author: MONTEMURO, Judge: SPAETH, President Judge, WICKERSHAM, Judge,

text:
    491 A.2d 237
    COMMONWEALTH of Pennsylvania, Appellant, v. Bruce CARSIA, Appellee.
    Superior Court of Pennsylvania.
    Argued July 23, 1984.
    Filed April 4, 1985.
    Petition for Allowance of Appeal Granted Sept. 6, 1985.

      Lawrence N. Claus, Pittsburgh, for Commonwealth, appellant.
    John R. Carroll, Philadelphia, for appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, WIEAND, CIRILLO, DEL SOLE, MONTEMU-RO, JOHNSON and POPOVICH, JJ.
   MONTEMURO, Judge:

In this appeal, our court is asked once again to delineate the scope of the power and authority of the Attorney General to prosecute criminal cases vis-a-vis the power and authority that is similarly vested in the district attorneys of the various counties. This controversy, like the mythological Phoenix, has repeatedly risen from the ashes renewed and regenerated; as many times as the courts and the legislature have attempted to resolve the conflict, it returns in a different form and in a different context, yet the substantive heart remains constant.

In this incarnation, the controversy is presented to us in the context of an appeal from an order of the Court of Common Pleas of Allegheny County granting a petition to quash criminal informations. The circumstances giving rise to this appeal are as follows.

The appellee, Bruce Carsia, was arrested and charged with bribery, obstructing the administration of law, conspiracy, and solicitation by Special Agent Dennis Danask of the Bureau of Criminal Investigation [BCI], the investigative arm of the Office of the Attorney General. The charges arose out of an alleged attempt by the appellee, an Allegheny County attorney, to bribe two municipal police officers to fix a case, which was then pending before a West Mifflin Township District Justice, against two of the appellee’s clients.

The two officers reported the incident to their superiors, who contacted BCI. Investigation of the incident, including the interception and taping of wire and personal communications, was conducted solely by the BCI. After charges were filed, the prosecution of the case was assumed by the Office of the Attorney General through Executive Deputy Attorney General Robert L. Keuch, who signed the information, and through Deputy Attorney General Lawrence N. Claus.

Prior-to trial, the appellee, through counsel, filed a “Petition to Quash the Information/Request for Habeas Corpus or other Appropriate Relief.” The petition alleged that the Office of the Attorney General lacked the requisite authority to prosecute the action, and that instead the district attorney of Allegheny County should prosecute the action. The petition further alleged that the Attorney General’s sole grant of authority to prosecute was set forth in Section 205 of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, No. 164 § 101 et seq, 71 P.S. § 732-101 et seq, and that the instant prosecution was not within any of the enumerated categories of that section, 71 P.S. § 732-205(a)(l)-(8).

A hearing on the petition was conducted before the Honorable Bernard L. McGinley. The deputy attorney general presented argument and testimony to the effect that the investigation was conducted with the knowledge and consent of the Allegheny County District Attorney, and that the prosecution was being conducted in the manner in which the district attorney would have conducted it. At the conclusion of the hearing, the court concluded that the Office of the Attorney General was not authorized to prosecute the action under the Commonwealth Attorneys Act. The court therefore ordered that the information be dismissed.

The Commonwealth filed an “Application for Reconsideration of Defendant’s Motion to Quash” alleging that the prosecution was authorized by Section 205(a)(1) and (2) of the Commonwealth Attorneys Act, 71 P.S. § 732-205(a)(l), (2). The application was denied by order of Judge McGinley on December 28, 1982. The office of Attorney General [hereinafter referred to as “Commonwealth”] immediately filed a notice of appeal.

Herein, the Commonwealth asserts that the lower court erroneously dismissed the information. The Commonwealth argues that the Office of the Attorney General possessed the power and authority to prosecute the action both under, and apart from, the Commonwealth Attorneys Act. We find no merit in these arguments. Before discussing the merits of these arguments, we must dispose of two preliminary questions.

The appellee argues that the instant appeal should be quashed because the Commonwealth has not been put out of court by the order of the lower court. The appellee alerts us to the fact that, subsequent to the dismissal of the instant information, an information charging the same offenses based on the same incident was filed by the Allegheny County District Attorney. The appellee argues that the Commonwealth is not out of court because the prosecution is being continued by the Commonwealth, merely through a different law firm. It is this kind of logic that gave the Sophists a bad name.

Regardless of the merits or status of the prosecution being conducted by the district attorney, an order has been entered in the present action terminating the prosecution of the charges. This order is a final order under Pa.R.A.P. 341(c), from which the Commonwealth properly may appeal. Furthermore, it is an appeal in which substantial rights and interests are at stake. Thus, we decline the appellee’s invitation to quash this appeal.

On the other matter, the Commonwealth would have us hold that the appellee lacks any standing to challenge the Attorney General’s compliance with the Commonwealth Attorneys Act. The thrust of this argument is that the Act affords no express remedy wherein the Attorney General prosecutes an action for which there is no express grant of authority; consequently, it is argued that the remedy utilized by the lower court’s dismissal of the information was improper. The Commonwealth’s argument is viable only if the Commonwealth Attorneys Act is read in a vacuum devoid of other statutes and rules.

The case at hand concerns not only the respective spheres of authority of the Attorney General and the district attorneys of the various counties, but also the basic requirements for a valid information.

Both the legislature and the supreme court have promulgated requirements to be followed with respect to the filing of informations. Pa.R.Crim.P. 225(a) mandates that “the attorney for the Commonwealth ... shall proceed by preparing an information and filing it with the court of common pleas.” Pa.R.Crim.P. 225(b) provides that “[t]he information shall be signed by the attorney for the Commonwealth____” The reason for the signature requirement was explicated in Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983) wherein it was stated:

Basically, the interest sought to be protected by the signature requirement of Pa.R.Crim.P. 225 is the right of a citizen to be free from unjust or unduly oppressive government interference. In the context of the filing of a criminal information, this interest is protected in part, by our requirement in Pa.R.Crim.P. 225 that the information be signed by the government official authorizing the filing of the information____ Thus, due process requires that when the Commonwealth elects to file a criminal information against an individual, a particular identifiable government official must be named on the information, that person must sign the information by manual or facsimile signature, and the signatory must be prepared to establish that the information meets all legal requirements, should he be called upon to do that by a court of competent jurisdiction.

Id., 501 Pa. at 587-588, 462 A.2d at 656. It is axiomatic that in establishing that the information meets all legal requirements the person signing that information must show that he is authorized to conduct the prosecution. Otherwise the information cannot meet the requirement that “the prosecution is carried on in the name of and by the authority of the Commonwealth of Pennsylvania.” Pa. R.Crim.P. 225(b)(1); see also Pa.R.Crim.P. 101A-Comment, which states:

As used in this rule, “Attorney for the Commonwealth” is intended to include not only the District Attorney and any deputy or assistant district attorney in the county, but also the Attorney General, and any deputy or assistant attorney general, in those cases in the county which the Attorney General is authorized by law to prosecute. (Emphasis added).

Alternatively, it is mandated by statute that “[t]he district attorney sign all informations.” 42 Pa.C.S. § 8931(c). The statute continues in subsection (i) to define “district attorney” as including “a special attorney appointed by the Attorney General in the manner provided by statute.” 42 Pa.C.S. § 8931(i). In criminal prosecutions, the Attorney General’s power to delegate the responsibility of executing his function is set forth in Section 205(d) of the Commonwealth Attorneys Act, which states:

(d) Powers when prosecuting. — Whenever the Attorney General prosecutes a criminal action, or appeal, he may employ such special deputies as are necessary for that purpose; such deputies shall take the oath of office and be clothed with all the powers, and subject to all the limitations imposed by law upon district attorneys, including the power to sign informations or indictments. Whenever the Attorney General intervenes in a criminal action, the costs incurred as a result of the intervention shall be paid by the Commonwealth.

It is clear, however, that an Attorney General or any other official can only delegate an authority that that official possesses. Thus, unless the Attorney General was authorized to conduct the prosecution against the appellee, dismissal of the information was warranted.

We note as a final preliminary matter, that the Commonwealth raises other matters under the rubric of “standing”, i.e., an assertion that the appellee challenged his arrest via the petition to quash, and that such a challenge was waived as untimely filed; and an assertion that the appellee challenged the jurisdiction of the court. We dismiss these assertions as being grounded in a misconception of the issues in the case, and having done so, we shall proceed to the more substantial aspects of the appeal.

The Commonwealth advances three arguments in support of its assertion that the lower court erred. We shall address these arguments in a manner which facilitates the exposition of the past problems the courts and the legislature have faced in delineating the bounds of the Attorney General’s authority.

The Commonwealth argues that under the Pennsylvania Constitution, the Attorney General was authorized to investigate and prosecute the charges against the appellee. On May 16, 1978, the electorate approved a “constitutional amendment creating the office of elected Attorney General to replace the officer appointed by the Governor under constitutional authority since 1874.” (Emphasis added.) JOINT STATE GOVERNMENT COMMISSION: OFFICE OF ELECTED ATTORNEY GENERAL Final Report at 1 (1978). Pa. CONST. Art. 4, § 4.1 provides:

§ 4.1. Attorney General
An Attorney General shall be chosen by the qualified electors of the Commonwealth on the day the general election is held for the Auditor General and State Treasurer; he shall hold his office during four years from the third Tuesday of January next ensuing his election and shall not be eligible to serve continuously for more than two consecutive terms; he shall be the chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law.

