author: WIEAND, Judge: CAVANAUGH, Judge,

text:
    496 A.2d 752
    COMMONWEALTH of Pennsylvania, Appellee, v. Stephen MILLS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1984.
    Filed June 7, 1985.
    Reargument Denied Aug. 12, 1985.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and MONTGOMERY, JJ.
   WIEAND, Judge:

Stephen Mills was tried by jury and was found guilty of burglary. It was his eighth conviction for the same offense. The trial judge, the Honorable James D. McCrudden, deferred sentencing pending receipt of a presentence investigation and a psychiatric evaluation. Thereafter, Mills was sentenced to serve a term of imprisonment for not less than ten nor more than twenty years. A petition for reconsideration was denied, and Mills appealed. He contends that the sentence exceeded that recommended by the sentencing guidelines, as set forth in 204 Pennsylvania Code, Chapter 303, without adequate reason. We disagree and affirm the judgment of sentence.

Appellant and the Commonwealth are agreed that the gravity score for appellant’s offense is six; his burglary was committed in a structure adopted for overnight accommodations in which no person was present at the time of the offense. Two additional points are to be added for each prior offense. 204 Pennsylvania Code, Chapter 303.-7(b)(2)(H). The maximum number of points for prior convictions, however, is six. 204 Pennsylvania Code, Chapter 303.7(h). For a defendant with an offense gravity score of six and a prior record score of six, the guidelines recommend an aggravated minimum sentence of between 49 and 61 months and a mitigated minimum sentence of between 25 and 33 months.

Appellant concedes, as he must, that a sentencing court may deviate from the sentencing guidelines if it provides a contemporaneous written statement of its reasons for doing so. The adequacy of the court’s reasons, of course, is subject to review on appeal. Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984). In the instant case the sentencing court did provide a contemporaneous statement of reasons for imposing a sentence in excess of that recommended by the guidelines. Appellant argues, however, that the court’s reasons were inadequate. He contends that, in reality, the only reason given by the sentencing court was that appellant had had seven prior convictions for burglary. This, he argues, demonstrated an erroneous application of the guidelines and an unreasonable departure therefrom.

We reject appellant’s argument. The reasons given by the sentencing court for imposing the maximum sentence authorized for burglary entailed a great deal more than the fact of seven prior convictions for burglary. The court explained:

Mr. Mills, I have considered the presentence report, the psychiatric evaluation. I know what the guidelines suggest in this.
But I think with your extensive record for burglaries and the fact that you just served a fairly severe sentence for burglary, and even after being released by the authorities, and while still on parole for that very offense of burglary, you go right ahead and burglarize another house.
Probation hasn’t helped. Even lengthy incarceration hasn’t helped. You have complete disregard for people who own property. You don’t hesitate for one minute to violate that in their homes. I think you have to be incarcerated and incarcerated for the maximum period of time.
I’m imposing a sentence of 10 to 20 years.

Included in this statement, as the Commonwealth has argued, can be discerned the following reasons for imposing a sentence greater than that recommended by the sentencing guidelines. First, appellant was a repeat offender, having accumulated a record of seven prior convictions for the same offense. Second, all prior attempts to rehabilitate Mills had been unsuccessful. Third, Mills had been on parole when he committed the offense for which he was then being sentenced. Fourth, because Mills had established a pattern of disrespect for the homes and property of other persons, he had become a threat to the public. Finally, on the occasion of the sentence for the seventh offense, Mills had previously received a sentence of imprisonment for not less than three nor more than ten years. These reasons were adequate to support the ten to twenty year sentence imposed by the court.

We also disagree with appellant’s contention that irrespective of the number of prior convictions, a burglar can receive only that sentence prescribed for a three time offender. To read the guidelines as placing a cap on the sentence to be imposed upon a career criminal is to encourage absurd results. In the first place, such an interpretation will for all practical purposes reduce the maximum sentence authorized by statute for the crime of burglary. A burglar who has seven, or ten, or twenty prior convictions for burglary will have to be sentenced as though he had only three prior convictions. This, we conclude, was not what the legislature intended. Secondly, it is difficult to perceive any reason more compelling for imposing a sentence in excess of that recommended by the guidelines than the fact of convictions for repetitive offenses committed even after release on parole from a lengthy sentence of incarceration. What, it may well be asked, is more persuasive that a career criminal has become a serious threat to society than the lengthy record which he has complied while refusing to be rehabilitated? The guidelines do not establish mandatory sentences; they are recommendations only. Where societal protection commands a lengthier sentence, the guidelines do not stand as a bar.

In the instant case, the trial court sagely recognized that it was sentencing a career criminal who had become a menace to society. It was for this reason that the court imposed a sentence of incarceration for the maximum term allowed by the legislature.

The judgment of sentence is affirmed.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent. It is my belief that the holding in the instant case, if permitted to stand, will render the sentencing guidelines virtually meaningless. The rationale underpinning the holding is contrary to the letter and spirit of the guidelines and conflicts with precedent recently established in this court. The judgment of sentence in the instant case should be vacated and the case remanded for resentencing because the sentencing court failed to consider the guidelines before imposing sentence as it is required to do by statute. Alternatively, even if it be assumed that the court considered the guidelines, its reasons for deviating therefrom are wholly inadequate, thus necessitating remand.

The sentencing guidelines were promulgated in order to promote greater state-wide uniformity in sentencing. Although the guidelines were not meant to establish mandatory minimum sentences, 42 Pa.C.S. § 9721(b) requires that courts consider the guidelines before imposing sentence. By so legislating, it was the General Assembly’s hope that the guidelines would weave rationality out of a sometimes chaotic criminal sentencing system wherein it was not uncommon that persons with similar prior records who were convicted of identical offenses would be given very dissimilar sentences simply because they were sentenced in different courts. As former Pennsylvania House Member (now Judge) Scirica succinctly stated when he co-introduced the enabling legislation for the guidelines:

We are amending a Senate bill, and this amendment changes the way we sentence criminals in Pennsylvania. The purpose of the amendment is to make criminal sentences more rational and consistent, to eliminate unwarranted disparity in sentencing, and to restrict the unfettered discretion we give to sentencing judges.

Pennsylvania House Journal, 3130 (September 21, 1978). Mr. Scirica also stated that “[i]t is the appeal that gives teeth to the guidelines.” Pennsylvania House Journal, supra, at 3131.

The guidelines are a means of promoting more equitable sentences by providing a common point of reference for all cases. The guidelines ensure that the same information is used in the same way as a starting point in reaching every sentencing decision. They are, thus, a tool to promote fairer, more certain sentences, and to discourage unwarranted disparity.

COMMONWEALTH OF PENNSYLVANIA COMMISSION ON SENTENCING; SENTENCING GUIDELINES IMPLEMENTATION MANUAL iii (1982).

42 Pa.C.S. § 9721(b) states: “The [sentencing] court shall ... consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing____” (Emphasis added.) The obligation to consider the guidelines prior to sentencing can in no way be regarded as discretionary. Although the court is not constrained to follow the guidelines, if it chooses not to, it must “provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.” 42 Pa.C.S. § 9721(b). In Commonwealth v. Royer, 328 Pa.Super. 60, 69, 476 A.2d 453, 457 (1984) we held that “the judge’s statement of reasons for the sentence made of record at sentencing in the defendant’s presence constitutes a ‘contemporaneous written statement’, within the meaning of the act.” In Royer, we clearly established that our power of review in guidelines cases includes discerning whether or not the sentencing court’s reasons for deviating are “adequate”.

Importantly, the guidelines suggest only ranges for minimum and not maximum sentences. Maximum sentences are limited only by statute. For example, for the crime of burglary, a felony of the first degree, the statutory maximum is not more than twenty years. 18 Pa.C.S. § 1103(1). Statutory law does not mandate a minimum sentence for this offense.

The guidelines, set forth in 204 Pennsylvania Code, Chapter 303, found at 42 Pa.C.S. § 9721, group offenses into ten different categories.

The higher the offense gravity score, the more serious is the offense. For example, burglary (18 Pa.C.S. § 3502) is assigned offense gravity scores of 5, 6, and 7 depending on the type of burglary involved.

? Pa.C.S. §

5502

5502

5502

Offense Title

Burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present.

Burglary of a structure adapted for overnight accommodation in which at the time of the offense no person is present.

Burglary of a structure not adapted for overnight accommodation in which at the time of the offense any person is present.

Burglary of a structure not adapted for overnight accommodation in which at the time of the offense no person is present.

Statutory

Classification

FI

FI

FI

FI

Offense Gravity Score

7

6

6

5

Once the “offense gravity score” is determined, a consideration of the prior record score is in order. The guidelines assign points for prior convictions of various crimes. The sum of all these points is the prior record score. The higher the score, the greater is the suggested sentence. For example, a prior conviction of murder is assigned three points, while prior convictions of two or three misdemeanors are assigned only one point. The guidelines unambiguously state: “The prior record score is the sum of points accrued under this section; it cannot be greater than 6." 204 Pa.Code § 303.7(h) (Emphasis added).

