author: KELLY, Judge: WIEAND, Judge,

text:
    534 A.2d 101
    COMMONWEALTH of Pennsylvania v. Leon WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 12, 1987.
    Filed Nov. 18, 1987.

      Bruce L. Getsinger, Erie, for appellant.
    Michael R. Cauley, Assistant District Attorney, Erie, for Com., appellee.
    Before WIEAND, KELLY and POPOVICH, JJ.
   KELLY, Judge:

Appellant, Leon Williams, appeals from judgment of sentence imposed following his conviction of aggravated assault, criminal attempt (robbery) and unlawful restraint. We affirm the convictions, vacate judgment of sentence and remand for resentencing on the aggravated assault and criminal attempt (robbery) convictions consistent with this opinion.

On May 30, 1986, at approximately six o’clock in the morning, sixty-one year old Mrs. Helen Bohun was walking her dog. At the corner of Eighth Street and Pennsylvania Avenue in Erie, Pennsylvania, Mrs. Bohun was attacked by appellant, who grabbed his victim from behind, threw her to the ground, beat her, and attempted to rob her. The victim struggled and screamed for help. Neighbors came to her assistance; appellant fled but was apprehended a short time later. Appellant was positively identified by Mrs. Bohun who had suffered: a broken nose; a fractured skull; a fractured foot; black eyes; various cuts, bruises, and abrasions; and psychological trauma. In a written statement, appellant confessed that he had attempted to rob Mrs. Bohun in order to get some money to buy alcohol.

On July 25, 1986, following an extensive guilty plea colloquy and execution of a written waiver form which also advised appellant of his rights, appellant entered a guilty plea to charges of aggravated assault, criminal attempt (robbery), and unlawful restraint. The plea was accepted by the trial court. On September 5, 1986, appellant was sentenced to consecutive terms of imprisonment of five to ten years on the aggravated assault conviction, one and one-half to ten years on the criminal attempt (robbery) conviction and one and one-half to five years on the unlawful restraint conviction. Thus, appellant was sentenced to an aggregate term of eight to twenty-five years imprisonment. Appellant was also ordered to pay costs and directed to make restitution in the amount of one thousand one hundred sixty dollars and ten cents ($1,160.10), plus any future medical bills incurred by Mrs. Bohun as a result of treatment for her injuries. A motion to reconsider sentence was filed and denied. This timely appeal is now properly before this Court for disposition.

On appeal, appellant contends that: the consecutive sentences imposed are illegal in that the offenses merged for sentencing purposes; the sentencing court stated inadequate reasons for the sentence imposed, failed to consider mitigating factors, considered improper aggravating factors, and imposed an excessive sentence; and counsel was ineffective in failing to seek recusal of all the Erie County Judges based upon the fact that the victim was the mother of a deputy clerk in the Erie County Clerk of Courts office. We shall discuss these contentions, seriatim.

I.

Appellant first contends that the consecutive sentences imposed are illegal because the offenses merge for sentencing purposes. Appellant argues that each of the offenses arise out of a single criminal transaction; specifically, that appellant grabbed the victim, threw her to the ground, beat her, and attempted to rob her. The Commonwealth responds that the offenses do not merge because each of the offenses vindicates a substantially different interest. We find that the aggravated assault and criminal attempt convictions do not merge for sentencing purposes, but that the unlawful restraint conviction does merge with the aggravated assault and criminal attempt (robbery) convictions.

Recent decisions of this Court and our Supreme Court have fully and cogently expounded the nature and limits of the merger doctrine as it applies in Pennsylvania. See Commonwealth v. Williams, 514 Pa. 124, 522 A.2d 1095 (1987); Commonwealth v. Sayko, 511 Pa. 610, 515 A.2d 894 (1986); Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986); Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942 (1987); Commonwealth v. Williams, 353 Pa.Super. 207, 509 A.2d 409 (1986); Commonwealth v. Sparks, 351 Pa.Super. 320, 505 A.2d 1002 (1986); Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986); Commonwealth v. Adams, 350 Pa.Super. 506, 504 A.2d 1264 (1986); see also Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985) (distinguishing the merger doctrine from the double jeopardy proscription and tracing the history and development of the doctrine). It suffices for our purposes to summarize that the merger doctrine is limited to situations when each offense arises from the same criminal act or episode and each offense “necessarily involves” the other offense such that proof of the same acts is required to prove each crime; but, even when the offenses necessarily involve one another, they do not merge if the separate offenses vindicate substantially different interests.

To determine whether separate offenses arising from a single act involve substantially different interests, both the language of the particular statutes and the context in which the statutes appear in the Crimes Code must be considered. See Commonwealth v. Sparks, supra, 351 Pa.Superior Ct. at 324, 505 A.2d at 1004; see also Commonwealth v. Williams, supra, 514 Pa. at 135, 522 A.2d at 1100-01; Commonwealth v. Taylor, supra, 362 Pa.Superior Ct. at 417, 524 A.2d at 947; Commonwealth v. Williams, supra, 344 Pa.Superior Ct. at 129, 496 A.2d at 41-42. Moreover, the merger doctrine is not to be mechanically applied; rather, the question of whether the merger doctrine applies should be approached with a heavy dose of common sense. See Commonwealth v. Taylor, supra, 362 Pa.Superior Ct. at 419, 524 A.2d at 947-48. “The question of merger will often turn on an appraisal of the precise facts of the case.” Commonwealth v. Taylor, supra, 362 Pa.Superior Ct. at 418, 524 A.2d at 947, quoting Commonwealth v. Williams, supra, 344 Pa.Superior Ct. at 143, 496 A.2d at 50.

A.

Appellant argues that under Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981), the aggravated assault and criminal attempt (robbery) convictions merge for sentencing purposes. The Commonwealth responds that Commonwealth v. Ayala, supra, does not control and that the convictions vindicate substantially different interests. We agree with the Commonwealth.

Initially, we note that appellant’s reliance on Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981), is misplaced. In Ayala, our Supreme Court held:

... a conviction for aggravated assault where only one victim is involved, as here, will merge with a conviction for attempt to commit robbery for purposes of sentencing. Under the present facts, the act of criminal attempt to commit robbery necessarily involved the act of aggravated assault.

492 Pa. at 421-422, 424 A.2d at 1262. On its face, Commonwealth v. Ayala, supra, appears to control; however, the second prong of the current merger test — whether substantially different interests are protected by the statutes — was not adopted by our Supreme Court until after Commonwealth v. Ayala, supra, was decided. See Commonwealth v. Sayko, supra, 511 Pa. at 616, 515 A.2d at 897. Consequently, Commonwealth v. Ayala, supra, did not address and does not control resolution of the merger issue under the current merger test.

The issue of whether an aggravated assault conviction merges into a robbery conviction was considered more recently in Commonwealth v. Adams, supra, wherein four Judges of a divided en banc panel reasoned:

Based on these facts, it appears that only one physical act was committed: appellant shot the bartender while trying to rob the bar. In Commonwealth v. Ayala, 492 Pa. 418, 421, 424 A.2d 1260, 1262 (1981), the Supreme Court stated that ‘a conviction for aggravated assault where only one victim is involved ... will merge with a conviction for criminal attempt to commit robbery for purposes of sentencing.’ Similarly, the aggravated assault would also merge with the completed crime of robbery where there is only one victim. See, Commonwealth v. Nelson, 337 Pa.Super. 292, 486 A.2d 1340 (1984).
It is also clear from the statutory language and the necessary elements of the aggravated assault and robbery offenses that the harm against which the legislature intended to protect by enacting the aggravated assault statute is part of the same harm against which the robbery statute is intended to protect: the infliction of bodily injury. See 18 Pa.C.S. §§ 2702(a)(1) and 3701(a)(l)(i)-(v). Although the elements of the crime of robbery and aggravated assault are not identical, those for the crime of robbery suggest that the purpose of the robbery statute is not only to protect private property interests, but also to protect against the infliction of bodily injury when one’s property interest is being jeopardized. Because the only harm against which the crime of aggravated assault protects is actual or threatened physical bodily injury, and because this is one of the harms against which the robbery statute protects, the aggravated assault statute protects against the same harm as the robbery statute. Appellant’s commission of both an aggravated assault and a robbery caused only one harm to the Commonwealth in this case and therefore the two crimes merged. Thus, appellant correctly argues that the two crimes merged for purposes of sentencing.

504 A.2d at 1269-70.

We do not find the reasoning expressed in Common wealth v. Adams, supra, controlling in the instant case. In Commonwealth v. Taylor, supra, a panel of this Court reasoned:

We agree with the court in Commonwealth v. Adams, id., 350 Pa.Superior Ct. at 516, 504 A.2d at 1270, that the harm against which the Legislature intended to protect by enacting the aggravated assault statute is part of the same harm against which the robbery statute is intended to protect, i.e. protection against infliction of bodily injury. However, we also recognize that the robbery statute more specifically intends to punish those who threaten violence or resort to violent means in order to accomplish their goal of theft.
We also find that the aggravated assault statute and the robbery statute protect different interests of the Commonwealth as evidence by the fact the Legislature has classified them separately under 'Offenses Involving Danger to the Person’ (Title 18, Part II, art. B), and 'Offenses Against Property’ (id. art. C). Commonwealth v. Williams, supra, 344 Pa.Superior Ct. at 149, 496 A.2d at 51.

524 A.2d at 947-48. We agree with this distinction. The panel concluded:

The rule of merger is not to be mechanically applied. After careful scrutiny of the particular facts of the case presently before the court, we decline to subsume a severe assault into a relatively minor robbery. By making the infliction of bodily harm an element of robbery, the Legislature could not have intended to prevent sentencing courts from directly punishing those who commit vicious and prolonged assaults.