The Commonwealth’s argument is essentially that this provision contemplates that the Attorney General is vested with the authority which he possessed theretofore by virtue of common law, statutes, regulations and judicial pronouncements. Thus, the Commonwealth contends that the lower court erred in concluding that the only current source of authority by which the Attorney General may prosecute criminal cases is to be found in Section 205 of the Commonwealth Attorneys Act, 71 P.S. § 732-205. Rather, it is asserted the elected Attorney General is armed with the powers traditionally attributed to that office.

We note that the Commonwealth’s argument invokes the spirit of a half-century of jurisprudence in this state. During this period, the courts and the legislature have from time to time surveyed the boundaries of the Attorney General’s authority and from time to time the scope of that authority has been changed. The issue is one which has bred strong disagreement as exhibited by vigorous and even vociferous dissents in our courts. Indeed, the precise measure of the Attorney General’s authority in the area of criminal investigation is not static, but is instead a dynamic and protean concept.

The question upon which our attention must focus is this: What is the basis for the authority of the office of the elected Attorney General to prosecute criminal actions? The root of our inquiry, Pa. CONST. Art. 4, § 4.1, only informs us that “he shall be the chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law.” The exact nature of the Attorney General’s powers and duties is left undefined. The Commonwealth asserts that the words “as may be imposed by law” require us to consider all source of the law, and not merely the latest statutory enactment. It asserts that this construction is correct and cites the inclusion of the phrase “he shall be chief law officer for the Commonwealth” as support for its argument. That phrase is said to be a term of art descriptive of the powers of the Attorney General under previous legislative enactments, see Act of April 9, 1929, P.L. 177, art. VII § 704, 71 P.S. § 244. Consequently, it is contended that its inclusion in the constitutional amendment, Pa. CONST. Art. 4, § 4.1, as well as in the current legislative enactment, the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, No. 164, § 101 et seq., 71 P.S. § 732-101, evidences a legislative intent to continue the power and authority of the Attorney General as it was prior to the constitutional amendment. We believe that reference to the historical powers of the Attorney General is necessary to the proper disposition of this issue.

Pennsylvania has been a unique jurisdiction in the nature and scope of authority granted to its Attorney General. Until 1850, he was the sole repository of the power of law enforcement in this Commonwealth, enjoying the same powers and prerogatives that the Attorney General of England enjoyed at common law. By the Act of May 3, 1850, P.L. 654, § 1, the legislature created the office of county district attorney, to carry out the function of criminal prosecutions including that of signing all bills of indictment, theretofore executed by the Attorney General, his deputies or his designees. The Attorney General could still intervene in a criminal prosecution if requested to do so by the president judge of the jurisdiction in which the prosecution was pending. See Act of March 12, 1866, P.L. 85, Act of May 2, 1905, P.L. 351, Act of June 7, 1923 Art. IX, P.L. 498, 550. See also Commonwealth v. McHale, 97 Pa. 397 (1881); Commonwealth v. Havrilla, 38 Pa.Super. 292 (1909).

However, the division of authority between the attorney general and the local district attorneys remained unclear. It was certain that the district attorney had primary responsibility for local prosecutions. It was also clear that, by virtue of a series of statutes culminating in the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, Art. 1, § 1 et seq., 71 P.S. § 51 et seq., the Attorney General had the power to intervene or “supersede” the district attorney under certain circumstances. Id. § 907, 71 P.S. § 297. Moreover, the Attorney General had the power “to investigate any violations, or alleged violations; of the laws of the Commonwealth which may come to [his] notice [and] ... [t]o take such steps ... as may be reasonably necessary to enforce the laws of the Commonwealth.” Id. § 904, 71 P.S. § 294.

It was not until Commonwealth v. Lehman, 309 Pa. 486, 164 A. 526 (1932), that the courts construed the provisions of Section 907 of the Administrative Code of 1929. In Lehman, the defendant objected, albeit belatedly, to the supersession of the district attorney by the Attorney General, who designated a deputy to prosecute the cases. The Attorney General’s intervention was at the request of the president judge. The defendant contended that supersession was improper where there is no vacancy in the office of district attorney, nor incapacitation or disqualification of the district attorney. The court found no merit in the argument.

Lehman unwittingly served as the sire of a generation of cases which saw the scope of the Attorney General’s authority to prosecute criminal cases expand dramatically. The first born of this generation was Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 A. 524 (1936), in which Justice (later Chief Justice) Schaffer consummately discoursed upon the common law history of the office of Attorney General from the most ancient roots in sixteenth century England. The court concluded that the Pennsylvania Attorney General enjoyed the same powers as his common law ancestors. As stated by the court:

We conclude from the review of decided cases and historical and other authorities that the Attorney General of Pennsylvania is clothed with the powers and attributes which enveloped Attorneys General at common law, including the right to investigate criminal acts, to institute proceedings in several counties of the Commonwealth, to sign indictments, to appear before the grand jury and submit testimony, to appear in court and to try criminal cases on the Commonwealth’s behalf,2 and, in any and all these activities to supersede and set aside the district attorney when in the Attorney General’s judgment such action may be necessary. (Footnote omitted) (emphasis added).

Id., 325 Pa. at 30-31, 188 A. at 529-530. Commonwealth ex rel. Minerd v. Margiotti, clearly bestowed on the Attorney General an authority superior to that which he enjoyed under the Administrative Code of 1929 in that the intervention decision was consigned to the Attorney General. Re Dauphin County Grand Jury Investigative Proceedings No. 1, 332 Pa. 289, 2 A.2d 783 (1938); Commonwealth v. Ryan, 126 Pa.Super. 306, 309, 188 A. 764, 766 (1937).

By the Act of July 30, 1938, P.L. 17, the Legislature put its imprimatur on the Minerd decision. The Act gave the Attorney General the “absolute discretion” to supersede a county district attorney in the investigation or prosecution of a criminal action. In Re Dauphin County Grand Jury Investigative Proceedings No. 3, 332 Pa. 358, 2 A.2d 809 (1938), the court interpreted the scope of that discretion to be

a discretion consistent with those immutable principles which govern the administration of justice, that is, a discretion reasonably based upon the attendant pertinent circumstances from which its exercise arises, and which is the only range of discretion permissible to a judicial or quasi-judicial officer.

Id., 332 Pa. at 365, 2 A.2d at 813. It was also in this case that the first criticism of the rule in Commonwealth ex rel. Minerd v. Margiotti, supra, was unleashed. In a dissenting opinion, Justice Maxey stated that the court’s discussion of, and reliance on, the common law authority of the Attorney General was superfluous under the facts of the case because the Attorney General’s supersession of the district attorney was clearly authorized by Section 907 of the Administrative Code. Justice Maxey viewed the court’s reliance on common law as mere dicta which was not binding on the court. He further expressed staunch disapproval of the Act of July 30, 1938, P.L. 17. This disapproval was borne out by the legislature’s quick reversal in repealing that Act. Act of March 20, 1939, P.L. 8.

Despite the abrogation of the legislative mandate, the rule of Commonwealth ex rel. Minerd v. Margiotti, supra, maintained its potency for over forty years. Gwinn v. Kane, 465 Pa. 269, 348 A.2d 900 (1975) (court, however, relied on statutory authority under Administrative Code of 1929); Packel v. Mirarchi, 458 Pa. 602, 327 A.2d 53 (1974); Commonwealth v. Fudeman, 396 Pa. 236, 152 A.2d 428, cert. denied, 361 U.S. 902, 80 S.Ct. 211, 4 L.Ed.2d 157 (1959); Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952); Matson v. Jackson, 368 Pa. 283, 83 A.2d 134 (1951); Commonwealth ex rel. Margiotti v. Orsini, 368 Pa. 259, 81 A.2d 891 (1951); Appeal of Margiotti, 365 Pa. 330, 75 A.2d 465 (1950); Commonwealth v. Bardascino, 210 Pa.Super. 202, 232 A.2d 236 (1967).

During its reign however, the rule was subject to scathing attacks by various members of the judiciary, commencing with that of Justice Maxey in Re Dauphin County Grand Jury Investigation Proceedings No. 3, supra. His antagonistic mantle was taken up by Justice (later Chief Justice) Jones in the Appeal of Margiotti, supra, who observed:

Even a cursory reading of the opinions in those cases will readily disclose that no question as to common law power in the Attorney General to supersede a District Attorney of his own motion was present for decision. Indeed, the matter had never been passed upon at common law for the all-sufficient reason that elected prosecuting officers were unknown to its political institutions. Ever since the creation of the offices of Attorney General and Solicitor General in England several centuries ago, prosecuting attorneys (beyond the two officers just mentioned) have been and still are the Attorney General’s own appointees and, of course, subject to removal or supersession by him at his pleasure. Manifestly, no analogy can rightly be drawn between that system and the system which has obtained in Pennsylvania since the creation of the office of elective District Attorney by the Act of May 3, 1850, P.L. 654, Sec. 1, — an office later, and still, ordained by the Constitution of 1874 (Art. XIV, Secs. 1 and 2). The idea that a mere political appointee, beholden to his appointer and not to the people for his tenure, can, of his own volition, set aside and supersede a duly elected constitutional officer runs counter to even the most limited conception of the republican form of democratic government which this Commonwealth was established to secure and maintain and which the National Government is charged by the Federal Constitution (Art. IV, Sec. 4) to guarantee to every State. (Emphasis in original).

Id. 365 Pa. at 341-342, 75 A.2d at 470-71. See also Commonwealth v. Fudeman, supra, (concurring opinion by Jones, C.J.) Commonwealth ex rel. Margiotti v. Orsini, supra, (concurring opinion by Jones, J.)

