text:
    446 A.2d 948
    COMMONWEALTH of Pennsylvania v. Robert WOOD, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 29, 1982.
    Filed June 11, 1982.

      Donald Nasshorn, Assistant Public Defender, Doylestown, for appellant.
    Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   WIEAND, Judge:

In this appeal we are asked to determine whether the record is sufficient to support an order directing appellant to make restitution to the victims of three burglaries. We conclude that the record is sufficient and affirm the order of the sentencing court.

Robert Wood entered pleas of guilty to informations charging him with three burglaries and was sentenced to serve a term of imprisonment. A hearing to determine the amount of restitution was deferred until after Wood had been released on parole. At that hearing, the victims testified to the losses which they had sustained as a result of the burglaries, and Wood presented evidence regarding his earnings and expenses. At the conclusion of the hearing, the court ordered as follows:

THE COURT: In the case of Kenneth Pietrak I order and direct you make restitution in the sum of nine hundred five dollars.
In the case of Dorothy West I order and direct that you make restitution in the sum of seven hundred seventy-five dollars.
In the case of Charles Sampsel I order and direct that you make restitution in the sum of two thousand one hundred forty-nine dollars.
Anything else?
MR. SCHNEIDER: What will be the manner of payment, one lump sum?
THE COURT: The manner of payment can be worked out between himself and his parole officer, in one lump sum or in periodic payments over the time of his parole.

(Sentencing Hearing N.T. 27-28). Wood thereafter filed in the trial court a petition to reconsider. This was denied. On direct appeal from the order of restitution, appellant argues that the court erred in imposing a sentence of restitution “where there was no evidence that [appellant] could or would ever be able to pay it.” He also contends that it was error to delegate to appellant’s parole officer the responsibility for determining the manner in which restitution was to be paid.

An order requiring restitution is authorized by Section 1106 of the Crimes Code of December 6, 1972, 18 Pa.C.S. § 1106. It may be imposed either as a direct sentence or as a condition of probation or parole. In either event, the order of restitution must be supported by the record. Commonwealth v. Seminko, 297 Pa.Super. 418, 420-21, 443 A.2d 1192 (1982); Commonwealth v. Erb, 286 Pa.Super. 65, 81, 428 A.2d 574, 582 (1981); Commonwealth v. Fuqua, 267 Pa.Super. 504, 510, 407 A.2d 24, 27 (1979). Thus, it is incumbent upon a sentencing court, before it enters an order of restitution, to consider on the record (1) the amount of the loss suffered by a victim; (2) the fact that such loss was caused by conduct of the defendant; (3) that the amount awarded does not exceed the defendant’s ability to pay; and (4) the type of payment that will best serve the needs of the victim and the capabilities of the defendant. See 18 Pa.C.S. § 1106(c)(1). See also Commonwealth v. Seminko, supra 297 Pa.Super. at 421, 443 A.2d at 1193; Commonwealth v. Erb, supra 286 Pa.Super. at 81, 428 A.2d at 582; Commonwealth v. Fuqua, supra 267 Pa.Super. at 510, 407 A.2d at 27.

The purpose of a sentence of restitution and “the reason for its imposition, is the rehabilitative goal it serves by ‘impressing upon the offender the loss he has caused and his responsibility to repair that loss as far as it is possible to do so.’” Commonwealth v. Kerr, 298 Pa.Super. 257, 260, 444 A.2d 758, 760 (1982), quoting Commonwealth v. Erb, supra 286 Pa.Super. at 79, 428 A.2d at 581 and Commonwealth v. Fuqua, supra 267 Pa.Super. at 508, 407 A.2d at 26 (emphasis omitted and supplied). “If the amount of restitution imposed exceeds the defendant’s ability to pay, the rehabilitative purpose of the order is disserved, especially where the restitution payment is a condition of probation [or parole], for in such a case the defendant is told that he will not be imprisoned only if he somehow satisfies a condition he cannot hope to satisfy.” Commonwealth v. Fuqua, supra, 267 Pa.Super. at 509, 407 A.2d at 26 (footnote omitted).

In many instances, however, it will be necessary for a defendant to make substantial sacrifices in order to make restitution to the victims of his crimes. This is not an obstacle to an order requiring such restitution. Rather, where sacrifice is necessary, the probationer or parolee may learn to consider more carefully the consequences of his or her acts and thereby strengthen the offender’s sense of responsibility. Thus, an order of restitution may properly require additional or alternative employment, a reduction of expenses, and even a temporary change in lifestyle in order to achieve that sense of responsibility which signals effective rehabilitation. The true rehabilitative purpose of restitution is well served when a probationer or parolee is called upon to make reasonable sacrifices in order to compensate those who have sustained losses as a result of his criminal conduct. The rehabilitative goal is defeated only when the payments ordered by the court are so unreasonable in view of the defendant’s financial circumstances and ability to work that, despite good faith efforts, the defendant cannot hope to comply.

In the instant case, the amount of restitution ordered by the court is consistent with the losses sustained by the victims of the burglaries which appellant committed. It is also supported by evidence of appellant’s ability to make restitution. Although he was at one time a drug addict, appellant is now employed, is drug free, and has neither physical nor mental infirmity that would prevent gainful employment. He is of average intelligence and takes home in salary an amount which exceeds his fixed expenses by $55 per week. The fact that his wife, whom he married several days before the restitution hearing, was unemployed did not alter his ability to make restitution and was properly held not to defeat the court’s right to require the same. The order requiring appellant to make restitution, therefore, was proper.

Appellant also contends that it was error for the sentencing court to delegate discretion to the parole officer to determine the manner in which restitution payments were to be made. We agree that it is better practice for the sentencing court, rather than a probation officer, to determine the manner in which restitution is to be paid. See Commonwealth v. Seminko, supra. In the instant case, however, the court’s delegation of authority was so limited, and the parole officer’s discretion so narrowly defined that we are unable to find reason for remanding. Pursuant to the court’s directions, appellant either was to pay the ordered restitution in one lump-sum payment or in periodic payments over the time of his parole. In the latter event, the amount and frequency of the periodic payments were to be worked out to the satisfaction of appellant and the parole officer. There was no error in such a procedure.

The order is affirmed.

      . Section 1106 of the Crimes Code, 18 Pa.C.S. § 1106 provides, in part:
      § 1106. Restitution for injuries to person or property
      (a) General rule.—Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.
      (b) Condition of probation or parole.—Whenever restitution has been ordered pursuant to subsection (a) and the offender has been placed on probation or parole, his compliance with such order may be made a condition of such probation or parole.
      (c) Authority of sentencing court.—In determining whether to order restitution as a part of the sentence or as a condition of probation or parole, the court:
      (1) Shall consider the extent of injury suffered by the victim and such other matters as it deems appropriate.

        (2) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just, provided that the period of time during which the offender is ordered to make restitution shall not exceed the maximum term of imprisonment to which the offender could have been sentenced for the crime of which he was convicted.
      (3) May at any time alter or amend any order of restitution made pursuant to this section providing, however, that the court state its reasons and conclusions as a matter of record for any change or amendment to any previous order.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    446 A.2d 951
    COMMONWEALTH of Pennsylvania, Appellee, v. Prince A. GILLIARD, Appellant.
    Superior Court of Pennsylvania.
    Argued March 10, 1982.
    Filed June 11, 1982.
    Petition for Allowance of Appeal Denied Aug. 31, 1982.

      Stephen P. Gallagher, Philadelphia, for appellant.
    Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   CIRILLO, Judge:

This is a direct appeal following a conviction of murder in the second degree for which the appellant, Prince A. Gilliard, received a mandatory sentence of life imprisonment.

On July 29, 1980 at 11:30 P.M., police discovered the body of fifty-one year old Marshall Gibson, clad only in a bathrobe, in the fourth floor hallway of his apartment building at 237 South 48th Street in Philadelphia. He had been stabbed once inside the left shoulder blade with a 7% inch knife blade, sunk to its full depth. The appellant was arrested in Brunswick, Georgia on August 30, 1980 and charged with murder, voluntary manslaughter, involuntary manslaughter, possession of an instrument of crime, generally, and possession of an instrument of crime, concealed weapon.

In a post-arrest, signed statement which was admitted into evidence at trial, the appellant acknowledged that he took a stereo, television set, and other items from the apartment, but claimed that he killed the decedent in self-defense. The appellant alleged that he and the decedent had been drinking and that the stabbing was a reaction to the pulling of a gun by the decedent during an argument. The appellant subsequently filed a Motion to suppress this statement as well as certain identification evidence. After argument, this Motion was denied. On January 13,1981 the appellant was tried before the Honorable Theodore B. Smith, Jr. and a jury on the charge of murder. On January 20, 1981 the appellant was found guilty of murder in the second degree. The appellant then filed Motions in arrest of judgment and for a new trial. On May 27, 1981,. after hearing, the Motions were denied and Judge Smith sentenced the appellant to the mandated sentence of life imprisonment. This appeal now follows.

In seeking a new trial, the appellant has made numerous allegations of error on the part of the lower court. He contends, first of all, that the lower court erred in refusing his Motion for mistrial when. a Commonwealth witness, detective Miller, disclosed that the appellant had charges, other than the one he was tried on, pending against him at the time of his arrest in Georgia. On direct examination the detective was asked:

DISTRICT ATTORNEY: Now detective, on August 30, 1980, where did you take this defendant into custody?
WITNESS: He was in the Glynn County police department cell room.

The appellant’s counsel made no objection at this point. However, on cross-examination, the appellant’s attorney pursued the matter as follows:

DEFENSE COUNSEL: Now, Detective Miller, you testified on direct examination that you went to Glynn County, Georgia; is that right?
WITNESS: Yes, sir.
DEFENSE COUNSEL: And at that place is where you took the defendant, Prince Gilliard, under arrest?
WITNESS: Yes, sir.
DEFENSE COUNSEL: Now isn’t it true Detective Miller that he was in the Glynn County cell room as a result of your request to the Brunswick County police to detain him for you as a result of this warrant?
WITNESS: It was on several different charges that he was there, sir. Mine plus—

The witness’ answer was promptly cut off, thereby minimizing any prejudice as a result of the remark elicited by the appellant’s counsel. The trial judge also offered to give cautionary instructions, but the appellant declined for tactical reasons.