A further feature of the guidelines is the aggravated and mitigated ranges. These ranges suggest that sentences should vary if the court determines that either aggravating or mitigating circumstances are present. “The guidelines permit the consideration of any legal factor as an aggravating or mitigating circumstance.” COMMONWEALTH OF PENNSYLVANIA COMMISSION ON SENTENCING; SENTENCING GUIDELINES IMPLEMENTATION MANUAL 15 (1982). However, “[o]rdinarily, sentences should not be aggravated or mitigated for circumstances incorporated in other provisions of the guidelines, such as ... prior record.” Id. “Since there is a prior record score which adds points, this would not be an aggravating or mitigating factor.” K.A. Jarvis, Pennsylvania Crimes Code and Criminal Law 95 (1983). Thus, ordinarily it would not be proper to sentence within the aggravated range if the only reason for so doing is that the person being sentenced has prior convictions. See Commonwealth v. Mahlon W. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985).

I

Turning to the instant case, defense counsel conceded at sentencing that an offense gravity score of six was appropriate for the defendant’s crime. Defendant had seven prior burglary convictions. In calculating his prior record score, two points should be added for each prior conviction. 204 Pennsylvania Code Chapter 303.7(b)(2)(ii). As previously noted, the guidelines clearly limit the total to six points. “The prior record score ... cannot be greater than 6.” 204 Pa.Code § 303.7(h). The Commission’s intent to limit the prior score to six is given further articulation in the manual prepared by the Commission on Sentencing Guidelines. This manual is intended as a reference for those using the guidelines. Among other things, the manual sets forth examples of how the guidelines are to be implemented. One such example postulates a convict whose total points under the prior record score equals eight. However, the manual states: “Although the total number of points ... equals eight, the Prior Record Score cannot exceed 6____” COMMONWEALTH OF PENNSYLVANIA COMMISSION ON SENTENCING; SENTENCING GUIDELINES IMPLEMENTATION MANUAL 57 (1982). It cannot be seriously argued that the Commission’s intention to limit the prior record score to six has not been clearly articulated. Yet, the majority concludes that for “[a] burglar who has seven, or ten, or twenty prior convictions for burglary ... to be sentenced as though he had only three prior convictions” is “not what the legislature intended.” We disagree. The majority also states that “[t]o read the guidelines as placing a cap on the sentence to be imposed upon a career criminal is to encourage absurd results.” We hardly think it necessary to defend the Commission’s intention in limiting the prior record score to six. Since that intention, however wise or unwise, is clearly stated, the majority’s holding contravenes the guidelines and also the legislative mandate that all sentencing courts “shall” consider the guidelines promulgated by the Commission. Our opinion of the Commission’s wisdom in this matter is of little importance, but we note that to allow sentencing courts the unfettered discretion to impose whatever sentence above the suggested range they desire simply because the magic number of “six” has been exceeded is hardly consistent with the legislative desire for state-wide uniformity in sentencing. It is within the sentencing court’s discretion to deviate from the guidelines in a proper case, but such deviation must be supported by adequate reasons. Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984). An erroneous interpretation of the legislative intent (such as believing that a person with seven prior burglary convictions need not be limited to a prior record score of six) surely does not qualify as an adequate reason for deviating.

II

42 Pa.C.S. § 9721(b) requires sentencing courts to consider the guidelines before imposing sentence. In the instant case, the court manifested its intent not to consider the guidelines. When defense counsel suggested that the court consider a specific sentence under the guidelines, the court stated: “I’m not going to go along with that. I consider him to be a repeater.” (N.T. 11/22/83, 10-11). The court further stated: “Those guidelines are not set up for a person that has committed seven or eight burglaries.” And, “[t]hat was to make some judges put some people in jail. That’s how I feel about it.” (N.T. 11/22/83,12.) The court’s interpretation of the legislative intent is erroneous. Because the court sentenced the appellant with the erroneous belief that the guidelines were not even applicable, it cannot be said to have considered the guidelines as an aid in sentencing appellant. This is a far different situation than where a court first considers the guidelines but then decides that even the mitigated or aggravated ranges do not adequately serve society’s interests in that case. At the very least, I believe it our responsibility to insist that the court indicate that it understood and considered the guidelines. See Commonwealth v. Royer, supra.

III

Even if it be argued that the court did in fact consider the guidelines, it failed to present adequate reasons for deviating therefrom. As previously noted, our power of review in guidelines cases includes ascertaining whether the reasons for deviating are “adequate.” Commonwealth v. Royer, supra. In the instant case, the court’s reasons for deviating were inadequate because one of its reasons was that appellant was a repeat offender. Despite the majority’s characterization of this as but one of five reasons for deviating, a review of the sentencing transcript reveals that it was clearly the predominant reason. The fact that appellant was a repeat offender is not an adequate reason for deviating because the guidelines have already taken this factor into consideration in the prior record score. The recent case of Commonwealth v. Mahlon W. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985) dealt with a similar problem. There, the sentencing court deviated from the guidelines not by sentencing above the suggested range as was done in the instant case but by sentencing below it. Since the goal of the guidelines is state-wide uniformity in sentencing, we do not deem the two situations to be at all dissimilar. The sine qua non of both is deviation from the guidelines. In Drumgoole, one of the four factors considered by the sentencing court in deciding to deviate from the guidelines was the defendant’s lack of a prior record. This court wrote:

[T]he guidelines inherently give credit to those who have led a relatively law abiding life. An accused’s prior record, or lack thereof, is one of the two elements utilized in determining the guideline sentence ranges. The guideline sentence as computed in this case is based on a prior record score of zero (0). Thus, to assign the lack of, or even a minimal, prior record as a reason for deviating from the guidelines is to, in effect, give an accused credit for the same factor twice. Such an evaluation is error.

Drumgoole, 341 Pa.Super. at 475, 491 A.2d at 1355.

In the instant case, the sentencing court’s predominant reason for deviating from the guidelines was that the defendant is a repeat offender. This factor was, in effect, used against the defendant twice — once by the guidelines themselves in the prior record score and once by the court when it deviated from the guidelines. Therefore, the holding in the instant case conflicts with Drumgoole.

Moreover, we note that the holding is at odds with the spirit of the guidelines. “Ordinarly, sentences should not be aggravated or mitigated for circumstances incorporated in other provisions of the guidelines, such as ... prior record.” COMMONWEALTH OF PENNSYLVANIA COMMISSION ON SENTENCING; SENTENCING GUIDELINES IMPLEMENTATION MANUAL 15 (1982). In the instant case, the sentencing court went beyond even the aggravated range and doubled the sentence suggested under it. Its predominant reason for so doing was “for circumstances incorporated in other provisions of the guidelines.”

Another of the court’s reasons for deviating which may be discerned from the sentencing court’s comments at sentencing is that burglary is a very serious offense. (N.T. 11/22/83, 15). This factor, too, has already been taken into consideration within the guidelines themselves as the offense gravity score is based on the severity of crimes. This, too, conflicts with Commonwealth v. Drumgoole, supra, and cannot be considered an adequate reason for deviating.

We emphasize that the instant case does not represent a de minimis deviation from the guidelines’ suggested range. The deviation here is extreme. For a defendant convicted of burglary with an offense gravity score of six and a prior record score of six, the guidelines suggest a minimum sentence within the 33-49 month range. The aggravated minimum is 49-61 months while the mitigated minimum is 25-33 months. The sentencing court, however, imposed a minimum sentence of 120 months, approximately doubling the highest end of the aggravated range. To appreciate the severity of this deviation, we note that for the crime of third degree murder, with an offense gravity score of ten (the highest score possible) and a prior record score of five, the suggested minimum range is 96-120 months. For the crime of rape, with an offense gravity score of nine and a prior record score of six, the suggested minimum range is 78-102 months. The commission believed both of these crimes to be more serious than the one appellant was charged with, but his sentence surely does not reflect this. The more extreme the deviation from the guidelines, the greater the necessity for sound reasoning in support thereof. The lower court has not provided the requisite reasoning here.

The sentencing guidelines are complex and it is evident that much consideration was given their formulation. Even though they are merely “suggestions” which need not be followed when sentence is imposed, the legislature has mandated that the courts consider these suggestions. By its very nature, this mandate presents practical problems on appeal as we must inquire into the court’s subjective intent to decide whether the mandate has been carried out. We can do this only by examining the words spoken by the court at sentencing. We must accord the sentencing court’s discretion the highest deference except in those rare instances where the court has manifested a disregard for the guidelines and deviated therefrom without sound reason. The instant case fits this situation. We fear the holding in the instant case will send an unwise signal to sentencing courts and will grant them license to selectively pick and choose which portions of the guidelines they will follow and which portions they will ignore. Our judicial duty is to do no less than fully comply with the letter and spirit of this product of the legislative prerogative. In light of the majority’s holding, we fear that the proper application of the guidelines will be quagmired in uncertainty and confusion until our Supreme Court provides a definitive analysis of the guidelines’ proper role in this state’s criminal justice system. For these reasons, I respectfully dissent.