In Fudeman, Chief Justice Jones found new support in the person of Justice Musmanno, who spoke out with typical vigor and eloquence stating:

It cannot be supported historically, statutorily, or jurisprudentially. There are several decisions of this Court which, from a standpoint of rote and poll-parrotism, warrant the present Majority in making the assertion it makes in this case, but the fact remains, nevertheless, that the Attorney General does not have and never did have the absolute power to decide for himself if, when, and to what extent he should take over the duties, functions and responsibilities of a District Attorney.
Within recent years the authority of the Attorney General has been overflowing the banks of constitutional channels until it threatens to inundate, smother, and choke local prosecuting authority. The time has come, and is indeed long past overdue, to bring the concept of the power of the Attorney General within its constitutional limitations. And the one to perform that job is this Court, because this Court has been mostly responsible for creating the fiction, the legend, and the absurdity that an appointed official with his office in Harrisburg, may at his pleasure take over the offices of district attorneys in 67 counties and run them to suit his own ideas of government, as well as his whim, caprice, and ambitions. Such a notion runs counter to every principle of American democracy where the power to govern stems from the people, and the people alone. In all the literature on the subject one cannot find any authority to justify the incredulous assumption that an appointed officer (the Attorney General) may displace, because of common law authorization, an officer elected by the people by mandate of the Constitution.
The Attorney General has tremendous powers but he is not, as the Majority Opinion would have us believe, omnipotent, ubiquitous, and omniscient in the entire legal realm of the State.

Commonwealth v. Fudeman, supra, 396 Pa. at 253-255, 152 A.2d at 437-438. See generally, Id., 396 Pa. at 253-255, 152 A.2d at 437-448 (dissenting opinion by Musmanno, J).

The rule was further criticized in the majority opinion in Packel v. Mirarchi, supra, which sustained the Attorney General’s supersession of the Philadelphia District Attorney based on the Attorney General’s statutory authority. Therein the court noted:

[The] ruling was based not on the assumption such power was given statutorily, but rather on the premise that such power “enveloped” attorney generals at common law and the Attorney General of Pennsylvania was “clothed” with the same power. This reasoning has been severely criticized. See Some Current Problems in Pennsylvania Law — Attorney General versus District Attorney, 99 U.Pa.L.Rev. 814, 826 (1951), and Note, The Common Law Power of State Attorneys General to Supersede Local Prosecutors, 60 Yale L.J. 559 (1951). Furthermore, Pennsylvania seems to be the only jurisdiction which has approved the supersession of a district attorney on the basis of common law powers. Cf, C.J.S. Attorney General § 5, supra; People v. Hopkins, [182 Misc. 313] 47 N.Y.S.2d 222 (1944); Kemp v. Stanley, 204 La. 110, 15 So.2d 1 (1943); In Re Watson, 293 Mich. 263, 291 N.W. 652 (1940); People v. Flynn, 375 Ill. 366, 31 N.E.2d 591 (1940).

Id. 458 Pa. at 605-606, 327 A.2d at 55.

Finally, in Commonwealth v. Schab, 477 Pa. 55, 383 A.2d 819 (1978), the tide was turned and the supreme court repudiated Minerd and its progeny. As stated by the court:

We no longer adhere to this view. Simply because the Attorney General had the common law power to replace his own deputies does not justify the conclusion that he now has the same right to supersede an elected District Attorney, an officer unknown to the common law. It would be incongruous to place the district attorney in the position of being responsible to the electorate for the performance of his duties while actual control over his performance was, in effect, in the Attorney General. To countenance such a separation of accountability and control undermines self-government and promotes centralization, see Commonwealth v. Fudeman, 396 Pa. 236, 152 A.2d 428, 438-40 (1959) (Musmanno, J. dissenting), of law enforcement — precisely the approach rejected in Pennsylvania by statute in 1850 and constitutionally in 1874.

Id., 477 Pa. at 61, 383 A.2d at 822.

The Sehab court, in addition to abolishing the Attorney General’s common law authority to investigate and prosecute criminal cases, also reinterpreted Sections 904 and 907 of the Administrative Code of 1929, 71 P.S. §§ 294, 297, in an attempt to harmonize those sections. The court interpreted Section 904 to allow the Attorney General seeking to supersede a county district attorney to petition the president judge of the proper jurisdiction to allow supersession. The Attorney General must therefore “establish good cause for the supersession.” Id., 477 Pa. at 65, 383 A.2d at 824. However, the continued reliance of this aspect of Schab is suspect in light of the subsequent repeal of Sections 904 and 907 of the Administrative Code of 1929 by the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, No. 164, § 503, 71 P.S. § 732-503, and the incorporation of more comprehensive procedures in the new act to account for the Schab decision.

Subsequent to Schab, we arrive again at the starting point of inquiry, that is, Art. 4, § 4.1 and the Commonwealth Attorneys Act. Having come full circle, we state as a conclusion that the short historical digression shows a continuing conflict in the courts and in the legislature over the respective spheres of authority of the Attorney General and the district attorneys. The Commonwealth asserts that by the inclusion of certain language in Art. 4, § 4.1, and in the Commonwealth Attorneys Act, it was intended to perpetuate this conflict. We cannot agree with this assertion.

We believe it is evident that both the courts and the legislature have repudiated the past. The courts did so by means of the decision in Commonwealth v. Schab, supra; the legislature by the repeal of the portions of the Administrative Code of 1929.

The only remaining source of authority which defines the scope of the Attorney General’s power to investigate and prosecute criminal actions is the Commonwealth Attorneys Act. We conclude that it is the sole source of that power. Indeed, we find it indisputable that the legislature intended any different result. Pursuant to Senate Resolution No. 61, 1977, the Joint State Government Commission formed a Task Force to comprehensively study the office of the elected Attorney General and to draft legislation to implement the constitutional amendment providing for that office. The Task Force executed these functions and drafted a proposed bill which, after some amendments not relevant herein, was enacted as the Commonwealth Attorneys Act.

Our conclusion that the legislature intended a break with the past is supported by the Final Report issued by the Task Force, which states:

Underlying the legislative recommendations of the task force are five general concepts on which there was substantial consensus:
1. Legislation enacted by the General Assembly is the exclusive source of the powers and duties of the elected Attorney General pursuant to Article IV, Section 4.1, which provides in part that the Attorney General “... shall be the chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law.” (Footnote omitted).

JOINT STATE GOVERNMENT COMMISSION TASK FORCE ON THE OFFICE OF ELECTED ATTORNEY GENERAL FINAL REPORT at 4 (1978). It must be remembered that with the repeal of the relevant provisions of the Administrative Code of 1929, the Commonwealth Attorneys Act is the only legislation delineating the powers of the Attorney General. The Task force further stated:

4. The elected Attorney General must serve as the independent chief law-enforcement officer to investigate and, where appropriate, prosecute criminal charges of wrongdoing by State officials and employees and by persons engaged in widespread organized corruption. The delicate balance between providing a vigorous statewide chief law-enforcement officer while not impinging upon the jurisdiction and duties of the constitutionally created office of county-elected district attorney led to careful consideration of the scope and implementation of the criminal jurisdiction of the elected Attorney General. (Emphasis in original).

These statements are convincing evidence of the legislative intent to limit the Attorney General’s authority in the investigation and prosecution of criminal actions to those instances expressly set forth in the Commonwealth Attorneys Act. We are constrained to heed these statements in interpreting the Act. 1 Pa. C.S. § 1939; 1 Pa. C.S. § 1921(a), (c)(7). Therefore, we hold that the Attorney General can only investigate and prosecute criminal actions within the confines of the Commonwealth Attorneys Act. Having so concluded, we must reject the Commonwealth’s attempted resurrection of the body of law which pre-existed Art. 4, § 4.1. If we might twist our prior analogy slightly, and equate the Office of Attorney General with the Phoenix, the latest incarnation has emerged into a world of changed and more limited circumstances; its powers having been bridled by the legislature. The focus of our inquiry must now shift to the question of whether the instant prosecution was authorized by the Commonwealth Attorneys Act.

Section 205 of the Commonwealth Attorneys Act, 71 P.S. § 732-205, sets forth the scope of the Attorney General’s power to prosecute criminal actions. The Commonwealth contends that the instant prosecution is authorized by Section 205(a)(1), or in the alternative by Section 205(a)(2).

Under Section 205(a)(1), the Attorney General is authorized to prosecute criminal charges against “state officials or employees affecting the performance of their public duties,” and against “persons attempting to influence such state officials or employees.” The Commonwealth advances three grounds for prosecution under this subsection. First that the Attorney General can prosecute Carsia, an attorney, as a state official; second, that the Attorney General can prosecute Carsia for attempting to influence a district justice, a state official; and third, that the Attorney General can prosecute Carsia for attempting to bribe the two municipal police officers, who, it is asserted are state officials or employees. These assertions are without merit.

In support of its first assertion, the Commonwealth directs our attention to 42 Pa.C.S. § 2521 which describes the “office of attorney-at-law,” and Section 2522 describing the oath to be taken before entering the “office.” The Commonwealth argues that these provisions establish attorneys-at-law as State officials. The Commonwealth further cites Pa. CONST. Art. 4 Sec. 6 in support of its assertion. We refuse to subscribe to the Commonwealth’s argument. Although there is no specific authority on this point, we note that an attorney is not a state officer so as to bring his actions within the purview of the Civil Rights Act, 42 U.S.C. § 1983. Brown v. Joseph, 463 F.2d 1046, (3d Cir.1972), cert. denied, 412 U.S. 950, 93 S.Ct. 3015, 37 L.Ed.2d 1003 (1973); Steward v. Meeker, 459 F.2d 669 (3d Cir.1972); Habda v. Wysocker, 458 F.2d 537 (3d Cir.1972). Moreover, we note that in Commonwealth v. Garrison, 478 Pa. 356, 386 A.2d 971 (1978), the court held that an attorney is not an “officer” for purposes of 17 P.S. § 2041, giving courts the power to punish its officers for official misconduct. We conclude that an attorney was not intended as a “State officer” under Section 205(a)(1) of the Commonwealth Attorneys Act. Therefore the present prosecution cannot be grounded on that basis.

The Commonwealth next argues that the prosecution falls within Section 205(a)(1) because Carsia was attempting to influence a district justice, who is a state officer. A district justice has been held to be an officer of the Commonwealth, that is, an officer of statewide jurisdiction, for the purposes of the Appellate Court Jurisdiction Act. Collins v. Gessler, 452 Pa. 471, 307 A.2d 892 (1973). However, the Commonwealth’s assertion distorts the facts. There is no allegation that Carsia ever attempted to influence the district justice. His bribery attempt was directed toward the two police officers. Consequently, reliance on this assertion is likewise fruitless.

The Commonwealth finally argues that the prosecution is authorized because it involves an attempt to influence state officials or employees, the two police officers. In Commonwealth v. Bausewine, 354 Pa. 35, 46 A.2d 491 (1946), a police officer challenged his conviction of common law bribery on the ground that he should have been convicted under [then] section 303 of the Crimes Code, 18 P.S. § 4303, which prohibited bribery of “state officers, judges, jurors, etc.” The court rejected the challenge stating:

A careful study of section 303, however, convinces us that it was the legislative intent to single out those officers directly responsible to the government of the Commonwealth of Pennsylvania in its statewide sense who prove unfaithful in the exercise of the sovereignty of the Commonwealth. It was not the intendment to include in this section such local public officer as a borough chief of police. In this connection, we agree with President Judge Baldrige that: “Section 300 * * * relates to a thing to be attained or influenced by a bribe. ‘Vote, opinion, verdict, award, judgment, decree or behavior’ are specified. A chief of police has no official relation with any of those matters. Those who come within the provisions of that section are legislators, judges, jurors, etc., who make up the legislative and judicial branches of our government. They are the officers of the Commonwealth within the purview of the statute. Nothing is said in this section about municipal officers. Then we go further and examine sections 304 and 305, 18 P.S. §§ 304, 4305, dealing with a corrupt solicitation and the practice of corrupt solicitation of ‘municipal officers’ and ‘public officers of the State or of any political subdivision thereof.’ If the legislature had meant to embrace within section 303 municipal officers, it would have said so definitely as it did in sections 304 and 305.” Therefore, this argument of defendant is without merit.

Id,., 354 Pa. at 37-38, 46 A.2d at 492. In reliance on Bausewine, we conclude that municipal police officers are likewise not state officials or employees. Consequently, we find no authorization for the Attorney General to prosecute the instant case under Section 205(a)(1).

The Commonwealth alternatively argues that prosecution is authorized under Section 205(a)(2) which empowers the Attorney General to prosecute “criminal charges involving corrupt organizations as provided for in 18 Pa.C.S. § 911 (relating to corrupt organizations).” The Attorney General and the district attorneys of the several counties shall have concurrent authority to institute criminal proceedings under the provisions of this section. It is indisputable that the Attorney General has the power to prosecute a defendant charged with corrupt organizations.

[91 The Commonwealth, however, has never charged the appellee, Carsia, with violating 18 Pa.C.S. § 911. It asserts however that by virtue of the offenses charged (See n. 1-4 supra), the predicates for such a prosecution have been established, and consequently, it would have this court hold that the Attorney General has the power to prosecute a criminal action wherein the offense of corrupt organizations might conceivably have been charged. The Commonwealth’s argument is insupportable.

The language of Section 205(a)(2) clearly and unambiguously grants the Attorney General the power to engage in prosecutions under 18 Pa.C.S. § 911. However, this grant of authority must be limited to its express terms. It cannot be expanded upon by this court acting on the mere speculation of the Commonwealth that the present action was one which could have involved a violation of 18 Pa.C.S. § 911.

We note that not only was the appellee not charged with corrupt organizations, but that the affidavit of probable cause in support of the arrest warrant makes no mention of this possibility. Moreover, the Commonwealth did not raise this argument until after the court order dismissing the informations, in its petition for reconsideration. We note that even at that point, the Commonwealth did not move to amend the informations to include a charge of corrupt organizations.

We find no merit in the Commonwealth’s argument that the prosecution below was sanctioned by the Commonwealth Attorneys Act.

The Commonwealth finally argues that the Commonwealth Attorneys Act authorized the investigation conducted by BCI. We will not address this issue since it is superfluous to our decision herein. Both the lower court and this court have decided this case on the basis that the Attorney General lacked the authority to prosecute the action. The investigation by BCI is irrelevant.

We hold, therefore, that the information signed by the deputy attorney general is defective on its face because it was signed by a person who had no authority to prosecute the case. We recall the words of Justice Musmanno, who stated: “The signature might just as well have been that of a strolling tourist trying out his penmanship on a piece of paper in the courthouse. . . . ” Commonwealth v. Fudeman, supra, 396 Pa. at 255, 152 A.2d at 438. Consequently, dismissal of the informations was proper. The order of the lower court is affirmed.

Order affirmed.

SPAETH, President Judge, files concurring opinion.

WICKERSHAM, J., files dissenting statement.

SPAETH, President Judge,

concurring:

I join the majority’s opinion, which I admire, and write separately only to comment a bit more fully on why the order in question is final and therefore appealable.

Appellee argues that the order is interlocutory because, not only has the Commonwealth not been put “out of court”, it is still in court, prosecuting appellee. The difficulty with this argument is that it rests upon too literal a reading of the term “out of court.”

As we have explained,

... the phrase “out of court” must not be interpreted literally; it is not synonymous with “final.” In Commonwealth v. Orsatti, 448 Pa. 72, 75-76, 292 A.2d 313, 315 (1972), the Supreme Court in refusing to quash an appeal, said: “[W]e do not mean to suggest that a final judgment on the original issue raised by the complaint could not have been awaited by the defendants or that, upon appealing from such final judgment, the action of the court below, .... could not then have been assigned for error. But, obviously, such a course would not have afforded expeditious procedure for the ultimate disposition of the entire controversy,” quoting Broido v. Kinneman, 375 Pa. 568, 569, 101 A.2d 647, 648 (1954). See also, Posternack v. American Casualty Co., 421 Pa. 21, 218 A.2d 350 (1966); Pellegrine v. Home Ins. Co., 200 Pa.Superior Ct. 48, 186 A.2d 662 (1962). It is therefore plain that in deciding whether an order is “final,” one must do more than ask only whether the appellant is “out of court;” one must also ask whether, even if the appellant is still in court, the order is in its “practical aspects,” Bell v. Beneficial Consumer Discount, [465 Pa. 225, 348 A.2d [734] 735 (1975) ], sufficiently final to make it appealable. Gordon v. Gordon, 293 Pa.Super. 491, 499-500, 439 A.2d 683, 687 (1983) (en banc).

Thus, “[w]hether an order is final and appealable cannot necessarily be ascertained from the face of the decree alone, nor simply from the technical effect of the adjudication. The finality of an .order is a judicial conclusion which can be reached only after an examination of its ramifications [,] ... [and] a finding of finality must be the result of a practical rather than a technical construction.” Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975), citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

Consistent with this analysis, a variety of orders have been held to be final and appealable even though they did not literally put a litigant “out of court.” See, e.g., T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977) (where order dismissing complaint with prejudice did not put litigant out of court because counter-claim had been filed, order held final because it had “practical ramification [of] ... completely depriving] the litigant of his day in court so far as his claim is concerned.”); Commonwealth v. Orsatti, 448 Pa. 72, 76, 292 A.2d 313, 315 (1972) (where order dismissing preliminary objections with leave to amend complaint had practical effect of denying litigant an opportunity to litigate claim to damages, order held final because “as to the [money that Orsatti was precluded from claiming, he] was put out of court.”); Bell v. Beneficial Consumer Discount Co., supra 465 Pa. at 229, 348 A.2d at 736 (order denying class certification possesses sufficiently practical aspects of finality to be appealable even though order may leave named plaintiff in court and does not alter cause of action.); Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982) (en banc) (order denying estate ability to collect work-loss benefits under No-Fault Act, but allowing leave to amend complaint to seek other benefits under Act, held final because estate was “out of court” as far as work-loss benefits were concerned); Gordon v. Gordon, supra (order denying wife’s application to proceed under new Divorce Code held final, even though it left her free to pursue the action under old law, because practical effect of order was to put her out of court regarding claims allowable only under Code.)

Here, the Commonwealth, through the Office of the Attorney General, attempted to prosecute appellee under the authority of the Commonwealth Attorneys Act, 71 Pa.C.S. § 732-205(a)(l), (2). The trial court’s order dismissing the information provides:

AND NOW, TO WIT, this 1st day of December, 1982, after hearing, and on consideration of the defendant’s petition, the information is dismissed, it appearing that the Office of the Attorney General of Pennsylvania does not have the power to investigate or prosecute the alleged criminal offense.

