, and, thus, no constitutional right to counsel attaches thereto. See, e.g.: State v. Cichowski, 203 Conn. 97, 523 A.2d 503 (1987); State v. Hoch, 500 So.2d 597 (Fla.Dist.Ct.App.1986); State v. Greene, 128 N.H. 317, 512 A.2d 429 (1986); State v. Lombard, 146 Vt. 411, 505 A.2d 1182 (1985); Wells v. State, 285 Ark. 9, 684 S.W.2d 248 (1985); State v. Jones, 457 A.2d 1116 (Me.1983); State v. Newton, 291 Or. 788, 636 P.2d 393 (1981); Dunn v. Petit, 120 R.I. 486, 388 A.2d 809 (1978).

In the instant case, we conclude that the presence of an attorney prior to the administration of a breathalyzer test is not necessary to ensure that an accused receives a fair trial on charges of driving while under the influence of alcohol. Such a procedure is not akin to a lineup, which contains the dangers of suggestiveness and misidentification which an attorney’s legal training and experience may be able to prevent. Moreover, a breath test is not testimonial in nature so as to make an attorney’s presence essential to preserve the accused’s privilege against self-incrimination. See: Commonwealth v. Anderl, 329 Pa.Super. 69, 477 A.2d 1356 (1984); Commonwealth v. Benson, 280 Pa.Super. 20, 421 A.2d 383 (1980). The breathalyzer is mechanical in nature, and the trial of the case presents adequate opportunity to explore and challenge the accuracy of the device used to implement the test, as well as the qualifications of the personnel who conducted it.

Appellant testified that he would have refused to submit to the test if an attorney had advised him not to take it. This argument is unpersuasive. Appellant was advised by the police that refusing to submit to the test would lead to a suspension of his license. Faced with this choice, he consented to the test. This is all that was required by Pennsylvania’s implied consent law. 75 Pa.C.S. § 1547. To now require that one accused of drunk driving be given the right to consult with an attorney prior to consenting to a breathalyzer test would frustrate the very purpose of the implied consent law. Delay in administering the test would, because of the evanescent nature of alcohol in the blood stream, serve only to impair the accuracy of the test. See: Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986).

Thus, we join those courts which have held that a person arrested on charges of driving while under the influence of alcohol does not have a right under the Sixth Amendment of the United States Constitution to consult an attorney before deciding whether to consent to the administration of a breathalyzer test. Similarly, there is no such right to counsel under Article I, section 9 of the Pennsylvania Constitution.

The judgment of sentence is affirmed.

      . Section 3731(a)(4) provides:
      (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
      (4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

      . Upon asking a person under arrest to submit to a breathalyzer test, the police are required to inform that person that refusal to submit to the test will lead to a suspension of his driver’s license. See: 75 Pa.C.S. § 1547(b)(2).

      . The sequence of events occurring at City Hall had been recorded by the police on video tape.


author: WATKINS, Senior Judge:

text:
    536 A.2d 451
    Ronald E. ETZWEILER v. Barbara A. WATT.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1987.
    Filed Jan. 28, 1988.

      John J. Krafsig, Jr., Harrisburg, for appellant.
    Barbara A. Watt, Harrisburg, for appellee.
    Before CAVANAUGH and BROSKY, JJ., and WATKINS, Senior Judge.
   WATKINS, Senior Judge:

These consolidated appeals come to us from Orders entered August 19, 1986 and January 16, 1987, in the Court of Common Pleas of Dauphin County. In the August 19, 1986, Order, the Honorable Warren G. Morgan denied appellant Ronald E. Etzweiler’s petition for support. In the January 16, 1987, Order, appellant was directed to pay the sum of twenty dollars per week plus five dollars on arrearages for the support of his daughter.

The history of this case as set forth in the trial court’s opinion is as follows:

On July 1, 1986 at 2035 DR 1981 we ordered the defendant to pay the sum of $20.00 per week, effective June 2, 1986 for the support of a child, Faith, who is eighteen years old and attending Harrisburg Community College. At 1318 DR 1986, we denied his claim against his former wife for support of a son, Mark. He appealed and, after hearing de novo, the order was affirmed. He then appealed to the Superior Court and because we decided that the record at the de novo hearing did not include certain relevant information regarding expenses of the parties, we agreed to re-consider the matter. We did so on November 25, 1986.

(Trial court opinion, January 16, 1987, p. 1)

On January 16, 1987, the trial court entered an Order directing the appellant, Ronald Etzweiler, to pay the sum of twenty dollars per week, plus five dollars on arrearages for the support of his daughter. This appeal followed.