      . A prior record score of six equates with three prior convictions for burglary.

      . The opinion of this Court in Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985), does not command a different result. In that case, the sentencing court failed to impose the minimum sentence recommended by the sentencing guidelines and gave as its reason the defendant's lack of a prior record. In remanding, the Superior Court held that this was error because the defendant, in fact, did have a prior record. By way of dictum, the Court observed that an accused’s lack of a prior record had already been considered by the sentencing commission in determining an appropriate sentence for a first time offender. Every first time offender started with a prior record score of zero, the Court reasoned, and an attempt by a sentencing court to reduce it below zero merely because of the absence of prior convictions would be improper.
      The present case is different. It presents a factual pattern which was never considered by the Court in Drumgoole. Here, the sentencing court was sentencing Stephen Mills for an eighth conviction for burglary. This was a record far in excess of the record for which the sentencing commission deemed appropriate a prior record score of six. A court is not required to follow the guidelines Where, as here, the defendant’s prior record permits a court to infer that he is an incurable recidivist, that prior rehabilitative efforts have been unsuccessful, and that the defendant has become a threat to law-abiding citizens. Drumgoole does not hold otherwise.

      . 42 Pa.C.S. § 2153(a)(7) provides that the Commission shall have the power to: “Establish a research and development program within the commission for the purpose of: (i) Serving as a clearinghouse and information center for the collection, preparation and dissemination of information on Commonwealth sentencing practices, (ii) Assisting and serving in a consulting capacity to State courts, departments and agencies in the development, maintenance and coordination of sound sentencing practices.” See the preface to the manual. The manual was published in 1982 in order to assist in the coordination of sound sentencing practices.

      . The following is excerpted from the sentencing hearing of November 22, 1983. (N.T. 11/22/83, 10-20).

        MR. RAMMLER: I do not contest a prior record score of six. With those guidelines I suggest the minimum recommended range in this case is between 24 and 36 months.
      THE COURT: I’m not going to go along with that.
      MR. RAMMLER: Excuse me?
      THE COURT: I’m not going to go along with that. I consider him to be a repeater.
      And you don’t get caught in all burglaries. I don’t believe he did.
      I think he’s a burglar. He’s been given opportunity after opportunity. He’s been given probation. He’s been given jail sentences. He hasn’t learned anything.
      MR. RAMMLER: I’m not arguing against a jail sentence. I’m simply suggesting that the guidelines take into consideration his prior record.
      When the legislature created the guidelines, they made provisions for prior record. He has a prior record of six. We are not contesting that.
      Without something beside his record however—
      THE COURT: Those guidelines are not set up for a person that has committed seven or eight burglaries.
      MR. RAMMLER: But the legislature made a decision. They set a maximum of six points. They said no matter what your record it should not be considered beyond this point.
      They didn’t have to put a cap on the prior record score. They made a decision following the Commission’s recommendation to put a cap on the prior record score.
      THE COURT: That was to make some Judges put some people in jail. That’s how I feel about it.
      MR. RAMMLER: It works both ways. I strongly believe that if this guideline sentence procedure is to be used with increased sentence in certain categories, and under certain circumstances it must then also be applied to ameliorate the impact with respect to certain other cases.
      And I would suggest that in this case where the legislature said prior record score shall not exceed six no matter what, then they made a decision to take a person’s prior record into consideration with respect to a sentence on any particular case.
      They then allowed certainly for aggravated and mitigated circumstances.
      I suggest in this case there are no aggravating circumstances as such.
      THE COURT: But I will tell you. You like talking about aggravating circumstances. I consider one who just continues to break into houses, homes at one time or another, and does it with a pattern over years, is punished for it, doesn’t pay any attention to it, then gets a fairly stiff punishment and learns nothing, I don’t think he’s fit to walk the streets. I think he’s a threat to everybody.
      And I consider burglary to be a very, very serious crime. And so does the legislature, too, when they give a 10 to 20 maximum.

        MR. RAMMLER: I understand that but they then said that the sentences are supposed to be within a guideline unless there are aggravating circumstances, and suggest that the only aggravating circumstance in the Court’s mind is his prior record.
      But that’s already taken into consideration in the guidelines. That’s a six. That’s the maximum prior record you can have under the guidelines. There’s nothing about this case which makes it worse than any other burglary in the world.
      ******
      So that the recommended sentence of 24 to 36 months minimum range is—
      THE COURT: The maximum range is what?
      MR. RAMMLER: Maximum range we agree is 10 to 20 years.
      THE COURT: No, no, on the aggravated range here.
      MR. RAMMLER: The aggravated range here—
      THE COURT: 49 to 61.
      MR. RAMMLER: I have 36 to 45.
      I still suggest that there are no aggravating circumstances. His record has been taken into consideration.
      I understand your prior sentencing of Mr. Mills, but that predated the guidelines and the legislature said, the vast—
      THE COURT: Let me tell you this. I’m not going to give him one sentence and then the next time I have him for the very same offense give him a lesser sentence.
      MR. RAMMLER: However, if the intention, the legislature made a decision that the disparity of sentences within the Commonwealth was so great that a guideline had to be set.
      THE COURT: I know, but this is only a recommendation. I have to account to them why I do it and I have to account to the Superior Court why I do it. And I’m willing to do it.
      I’m ready to sentence him.
      Mr. Mills, I have considered the pre-sentence report, the psychiatric evaluation. I know what the guidelines suggest in this.
      But I think with your extensive record for burglaries and the fact that you just served a fairly severe sentence for burglary, and even after being released by the authorities, and while still on parole for that very offense of burglary, you go right ahead and burglarize another house.
      Probation hasn’t helped. Even lengthy incarceration hasn’t helped. You have complete disregard for people who own property. You don’t hesitate for one minute to violate that in their homes. I think you have to be incarcerated and incarcerated for the maximum period of time.
      I’m imposing a sentence of 10 to 20 years.
      MR. RAMMLER: If the Court please, will you entertain—
      THE COURT: He deserved it. He deserved it.
      MR. RAMMLER: If the Court please, this case, while I understand your concern for his record, I reiterate that the legislature has taken into consideration the prior record. I don’t understand how 10 to 20 years is a benefit to society as opposed to or will—

        THE COURT: Keep him out of somebody else’s house, that’s what it will do.
      MR. RAMMLER: He has never been a violent person if you look at his record. We agree he does not have a history of violence.
      I agree he has a history of property crimes.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    496 A.2d 762
    BESSEMER STORES, INC., a Pennsylvania Corporation, Nell A. Mussano, individually, and Nell A. Mussano, as Executrix of the Estate of Alex Mussano, Deceased, Appellants, v. REED SHAW STENHOUSE, INC., a/k/a Reed Shaw-House, Inc. of Pennsylvania a/k/a Reed Stenhouse, Inc., a/k/a Reed Stenhouse, a Pennsylvania Corporation, and Albert F. Daschbach, an Individual.
    Superior Court of Pennsylvania.
    Argued March 5, 1985.
    Filed June 14, 1985.
    Reargument Denied Aug. 26, 1985.

      John W. Murtagh, Jr., Pittsburgh, for appellants.
    Alison G. Rena, Pittsburgh, for appellees.

      Before OLSZEWSKI, HESTER and SHIOMOS, JJ.

       Judge Thomas N. Shiomos, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   PER CURIAM:

This is an appeal from judgment entered in favor of appellees after a jury trial on a complaint in trespass and assumpsit. Post-trial motions were timely filed and denied.

The trial court is charged with three errors in the proceedings below. Two counts of error concern evidentiary rulings, and one attacks the trial judge’s charge to the jury. Prior to discussing these issues in detail, it is necessary to elaborate upon the factual background of this case.

Appellants, Nell and Alex Mussano, operated a small general store, Bessemer Stores, Inc., on the site of Republic Steel Corporation’s # 2 Mine in Russelton, Pennsylvania. The store was housed in a frame building leased by the Mussanos from Republic Steel Corporation for a small annual rental. In exchange for this agreement, the Mussanos were required to maintain the building and to acquire insurance coverage. To that end, the Mussanos consulted with Albert Daschbach, an agent of appellee Reed Stenhouse, Inc., (hereafter Reed Stenhouse) until his death in 1981. Through him, the Mussanos purchased numerous insurance policies, including two fire insurance policies each valued at $17,500 on the building itself. In March of 1979, while these policies were in effect, the building was destroyed by fire.

In a letter dated September 11, 1979, the insurance companies denied coverage on the basis that the Mussanos did not have an insurable interest in the property. In February of 1981, the Mussanos instituted the within action against the brokerage firm, Reed Stenhouse, alleging negligence in the procurement of coverage of appellants’ interest. Appellants’ theory of their case was that no insurable interest existed and that appellee was negligent in providing the fire insurance coverage carried by appellants. At trial, appellee contended that appellants did possess an insurable interest, were properly insured through the efforts of appellee’s agents, and that the insurance carriers wrongfully denied coverage. As stated above, a jury rendered a verdict in favor of appellee in December of 1982.

In appellants’ first issue, they argue that the lower court erred by refusing to admit into evidence appellee’s admission in its original answer that it did not insure appellant’s leasehold interest. In addition, appellants allege error in the trial court’s decision to similarly exclude an admission by one of appellee’s agents that Reed Stenhouse did not and could not have insured appellants’ interest by the policies which were issued.

Appellants sought to introduce these statements as admissions of fact to refute appellee’s position at trial that it had properly insured the premises and that it was the carrier who wrongfully denied coverage. The trial court decided that the statements were conclusions of law representing the legal theory of the defense and, as such, were inadmissible to prove the existence of an insurable interest.

New appellate decisions discuss the distinction between averments of fact and conclusions of law in pleadings. An older Supreme Court opinion has become the polestar for those seeking guidance in this area. In Srednick v. Sylak, 343 Pa. 486, 492-493, 23 A.2d 333, 337 (1941), that Court opined:

Whether an allegation is of fact or law is determined by the context disclosing the circumstances and purpose of the allegation. In perhaps the broad sense, the statement that a party is liable to another is a statement of fact, but the same words are in general use as a statement of law, and when intended to be so used the statement may not be treated as an admission of fact.

See also Kappe Associates, Inc. v. Aetna Casualty & Surety Co., 234 Pa.Super. 627, 341 A.2d 516 (1975).

Viewing appellee’s pleading in the context of the circumstances and purposes of the allegation, we must conclude that the lower court correctly characterized it as a conclusion of law. Appellee’s answer states in pertinent part;

9. It would not have been possible for the [Appellees] to have recommended to the [Appellants] that they place fire insurance upon the structure absent a representation by the [Appellants] that they were the owners thereof or had an insurable interest thereon.
10. The [Appellants] as tenants, had no insurable interest with regard to the structure of the buildings and, therefore, the [Appellees] could not have obtained insurance coverage giving the [Appellants] any benefit from a fire loss to the structure.

The clear context and purpose of appellee’s allegations and statements in its answer was an attempt to establish that appellants misrepresented their interest in the subject property, and that if appellee had been accurately informed of appellants’ actual interests, then no insurance could have been procured. In the context of this answer, the statements clearly constitute a legal defense and, as such, must be considered conclusions of law.

Similarly, the portions of the deposition of Marion Kolasa which appellants sought to admit into evidence constituted conclusions of law and were appropriately ruled inadmissible.

Appellants next assert that the independent insurance adjuster whom they hired to investigate the fire improperly offered opinion testimony. Mr. Dale Merow testified for the defense that he advised appellants that they had an insurable interest and, after unsuccessful attempts to reach a settlement with the insurance companies, instructed appellants to retain an attorney.

Appellants argue that Merow’s opinion as to the existence of an insurable interest was either expert testimony as to a fact question for the jury or was testimony of a lay witness setting forth an opinion. In either case, appellants argue the testimony adduced at trial and admitted into evidence was improper and constituted an abuse of discretion by the trial judge. We find merit to this argument and believe the introduction of this evidence constitutes reversible error.

In order for a ruling on evidence to constitute reversible error, it “must be shown not only to have been erroneous, but harmful to the party complaining.” Whitman v. Riddell, 324 Pa.Super. 177, 180, 471 A.2d 521, 522 (1984), citing Anderson v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965). Consequently, appellants must prove that it was error to admit the challenged evidence and that they were prejudiced thereby. Id. See also Furey v. Thomas Jefferson Hospital, 325 Pa.Super. 212, 472 A.2d 1083 (1984). If such is the case, then we must conclude that the trial court abused its discretion in admitting the evidence. Lewis v. Mellor, 259 Pa.Super. 509, 515, 393 A.2d 941, 944 (1978). When improperly admitted testimony may have affected a verdict, the only correct remedy is the grant of a new trial. Mapp v. Dube, 330 Pa.Super. 284, 292, 479 A.2d 553, 555 (1984).

Initially, we must note that the underlying question of whether appellant had an insurable interest in the property involved is clearly established to be one of fact for a jury to decide. Campbell v. Royal Indem. Co. of New York, 256 Pa.Super. 312, 315, 389 A.2d 1139, 1141 (1978). Neil Merow testified “It was my opinion that they had — it was my opinion they had some insurable interest and that’s why I proceeded in sending letters to the insurance companies or their adjustors to try to point out these various issues in an effort to convince them that they should make a payment.”

Opinion evidence can be offered, in certain instances, by either a lay witness or an expert witness. A lay witness may express an opinion if it is based upon his own perceptions and helpful to a clear understanding of his testimony or the determination of a fact in issue. Lewis v. Mellor, supra, 259 Pa.Super. at 518, 393 A.2d at 946. An expert witness may render an opinion on any subject which is “so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman.” Camp Const. Corp. v. Lumber Products Co., 311 Pa.Super. 381, 387, 457 A.2d 937, 940 (1983), quoting Commonwealth ex rel. M.B. v. L.D.B., 295 Pa.Super. 1, 10-11, 440 A.2d 1192, 1197 (1982). Moreover, the expert must possess sufficient skill, knowledge, or experience in that field so that his opinion would most likely aid the trier in the search for truth. Id.

Against this framework, we must categorize the testimony of Neil Merow. Appellee contends that Mr. Merow testified as a fact witness concerning his investigation, his communications with the insurance companies and the advice he rendered to appellants. The trial judge adopted this position in his opinion and observed that the evidence was admitted for the limited purpose of proving that a claim had been made to the insurance companies. Indeed, the record reveals such instruction to the jury immediately following Mr. Merow’s testimony.

Nevertheless, we believe its introduction into evidence was error. Regardless of the characterization by the trial judge or by appellee, Mr. Merow quite clearly voiced his opinion on an issue of fact which rested within the sole domain of the jury. In fact, in appellee’s offer of proof, it conceded that he would be called “to some extent as an expert witness,” and that he would offer “his opinion as to the existence of an insurable interest in the Mussanos.”

Since Mr. Merow’s testimony included an opinion, the admissibility of that evidence must be measured against the above-cited standards pertaining to lay or expert opinions. Opinion evidence, whether of experts or lay witnesses, is judicially disclaimed when it goes to the “ultimate issue.” Lewis v. Mellor, supra. The rationale for this bar is that such an opinion impermissibly invades the province of the jury and usurps its fact-finding function. Taylor v. Fardink, 231 Pa.Super. 259, 331 A.2d 797 (1974). Although the admission of an opinion on an ultimate issue of fact does not constitute error per se, Lewis v. Mellor, supra, if its admission would confuse, mislead, or prejudice the jury, it should be excluded. Camp Const. Corp. v. Lumber Products Co., supra.

Mr. Merow’s testimony was necessary to establish that a claim had been submitted to the insurance companies, particularly since appellee’s defense was one of wrongful denial of claim by those parties. However, his opinion testimony concerning the insurable interest issue was clearly prejudicial, and, as the sole evidence introduced by appellee, could well have been the basic factor influencing the jury’s determination of the ultimate question. Accordingly, we reverse and remand for a new trial.

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

      . Alex Mussano died during the pendency of this case, and is now represented by Nell Mussano as Executrix of his Estate.

      . Mr. Daschbach was an original defendant, but was later dropped by mutual consent of the parties.

      . The trial judge conceded that appellee's subsequent shift of position on this issue did render the statements admissible for purposes of impeachment.

      . Portions of answers numbered 8, 12, and 14 also contained similar language as that cited above and were similarly ruled to be inadmissible as stating conclusions of law.

      . Issue number three, relating to the lower court’s charge to the jury, cannot be asserted meritoriously, and does not warrant further discussion.


text:
    496 A.2d 767
    INDIANA COUNTY HOSPITAL AUTHORITY v. McCARL’S PLUMBING & HEATING COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 13, 1985.
    Filed June 28, 1985.
    Reargument Denied Aug. 26, 1985.

      David C. Serene, Indiana, for appellant.
    John S. Simpson and Thomas S. Barbor, Indiana, for appellee.
    Before DEL SOLE, HESTER and FEENEY, JJ.

       Judge John M. Feeney, of the Court of Common Pleas of Allegheny County, Pennsylvania, is sitting by designation.

   PER CURIAM:

This is an appeal from an Order of the Court of Common Pleas of Indiana County granting judgment on the pleadings for appellee. Following the denial of timely exceptions, appellant filed this appeal. For the ensuing reasons, we are constrained to quash the appeal.