It is well settled that the defendant must assume the risk of his counsel’s questions and he cannot benefit on appeal when his own cross-examination elicited an unwelcome response. Commonwealth v. Hall, 264 Pa.Super. 261, 399 A.2d 767 (1979); Commonwealth v. Hill, 237 Pa.Super. 543, 353 A.2d 870 (1975). Also, the nature of the reference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required. Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977). We find that the witness’ answer was not elicited by the Commonwealth but rather was invited by the question posed by counsel for the appellant. Moreover, any prejudice to the appellant arising from the response was minimal. Therefore, we reject this argument of the appellant.

The appellant next contends that the lower court erred in permitting the medical examiner, Dr. Robert Catherman, to testify concerning the results of a toxicology report when he did not personally perform the laboratory tests involved.

The appellant claimed that he and the decedent had been drinking on the night of the incident. However, Dr. Cather-man testified, based upon a toxicology examination report, which was done as part of the decedent’s autopsy, that there was no alcohol in the decedent’s body at the time of death. Doctor Catherman had selected samples of the decedent’s blood, urine, stomach contents, liver and bile and then submitted them for laboratory examination as to alcohol content. From the examination a toxicology report was prepared and it was from this report that Dr. Catherman testified.

A medical witness may express opinion testimony in medical matters based, in part, on reports of others which are not in evidence but upon which the expert customarily relies in the practice of his profession. Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971). Since the witness was an acknowledged expert and the standardized procedure in this instance was performed at his discretion, we find that the testimony was permissible. See: Commonwealth v. Manning, 495 Pa. 652, 435 A.2d 1207 (1981); Commonwealth v. Seville, 266 Pa.Super. 587, 405 A.2d 1262 (1979). This argument of the appellant is, therefore, without merit.

The appellant next contends that the lower court erred in refusing to declare a mistrial after the prosecutor made a number of allegedly improper comments during his closing argument.

The prosecutor’s summation reviewed the Commonwealth’s own properly admitted evidence and demonstrated the inconsistencies with the appellant’s post-arrest statement. The district attorney was clearly entitled to do this. See: Commonwealth v. Clark, 280 Pa.Super. 1, 421 A.2d 374 (1980); Commonwealth v. Gunderman, 268 Pa.Super. 142, 407 A.2d 870 (1979).

In order to justify reversal, the language of the prosecutor must be such that its unavoidable effect would be to so prejudice the jury that they had a fixed hostility toward the defendant that prevented them from rendering a true verdict. Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979); See also: Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). The appellant claims, in particular, that the following statement, made by the district attorney, requires the granting of a mistrial:

Defense counsel would like you to lose sight of the fact, ladies and gentlemen, that this knife went eight inches into this deceased’s back. And I say this to you: If you want to show this defendant any mercy, you think of the mercy that he showed Mr. Gibson when he plunged . . .

Impropriety of prosecutorial summation does not always require the grant of a new trial. Commonwealth v. Linder, 284 Pa.Super. 327, 425 A.2d 1126 (1981). The effect of such remarks depends upon the atmosphere of the trial. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). We find that any prejudice to the appellant because of this remark was cured by the trial judge at the beginning of his charge, when he instructed the jurors as follows:

Divorce all passions or prejudices or emotions of sympathy or bias from your minds. Clear your minds of these emotions. They’re not evidence. Confine yourselves to the facts, the evidence in this case. Decide what the facts are, what happened, as best you can and then apply the law and reach a conclusion or a verdict in this case.

Therefore, we find this argument of the appellant to be without merit.

The appellant also contends that the trial court erred in not granting his demurrer to murder in the second degree and that the evidence was insufficient as a matter of law to sustain the verdict.

The test to be applied in ruling on either a demurrer or a claim that the evidence is insufficient to support a conviction is whether accepting as true the prosecution’s evidence and all reasonable inferences therefrom, it is sufficient to support a finding by the jury that the defendant is guilty beyond a reasonable doubt. Commonwealth v. Warren, 475 Pa. 31, 379 A.2d 561 (1977), Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976).

The Commonwealth’s evidence established that the appellant took the keys to Miss Thompson’s apartment; that he entered the apartment without permission; that he took her property; and that he stabbed the decedent with a knife from Miss Thompson’s kitchen. Also, the evidence established that the decedent’s body was found in the hallway near the burglarized apartment and the decedent was responsible for watching Miss Thompson’s apartment while she was away. Additionally, no alcohol or liquor bottles were found on the premises, nor did the autopsy reveal any alcohol in the decedent’s body at the time of death, and the only gun found in the apartment was a revolver lacking a trigger mechanism, which was found buried under a mattress. From this evidence, as well as the fact that the decedent was wearing only a bathrobe at the time of his death, the jury could properly infer that the decedent had interrupted the appellant while he was burglarizing the apartment and that the appellant killed him in the course of the burglary. Therefore, we reject this argument of the appellant.

Next, the appellant contends that the trial court erred in allowing evidence of the burglary and theft to be admitted at trial. This is clearly an erroneous contention. The burglary of Miss Thompson’s apartment was closely connected, both in time and place, to the murder of the building superintendent. To accept this argument of the appellant would preclude the Commonwealth from introducing evidence of the underlying felony in all prosecutions based on the theory of felony-murder. This is certainly not the law. Accordingly, we find this claim made by the appellant to be without merit.

The appellant further contends that the trial court erred in not allowing him to introduce the criminal record of the deceased.

The appellant sought to demonstrate the decedent’s alleged propensity for violence at the time of this incident by introducing evidence that the decedent had been convicted of aggravated assault and attempted rape in 1957, and burglary and impersonating a police officer in 1959. The probative value of evidence of convictions, offered to show violent propensities of a victim, depends on their being of the same nature as the offense on trial and not too distant in time, with the determination left to the sound discretion of the trial judge. Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971).

The decedent’s past convictions occurred more than twenty years prior to this incident and are much too remote to be relevant. Therefore, the trial court did not abuse its discretion in excluding this evidence.

The appellant’s other allegations of error are that: (1) the trial court erred in denying the appellant’s Motion to suppress the post-arrest statement as the appellant had a mental disorder making him incapable of voluntarily waiving his constitutional rights; (2) the trial judge indicated that in his opinion there was not sufficient legal provocation for a finding of voluntary manslaughter; (8) the trial judge improperly refused to charge the jury on justification; (4) the trial judge reviewed only the Commonwealth’s theory when giving additional instructions on the definition of second degree murder; and (5) the trial court erred in failing to charge the jury on involuntary manslaughter. After a careful and complete review of the record, we find these allegations of the appellant to be meritless.

Accordingly, we affirm the judgment of sentence of the Court below.

      . Act of December 6, 1972, P.L. 1482, No. 334 § 1, as amended by the Act of March 26, 1974, P.L. 213, No. 46 § 2; 18 Pa.C.S.A. § 1102(b).

      . Id., as amended by the Act of April 28, 1978, P.L. 84, No. 39 § 1; 18 Pa.C.S.A. § 2502.

      . Id.; 18 Pa.C.S.A. § 2503.

      . Id.; 18 Pa.C.S.A. § 2504.

      . Id.; 18 Pa.C.S.A. § 907(a).

      . Id.; 18 Pa.C.S.A. § 907(b).

      . This was the type of comment which could have been cured by appropriate instructions. In the case of Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162 (1981), the appellant asserted that the trial court erred in failing to declare a mistrial when a defense witness testified on cross-examination that the appellant had committed an unrelated crime. The witness, Ray Richardson, the 14 year old brother of the appellant, testified that his brother was last in his uncle’s house, the scene of the killing, “when he burglarized it.” The answer refers to the appellant’s October, 1977 burglary of his uncle’s house. The exchange at trial went as follows:
      BY MR. KING [the prosecutor]:
      Q. Mr. Richardson, before June 2nd, 1978, when was the last time you were inside of your Uncle Norman’s house?
      (Brief pause)
      A. I’d say about ...
      THE COURT: What’s the answer?
      THE WITNESS: I’d say January.
      BY MR. KING:
      Q. When was the last time your brother, Eugene, was in your Uncle Norman’s house before June the 2nd, 1978?
      MR. MERRIWEATHER: Objection.
      THE COURT: If you know. Overruled. Do you know when was the last time he was there?
      THE WITNESS: It was when he burglarized it.
      MR. MERRIWEATHER: Your Honor, may we see you at side bar, please.
      The trial court then gave a prompt and decisive instruction to the jury to disregard the testimony. The Supreme Court held that under the circumstances, the trial judge’s instruction to the jury was proper and if any prejudice resulted, it was insufficient for a mistrial. See also: Commonwealth v. Povish, 479 Pa. 179, 387 A.2d 1282 (1978).

      . See: Commonwealth v. Johnson, 496 Pa. 546, 437 A.2d 1175 (1981).

      . A Demurrer and a claim of insufficient evidence differ only with respect to the stage of the proceedings at which they are raised.
        Commonwealth v. Duncan, 473 Pa. 62, 66 n.2, 373 A.2d 1051 n.2 (1977); Commonwealth v. Niemetz, 282 Pa.Super. 431, 436 n.5, 422 A.2d 1369 n.5 (1980).

      . See; supra.; 18 Pa.C.S.A. § 2502(b); also, Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980).


author: CIRILLO, Judge: LIPEZ, Judge,

text:
    446 A.2d 956
    Grace GEE, Appellant, v. Edward CAFFARELLA, Jr. and Martin Reiter and Alex Glassman and Ambulance Corporation of America.
    Superior Court of Pennsylvania.
    Argued March 9, 1982.
    Filed June 11, 1982.

      James L. Womer, Philadelphia, for appellant.
    Robert Perna Corbin, Philadelphia, for appellees.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   CIRILLO, Judge:

This is an appeal from an order which opened but refused to strike a judgment entered by default. Appellant contends that it was error to open the judgment. Appellee argues that the default judgment was improperly entered and should have been stricken. We agree that the default judgment was improperly entered, and we will enter an order striking the judgment.