This order certainly puts the Commonwealth “out of court” regarding its claim of statutory authority under 71 Pa.C.S. 732-205(a)(l) and (2). Moreover, were we to hold the order to be interlocutory, the practical effect would be to deny the Commonwealth the opportunity to litigate the merits of its claim to such authority, for by the terms of the order, only a local district attorney may pursue this prosecution. See Brennan v. General Accident Fire & Life Assurance Corp., 307 Pa.Super. 288, 291, 453 A.2d 356, 357 (1982) (“Sometimes an order will not literally put the appellant out of court but still it will be appealable because as a practical matter the appellant will be unable to present his claim.”) Such a result would not further the underlying policy of the finality rule of preventing piecemeal litigation and promoting judicial economy, see Gordon v. Gordon, supra, for it would only force the Commonwealth to litigate this issue again.

Accordingly, since the Commonwealth is, for all practical purposes, put “out of court” by the trial court’s order regarding its claim under the Commonwealth Attorneys Act, I conclude that the order is final under Pa.R.A.P. 341(c).

WICKERSHAM, Judge,

dissenting:

I would reverse the lower court which granted a petition filed by appellee Bruce Carsia quashing the criminal information. As the Attorney General argued:

The Attorney General, as chief law enforcement officer of the Commonwealth, had the authority to prosecute Bruce Carsia, an attorney at law, for attempting to bribe two police officers and fix a preliminary hearing. The prosecutorial and investigative powers of the Attorney General as determined by decisions of the Pennsylvania Supreme Court, are broad and vast. The lower court erred by concluding otherwise and by quashing the criminal informations filed by the Attorney General.
The Attorney General was authorized to investigate and prosecute Carsia by virtue of the Commonwealth Attorneys Act. Carsia’s actions of trying to fix a preliminary hearing was an attempt to influence or benefit from the influencing of a state official or employee. Additionally, Carsia’s actions amount to a violation of 18 Pa.C.S. § 911 (corrupt organizations). Finally as a licensed attorney at law, Carsia was a state official as that term is defined in the Commonwealth Attorneys Act.

Agents of the Attorney General’s Bureau of Criminal Investigation are vested with full police power of investigation and arrest. Therefore, the investigation and subsequent arrest of Carsia by Agents of the Bureau of Criminal Investigation was lawful.

Carsia had no standing to challenge whether the Attorney General, the chief law enforcement officer of the Commonwealth has the authority to prosecute him. Such a challenge rests with the district attorney. Furthermore, the district attorney agreed that the Attorney General should investigate and prosecute the case sub judice.

I agree.

      . 18 Pa.C.S. § 4701.

      . 18 Pa.C.S. § 5101.

      . 18 Pa.C.S. § 903

      . 18 Pa.C.S. § 902

      . The clients were to go before the district justice for a preliminary hearing on charges arising from the theft of merchandise valued at six thousand ($6,000.00) dollars from a local department store.

      . 16 P.S. § 9952.

      . The Act stated in pertinent part:
      The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:
      Section 1. In any investigation or proceeding whatsoever pending before any court of oyer and terminer and general jail delivery or before any court of quarter sessions in any county of this Commonwealth, the Attorney General of the Commonwealth may, at any state of the investigation or proceeding, in his absolute discretion, supersede and set aside the district attorney of the county.

      . The proposed bill drafted by the Task Force was filed initially as 5. B. 1595 and H.B. 2663 on September 11, 1978. It is not necessary for our present purpose to totally recount the legislative history of the Act; however, the relevant provisions of the proposed bill, Section 205, Criminal Prosecutions, and Section 206, Criminal Investigations, were substantially the same as those enacted as Sections 205 and 206 of the Commonwealth Attorneys Act. We note that amendments were made to Section 205(a)(4) and (8), and to Section 206(b). The amendments, however, do not affect our reasoning or our result.

      . § 732-205. Criminal prosecutions.
      (a) Prosecutions. — The Attorney General shall have the power to prosecute in any county criminal court the following cases:
      (1) Criminal charges against State officials or employees affecting the performance of their public duties or the maintenance of the public trust and criminal charges against persons attempting to influence such State officials or employees or benefit from such influence or attempt to influence.
      (2) Criminal charges involving corrupt organizations as provided for in 18 Pa.C.S. § 911 (relating to corrupt organizations).
      (3) Upon the request of a district attorney who lacks the resources to conduct an adequate investigation or the prosecution of the criminal case or matter or who represents that there is the potential for an actual or apparent conflict of interest on the part of the district attorney or his office.
      (4) The Attorney General may petition the court having jurisdiction over any criminal proceeding to permit the Attorney General to supersede the district attorney in order to prosecute a criminal action or to institute criminal proceedings. Upon the filing of the petition, the president judge assigned shall hear the matter within 30 days after appointment and make a determination as to whether to allow supersession within 60 days after the hearing. The district attorney shall be given notice of the hearing and may appear and oppose the granting of the petition, Supersession shall be ordered if the Attorney General establishes by a preponderance of the evidence that the district attorney has failed or refused to prosecute and such failure or refusal constitutes abuse of discretion.
      (5) When the president judge in the district having jurisdiction of any criminal proceeding has reason to believe that the case is a proper one for the intervention of the Commonwealth, he shall request the Attorney General to represent the Commonwealth in the proceeding and to investigate charges and prosecute the defendant. If the Attorney General agrees that the case is a proper one for intervention, he shall file a petition with the court and proceed as provided in paragraph (4). If the Attorney General determines that the case is not a proper case for intervention, he shall notify the president judge accordingly.
      (6) Criminal charges investigated by and referred to him by a Commonwealth agency arising out of enforcement provisions of the state charging the agency with a duty to enforce its provision.
      (7) Indictments returned by an investigating grand jury obtained by the Attorney General.
      (8) Criminal Charges arising out of activities of the State Medical Fraud Control Unit as authorized by Article XIV (relating to fraud and abuse control, act of June 13, 1967 (P.L. 31, No. 21), known as the "Public Welfare Code,” 1 and the Federal law known as the "Medicare-medicaid Antifraud and Abuse Amendments.” 2
      (b) Concurrent jurisdiction to prosecute. — The Attorney General shall have the concurrent prosecutorial jurisdiction with the district attorney for cases arising under subsection (a)(1), (2) and (6) and may refer to the district attorney with his consent any violation or alleged violation of the criminal laws of the Commonwealth which may come to his notice.
      (c) Criminal appeals. — In any criminal action in which there is an appeal, the Attorney General may in his discretion, upon the request of the district attorney, prosecute the appeal; he may intervene in such other appeals as provided by law or rules of court.
      (d) Powers when prosecuting. — Whenever the Attorney General presents a criminal action, or appeal, he may employ such special deputies as are necessary for that purpose, such deputies shall take the oath of office and be clothed with all the powers and subject to all the liabilities imposed by law upon district attorneys, including the power to sign informations or indictments. Whenever the Attorney General intervenes in a criminal action, the costs incurred as a result of the intervention shall be paid by the Commonwealth. (Footnotes omitted)

      . § 6. Disqualification for offices of Governor, Lieutenant Governor and Attorney General.
      No member of Congress or person holding any office (except of attorney-at-law or in the National Guard or in a reserve component of the armed forces of the United States) under the United States or this Commonwealth shall exercise the office of Governor, Lieutenant Governor or Attorney General. (Emphasis added).

      . The cases appellant cites are not to the contrary. They simply stand for the proposition that when an order is not "in its 'practical aspects’ sufficiently final to make it appealable," Gordon v. Gordon, supra 293 Pa.Super. at 500, 439 A.2d at 687, citing Bell v. Beneficial Consumer Discount Co., supra, because some other procedure enables the litigant to be heard on the merits, then the general finality rule will render the order unappealable. See, e.g., Flanagan et al. v. United States, 465 U.S. 259, 104 S.Ct. 1051, 1055, 79 L.Ed.2d 288, 295 (1984) (order disqualifying counsel lacks “critical characteristics” that render pretrial order immediately appealable because, among other reasons, the claim “is in no danger of becoming moot upon conviction and sentence... .”); In Re Riggins, 435 Pa. 321, 254 A.2d 616 (court quashes Commonwealth appeal from order discharging appellant for failure to make out prima facie case because Commonwealth could rearrest and therefore was not out of court); Commonwealth v. Gore, 279 Pa.Super. 622, 421 A.2d 372 (1980) (court holds order refusing Commonwealth motion to amend information not appealable because Commonwealth could nolle pros and commence new prosecution.)

      . Brief for Appellant at 8-9.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    491 A.2d 252
    COMMONWEALTH of Pennsylvania v. John Douglas WHITE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1984.
    Filed April 4, 1985.

      Robert G. Yeatts, Assistant Public Defender, Mercer, for appellant.
    James P. Epstein, Assistant District Attorney, Mercer, for Commonwealth, appellee.
    Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
   TAMILIA, Judge:

Appellant was convicted by a jury of rape, incest, indecent assault, and simple assault, arising from a series of sexual assaults of his natural daughter. Post trial motions were timely filed and denied on May 3, 1983. Appellant was sentenced concurrently to 4 to 15 years for the rape conviction, 2V2 to 5 years for the incest conviction and 1 to 2 years on the indecent assault conviction. Appellant filed a motion to modify sentence on the grounds that the rape and incest offenses merge for sentencing purposes. This motion was denied on June 1, 1983, and the instant appeal followed. We affirm.

Appellant first contends that the lower court erred in imposing concurrent sentences for the offenses of rape and incest since both offenses arose out of a single act. Specifically, appellant contends that applying the “same transaction” test of Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981), the crimes of rape and incest must merge for sentencing purposes as they arose from a single act of intercourse. In support of this claim, appellant cites several cases where the offense of rape was deemed to have merged with other criminal offenses, such as indecent assault and statutory rape. See, e.g., Commonwealth v. Bryant, 247 Pa.Super. 460, 372 A.2d 917 (1977); Commonwealth v. Usher, 246 Pa.Super. 602, 371 A.2d 995 (1977). However, these cases can be distinguished from the matter before us as none of them specifically involve the merger of the crimes of rape and incest.