524 A.2d at 948 (footnote citing cases omitted).

Though not prolonged, the assault in the instant case was vicious; the elderly victim had her nose broken, and her skull and ankle fractured. Following the reasoning in Commonwealth v. Taylor, supra, we decline to subsume the more serious aggravated assault into the less serious criminal attempt (robbery). We note that if the lesser criminal attempt (robbery) conviction were merged into the greater aggravated assault conviction, the property interests addressed by the robbery and criminal attempt statutes would remain unvindicated. For these reasons, we find that imposition of separate, consecutive sentences upon the aggravated assault and criminal attempt (robbery) convictions were legal.

B.

Appellant argues further that the unlawful restraint conviction merged with the aggravated and criminal attempt (robbery) convictions for sentencing purposes. The Commonwealth responds that although the unlawful restraint conviction arises from the same criminal acts, the unlawful restraint conviction vindicates a substantially different interest and therefore does not merge. We agree with appellant regarding this contention.

The statute which prohibits unlawful restraint provides: § 2902. Unlawful Restraint.
A person commits a misdemeanor of the first degree if he knowingly:
1) restrains another unlawfully in circumstances exposing him to risk of serious bodily injury, or
2) holds another in a condition of involuntary servitude.

18 Pa.C.S.A. § 2902. The instant case involves an unlawful restraint in circumstances exposing the victim to risk of serious bodily injury, rather than one involving conditions of involuntary servitude. See Black’s Law Dictionary at 743 (5th Ed.1979) (defining involuntary servitude).

The Commonwealth concedes and the record confirms that appellant’s unlawful restraint of the victim in the instant case was coextensive with the restraint occasioned by the aggravated assault and the criminal attempt (robbery). This situation should be contrasted with that in Commonwealth v. Wojciechowski, 285 Pa.Super. 1, 426 A.2d 674 (1981), wherein this Court held that rape and unlawful restraint convictions did not merge when they were predicated upon separate successive criminal acts. Instantly, the aggravated assault, criminal attempt (robbery), and unlawful restraint arose from the same criminal acts and the aggravated assault and criminal attempt (robbery) "necessarily included” the unlawful restraint involved such that proof of both the aggravated assault and the criminal attempt robbery required proof of the acts upon which the unlawful restraint conviction is predicated.

We must determine, therefore, whether the unlawful restraint conviction vindicates a substantially different interest from those interests vindicated by the aggravated assault and criminal attempt (robbery) convictions. We find that, under the facts of this case, it does not. The aggravated assault conviction and (to a lesser extent) the criminal attempt (robbery) conviction fully vindicate the Commonwealth’s interest in protecting individuals from the risk of serious bodily injury and the type and degree of restraint which (in the instant case) the unlawful restraint conviction is intended to vindicate. Therefore, the unlawful restraint conviction merges into the aggravated assault and criminal attempt (robbery) convictions for sentencing purposes.

Consequently, we must vacate judgment of sentence on the unlawful restraint conviction. Because the sentence imposed on the unlawful restraint conviction may have affected the sentences imposed upon the other convictions, we vacate the entire judgment of sentence and remand for resentencing. Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986) (double jeopardy proscriptions do not prohibit resentencing in accordance with the trial court’s original sentencing scheme where an appellate court had upset the scheme by vacating the sentence imposed on various related counts).

II.

Appellant further contends that the sentencing court stated inadequate reasons for the sentence imposed, failed to consider mitigating factors, considered improper aggravating factors, and imposed an. excessive sentence. These contentions are rendered moot by the disposition of appellant’s first contention on appeal. We note that although the guidelines have since been amended, the guidelines in effect on the date of the offenses will still apply on remand. 204 Pa.Code § 303.1(d) (amendments apply to offenses committed 180 days or more after enactment).

III.

Finally, appellant contends that trial counsel was ineffective in failing to seek recusal of all the judges of the Erie County Court of Common Pleas. Appellant argues that recusal should have been sought for sentencing proceedings because the victim was the mother of a deputy clerk of the clerk of court’s office. This contention has also been rendered moot by our disposition of appellant’s first contention. If appellant desires to seek recusal on remand, he may do so. It will then be for the sentencing judge to determine whether appellant’s allegations raise a reasonable inference of potential for bias or prejudice. See Municipal Publications v. Court of Common Pleas, 507 Pa. 194, 489 A.2d 1286 (1985); see also Commonwealth v. Bonaparte, 366 Pa.Super. 182, 194, 530 A.2d 1351, 1356 (1987).

Conclusion

Based on the foregoing, the convictions are affirmed, judgment of sentence is vacated, and the case is remanded for resentencing consistent with this opinion.

WIEAND, J., files a concurring and dissenting statement.

WIEAND, Judge,

concurring and dissenting statement:

I agree with the majority that appellant’s conviction for aggravated assault did not merge for sentencing purposes in his conviction for attempted robbery. I am unable to agree, however, that his conviction for unlawful restraint merged for sentencing purposes in his convictions for aggravated assault and attempted robbery.

First, it is significant for purposes of determining the merger issue that the crime of unlawful restraint, as defined at 18 Pa.C.S. § 2902(1), contains the element of restraint. The element of restraint is not required for a conviction of aggravated assault or robbery. See: Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986) (whether statutes defining offenses contain different elements is to be considered in determining whether the offenses merge).

Secondly, the crime of unlawful restraint protects a separate and distinct interest of the Commonwealth. See: Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985) (en banc). The primary purpose of the legislature in making restraint unlawful was to create a crime between kidnapping and false imprisonment and to protect the right of citizens to move freely without restraint that would expose them to the risk of serious injury. Robbery and aggravated assault do not protect against the same harm. Robbery is designated as a crime against property committed under circumstances exposing the victim to the danger of bodily injury; and aggravated assault is intended to protect citizens against assaultive behavior likely to inflict serious bodily injury upon them.

Under these circumstances, the offense of unlawful restraint should not be held to merge for sentencing purposes in the crimes of aggravated assault and attempted robbery merely because appellant committed what in effect was a single act. See: Commonwealth v. Sayko, 511 Pa. 610, 515 A.2d 894 (1986).

Because I also find no abuse of the sentencing court’s discretion, I would affirm the judgment of sentence.

      . In Commonwealth v. Adams, supra, four judges agreed that appellant’s commission of robbery and aggravated assault caused only one injury to a single protected interest and therefore the convictions merged. Another reasoned that the convictions merged because one necessarily included the other and that no inquiry into the interests protected by the separate offenses was required. Three judges disagreed and would have found separate successive criminal acts. As the decision was by plurality, it is not binding precedent on this issue.

      . The relative seriousness of the offenses is clearly demonstrated by the fact that the aggravated assault conviction has an offense gravity score of 7, while the criminal attempt (robbery) conviction has an offense gravity score of 6. See 204 Pa.Code § 303.8.

      . If there had been a separate, successive restraint, a restraint different in kind or degree from that incident to the aggravated assault and the criminal attempt (robbery), or the "involuntary servitude” variety of unlawful restraint, a different result would have obtained. To this extent, our decision is limited to the facts of the instant case.

      . We note that we rely upon the guideline provision cited, and not the recent decision in Miller v. Florida, — U.S. —, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (application of amendments increasing guideline ranges to crimes committed prior to enactment violated proscription on ex post facto laws). The Florida guidelines were deemed to be substantive rather than procedural, and presumptive father than advisory, based upon the fact that no reasons needed to be given for a sentence inside the guideline range and that deviation from the guidelines had to be based on clear and convincing reasons proven beyond a reasonable doubt. We note that in these crucial respects the Florida and Pennsylvania Guidelines differ. See Commonwealth v. Darden, 366 Pa.Super. 597, 607-609, 531 A.2d 1144, 1149-50 (1987).

      . We decline to address the underlying merits of this issue in the first instance on appeal via an ineffective assistance claim when the issue may properly be presented in the trial court on remand. Our disposition of this issue should, however, in no way be considered as expressing any opinion on the merits of the issue.

      . The crime of unlawful restraint is defined at 18 Pa.C.S. § 2902(1) as follows:
      A person commits a misdemeanor of the first degree if he knowingly:
      (1) restrains another unlawfully in circumstances exposing him to risk of serious bodily injury; or

      . I find no merit in appellant’s contention that trial counsel was ineffective for failing to request all the judges of the County to recuse themselves for sentencing purposes because the victim was the mother of a county employee working in the Office of the Clerk of Courts.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    534 A.2d 106
    COMMONWEALTH of Pennsylvania v. George PEARSALL, Appellant.
    Superior Court of Pennsylvania.
    Argued May 13, 1987.
    Filed Nov. 18, 1987.

      C. Mitchell Clausner, Jr., Mount Pleasant, for appellant.
    Anthony G. Marsili, Assistant District Attorney, Greens-burg, for Com.
    Before WIEAND, KELLY and POPOVICH, JJ.
   KELLY, Judge:

Appellant, George Pearsall, appeals from judgment of sentence imposed following his conviction of rape, involuntary deviate sexual intercourse and corruption of minors. The charges arose from appellant’s sexual abuse of the fifteen year old daughter of the woman with whom appellant lived. The child victim functions in the retarded range according to standard intelligence tests. The sexual assaults occurred at three different residences and occurred during a fifteen month period.

Appellant contends on appeal that: 1) the evidence was not sufficient to sustain the verdict; 2) the verdict is against the weight of the evidence; and 3) the trial court erred in permitting a licensed child psychologist to testify as an expert witness regarding child sexual abuse. We find no merit in appellant’s contentions and accordingly affirm judgment of sentence.

I.

Appellant’s first and second contentions are predicated upon the same argument and therefore will be treated together. Appellant contends, alternatively, that the evidence was not sufficient to sustain the verdict, or that the verdict was contrary to the weight of the evidence. Appellant’s contentions are based on the argument that, in light of specific alleged inconsistencies in the child victim’s testimony, her testimony as to each of the elements of the offenses of which appellant was convicted was not sufficient to establish the existence of the elements beyond a reasonable doubt. Essentially, appellant contends that the child victim was not a credible witness.

In reviewing the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. Commonwealth v. Reddix, 355 Pa.Super. 514, 523-24, 513 A.2d 1041, 1045 (1986); Commonwealth v. Duffy, 355 Pa.Super. 145, 149, 512 A.2d 1253, 1260-61 (1986). Where the evidence is conflicting, it is the province of the fact finder to determine credibility; it is the prerogative of the fact finder to believe all, part, or none of the evidence presented. Commonwealth v. Hanes, 361 Pa.Super. 357, 363 n. 6, 522 A.2d 622, 624 n. 6 (1987). Whether a new trial should be granted because the verdict is against the weight of the evidence is an issue addressed to the sound discretion of the trial court; a new trial should be granted only when the verdict is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Stambaugh, 355 Pa.Super. 73, 512 A.2d 1216 (1986); Commonwealth v. Datesman, 343 Pa.Super. 176, 494 A.2d 413 (1985).

It is appellant’s conduct, and not the verdict, which shocks the Court’s sense of justice. Contrary to appellant’s assertions, and despite the child victim’s limited intellect, the record discloses no material inconsistencies or contradictions in the child victim’s testimony. Appellant’s assertions are simply not supported by the record; rather, the record clearly establishes that the child victim provided sufficient credible evidence to sustain each of the verdicts. (N.T. 3/6/86 at 39-89). Appellant’s first and second contentions are found to be without merit.

II.

Appellant’s third and final contention is that the trial court erred in permitting a licensed child psychologist to testify as an expert witness regarding child sexual abuse. Appellant argues, alternately, that: the expert testimony invaded the province of the jury; the expert was not sufficiently qualified to give expert testimony because she is neither a medical doctor nor does she have a doctorate in psychology; and, the expert exceeded the scope of her expertise during her testimony.

A.

Appellant argues:

As the entire trial transcript indicates, the primary witness for the Commonwealth had difficulty distinguishing fantasy from reality. Testimony by the expert witness ... created an inference which did not permit the trier of fact to adequately weigh the subsequent testimony of [the child victim], in that a preparatory framework had been laid for such testimony.

(Appellant’s Brief at 6). Careful review of the record, however, reveals that appellant raised no such objection to the testimony in the trial court. The issue has been waived and is not properly before us on review. Commonwealth v. Berrios, 495 Pa. 444, 453-454, 434 A.2d 1173, 1178 (1981); see also Pa.R.Crim.P. 1123.

B.

Appellant argues further that the Commonwealth’s expert was not sufficiently qualified to offer opinions on these subjects and that she exceeded the scope of her expertise. (Appellant’s Brief at 5-6). At trial, appellant objected to the expert witness’ “utilization as an expert witness based on the fact she is neither a medical doctor nor has a Doctorate in psychology, with respect to the proposed testimony that’s going to be given in terms of fantasies, ..., as well as the fact that the victim has the capacity of determining whether or not if [sic] the events actually occurred.” (N.T. 3/6/86 at 24).

To qualify as an expert witness, a witness need only have a “reasonable pretension to specialized knowledge,” on a subject for which expert testimony is admissible. Commonwealth v. Washington, 235 Pa.Super. 339, 340 A.2d 896 (1975). An expert’s pretension to specialized knowledge may be based upon practical, occupational, or other experiential training; the expert need not have gained expertise through academic training. Commonwealth v. Ellis, 354 Pa.Super. 11, 510 A.2d 1253 (1986); Commonwealth v. Daniels, 280 Pa.Super. 278, 421 A.2d 721 (1980). The determination of whether a witness is qualified to offer an expert opinion on a particular subject is a matter addressed to the sound discretion of the trial court, and its discretion will not be reversed absent a clear abuse of discretion. Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221 (1986); Commonwealth v. Ellis, supra; Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984).

Upon review of the record, we find no abuse of discretion on the part of the trial court. To the contrary, despite her lack of a medical degree or a doctorate in psychology, the record sustains the trial court’s ruling that the Commonwealth’s expert was qualified to express expert opinions regarding the child victim’s mental and verbal capacity as determined by standard and accepted tests and the effect of such capacity on a child’s ability to generate sexual fantasies.

The expert was a licensed clinical psychologist with bachelor of science and master’s degrees in psychology. She testified, during voir dire on her qualifications, regarding extensive additional post-graduate course work and seminars attended specifically related to child psychology, incest, and child sexual abuse. She testified that seventy-five percent of her clinical practice involves diagnosis and treatment of sexual abuse victims (N.T. 3/6/86 at 19-23); during direct examination, she indicated that she had seen close to eight hundred sexually abused children. (N.T. 3/6/86 at 30). Her academic and experiential training were clearly more than sufficient to cloak her with a “reasonable pretension to specialized knowledge.” Commonwealth v. Washington, supra.

Finally, careful review of the record reveals no instance where the expert’s reasonable pretension of specialized knowledge was exceeded. We note that appellant made no such objections during her testimony. (N.T. 3/6/86 at 26-37). Appellant’s third and final contention is found to be without merit.

CONCLUSION

Based upon the foregoing, judgment of sentence is affirmed.

WIEAND, J., concurs in the result.

      . In Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1985), this Court held that expert testimony regarding the general behavioral and psychological characteristics of child sexual abuse victims was admissible in a case involving child sexual abuse. In Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), our Supreme Court held that expert testimony as to the veracity of a child sexual abuse victim impermissibly encroached upon the province of the jury and that the trial court abused its discretion by admitting such evidence. Upon review of the majority and concurring opinions in Commonwealth v. Seese, supra, we find nothing to suggest that our holding in Commonwealth v. Baldwin, supra, has been disturbed. We note that there is a fundamental distinction between expert testimony which supports the credibility of a witness inferentially by establishing that a witness’ testimony is consistent with the acts and responses evidenced in known child abuse cases, and expert testimony which presumes to pass directly upon the veracity of a particular witness. We read Commonwealth v. Seese, supra, to permit the former and prohibit the latter. Cf. Kozak v. Struth, 515 Pa. 554, 531 A.2d 420 (1987) (expert opinion based upon the totality of conflicting evidence usurped jury’s function).
      Nonetheless, because appellant has failed to preserve this issue for review, we have no occasion to decide whether the testimony in the instant case was permissible expert testimony, tending only to educate the jury and corroborate the witness' testimony inferentially, or impermissible expert testimony usurping the jury’s function by presuming to pass upon the veracity of witnesses. Such determinations will, of course, have to be made on a case by case basis.

      . The expert testified that the child victim “is a very concrete thinking girl, and her ability to fantasize at an abstract level is quite limited.” (N.T. 3/6/86 at 29). On cross-examination, the expert explained, “her intellectual level is so limited, she would have a very difficult time describing the events that she described without having had the experience.” (N.T. 3/6/86 at 35).

      . Appellant has not challenged the qualifications of the expert to provide expert testimony regarding: child sexual abuse in general; normal patterns in the reporting of child sexual abuse; whether the child victim’s report was consistent with reports from known child sexual abuse victims; and (on cross-examination) which of several reasons for failing to promptly report sexual abuse probably applied in the instant case. (N.T. 3/6/86 at 26-37). Appellant’s failure to raise a challenge to the experts’ qualifications to offer expert testimony on such subjects constitutes a waiver of any claim that the trial court abused its sound discretion in this regard. Pa.R.Crim.P. 1123.


author: JOHNSON, Judge:

text:
    534 A.2d 110
    Douglas P. PAINTER and Joann Painter, His Wife, Appellants v. PENNSYLVANIA ELECTRIC COMPANY.
    Superior Court of Pennsylvania.
    Argued Aug. 25, 1987.
    Filed Nov. 16, 1987.

      Eugene J. Brew, Jr., Erie, for appellants.
    Timothy M. Sennett, Erie, for appellee.
    Before ROWLEY, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

In this appeal Appellants seek a new trial on the grounds that the trial court erred in refusing to charge the jury on absolute liability and in allowing certain testimony by Appellee’s expert witness. We find no merit in Appellants’ position and affirm.

On August 31, 1982, Appellee, Pennsylvania Electric Company, and its subcontractors were engaged in excavation in front of Appellants’ building in downtown Erie. Appellee was utilizing a Horam Model 7000B tractor-mounted pneumatic pavement breaker. Shortly after the excavation had commenced, Appellants complained that Appellee’s excavation activities were disturbing Appellants’ building. Appellee’s crew chief entered the building and felt the vibrations in the floor caused by the operation of the pavement breaker. Thereafter the excavation was discontinued until approximately two days later when the crew resumed excavating with a smaller pavement breaker. Appellants made no further complaints.

Subsequently Appellants instituted this action in trespass which resulted in a jury verdict in favor of Appellee. Appellants then filed a Motion for Post-Trial Relief which was denied by the Court of Common Pleas of Erie County. Hence this appeal.

Appellants’ first contention is that the lower court should have instructed the jury on absolute liability for ultra-hazardous activity.

In order to preserve for appellate review any claim of error in the trial judge’s instructions to the jury, a party must specifically object to the charge when given at trial. Failure to do so results in a waiver of any claim of error in the charge. Pa.R.A.P. 302(b); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 260, 322 A.2d 114, 117 (1974); Wilkerson v. Allied Van Lines, 360 Pa.Super. 523, 537, 521 A.2d 25, 32 (1987). The complaining party is further required to set forth in both the statement of the case and in the argument of the appellate brief reference to the place in the record where the issue presented for decision on appeal has been raised or preserved below. Pa.R.A.P. 2117(c)(4), Pa.R.A.P. 2119(e); In re Estate of Smith, 492 Pa. 178, 181, 423 A.2d 331, 333 (1980).

In the instant case Appellants in their brief claim to have submitted a point for charge on absolute liability which was rejected by the trial judge. Appellants also maintain that they took exceptions to the charge. As Appellants have furnished this Court with an inadequate record, we are unable to ascertain that the challenge to the charge was properly preserved. The transcripts which Appellants have supplied to this Court contain neither the trial judge’s charge to the jury nor any objections or exceptions by Appellants thereto. Moreover, while the record includes written points for charge filed by Appellants several days after the jury rendered the verdict, the Appellants have failed to satisfactorily demonstrate that the points were submitted to the trial court in a timely manner at trial. Consequently Appellants have failed to show that they have properly preserved any claim of error in the charge to the jury. Any challenge based on this issue has been waived.

Assuming arguendo that Appellants had properly preserved their claim of error in the instructions to the jury, their argument is nevertheless unpersuasive.

In the Restatement (Second) of Torts §§ 519-524 A (1977) the phrase abnormally dangerous activity is substituted for the term ultrahazardous activity found in the Restatement of Torts §§ 519-524 (1938). The Restatement (Second) of Torts § 519, approved by this Court in Albig v. Municipal Authority of Westmoreland County, 348 Pa.Super. 505, 502 A.2d 658 (1985), states:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

Restatement (Second) of Torts § 519 (1977).

In ascertaining whether an activity shall be deemed abnormally dangerous, Section 520 lists the following factors to be considered:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

Restatement (Second) of Torts § 520 (1977).

Our analysis of the facts of the case at bar leads us to conclude that Appellants have failed to substantiate their claim that the utilization of the pavement breaker is an abnormally dangerous activity. Trial testimony indicated that the use of the pavement breaker does not cause any unusually violent or hazardous vibrations and is a common means of excavation to reach underground pipes. Uncontradicted testimony further revealed that Appellee was not aware of any previous complaints of similar damage.

As the most learned trial judge correctly noted, pavement breaking is a common activity employed to excavate streets to reach underground pipes and lines. Appellee’s former division superintendent of operations testified that the pavement breaker here under review was an appropriate machine for the job. He approved the use of the Model 7000 B after taking into consideration the nature of the work to be performed, the type of soil involved, and the surrounding locale at the excavation site. He further testified, without contradiction, that he had never been made aware of any prior allegations by homeowners in the downtown Erie area of structural damage to their homes caused by vibration from the use of backhoe mounted pavement breakers.

Appellants’ expert testified that, in his opinion, the damage to Appellants’ building was caused by the use of the Model 7000 B Horam machine. He expressed no opinion, however, concerning the appropriateness of the use of the Model 7000 B. In fact, he stated that it was a common piece of equipment in the heavy construction industry.

Were we to consider the factors set forth in Section 520 of the Restatement (Second) as a guide to determine whether the pavement breaking activity here involved should be deemed abnormally dangerous, we would be unable to conclude that any of the factors set forth above are satisfied in this case. From the record, we would find neither a high degree of risk of some harm to the surrounding buildings, nor the likelihood that the harm that might result would be great. The use of pavement breakers is a matter of common usage and entirely appropriate in the place where it was carried on.

Finally, we would conclude, as did the Honorable Richard L. Nygaard, that the excavation of city streets for the purpose of replacing or repairing steam lines underneath has great utilitarian value to the community, far outweighing any supposed danger attributable to the use of a backhoe mounted pavement breaker.

Finding none of the factors to weigh on the side of abnormally dangerous activity, the trial judge committed no error in refusing to instruct the jury on absolute liability. Albig v. Municipal Authority of Westmoreland County, supra; Restatement (Second) of Torts §§ 519, 520.

Appellants next contend that Appellee’s expert witness should not have been allowed to testify and give opinions beyond the scope of his submitted written report. Pennsylvania Rule of Civil Procedure 4003.5, governing the discovery of expert witnesses, “favors liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise.” Augustine v. Delgado, 332 Pa.Super. 194, 199, 481 A.2d 319, 321 (1984). Specifically, Pa.R.C.P. 4003.5(c) provides as follows:

To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. However, he shall not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.

Pa.R.C.P. 4003.5(c).

Furthermore, under Pennsylvania case law, it is well settled that the admission of expert testimony is a matter within the broad discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. Klyman v. Southeastern Pa. Transp. Auth., 331 Pa.Super. 172, 177, 480 A.2d 299, 302 (1984).

Appellants herein contest the testimony of Dennis Roth, Appellee’s expert witness. Appellants contend that:

[o]n direct examination, Roth was asked if any damage to the ceiling in the first floor secretary’s office could be attributable to the activities of Penelec on August 31, 1982, and he responded, “No.”

Brief for appellant at 15.

Appellants also assail the following testimony by Roth:

Q. Mr. Roth, in your opinion, did any work performed on Sassafras Street on August 31 of 1982 structurally damage the basement walls of the Painter building?
A. No, they did not.
Q. Mr. Roth, in your opinion, did any activity that took place on August 31 of 1982 on Sassafras Street structurally damage any other portion of the Painter building?
A. No, it did not.

N.T., 6/18/86 at 57.

Based on the above excerpts Appellants conclude that Roth gave opinions that went well beyond the scope of his submitted written report. Our review of Roth’s testimony and his pre-trial report reveals that the testimony presented at trial and objected to by Appellants was well within the scope of the contents of the pre-trial report.

In the pre-trial report, Roth concludes as follows: However, the construction work performed by Pennelec (sic) in the summer of 1982 is not the reason for this less than adequate rating. Even buildings that have been meticulously maintained deteriorate. This building is very old and has been only marginally maintained. That is the reason for this rating.
There is no doubt that repairs to the basement walls of this building are necessary. However, there is no less doubt that equal repairs were required to the basement walls of the building in August 1982.

(emphasis added).

This report, provided to Appellants well in advance of the trial date, clearly resulted in no prejudice or surprise to Appellants. On the contrary, the report undoubtedly put Appellants on notice that Appellee denied responsibility or liability for the damage which according to Appellants was caused by Appellee's excavation activities. The report also evidenced Appellee’s position that such damage could have stemmed from any number of other sources. This is especially evident by the statements emphasized in the above excerpts from the report.

In our view, the pre-trial report fairly encompassed the testimony of Appellee’s witness. Consequently, there has been neither a violation of Pa.R.Civ.P. 4003.5 nor an abuse of discretion by the court below. Therefore, we find no basis for granting Appellant relief on this issue.

Judgment affirmed.


author: CIRILLO, President Judge:

text:
    534 A.2d 114
    COMMONWEALTH of Pennsylvania v. David Charles CUMMINGS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 27, 1987.
    Filed Dec. 2, 1987.

      Scott W. Naus, Public Defender, Bloomsburg, for appellant.
    Elwood R. Harding, Jr., District Attorney, Bloomsburg, for Com., appellee.
    Before CIRILLO, President Judge, and HOFFMAN and HESTER, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Columbia County against appellant, David Cummings, after he pled guilty to burglary. We quash.

Appellant was arrested and charged with receiving stolen property, criminal trespass, burglary, and theft. He pled guilty to the burglary charge and the remaining charges were subsequently withdrawn. The court then sentenced Cummings to a period of incarceration of not less than four years nor more than ten years. Cummings appealed to this court, challenging the sentence as an abuse of discretion.

Appellant does not challenge the legality of the sentence. Thus, an appeal in this case is not taken as of right. See 42 Pa.C.S. § 9781(a). Rather, appellant challenges the discretionary aspects of the sentence.

When appealing the discretionary aspects of a sentence, the appellant must invoke the appellate court’s jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Tuladziecki, 513 Pa. 508, 511-513, 522 A.2d 17, 19 (1987); 42 Pa.C.S. § 9781(b). Only after appellant has fulfilled these requirements will this court review the merits of the case. Id.; Pa.R.A.P. 2119(f).

Appellant has minimally complied with the first requirement set out above. His brief does in fact contain a statement of the reasons relied upon for allowance of appeal. See Pa.R.A.P. 2119(f). However, “[i]t is only where a party can articulate reasons why a particular sentence raises doubts that [the sentencing] scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.” Tuladziecki, 513 Pa. at 515, 522 A.2d at 20.

Appellant's statement of the reasons relied upon for allowance of appeal proclaims that “failure of the [trial] court to consider on the record mitigating circumstances in the sentence raises [a] substantial question that the sentence imposed is inappropriate.” This assertion fails to provide us with any articulable reasons why the sentence imposed upon the appellant compromises the sentencing scheme as a whole. The proffered statement fails to mention the length of the sentence imposed on him or the crime for which he was sentenced. The terms of the sentence the appellant is asking us to review and the crime or crimes which gave rise to that sentence are sine qua nons of a petition for allowance of appeal of the discretionary aspects of a sentence. This court simply cannot gauge whether there is a “substantial question” that “a particular sentence raises doubts that [the scheme of the Sentencing Code] as a whole has been compromised” without knowing what the length of the sentence is or what the crimes involved are. Appellant’s failure to supply these elements in his statement of the reasons relied upon for allowance of appeal prevents us from finding a substantial question that the sentence is inappropriate, and thus we cannot accept the appeal.

Appeal quashed.

HOFFMAN, J., concurs in result.


author: ROWLEY, Judge:

text:
    534 A.2d 115
    Frank McGUIRE v. SCHNEIDER, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued June 17, 1987.
    Filed Nov. 23, 1987.
    Petition for Allowance of Appeal Granted April 11, 1988.

      Samuel Y. Stroh, Pittsburgh, for appellant.
    Geoffrey P. Wozman, Pittsburgh, for appellee.
    Before ROWLEY, JOHNSON and MONTGOMERY, JJ.
   ROWLEY, Judge:

Appellant corporation, appellee’s former employer, appeals from the trial court’s order denying appellant’s motion for post-trial relief. A judgment in the sum of $338,112.00 was entered in favor of appellee after a jury found appellant liable for breach of its employment contract with appellee. The parties’ dispute centers on which of two documents should be held to have governed the employment relationship: a letter of June 20, 1979, written to appellee by Frank Schneider, appellant’s chairman of the board, specifying appellee’s compensation and term of employment and stating that “an employment agreement will be developed”; or a document signed by appellee on December 19, 1979, labeled “employment agreement” and containing an integration clause as well as provisions less favorable to appellee than those of the June letter.

On appeal appellant raises the following issues: 1) whether the trial court erred in denying appellant’s motion in limine and objection to appellee’s offer of proof, the effect of that denial being to allow the introduction of evidence concerning the June 20, 1979 letter and of appellee’s job performance; 2) whether a directed verdict should have been granted in favor of appellant; 3) whether the trial court erred in allowing portions of the deposition of Peter Hannaway, president of Schneider Power Corporation, a subsidiary of appellant, to be read into evidence; 4) whether the trial court erred in refusing to submit to the jury fourteen points for charge requested by appellant; 5) whether the trial court erred in its charge to the jury; and 6) whether the trial court erred in refusing to grant the remittitur requested by appellant. Because the trial court’s instructions to the jury were based upon a fundamental error of law, we reverse and remand for a new trial.

The trial court gave the jury the following instructions regarding the two documents:

Now, I have ruled and instruct you as a matter of law that this second writing of December 19, 1979 is of no effect, no legal effect, in this case because it is without consideration. The letter of June 20, 1979 contained all the essential elements for a binding contract of employment when Mr. McGuire reported for work. The employment agreement which was signed by him quite a few months later does nothing but detract from rights which he already had, and under which he was working. So, therefore, no consideration flowed to him from the second document. He had all of that and more, it merely lessened his rights. Consequently, there is a failure of consideration and you’re not to consider the second document. The case gravitates and revolves around the contract which is described in the letter of June 20, 1979, as having been entered into orally between Mr. Schneider and the plaintiff, and details their agreement. It reaffirms it, and it, of course, became binding when the plaintiff reported for work.

The December contract, which the trial court held to be without legal effect, expresses the parties’ agreement that that contract “supersedes any existing employment agreement ... and contains the entire understanding and agreement between the parties and may not be modified, supplemented or amended ... except by a subsequent written agreement____” Where the parties to an agreement adopt a writing as the final and complete expression of their agreement, as here, evidence of negotiations leading to the formation of the agreement is inadmissible to show an intent at variance with the language of the written agreement. In re Carter’s Claim (Appeal of Edwin J. Schoettle Co.), 390 Pa. 365, 372, 134 A.2d 908, 912 (1957). Alleged prior or contemporaneous oral representations or agreements concerning subjects that are specifically dealt with in the written contract are merged in or superseded by that contract. Bardwell v. Willis Company, 375 Pa. 503, 507, 100 A.2d 102, 104 (1953). The effect of an integration clause is to make the parol evidence rule particularly applicable. National Cash Register Co. v. Modern Transfer Co., Inc., 224 Pa.Super. 138, 144, 302 A.2d 486, 489 (1973). Thus the written contract, if unambiguous, must be held to express all of the negotiations, conversations, and agreements made prior to its execution, and neither oral testimony, Scott v. Bryn Mawr Arms, 454 Pa. 304, 307, 312 A.2d 592, 594 (1973); Waldman v. Shoemaker, 367 Pa. 587, 591, 80 A.2d 776, 778 (1951); Hamilton Bank v. Rulnick, 327 Pa.Super. 133, 136-37, 475 A.2d 134, 136 (1984); Beckman v. Vassall-Dillworth Lincoln-Mercury, Inc., 321 Pa.Super. 428, 438, 468 A.2d 784, 789 (1983); National Cash Register, 224 Pa.Super. at 143, 302 A.2d at 488, nor prior written agreements, National Cash Register, 224 Pa.Super. at 144, 302 A.2d at 489; Restatement (Second) of Contracts § 213 comment a (1981), or other writings, 1A Corbin, Contracts § 251 (1963), are admissible to explain or vary the terms of the contract.

Whether a writing is an integrated agreement, and if so, whether the agreement is completely or partially integrated, are questions to be decided by the court prior to application of the parol evidence rule. Restatement (Second) of Contracts §§ 209(2), 210(3). We conclude that the writing signed by appellee on December 19, 1979 is a completely integrated agreement. It states that it contains the parties’ “entire understanding and agreement”; its terms are not ambiguous; it covers every item mentioned in the June letter (compensation, bonus, fringe benefit program, and term of employment); and it conveys no suggestion that anything beyond the four comers of the writing is necessary in order to ascertain the intent of the parties. Cf. Neville v. Scott, 182 Pa.Super. 448, 452, 127 A.2d 755, 757 (1957) (where contract to convey land refers to erection of a dwelling, reference must be had to prior contract in order to determine parties’ intent as to kind and quality of dwelling); Moyer v. Heilveil, 159 Pa.Super. 610, 613, 49 A.2d 514, 515 (1946) (where written agreement was silent on term of employment, evidence of prior, separate oral agreement, not inconsistent with the writing, was admissible). Because the December writing is a completely integrated contract, evidence of the June agreement was improperly admitted.

Appellee attempts to justify the introduction of parol evidence of the “true” (i.e., June) contract on two grounds. First, he contends that because the December agreement gave him nothing that he did not already have under the June agreement, the second agreement is a nullity owing to a failure of consideration. The trial court, agreeing with appellee, referred to a “failure” of consideration in the jury instruction quoted above but noted a “lack” of consideration in its opinion denying appellant’s post-trial motions. A lack of consideration, if such existed, would not render the December agreement a nullity, for the parties expressed therein their intent to be legally bound. Under the Uniform Written Obligations Act, 33 P.S. § 6, that statement of intent removes lack of consideration as a ground for avoiding the contract. Kay v. Kay, 460 Pa. 680, 684, 334 A.2d 585, 587 (1975); Thomas v. First National Bank of Scranton, 376 Pa. 181, 185, 101 A.2d 910, 912 (1954). Failure of consideration, on the other hand, goes to the heart of any claim based on an agreement and is always available as a defense to that claim. M.N.C. Corporation v. Mount Lebanon Medical Center, 510 Pa. 490, 495, 509 A.2d 1256, 1259 (1986).

The issue to be decided, then, is whether appellee has alleged a failure of consideration. Failure of consideration occurs when the consideration bargained for does not pass, in whole or in part, to the promisor. Necho Coal Company v. Denise Coal Company, 387 Pa. 567, 569, 128 A.2d 771, 772 (1957). Consideration fails, for example, when one party does not comply with a promise to leave permanent improvements intact, M.N.C. Corporation v. Mount Lebanon Medical Center, supra, when one party engages in business in violation of a promise not to do so, Shields v. Hoffman, 416 Pa. 48, 52, 204 A.2d 436, 438 (1964), and when a husband whose wife has died is unable to fulfill her obligation to file a joint tax return, Wolfsohn v. Solms, 396 Pa. 206, 208-9, 152 A.2d 237, 238 (1959).

In the case at bar appellee does not contend that appellant corporation refused to pay him the salary set by the December contract, refused to include him in the pension program as promised therein, or otherwise refused to convey what was promised him in that contract. He argues instead that what had been promised him in the second agreement had already been given him by the first. That argument is similar, at first glance, to the situation in In re Levine’s Estate, 383 Pa. 354, 358-59, 118 A.2d 741, 742 (1955). In that case our Supreme Court held that where a husband promised to leave his wife one-half of his checking account and not to claim against her estate in return for her promise to relinquish any claim to his estate, there was a failure of consideration because, on the facts of the case, what he promised her was already hers and therefore not his to give. The crucial difference between that case and the case before us is that the former did not involve an integration clause. In fact, the Supreme Court in Levine, id., quoted Killeen’s Estate, 310 Pa. 182, 187, 165 A. 34, 35 (1932), to the effect that “failure of consideration does not contradict the terms of the instrument, but shows that the consideration contemplated was never received.” Appellee herein does not argue that the consideration contemplated by the December contract was never received, but instead attempts to contradict the term of that agreement which states that the contract expresses the entire agreement of the parties. We conclude that appellee’s claim of a failure of consideration is inapplicable to the present case.

Appellee’s second argument for allowing the introduction of parol evidence is that he signed the December agreement only after Frank Schneider, appellant’s chairman of the board, misrepresented to him the significance of that agreement. Appellee contends that after taking the December agreement to an outside attorney and learning that it was “one-sided,” he questioned counsel for appellant and was told that the agreement was a standard contract that could not be changed (Reproduced Record at 199a, 305a). Appellee then consulted Schneider, who allegedly reassured him by saying “I’m not going to fire you. I hired you to work with me” (Reproduced Record at 199a) and “this is our contract, I don’t want to fire you, I want to work with you” (Reproduced Record at 305a). Although he admits having been told by the outside attorney that he would be bound by the December contract if he signed it (Reproduced Record at 309a), appellee nevertheless contends that Schneider misled him into believing that the June agreement would govern the employment relationship. Appellee argues that because he “alleged the lesser offenses of bad faith and failure of consideration but presented sufficient evidence to meet the stricter requirements of fraud” (Brief for Appellant at 20), the trial court properly admitted parol evidence of the June agreement.

Appellee’s argument is without merit. In Bardwell v. Willis Company, 375 Pa. 503, 507, 100 A.2d 102, 104 (1953), our Supreme Court held that only if a party to a contract averred that a promise had been omitted from the final, written contract because of fraud, accident, or mistake could parol evidence properly be admitted. After several subsequent decisions which suggested a less restrictive approach, e.g., Berger v. Pittsburgh Auto Equipment Co., 387 Pa. 61, 64-65, 127 A.2d 334, 335 (1956); Nadolny v. Scoratow, 412 Pa. 488, 491, 195 A.2d 87, 89 (1963), the Supreme Court reasserted the Bardwell holding in Nicolella v. Palmer, 432 Pa. 502, 507-8, 248 A.2d 20, 22-23 (1968). This court has subsequently held that where the assertions put forth by one party are specifically contradicted by the written agreement, Bardwell applies and parol evidence is admissible only to prove fraud in the execution, not the inducement, of the contract. Abel v. Miller, 293 Pa.Super. 6, 10, 437 A.2d 963, 965 (1982); LeDonne v. Kessler, 256 Pa.Super. 280, 294 & n. 10, 389 A.2d 1123, 1130 & n. 10 (1978). A party cannot justifiably rely upon prior oral representations, yet sign a contract denying the existence of those representations. LeDonne v. Kessler, 256 Pa.Super. at 294 n. 10, 389 A.2d at 1130 n. 10.

Appellee in the present case has done just that. After signing the December contract, which expressed the parties’ agreement that their entire understanding was contained therein, he now alleges that appellant assured him that the December contract did not mean what it said. This is precisely the type of claim that the parol evidence rule was designed to bar. “If plaintiffs relied on any understanding, promises, representations or agreements made prior to the execution of the written contract ..., they should have protected themselves by incorporating in the written agreement the promises or representations upon which they now rely, and they should have omitted the provisions which they now desire to repudiate and nullify.” Bardwell v. Willis Company, 375 Pa. at 508-9, 100 A.2d at 105. Appellee, having failed to so protect himself, is bound by the terms of the contract that he signed on December 19, 1979. That contract is the sole enforceable agreement between the parties. The trial court’s failure to instruct the jury to that effect requires that we reverse the order of the trial court denying appellant’s post-trial motions and remand for a new trial.

We are aware that appellant in its second issue has assigned as error the trial court’s refusal to grant its request for a directed verdict. Appellant asks us, in effect, to grant judgment notwithstanding the verdict, arguing that the evidence at trial has shown that appellee’s discharge was justified under the December agreement. We must decline appellant’s invitation. Where, as here, the jury has been instructed to apply a standard of law which appears patently inapplicable to the facts in the record, the judgment must be reversed and a new trial granted. Lambert v. Pittsburgh Bridge and Iron Works, 227 Pa.Super. 50, 56, 323 A.2d 107, 110 (1974), aff'd, 463 Pa. 237, 344 A.2d 810 (1975). However, on the record of this case we cannot say that at a new trial appellee will be unable to prove that his discharge was improper under the December agreement. We express no opinion as to whether appellee will be able to prevail, but he must be given the opportunity to do so.

Our decision in this regard renders consideration of appellant’s remaining issues unnecessary.

Order reversed and case remanded. Jurisdiction relinquished.

      . Appellee does not contend that the terms of the December agreement are ambiguous.

      . As noted above, the claim of failure of consideration is inapplicable in this case.


author: TAMILIA, Judge:

text:
    534 A.2d 120
    COMMONWEALTH of Pennsylvania v. Keith SMITH, a/k/a Keith Mungin, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 19, 1987.
    Filed Dec. 3, 1987.

      Irving W. Backman, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before TAMILIA, POPOVICH and CERCONE, JJ.
   TAMILIA, Judge:

This appeal stems from the revocation of appellant’s parole and subsequent imposition of judgment of sentence of all remaining time on a sentence of time served to twenty-three months.

A review of the record reveals the following case history:

On June 10,1983, appellant was sentenced to time served from January 28, 1983 to twenty-three months for a conviction of attempted theft by unlawful taking. His parole was due to expire on December 28, 1984. According to the probation/parole officer, the probation department placed “wanted cards” on Mr. Smith on May 11, 1984 as he had failed to report to the probation department in almost three months and he did not reside at his given address and also, according to the police, there were four outstanding warrants.

Appellant was arrested on November 25, 1984 for an offense which occurred on February 17,1984. According to the police reports, “This Defendant [Appellant] in concert with other males did at point of shotgun and handgun take all employees at Center Hotel hostage and then robbed them of their personal belongings and the hotel funds. The three victims were punched, pushed, threatened and tied and/or locked up.” (Violation transcript at p. 4.) On November 26, 1986, a jury found him guilty of robbery (3 counts), criminal conspiracy, possession of an instrument of crime-generally, possession of an instrument of crime-weapon, and prohibited offensive weapons. Sentencing had not taken place at the time the revocation hearing was held. Following his parole revocation, appellant was sentenced to serve the balance of the back time on the original offense.

This timely appeal followed.

Appellant presents one issue for our review:

Has a violation of parole occurred when a parolee has been convicted of an offense and the parolee has filed a motion for new trial, but that motion has not yet been acted upon by the court?

Appellant’s brief at “6”. The sole case cited by appellant in support of his allegation, Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), is not applicable to the facts here. In Linkletter, appellant was attempting to apply the exclusionary rule of Mapp v. Ohio to his case which had been finally decided prior to Mapp. “Final” as interpreted by the Supreme Court in Linkletter assumed the availability of appeal was exhausted and the time for certiorari had elapsed.

This interpretation of “finality” has no application to appellant’s case. Linkletter concerns “finality” only in the situation of determining whether a case decision will be applied retroactively or prospectively; Linkletter has no application to cases of parole or probation violation.

This case scenario is controlled by the rules of county probation and parole which include, in general terms, requirements that probationers and parolees abide by the terms of all federal, state and county criminal statutes and city ordinances. Additionally, parolees are to refrain from possessing firearms or other deadly weapons. Appellant has patently failed to comply with these terms of his parole; moreover, he had technical violations of failing to report and not residing at his given address. These technical violations alone could have been cause for a parole revocation. Commonwealth v. Rudy, 304 Pa.Super. 64, 450 A.2d 102 (1982); Commonwealth v. Mallon, 267 Pa.Super. 163, 406 A.2d 569 (1979).

In Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973), the Pennsylvania Supreme Court found probation and parole revocation hearings could be held prior to the trial for the subsequent offense. As revocation may occur prior to trial, we cannot possibly find merit to appellant’s argument that revocation proceedings should not occur until the appeal process is complete.

Also contrary to appellant’s position, this Court, in Commonwealth v. Fleeger, 292 Pa.Super. 310, 437 A.2d 60, 61 (1980), found “it is quite possible for a person to be acquitted of charges brought against him and yet have his probation revoked based upon the existence of those charges being brought against him. However ... factual evidence, in addition to the fact of the arrest, must be presented.” (Citations omitted, emphasis added.) We agree with the Fleeger Court and find the same principles hold true for cases of parole violation and revocation. See Commonwealth v. Davis, 234 Pa.Super. 31, 336 A.2d 616 (1975).

In order to support a revocation of parole, the Commonwealth need only show, by a preponderance of the evidence, that a parolee violated his parole. Commonwealth v. Gochenauer, 331 Pa.Super. 187, 480 A.2d 307 (1984). Here, under the standard of beyond a reasonable doubt, appellant was convicted by a jury of three counts of robbery and related offenses.

The primary purpose of a parole revocation hearing is not to determine whether the parolee has, in fact, been convicted of a crime, rather its purpose is to determine whether, despite the new conviction, parole remains a viable means of rehabilitation and deterring future antisocial conduct. See Kates, supra, and Commonwealth v. Parker, 244 Pa.Super. 113, 366 A.2d 941 (1976). The totality of circumstances surrounding appellant’s revocation indicate parole has not been a successful means of rehabilitating appellant. We find appellant’s parole to have been properly revoked.

Judgment of sentence affirmed.

      . The thirtieth day following sentencing fell on Saturday; this appeal, filed on day thirty-two, is, therefore, timely.

      . 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

      . Also see, Pa.R.Crim.P. 1409, Violation of Probation or Parole: Hearing and Disposition which states in pertinent part:
      Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law unless there has been a hearing held as speedily as possible at which the defendant is present and represented by counsel and there has been a finding of record that the defendant violated a condition of probation or parole.
      Additionally, the comment to the rule states:

        Comment: The jury may not revoke probation or parole on arrest alone, but only upon finding of a violation thereof after a hearing, as provided in this Rule. However, the judge need not wait for disposition of new criminal charges to hold such hearing. See Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973).


author: MONTEMURO, Judge:

text:
    534 A.2d 122
    Robert J. McLAUGHLIN, Appellant, v. GWYNEDD PIKE ASSOCIATES and Telford Industrial Development Authority, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1987.
    Filed Dec. 4, 1987.

      Jack J. Hetherington, New Britain, for appellant.
    Paul J. Mayewski, Spring House, for appellees.
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   MONTEMURO, Judge:

This is an appeal challenging an order of the Montgomery County Court of Common Pleas sustaining preliminary objections in the nature of a motion to strike for failure to state a cause of action and thereby dismissing appellant’s mechanics’ lien claim and complaint in action upon that lien. We affirm.

This action arises out of a construction project. Appellee Telford Industrial Development Authority is the legal owner of the shopping center involved in the construction project. Appellee Gwynedd Pike Associates (“Gwynedd”), by virtue of an installment sales agreement, is the equitable owner of the shopping center. The P.C.M. Group, Inc. (“P.C.M.”) served as general contractor for the project and contracted directly with Gwynedd. Appellant Robert J. McLaughlin subcontracted with P.C.M. for the drywall construction. In the contract between appellant and P.C.M., appellant expressly waived his right to file any liens against the shopping center premises.

In spite of the waiver of liens provision in the contract, on February 6,1985, appellant gave written notice to Gwynedd of his intention to file a mechanics’ lien claim in the amount of $23,313.00 representing the sum allegedly owed to him for work completed on the construction project. See 49 P.S. § 1501(b). Appellant then filed a Mechanics’ Lien Claim upon the owners of the property followed by a Complaint in Action Upon Mechanics’ Lien. In the claim, appellant asserted that he had performed his obligations under the contract with P.C.M. but that payment was still due. The trial court dismissed his complaint, finding that “while a breach by the appellees certainly may give rise to a breach of contract action ..., such a breach of contract does not affect the validity of the subcontractor’s waiver of the right to file a mechanics’ lien.” Trial Court Opinion at 6-7 (footnote omitted).

Appellant argued in the trial court, as he does on appeal, that the contractual waiver of his right to file a mechanics’ lien was not binding on him because appellees allegedly failed to adhere to their contractual obligations under the agreement between appellant and appellees, thus releasing him from any obligations that he had. The trial court disagreed with that contention, as do we.

The courts of this Commonwealth have held that where a contractor executes a valid waiver of its right to file a mechanics’ lien, the validity of the waiver is not affected by the owner’s breach of contract, as long as the contractor’s promise is separate from and independent of the owner’s promise.

In Long v. Caffrey, 93 Pa. 526 (1880), our Supreme Court enforced a waiver of liens provision contained in a written agreement between plaitniff and defendant despite defendant’s breach of contract. According to the terms of the agreement, plaintiff promised to build a house for defendant, and defendant promised to make installment payments to plaintiff. The agreement also required that defendant insure the house upon completion and assign the policy to plaintiff as collateral security for the final installment payment. Notwithstanding the waiver of liens provision, plaintiff filed a mechanics’ lien when defendant failed both to pay him completely and to insure the house. Plaintiff argued that defendant’s promise both to pay and to insure the building and plaintiffs promise not to file any liens were dependent covenants and that upon defendant’s default the plaintiff could file a lien despite the waiver. The supreme court rejected the argument and enforced the waiver of liens provision, finding that “[t]he different parts of the contract are separate and independent covenants,” id. at 528.

In S.G. Purvis & Co. v. Assigned Estate of Agnes T. Brumbaugh, 8 Pa.Super. 292 (1898), this Court found Long, supra, dispositive when it enforced a waiver of liens provision against appellant-subcontractor even though the building owner had failed to make complete payment to appellant. The court rejected appellant’s argument that the waiver of liens provision was dependent upon the owner’s performance of his promise to pay. See also Formigli Corporation v. Fox, 348 F.Supp. 629, 644 (E.D.Pa.1972) (court found that the validity of a waiver provision was not affected by the owner’s breach of contract in failing to make complete payment to subcontractor).

In the case now before us, the appellant-subcontractor executed a valid waiver of liens provision. The contract also provided that appellant would be paid “(a) 90% of the value of the work performed monthly within five (5) days of receipt by CONTRACTOR of payment therefor from the Owner, and (b) final payment within five (5) days after the work has been entirely completed, has been accepted by the Owner, and final payment therefor has been received by CONTRACTOR.” (Subcontract, para. 3) Applying the rules from both Long and Brumbaugh’s Estate, it would appear that the waiver of liens provision is enforceable notwithstanding any possible default by the owners in paying appellant. However, we must keep in mind that “[i]n determining whether promises are dependent or independent, the intention of the parties prevails, which intention is to be discovered ... from the nature of the transaction and objects of the parties evidenced by their contract.” 8 P.L.E. § 170 (1971) (footnotes omitted). We must examine the particular agreement between the parties in this case. The subcontract consisted of 21 pre-printed, separate paragraphs outlining the duties of the parties. There is no indication that the parties intended the waiver of liens provision to be dependent upon the payment provision. Moreover, keeping in mind the nature of the transaction, to permit appellant to file a lien now would defeat the purpose of the waiver provision. We agree with the trial court’s reasoning that “[t]o allow a subcontractor to escape a waiver and subsequently file a lien against property against which he had previously agreed not to, simply because of one contractor’s breach, would do an injustice to those other than the contractor who have relied on the waiver.” Trial Court Opinion at 7.

Accordingly, we affirm the trial court’s order sustaining preliminary objections to appellant’s mechanics’ lien claim and complaint in action upon that lien.

      . Paragraph 10 of the contract between appellant and P.C.M. provided that
      The subcontractor for itself, its subcontractors and all parties acting through or under it hereby convenants and agrees not to file any liens or to make any claims against the premises or any part thereof or against any improvements erected thereon, and further covenants to release and hereby does release the premises upon which the Project is located and each and every part thereof and any and all buildings that may now or hereafter be erected thereon, from any and every lien, charge or claim of any nature whatsoever that it might otherwise at any time have against the same or any part thereof, for work done or to be done or materials furnished or to be furnished or upon any other ground whatever growing out of or in any way connected with or in relation to the erection and construction of any building or buildings upon the same premises.
      P.C.M. also executed a written waiver of liens with Gwynedd. Four months prior to the execution of P.C.M.'s contract with appellant, P.C.M. properly filed the waiver pursuant to 49 P.S. § 1402. Under Pennsylvania law, the written waiver between the owner and contractor, if properly filed, is binding as against a subcontractor. The P.C.M./Gwynedd contract was also incorporated into the contract between P.C.M. and appellant.

      . Appellant does not contest the validity of the waiver.

      . We note that the trial court states that appellant has filed a separate suit against P.C.M. and Gwynedd for breach of contract and unjust enrichment. According to the trial court, this suit is currently pending in the Montgomery County Court of Common Pleas docketed at Civil Action No. 85-09560. See Trial Court Opinion at 6 n. 4.


text:
    534 A.2d 478
    COMMONWEALTH of Pennsylvania v. William WOODWARD, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 23, 1987.
    Filed Nov. 25, 1987.

      John J. Stanzione, Assistant Public Defender, West Chester, for appellant.
    Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.
    Before McEWEN, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

Appellant, William Woodward, appeals from the judgment of sentence imposed following his open plea of guilty to two counts each of forgery and theft by deception on June 10, 1986. He was sentenced on August 19, 1986, to two concurrent terms of imprisonment of two to four years on the forgery charges and one year of probation on each theft by deception charge, to run concurrent to each other but consecutive to the forgery sentences. Appellant now argues trial court error in including his prior juvenile record in the computation of the prior record score under the sentencing guidelines.

At the sentencing hearing, the Commonwealth submitted that appellant had a prior record score of six, arriving at this score by including in the prior record score computation appellant’s juvenile record, which included adjudications of delinquency for the crimes of robbery and burglary.

Appellant specifically objected to the use of his prior juvenile adjudications in determining the prior record score; the sentencing judge, however, agreed with the Commonwealth, found the use of prior juvenile adjudications to be proper and determined appellant’s prior record score to be six.

Appellant filed this timely appeal on September 17, 1986. On appeal, he argues the sentencing commission exceeded its legislative authority by prescribing a range of sentencing of increased severity where prior juvenile adjudications are computed into a prior record score. Appellant contends that without the computation of his juvenile adjudication, his prior record score would have been four rather than six.

At first blush, we would appear to be constrained to follow the holding in this Court’s recent decision in Commonwealth v. Tilghman, 366 Pa.Super. 328, 531 A.2d 441 (1987), which would require us to vacate the sentence and remand for resentencing in accordance with that Opinion.

In Tilghman, appellee/defendant pled guilty to a charge of burglary on June 29, 1984 and was sentenced on December 13, 1984. At the sentencing hearing, the court determined it was proper to include appellee’s prior juvenile adjudication of involuntary deviate sexual intercourse in computing his prior record score for use under the sentencing guidelines. Appellee filed a timely motion to modify sentence and, on February 21, 1985, the court held a second hearing. At that time, it decided appellee’s prior juvenile adjudication could not be considered in computing his prior record score. The Commonwealth appealed. The majority of this Court, en banc, decided that a reading of 42 Pa.C. S.A. § 2154, which was, until December 11, 1986, the enabling act to the sentencing guidelines, showed it neither expressly granted nor necessarily implied the Commission had the power to specify a range of sentences based on criteria not specified in section 2154(2).

In other words, the Sentencing Commission lacked the power to adopt guidelines in which the prior record score was computed on the basis of anything other than prior convictions of felonies or convictions of crime involving the use of a deadly weapon.

Tilghman, 366 Pa.Superior Ct. at 336, 531 A.2d at 445.

While the Tilghman majority recognized the enabling act was amended in December of 1986, and the amendment is now codified at 42 Pa.C.S.A. § 2154(a), they found the amendment supports their position that the original enabling act did not permit the inclusion of juvenile adjudications in the computation of prior record scores.

In the case before us, appellant, like Tilghman, was sentenced under the law existing prior to the amendment to section 2154, thus the issue would appear to be determined by the outcome in Tilghman. In fact, the Commonwealth, in its brief, at note 2, acknowledges that our en banc ruling in Tilghman controls the disposition of the instant appeal. For reasons that we now discuss, we hold that Tilghman no longer applies and the judgment of sentence of the trial court must be affirmed.

Initially, we recognize the appellant’s juvenile record may be a consideration in determining the sentence he receives as an adult. This Court, in the en banc case of Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987), recently reiterated the fact that “[t]he role of prior juvenile adjudications in the sentencing process is an issue which this Court has consistently deemed to be of substantial significance.” The Krum Court also considered the Juvenile Act at 42 Pa.C.S. § 6354(b)(1) and Commonwealth v. Smith, 333 Pa.Super. 179, 481 A.2d 1365 (1984). The Smith Court stated:

The intention of the Legislature is clear in its adoption of the policy which not only allows but requires examination of a defendant’s juvenile record in fashioning appropriate sentences.
The Juvenile Act itself, 42 Pa.C.S.A. § 6354(b)(1), carves out an exception to the use of the juvenile’s record in a subsequent adult proceeding, stating such records may be used:
(1) in dispositional proceedings after conviction of a felony for the purpose of a presentence investigation and report;
Commonwealth v. Allen, 287 Pa.Super. 88, 429 A.2d 1113 (1981).
It is clearly the intent of the Legislature that a child who continues his pattern of serious and violent anti-social activity into adulthood, should not receive the benefit of a cloak of immunity regarding that behavior, when it is relevant to predicting future behavior and the public safety is at risk.

Id., 333 Pa.Superior Ct. at 182,481 A.2d at 1366. Our review of the sentencing transcript reveals the sentencing court’s consideration of appellant’s juvenile history.

I think that it is helpful to me in this particular instance to understand that this man has a continuous history of violating the law. If I were to view him as somebody who whatever it was, three or four years ago, committed two burglaries, period, that would be one thing, but understanding that the burglaries were just a continuation of a bad juvenile record is another thing in terms of evaluating whether or not Mr. Woodward would be likely to take advantage of a break if he were given one.
Now with respect to his psychological history, I hope that something can be done for him, but we have to concern ourselves, Mr. Woodward, with conduct. The court as such is not a social agency or a therapeutic agency as I view it. We should take into consideration what the sociologists and psychologists tell us and so forth but we have to be concerned with the fact that almost continuously since age 15 you have been an antisocial person and have done things which are contrary to the laws of the Commonwealth and we have got to do something to deal with that. Now, I don’t see any basis in what I have been told and what I have read about Mr. Woodward for mitigating his sentence. I, therefore, think that I must give him the minimum range as the guidelines discloses it to me. I think that I must — he must go to prison, and the guideline range says he must go to state prison.

S.T. 8/19/86, pp. 10-11. The trial court, in sentencing appellant, without inclusion of the juvenile offenses in the prior record score, was still empowered to impose the same sentence while remaining within the guidelines.

Forgery has an offense gravity score of five; following are the respective sentencing guidelines to be used with prior record scores of four and six:

Minimum Aggravated Mitigated

Prior record score 4

18-27 27-34 14-18

Prior record score 6

24-36 36-45 18-24

It is to be noted that under the guidelines, using a prior record score of four, as opposed to six, with the considerations expressed by the trial court, the sentence imposed would still be within the minimum range and would not result in an abuse of discretion. Yet guided by Tilghman, we would have no choice but to vacate and remand for resentence. We hold Tilghman has been overruled by the Supreme Court in Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404 (1987) and, therefore, the trial court must be affirmed. Samuels is a corollary and expansion of the recently filed Opinion of Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). There it was determined the guidelines were void because of the constitutionally impermissible means of enactment. As to any cases now on appeal where the issue as to the constitutionality of the guidelines was preserved, the holding in Sessoms applies, otherwise the issue is waived. Such is the case here where the attack was solely to the validity of the inclusion of prior juvenile offenses, the Tilghman issue, and not the underlying constitutionality of the guidelines themselves. In construing the issue in Samuels, which is identical to that in Tilghman and the case sub judice, the Supreme Court, by necessary implication, overrules Tilghman and requires affirmance here.

In Tilghman, the majority stated in construing 42 Pa.C.S. § 2154:

What the Commonwealth does contend is that § 2154(2) merely sets forth the minimum criteria that the Sentencing Commission was required to consider and did not constrain the Commission to include consideration of only the specified criteria. We believe the Commonwealth’s position is contrary to the relevant principles of statutory construction. (Emphasis added.)

Tilghman, 366 Pa.Super. at 335, 531 A.2d at 445.

The Supreme Court rejected the same analysis of the Superior Court in Samuels and found, in a 180° reversal, that the Commonwealth’s position did in fact have merit. In Samuels, the guidelines were held to improperly have provided for increased severity of sentences on the basis of prior convictions for misdemeanors not involving deadly weapons as being without statutory authority. In Tilghman, the same argument applied that juvenile offenses were included in the guidelines computation without specific legislative authority.

The Supreme Court, in Samuels, speaks conclusively to this issue:

Superior Court began its analysis with the premise that the Commission’s enabling statute, of which this section is a part, is a penal provision and therefore subject to strict construction. Given this perspective, the court determined that paragraph (2) stated the only area in which the Commission was authorized to provide increased severity on account of prior convictions.
The Commonwealth argues that this portion of the statute, though a mandatory direction, is not an exclusive direction; that is, the legislature insisted that the Commission treat a person with prior weapons misdemeanors more severely, but left it to the Commission, in the exercise of its broad grant of general authority, to determine what other conditions, including non-weapons misdemeanors, might also justify increased severity.
This argument, though simple, is highly persuasive. We need not pass upon the Superior Court’s questionable judgment that the enabling statute (as distinguished from the actual guidelines produced by the Commission) is subject to strict construction as a penal provision. Notwithstanding that court’s determination that the meaning it attributed to § 2154(2) was “plate glass clear”, we are convinced that whether the statute is “strictly” or “liberally” construed, it in no way follows that the mandatory term “shall” is also an exclusive. The General Assembly gave the Commission a broad grant of authority to analyze the impact that various factors should have on the sentencing decision and to promulgate a set of recommended sentences in accordance with its analysis. Certain factors (prior felonies, prior offenses of any grade involving deadly weapons were so important to the legislature that it required the Commission to provide for them. This statement of an affirmative duty of inclusion of certain items carries no prohibition, express or implied, on the authority to include others.

Samuels, 516 Pa. at 304, 532 A.2d at 405.

Thus the central thesis of Tilghman has been emasculated and there can be no other construction given to the issue posed in Tilghman and the present case than that the Sentencing Commission acted within its authority to analyze the impact of various factors on the sentencing decision and to recommend sentences in accordance with its analysis. No less important in this consideration are prior adjudications of juveniles on felony charges (see Smith, supra) as are prior misdemeanor offenses by adults. The legislature intended the Sentencing Commission to make those determinations and in doing so it has been affirmed by the Supreme Court.

Judgment of sentence affirmed.

      . See Tilghman, 366 Pa.Superior Ct. at 337-338 n. 6,531 A.2d at 446 n. 6. Cf. Dissenting Opinion by Tamilia, J., which argues the amendment was intended to clarify the prior enabling act rather than to change it.

      . Through Act 1986 No. 165, P.L. 1521, the legislature reserved to itself the authority to define what constitutes a prior conviction or adjudiation of delinquency for purposes of the prior record score. Act 165, amended 42 Pa.C.S.A. § 2154(a)(2), now directs that the guidelines shall:
      Specify a range of sentences of increased. severity for defendants previously convicted of or adjudicated delinquent for one or more misdemeanor or felony offenses committed prior to the current offense. For purposes of this section 'previously convicted or adjudicated delinquent’ shall include any finding of guilt of adjudication of delinquency whether or not sentence has been imposed or disposition ordered prior to the commission of the current offense.
      The statutory language under Act 165, directing the sentencing commission to include prior juvenile adjudications of delinquency in the prior record score of the guidelines, became effective February 9, 1987. This statutory amendment was cited with approval by the Supreme Court in footnote 3 of Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404 (1987).

      . Appellee Woodward was sentenced on August 19, 1986, while the amendment to 42 Pa.C.S. § 2154 did not take effect until February 9, 1987.

      . As to applying the guidelines in this case, they would not be made irrelevant by Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), as footnote 2 therein provides:
      2 This ruling is applicable to cases where the issue [of constitutionality] has been "properly preserved at all stages of adjudication up to and including any direct appeal.” Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).
      We note that the Supreme Court, in Sessoms, did not bar the trial court from considering the guidelines in determining an appropriate sentence. Also, Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404 (1987) provides at note 4, "Inasmuch as Samuels failed to preserve his challenge to the constitutionality of the sentencing guidelines, Commonwealth v. Sessoms, [supra] is inapplicable.”

      . Adoption of guidelines for sentencing
      (a) General Rule — The Commission shall adopt guidelines for sentencing within the limits established by law which shall be considered by the sentencing court in determining the appropriate sentence for felonies and misdemeanors committed by a defendant. The guidelines shall:
      (1) Specify the range of sentences applicable to crimes of a given degree of gravity.
      (2) Specify a range of sentences of increased severity for defendants previously convicted of a felony or felonies or convicted of a crime involving the use of a deadly weapon.
      (3) Prescribe variations from the range of sentences applicable on account of aggravating or mitigating circumstances.
      42 Pa.C.S. § 2154.

      . It is noted that the effect of our decision is limited to the present case and others decided in reliance on the Superior Court’s decision in it where the Commonwealth has pursued the matter on appeal. Act 165 of 1986, effective February 9, 1987, amended § 2154(2) to overcome the uncertainty caused by the Superior Court’s decision in this case and even more explicity provided the Commission with authority to increase the severity of guideline sentences on the basis of misdemeanors of any kind.