Appellant/plaintiff/Grace Gee commenced an action in trespass to recover damages for injuries sustained in an automobile accident which occurred on February 5, 1979. According to appellant’s complaint, filed February 2, 1981, appellant was a passenger, at the time of the accident, of an ambulance owned and operated by appellee/defendant/Ambulance Corp. of America. Appellee was not served with a copy of the complaint until April 15, 1981. On May 22,1981, at 1:17 p. m., an entry of appearance was filed on behalf of appellee. That same day, at 1:54 p. m., appellant filed a praecipe for the entry of a default judgment against appellee, for appellee’s failure to file an answer or entry of appearance. Default judgment was then entered by the Prothonotary.

Under Pennsylvania procedure, a defendant in a trespass action can avoid a default judgment merely by filing an entry of appearance. Willinger v. Mercy Catholic Medical Center of Southeastern Pennsylvania, Fitzgerald Mercy Div., 241 Pa.Super. 456, 362 A.2d 280 (1976), affirmed, 482 Pa. 441, 393 A.2d 1188 (1978). In the instant case, the record clearly demonstrates that the entry of appearance was filed with the prothonotary prior to the default judgment. Therefore, the default judgment was improperly entered.

Where a fatal defect in a default judgment appears on the face of the record, judgment is properly stricken. International Lands, Inc. v. Fineman, 285 Pa.Super. 548, 428 A.2d 181 (1981). Because appellant’s judgment is patently defective and must be stricken, we find it unnecessary to review the reasons given by the trial court for opening the judgment.

Default judgment is hereby stricken and the case remanded for further proceedings consistent with this opinion.

LIPEZ, J., files a concurring and dissenting'.’ opinion.

LIPEZ, Judge,

concurring and dissenting:

I would affirm the lower court’s order opening the judgment. While I agree that the judgment could have been stricken by the lower court for the reason given by the majority, the record on appeal does not justify it. Appellee neither filed a cross appeal, nor urged striking in its brief, contenting itself with arguing in support of the lower court’s action. Therefore the alternative motion it made in the court below to strike may be considered abandoned on appeal. See 9 Standard Pennsylvania Practice P. 339.

      . Jurisdiction is conferred on this court by Pa.R.A.P. § 311(a)(1).

      . Appellee’s petition was to open, set aside or strike the default judgment.

      . Appellee argued in its petition below and in its brief to this court that the improper entry of the default judgment was reason enough to open, set aside or strike the judgment.

      . The additional defendants are not involved in this appeal.

      . Both the entry of appearance and the praecipe to enter default judgment were time-stamped by the prothonotary on their face with the date and time of filing.


author: HOFFMAN, Judge:

text:
    446 A.2d 958
    COMMONWEALTH of Pennsylvania v. Davico L. CABEZA, Appellant.
    Superior Court of Pennsylvania.
    Argued March 3, 1982.
    Filed June 11, 1982.

      Norris E. Gelman, Philadelphia, for appellant.
    Garold Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that two of his character witnesses could not be impeached through the use of his prior arrests not resulting in convictions. We agree and, accordingly, reverse the judgment of sentence and remand for a new trial.

On February 25, 1979, appellant and his mother entered a tavern in West Philadelphia. Some time later, the mother took a gun from her purse and threatened to shoot a female patron. The mother pointed the gun and pulled the trigger, but the gun misfired. As the patron fainted and fell to the floor, the mother fired again, fatally wounding a barmaid who had been standing behind the intended victim. Appellant stood by the doorway throughout the encounter. At trial, one Commonwealth witness testified that appellant had importuned his mother to shoot the patron, while the remaining witnesses testified that appellant had said nothing. Appellant’s defense rested exclusively upon the testimony of four character witnesses. The Commonwealth cross-examined two of them concerning appellant’s two prior arrests that did not result in convictions. The jury found appellant guilty of murder in the first degree. Following the denial of post-trial motions, the lower court imposed the mandatory life sentence. Appellant was appointed new counsel and this appeal followed.

“It is a well established general rule that evidence of a criminal defendant’s prior arrests is inadmissible as tending to prove his disposition to commit crimes generally, or his commission of the specific crime for which he is then standing trial.” Commonwealth v. Little, 449 Pa. 28, 30, 295 A.2d 287, 289 (1972). Nonetheless, the rule had been that if a defendant introduced evidence of his own good character, the Commonwealth would be permitted to ask the character witness whether or not they had heard persons in the neighborhood attribute particular offenses to the defendant. Id., 449 Pa. at 31, 295 A.2d at 289; Commonwealth v. Jenkins, 413 Pa. 606, 607-08, 198 A.2d 497, 498 (1964). However, because “an arrest is equally consistent with either guilt or innocence,” our Supreme Court in Commonwealth v. Scott, 496 Pa. 188, 197, 436 A.2d 607, 612 (1981), unanimously “abrogated th[at] rule . . . even where [the prior arrests] pertained to the character trait vouched for on direct examination,” Commonwealth v. Fawcett, 297 Pa.Superior Ct. 379, 385, 443 A.2d 1172, 1175 (1982). In Scott, Chief Justice O’BRIEN observed:

Despite any cautionary instructions that the court may have given the jury, the undue prejudice to [the defendant] is obvious. On the one hand, the jury would have heard that [the defendant] had a reputation for being peaceful while on the other hand, the jury would also have heard that [the defendant] had been arrested on [other] charges.

496 Pa. at 197, 436 A.2d at 611-12. Thus, under Scott, to preserve a fair trial, the Commonwealth is not permitted to cross-examine defense character witnesses concerning a defendant’s prior arrests that did not result in conviction. Id., 496 Pa. at 197, 436 A.2d at 611. If Scott applies, appellant is clearly entitled to a new trial.

The Commonwealth argues first that appellant waived any objection to the impeachment by failing to object specifically. We disagree. The issue first arose during the cross-examination of appellant’s third witness:

[District Attorney]: Among those people with whom you discussed [appellant’s] reputation, have you ever heard them say that he had been arrested two times prior to this incident?
[Witness]: No.
[Defense Counsel]: Objection, Your Honor.
[The Court]: Objection noted on the record. Objection overruled.

(N.T. October 31, 1979, at 3.30). The issue recurred during cross-examination of appellant’s last witness:

[District Attorney]: Okay. Among those people with whom you discussed his reputation, have you ever heard them say that he had been arrested for aggravated assault in 1976?
[Defense Counsel]: Objection, Your Honor.
[The Court]: Objection sustained.
[District Attorney]: May I see you at sidebar, Judge?

(id. at 3.38). During the lengthy sidebar conference, appellant’s counsel explained that his objection was based, in part, upon the fact that appellant “doesn’t have a record[ ] [because] [h]e was discharged.” (id. at 3.41). The lower court ruled, however, over appellant’s objection that the Commonwealth could ask the witness whether “she knows he’s been arrested but not for what,” (id. at 3.44), whereupon the following transpired:

[District Attorney]: [A]mong those people with whom you discussed [appellant’s] reputation, have you ever heard them say that [appellant] had been arrested two times before this offense, once in 1976 and once in 1973?
[Defense Counsel]: Objection, Your Honor.
[The Court]: Overruled.
[The Witness]: No, I have not.
[Defense Counsel]: Exception, sir.

(id. at 3.45). We are satisfied that appellant adequately preserved the issue for our review.

The Commonwealth contends next that appellant is not entitled to the “windfall benefit” of a new trial because Scott, an evidentiary, non-constitutional ruling, should only be prospectively applied. Scott recognizes that whenever a defense character witness has been cross-examined on the basis of a defendant’s prior arrests, the defendant is denied a fair trial because the prejudicial effect of such cross-examination greatly outweighs its limited probative value. 496 Pa. at 194, 436 A.2d at 611. We simply cannot accept the Commonwealth’s argument that giving appellant the new, fair trial he deserves is to confer a “windfall benefit.” Appellant’s trial was like that unanimously renounced in Scott as unfair. As in Scott, appellant preserved for direct appellate review a timely objection to inherently unfair cross-examination. It cannot be seriously argued that he is somehow entitled to less relief than Scott received. See, e.g., Commonwealth v. Hankerson, 298 Pa.Superior Ct. 194, 444 A.2d 727 (1982) (applying Scott retroactively to case on direct appeal); Commonwealth v. Glasco, 298 Pa.Superior Ct. 189, 444 A.2d 724 (1982) (same). See generally Commonwealth v. Ernst, 476 Pa. 102, 381 A.2d 1245 (1977) (Opinion in Support of Affirmance) (change in burden of proof in insanity cases applicable to those cases on direct appeal where the issue is properly preserved); Commonwealth v. Steward, 276 Pa. Superior Ct. 64, 419 A.2d 96 (1979) (Riggins sentencing standards fully applicable to cases pending on direct appeal at time of decision). Accordingly, we reverse the judgment of sentence and grant appellant a new trial.

So ordered.

      . Appeliant was acquitted of aggravated assault of another patron. All remaining charges were nol prossed. His mother was subsequently tried and convicted of voluntary manslaughter.

      . The Commonwealth contends also that appellant failed to preserve the issue in post-trial motions. We disagree. Appellant’s post-trial motions alleged that “a character witness was improperly cross-examined by the Commonwealth as to specific crimes of the defendant.” In its opinion and order denying post-trial motions, the lower court reviewed and affirmed its side-bar ruling allowing testimony of appellant’s prior arrests based upon Commonwealth v. Jenkins, supra. Thus, appellant preserved the issue in post-trial motions, and it is properly before us in this appeal.

      . Because of our disposition of this matter, we need not address appellant’s remaining contentions.


text:
    446 A.2d 960
    COMMONWEALTH of Pennsylvania v. John MOORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted October 20, 1981.
    Filed June 11, 1982.

      Marlene S. Copperman, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that: (1) the lower court erred in denying his motion to suppress evidence; (2) his prior counsel were ineffective in failing to seek suppression of a statement; and (3) the lower court erred in imposing multiple sentences for related offenses arising from the same episode. We find the suppression and ineffectiveness contentions meritless. Because we agree, however, that four of the sentences merged, we vacate the judgments of sentence for aggravated assault, theft, and recklessly endangering, and affirm those for robbery and conspiracy.