The test for determining whether one offense merges into another for purposes of sentencing is whether one crime necessarily involves the other. In order for one crime to necessarily involve the other, the essential elements of one must also be the essential elements of the other, (citations omitted)

Commonwealth v. Williams, 290 Pa.Super. 209, 215, 434 A.2d 717, 720 (1981). See also Commonwealth v. McCusker, 363 Pa. 450, 70 A.2d 273 (1950); Commonwealth ex rel. Mosczcynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941). Therefore, where one statutory provision requires proof of a fact which another does not, an act which is a violation of both provisions will constitute two separate offenses which do not merge. Commonwealth v. Tarver, 493 Pa. 320, 325, 426 A.2d 569, 572 (1981), quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). See also Commonwealth v. Staples, 324 Pa.Super. 296, 471 A.2d 847 (1984).

While our appellate courts have adopted the so-called “Blockburger” test for ascertaining legislative intent in merger/double jeopardy cases, this test is less than perfect.

Although the Blockburger test is simply stated, it is subject to more than one interpretation, depending on the statutes involved. When one of the two statutes involved is a necessarily lesser included offense of the other, application of the Blockburger test will always raise the presumption that the two statutes involve the ‘same offense.’ Problems arise, however, when one statute is not a lesser included offense of the other.

People v. Robideau, 419 Mich. 458, 471, 355 N.W.2d 592, 597 (1984) (abandoning Blockburger test and returning to “traditional” means of determining legislative intent). Since Blockburger has been adopted by our Supreme Court, we are bound to apply it to this case. However, we are cognizant of its limitations and mindful that the polestar of our analysis is to ascertain the legislative intent of the statutes at issue.

Applying this standard to the situation before us, we note that the crime of incest is defined in 18 Pa.C.S.A. § 4302 as follows:

§ 4302. Incest
A person is guilty of incest, a misdemeanor o.f the first degree, if he knowingly marries or cohabits or has sexual intercourse with an ancestor or descendant, a brother or sister of whole or half blood or an uncle, aunt, nephew or niece of the whole blood. The relationships referred to in this section include blood relationships without regard to legitimacy, and relationship of parent and child by adoption.

The crime of rape is defined in 18 Pa.C.S.A. § 3121 as follows:

§ 3121. Rape
A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
1) by forcible compulsion;
2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
3) who is unconscious; or
4) who is so mentally deranged or deficient that such person is incapable of consent.

Upon comparison of the above two criminal statutes, it becomes apparent that the rape statute requires proof of the elements of force, threat of force, unconsciousness or mental derangement, while the incest statute does not. Moreover, the incest statute requires kinship while the rape statute does not. Additionally, it is significant that these crimes are codified in different sections of the Crimes Code. Incest is codified in Chapter 43, which is titled “Offenses Against the Family”, while rape is codified in Chapter 31, which is titled “Sexual Offenses”, raising the implication that rape and incest constitute separate injuries to the peace and dignity of the Commonwealth and thus may be punished separately. Commonwealth v. Adams, 296 Pa.Super. 24, 28, 442 A.2d 277, 279 (1982). The incest statute protects children from parental or familial sexual abuse and lessens the chance of genetic defects while promoting the solidarity of the family unit. The rape statute, on the other hand, is intended to prohibit forcible, nonconsensual intercourse and applies to all victims.

In reviewing the doctrine of merger in this Commonwealth, we note that it has been traditionally applied to lesser included, constituent offenses which are codified in the same statute. See Commonwealth v. Martin, 316 Pa.Super. 190, 462 A.2d 859 (1983) (criminal conspiracy merges with attempted rape since both are inchoate crimes under Chapter 9 of the Crimes Code); Commonwealth v. Flynn, 314 Pa.Super. 162, 460 A.2d 816 (1983) (indecent assault merges with rape since both are sexual offenses under Chapter 31 of the Crimes Code; theft merges with burglary under Chapter 39); Commonwealth v. Smith, 313 Pa.Super. 138, 459 A.2d 777 (1983) (merger of several sexual offenses); Commonwealth v. Boykin, 276 Pa.Super. 56, 419 A.2d 92 (1980) (rape merges with involuntary deviate sexual intercourse). See also Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981). Since the crimes of rape and incest have different elements that do not necessarily involve one another, and protect different societal interests, we conclude that the lower court was correct in holding that they do not merge for sentencing purposes, even if one crime was committed during the perpetration of the other.

Appellant, citing Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), also argues that because his convictions for rape and incest arose from a single act of sexual intercourse, the imposition of duplicitous, albeit concurrent, sentences for these distinct crimes violates the double jeopardy clause of the United States Constitution. This claim has no merit because here, unlike the situation in Walker, which dealt with two mutually exclusive crimes (i.e., rape and statutory rape), the Commonwealth suffered two injuries from appellant’s single act in that appellant not only engaged in forcible intercourse with an individual who was not his spouse, but also engaged in intercourse with a descendant.

In Commonwealth v. Tarver, supra, our Supreme Court stated:

The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (a) protection against a second prosecution for the same offense after an acquittal; (b) protection against a second prosecution for the same offense after conviction; and (c) protection against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); U.S. v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). . . . The double jeopardy provision does not restrain the legislature in its role in defining crimes and fixing penalties.

Id., 493 Pa. at 324-325, 426 A.2d at 571-72. (emphasis added) Here, there is no double jeopardy violation as we have concluded that the same act of intercourse constitutes separate offenses, requiring separate punishments.

In Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982), our Supreme Court held that the imposition of concurrent sentences for rape and corruption of a minor arising from the same act of intercourse did not violate the double jeopardy clause. We find Norris to be persuasive authority as the crime of corruption of a minor, 18 Pa.C.S.A. § 6301, is very similar in its nature and purpose to incest. The fact that proof of incest rests on the element of kinship while corruption of minors requires proof of minority does not weaken our comparison since both offenses prohibit conduct where the perpetrator, through compulsion, takes advantage of the victim. Like incest, corruption of minors is codified in a separate chapter of the Crimes Code from rape, and both incest and corruption of minors emphasize the characteristics of the victim (i.e., the victim must be a relative or a minor), while rape does not. Since the crimes of rape and incest are not mutually exclusive and protect separate interests of the Commonwealth, we conclude that the imposition of concurrent sentences was proper. The facts in this case, discussed infra, disclose graphically why incest stands on its own as a distinct crime which has been universally condemned. To prevent the compulsion imposed by a family member on another to engage in sexual conduct, even if consensual, the crime of incest merits a discreet punishment.

Appellant next contends that the lower court abused its discretion in imposing a sentence of 4 to 15 years for the offense of rape. Specifically, the appellant claims that the sentence was excessive when viewed commensurately with the nature of the offense, the protection of the public and the rehabilitative needs of the appellant.

It is well settled that Pennsylvania trial judges are vested with broad sentencing discretion with which the appellate courts will not interfere absent manifest abuse. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Black, 321 Pa.Super. 44, 467 A.2d 884 (1983). In order to constitute an abuse of discretion, a sentence must either exceed the statutory limits or be so manifestly excessive as to constitute an abuse of discretion. Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983); Commonwealth v. Scarborough, 313 Pa.Super. 521, 460 A.2d 310 (1983). “A trial judge is required to state on the record his reasons for the particular sentence imposed and these articulated reasons should reflect the judge’s consideration of the sentencing code, the circumstances of the offense, and the character of the offender.” Commonwealth v. Kane, 315 Pa.Super. 212, 222, 461 A.2d 1246, 1250-51 (1983) (footnote omitted). The statement of the court at the sentencing proceedings need not specifically cite or include the language of the sentencing code; it need only demonstrate that the court has considered the factors specified in the code. Id., 315 Pa.Superior Ct. at. 221, 461 A.2d at 1251; Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982).

In the instant case, the sentence imposed, while rigorous, is within the statutory limits. .After considering the appellant’s past history of sexually abusing and beating his children, his prior criminal record and the recommendation of the Children and Youth Services counselor, the sentencing judge concluded that appellant should be incarcerated in order to both protect his family and further his rehabilitation. Moreover, the sentencing judge thoroughly set forth his reasoning on the record as required by Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), and its progeny. Accordingly, we conclude that the sentence imposed was not excessive and there was no abuse of discretion.

Finally, appellant contends that the evidence supporting his convictions of rape and incest was insufficient and contrary to the evidence and/or the weight of the evidence so as to require a new trial.

In determining the sufficiency of the evidence, ‘we view the entire record in the light most favorable to the Commonwealth, and drawing all reasonable inferences therefrom favorable to the Commonwealth, determine whether there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.’ Commonwealth v. Pronkoskie, 498 Pa. 245, 248, 445 A.2d 1203, 1204 (1982). See also Commonwealth v. Davis, 308 Pa.Super. 204, 216, 454 A.2d 92, 98 (1982); Commonwealth v. Price, 306 Pa.Super. 507, 511, 452 A.2d 840, 842 (1982). ‘[I]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The fact finder is free to believe all, part or none of the evidence.’ Commonwealth v. Nunez, 312 Pa.Super. 584, 586, 459 A.2d 376, 377 (1983), quoting Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).

Commonwealth v. Henry, 323 Pa.Super. 260, 262-263, 470 A.2d 581, 582 (1983). See also Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984).

Applying the above standard to the instant case, we find that Marissa Diane White, age 20, a freshman student at Penn State University, was the natural daughter of appellant. In November, 1981, Marissa lived in the family home, a two story, four bedroom apartment, along with her seven younger brothers and sisters. When Marissa was 14 to 15 years of age, the appellant, who was head of the household, began attempting to touch her breasts and genital areas. These actions were accompanied by threats of violence. As Marissa grew older, appellant proposed to engage in sexual intercourse with her. When Marissa reached her late teens, the frequency of appellant’s sexual propositions increased.

The record discloses that the appellant, through beatings and threats thereof, forced the victim to engage in sexual intercourse and that the victim never voluntarily consented. At the age of sixteen, Marissa became impregnated by the appellant, who subsequently helped her obtain an abortion. On November 5, 1981, the appellant forced the victim to engage in sexual intercourse by beating her with a fan belt. Additionally, on November 25, 1981, the appellant fondled Marissa’s breasts without her consent. The victim, on at least one occasion, reported this activity to her mother, who failed to take any effective action. Due to the nature of the crimes and the father-daughter relationship, Marissa never reported these incidents to anyone else. At trial, the appellant did not testify in his own behalf; however, the testimony of his wife contradicted Marissa’s testimony regarding the time when Marissa first complained to her of the appellant’s conduct.

Viewing the above evidence in the light most favorable to the Commonwealth, we find that there was sufficient evidence to sustain the jury’s verdict beyond a reasonable doubt. Therefore, appellant’s claim that the evidence was insufficient is dismissed.

As stated above, appellant also contends that his convictions were not supported by the evidence and/or the weight of the evidence in that the jury failed to accept the testimony of the appellant and his supporting witnesses. We conclude that this claim is without merit and agree with the lower court’s finding that the testimony of the victim was not so incredible or so unreliable as to justify the granting of a new trial. It is well settled that even the uncorroborated testimony of a victim, if believed by the trier of facts, is sufficient to support a conviction despite contrary evidence from defense witnesses. Commonwealth v. Stone, 284 Pa.Super. 364, 425 A.2d 1145 (1981). In the case before us, the jury could have properly based their determination on Marissa’s testimony alone.

Accordingly, we affirm the judgment of sentence.

      . 18 Pa.C.S.A. § 3121(1), (2).

      . 18 Pa.C.S.A. § 4302.

      . 18 Pa.C.S.A. § 3126(1).

      . 18 Pa.C.S.A. § 2701(a)(1).

      . The sentencing judge held that the indecent assault conviction did not merge with the rape or incest convictions since it arose out of a separate incident that occurred on November 25, 1981. There was no sentence imposed on appellant’s simple assault conviction as the sentencing judge found that it merged with his rape conviction because all three offenses occurred during the November 5, 1981 incident (S.T., May 5, 1983, 34-35).

      . We note that crimes which are not lesser included offenses and are not codified in the same statute merge under the felony-murder doctrine. See Commonwealth v. Fortune, 305 Pa.Super. 441, 451 A.2d 729 (1982) (merger of rape and second degree murder). Obviously, a felony-murder situation is distinguishable from the instant case.

      . This reasoning is followed in several other jurisdictions. See, e.g., McGee v. People, 160 Colo. 46, 413 P.2d 901 (1966); People v. Hawk, 36 Mich.App. 147, 193 N.W.2d 177 (1971); People v. Hopkins, 38 Misc.2d 459, 238 N.Y.S.2d 485 (1963); State v. Allen, 50 N.C.App. 173; 272 S.E.2d 785 (1980); State v. Harvell, 45 N.C.App. 243, 262 S.E.2d 850 (1980); Wood v. State, 72 Okla.Cr. 364, 116 P.2d 728 (1941). But see, e.g., People v. Bales, 189 Cal.App.2d 694, 11 Cal.Rptr. 639 (1961). See also Annot., 76 A.L.R.2d 484 (1961).

      . We note that this case is not subject to the sentencing guidelines, effective July 22, 1982, see 204 Pa.Code § 303.1 et seq., 42 Pa.C.S. § 9721.

      . 18 Pa.C.S. § 1103(1) provides a 20 year maximum sentence for a felony of the first degree (i.e., rape).


author: CERCONE, Judge:

text:
    491 A.2d 258
    COMMONWEALTH of Pennsylvania v. William C. MUELLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 30, 1984.
    Filed April 4, 1985.

      Joseph S. Sabadish, Assistant Public Defender, Pittsburgh, for appellant.
    Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before JOHNSON, CERCONE and HESTER, JJ.
   CERCONE, Judge:

Appellant, William C. Mueller, was found guilty in a jury trial on March 2, 1982 of third degree murder and violation of the Uniform Firearms Act. On December 14, 1982, he was sentenced to a term of ten to twenty years imprisonment and a consecutive term of imprisonment of two and one-half to five years.

On March 12, 1982, counsel for appellant filed a Motion for New Trial/Arrest of Judgment. A brief in support of said Motion was filed on July 15, 1982 in which appellant requested leave to assert such additional reasons in support of the motion as might be revealed from a review of the trial transcript. The Commonwealth’s Brief in Opposition to defendant’s Motion was filed on November 19, 1982 and the Motion was denied by Order on that same date.

Following the judgment of sentence, the lower court entered an order granting appellant’s trial counsel leave of court to withdraw his appearance and appointing the Office of the Public Defender to represent defendant on appeal. Nonetheless, on January 3, 1983, appellant' filed a pro se Notice of Appeal and a Motion to Proceed in Forma Pauper-is in which he requested court appointed counsel. On January 12, 1983, the Office of the Public Defender filed a Notice of Appeal. On January 5, 1983, the trial judge ordered appellant to file a brief and concise statement of matters to be complained of on appeal, pursuant to Rule 1925(b), Pennsylvania Rules of Appellate Procedure. On January 26, 1983,. the Public Defender’s Office filed a Petition for Extension of Time for filing aforesaid brief averring that the trial transcripts had not yet been transcribed and filed by the court reporters. The lower court granted that request, ordering an extension until ten days after the transcripts were filed.

On March 14, 1983, the trial judge filed a one page Opinion noting appellant’s failure to comply with his earlier order. He further noted that he had made an independent examination of the record, but was unable to determine the exact nature of appellant’s claims on appeal and that, therefore, he was unable to discuss them.

Thereafter, pursuant to appellant’s request, the Public Defender petitioned this court to withdraw as counsel on April 22, 1983. That petition was denied.

On August 4, 1983, the Office of the Public Defender filed a Concise Statement of Matters Complained of Upon Appeal and on November 7, 1983 filed a brief to this court on behalf of the appellant.

On November 9, 1983, the Public Defender’s Office filed a second petition to withdraw. It was granted on January 12, 1984. The matter was remanded to the Court of Common Pleas of Allegheny County where present counsel was appointed, entered his appearance, and filed a brief on behalf of appellant.

Appellant raises ten issues on appeal. However, as we are remanding this case to the trial court for further disposition consistent with this opinion, we need not decide all of the issues raised at this time. Appellant’s tenth issue on appeal is whether “[t]he trial court erred in filing a boiler plate, one page, form opinion, which failed to address itself to the issues raised in post-trial motions by privately retained counsel and which incorrectly cited the alleged failure of the Public Defender’s Office to comply with Pa.R.A.P. 1925(b) as authority for its action?” Brief for appellant at 46.

The procedural issue we must decide is whether we should exercise the discretion given us by Rule 1925(b) to hold that by his failure to file a statement of matters complained of by the date set by the lower court, appellant has waived the arguments he now makes to us. See Commonwealth v. Silver, 499 Pa. 228, 238, 452 A.2d 1328, 1333 (1982) (“waiver provision of Rule 1925(b) is clearly discretionary” and “is properly invoked only where failure to file a statement or omission from a statement of issues raised on appeal defeats effective appellate review”). The discretion given by this rule is equitable in nature and must be exercised with great care.

In deciding whether to hold an objection waived, we must examine the failure to comply with Rule 1925 in the context of the entire case. Commonwealth v. Johnson, 309 Pa.Super.Ct. 367, 371, 455 A.2d 654, 656 (1982). We must always ask how serious was the failure. We must balance the failure to comply against the purpose served by the rule. Id. The purpose of the rule is to provide the appellate court with the lower court’s reasoning in support of the order on appeal. To further that purpose, subsection (b) allows the lower court to request further delineation or explanation of issues raised by the appellant to enable it to respond to those issues.

All of the issues raised in the appeal sub judice had been previously raised by the appellant in his Motion for a New Trial/Arrest of Judgment with the exception of those alleging ineffective assistance of counsel and prosecutorial misconduct. We find that appellant’s claim of prosecutorial misconduct is waived as it was not preserved by a timely post-trial motion. Appellant’s claims of ineffective assistance of counsel are not waived as we do not expect trial counsel to raise his own ineffectiveness in post-trial motions.

Based on all the facts and circumstances in this case, it would be inequitable for us to find that appellant had waived the remaining issues before us. The case here is very serious. A sentence of ten to twenty years has been imposed. A denial of appellant’s claims under these circumstances would be unconscionable. Furthermore, it appears that appellate counsel’s failure to strictly comply with the lower court’s order was influenced by a variety of other factors involved. As previously mentioned, most of the issues currently on appeal had been previously raised and briefed before the trial court in a motion for new trial. While it is perfectly proper for that court to grant or deny such motion by way of order, an opinion in support of that order is required when the lower court receives a notice of appeal. Commonwealth v. Koch, 288 Pa.Super.Ct. 290, 296, 431 A.2d 1052 (1981). We recognize the fact that appellant’s Notice of Appeal did not specifically state that the same issues previously raised were on appeal and we do not condone the Public Defender’s failure to strictly comply with the lower court’s order. On the other hand, these facts undermine the lower court’s refusal to prepare an opinion explaining its reasoning for such order stating, “[we] are uncertain as to the basis of the appeal. We have made an independent examination of the record but are unable to assume or presume the nature of appellant’s objections and are, therefore, unable to discuss them.” Slip op. at 1.

The record discloses other facts which bear upon the extent of the appellant’s failure to comply with Rule 1925(b). The appellant’s trial counsel was granted leave to withdraw as counsel after post-trial motions were disposed of and the public defender’s office was appointed to represent appellant on appeal. It became apparent almost immediately that appellant was not satisfied with the public defender’s professional services when he filed a pro se Notice of Appeal. Finally, we note that there were only twelve working days between the day all transcripts were filed and the day the lower court filed its one page opinion noting appellant’s failure to comply with his Rule 1925 order. Based on the very serious nature of the verdict and sentence, that is hardly sufficient time for the public defender to sift through the hundreds of pages of transcript and prepare a statement of issues on appeal.

Based on all of these circumstances, we think that the appellant has the right to a full discussion of the issues on appeal. However, the case is not ripe for appellate review. This case has been submitted to us for decision. We have neither the benefit of oral argument at trial nor any opinion from the trial court discussing the issues presented. Many issues on appeal require either a finding of fact or challenge the discretion of the trial court. Without that court’s discussion we would be forced to exceed our scope of review in order to dispose of these issues.

Accordingly, we hereby remand this case to the trial court with directions that an opinion be promptly prepared and returned to us pursuant to Pa.R.A.P. 1925. Jurisdiction is not relinquished.

      . Appellant’s petition to proceed in forma pauperis was granted by Order of this court on January 23, 1983.

      . Rule 1925. Opinion in Support of Order.
      (a) General rule. Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, or for the rulings or other matters complained of, or shall specify in writing the place in the record where such reasons may be found.
      (b) Direction to file statement of matters complained of. If the lower court is uncertain as to the basis for the appeal, the lower court may by order direct the appellant forthwith to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

      . Upon review of the record, we note that the trial transcripts had been filed with the Clerk of Courts prior to January 24, 1983 but that the transcript of the Sentencing hearing was not filed until February 23, 1983.

      . Note Commonwealth v. Hicks, 328 Pa.Super.Ct. 233, 476 A.2d 978 (1984), in which this court followed the same procedure due to the complicated and discretionary nature of the numerous issues on appeal.


author: WICKERSHAM, Judge:

text:
    491 A.2d 262
    Helen V. WILSON, Appellant v. Daniel S. JONES.
    Superior Court of Pennsylvania.
    Argued September 18, 1984.
    Filed March 22, 1985.
    Petition for Allowance of Appeal Denied Sept. 16, 1985.

      Arthur D. Weeks, York, for appellant.
    Frank B. Boyle, York, for appellee.
    Before WICKERSHAM, WATKINS and HESTER, JJ.
   WICKERSHAM, Judge:

Helen Viola Wilson appeals from the order of the Court of Common Pleas of York County denying her motions for new trial and for additur.

Plaintiff-appellant Wilson brought this action against defendant-appellee Jones for injuries and damages she suffered as a result of a motor vehicle accident. Appellee admitted liability for the accident; thus, the jury trial held on February 16-17, 1983 was limited to the issue of damages. The jury awarded appellant $10,000.00 for pain and suffering, $10,000.00 for past lost earnings, $7,200.00 for future lost earnings, and $1,183.12 for damages to her vehicle. The lower court then molded the verdict by deducting the $15,000.00 work loss threshold under the Pennsylvania No-fault Insurance Act from $17,200.00, the total lost earnings awarded. This resulted in a $2,200.00 figure for wage loss and a total award of $13,383.12. Appellant filed motions for a new trial and for additur, which the lower court subsequently denied. This appeal followed.

Appellant presents the following issues for our consideration:

A. Whether the jury should have been advised by appellant’s counsel and the trial court that the amount received by plaintiff for work loss benefits under the No-fault Motor Vehicle Insurance Act [was] to be deducted by the jury from any award it would make for lost earnings to the date of trial?
B. Whether appellant was entitled to recover past and future costs of patent medicines?
C. Whether the trial court should have instructed the jury that the mandatory retirement age was seventy (70) years?
D. Whether the verdict was adequate in light of the credible evidence?
E. Whether the trial court molded the verdict in accordance with the law?
F. Whether the witnesses to the accident should have been allowed to testify?

Brief for Appellant at 2.

After making an independent review of the record and studying the briefs of counsel, and having had the benefit of oral argument, we find that the opinion of the Honorable Joseph E. Erb adequately addresses appellant’s issues B, C, D, and F. These issues are meritless and we need not discuss them further. We agree with appellant, however, that the trial court erred in molding the verdict. Thus, we will discuss appellant’s issues A and E.

First, appellant argues that the jury, rather than the court, should have molded the verdict. That is, appellant proposes that the jury should have been informed about the amount of no-fault work loss benefits appellant had actually received and further, that the court should have instructed the jury to deduct that amount from its award for lost earnings incurred to the date of trial. While we agree that this method may be a viable alternative to that used in the instant case, we cannot say that the lower court erred in choosing to mold the verdict itself. In Williams v. Dulaney, 331 Pa.Super. 373, 480 A.2d 1080 (1984), the lower court “felt it was more appropriate for the court to reduce the jury award by that amount, rather than instruct the jury that they should do so, due to the confusion element.” Id., 331 Pa.Superior Ct. at 385 n. 11, 480 A.2d at 1087 n. 11. On appeal we refused to find fault with the lower court’s decision to mold the verdict itself, rather than instruct the jury to do so.

In his opinion in the instant case, Judge Erb notes that he followed the procedure used by the lower court in Williams v. Dulaney, supra (96 York Legal Record 61 (1982)). Thus, he too felt that it would be less confusing and more appropriate for the court to reduce the jury award by the amount of no-fault work loss benefits, rather than have the jury do it. As in Williams v. Dulaney, supra, we refuse to find that the lower court in the instant case erred in choosing to mold the verdict itself, rather than instructing the jury to do so.

Appellant further contends that the lower court erred in deducting $15,000.00 from the total wage loss award of $17,200.00 because (1) she had not received the full $15,000.00 wage loss benefit available under the No-fault Act, and (2) the no-fault benefits should not have been set off against the total wage loss awarded, but rather, should have been deducted from past wage loss only. We agree with both contentions.

In Williams v. Dulaney, supra, we held that only the amount of wage loss for which the insured is compensated by her no-fault carrier should be deducted from the jury award. Unfortunately, in the instant case, there is no evidence of record indicating the amount of no-fault work loss benefits received by appellant. Thus, we must remand to give the lower court the opportunity to determine the amount of no-fault wage loss benefits recovered by appellant.

Appellant further argues that the no-fault benefits should not be deducted from the total amount awarded for wage loss. Instantly, the jury awarded appellant $10,-000.00 for “past lost earnings” and $7,200.00 for “future lost earnings.” Clearly, any amount of wage loss benefits appellant received from her no-fault carrier can be deducted from the award for “past lost earnings.” The issue in this case, however, is whether the no-fault benefits recovered by appellant can be set off against the $7,200.00 awarded for “future lost earnings.” In Williams v. Dulaney, supra, this court discussed the difference between future wage loss and loss of future earning capacity. We found that “the No-Fault Act does not provide basic loss benefits for lost earning capacity, but only for recovery of wages actually lost.” Williams v. Dulaney, supra, 331 Pa.Superior Ct. at 386, 480 A.2d at 1087.

Instantly, we must decide whether the award for “future lost earnings” represented damages for wages which would actually be lost or for loss of future earning capacity. The term “future lost earnings” itself does not identify exactly what the jury intended to award to appellant. We believe, however, that the judge’s instruction to the jury on this element of damages clarifies the nature and purpose of the award. Judge Erb first charged the jury as to non-economic damages. Next, he defined past lost earnings. Judge Erb then gave the following instruction:

Also, in the future, if, by reason of this injury, she is unable to earn an amount that would have been greater than she is actually earning, again, you can give her the difference between what she is actually earning at the present time and what she would have earned but for the fact that she was injured. And, again, that is a matter that can be calculated in dollars and cents from the information as you find it to be factually.

N.T. at 88.

We interpret the foregoing to be an instruction as to loss of future earning capacity. Since this was the only instruction on this point of law, we must assume that the jury’s award of $7,200.00 was to compensate appellant for loss of future earning capacity rather than for future wages actually lost. Williams v. Dulaney, supra, held that no-fault work loss benefits should not be deducted from an award for loss of earning capacity. Thus, the court erred in deducting $5,000.00 from the $7,200.00 award for “future lost earnings.”

Thus, we remand to the lower court to determine the amount of no-fault wage loss benefits recovered by appellant. This amount should be deducted from the $10,000.00 award for “past lost earnings.” There should be no further deduction from the $7,200.00 award for loss of future earning capacity.

Affirmed in part and reversed in part. Remanded to the lower court for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . Act of July 19, 1974, P.L. 489, No. 176, art. II, § 202, 40 P.S. § 1009.202(b)(2).

      . The trials in both the instant case and Williams v. Dulaney were held before the Court of Common Pleas of York County.

      . We note that, in her motion for new trial, appellant states that she received only $11,412.26 in no-fault wage loss benefits. Since this figure was not entered into evidence, was not conceded to by appellee, and was not discussed by the lower court, we cannot accept it. Cf. Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985).