Appellant, McCarl’s Plumbing and Heating Company, entered into a contract with appellee, Indiana County Hospital Authority, to perform heating, ventilating, plumbing, and air conditioning construction work on a new hospital building. Due to delays beyond its control, appellant did not complete the work until 1981, two years past the date indicated in the contracts. McCarl’s thereafter instituted a claim for increased costs and damages with the American Arbitration Association. Appellee responded by seeking declaratory relief in the Court of Common Pleas of Indiana County on May 28, 1982. On November 15, 1982, appellant filed a Motion for Judgment on the Pleadings. The court, on May 12, 1983, entered an Order granting judgment on the pleadings in favor of appellee. Appellant filed exceptions to that Order on May 20, 1983, and upon their dismissal, perfected the within appeal on September 23, 1983.

Initially, we note that it is incumbent upon this Court to determine whether an appeal is properly before it. Huber v. Huber, 323 Pa.Super. 530, 470 A.2d 1385 (1984). The appealability of an order goes to the jurisdiction of the appellate court and may be raised sua sponte. Murphy v. Brong, 321 Pa.Super. 340, 468 A.2d 509 (1983).

It is firmly established in this Commonwealth that an appeal properly lies only from a final order unless otherwise permitted by statute. Waddell v. Trostel, 336 Pa.Super. 527, 485 A.2d 1208 (1984). A final order has been defined as one which effectively ends litigation or disposes of the entire case. Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983).

The grant of judgment on the pleadings has been held to be a final order. Chudnoff v. Ipco Hospital Supply Corp., 450 Pa. 267, 299 A.2d 626 (1973); Francis v. John A. Brashear Merged School District, 435 Pa. 589, 258 A.2d 509 (1969); Epstein v. Kramer, 374 Pa. 112, 96 A.2d 912 (1953). Such a judgment is dispositive of all issues raised by the case and is, therefore, an appealable judgment.

Herein, appellant filed exceptions to the order granting judgment on the pleadings to appellee and only after they were dismissed did he pursue this appeal. In Scoumiou v. United States Steel Corp., 293 Pa.Super. 254, 438 A.2d 981 (1981), this Court announced that an appeal from an order denying exceptions to the entry of judgment on the pleadings was deemed untimely when the original order was final and the exceptions were improper. Appellant unfortunately failed to properly preserve his issues by filing an immediate appeal from the Order of May 12, 1983.

Consequently, our application of Scoumiou to the instant appeal leads us to quash it as untimely.

Appeal quashed.


author: ROWLEY, Judge:

text:
    496 A.2d 768
    COMMONWEALTH of Pennsylvania v. Nicholas ROHACH, Appellant.
    Superior Court of Pennsylvania.
    Argued March 19, 1985.
    Filed July 5, 1985.

      Robert B. Truel, Pittsburgh, for appellant.
    Eric Woltshock, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, ROWLEY and FEENEY, JJ.

       Judge John M. Feeney of the Court of Common Pleas of Allegheny County, Pennsylvania, is sitting by designation.

   OPINION OF THE COURT

ROWLEY, Judge:

In this direct appeal from the judgment of sentence imposed following his conviction by a jury of one count of aggravated assault, appellant presents numerous claims of error. Initially, appellant challenges the sufficiency of the evidence to support his conviction. In addition, appellant finds misconduct warranting a new trial in the prosecutor’s display of an unrelated weapon at trial, and in certain questions directed to appellant and his witness. Thirdly, appellant assails the admission of evidence of his flight following the crime, presented in rebuttal. Furthermore, appellant characterizes as erroneous the trial judge’s refusal to permit (1) use of the victim’s hospital records for impeachment purposes, and (2) presentation of photographs of the area surrounding the scene of the crime to the jury during appellant’s direct examination. Lastly, appellant contests the instructions given to the jury, as well as the sentence he received.

Because we find error in the trial judge’s instructions to the jury, we reverse the judgment of sentence.

Initially, we address the appellant’s challenge to the sufficiency of the evidence.

Appellant was charged with violation of § 2702(a)(1) of the Crimes Code, 18 Pa.Cons.Stat. § 101 et seq. As such, the Commonwealth had the burden of establishing beyond a reasonable doubt that appellant

attempted] to cause serious bodily injury to another, or cause[d] such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life ...

In determining whether the Commonwealth has met this burden, a reviewing court must ascertain whether,

accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982), cert den., 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983).

Viewed in this light, the record here reveals that, at about 3:00 a.m. on March 6, 1983, appellant and three other men knocked on the door of the Phi Gamma Delta fraternity house in the Oakland area of Pittsburgh, where, earlier in the evening, a party had been held. As the party had ended, they were denied admittance and asked to leave. Although they returned to their car, appellant and the other individuals remained sitting on the car, parked across the street and approximately twenty-five feet down the street from the fraternity house, for an estimated fifteen minutes. During this time, they were loud and abusive, and drank beer. After a series of verbal exchanges with members of the fraternity, appellant and his companions drove off. Two of the fraternity brothers, Darren Hartman and Carl Pritchard, followed the vehicle on foot for some distance, in an effort to ascertain the license plate number. The automobile stopped, and appellant and another individual emerged, running toward Hartman and Pritchard. Although Hartman was unarmed, appellant produced a club and struck him, breaking his jaw. Hartman immediately blacked out, and was later discovered to have sustained a broken ankle as well. The other individual approached Pritchard carrying “something shiny” in his hand, which Pritchard believed to be a knife. Turning away, Pritchard was struck from behind.

Apprehended later that same morning, appellant was transported by the police to the fraternity house. Although appellant had removed his brown vest, he was positively identified by a third fraternity member, Gregory Kunkel.

Conceding that he had struck Mr. Hartman, appellant asserted self-defense. Appellant contended, however, that he did not possess a club or a bat, but rather, used merely his fist. In support of this theory, appellant presented the testimony of one of the individuals with him on March 6, 1983, Gary Knafler. In addition, appellant took the stand.

We find that the Commonwealth produced ample evidence from which the factfinder could have concluded, beyond a reasonable doubt, that appellant perpetrated an aggravated assault upon Darren Hartman. Similarly, the Commonwealth presented sufficient evidence to disprove, beyond a reasonable doubt, appellant’s claim of self-defense. Cf., Commonwealth v. Gillespie, 290 Pa.Super. 336, 434 A.2d 781 (1981) (Defendant, who struck victim in the head twice with a baseball bat and then kicked him in the head during a fight on a public sidewalk, provoked the confrontation with victim, and had several avenues of retreat available and thus used more force than was reasonably necessary to protect himself, could be convicted of voluntary manslaughter, notwithstanding his claim of self-defense.)

We thus direct our attention to the instructions given to the jury in this case.

At the conclusion of his charge to the jury, the trial judge invited suggestions for modifications or additions to the charge. The assistant district attorney then presented three additional points for charge, regarding the relevancy of his questions focusing on the consumption of alcohol or other drugs on the night in question, and the unfavorable inferences that may be drawn from evidence of (1) an accused’s flight following the commission of a crime, and (2) the existence of a witness to the offense who was not called to testify on behalf of the accused. The trial court charged the jury accordingly. On appeal, appellant challenges each of these additional points for charge.

We may not review, however, the merits of the trial court’s decision to charge the jury with respect to appellant’s flight, as requested. Governing jury instructions, Pennsylvania Rule of Criminal Procedure 1119 provides, in part,

(b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. Pa.R.Crim.P. 1119(b).

While defense counsel specifically objected to each of the other additional points for charge, no mention was made of the charge on flight. See N.T. pp. 246-251. We review, then, solely the remaining aspects of the charge assigned as error.

The “missing witness” charge in the instant case referred to appellant’s failure to call three of the four individuals in his company in the early morning hours of March 6, 1983: Dave Rodgers, John Sargent and Maureen Conley. Our review convinces us, however, that this charge was erroneously given in the instant case, in that the circumstances here fall within two of the rule’s exceptions.

The missing witness rule provides that a negative inference may be drawn from the failure of a party to call a particular witness who was in his control. Commonwealth v. Harley, 275 Pa.Super. 407, 418 A.2d 1354 (1980); Commonwealth v. Gibson, 245 Pa.Super. 103, 369 A.2d 314 (1976). Numerous exceptions to the rule have been carved out, however, Commonwealth v. Harley, 275 Pa.Super. at 413, 418 A.2d at 1357. The inference may not be drawn where:

There is a satisfactory explanation as to why the party failed to call such a witness; ... The witness is so hostile or prejudiced against the party expected to call him that there is a small possibility of obtaining unbiased truth.

Id.

As mentioned earlier, both Darren Hartman and Carl Pritchard were injured during the fight. As Mr. Pritchard recounted at trial, an individual carrying “something shiny” in his raised hand, which Pritchard believed to be a knife, approached him. Pritchard explicitly stated that appellant was not the individual purportedly wielding the knife. Turning away from the individual, Pritchard was struck with some type of club, and knocked to the ground.

Appellant was charged with assaulting both Hartman and Pritchard. The jury, however, acquitted him of the assault upon Pritchard, apparently concluding that the Commonwealth had not identified appellant as Pritchard’s attacker beyond a reasonable doubt. Nor had any other person been identified as Pritchard’s assailant, by the time of trial. Thus, a reasonable possibility exists that the other individual, carrying the “shiny” object, or perhaps a third person, assaulted Pritchard.

Appellant testified at trial that he had telephoned both Dave Rodgers and John Sargent in an effort to get them to testify on his behalf. Each declined, without explanation. As appellant indicated, these men were not friends of his, nor was Maureen Conley; he only vaguely knew them, as friends of Gary Knafler. Given that these three persons were not appellant’s friends, they, arguably, felt no sense of loyalty toward him. Moreover, a strong possibility exists that one of the men was Mr. Pritchard’s knife-wielding assailant. If subpoenaed, then, these individuals may well have been hostile witnesses, and invoked their constitutional rights against self-incrimination. Thus, although appellant may have been able to subpoena these individuals as defense witnesses, we question the usefulness of such action.

The situation in Commonwealth v. Harley, supra, is analogous. Concluding that each of the relevant witnesses was equally available to both parties, this Court noted that they were the accused’s colleagues in the drug distribution business. Arrested at the defendant’s home on the night of the murder with which the defendant was charged, each of the “missing” witnesses faced criminal charges as a result of his conduct on that evening. The possibility, then, of obtaining the unbiased truth from either witness was minimal.

Although Harley is distinguishable from the instant case, in that the existence of pending charges against the prospective witnesses in Harley served to explain their absence at trial, we do not view this factor as dispositive. The Harley court focused on the potential for obtaining the unbiased truth from the witnesses. Although none of the individuals in question here faced criminal prosecution, the risk of subjecting oneself to such prosecution would, we conclude, provide the same incentive to invocation of Fifth Amendment rights or fabrication of testimony as that perceived in Harley.

In light of the foregoing, we deem it unnecessary to reach the merits of appellant’s other assignments of error.

The judgment of sentence is reversed, and the case is remanded to the trial court for a new trial.

Jurisdiction is relinquished.

      . The absence of evidence sufficient to sustain his conviction would entitle appellant to discharge. Thus, we address this claim prior to ascertaining whether a new trial is warranted.
      In reliance on Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983), the trial judge concluded that appellant’s claim of evidentiary insufficiency had been waived. We disagree. Although in Holmes, this Court stated that boiler-plate allegations would be inadequate to preserve claims of insufficiency, this rule was given prospective application, effective sixty days from June 10, 1983 or August 9, 1983. In the instant case, however, appellant’s post-verdict motions were filed on August 4, 1983.

      . These individuals were not arrested at the time appellant and Gary Knafler were, and could not be identified by any of the fraternity brothers present during the incident. With no idea of their names or whereabouts, the Commonwealth contends, they were exclusively within appellant’s control, for purposes of the missing witness instruction. Assuming without deciding that this was true, we nonetheless conclude that the missing witness instruction was improperly given here.

      . Appellant did not claim self-defense with respect to Mr. Pritchard, but rather, contended that he never touched him.

      . Each of appellant’s remaining claims has either been waived or lacks merit. Nonetheless, had appellant properly preserved, by timely objection at trial, his challenge to the prosecutor’s presentation to the jury of a knife in no way connected with appellant, we would similarly have found reversible error there.


author: LIPEZ, Judge: POPOVICH, Judge,

text:
    496 A.2d 773
    COMMONWEALTH of Pennsylvania v. Darryl ZIGLER, a/k/a Darrell V. Zigler, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1984.
    Filed July 19, 1985.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before POPOVICH, HOFFMAN and LIPEZ, JJ.
   LIPEZ, Judge:

In a jury trial, defendant was convicted of three counts of involuntary deviate sexual intercourse, two counts of statutory rape, one count of recklessly endangering another person, two counts of terroristic threats, two counts of indecent assault, three counts of corruption of minors, and one count of simple assault. After denial of post-verdict motions, judgment of sentence was imposed, but no direct appeal was taken. Defendant later filed a PCHA petition, contending that he was denied his right to a direct appeal through the ineffective assistance of counsel. We agree and therefore reverse the order of the court below, and grant the defendant the right to file a direct appeal within thirty days of the date this opinion is filed.

Speaking for a unanimous panel of this court, Judge Brosky stated:

We hold, in line with our fellow jurisdictions across the land, that, following conviction, trial counsel must, in order to be effective, go one step further in order to protect his client’s right of appeal: either by filing the appeal, by recommending to the client other counsel to handle the appeal, or by presenting to the court a motion to withdraw from the case. In the case of withdrawal, the attorney should look for guidance to the Code of Professional Responsibility, and should, of course, immediately notify the client of such action in time for the client to secure other counsel.
As ABA Standard 4-8.2 clearly states, however, the decision whether to appeal must be the defendant’s own choice. Therefore, the defendant must take affirmative steps to ensure that his desire to appeal is communicated to his attorney, and that he communicates as well his authorization that the attorney may file an appeal on his behalf.

Commonwealth v. Ross, 289 Pa.Super. 104, 110, 432 A.2d 1073, 1075-76 (1981) (emphasis in original; footnote omitted).

In Ross, the court went on to hold that the absence of evidence that the defendant had communicated her desire to take an appeal to her attorney precluded a finding that counsel was ineffective. Here, however, defendant’s trial counsel testified at the PCHA hearing below that defendant clearly communicated his desire to take an appeal, when they discussed appellate rights immediately after imposition of sentence. Trial counsel informed defendant at that time that the public defender would have to take over for the appeal. Trial counsel told defendant that he knew a public defender whom he would contact in order to have him get in touch with defendant, but trial counsel did not in fact contact the public defender.

Trial counsel admitted that he did not inform defendant of how to go about filing the appeal himself. Trial counsel also testified that he later received a letter from defendant, inquiring about the status of the case with the public defender, thus confirming defendant’s own testimony that he was relying on counsel’s assertion that he would contact the public defender to have the appeal filed. Hence the facts here are completely unlike the situation which precluded a finding of ineffectiveness in Commonwealth v. Ross, supra. Here defendant’s clear communication of his desire to appeal and his reliance on his attorney to take appropriate action, which was promised but not done, mandate a finding that defendant was denied his right to a direct appeal because of the ineffectiveness of counsel. Cf. Commonwealth v. Ritchie, 298 Pa.Super. 165, 444 A.2d 712 (1982); Commonwealth v. Cooley, 298 Pa.Super.Ct. 163, 444 A.2d 711 (1982).

The Commonwealth contends that under Justice Larsen’s opinion in Commonwealth v. Unger, 494 Pa. 592, 597-98, 432 A.2d 146, 148-49 (1980), if we determine that defendant was deprived of his right to appeal, we can now dispose of the merits of all issues which were raised in post-verdict motions, and therefore could have been brought in the appeal, even though those issues were not considered at the PCHA hearing below. The Commonwealth is apparently relying on the statement in Justice Larsen’s opinion that “all the appellant’s earlier issues have been addressed on the merits because the question of whether appellate counsel should have taken an appeal depends on the merits of the grounds for appeal.” 494 Pa. at 592, n. 4, 432 A.2d at 148, n. 4. When read by itself, this statement might seem to support the Commonwealth’s position that we can make the determination of whether counsel was effective now, rather than allowing them to be raised in an appeal nunc pro tunc. Justice Larsen’s opinion, however, also stated, “It is not necessary to decide whether under these circumstnaces appellate counsel has been ineffective because voluntariness of the plea and counsel effectiveness were considered by the PCHA court: even if counsel has been ineffective in not raising issues on direct appeal, this cannot be prejudicial to the appellant where the same issues not only could have been considered on the merits in the collateral PCHA hearing (Commonwealth v. Alston, 473 Pa. 40, 373 A.2d 741 (1977)) but in fact were considered on the merits in the PCHA hearing (Commonwealth v. Skurkis, [465 Pa. 257, 348 A.2d 894 (1975) ]).” Commonwealth v. Unger, supra, 494 Pa. at 598, 432 A.2d at 148-49 (emphasis in original).

Justice Larsen’s opinion in Unger thus appears to base its consideration of the merits of the issues underlying counsel’s ineffectiveness on the fact that the lower court had considered the merits in the PCHA hearing, which is not the case here. To the extent that the statement that “whether appellate counsel should have taken an appeal depends on the merits of the grounds for appeal” might indicate that we can consider the merits even when the PCHA hearing court did not, the statement is not a binding precedent, both because it is dictum and because the statement was not joined by a majority of the justices participating in the decision. Commonwealth v. Davenport, 462 Pa. 543, 559, n. 3, 342 A.2d 67, 75, n. 3 (1975); Commonwealth v. Silverman, 442 Pa. 211, 218, n. 8, 275 A.2d 308, 312, n. 8 (1971); see generally Beron v. Kramer-Trenton Company, 402 F.Supp. 1268, 1276-77 & n. 17 (E.D.Pa.1975).