On December 26, 1979, at 10:45 p. m., a police officer riding a patrol car in a high crime area saw appellant and another young man emerge from an alley and walk a short way along the street. The two then stopped in front of the lighted window of an electrical supply store, where the officer saw them leafing through something in appellant’s hand. Upon noticing the police car, they immediately ran in opposite directions. The officer followed appellant for 300 yards, and several times ordered him to stop. During the chase the officer saw that the object in appellant’s hand was a wallet. When appellant stopped, the officer approached him, frisked him, and took the wallet from his hand. He asked appellant where he had gotten the wallet, and appellant replied that he had found it in front of the electrical supply store. This statement, which contradicted the officer’s observations, was later introduced at trial. The officer learned the wallet belonged to William Stewart, a man in his fifties who did not match appellant’s description. The officer took appellant to Stewart’s address, one block from where he had first seen appellant. There he saw a bruised and disheveled man in his fifties stumbling along the street. The man identified himself as William Stewart, said he had just been robbed by two young men, and identified appellant as one of his assailants. Appellant was then arrested, and was arraigned the following morning sometime after eight a. m. Following denial of his suppression motion, trial, and denial of post-trial motions, appellant was sentenced to a prison term of time already served to two years for robbery, to concurrent two-year terms of probation for aggravated assault, theft, and recklessly endangering another person, all to be followed by a three-year term of probation for conspiracy. This appeal followed.

Appellant contends the lower court erred in denying his suppression motion. Specifically, he argues that the initial stop and the seizure of the wallet were unjustified. We disagree. A police officer may stop a person for brief questioning and investigation, even if he lacks probable cause to make an arrest, when he has observed unusual and suspicious conduct by the person that may reasonably lead him to believe that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). To justify such a stop the officer must be able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant the intrusion. Terry v. Ohio, supra; Commonwealth v. Williams, 287 Pa. Superior Ct. 19, 429 A.2d 698 (1981). Though flight alone will not justify a stop, Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973), a combination of circumstances, none of which taken alone would justify a stop, may be sufficient. Commonwealth v. Mackie, 456 Pa. 372, 320 A.2d 842 (1974); Commonwealth v. Holloway, 229 Pa. Superior Ct. 128, 323 A.2d 216 (1974). See Commonwealth v. Dennis, 236 Pa. Superior Ct. 348, 344 A.2d 713 (1975). The officer here observed appellant and his companion emerge from an alley in a high crime area at night, leaf through an object, and run at first sight of the police. These facts plus permissible inferences from them would lead a man of reasonable caution to suspect criminal activity was afoot. They thus justified the brief investigatory stop. The subsequent seizure and examination of the wallet was within the permissible scope of the investigatory stop, especially because the officer had seen appellant leaf through it with his companion, then clutch it throughout the chase. See Commonwealth v. LeSeuer, 252 Pa. Superior Ct. 498, 382 A.2d 127 (1977) (examining stereo equipment during stop); Commonwealth v. Ellis, 233 Pa. Superior Ct. 169, 335 A.2d 512 (1975) (taking adding machine during stop). Consequently, the lower court properly denied appellant’s suppression motion.

Appellant contends next that his prior counsel were ineffective in failing to seek suppression of his statement that he found the wallet in front of the electrical supply store. We disagree. Counsel may not be deemed ineffective for failing to pursue a baseless or frivolous issue. Commonwealth v. Wilson, 482 Pa. 350, 393 A.2d 1141 (1978); Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974). Accord, Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Appellant argues first that the statement should be suppressed because the officer had not given the warnings against self-incrimination required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Warnings, however, are not required for general on-the-scene investigative questioning conducted to determine whether a crime has been committed or is in progress. Commonwealth v. Kloch, 230 Pa. Superior Ct. 563, 571, 327 A.2d 375, 380 (1974). Accord, Miranda v. Arizona, supra at 477, 86 S.Ct. at 1629, 16 L.Ed.2d at 725; United States v. Perez-Esparza, 609 F.2d 1284, 1287 n.2 (9th Cir. 1980). The officer’s questioning here, early in the investigative stop, as to where appellant had obtained the wallet, was such general questioning to determine whether a crime had been committed, and thus appellant’s answer to it was not suppressible for lack of warnings. Appellant argues also that the statement should be suppressed because of pre-arraignment delay. We disagree. Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), established a per se rule that any statement obtained after arrest but before arraignment shall be inadmissible at trial if the defendant has not been arraigned within six hours of his arrest. Although appellant was not timely arraigned, the statement he now seeks to suppress was given before he had been arrested. Consequently, Davenport does not bar its admission at trial. Accordingly, prior counsel were not ineffective in failing to advance these meritless contentions.

Appellant contends finally that the lower court erred in imposing multiple sentences for related offenses arising from the same criminal incident. We agree. “[I]n merger of sentence cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be a merger and only a single sentence may be imposed.” Commonwealth v. Crocker, 280 Pa. Superior Ct. 470, 475, 421 A.2d 818, 820 (1980) (burglary and criminal trespass). See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976) (rape and statutory rape); Commonwealth v. Eberts, 282 Pa. Superior Ct. 354, 422 A.2d 1154 (1980) (robbery and reckless endangerment); Commonwealth v. Lezinsky, 264 Pa. Superior Ct. 476, 400 A.2d 184 (arson and criminal mischief). Applying these principles we hold that the lower court erred in imposing separate sentences for robbery, aggravated assault, recklessly endangering and theft, for in practical effect appellant had participated in but one unlawful assault and taking. Compare 18 Pa.C.S.A. § 3701 (robbery) with id. §§ 2701, 2702, 2705, 3921. See Commonwealth v. Cavanaugh, 278 Pa. Superior Ct. 542, 420 A.2d 674 (1980) (aggravated assault and recklessly endangering). The separate sentence for conspiracy was proper, however, because the gravamen of that crime was the separate unlawful act of agreement. 18 Pa.C.S.A. § 903. We need not remand for resentencing, however, because by imposing concurrent terms for the merged offenses, the lower court indicated that it regarded this case as essentially one of robbery in which the other sentences, did not influence its sentencing for the principal crime. See Commonwealth v. Cavanaugh, supra; Commonwealth v. Eberts, supra; Commonwealth v. Lockhart, 233 Pa. Superior Ct. 60, 296 A.2d 883 (1972).

Accordingly, judgments of sentence for aggravated assault at No. 2396, recklessly endangering at No. 2394, and theft at No. 2398 are vacated. Judgments of sentence for robbery at No. 2395 and conspiracy at No. 2397 are affirmed.

So ordered.

       Although appellant did not argue merger below, his contention is not waived. See Commonwealth v. Walker, 468 Pa. 323, 330 n.3, 362 A.2d 227, 230 n.3 (1976) (imposing multiple sentences for single criminal act is “beyond the power” of a sentencing court); Commonwealth v. Crocker, 280 Pa. Superior Ct. 470, 474 n.2, 421 A.2d 818, 820 n.2 (1980).


text:
    446 A.2d 963
    George J. LASCO, Appellant, v. Linda L. LASCO.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1982.
    Filed June 11, 1982.

      Stuart Marc Golant, Towanda, for appellant.
    David B. Keeffe, Bradford, for appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s disposition of appellant’s petition to modify alimony pendente lite and counsel fees. Because we find that the lower court has not yet ruled on the merits of appellant’s petition, we quash this appeal and remand for proceedings consistent with this opinion.

On October 25,1979, appellee filed a complaint in divorce against appellant, who then filed an answer and “counter-complaint.” Although appellee subsequently withdrew her complaint, appellant maintained his “countercomplaint.” On November 29, 1979 appellee petitioned for alimony pendente lite and counsel fees, which were granted on January 15,1980. After several subsequent hearings, the lower court denied the divorce on June 30, 1980. Appellant has separately appealed that ruling to this Court. Facing increased counsel fees in defending the appeal of the divorce denial, appellee petitioned the lower court to increase her alimony pendente lite and counsel fees. Appellant answered and petitioned the court to lower his payments because his financial resources had declined drastically. On December 23, 1980, the lower court ruled on several outstanding motions and petitions, but postponed a decision on the alimony pendente lite and counsel fee modification petitions until it could obtain more evidence on the allegation that appellant had fraudulently transferred property to give the appearance that he could no longer afford to make his current payments. Appellant filed exceptions to the lower court order alleging, inter alia, that the lower court erred in postponing its decision. The lower court then recused itself, and another judge was assigned to the case. Following a hearing, the court issued an order dismissing, inter alia, “the petition for reconsideration of the Order of Court of December 23,1980 fixing the amount of alimony pendente lite and counsel fee.” This appeal followed.

Appellant contends that the lower court erred in not granting his petition to modify alimony pendente lite and counsel fees. We are unable to address appellant’s contention, however, because the lower court has failed to rule on the merits of the petition. The December 23, 1980 order merely postponed decision on both modification petitions. The subsequent order issued by a different judge reaffirmed the December 23 order. By so doing, however, the lower court did nothing more than continue to postpone a final determination of appellant’s petition. Thus, there has yet to be a decision on the merits of appellant’s petition and therefore, no final appealable order for this Court to review. See Toll v. Toll, 293 Pa.Superior Ct. 549, 439 A.2d 712 (1981) (order not final unless appellant precluded from presenting claim on the merits). Accordingly, we must quash the appeal as premature and remand the matter to the lower court for proceedings consistent with this opinion.

So ordered.

       Contrary to the lower court’s assertion in its subsequent order, the December 23 order did not set alimony pendente lite and counsel fees for the period after appellant’s appeal of the divorce denial.


author: VAN der YOORT, Judge:

text:
    446 A.2d 965
    COMMONWEALTH of Pennsylvania v. Bruce MARTIN, Appellant.
    Superior Court of Pennsylvania.
    Argued April 6, 1981.
    Filed June 11, 1982.
    Petition for Allowance of Appeal Denied Jan. 7,1983.

      Francis M. Walsh, Assistant Public Defender, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, for Norristown, for Commonwealth, appellee.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   VAN der YOORT, Judge:

Appellant was convicted, in a jury trial, of retail theft (second offense). Post-trial motions were denied and appellant was sentenced to serve one to two years in prison, consecutive to any sentence then being served or to be served. A motion for reconsideration of sentence was denied. This appeal followed.

The first contention raised on appeal is that the lower court erred in denying appellant’s motion to dismiss pursuant to Rule 1100, Pennsylvania Rules of Criminal Procedure.

The criminal complaint in this case was filed on June 12, 1979. The run date for Rule 1100 purposes was December 9, 1979. The case was called to trial on October 11, 1979. At that time appellant appeared unrepresented by counsel and requested a postponement to secure counsel. The written motion for a postponement contained a Rule 1100 waiver, which was signed by appellant. At the bottom of the motion was an order signed by Judge Vogel directing the case be tried within 120 days. On December 13, 1979, appellant filed his motion to dismiss pursuant to Rule 1100. The court denied the motion on January 3, 1980, prior to trial. Appellant argues here as he did in post-trial motions that he was coerced into signing such waiver as he was forced to choose between representation by counsel and preserving his right to be tried within 180 days. Appellant argues that as he challenged the validity of the waiver, the Commonwealth had the burden of sustaining the validity of the waiver.

Appellant’s position is without merit. So long as there is an indication on the record that the waiver is an informed and voluntary decision we will presume it to be valid. A bald contention that such waiver is involuntary is insufficient to defeat the waiver. Commonwealth v. Allen, 291 Pa. Superior Ct. 366, 435 A.2d 1270, 1272 (1981). Here the waiver demonstrates appellant was adequately informed and voluntarily signed it. His claim that he was forced to choose either representation by counsel, or his right to a speedy trial is unpersuasive. Commonwealth v. Rodriquez, 291 Pa. Superior Ct. 239, 435 A.2d 888 (1981); see also Commonwealth v. McCulley, 270 Pa. Superior Ct. 115, 410 A.2d 1276 (1979).

Appellant’s next contention is that the court erred in failing to suppress certain evidence. He claims that the store detective, who searched the bag he carried outside of the store was not acting as a private citizen. Appellant suggests that the authority bestowed upon such an individual by 18 Pa.C.S. § 3929(d) permits such person to act under color of state law. It follows, he argues, that such a search without a warrant is illegal.

While this contention appears not to have been previously raised in the appellate courts of Pennsylvania, we nonetheless have no difficulty in resolving it. A number of other jurisdictions have considered the issue and found against the criminal defendant. Those courts, finding that such statutes are a codification of the common law’s “shopkeepers privilege”, have held that such statutes do not create police authority in private persons. Such statutes authorize merchants to act without being subjected to civil liabilities for so acting reasonably. The Estate of Iodice v. Gimbel’s, Inc., 416 F.Supp. 1054 (E.D.N.Y.1976); Weyandt v. Mason’s Stores, Inc., 279 F.Supp. 283 (W.D.Pa.1968); see also People v. Toliver, 60 Ill.App.3d 650, 18 Ill.Dec. 54, 377 N.E.2d 207 (1978). We agree and hold that store employees who stop, detain and search individuals who they reasonably suspect of retail theft do not act under the color of state authority.

Appellant’s third challenge is to the constitutionality of the retail theft statute, 18 Pa.C.S. § 3929. In particular he challenges subsections (d) and (c). His attack upon subsection (d) is premised upon a finding that the license provision, discussed above, bestows police powers upon merchants. As we have discarded such contention above, we need not further address appellant’s complaint on this point.

Appellant claims that 18 Pa.C.S. § 3929(c) creates in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 9 of the Constitution of this Commonwealth, a presumption of guilt that a defendant must rebut.

This statutory presumption is an evidentiary device which may be available to assist the Commonwealth in proving an element of the offense beyond a reasonable doubt. Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974). It arises only when the prosecution establishes the existence of facts upon which the presumption is based. Commonwealth v. Bonn, 244 Pa.Super. 315, 368 A.2d 738 (1976). The fact upon which the instant presumption is based is concealment of the unpurchased merchandise.
Commonwealth v. McSween, 265 Pa.Superior 458, 460-61, 402 A.2d 528 (1979).

Such a presumption is a presumption of fact or an inference, and not to be confused with an irrebuttable presumption. The leading Pennsylvania case in this area is Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974). We need not here reiterate the whole of the Supreme Court’s extended discussion on the differences between a permissible presumption and an impermissible one. It is sufficient to reprint the two-part test set forth in Turner.

In evaluating the need for and propriety of a standardized inference we should weigh two distinct factors: (1) whether, in light of present day experience, the proven facts bear sufficient relationship to the fact to be inferred; and (2) whether the rational connection inherent in the inference is of such a nature that standardization is desirable. 456 Pa. at 120-21, 317 A.2d 298. (footnote deleted).

Applying this test to the present statutory presumption we find that the statute passes constitutional muster. If a person conceals merchandise either in a store or outside of it, without first having paid for it, it reasonably follows that he intends to deprive the merchant of the item(s). Unlike Turner, where the court found that changes in society undermined precedent, the current presumption does not suffer such an infirmity. Concealment without payment still creates an inference of an intention to steal as it had in the past. Such a standardization is not only reasonable but also necessary; the Commonwealth would not otherwise be able to prove a defendant’s intent, unless the intent was admitted.

As intent to deprive is an essential element of the crime of retail theft, the inference must follow beyond a reasonable doubt from its factual basis. Commonwealth v. Mason, 483 Pa. 409, 397 A.2d 408 (1979); Commonwealth v. DiFrancesco, 458 Pa. 188, 329 A.2d 204 (1974). We have no difficulty in concluding, especially in light of the previous discussion, that the inference here in question satisfies the reasonable doubt standard.

In applying the statutory inference to the facts of the criminal incident under review we also address appellant’s fourth allegation that the lower court erred in not sustaining his demurrer. Specifically, appellant contends the Commonwealth failed to demonstrate beyond a reasonable doubt that he did not pay for the merchandise.

The testimony offered by the Commonwealth established the following. A security guard observed appellant at a clothes rack; he selected two outfits of clothing consisting each of a shirt and pair of pants and took them into the fitting room. A few minutes later he exited the fitting room with nothing in his hands. He returned to the rack and selected another outfit and then again went into the fitting room. A few minutes later, he came out of the fitting room carrying a shopping bag which he had not been observed with earlier. The fitting room was searched; the clothing was not present. Security personnel left the store and followed appellant. Appellant was detained and the merchandise was recovered. (N.T. Trial, pp. 5-6). The security guard testified that appellant did not attempt to pay for the items (N.T. Trial, p. 20).

To avoid a demurrer, the Commonwealth must come forward with evidence which establishes beyond a reasonable doubt each element of the crime charged. Therefore, the test to be applied is whether the Commonwealth’s evidence and all reasonable inferences arising therefrom are sufficient to support a verdict of guilty beyond a reasonable doubt. Commonwealth v. Mason, supra. Commonwealth v. Petrie, 277 Pa. Superior Ct. 239, 419 A.2d 750 (1980). The evidence here clearly shows beyond a reasonable doubt that appellant removed the clothing from the store, intending to deprive the store of it. Such intent follows beyond a reasonable doubt from appellant’s behavior in concealing the items. Compare Mason, supra.

Appellant’s last claim is that the trial court failed to place on the record its reasons for imposing the sentence it did. The lower court admittedly did not place on the record, at the time of sentencing, its reasons. (Opinion, p. 13). Appellant in his petition for reconsideration specifically raised the omission. Such claim has not been waived. See Commonwealth v. Turecki, 278 Pa. Superior Ct. 511, 420 A.2d 658 (1980). Nor has the court, in its opinion, sufficiently explained such sentence. Instead the court noted that appellant refused to cooperate in the preparation of a presentence report and that the sentence was imposed based upon defendant’s criminal record. (Opinion, pp. 13-14) The trial judge concludes that if remanded he would reimpose an identical sentence and therefore such remand would be a “vain act.” (Opinion, p. 15).

Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and the many cases that follow it, such as Commonwealth v. Giffin, 279 Pa. Superior Ct. 264, 420 A.2d 1134 (1980), have required trial courts to place on the record, at the time of sentencing, the reasons for the sentence imposed. As the record contains no such statement, we must vacate the judgment of sentence and remand the case to afford the trial court an opportunity to resentence appellant in accordance with the sentencing code and guidelines and to include a statement of reasons for the sentence imposed.

Judgment of sentence vacated and case remanded for resentencing.

      . 18 Pa.C.S. § 3929(b) reads:
      Grading.—
      (1) Retail theft constitutes A:
      (1) Summary offense when the offense is a first offense and the value of the merchandise is less than $150.
      (II) Misdemeanor of the second degree when the offense is a second offense and the value of the merchandise is less than $150.
      (III) Misdemeanor of the first degree when the offense is a first or second offense and the value of the merchandise is $150 or more.
      (IV) Felony of the third degree when the offense is a third or subsequent offense, regardless of the value of the merchandise.
      (2) Amounts involved in retail thefts committed pursuant to one scheme or course of conduct, whether from the same store or retail mercantile establishment or several stores or retail mercantile establishments, may be aggregated in determining the grade of the offense.

      . “I have been advised and I understand that under Rule 1100 of the Pennsylvania Rules of Criminal Procedure, my trial in Montgomery County Court must begin on or before December 9, 1979, which is the 180th day from the date of the filing of the criminal complaint accusing me of the above charges. I am aware that these charges may be dismissed if my trial does not commence on or before the 180th day or within any additional time allowed to the Commonwealth under the provisions of Rule 1100. I have been advised and I understand that by signing this ‘waiver’ I am waiving or giving up my right to be tried within 180 days from the filing of the criminal complaint, and I am agreeing that I can be tried after the 180th day. I have not been made any promises, nor have I been forced to sign this waiver.”

      . (d) Detention.—A peace officer, merchant or merchant’s employee or an agent under contract with a merchant, who has probable cause to believe that retail theft has occurred or is occurring on or about a store or other retail mercantile establishment and who has probable cause to believe that a specific person has committed or is committing the retail theft may detain the suspect in a reasonable manner for a reasonable time on or off the premises for all or - any of the following purposes: to require the suspect to identify himself, to verify such identification, to determine whether such suspect has in his possession unpurchased merchandise taken from the mercantile establishment and, if so, to recover such merchandise, to inform a peace officer, or to institute criminal proceedings against the suspect. Such detention shall not impose civil or criminal liability upon the peace officer, merchant, employee, or agent so detaining.

      . This argument is most commonly raised in a civil action brought by a vindicated criminal defendant who then sues for a violation of his civil rights.

      . (c) Presumptions.—Any person intentionally concealing unpurchased property of any store or other mercantile establishment, either on the premises or outside the premises of such store, shall be prima facie presumed to have so concealed such property with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof within the meaning of subsection (a), and the finding of such unpurchased property concealed, upon the person or among the belongings of such person, shall be prima facie evidence of intentional concealment, and, if such person conceals or causes to be concealed, such unpurchased property, upon the person or among the belongings of another, such fact shall also be prima facie evidence of intentional concealment on the part of the person so concealing such property.

      . At issue was the “nexus between recent possession of stolen property and the identity of the thief.” The court found “[t]he advent of densely populated communities, ... advances in communication and transportation, the increased mobility ... produced a more transient pattern of living ... redefin[ed] the term of recent possession.” Id. 456 Pa. at 121-22, 317 A.2d 298.

      . § 3929 (a) Offense defined.—A person is guilty of a retail theft if he:
      (1) takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof:
      (2) alters, transfers or removes any label, price tag marking, indicia of value or any other markings which aid in determining value affixed to any merchandise displayed, held, stored or offered for sale in a store or other retail mercantile establishment and attempts to purchase such merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of the full retail value of such merchandise:
      (3) transfers any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some part of the full retail value thereof; or
      (4) under-rings with the intention of depriving the merchant of the full retail value of the merchandise.


author: PER CURIAM:

text:
    446 A.2d 970
    Leonard BLUMBERG v. Joan A. Marple BLUMBERG, Appellant.
    Superior Court of Pennsylvania.
    Argued May 11, 1981.
    Filed June 11, 1982.

      E. Lawrence Hannaway, Philadelphia, for appellant.
    Madaline B. Tomlinson, Media, for appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

On June 29, 1979, appellee-husband filed an action in divorce against appellant-wife. Appellant filed preliminary objections. Preliminary objections were dismissed and on January 17, 1980 appellant filed her answer and counterclaim. A master’s hearing was scheduled for April 29, 1980, but was continued at appellant’s request. On September 4, 1980, appellant filed a petition to proceed under the Divorce Code of 1980. No answer to such petition was filed. After oral argument, which was not recorded, the lower court dismissed appellant-wife’s petition on October 6, 1980. This appeal followed.

This court, sitting en banc, has held that an order, denying an application that the divorce action proceed under the new Divorce Code, is appealable. Gordon v. Gordon, 293 Pa.Superior Ct. 491, 439 A.2d 683. Therefore, appellee’s contention presented prior to Gordon, that the order is interlocutory and therefore unappealable is not a correct statement of the law. Judge Spaeth’s opinion in Gordon, joined by seven other members of this court set forth the extent of the trial court’s authority in denying or granting such an application.

The Gordon majority held that:

“when the application was presented, the lower court should have asked whether granting it would further ‘the policy of the Commonwealth’ as declared by the legislature when it enacted the Divorce Code. 23 P.S. § 102. As applied to the facts of this case, that means that the lower court should have asked whether granting the application would ‘deal[] with the realities of matrimonial experience,’ 23 P.S. § 102(a)(1), ‘[mjitigate the harm to the spouses,’ 23 P.S. § 102(a)(4), and ‘[ejffectuate economic justice,’ 23 P.S. § 102(a)(6).” Id. at 685.

In this case, appellant’s petition averred that unless she was permitted to seek equitable distribution, support for two minor children, and alimony pursuant to the Divorce Code of 1980, she would “suffer grave and irreparable harm and injury and a substantial loss of her rights and interests.. . . ”

The lower court opined “that no equitable considerations exist[ed] in favor of allowing” appellant to proceed under the new code. The court found that she was currently employed and that a partition action was available for the division of joint property. The majority decisions in Gordon holds that the court in such situations must exercise “some discretion”, however, the range of discretion is “extremely narrow”. That discretion is limited to considering whether the grant of the request would be consistent with the Divorce Code, 439 A.2d at 692. The lower court in Gordon denied the application finding: “no equitable considerations” existed for such; and that the wife would have a right to seek a partition of joint property. This court found that the lower court “consistently ignored the policy of the Commonwealth and the objectives the legislature intended to achieve by enacting the Divorce Code.” Id. at 695.

In the current appeal, the opinion below likewise demonstrates that the court failed to heed “the policy of the Commonwealth and the objectives the legislature intended ...The trial court’s reasoning closely tracts that of the trial court in Gordon. Therefore, we must reverse the order below; the application is granted and the case is remanded for further proceedings not inconsistent with this opinion.

Order reversed and case is remanded. We do not retain jurisdiction.

      . Appellant after unsuccessfully applying to the lower court for a stay or supersedeas, filed such application with this court which was granted on December 5, 1980.

      . MONTEMURO, J., filed a concurring opinion. POPOVICH, J., filed a concurring opinion. SHERTZ, J., filed a concurring and dissenting opinion in which HESTER, J., joined. WIEAND, J., filed a dissenting opinion.


text:
    446 A.2d 971
    COMMONWEALTH of Pennsylvania v. Robert Eugene MEAD, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1982.
    Filed June 11, 1982.

      Philip B. Friedman, Erie, for appellant.
    Richard A. Hernán, District Attorney, Warren, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   PER CURIAM:

Appellant pled guilty to two counts of delivering a hashish derivative and was sentenced to serve concurrent prison terms of two-and-one-half-to-five years, and to pay a single $5,000 fine, $700 restitution, and costs. Appellant now challenges the excessiveness of his prison terms and the propriety of his fine. For the reasons that follow, we vacate his fine and remand for further proceedings consistent with this opinion, but affirm the remainder of his sentence.

I.

Appellant contends that his prison terms exceed the minimum period of confinement consistent with the protection of the public, the gravity of the offense, and his rehabilitative needs. See 42 Pa.C.S.A. § 9721(b); Commonwealth v. Martin, 466 Pa. 118, 133, 351 A.2d 650, 658 (1976). We disagree. Sentencing is a matter within the sound discretion of the lower court whose determination will not be disturbed absent a manifest abuse of discretion. See, e.g., Commonwealth v. Knight, 479 Pa. 209, 212, 387 A.2d 1297, 1299 (1978). In exercising its discretion, the lower court must give due consideration to the circumstances of the crime and the character of the defendant. Id.; Commonwealth v. Kostka, 475 Pa. 85, 92 n.8, 379 A.2d 884, 888 n.8 (1977); Commonwealth v. Martin, supra, 466 Pa. at 133, 351 A.2d at 658. Moreover, the court must consider, but need not reiterate, the sentencing criteria established by our legislature. See, e.g., Commonwealth v. Butch, 487 Pa. 30, 32, 407 A.2d 1302, 1303 (1979); Commonwealth v. Zimmerman, 282 Pa.Superior Ct. 286, 297, 422 A.2d 1119, 1125 (1980). To facilitate meaningful appellate review and to ensure that discretion has, in fact, been exercised, the sentencing court must state its reasons on the record at the time of sentencing. See 42 Pa.C.S.A. § 9721(b); Pa.R.Crim.P. 1405(b); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (plurality opinion). The record reveals that appellant was a single, twenty-eight year old, having a year and a half of college education, a spotty employment history, and no dependents. He had previously been placed on probation in Arizona for selling valium, and had participated in several other drug transactions locally. Moreover, appellant admitted his complicity in delivering the drugs to an undercover officer who had placed an “order.” Appellant had the opportunity to make a statement and his counsel had the opportunity to make argument and present other relevant information. See Commonwealth v. Wareham, 259 Pa.Superior Ct. 527, 533, 393 A.2d 951, 953 (1978). On that basis, the lower court sentenced appellant to serve two concurrent prison terms of two-and-one-half-to-five years. The lower court stated that the sentence was based upon the public safety, public attitude against illegal drug sales, appellant continuing involvement in drug sales as a vocation, and his previous convictions and probation for selling drugs. Although not phrased in the vernacular of the sentencing code, we are satisfied that the lower court adequately considered appellant’s character and the circumstances surrounding the crime and concluded that imprisonment for that period was warranted because of the threat of recidivism, 42 Pa.C.S.A. §§ 9722(8), (9); 9725(1), the seriousness of the crime, id. §§ 9722(1), (2); 9725(3), and the likelihood that appellant would not respond to probation, id. §§ 9722(7), (9), (10); 9725(2). Under these circumstances, we cannot say that the lower court manifestly abused its discretion. See Commonwealth v. Butch, supra.

II.

Appellant contends also that his fine was improper because the lower court had failed to ascertain, on the record, whether he would be able to pay the fine. We agree. The lower court may, in its discretion, consider a fine as an additional or an exclusive sanction. See 42 Pa.C.S.A. § 9721(a). The court may impose a fine as an additional penalty when the defendant has derived a pecuniary gain from the crime or when a fine would be particularly appropriate as a deterrent. Id. § 9726(b). “In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.” Id. § 9726(d). Accord, Pa.R.Crim.P. 1407(c). However, “[t]he court shall not sentence a defendant to pay a fine unless it appears of record that: (1) the defendant is or will be able to pay the fine: [sic] and (2) the fine will not prevent the defendant from making restitution or reparation to the victim of the crime.” 42 Pa.C.S.A. § 9726(c) (emphasis added). In Commonwealth v. Schwartz, 275 Pa. Superior Ct. 112, 118, 418 A.2d 637, 640 (1980), under similar circumstances, we vacated a fine and remanded for further proceedings because the record was insufficient to permit a determination of the defendant’s ability to pay the fine imposed:

[A]ll the sentencing judge knew about [defendant’s] financial background was that he had sold $980 worth of drugs to the undercover agents the previous year and was currently working with his father in the construction industry, “bringing home approximately $150 per week.” N.T. 12, 13 (August 28, 1978, Guilty Plea Hearing). This was hardly enough to make an intelligent finding as to appellant’s ability to pay the fine.

The present record is equally meager: Appellant had received $700 from undercover officers in the first of two transactions underlying his guilty plea, but did not receive any money for the second. Although he was also involved in other drug transactions, there is no evidence that he derived any pecuniary gain. The presentence report records appellant’s sporadic employment history, but does not disclose his current income. Moreover, there is no indication in the record that the sentencing court considered appellant’s indebtedness (as reflected in his petition for appointment of counsel and his in forma pauperis petition), or even that he lived at home, was single, and had no dependents. Likewise, it did not consider whether a $5,000 fine would prevent appellant from making restitution. Under these circumstances, we conclude that the present record was insufficient to permit a proper determination of appellant’s ability to pay the fine imposed. Consequently, we must vacate that portion of appellant’s sentence and remand for further proceedings.

III.

Judgment of sentence affirmed as to imprisonment and payment of restitution and costs only. Judgment of sentence as to fine is vacated and case remanded for further proceedings.

      . As part of appellant’s negotiated plea bargain, the Commonwealth agreed to nol pros charges concerning delivery of cocaine and marijuana.

      . Appellant was also convicted in Arizona for selling marijuana, but the record does not disclose his sentence for that offense.

      . We note that the fine imposed was discretionary, not mandatory. Consequently, we express no view as to whether a sentencing court must inquire into a defendant’s ability to pay a legislatively mandated fine.


text:
    446 A.2d 974
    COMMONWEALTH of Pennsylvania v. Allen RAMSEY, a/k/a Allen Thomas, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 18, 1981.
    Filed June 11, 1982.

      Lawrence W. Richman, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before McEWEN, MONTEMURO, and HOFFMAN, JJ.
   PER CURIAM:

This is an appeal from an order denying appellant’s Post Conviction Hearing Act (PCHA) petition. Appellant contends that his PCHA counsel was ineffective in failing to call trial counsel as a witness and in failing to produce evidence to support the petition. Because the record is insufficient to determine the merits of these contentions, we must vacate the order of the lower court in part, and remand for an evidentiary hearing.

Appellant was convicted in a nonjury trial of conspiracy and five counts of robbery. On direct appeal, he alleged several instances of trial counsel’s incompetence. We affirmed his conviction in Commonwealth v. Ramsey, 259 Pa.Superior Ct. 240, 393 A.2d 806 (1978). Appellant subsequently filed a PCHA petition and an amended, counseled, petition alleging, inter alia, that trial counsel was ineffective. The lower court denied the petition following a hearing at which appellant was the only witness called by his counsel. Appellant was appointed new counsel to pursue this appeal.

Appellant contends that his PCHA counsel was ineffective in not calling trial counsel as a witness and in failing to present evidence substantiating the other allegations of error in the PCHA petition. In determining counsel’s effectiveness, “our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Although the Commonwealth correctly notes that many of the issues raised in appellant’s PCHA petition were finally litigated in his direct appeal, see Commonwealth v. Butler, 495 Pa. 82, 432 A.2d 590 (1981), several issues had not been previously raised and are ripe for adjudication. The PCHA petition alleged that trial counsel was ineffective in failing to: (1) sever the trial from that of his co-defendants; (2) prepare adequately or ask for a continuance to have time to prepare; (3) present any defense; and (4) review the pre-sentence report and advance an argument at sentencing. Despite raising these new allegations, PCHA counsel did not call trial counsel as a witness, nor did he present any evidence other than appellant’s testimony to substantiate his claims. Trial counsel’s testimony would certainly be crucial in determining his effectiveness. The record is insufficient, however, to permit us to determine whether PCHA counsel had some reasonable basis for his actions. Accordingly, we must remand the case for an evidentiary hearing.

Order of the lower court affirmed in part and vacated and remanded in part for an evidentiary hearing consistent with this opinion. Jurisdiction is relinquished.

      . Because this is appellant’s first opportunity to challenge the effectiveness of PCHA counsel, his claim is properly before us. Commonwealth v. Black, 480 Pa. 394, 390 A.2d 750 (1978); Commonwealth v. Brown, 295 Pa.Superior Ct. 598, 437 A.2d 1023 (1982); Commonwealth v. Hamilton, 274 Pa.Superior Ct. 350, 418 A.2d 442 (1980).

      . The Commonwealth contends that any question of trial counsel’s effectiveness was finally litigated in appellant’s direct appeal. See Commonwealth v. Wilson, 452 Pa. 376, 305 A.2d 9 (1973). We disagree. Unlike in Wilson, appellant’s direct appeal, Court did not “review[] the record and rule[] that appellant received ‘competent assistance of counsel rendered by an experienced trial lawyer.’ ” Id., 452 Pa. at 378, 305 A.2d at 11. Rather, appellant’s direct appeal raised and disposed of specific instances of alleged incompetence without conducting an overall review of counsel’s representation. See Commonwealth v. McNeal, 479 Pa. 112, 387 A.2d 860 (1978) (three allegations of ineffectiveness finally litigated in an earlier proceeding, however, further allegations of ineffectiveness cognizable on appeal). Because the PCHA petition also alleged that direct appeal counsel had been ineffective in failing to preserve issues surrounding trial counsel’s effectiveness, appellant’s new claims have been properly preserved for review. See Commonwealth v. Hubbard, 472 Pa. 259, 276-77 n.6, 372 A.2d 687, 695 n.6 (1977).

      . The PCHA court heard testimony from appellant and his direct appeal counsel regarding appellant’s contentions that direct appeal counsel had (1) failed to consult with appellant and (2) had failed to inform him of his right to appeal to the Supreme Court. The lower court found direct appeal counsel’s testimony to be more credible and denied appellant’s request for relief. Determinations of credibility are within the domain of the PCHA court. Commonwealth v. Sweitzer, 261 Pa. Superior Ct. 183, 191, 395 A.2d 1376, 1380 (1978). Accordingly, we affirm the lower court’s order denying appellant relief on those two contentions.


text:
    446 A.2d 976
    COMMONWEALTH of Pennsylvania v. Maurice JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 3, 1981.
    Filed June 18, 1982.

      William F. Ochs, Jr., Public Defender, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and MONTEMURO, JJ.
   PER CURIAM:

Appellant Maurice Jones was found guilty of criminal trespass by the same jury which acquitted him of the charges of burglary and theft which arose out of the same occurrence. On appeal, he contends that the evidence was insufficient to sustain his conviction. We are unable, however, to determine the validity of this contention because of the incomplete state of the record. Therefore, we are compelled to remand the case for completion of the record and for a determination by the Common Pleas Court, based upon the complete record of the contention that there was insufficient evidence to convict appellant. Jurisdiction of this court is retained.

So ordered.

      . 18 Pa.C.S.A. § 3503(a)(1).

      . 18 Pa.C.S.A. § 3502(a).

      . 18 Pa.C.S.A. § 3921(a).

      . The record reflects that only the case of the Commonwealth was transcribed for review on appeal despite the request of the appellant that the entire transcript be transcribed and the copies thereof be furnished counsel. We are thus precluded from making a proper review upon the entire record of the sufficiency of the evidence to support the conviction of appellant. Commonwealth v. Smith, 490 Pa. 329, 416 A.2d 494 (1980); See Pa.R.A.P. 1922; Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971) (while a transcript per se is not absolute due process necessity, there must be an equivalent “picture” of what transpired below); Commonwealth v. Bear, 283 Pa.Super. 174, 423 A.2d 1045 (1980)); Commonwealth v. Reynolds, 254 Pa.Super. 454, 386 A.2d 37 (1978); See also Act of May 1, 1907, P.L. 135, § 2, as amended, 17 P.S. § 1802, repealed, act of April 28, 1978, P.L. 202, No. 53, § 2(a) [899], effective June 27, 1978.


author: CERCONE, President Judge:

text:
    446 A.2d 1280
    FELMONT OIL CORPORATION, Appellant, v. Martin M. CAVANAUGH and Mary Louise Cavanaugh.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1978.
    Filed March 5, 1982.
    Reargument Denied July 21, 1982.
    Petition for Allowance of Appeal Denied Sept. 13, 1982.

      Beverly A. Gazza, Indiana, for appellant.
    George A. Conti, Jr., Greensburg, for appellees.
    Before CERCONE, President Judge, and WATKINS and HOFFMAN, JJ.
   CERCONE, President Judge:

Appellant, Felmont Oil Corporation (Felmont Oil) filed a complaint in equity to enjoin appellees, Martin and Louise Cavanaugh (Cavanaughs) from preventing Felmont Oil’s construction of a pipeline across certain property owned by the Cavanaughs in Indiana County. Felmont Oil claims the right to locate the pipeline on the Cavanaughs’ property pursuant to a certain oil and gas lease executed in favor of Felmont Oil by Tirza Steffy, the Cavanaughs’ predecessor in title. The lower court en banc, after hearings, decree nisi and exceptions filed, entered a final decree denying Felmont Oil’s claim. After careful review of the facts and legal issues, we reverse the lower court’s final decree.

The facts of this case are as follows. In 1965 the Cavanaughs’ predecessor in title, Tirza Steffy, conveyed to Felmont Oil the oil and gas rights under a lease, whose relevant parts provide:

1. RIGHTS GRANTED. The Lessor does hereby grant, demise, lease and let unto the Lessee and the Lessee does hereby take the Premises for the purpose and with the exclusive right of prospecting, exploring, mining and operating thereon for oil, gas and all other liquid and gaseous hydrocarbons; the right of ingress, egress and regress to, upon and over the Premises; the exclusive right to introduce, store and withdraw gas in and from any stratum underlying the Premises, as provided in Paragraph 10 hereof; and in connection with such operations by the Lessee on the Premises and on neighboring lands, the right to install and maintain lines to convey water, oil, steam, electricity, air and gas, to, from over or across the Premises, the right to build roads, tanks, stations and structures on the Premises, the right to take and use free of charge sufficient water, oil and gas from the Premise for such operations, the right to remove at any time during or within a reasonable time after the termination of this lease all machinery, structures, piping and fixtures placed on the Premises, and also such other rights and privileges as are necessary or convenient for conducting such operations.
4. UNITIZATION (POOLING). Lessee may at any time unitize or pool and consolidate this lease, in whole or in part, as to any stratum or strata, with lands adjacent to or in the immediate vicinity of the Premises, so as to constitute a unit or units not exceeding in area the acreage prescribed or required in any Federal or State law, order, rule or regulation for the drilling or operation of one well... . Drilling, mining or reworking operations upon, or production of oil or gas from, or existence of a shut-in gas well on any part of such unit shall be treated for all purposes hereunder as such operations upon or production from or such a shut-in gas well on the Premises, whether occurring before or after the creation of the unit. Upon production from any part of such unit, Lessor shall be entitled to royalties calculated as follows: There shall be allocated to this lease, a fractional part of all production from the unit as constituted at the time of such production in the ratio that the number of acres of this lease included in the unit bears to the total number of acres then included in the unit, and Lessor shall be entitled to royalties as provided in this lease upon such fractional part of such production, and no more. . ..

Subsequent to the execution of this lease, Felmont entered into a Model Form Operating Agreement on November 5, 1969, with several other companies to develop and operate as a unit certain designated lands (not including the Cavanaughs’ property) which these several companies held in Indiana and Cambria Counties. This area was designated the Pineton Field. Felmont Oil was to be the operator of the Pineton Field in full control of the drilling and operating work for all the oil and gas well operations in the Pineton Field.

Subsequent to the execution of the Operating Agreement, the Commissioner of Pennsylvania Oil and Gas Conservation Commission (Commission) issued an order in 1970 designated as Spacing Order No. 10, pertaining to the development of the aforesaid Pineton Field. The Spacing Order was issued in accordance with the Pennsylvania Oil and Gas Conservation Law, 58 P.S. § 401 et seq.; the objective being to bring about an orderly program for the development of all oil and gas production in Pennsylvania. In pursuit of this objective the Commission divided the properties in the Pineton Field into 19 units known as drilling units 1 through 19. Gas drawn from any tract of land or leasehold in a unit was to be considered as drawn from the entire unit, and consequently, each owner of a tract of land in the unit would share in the royalties in proportion of the ration his land bore to the area in that unit as a whole. That is, gas produced within a unit was to be “treated as entirety for such unit” and each tract owner in the unit would share royalties in proportion to his ownership even though gas or oil was not drawn from his particular tract of land in the unit.

In May of 1974, the Cavanaughs purchased the property at issue from Tirza Steffey. Cavanaughs’ property is included in the Pineton Field and is subject to Commission’s Special Order No. 10. Thirty-three acres of Cavanaugh’s property are in Drilling Unit No. 3 and 14 acres in Drilling Unit No. 15.

Subsequently, on November 16, 1977, the Spacing Order was amended by Modification Order and two additional drilling units, Drilling Unit No. 25 and Drilling Unit No. 26, were added.

In accordance with the oil and gas lease which gives Felmont Oil pipeline rights enumerated in paragraph one of the lease, Felmont Oil notified the Cavanaughs in 1977 of its intention to construct a pipeline across a portion of their property to transport gas produced from wells located in Drilling Unit No. 16 and 26. Felmont Oil intended to join a proposed four inch line with a six-inch line presently crossing the Uriah Sites Tract and which transport gas from other wells including gas from Drilling Unit No. 3 of which Cavanaughs’ property is a part and for which they receive royalties.

After a strenuous effort to come to some agreement covering the pipeline, the Cavanaughs ultimately refused Felmont Oil the right to lay the pipeline across this property in Drilling Unit No. 3 despite the claim of Felmont’s right under the lease and this case is now before us.

Basically, the issue in the instant case turns on the interpretation of the phrase “operations ... on the Premises and on neighboring lands,” since the lease provides that the lessee may construct pipelines on the leased premises “in connection with such operations by the Lessee on the Premises and on neighboring lands.” The basic rule of construction for interpreting contracts was stated thusly by the Supreme Court:

In construing a deed or contract, certain general principles must be kept in mind. First, it is the intention of the parties at the time of entering in thereto that governs, and such intention is to be gathered from a reading of the entire contract. In addition, “ ‘contracts must receive a reasonable interpretation according to the intention of the parties at the time of executing them, if that intention can be ascertained from this language. Where the language of a contract is contradictory, Obscure and ambiguous, or where its meaning is doubtful, so that it is susceptible of two constructions, one of which makes it fair, customary and such as prudent men would naturally execute, while the other makes it inequitable, unusual or such as reasonable men would not be likely to enter into, the interpretation which makes a rational and probable agreement must be preferred. If one construction would make it unreasonable while another would do justice to both parties, the latter will be adopted.’ ”

Wilkes-Barre Township School District v. Corgan, 403 Pa. 383, 386, 170 A.2d 97, 98-99 (1961) (citations omitted) (footnote omitted) (emphasis in original). See also New Charter Coal Co. v. McKee, 411 Pa. 307, 314-315, 191 A.2d 830 (1963).

Turning now to the part of the contract at issue, if this contract is read in terms of “the time of entering in thereto”, then the interpretation of paragraph one of this lease is simplified. At the time that this lease was written, there had not yet been any unitization in this area, therefore, for the present, we will put to one side the fact of unitization. The phrase to be considered relevant at the time the contract was entered into reads: “in connection with such operations by the Lessee on the Premises and on neighboring lands, the right to install and maintain lines to convey . .. gas, to, from over and across the Premises. . .. ”

The term “neighboring property” has been defined in Ballentine’s Law Dictionary (3rd ed. 1969) as “adjoining property or property in the immediate vicinity.” Another source has defined “neighboring” as “A word of indefinite meaning which may have either a narrow or a broad significance, depending on the circumstances and the subject matter. It is defined as meaning situated or residing near by; being in the vicinity; adjacent.” Similar definitions have been proposed by various courts in zoning cases. See e.g. Bohannan v. City of San Diego, 30 Cal.App.3d 416, 106 Cal.Rptr. 333, 336 (1973); Loichot v. Allstate Development Corp., 33 Ohio App.2d 121, 292 N.E.2d 923, 926 (1963). In like manner, “adjacent” has been defined as “neighboring”, “near to” or “close by”, but not necessarily “contiguous”, “touching” or “adjoining”. See e.g., Sonora Elementary School Dist. v. Tuolomne County Bd. of Ed., 239 Cal.App.2d 824, 49 Cal.Rptr. 153, 156.

The unitization of the Pineton Field by the Pennsylvania Commission does not change the meaning of “neighboring lands” under the lease. Paragraph four of the lease provides: “Lessee may at any time unitize or pool and consolidate this lease ... with lands adjacent to or in the immediate vicinity of the Premises, so as to constitute a unit or units...” There is no reference in paragraph four of the lease regarding “neighboring lands.” This paragraph merely provides that unitization will change the method by which royalties are calculated. On this point, the lease reads: “Drilling ... or production of .. . gas from or existence of a shut-in gas well on any part of such unit shall be treated for all purposes hereunder as such operations upon a production from or such a shut-in gas well on the Premises, whether occurring before or after the creation of the unit.” There follows a discussion as to how royalties will be divided in that event.

The court below took the above language into consideration and concluded that the term “neighboring lands” refers only to other property included in the drilling unit in which the Cavanaughs’ property is located. The court reasoned that since the terms of the lease indicate that the Tirza Steffy, as lessor, intended to get paid for any rights given to the lessee, that the term “neighboring lands” must include only lands within the drilling unit “since the lessor would receive royalties from wells located in this area, but not from wells located in other drilling units.” In so reasoning, we find that the equity court has overlooked other important aspects of the contract.

In paragraph one of the contract, the terms specify that pipelines may only be built across the leasehold “in connection with ” other specified operations, which operations include prospecting for gas and storing gas on the premises. Although strictly speaking, the lessor does not get paid for allowing Felmont to prospect for gas on the leasehold, however, such prospecting is part and parcel to the pumping of gas from the premises, or any part of the unit, for which the lessor does get a royalty. Similarly, the lessor receive compensation for any gas stored on the premises. Furthermore, in the event that the lessor is not receiving royalties for production of gas from the unit or rental for gas storage on the premises, then the lessor is to receive delay rental. Since the pipeline may only be built “in connection with” the above activities, it is apparent that at no time will there be a pipeline across the premises when the landlord is not receiving some amount of income from the tenancy. While it is true, as the equity court noted, that the Cavanaughs would not be getting a royalty specifically for the presence of piping across their property, this is not inconsistent with other parts of paragraph one, in which the lessor grants to Felmont without specific compensation the right to “prospect, explore and operate thereon” for gas and the right of “ingress, egress and regress” to, upon and over the Premises.”

Accordingly, we reverse the equity court and find that appellant Felmont does, under the Oil and Gas Lease, have the right to install the pipeline at issue.

      . Each unit contains more than one tract of land or leasehold, and the Commission order provided that only one well could be drilled in each unit, the effect being to integrate the natural gas and royalty interests of lessors in each of these drilling units.

      . In addition, the Cavanaughs owned another 47 acres of land in Unit 3 but had no ownership or royalty interest in the gas and oil underlying that property which was called the Uriah Sites Tract.
      In 1970 a gas well was drilled by Felmont Oil on the Uriah Sites Tract in Drilling Unit No. 3. This well was in production when the Cavanaughs purchased their property in Drilling Unit No. 3 and they began receiving royalty payments as a result of the production of oil from the well located on Drilling Unit No. 3 even though they had no royalty interest in the Uriah Site Tract. This was so, as we stated, because every lessor of land in a given drilling unit received royalties for gas produced in any tract of land in the unit.

      . 66 C.J.S. 3 (1950) (footnote omitted).

      . These rights are granted to Felmont for the token consideration of one dollar.