text:
    492 A.2d 41
    Gerald D. DECH, Appellant, v. Janet K. DECH, Appellee. