author:
WIEAND, Judge:
      HOFFMAN, Judge,

text:
    460 A.2d 1103
    COMMONWEALTH of Pennsylvania v. Rocco BARBA, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 1, 1982.
    Filed April 22, 1983.
    Reargument Denied July 5, 1983.
    Petition for Allowance of Appeal Denied Nov. 2, 1983.

      Joseph C. Santaguida, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

Rocco Barba was tried non-jury and found guilty on six counts of theft by receiving stolen property. On direct appeal, after post verdict motions were denied and sentences imposed, Barba contends (1) that the evidence was insufficient to support the guilty verdicts; (2) that the court erred in refusing to suppress evidence of the stolen goods found in appellant’s possession; (3) that he was unfairly prejudiced by evidence of uncharged acts of misconduct; and (4) that his sentence was excessive and based on improper considerations. These contentions are lacking in merit; and, therefore, we affirm the judgments of sentence.

Appellant was arrested and charged with theft by receiving stolen property after police, in the execution of several search warrants, found four commercial and residential buildings filled with air conditioners, televisions, stereo sets, tires, appliánces, clothing, jewelry and other assorted items of personal property. Some of the merchandise was specifically identified as stolen; other items were found from which identifying serial numbers had been removed. Police confiscated and removed four truck loads of goods.

The initial search warrant was issued for premises owned by appellant at 4324 Main Street, in the Manayunk section of Philadelphia. It was directed toward items taken in a burglary committed at 4321 Main Street approximately one month earlier. The affidavit of probable cause submitted by Detective Joseph Brignola contained the following:

On 2/1/79, a male known to me as Regis Pallotto came into the Major Investigation Unit headquarters, located at 39th & Lancaster Avenue, and stated that he had information concerning Burglars, and also about persons receiving stolen property. He stated that a male he knows as Fred Scavello 22 W/M who resides at 4355 Main St., has committed a Burglary on 12/31/78, at a residence located in the 4300 block of Main Street, Phila., Pa., at a house that has black steps, and taken in this burglary was a Sears black and white television, an old wall air conditioner, and a camera, and some jewelry. Mr. Pallotto stated that he saw this property in the possession of Scavello on the date of the Burglary, and then again on 2/1/79 inside the residence 4324 Main St., which he entered while escorted by a Rocco Barba. At this time Rocco Barba was trying to sell Pallotto a television. Mr. Pallotto states that he has known Mr. Barba for several years, and has on several occasions in the past sold stolen property to Mr. Barba, and has taken it inside 4324 Main St.
On 2/4/79 an investigation (was made) by the affiant Det. Joseph Brignola # 895 which revealed the following. A Mr. Earl Harvey 57 yrs W/M residing at 4321 Main St., was contacted and he stated that on 12/31/78 while he was out of the house for the evening,' his residence was forcibly entered through the front door, and taken were a Sears black and white television, an old air conditioner, a camera, and some jewelry. Mr. Harvey also stated that his residence has black steps. Mr. Pallotto has stated that on 2/2/79, he saw the stolen Sears television inside 4324 Main St., Phila., Pa., and he also saw the air conditioner, inside 4324 Main St., and he knows these articles as the same ones that he saw on 12/31/78, the night of the Burglary at Mr. Harvey’s house.
Due to the above related facts, it is felt that there is sufficient probable cause to obtain a Search Warrant for the residence located at 4324 Main St., Phila., Pa., so that the stolen articles may be recovered.

Before a search warrant can properly be issued upon probable cause, the affidavit must set forth the underlying circumstances from which the informer concluded that the items to be seized were where he said they were, and must also recite circumstances from which the issuing authority can determine whether the informant is reliable or his information credible. Aguilar v. Texas, 378 U.S. 108, 114-115, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964); Commonwealth v. Casuccio, 308 Pa.Super. 450, 455-56, 454 A.d 621, 624 (1982); Commonwealth v. Prosdocimo, 308 Pa.Super. 187, 196-97, 454 A.2d 84, 90 (1982). See: Commonwealth v. Davis, 466 Pa. 102, 110, 351 A.2d 642, 646 (1976); Commonwealth v. Matthews, 446 Pa. 65, 70, 285 A.2d 510, 512 (1971); Commonwealth v. Salvaggio, 307 Pa.Super. 385, 392, 453 A.2d 637, 640 (1982); Commonwealth v. Funke, 306 Pa.Super. 542, 547, 452 A.2d 857, 859 (1982). Appellant contends that the affidavit in this case failed to establish that the informant was reliable or his information credible. With respect to the reliability of an informant, this Court has “delineated four criteria to be considered by the issuing authority in his attempt to determine whether a substantial basis exists for crediting the informant’s tip: ‘(1) Did the informant give prior reliable information? (2) Was the informant’s story corroborated by any other sources? (3) Weré the informant’s statements a declaration against [penal] interest? (4) Does the defendant’s reputation support the informant’s tip?’ ” Commonwealth v. Herron, 243 Pa.Super. 319, 334, 365 A.2d 871, 878 (1976), quoting Commonwealth v. Ambers, 225 Pa.Super. 381, 386, 310 A.2d 347, 350 (1973). See also: Commonwealth v. Prosdocimo, supra, 308 Pa.Superior at 198, 454 A.2d at 89; Commonwealth v. Salvaggio, supra, 307 Pa.Superior at 393, 453 A.2d at 641; Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 455, 445 A.2d 1214, 1218 (1982); In re Burton, 259 Pa.Super. 20, 23, 393 A.2d 696, 697 (1978). However, there is no requirement that each criterion be met in order to support a finding of reliability. Commonwealth v. Prosdocimo, supra, 308 Pa.Superior at 198, 454 A.2d at 89; Commonwealth v. Salvaggio, supra, 307 Pa.Superior at 394, 453 A.2d at 641; Commonwealth v. Mazzochetti, supra, 299 Pa.Superior Ct. at 455, 445 A.2d at 1218; Commonwealth v. Marzel, 291 Pa.Super. 553, 560, 436 A.2d 639, 642 (1981); In re Burton, supra, 259 Pa.Superior at 23, 393 A.2d at 697; Commonwealth v. Herron, supra, 243 Pa.Superior at 334, 365 A.2d at 878.

In the instant case, a named informant described goods stolen during a recent burglary. He also gave the date and location of the crime and said that he had seen the stolen goods delivered to appellant by the burglar, whom he identified. An independent police inquiry confirmed the occurrence of the burglary and disclosed a theft of goods corresponding to those described by the informant. This was sufficient to support a finding of probable cause. The informant’s tip had been corroborated by an independent police investigation. See: Commonwealth v. Salvaggio, supra; Commonwealth v. Frazier, 269 Pa.Super. 527, 410 A.2d 826 (1979); Commonwealth v. Whitehouse, 222 Pa.Super. 127, 292 A.2d 469 (1972). See also: Commonwealth v. Hunt, 256 Pa.Super. 140, 389 A.2d 640 (1978). The fact that the informant was named and had been an eyewitness to the delivery of the stolen goods to appellant added additional reliability to the information given to the issuing authority. Commonwealth v. Frazier, supra, 269 Pa.Superior at 534-535, 410 A.2d at 830. See: Commonwealth v. Stokes, 480 Pa. 38, 44-45, 389 A.2d 74, 78 (1978); Commonwealth v. Brown, 298 Pa.Super. 11, 20, 444 A.2d 149, 154 (1982); Commonwealth v. Urbina, 290 Pa.Super. 117, 122-123, 434 A.2d 157, 159-160 (1981). See generally: Commonwealth v. Mamon, 449 Pa. 249, 297 A.2d 471 (1972).

It was not essential to the establishment of probable cause that the affiant police officer allege that appellant knew the goods to have been stolen. In the context of search warrants, probable cause exists where there is a reasonable belief that objects related to suspected criminal activity will be found at the place to be searched. “The critical element in a reasonable search is not that the [possessor] of the property is suspected of crime but that the specific things to be searched for and seized are located on the property to which entry is sought.” Commonwealth v. Gannon, 308 Pa.Super. 330, 338, 454 A.2d 561, 565 (1982), quoting Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 1976-1977, 56 L.Ed.2d 525, 535 (1978).

When police conducted a search at 4324 Main Street, they found the air conditioner which had been taken in the burglary at the home of Earl Harvey. They also observed televisions, stereos, tool boxes, tires and other items stacked throughout the home. Appellant was warned of his Miranda rights, but volunteered that he had purchased the air conditioner from someone in the neighborhood. He also told police without being asked that he bought “a lot of old junk” from people in the neighborhood but tried not to buy stolen property. Appellant freely showed the police other portions of the building and took them through underground passageways to 4326 and 4328 Main Street. In these buildings, police observed additional merchandise, on some of which the serial numbers had been defaced or removed. Appellant also showed police a .38 revolver which they traced and found to have been stolen during a prior burglary. Police thereafter obtained warrants to search premises at 4326 and 4328 Main Street. A fourth warrant was later obtained for an additional property owned by appellant on the other side of the street. This was based on observations made by the police and information divulged by residents of the neighborhood.

Although appellant challenges the existence of probable cause for these additional warrants, we are persuaded that the affidavits demonstrated sufficient facts to permit a finding of probable cause by the issuing authority. This aspect of the case has been considered thoroughly by the Honorable I. Raymond Kremer in an opinion written for the trial court, and we find it unnecessary to add thereto or recite herein the lengthy affidavits submitted to the issuing authority in support of the warrants issued.

Of greater interest is appellant’s contention that the warrants failed to identify the merchandise being sought with sufficient specificity. The second warrant identified these items as follows:

“Firearms, tires, stereo equipment, jewelry, new clothing, tools, radios, TVs, typewriters, stenotypers, car radios, CBs, air conditioners, cameras, lens, projectors, motors, currency, both paper and coin, and other items believed to be stolen.”

The third and fourth warrants were virtually the same but did not contain the phrase “and other items believed to be stolen.”

Article I, Section 8, of the Pennsylvania Constitution provides that “no warrant to search any place or to seize any person or thing shall issue without describing them as nearly as may be, nor without probable cause .... ” This guarantee, it has been held, is co-extensive with the guarantee contained in the Fourth Amendment of the Constitution of the United States. Commonwealth v. Smyser, 205 Pa.Super. 599, 211 A.2d 59 (1965). The Fourth Amendment provides that “no warrants shall issue, but upon probable cause ... and particularly describing the ... things to be seized.” See: Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976).

The constitutional requirement of particularity necessarily achieves definition according to the circumstances and the nature of the items to be seized. Pa.R.Crim.P. 2005(b) has incorporated this requirement of particularity into the criminal rules. The Comment to the rule explains that the particularity requirement is:

“... intended to prescribe [sic] general or exploratory searches by requiring that searches be directed only towards the specific items, persons or places set forth in the warrant. Such warrants should, however, be read in a common sense fashion and should not be invalidated by hypertechnical interpretations. This may mean, for instance, that when an exact description of a particular item is not possible, a generic description may suffice. ” (Emphasis added.)

See also: United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

The Pennsylvania Supreme Court has adopted this “common sense” approach. Thus, • in Commonwealth v. Matthews, supra, the Court said:

“[I]n this connection, we note that several courts have ruled that where the items to be seized are as precisely identified as the nature of the activity permits and an exact description is virtually impossible, the searching officer is only required to describe the general class of the item he is seeking.” (Citations omitted.)

Id., 446 Pa. at 73, 285 A.2d at 514.

In the instant case, the officers who executed the affidavits for the warrants had seen a vast amount of personal property, enough to fill four trucks. They had had neither opportunity nor authority to examine all observed items for brand names, serial numbers, identifying marks, or other details sufficient to permit precise descriptions.

In similar situations involving contraband or stolen goods, the federal courts have consistently upheld warrants which described items to be seized in generic terms. See: United States v. Cortellesso, 601 F.2d 28 (1st Cir.1979), cert. denied, 444 U.S. 1072, 100 S.Ct. 1016, 62 L.Ed.2d 753 (1980); United States v. Klein, 565 F.2d 183 (1st Cir.1977); United States v. Scharfman, 448 F.2d 1352 (2d Cir.1971), cert. denied, 405 U.S. 919, 92 S.Ct. 944, 30 L.Ed.2d 789 (1972); Vitali v. United States, 383 F.2d 121 (1st Cir.1967). In United States v. Cortellesso, supra, federal agents had executed a search warrant for the defendant’s clothing store. The items to be seized were described as follows: “stolen goods, wares and merchandise valued in excess of $5,000 which have travelled in interstate commerce, in particular men’s suits, sports jackets, women’s boots, leather coats, fur coats, rain coats____” During execution of the warrant additional information was obtained which led to the issuance of a similar warrant for defendant’s home. The Court agreed that there had been probable cause to believe that the premises to be searched contained a large collection of goods likely to be stolen. With respect to the agent’s ability to distinguish the contraband from the rest of defendant’s inventory, the Court held:

“[F]or all practical purposes the collection [of goods] could not be precisely described for the purpose of limiting the scope of the seizure ____ [0]nly a generic description was known. Accordingly, we believe that the affidavits established that the officer who applied for the search warrants could only have been expected to describe the generic class of items he sought.... [A] precise description of the goods became a practical impossibility.”

Id. at 32.

In United States v. Scharfman, supra, the Court of Appeals for the Second Circuit reviewed a warrant which contained a description of the items to be searched as “fur coats, stoles, jackets, and other finished fur products” as well as other items. The Court opined that the “futility of further particularization is clear in this case,” because the agents had no means at their disposal for giving a more detailed description. In holding the description adequate, the Court observed that “the Fourth Amendment requirements do not impose a burden on the executing officer beyond his power to meet.” Id. at 1354. See also: Steele v. United States, No. 1, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925); United States v. Strauss, 678 F.2d 886 (11th Cir.1982), cert. denied, 459 U.S. 911, 103 S.Ct. 218, 74 L.Ed.2d 173 (1982); United States v. Hillyard, 677 F.2d 1336 (9th Cir.1982); United States v. Cook, 657 F.2d 730 (5th Cir.1981); Grimaldi v. United States, 606 F.2d 332 (1st Cir.1979), cert. denied, 444 U.S. 971, 100 S.Ct. 465, 62 L.Ed.2d 386 (1979); United States v. Davis, 542 F.2d 743 (8th Cir.1976), cert. denied, 429 U.S. 1004, 97 S.Ct. 537, 50 L.Ed.2d 616 (1976); United States v. Averell, 296 F.Supp. 1004 (E.D.N.Y.1969); 54 A.L.R.Fed. 679.

The recent decision of this Court in Commonwealth v. Santner, 308 Pa.Super. 67, 454 A.2d 24 (1982) does not support appellant’s contention. In that case, the police had seized all of a defendant-physician’s files, records and ledgers pursuant to a warrant which had identified the items to be seized as “All Patient/Physician records and charts. All ledgers and bookkeeping pertaining to patients and visits.” The purpose of the warrant had been to aid an ongoing investigation regarding suspected unlawful sales of controlled substances. This Court held that the warrant lacked particularity and was overbroad. In doing so, the Court observed: “The distinction between a search for contraband and a search for business records is an historic one. See Boyd v. United States, 116 U.S. 616 [6 S.Ct. 524, 29 L.Ed. 746] (1886).” Id., 308 Pa.Superior at 81 n. 7, 454 A.2d at 31 n. 7. This same distinction was well stated in United States v. Abrams, 615 F.2d 541 (1st Cir.1980). There, a doctor’s files and records had been seized during an investigation into his suspected participation in Medicare and Medicaid fraud scheme. All of the physician’s Medicare and Medicaid records had been seized in a search that lasted more than three hours. The court distinguished cases where a search had been directed to stolen goods or other contraband in the following language:

“It is true, as the government points out, that courts have approved warrants describing the things to be seized in generic terms but, in most instances, the material to be seized was contraband or stolen property (citations omitted). We found the generic description sufficient to satisfy the particularity requirement of the fourth amendment where the affidavits established that goods described in generic terms were likely to have been stolen and constituted a dominant part of the goods on the premises (citations omitted)____ [W]here the property is of a specified character and that character is contraband, a description in terms of its character is sufficient____
Business records, although they may contain evidence of fraud, do not fall into the category of stolen or contraband goods.”

Id. at 545. See also: United States v. Jacob, 657 F.2d 49 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982).

The instant case involves the search and seizure of a large quantity of stolen goods. The adequacy of the warrant’s description of such goods must be determined according to decisions based on comparable warrants. Those decisions establish clearly that warrants identifying items to be seized as “firearms, tires, stereo equipment, jewelry, new clothing, tools, radios, TVs, typewriters, stenotypers, car radios, CBs, air conditioners, cameras, lens, projectors, motors, currency, both paper and coin, and other items believed to be stolen” are sufficient to pass constitutional muster under circumstances present in the instant case.

Appellant also complains that there was evidence tending to show that he had received stolen property in addition to that with which he had been charged in the several informations. As a general rule, evidence of prior, unrelated criminal acts is inadmissible. Commonwealth v. Jones, 499 Pa. 522, 526, 454 A.2d 8, 9 (1982); Commonwealth v. Morris,, 493 Pa. 164, 175, 425 A.2d 715, 720 (1982); Commonwealth v. Stauffer, 309 Pa.Super. 176, 185, 454 A.2d 1140, 1145 (1982); Commonwealth v. Gonzales, 297 Pa.Super. 66, 76, 443 A.2d 301, 306 (1982); Commonwealth v. Sanders, 296 Pa.Super. 376, 378, 442 A.2d 817, 818 (1982); Commonwealth v. Krajci, 283 Pa.Super. 488, 498, 424 A.2d 914, 919 (1981). However, an exception to the rule exists where prior acts are relevant to establish knowledge or intent. Commonwealth v. Jones, supra, 499 Pa. at 526, 454 A.2d at 10; Commonwealth v. Styles, 494 Pa. 524, 528, 431 A.2d 978, 980 (1981); Commonwealth v. Morris, supra, 493 Pa. at 175, 425 A.2d at 720; Commonwealth v. Brown, 489 Pa. 285, 296, 414 A.2d 70, 75 (1980); Commonwealth v. DeVaughn, 488 Pa. 629, 631, 413 A.2d 660, 661 (1980); Commonwealth v. Stauffer, supra, 309 Pa.Superior at 185, 454 A.2d at 1145; Commonwealth v. Laughman, 306 Pa.Super. 269, 271 n. 1, 452 A.2d 548, 549 n. 1 (1982); Commonwealth v. Gonzales, supra, 297 Pa.Superior at 76, 443 A.2d at 306; Commonwealth v. Rough, 275 Pa.Super. 50, 63, 418 A.2d 605, 612 (1980). In the present case, the Commonwealth was required to prove that appellant possessed stolen goods with knowledge that they were stolen or at least with a belief that they had probably been stolen. 18 Pa.C.S. § 3925. Evidence of appellant’s participation in transactions during which he purchased other stolen property stored in his houses was probative of the state'of his mind. The trial court hearing the charges against appellant did not err by receiving this evidence to show a knowing and intentional receiving of stolen property.