We could decide the merits of the issues in this appeal only if we had before us both an adequate record and full briefing of the issues defendant wishes to raise. See, e.g., Commonwealth v. McKnight, 311 Pa.Super.Ct. 460, 466 & n. 8, 457 A.2d 1272, 1276 & n. 8 (1983), rearg. denied. Here, however, we do not have briefing of the issues by the defendant, or even an indication of which specific issues defendant wishes to raise; accordingly, the remedy is to remand and allow defendant to file a nunc pro tunc appeal. Commonwealth v. Ritchie, supra, 298 Pa.Super. at 170, 444 A.2d at 715; Commonwealth v. Cooley, 298 Pa.Super. at 165, 444 A.2d at 712.

Order reversed, and case remanded so that defendant may file an appeal as if timely filed within thirty days of the filing of this order. Jurisdiction relinquished.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I dissent. The Majority preoccupies itself with responding to the Commonwealth’s argument (that the merits of the appellant’s post-verdict claims be addressed on appeal) by contending that because the PCHA court did not consider the merits of such claims the case at bar is distinguishable from Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980), in that there the reference to treatment of issues where one’s right to appeal had been denied was not embraced by a majority of the Court, and, thus, not of precedential value. Moreover, the PCHA court in Unger did consider the merits of the post-trial issues, unlike here.

The Majority need only look to Superior Court’s ruling in Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982) (en banc) to discover that in those circumstances where a defendant alleges the deprivation of his appellate rights in a PCHA context, the PCHA court, once the denial is proven, is to bring the hearing to a close and permit the defendant the opportunity to exercise his constitutional right to appeal nunc pro tunc. See Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1975).

As for any issues affixed to the right to appeal claim, this Court specifically and unequivocally stated that the PCHA court is to act as an evidence gathering format for such collateral issues only, and not to rule on the merits of the other issues raised. Commonwealth v. Miranda, supra; Commonwealth v. Jones, 300 Pa.Super. 338, 446 A.2d 644 (1982); Commonwealth v. May, 296 Pa.Super. 435, 442 A.2d 1129 (1982); Commonwealth v. Clark, 296 Pa.Super. 315, 442 A.2d 786 (1982). This would appear to lay to rest the Majority’s inferential remarks to Unger where the PCHA court considered the merits of the collateral issues, as if to imply that such a practice is condoned. Miranda teaches us otherwise.

The PCHA court here, as observed by the Majority in footnote 1 of its opinion, properly dealt with the right to appeal claim and left the other issues raised at that time for appellate review.

Instantly, even the Majority concedes in its opening paragraph that post-verdict motions were filed on behalf of the appellant and denied. Compare Commonwealth v. Stackpole, 275 Pa.Super. 255, 418 A.2d 709 (1980) (LIPEZ, J.). Thus, there is record evidence of the trial court’s disposition of the post-verdict motions, aside from the right to appeal claim. (See Appellant’s Brief at 5) Accordingly, I see no reason why the issues proffered after trial by the appellant’s prior counsel cannot be examined here. If it is a matter of completing the record by obtaining the trial court’s disposition of the post-verdict motions, we have the power to summon the documents) from the clerk of courts. Pa.R.App.P. 1926; Commonwealth v. Rivera, 339 Pa.Super. 242, 488 A.2d 642 (1985) (en banc).

Further, there is no indication upon the part of the appellant that he would raise any issues other than those appearing in prior counsel’s post-verdict motions. See Appellant’s Brief at 10, wherein is written that: “On June 9, 1982, Mr. Zigler filed pro se post-verdict motions nunc pro tunc, identical to those filed earlier by [prior counsel] Mr. Kellum[.]” Additionally, Pa.R.Crim.P. 1123 informs us that only those issues raised in post-verdict motions are subject to review on appeal; all others are waived.

To allow a remand to avail the appellant the opportunity to appeal nunc pro tunc is affording him no more relief than we would be extending to him presently by ruling on those post-verdict issues argued to and decided by the trial court.

The relief requested is the right to appeal nunc pro tunc. That right is being extended to the appellant now. To remand to allow the accused to exercise that right would be repetitive and accomplish nothing more than a delay of the ultimate disposition of the post-verdict motions.

I would make the record whole and decide the issues raised post-trial without side-tracking the case by remanding to grant the appellant the opportunity to exercise his appellate right to have his conviction reviewed. We can do so presently, upon a completion of the record.

Therefore, I respectfully dissent.

      . Although the PCHA hearing judge has considered the merits of some issues in his opinion, none were considered at the PCHA hearing, since it was agreed at the outset of the hearing that the only issue which it was appropriate to decide at that stage was whether counsel’s ineffectiveness had denied defendant his right to a direct appeal.

      . In his concurring opinion in Unger, Justice Roberts specifically disagreed with the statement that whether counsel was ineffective for failing to take an appeal depends on the merits of the grounds for appeal. 494 Pa. at 598, 432 A.2d at 149. Justices Nix and Flaherty did not join Justice Larsen’s opinion in Unger, but only concurred in the result. If agreement with the statement in footnote 4 of Justice Larsen’s opinion were the only way to reach that result, then the votes of Justice Nix and Flaherty could be counted as joining Justice Larsen. See Commonwealth v. Scott, 279 Pa.Super.Ct. 8, 11, 420 A.2d 717, 719 (1980); see also Gravinese v. Johns-Manville Corporation, 324 Pa.Super.Ct. 432, 438, 471 A.2d 1233, 1236-37 (1984), petition for allowance of appeal denied. Since there is an alternative basis for the result, as shown in both Justice Larsen’s lead opinion and Justice Roberts’ concurring opinion, the votes of Justices Nix and Flaherty cannot be counted as joining Justice Larsen’s statement, and it lacks a majority of the justices participating in the decision.


author: CIRILLO, Judge:

text:
    496 A.2d 777
    COMMONWEALTH of Pennsylvania v. Richard W. WHETSTINE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 9, 1985.
    Filed July 26, 1985.

      Harold Gondelman, Pittsburgh, for appellant.
    Ellen L. Cohen, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

Richard Whetstine appeals from the judgment of sentence entered December 2, 1983 in the Court of Common Pleas of Blair County. He alleges that his speedy trial rights were violated and that he was illegally and improperly sentenced.

Whetstine first argues that two extensions of time to commence trial were improperly granted to the Commonwealth under Pa.R.Crim.P. 1100(c). Whetstine’s trial counsel specifically in writing and orally on the record waived any challenge to these extensions before the court granted them. Whetstine contends, however, that counsel was ineffective for doing so.

The Supreme Court has held that when defense counsel fails to object to a Commonwealth petition for an extension of time under Rule 1100, the defendant will not be discharged after trial unless his underlying constitutional right to a speedy trial has been denied. Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983). Although this statement in Crowley was dictum, it has been followed by the Superior Court. See Commonwealth v. Wells, 322 Pa.Super. 380, 469 A.2d 672 (1983); see also Commonwealth v. Lafty, 333 Pa.Super. 428, 482 A.2d 643 (1984) (Spaeth, P.J., concurring); cf. Commonwealth v. Knupp, 340 Pa.Super. 304, 490 A.2d 1 (1985) (Opinion by Johnson, J.) (issue not reached) (petition for allocatur filed). Whetstine does not maintain that there was a speedy trial violation of constitutional dimension, nor does the record support such a claim. Cf. Commonwealth v. Terfinko, 504 Pa. 385, 474 A.2d 275 (1984) (finding no violation of constitutional right to speedy trial). Thus, we dismiss this issue as meritless.

Whetstine next contends that the multiple sentences imposed on him should merge. The jury that heard the case found him guilty of burglary, criminal attempt (involuntary deviate sexual intercourse), indecent assault, indecent exposure, simple assault, terroristic threats, and disorderly conduct; the court imposed a separate sentence on each count.

The doctrine of merger of offenses for sentencing insures that separate sentences are not imposed for what in practical effect was a single criminal act. Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980). In deciding whether offenses merge, the question is whether the offenses charged “necessarily involve” one another, or whether any additional facts are needed to prove additional offenses once the primary offense has been proven. See Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981). In deciding merger questions, we focus not only on the similarity of the elements of the crimes, but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed but a single criminal act. Commonwealth v. Boettcher, 313 Pa.Super. 194, 459 A.2d 806 (1983).

Additionally, we note that analysis of merger claims traditionally has revolved around the concept of injury to the sovereign; in order to support the imposition of more than one sentence, it must be found that the defendant’s conduct constituted more than one injury to the Commonwealth. Commonwealth v. Sanders, 339 Pa.Super. 373, 489 A.2d 207 (1985); Commonwealth v. Padden, 335 Pa.Super. 51, 483 A.2d 950 (1984); cf. 18 Pa.C.S. § 110(1)(iii)(A) (multiple convictions permitted when same conduct violates different statutory provisions “intended to prevent substantially different harm[s] or evil[s].... ”).