Appellant presents the following questions for our consideration:

A. Did the lower court properly apply appellate guidelines to the respective cases, of a minor dependent son residing with appellant and a daughter graduated from high school seeking a college education residing with Appellee or did he totally ignore “Melzer Guidelines?”
B. Did the lower court abuse its discretion and ignore mandated case law, where the record established that dependent minor son was living under same roof with Appellant, who was his sole support, and where there was ample evidence under “Melzer Guidelines” of income, assets, and resources of Appellee of her ability to pay support retroactive?
C. Did the lower court judge in effect, rubber stamp blatant sex discrimination against Appellant by female Domestic Relations Officers, who also totally ignore “Melzer Guidelines” and minimum concepts of due process and fair play, as evidenced by the record, to constitute a gross abuse of discretion?
(Appellant’s brief, p. 3)
In Melzer (Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984)) our Supreme Court set forth uniform guidelines for the calculation of child support. It held that in making such a calculation, the hearing court must determine: (1) the reasonable expense of raising the children involved; and (2) the respective abilities of the parents to support their children. After it has made these determinations, the court is to calculate each parent’s total support obligation in accordance with the formula set forth in Melzer.
Finally, once each parent’s total support obligation has been defined, the hearing court must determine what portion of that obligation may be offset by support provided directly to the children. The total support obligation may be offset only by such voluntary ex-pdenditures as actually satisfy the obligation of reasonable and necessary support. Id. Although the figure thus arrived at for the amount of support which must be satisfied by way of support payments to the other parent is not required by Melzer to be mechanically adhered to by the hearing court, it must be determined and used by the court as a framework for its decision.
Reiss v. DeLuca, [355] Pa.Super. [622], 510 A.2d 1239, 1240-41 (1986).

In the instant case, the court made the following determinations:

The defendant’s earnings statement establishes to our satisfaction that his net earnings average as much as $430.00 per week, including ovetime. (See earning statement; Hearing 8/19/86 — N.T. 13, 14). The child, Faith, lives with her mother, who provides for all of her living expenses except her transportation which Faith maintains from her earnings. (Hearing 11/25/86 — N.T. 28). She seeks contribution from the defendant only toward the cost of her education which includes tuition of $463.00 per semester, books $195.00 and lunches at $10-$12 per week (8/19/86 — N.T. 28). Defendant lives in a modest home but it is mortgage free. An adult son, wife and children reside with him and although the son is employed, it appears that the defendant requires little contribution from him toward the household, except a small amount toward utilities (8/19/86 — N.T. 10, 11; 11/25/86 — N.T. 27). The defendant is unmarried and his only dependent is a son, Mark, now 17 and a senior in high school. Mark occupies a room in a dwelling which adjoins that of defendant with defendant’s mother who provides him with his needs. The defendant pays her $20.00 per week for this. The defendant contributes nothing to his daughter, Faith.
We have examined the expenses which the defendant has submitted but must question the amount contributed to Mark. His testimony that Mark costs him $114.00 per week (11/25/86 — N.T. 18) is at great odds with his earlier testimony that the expense for Mark is between $150-$175 per month (8/19/86 — N.T. 8). Further, support of his adult son’s family must yield to the needs of his younger, dependent children.
Nor are we much persuaded by defendant’s argument that his former wife is better able to contribute to Faith’s support or should aid him with a contribution to Mark. She earns $235 per week and the entire amount is exhausted in the payment of the mortgage on her present residence.

(Trial court opinion, 1/16/87, pp. 1-3)

In this case, the only amount established, as to appellant-father’s ability to pay was $430.00 per week, including overtime. Appellee-mother’s income was established at $235.00 per week. Those figures however do not represent the income available for support, which is the net income less the reasonable living expenses of the parents. With regard to appellant-father’s expenses, the court, in its opinion, only listed the $20.00 per week appellant-father gives to the grandmother. Appellee-mother’s expenses are not listed except to note that the $235.00 per week she earns is exhausted in payment of the mortgage on her residence.

The needs of the children must also be established. The court listed three figures for Mark’s expenses in its opinion ($114.00, $150.00, and $175.00.) but we are unable to determine which figure was actually used. As to Faither’s expenses the only items mentioned in the court’s opinion are those related to her college education; the cost of tuition, books and lunches.

Considering the foregoing we will vacate the order and remand to the trial court to make determinations necessary to an application of the Melzer formula.

Orders vacated; case remanded. Jurisdiction relinquished.

      . We note that the trial court, in computing appellee-mother’s ability to pay may wish to consider the sum, if any, appellee's second spouse actually contribute to the support of the children Astillero v. Shotwell, 294 Pa.Superior 222, 439 A.2d 831 (1982). We bring this up only because the court in its opinion, stated that appellee's second spouse bears all other expenses of the household except for the mortgage payment paid by appellee.