Appellant has not preserved for review the excessiveness of the sentence imposed or the adequacy and propriety of the sentencing court’s reasons therefor. Not only does the record fail to disclose that a petition to reconsider the sentence was ever filed, but when ordered to file a statement of matters complained of on appeal pursuant to Pa.R. A.P. 1925(b), appellant failed to do so. While the other issues decided in this opinion were raised in post trial motions and brought to the attention of the trial court, appellant’s sentencing contentions were never presented to that court.

In Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982), the Supreme Court defined the parameters of the waiver provision in Rule 1925. There, the appellant had raised certain issues in post-trial motions and argued them before the trial court. When they were decided adversely to him, he appealed. In response to an order directing him to file a statement of matters complained of on appeal, appellant filed a statement which omitted reference to a ruling concerning the irrelevancy of defense evidence. The Supreme Court held- that the waiver provision in Rule 1925(b) “is properly invoked only where failure to file a statement ... defeats effective appellate review.” Id., 499 Pa. at 238, 452 A.2d at 1333.

In the present case, appellant’s failure to file a statement of matters complained of on appeal, as required by Rule 1925(b), has prevented our achieving an effective review of the sentencing issue. Because the issue was not called to the attention of the trial court, its opinion does not contain a discussion of the sentence imposed. More importantly, appellant’s failure to raise the sentencing issue by a statement of issues complained of on appeal has resulted in the absence of a transcribed record of the sentencing hearing. Thus, we are unable to review the evidence or the court’s reasons for the sentence imposed. We are also unable to determine whether appellant knowingly waived this issue by failing to file a petition to modify sentence. Under these circumstances, appellant has failed to preserve this issue for appellate review. Cf. Commonwealth v. Williams, 265 Pa.Super. 180, 401 A.2d 820 (1979).

The judgment of sentence is affirmed.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge,

dissenting:

Because I find the overbreadth of the latter three search warrants repugnant to the specificity required by the United States Constitution, and the ensuing unrestrained searches prime examples of the evil that requirement was designed to prevent, I must strenuously dissent.

The fourth amendment to the United States Constitution provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be searched.” (emphasis added). General warrants are thus prohibited. Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627, 642 (1976). “As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 23, 26 (1927). Accord, Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965); United States v. Crozier, 674 F.2d 1293 (9th Cir.1982). “The particularity requirement prohibits a warrant that is not particular enough and a warrant that is overbroad.” Commonwealth v. Santner, 308 Pa.Superior Ct. 67 n. 2, 454 A.2d 24 n. 2 (1982). “A warrant unconstitutional for its overbreadth authorizes in clear or specific terms the seizure of an entire set of items or documents, many of which will prove unrelated to the crime investigation.” Id.

The items identified to be searched for and seized were “FIREARMS, TIRES, STEREO EQUIPMENT, JEWELRY, NEW CLOTHING, TOOLS, RADIOS, TV’S, typewriters, steno typers, car radios, cb’s, air conditioners, cameras, lens, projectors, motors, currency, both paper and coin, and other items believed to be stolen.” The majority holds these generic descriptions sufficient and the seizure of all the goods within appellant’s houses proper because the sheer volume of the stolen goods precluded any reasonable attempt at particularity. See United States v. Cortellesso, 601 F.2d 28 (1st Cir.1979), cert. denied, 444 U.S. 1072, 100 S.Ct. 1016, 62 L.Ed.2d 753 (1980); United States v. Scharf man, 448 F.2d 1352 (2d Cir.1971), cert. denied, 405 U.S. 919, 92 S.Ct. 944, 30 L.Ed.2d 789 (1972). The majority, however, ignores the facts of this case. In Cortellesso, reliable informants and wiretap information indicated that there were more than 740 suits, as well as numerous other items of clothing, known to be stolen, on the premises to be searched. In permitting a general description, the court held “that for all practical purposes the collection could not be precisely described for the purpose of limiting the scope of the search.” United States v. Cortellesso, supra at 32. In Scharfman, an FBI informant’s tip that several hundred furs, known to be stolen, were in two stores, was positively confirmed by the observations of the furs’ owner. In permitting a generic description, the court acknowledged it would take “a legion of fur experts” to determine which of the items were stolen.

Here, however, out of the four five-ton truckloads of merchandise confiscated, the officers had information that one gun had been stolen and that some items had missing or defaced serial numbers. Rather than limit the search and seizure to those items known to be stolen, i.e. the gun, or those having some indicia of being stolen, i.e. items with serial numbers removed or defaced, the warrants authorized the officers to seize virtually everything in appellant’s four houses. Tires, jewelry, clothing, tools and hundreds of other items with no markings or reports indicating they may have been stolen were seized pursuant to the warrants. Despite carting away four truckloads of goods, the Commonwealth was only able to convict appellant of receiving two tape players, one drill, one radio and several pieces of jewelry. Thus, the vast majority of goods seized were not known to be stolen at the time of the search or even after subsequent investigation. Unlike Cortellesso and Scharfman, the police had no specific reports indicating that a large quantity of the goods were known to be stolen. Nor would there have been any difficulty in limiting the search to those items having some indicia of being stolen. Thus the reasons for permitting a general description of goods to be searched and seized are not present and the warrant is entirely too broad. This unsupervised wholesale confiscation of an individual’s goods cannot be countenanced under the fourth amendment. Accordingly, I would grant appellant’s motion to suppress the items seized pursuant to these warrants.

      . 18 Pa.C.S. § 3925.

      . Pa.R.Crim.P. 2005(b) provides that each search warrant shall "identify the property to be seized.”

      . The relevance and significance of this evidence became even greater in light of appellant's contention at trial that he had innocently come into possession of the stolen merchandise alleged in the informations.

      . Where it can be shown that appellant knew of his right and obligation to file a petition to reconsider under Rule 1410 and failed to do so, sentencing claims not going to the legality of the sentence are deemed waived. See: Commonwealth v. Stetler, 494 Pa. 551, 565, 431 A.2d 992, 999 (1981); Commonwealth v. Green, 494 Pa. 406, 408, 431 A.2d 918, 919 (1981); Commonwealth v. Boyce, 304 Pa.Super. 27, 30, 450 A.2d 83, 85 (1982); Commonwealth v. Shaw, 280 Pa.Super. 575, 583, 421 A.2d 1081, 1085 (1980); Commonwealth v. Ruschel, 280 Pa.Super. 187, 188-189, 421 A.2d 468, 469 (1980). However, where the record discloses that appellant was not apprised by the trial court of his obligation to file a petition within 10 days of sentencing, a finding of waiver cannot be made. Commonwealth v. DeCaro, 298 Pa.Super. 32, 44-45, 444 A.2d 160, 166-167 (1982); Commonwealth v. Koziel, 289 Pa.Super. 22, 24-25, 432 A.2d 1031, 1032 (1981); Commonwealth v. Kittrell, 285 Pa.Super. 464, 471 n. 6, 427 A.2d 1380, 1383 n. 6 (1981); Commonwealth v. Rush, 281 Pa.Super. 92, 95, 421 A.2d 1163, 1164 (1980). See also: Commonwealth v. Kancle, 302 Pa.Super. 454, 448 A.2d 1129 (1982); Commonwealth v. Kauffman, 298 Pa.Super. 375, 444 A.2d 1222 (1982); Commonwealth v. Dalbon, 296 Pa.Super. 122, 442 A.2d 326 (1982); Commonwealth v. Picker, 293 Pa.Super. 381, 439 A.2d 162 (1981).


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    460 A.2d 1111
    COMMONWEALTH of Pennsylvania v. Gregory BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 1, 1982.
    Filed April 22, 1983.
    Reargument Denied July 5, 1983.
    Petition for Allowance of Appeal Granted Oct. 12, 1983.

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

Gregory Brown, who was convicted of robbery in the Court of Common Pleas, Philadelphia County, in November 1979, and sentenced to one and one half to five years in the state correctional institution, charges that he was erroneously certified as an adult, and that he was convicted upon insufficient evidence. For the reasons that follow, we affirm his conviction.

When appellant Brown was arrested for the crime in question on December 1, 1978, he was sixteen years old, and he was charged as a juvenile. The Commonwealth filed notice to certify him as an adult and a full evidentiary hearing was held on the question of certification. At the hearing it was established that Brown had a criminal record going back to 1973, including nine juvenile arrests and six convictions for burglary and arson. In the most recent conviction, in 1977, Brown had been certified as an adult on a charge of involuntary manslaughter, and sentenced to one to five years at Camp Hill, an adult correctional institution for young offenders (normally those under the age of twenty-five). Brown’s arrest for the instant crime, a felony if committed by an adult, occurred while he was on parole for the 1977 conviction.

This case presents an issue of first impression. Must a juvenile be recertified as an adult where he allegedly committed an offense while he was on parole after being tried and convicted for a prior offense as an adult? We hold that under 42 Pa.C.S. § 6355(a), when a parolee from an adult correctional institution faces criminal charges, he must be recertified as an adult before these charges can be heard in the adult system. Nothing in 42 Pa.C.S. § 6355 or any other statute permits the state to transfer the matter to the adult system without a fresh certification hearing.

At the certification hearing held in the instant case, the court noted that as a matter of record Brown was under the jurisdiction of the State Parole Board for the arrest of robbery, which constituted a parole violation, and Brown agreed that this was so (N.T. Certification Hearing, p. 7). The question was whether the trial for robbery required a full certification on the facts. At the comprehensive hearing, conducted under the able and thoughtful direction of Judge Doris M. Harris, the court concluded,

“as a matter of law, the juvenile having been incarcerated in the adult program and now under the jurisdiction of the State Parole Board is not amenable to treatment, supervision, or rehabilitation as a juvenile through available juvenile facilities.
The Court believes that this arrest constitutes a violation of parole, and the violation of that parole must be decided by the adult system, as well as the guilt or innocence of the charge, likewise, must be decided by that system ” (N.T.Cert.Hear. p. 22) (emphasis added).

The case at bar presents a difficult dilemma. The robbery represents both a violation of parole and a fresh offense. The offense, however, is primarily a new charge, for which Brown must stand trial, and only secondarily a parole offense. Brown correctly argues that the Juvenile Act of this Commonwealth specifically states that a transfer order removes the child from the jurisdiction of the juvenile system only with respect to the acts alleged in the petition:

42 Pa.C.S. § 6355(b)
(b) Chapter inapplicable following transfer.—The transfer terminates the applicability of this chapter over the child with respect to the delinquent acts alleged in the petition.

The language of the statute is clear that recertification is necessary for any subsequent charge, and therefore the lower court misinterpreted the statute when it found, as a matter of law, that the parole violator must be brought to trial in the adult system.

The statute requires a new certification hearing, and Brown supports his conclusion by pointing to other jurisdictions which have held that prior certification is not determinative of whether a subsequent offense be tried in juvenile or adult court. In State v. Dinkins, 627 P.2d 523 (Utah, 1981) the question for the court was whether the district court or juvenile court had jurisdiction over a juvenile who was charged with a felony after he had been certified on a prior criminal charge. The suspect had been bound over to the district court on the ground that the previous certification applied to the subsequent offense. The Supreme Court of Utah held that recertification as an adult was not automatic, but required another hearing. Under similar circumstances, courts in Alaska, Wisconsin, Florida, and Kentucky have held that there can be no waiver of juvenile status, nor permanent termination of amenability to juvenile process, by one certification.

The Commonwealth argues that the recertification requirement presents “the futile and absurd situation where [Brown] ... would be subject to rehabilitation as a juvenile while at the same time he could be sentenced to prison as an adult offender” (Appellee’s brief, p. 8). While we agree with the Commonwealth we believe that common sense teaches that recertification as an adult will almost always occur in facts similar to the instant case. Nevertheless, we hold that a new certification hearing to consider whether the parolee should be certified to the adult side of the court is a statutory requirement that must be met.

While we are convinced that holding Brown certified as an adult as a matter of law was error, we hold that it was harmless error. At the certification hearing Judge Harris incorporated by reference the reports of a psychiatrist and psychologist and found that in light of the substance of these reports, and Brown’s previous criminal record, there were reasonable grounds to believe that he was not amenable to treatment or supervision in the juvenile system. The statutory requirements of notice, establishment of a prima facie case, and the consideration of the factors listed in 6355(a)(4)(iii)(A) were met. (N.T. Certification Hearing, pp. 20-22).

The law requires that a juvenile court make a statement of its reasons for certification, and Judge Harris did so, in a form sufficient for appellate review. Our Court held in Commonwealth v. Stokes, 279 Pa.Super. 361, 421 A.2d 240 (1980):

In reviewing the actions of the certification court, we are mindful that it need not make a statement of conventional findings of fact in order to comply with the statute. Commonwealth v. Harrod, 260 Pa.Super. 312, 394 A.2d 567 (1978). However, the court must make a statement of its reasons for certification, and this statement “should be sufficient to demonstrate that ... the question [of certification] has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.” Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84 (1966). (Stokes, 279 Pa.Superior 367, 421 A.2d at 243).

We find compliance with these requirements, and therefore hold that Brown was properly recertified under the Juvenile Act. In any certification hearing under circumstances similar to Brown’s, the fact of parole violation from an adult correctional institution will be given weight by the certification court, as it was in the instant case. As a full certification hearing was held and conducted well, we decline to reverse the court’s finding of lack of amenability to juvenile process.

The second issue raised in this appeal is whether Brown • was convicted of robbery without the statutory requisite of a showing of force. Appellant charges that the Commonwealth failed to present any evidence that force, however slight, was used when he took possession of the victim’s purse, placed the cash in his own pocket, and then threw the purse away. The victim, Tomasa Rivera, testifying through an interpreter, told the court at the certification hearing:

THE INTERPRETER: She says that he came in back of her, punched her in her back, took the pocketbook and began to run. (N.T. Cert. p. 9).

The Commonwealth’s evidence at trial established that Brown ran up to Rivera, snatched her purse, and that she screamed at the moment of the robbery. Rivera identified Brown as the perpetrator when he was apprehended a few minutes later, and again in open court. The law is clear that conduct can be a sufficient show of force when a bag or wallet is taken from a victim’s person, even without touching the victim. Commonwealth v. Glenn, 280 Pa.Super. 300, 421 A.2d 733 (1980); Commonwealth v. Ostolaza, 267 Pa.Super. 451, 406 A.2d 1128 (1979).

In Commonwealth v. Viall, 278 Pa.Super. 613, 420 A.2d 710 (1980) our Court used evidence adduced at a preliminary hearing to amplify the picture presented at trial in addressing a sufficiency of evidence claim. The fact that the evidence of Rivera, a non-English speaking witness whose words were rendered through an interpreter, did not include the statement make earlier at the certification hearing: “She says that he came in back of her, punched her in her back, took the pocketbook and began to run” does not undermine the sufficiency of the Commonwealth’s evidence.

Judgment of sentence is affirmed.

      . In Commonwealth v. Pitt, 254 Pa.Super. 159, 385 A.2d 574 (1978) the Court addressed the novel question of whether the same case could be recertified to juvenile court after it had been transferred from that court, and decided that once a certification was made with due process, the case could not be transferred back to juvenile court.

      . 42 Pa.C.S. § 6355. Transfer to criminal proceedings (a) General rule—After a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense under the laws, including local ordinances, of this Commonwealth, the court before hearing the petition on its merits may rule that this chapter is not applicable and that the offense should be prosecuted, and transfer the offense, where appropriate, to the division or a judge of the court assigned to conduct criminal proceedings, for prosecution of the offense if all of the following exist:
      (1) The child was 14 or more years of age at the time of the alleged conduct.
      (2) A hearing on whether the transfer should be made is held in conformity with this chapter.
      (3) Notice in writing of the time, place, and purpose of the hearing is given to the child and his parents, guardian, or other custodian at least three days before the hearing.
      (4) The court finds:
      (i) that there is a prima facie case that the child committed the delinquent act alleged;
      (ii) that the delinquent act would be considered a felony if committed by an adult; and
      (iii) that there are reasonable grounds to believe all of the following:

        (A) That the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities, even though there may not have been a prior adjudication of delinquency. In determining this the court shall consider the following factors: Age. Mental Capacity. Maturity. The degree of criminal sophistication exhibited by the child. Previous records, if any. The nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the Juvenile Court to rehabilitate the child. Whether the child can be rehabilitated prior to the expiration of the Juvenile Court jurisdiction. Probation or institutional reports, if any. The nature and circumstances of the acts for which the transfer is sought. Any other relevant factors.
      (B) That the child is not committable to an institution for the mentally retarded or mentally ill.
      (C) That the interests of the community require that the child be placed under legal restraint or discipline or that the offense is one which would carry a sentence of more than three years if committed as an adult.

      . P.H. v. State, 504 P.2d 837 (Alaska 1972).

      . Gibson v. State, 47 Wis.2d 810, 177 N.W.2d 912 (1970); Miller v. Quatsoe, 348 F.Supp. 764 (E.D.Wis.1972).

      . E.H.N. v. Willis, 350 So.2d 829 (Fla.App.1977).

      . Benge v. Commonwealth, 346 S.W.2d 311 (Ky.1961).

      . 18 Pa.C.S.A. § 3701(a)(l)(v)
      (a) A person is guilty of robbery if, in the course of committing a theft he ... (v) physically takes or removes property from the person of another by force however slight, (emphasis added).


author: PRICE, Judge:

text:
    460 A.2d 1115
    COMMONWEALTH of Pennsylvania v. John J. ALBARANO, Appellant.
    Superior Court of Pennsylvania.
    Argued June 9, 1980.
    Filed April 29, 1983.
    Reargument Denied June 20, 1983.
    Petition for Allowance of Appeal Denied Oct. 17, 1983.

      Ambrose R. Campana, Williamsport, for appellant.
    Robert F. Banks, Assistant District Attorney, Williams-port, submitted a brief on behalf of Commonwealth, appellee.
    Before PRICE , WICKERSHAM and LIPEZ, JJ.

       This decision was reached prior to the death of Judge Price.

   PRICE, Judge:

Following a nonjury trial commenced on December 15, 1977, appellant, John Albarano, was found guilty of two counts of violating section 353(b) of the Tax Reform Code of 1971. (“Tax Reform Code”). Appellant’s post-verdict motion in arrest of judgment was denied and, on June 18, 1979, appellant was sentenced to pay fines totaling $10,000 and to make restitution in the amount of $50,528.75. In this appeal from the judgment of sentence, appellant contends that prosecution of the charges of which he was convicted was barred by a two year statute of limitations. For the reasons stated herein, we disagree, and, accordingly, affirm the judgment of sentence.

The relevant facts are these. On June 22, 1977, a representative of the Personal Income Tax Bureau of the Pennsylvania Department of Revenue filed a criminal complaint charging appellant with multiple counts of tax evasion. The complaint averred that, in his capacity as president of Penn State Construction Company, Inc. and its successor, Albarano Building Company, appellant “[w]ilful[ly] fail[ed] to pay over to the PA Dept, of Rev. income taxes withheld from his employees for the following periods and amounts: Count I—1973—$33,170.80—Count II—1974—$17,357.95— Count III—1975—$4,929.08—Count IV—1976—$11,609.79— Count V—1-1-77 to 4-19-77 ____” (Supp. Record at 4b). On September 13, 1977, the District Attorney of Lycoming County filed an information charging appellant with eight counts of tax evasion for the years 1973, 1974, 1975 and 1976. Unlike the complaint, however, the information contained no reference to appellant’s position as president, director, and majority shareholder of the two companies. (Record at 13a-14a).

Appellant subsequently filed a motion to dismiss a portion of the information, contending that the two year statute of limitations created by the Act of March 31, 1860, P.L. 427, § 77, as amended, 19 P.S. § 211, barred prosecution for tax evasion alleged to have occurred prior to June 22, 1975. The Commonwealth responded by filing an application to amend the information in which it proposed to preface each of the eight counts by alleging that appellant had evaded taxation “in his capacity as president, director and chief stockholder of Penn State Construction, Inc., a Pennsylvania corporation____” (Supp. Record at 21b-24b). Appellant countered with a motion opposing amendment of the information. The matter was briefed and argued and, on November 4, 1977, the court below granted the Commonwealth’s application to amend the information. Thereafter, on November 15, 1977, appellant’s motion to dismiss a portion of the information was denied.

Appellant waived his right to trial by jury and, on December 15 and 16, 1977, he was tried before the Honorable Roy A. Gardner, specially presiding. On May 31, 1978, Judge Gardner filed an opinion in which he found appellant guilty on counts II and IV of the information, and not guilty on the six remaining counts. Appellant filed a post-trial motion in arrest of judgment, claiming only that his conviction for tax evasion during 1973 and 1974 was contrary to law in view of the two year statute of limitations. The trial court denied the motion on November 21, 1978, and imposed sentence on June 18, 1979. This appeal ensued.

The Commonwealth’s theory from the inception of this prosecution has been that appellant Albarano, by virtue of his position at Penn State Construction, was the statutorily designated “person” to collect, account for and pay over taxes withholdable from Penn State Construction, Inc. The six-year statute of limitations prescribed by the Act of 1878, June 12, P.L. 196, § 6, as amended, 19 P.S. § 213 (“section 213”) is, therefore, applicable because appellant’s relationship to that corporation is “an essential element of the crime” charged. Brief for appellee at 6.

At the time the instant prosecution arose, section 213 was in force and provided in relevant part:

Indictments for felonies or misdemeanors committed by any officer, director, receiver, superintendent, manager, broker, attorney, agent, employe, or member of any bank, body corporate or public company, municipal or quasi-municipal corporation may be commenced and prosecuted at any time within six years from the time the alleged offense shall have been committed. The provisions of this section shall not be construed so as to apply to indictments for any felony or misdemeanor other than those as to which any of the foregoing relationships to a bank, body corporate or public company, or municipal or quasi-municipal corporation, is an essential element of the crime. [Emphasis added].

19 P.S. § 213.

The cases construing this particular statute of limitations have consistently held that the crime charged must be one which only an officer of a bank, corporation or public company could commit by virtue of his position therein in order for the extended statute of limitations to apply. See, Commonwealth v. Kauffman, 190 Pa.Superior Ct. 444, 154 A.2d 269 (1959). In Commonwealth v. Parish, 176 Pa.Superior Ct. 267, 270, 107 A.2d 203, 205 (1954), where the defendant, an officer of a paving company, was indicted for bribery of a public official, this court interpreted the intent of the statute’s provisions and distinguished the crimes to which the statute may apply:

[Section 213] is clear in requiring that the six-year period be applicable only where the relationship of officer, director, etc. to a corporation is “an essential element of the crime.” This obviously refers to such crimes as embezzlement where the corporate capacity of the accused is part of the nature of the crime. Commonwealth v. Hayden, 72 D. & C. 75. It is patent that bribery can be committed by anyone, regardless of his relationship to a corporation or whether he may be seeking favors through or on behalf of a corporation. The purpose of this six-year provision is to give enforcement agencies more time to apprehend those who are in peculiarly good position to conceal their crimes for periods longer than the average criminal.

Therefore, the fundamental question in our present inquiry is whether appellant’s relationship to the corporation is an essential element of the crime of tax evasion in this case.

In Commonwealth v. Kauffman, supra, the indictments charged embezzlement and fraudulent conversion against the defendant, the manager and superintendent of sales of the employing corporation. The defendant allegedly collected sums from customers of the corporation and failed to pay the sums over to the company. Defendant was convicted for both crimes under the six-year statute of limitations provided for in section 213 but appealed on the grounds that his relationship to the corporation was not an essential element of either the crime of embezzlement or fraudulent conversion.

To resolve the issue this court looked to the definitions of the individual crimes involved. The statutory definition of embezzlement specified as an element of the crime that the perpetrator must be an “officer, director, superintendent, manager, receiver, employee, agent ... of any bank or other body corporation, or public company.... ” Act of June 24, 1939, P.L. 872, 18 P.S. § 4827. This definition made it clear that “[ajnyone who did not stand in one of the enumerated relationships to a corporation could not be convicted under this section____” Commonwealth v. Kaufman, supra 190 Pa.Superior Ct. at 449, 154 A.2d at 271. Therefore, the relationship to the corporation was an essential element of the crime as required by section 213 and the six-year limitation was found to apply.

In contrast, however, when the court looked to the definition of fraudulent conversion it found that no specific relationship to a body corporate or public was required as an essential element. Consequently, the court found the indictments timely as to the embezzlement charges but untimely as to the charges of fraudulent conversion since the charges had been brought more than two years from the commission of the crime. Commonwealth v. Kauffman, supra, 190 Pa.Superior at 449-450, 154 A.2d at 271.

Kauffman’s reasoning was also followed in Commonwealth v. Burns, 197 Pa.Superior Ct. 282, 178 A.2d 619 (1961) where the defendant, the superintendent of a county home, was indicted for obtaining property by false pretenses and conspiracy. This court found that section 213 had no application since the crimes covered by the indictment could be committed by anyone and the relationship of the defendant to the county was not an essential element.

The Commonwealth presently asserts and we agree that the application of the six-year statute to the instant charges is in accord with the foregoing holdings. Through the reading of various applicable provisions of the Crimes Code in conjunction with the Tax Reform Code, supra, note 1, the Commonwealth successfully proves that appellant’s relationship to Penn State Construction is an essential element of the tax evasion conviction.

To begin with, the Commonwealth argues that the Tax Reform. Code imposes the duty to withhold and pay over the income tax on the statutory employer, in this case the corporation, Penn State Construction and its successor. Next, the language of § 353(b), 72 P.S. § 7353(b), supra note 1, which imposes criminal liability on “any person” required to withhold the tax who wilfully fails to pay over such tax, but, as the Commonwealth points out in this case the term “person” encompasses more than a natural individual; rather, it is addressed to the entity identified as the statutory employer, Penn State Construction.

It is the Commonwealth’s prime contention that appellant, as an individual officer of the corporation, is liable for the tax evasion committed by Penn State Construction and its successor only by virtue of subsection 307(e) of the Crimes Code, 18 Pa.C.S.A. § 307(e), which imposes legal accountability on one acting or under a duty to act for a corporation. But for the operation of this subsection, appellant could not be held criminally liable for the wilful evasion of the tax since the Tax Reform Code placed criminal liability on the employer. Therefore, it is argued, appellant’s relationship to the corporation is an essential element of the appellant’s conviction under § 7353 of the Tax Reform Code.

We agree with the Commonwealth’s thoughtful analysis of these provisions and on that basis affirm the lower court’s finding of guilt.

We also agree with the Commonwealth that appellant has waived the issue of whether the application of the six-year statute of limitations denies him equal protection of the law under the Fourteenth Amendment of the United States Constitution.

Pa.R.Cr.P. 306(e) provides: “All grounds for the relief demanded shall be stated in the [omnibus pretrial] motion and failure to state a ground shall constitute a waiver thereof.” Appellant did not assert the equal protection argument until he filed his motion in arrest of judgment. Therefore, under Rule 306(e) we hold the issue waived and will not address it.

Finally, we dismiss appellant’s argument that the sentence imposed by the lower court was illegal based on the authority contained in Commonwealth v. Stoner, 264 Pa. Superior Ct. 136, 399 A.2d 703 (1979). Stoner deals with the courts’ power to order restitution for criminal acts occurring between June 6, 1973, and March 30, 1975 and is not relevant to sentences imposed under authority of the Tax Reform Code of 1971.

In Commonwealth v. Flashburg, 237 Pa.Superior Ct. 424, 352 A.2d 185 (1975), which laid the precedent for our decision in Stoner, supra, this court held that after the legislature’s repeal of section 1109 of the Act of June 24, 1939, P.L. 872, 18 P.S. § 5709, (authorizing restitution in criminal cases) in 1973, the courts were without power to order restitution until a comparable provision was inserted into the present Crimes Code on March 30, 1975 (18 Pa.C. S.A. § 1321(c)).

While it is true that “a defendant cannot be ordered to make restitution unless restitution is a statutorily authorized penalty,” Commonwealth v. Flashburg, 237 Pa.Superior Ct. 424, 427, 352 A.2d 185, 186-87 (1975), the sentencing court in the instant case did not rely upon the authority of the repealed provision in the Crimes Code in order to impose restitution. It grounded its order on § 352(e) of the Tax Reform Code, 72 P.S. 7352(e) which provides in pertinent part:

(e) Any person required to collect, account for and pay over any tax imposed by the article who wilfully fails to collect such tax or truthfully account for and pay over such tax, .. shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax ... not accounted for and paid over ... The term ‘person’ as used in this subsection includes an officer or employee of a corporation ... who as such officer [or] employee ... is under a duty to perform the act in respect of which the violation occurs. (Emphasis added).

Therefore, the judgment of sentence which ordered appellant to pay the full amount of tax due was compelled by statute and was, therefore, legal.

Based on the foregoing reasons, the judgment of sentence is affirmed.

      . Act of March 4, 1971, P.L. 6, No. 2, art. Ill, § 361, added August 31, 1971, P.L. 362, No. 2, § 4, as amended, 72 P.S. § 7353. Section 353(b) provides:
      Any person required under this article to collect, account for and pay over any tax imposed by this article who wilfully fails to collect or truthfully account for and pay over such tax, shall, in addition to other penalties provided by law, be guilty of a misdemeanor, and shall, upon conviction, be sentenced to pay a fine not exceeding twenty-five thousand dollars ($25,000) or to undergo imprisonment not exceeding two years, or both.
      72 P.S. § 7353(b).

      . At the time the instant prosecution arose, and prior to its repeal by the Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [377], section 211 provided, in relevant part:
      All indictments which shall hereafter be brought or exhibited for any crime or misdemeanor, murder and voluntary manslaughter excepted, shall be brought or exhibited within the time and limitation hereafter expressed, and not after; that is to say, all indictments and prosecutions for treason, arson, sodomy, buggery, robbery, burglary, perjury, counterfeiting, forgery, uttering or publishing any bank note, check or draft, knowing the same to be counterfeited or forged, shall be brought or exhibited within five years next after the offense shall have been committed; and all indictments and prosecutions for other felonies not named or excepted heretofore in this section, and for all misdemeanors, perjury excepted, shall be brought or exhibited within two years next after such felony or misdemeanor shall have been committed____ And provided also, that indictments for misdemeanors committed by any officer of a bank, or other corporation, may be commenced and prosecuted at any time within six years from the time the alleged offense shall have been committed .... (Emphasis added).
      19 P.S. § 211. The effective date of the repeal of section 211 was June 27, 1978, over one year after the criminal complaint was lodged against appellant in the instant case.

      . Counts II and IV alleged that appellant wilfully failed to truthfully account for and pay over personal income tax withheld from employees for the years 1973 and 1974. (Supp. Record at 21b-22b).

      . Repealed by Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [683]; effective date of repeal: June 27, 1978.

      . In Commonwealth v. Parish, 176 Pa.Superior Ct. 267, 107 A.2d 203 (1954), this court construed 19 P.S. § 211, supra note 2, in accordance with 19 P.S. § 213:
      [19 P.S. § 211] also provides for a six-year limitation for certain crimes committed by corporate officers, but fails to contain the added proviso of [19 P.S. § 213] that the relationship must be an essential element of the crime. The omission is no help to appellant, for the purpose is obviously the same ... To construe [19 P.S. § 211] otherwise would be to sanction a most unusual discrimination against those who happen to be officers of corporations. It can hardly be argued that the legislature intended a longer period of limitations in respect to crimes in general for just one class of persons based on employment.

        Id., 176 Pa.Superior at 270-271, 107 A.2d at 205.

      . See also, for similar reasoning, Commonwealth v. Russo, 177 Pa.Superior Ct. 470, 111 A.2d 359 (1955) (where the six-year statute of limitations was found inapplicable to an indictment charging a police officer with the offense of obstructing justice because the police officer’s relationship to the municipality was not an essential element of the crime).

      . Section 316 of the Tax Reform Code, 72 P.S. § 7316, provides in pertinent part:
      Every employer maintaining an office or transacting business within this Commonwealth and making payment of compensation ... shall deduct and withhold from such compensation for each payroll period a tax computed in such a manner as to result, so far as practicable, in withholding from the employe’s compensation during each calendar year an amount substantially equivalent to the tax reasonably estimated to be due for such year with respect to such compensation. (Emphasis added.)

      . Subsection 301(h) of the Tax Reform Code, 72 P.S. § 7301(h) defines "employer" as "an individual, partnership, association, corporation,
        governmental body or unit or agency, or any other entity who or that employs one or more persons for compensation” (Emphasis added).

      . Subsection 301(o) of the Tax Reform Code of 1971, 72 P.S. § 7301(o) defines "person” as "any individual employer, association, fiduciary partnership, corporation or other entity, estate or trust, resident or non-resident, and the plural as well as the singular number” (Emphasis added).

      . This subsection of the Crimes Code is applicable to the penalties imposed under the Tax Reform Code by virtue of subsection 107(a) of the Crimes Code, 18 Pa.C.S.A. § 107(a), which provides: "The provisions of Part I of this title (relating to preliminary provisions) are applicable to offenses defined by this title or by any other statute.”
      Subsection 307(e) of the Crimes Code to which the Commonwealth led us is contained in Chapter III of Part I of the Crimes Code and provides:
      (e) Persons acting or under a duty to act for organizations.
      (1) A person is legally accountable for any conduct he performs or causes to be performed in the name of a corporation or an unincorporated association or in its behalf to the same extent as if it were performed in his own name or behalf.
      (2) Whenever a duty to act is imposed by law upon a corporation or an unincorporated association, any agent of the corporation or association having primary responsibility for the discharge of the duty is legally accountable for a reckless omission to perform the required act to the same extent as if the duty were imposed by law directly upon himself.
      (3) When a person is convicted of an offense by reason of his legal accountability for the conduct of a corporation or an unincorporated association, he is subject to the sentence authorized by law when a natural person is convicted of an offense of the grade and the degree involved.

      . We note for completeness that the Commonwealth properly complied with the holdings of Commonwealth v. Creamer, 236 Pa.Superior Ct. 168, 345 A.2d 212 (1975), and Commonwealth v. Titler, 236 Pa.Superior Ct. 177, 345 A.2d 217 (1975), by amending the information to make it indisputably clear that appellant was being charged in his special capacity as president and director of the subject corporation making the six-year statute of limitations applicable.

      . In deciding that the issue is waived we disagree with the lower court's Supplemental Opinion at 2 n. 1. President Judge Roy A. Gardner wrote therein: "However, because we also believe that it could be said that the defendant is now merely changing his theory in support of a ground raised in the Pre-trial Application for Relief (see Commonwealth v. Bable, 254 Pa.Super. [72], 385 A.2d 530 (1978)), we would prefer to address the equal protection assertion on its merit.” This reading of Bable is error. What the Bable court actually stated was that the rule in Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973) when appellant advances a new theory as a basis for relief, the ground or issue remains precisely the same was reversed in Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975), wherein our supreme court stated: "To make a distinction turn upon the fact that one is merely advancing a new theory, creates a fiction which frustrates the very purpose sought to be accomplished by a strict application of waiver.” Id., 464 Pa. at 126, 346 A.2d at 53. Mitchell controls our instant decision.


author: SPAETH, Judge: JOHNSON, Judge,

text:
    460 A.2d 1121
    COMMONWEALTH of Pennsylvania v. Sheldon DORIAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 17, 1982.
    Filed April 29, 1983.
    Reargument Denied July 5, 1983.
    Petition for Allowance of Appeal Granted Dec. 27, 1983.

      Russell J. Heiple, Johnstown, for appellant.
    D. Gerard Long, District Attorney, Ebensburg, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from judgment of sentence for burglary. Appellant argues that the lower court (1) lacked jurisdiction to accept his guilty plea; (2) erred in refusing to allow him to withdraw his guilty plea; (3) imposed an illegal and excessive sentence; and (4) denied him effective assistance of counsel. We affirm.

Appellant was arrested on March 17, 1980, and charged with criminal attempt, criminal mischief, and burglary. He pleaded guilty to burglary and the Commonwealth moved to have the remaining charges nol prossed because they merged with the burglary. N.T. 5/6/80 at 1. On March 9, 1981, the lower court sentenced appellant to six to twelve years in prison, the sentence to be served concurrently with another sentence that had been earlier imposed and that appellant was serving. Motions to modify or vacate the sentence were denied, and this appeal followed.

-1-

Appellant first argues that the lower court lacked jurisdiction to accept his guilty plea because when his plea was accepted, “pre-trial motions” were pending. Although it is true that appellant did complain during the course of his guilty plea hearing that he had not been allowed to be present at his arraignment or at a pre-trial conference, N.T. 5/6/80 at 10, these complaints did not rise to the level of pre-trial motions. Even if they had, they would not have deprived the lower court of jurisdiction. Appellant’s reliance on Commonwealth v. Borris, 280 Pa.Super. 369, 421 A.2d 767 (1980), is misplaced. In Borris the lower court accepted a guilty plea during the pendency of an appeal concerning pre-trial motions. Except in certain limited instances, an appeal does oust the lower court’s jurisdiction. Pa.R.A.P. 1701(a).

Appellant’s argument is in any event foreclosed by his guilty plea. Before accepting his plea, the lower court advised appellant that by pleading, he would waive his right to argue that he should have been allowed to be present at his arraignment and at the pre-trial conference, and appellant responded that he understood that but was going to plead guilty anyway. N.T. 5/6/80 at 10-16. See also Commonwealth v. Arndt, 269 Pa.Super. 578, 410 A.2d 852 (1979) (defendant who pleads guilty waives right to challenge anything but legality of sentence and voluntariness of plea).

-2-

Appellant next argues that the lower court abused its discretion in denying his pre-sentence motion to withdraw his guilty plea. It is true, as appellant argues, that requests to withdraw guilty pleas prior to sentencing “are to be liberally allowed [] for any ‘fair and just’ reason unless the prosecution has suffered substantial prejudice.” Commonwealth v. Hayes, 462 Pa. 291, 300, 341 A.2d 85, 90 (1975). See also Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). It is also true that in Commonwealth v. Boofer, 248 Pa.Super. 431, 375 A.2d 173 (1977), cited by appellant, this court held that a critical consideration in the decision whether to allow withdrawal of a guilty plea is the presence or lack of prejudice to the Commonwealth. But appellant fails to note that in Boofer the defendant asserted his innocence and that we found that to be a “fair and just reason” for permitting him to withdraw his guilty plea. Here, by contrast, appellant not only did not assert his innocence, but his guilty plea colloquy is replete with unequivocal admissions of guilt. We have not overlooked the fact that at the hearing on appellant’s motion to withdraw his guilty plea, N.T. 2/9/81 at 9-11, appellant testified that upon further reflection, and after discussion of his case with fellow inmates, he thought he had a “possible defense” to the burglary charge. The suggested defense was that his statement to the police might have been inadmissible because he “was on drugs and ... under extreme pain” when he gave the statement, N.T. 9; that tools found on the roof “were in no way connected with” him, N.T. 10; and that “there is a possibility just based upon the fact that I have been in prison as much as I have that an insanity defense might be entered in this case also,” N.T. 11. This testimony does not amount to an assertion of innocence. Since appellant has offered no “fair or just” reason why he should have been permitted to withdraw his guilty plea, we find no error in the lower court’s refusal to permit him to withdraw it.

-3-

Appellant next argues that his sentence was illegal because the lower court directed that it should be served concurrently with an earlier sentence imposed on appellant. Appellant had been released on parole on this earlier sentence, but because of the burglary we are considering here, parole was revoked, and when appellant was sentenced on the burglary, he had resumed serving his earlier sentence in prison. See N.T. 3/9/81 at 30, 32-33, 36, 42. According to appellant, 61 P.S. 331.21(a) forbids the lower court from directing that his sentence for burglary be served concurrently with his earlier sentence. This argument lacks merit. Section 9761 of the Sentencing Code specifically recognizes the sentencing judge’s authority to impose a sentence “which is to run concurrently with a [sentence] which has been previously imposed.” To the extent that 61 P.S. 331.21a(a) is inconsistent with Section 9761, it has therefore been repealed.

Cases construing 61 P.S. 331.21a(a) have held that “a parole violator convicted and sentenced to prison for another offense must serve his or her back time and the new sentence in consecutive order.” Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (1976). See also Commonwealth v. Draper, 222 Pa.Super. 26, 29, 293 A.2d 614, 615 (1972) (“When a parolee is convicted and sentenced to imprisonment for a crime committed while on parole, the new sentence and the remainder of the old sentence must be served consecutively, and the sentencing judge has no authority to order that the sentence be concurrent.”); Commonwealth ex rel. Sanders v. Maroney, 202 Pa.Super. 202, 204, 195 A.2d 882, 883 (1963) (“The intention of sentencing judge is immaterial.”). But these cases were either decided before the Sentencing Code, see Draper and Sanders, or, while filed after the Code’s effective date, applied the law as it was in effect at the time the sentence was imposed, see Zuber. Thus in Zuber the Supreme Court noted that “[t]he Commonwealth concedes in its brief to this court ‘that under the law of Pennsylvania in effect at the time appellant was sentenced, neither a court nor the Parole Board had the power to order that a ‘back time’ and a ‘front time’ sentence be served concurrently.’ ” 466 Pa. at 457, 353 A.2d at 443 (emphasis added). By this statement the Court recognized that Section 9761 of the Sentencing Code had changed the law by enabling the sentencing judge to direct that his sentence—the “front time” sentence—“is to run concurrently with one which has been previously imposed” —the “back time” sentence.

Appellant also argues that his sentence is excessive, but this argument also lacks merit. When before the lower court he argued that the sentence was excessive because, he claimed, the Board of Parole would not release him at the end of the six year minimum term (which would be reached at about the time of the expiration of his earlier imposed sentence). It is always possible that the Board will not release a prisoner at the end of his minimum term, but that possibility does not render the sentence excessive; if it did, every sentence would be excessive. Appellant advances other reasons why his sentence is excessive but we see no reason to discuss them. The lower court ordered a presentence investigation. At the sentencing proceeding the report of the investigation was reviewed, and appellant and his counsel were permitted to make full argument. Appellant makes no claim that the lower court has not complied with Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), and we find no manifest abuse of discretion in the court’s selection of sentence. In fact the sentence is comparatively lenient, given that it is to be served concurrently with appellant’s earlier sentence.

-4-

Finally, appellant' argues that county officials and the lower court denied him effective assistance of counsel in preparing, filing, and arguing a pre-sentence motion to withdraw his guilty plea. We are unable to find any support for his argument, either in the record or in appellant’s brief.

Affirmed.

JOHNSON, J., files a concurring and dissenting opinion.

JOHNSON, Judge,

concurring and dissenting:

I join parts 1 and 4 of the majority opinion, finding that the trial court did not lack jurisdiction to accept appellant’s guilty plea, and finding no support for appellant’s argument concerning ineffective assistance of counsel. I also concur in the result reached by the majority in Part 2 as to the denial of the pre-sentence motion to withdraw guilty plea. As to the issue relating to the illegality of appellant's sentence, I am compelled to register my dissent.

With respect to the illegality of appellant’s sentence, the majority holds as follows: At 249-250 (footnotes 4 and 5 omitted). I cannot agree with the majority. I recognize that the clause repealing acts inconsistent with the Sentencing Code would operate as an express repeal of prior legislation that is inconsistent with its provisions. However, I find no inconsistency between Section 9761(a) and 61 P.S. § 331.21a that would warrant the application of the repeal clause. A comparison of these two provisions will illustrate my position.

According to appellant, 61 P.S. 331.21(a) forbids the lower court from directing that his sentence for burglary be served concurrently with his earlier sentence. This argument lacks merit. Section 9761 of the Sentencing Code specifically recognizes the sentencing judge's authority to impose a sentence “which is to run concurrently with a [sentence] which hás been previously imposed.” To the extent that 61 P.S. 331.21(a) is inconsistent with Section 9761, it has therefore been repealed.

I begin by considering Section 331.21a(a), which specifically addresses the order of sentences to be served by a defendant sentenced to imprisonment for a crime committed while on parole. In pertinent part, it reads as follows:

§ 331.21a Commission of crime during parole; other violations of terms of parole
(a) Convicted Violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution of the Commonwealth who, during the period of parole ..., commits any crime punishable by imprisonment, ... to which he pleads guilty ... at any time thereafter in a court of record, may, at the discretion of the board, be recommitted as a parole violator. If his recommitment is so ordered, he shall be reentered to serve the remainder of the term which said parolee would have been compelled to serve had he not been paroled,
If a new sentence is imposed upon such parolee, the service of the balance of said term originally imposed shall precede the commencement of the new term imposed in the following cases:
(1) If a person is paroled from any State penal or correctional institution under the control and supervision of the Department of Justice and the new sentence imposed upon him is to be served in any such State penal or correctional institution.
(2) If a person is paroled from a county penal or correctional institution and the new sentence imposed upon him is to be served in the same county penal or correctional institution.
In all other cases, the service of the new term for the latter crime shall precede commencement of the balance of the term originally imposed.

61 P.S. § 331.21a(a). Through this provision the General Assembly enacted into law a mandatory order for the service of the sentences of a defendant/parole violator. It has been consistently held that the General Assembly, by mandating the order of service of sentences, clearly intends that a defendant/parole violator must serve his sentences consecutively, see e.g. Commonwealth ex rel. Haun v. Cavell, 190 Pa.Super. 346, 154 A.2d 257 (1959); Commonwealth ex rel. Salerno v. Banmiller, 189 Pa.Super. 156, 149 A.2d 501 (1959); Commonwealth ex rel. Dion v. Martin, 183 Pa.Super. 310, 131 A.2d 150 (1957); Commonwealth ex rel. Backus v. Burke, 174 Pa.Super. 83, 99 A.2d 910 (1953), notwithstanding the contrary intentions of a sentencing judge. Commonwealth ex rel. Sanders v. Maroney, 202 Pa.Super. 202, 195 A.2d 882 (1963). Recent case law, some of which is cited in the majority opinion, slip op. at 9 n. 8, has followed this rule without question. E.g. Young v. Commonwealth Board of Probation and Parole, 29 Pa. Cmwlth. 268, 370 A.2d 813 (1977); Commonwealth v. Draper, 222 Pa.Super. 26, 293 A.2d 614 (1972).

In comparison, when Section 9761(a) is closely examined it is apparent that it addresses an entirely different matter than does Section 331.21a(a). In pertinent part, Section 9761(a) reads as follows:

§ 9761. Computation and order of service of sentences
(a) Order of service of sentences.—If a minimum sentence imposed by the court which is to run concurrently with one which has been previously imposed would expire later than the minimum of such a previously imposed sentence..., the defendant shall be imprisoned at least until the last imposed minimum sentence has been served.

42 Pa.C.S.A. § 9761(a) (Clause omitted). The manifest intent of this portion of the provision is to mandate only that a defendant who has received concurrent terms of imprisonment shall serve the last of the minimum sentences imposed upon him if it will expire later than prior ones.

Section 9761(a)’s language does not refer to any particular context. Thus, it cannot be said that it was specifically intended to apply to parole violation situations. It does not state directly that a sentencing judge may direct that his sentence may run concurrently with any previously imposed sentence. It merely describes the occurrence to indicate the context in which it applies. I do not regard this descriptive language as a legislative recognition of a sentencing judge’s unbridled authority to direct that his sentence may run concurrently with any previously imposed sentence irrespective of statutory law to the contrary. As I read Section 9761(a), it merely specifies one particular consequence of concurrent sentences without purporting to address whether the separate sentences of imprisonment may legally be served concurrently or consecutively. To answer that question one must look beyond Section 9761(a).

Upon comparing both provisions, I find that the legislative directive of each provision to be entirely different from one another. Section 331.21a has been interpreted to require consecutive sentences for a defendant/parole violator because it mandates the order in which he must serve both the sentence from which he has been paroled and any new sentences he may receive. In contrast, Section 9761(a)’s thrust is the service of minimum sentences when concurrent sentences have been imposed. For a true inconsistency with Section 9761(a) to exist, another act must dictate that a defendant serving legal concurrent sentences does not have to serve the entire length of the minimum sentence last imposed when it is longer than previously imposed minimum sentences. That clearly is not the mandate of Section 331.21a(a). I find no conflict between Section 9761(a) of the Sentencing Code and Section 331.21a(a).

It has long been held that a clause repealing inconsistent acts is an explicit recognition by the General Assembly that those acts not inconsistent with the act the clause protects are to remain in force. E.g. Commonwealth v. Reese, 293 Pa. 398, 143 A. 127 (1928) In re McCann ’$ Adoption, 104 Pa.Super. 196, 159 A. 334, (1931); Commonwealth ex rel. Matthews v. Lomas, 302 Pa.Super. 97, 153 A. 124 (1930). Therefore, I conclude that Section 331.21(a) is to remain intact.

In sum, I find no reason to believe that the General Assembly, in enacting Section 9761(a), intended to change the longstanding policy of this Commonwealth found in Section 331.21a. If the General Assembly had intended to make such a fundamental change in the sentencing law, it would have done so clearly and directly.

Since it is evident from the record that Section 331.21a(a) squarely applies to appellant, the new sentence imposed upon him, pertaining to the burglary we have considered in this appeal, must run consecutively with his prior sentence. Consequently, the sentencing judge erred in directing that appellant will serve his new sentence concurrently. Because the sentencing judge erred and it was his intention not to have appellant serve a consecutive sentence of the same length as the erroneous sentence, I would vacate sentence and remand for resentencing.

      . 18 C.P.S.A. Section 901.

      . 18 C.P.S.A. Section 3304.

      . 18 C.P.S.A. Section 3502.

      . § 331.21a Commission of crime during parole; other violations of terms of parole
      (a) Convicted Violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution of the Commonwealth who, during the period of parole or while delinquent on parole, commits any crime punishable by imprisonment, for which he is convicted or found guilty by a judge or jury or to which he pleads guilty or nolo contendere at any time thereafter in a court of record, may, at the discretion of the board, be recommitted as a parole violator. If his recommitment is so ordered, he shall be reentered to serve the remainder of the term which said parolee would have been compelled to serve had he not been paroled, and he shall be given no credit for the time at liberty on parole. The board may, in its discretion, reparole whenever, in its opinion, the best interests of the prisoner justify or require his release on parole and it does not appear that the interests of the Commonwealth will be injured thereby. The period of time for which the parole violator is required to serve shall be computed from and begin on the date that he is taken into custody to be returned to the institution as a parole violator.
      If a new sentence is imposed upon such parolee, the service of the balance of said term originally imposed shall precede the commencement of the new term imposed in the following cases:
      (1) If a person is paroled from any State penal or correctional institution under the control and supervision of the Department of Justice and the new sentence imposed upon him is to be served in any such State penal or correctional institution.
      (2) If a person is paroled from a county penal or correctional institution and the new sentence imposed upon him is to be served in the same county penal or correctional institution.
      In all other cases, the service of the new term for the latter crime shall precede commencement of the balance of the term originally imposed.
      61 P.S. § 331.21a(a).

      . § 9761. Computation and order of service of sentences
      (a) Order of service of sentences.—If a minimum sentence imposed by the court which is to run concurrently with one which has been previously imposed would expire later than the minimum of such a previously imposed sentence, or if the previously imposed sentence is terminated before the expiration of the minimum sentence of the last imposed sentence, the defendant shall be imprisoned at least until the last imposed minimum sentence has been served.
      42 Pa.C.S.A. § 9761 (emphasis added).

      . The note to 42 Pa.C.S.A. 9701 states that "Section 2(b) of Acts 1974, Dec. 30, P.L. 1052, No. 345 provides that: ‘All acts and parts of acts are repealed in so far as they are inconsistent herewith.’"

      . 42 Pa.C.S.A. 9701 et seq. (the "Sentencing Code”) was enacted on December 30, 1974, and became effective 90 days thereafter.

      . This change in law appears not always to have been recognized. In Commonwealth v. Boykin, 270 Pa.Super. 592, 411 A.2d 1244 (1979), the lower court’s opinion stated that 61 P.S. 331.21(a) "unequivocally forbids” concurrent sentences. Id., 270 Pa.Super. at 596, 411 A.2d at 1245 (quoting lower court opinion). Since the case went off on another point, we did not comment on this statement. The Commonwealth Court has also sometimes cited and applied 61 P.S. 331.21(a) without recognizing the impact of the Sentencing Code. See e.g., Rodrigues v. Pa. Bd. of Probation and Parole, 44 Pa.Cmwlth. 68, 403 A.2d 184 (1979) (sentencing judge has no authority to sentence concurrently); Richmond v. Commonwealth of Pennsylvania, 43 Pa. Cmwlth. 603, 402 A.2d 1134 (1979) (parolee "cannot avoid service of his remaining back time simply because the running of the minimum on the new sentence coincides with the Board’s implementation of its revocation decision”); Jones v. Pa. Bd. of Probation and Parole, 43 Pa.Cmwlth. 169, 401 A.2d 1247 (1979) ("convicted parole violator shall serve the balance of the original term and the new term consecutively’’); Gray v. Bureau of Corrections, 33 Pa.Cmwlth. 95, 380 A.2d 1330 (1977) (judge has no authority to impose other than consecutive sentence).

       The note to 42 Pa.C.S.A. 9701 states that “Section 2(b) of Acts 1974, Dec. 30, P.L. 1052, No. 345 provides that: ‘All acts and parts of acts are repealed in so far as they are inconsistent herewith.’ ’’