In applying the doctrine of merger, we are obliged to interpret the verdict not in the light of theoretical possibilities, but rather in the light of common sense. Commonwealth v. Newman, 323 Pa.Super. 394, 470 A.2d 976 (1984). The inquiry depends to some extent on the “unique facts” of each case. See Commonwealth v. Belgrave, 258 Pa.Super. 40, 391 A.2d 662 (1978) (Cercone, J., concurring and dissenting).

We must therefore review the evidence and charges against Whetstine to determine whether any of his convictions should have merged.

Whetstine entered the home of his victim surreptitiously and uninvited. When the victim came in, Whetstine was seated at the kitchen table; he remarked that he would like to “put his cock” in her. As the victim retreated into her living room, Whetstine followed and kissed her on the mouth. She tried to push him away, whereupon he forced her down onto the couch. After a brief tussle they fell onto the floor, and Whetstine sat on the victim’s chest and tried to put his penis in her mouth. She resisted by moving her head back and forth. Whetstine tried to hold her head still, but was unable to achieve penetration. He then lifted his body up and masturbated on her breast. When he had finished, he allowed her to leave.

There is statutory authority for the proposition that, on these facts, burglary did not merge with any of the other offenses charged. 18 Pa.C.S. § 3502(d) provides that “A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.” See Commonwealth v. Jefferson, 307 Pa.Super. 18, 452 A.2d 881 (1982) (“conviction” as used in this provision refers to judgment of sentence, not verdict). The Commonwealth’s theory and evidence on the charge of burglary was that Whetstine entered the victim’s home intending to commit rape or involuntary deviate sexual intercourse. Involuntary deviate sexual intercourse, the only crime which Whetstine both intended and attempted to commit upon entering the premises, is a first-degree felony. Therefore under the clear intendment of Section 3502(d) the attempt charge did not merge with burglary. Accord, Commonwealth v. Simpson, 316 Pa.Super. 115, 462 A.2d 821 (1983). As for the other offenses, it was not charged or proven that Whetstine intended to commit these offenses when he made the illegal entry. The statute therefore would not require their merger into burglary. Cf. Commonwealth v. Gallagher, 341 Pa.Super. 152, 491 A.2d 196 (1985) (no merger under 18 Pa.C.S. § 906 of two inchoate offenses designed to culminate in commission of different crimes). Moreover, these other offenses were not merely incidental to the burglary, but were based on additional acts committed after he entered the premises. Our common sense review of the facts convinces us that none of the other charges was in practical effect the same offense as burglary. See Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941).

We next turn to examine whether any of the other offenses merged with attempted involuntary deviate sexual intercourse. This crime occurred when the defendant tried forcibly to place his penis in the victim’s mouth. The additional offense of indecent assault, as charged and proven in this case, consisted of the separate and distinct injurious act of ejaculating on the victim’s breast. Thus, Whetstine could properly be punished for both crimes. Accord, Commonwealth v. Wojciechowski, 285 Pa.Super. 1, 426 A.2d 674 (1981) (allocatur denied); see also Commonwealth v. Klinger, 323 Pa.Super. 181, 470 A.2d 540 (1983) (separate convictions for involuntary deviate sexual intercourse and two indecent assaults based on three acts committed during one episode); cf. Commonwealth v. Schilling, 288 Pa.Super. 359, 431 A.2d 1088 (1981) (charges of rape and indencent assault based on single act of intercourse merged).

However, we are of the opinion that indecent exposure merged with the other sexual crimes. To prove the exposure charge the Commonwealth relied basically on the same facts used to establish the other two sex offenses. The gravamen of indecent exposure is the exposure of one’s genitals under circumstances where the actor knows his conduct is likely to cause affront or alarm. See 18 Pa.C.S. § 3127. The crime of indecent assault was created because of a concern for the outrage, disgust, and shame engendered in the victim. Commonwealth v. Capers, 340 Pa.Super. 136, 489 A.2d 879 (1985) (petition for allocatur filed). We are unable to see how the fact that the defendant exposed himself to the victim could have caused any injury in the way of affront or alarm beyond that already foisted upon her by the acts of attempted oral sex and indecent assault. The separate sentence for indecent exposure will be vacated.

We find also that simple assault merged with attempted involuntary deviate sexual intercourse. The Commonwealth’s theory of simple assault was that by holding the victim’s head in his hands while trying to penetrate her mouth, Whetstine attempted by physical menace to put her in fear of imminent serious bodily injury, see id. § 2701(a)(3). Clearly, this act on the part of the defendant was one of the same acts the Commonwealth relied upon to prove forcible compulsion or threat of forcible compulsion, a necessary element of the crime of involuntary deviate sexual intercourse, see id. § 3123(1), (2). The simple assault supplied the forcible compulsion used to try to overcome the victim’s resistance to the sex act. The assault and the attempted forcible sex act were part and parcel to the same injury. Under these circumstances, the crimes merge. Accord, Sanders, supra; Simpson, supra.

To prove terroristic threats the Commonwealth adduced Whetstine’s statement before the actual attack that he wanted to “put his cock” in the victim, on the theory that this was a threat to commit rape. This threat clearly was accomplished by an act separate from the acts used to establish the actual assault. It is our considered view that separate injuries to the Commonwealth accrue when an actor threatens to do harm, then proceeds to carry out the threat or to harm the victim in some other fashion. Cf. Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 420 A.2d 674 (1980) (Court upheld separate sentences for assault and terroristic threats, among others); cf. also Wojciechowski, supra (successive acts of sexual abuse were separately punishable crimes). Terroristic threats here must be deemed to have been a separate and discrete offense that did not merge with the foregoing crimes.

Finally, with regard to the disorderly conduct charge, the Commonwealth relied on precisely the same facts that went to establish several of the more serious offenses. A common sense approach to the evidence and the theory upon which this case was tried shows that the sexual invasions and threats perpetrated on the victim necessarily involved the disorderly conduct for which the defendant was charged. The acts used to prove disorderly conduct caused no injury to the victim or the Commonwealth that was not already included in the other offenses. Disorderly conduct therefore merged with any or all of the other crimes Whetstine committed after entering the victim’s home, and it should not have been punished separately. See Newman, supra.

Under this Court’s customary practice we would remand this case to the trial court for resentencing in light of the possibility that the court might have sentenced appellant differently on the remaining counts had it known we would vacate some of the sentences. See id. However, the recent Supreme Court decision in Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307 (1985), leads us to believe that this practice is no longer permissible. In Gold-hammer the Court decided that to resentence a defendant on counts left standing after related counts were struck down on statute of limitations grounds would violate the constitutional prohibition on double jeopardy. The Court did not limit its holding to the statute of limitations context, but in sweeping language stated: “we are being requested to permit the trial court to alter a sentence legally imposed under an information because of a subsequent appellate court ruling vacating the sentence imposed on another information____ [I]t would be inexplicable to conclude that the Commonwealth’s request in this appeal meets constitutional mandate.” 507 Pa. at 254, 489 A.2d at 1316. We conclude that the rationale and holding of Goldhammer would disallow any enhancement of Whetstine’s sentence on the remaining counts were we to remand this case for resentencing.

However, Whetstine advances reasons of his own why this case should be remanded to the sentencing court. Namely, he argues that thé sentence imposed was manifestly excessive, that the court failed to state sufficient reasons for the sentence on the record so as to comply with Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (plurality opinion), and that the court imposed a fine without determining Whetstine’s ability to pay.

In announcing the judgment of the Court in Riggins, Justice Roberts also made clear that a challenge to the propriety of a sentence must first be raised in the trial court to provide that court with an opportunity to modify the sentence or explain the reasons for the sentence imposed. It is now beyond cavil that a defendant who fails to properly raise claims of sentencing error in the trial court waives such claims for purposes of appellate review. Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984) (en banc); see also Pa.R.A.P. 302(a), 2117(c), 2119(e). As Whetstine never presented his claims of sentencing error at the sentencing hearing or in a motion to modify sentence pursuant to Pa.R.Crim.P. 1410, these issues are waived. Commonwealth v. Tomasso, 311 Pa.Super. 103, 457 A.2d 514 (1983), aff'd on other grounds, 506 Pa. 344, 485 A.2d 395 (1984); see also Pa.R.Crim.P. 1405(c); Commonwealth v. Stufflet, 291 Pa.Super. 516, 436 A.2d 235 (1981).

Of course, the merger issues addressed earlier go to the very legality of the sentence, and cannot be waived. Commonwealth v. Franklin, 306 Pa.Super. 422, 430 n. 4, 452 A.2d 797, 801 n. 4 (1982).

In accordance with the foregoing opinion, we order that the sentences imposed for indecent exposure, simple assault, and disorderly conduct be vacated; otherwise judgment of sentence affirmed.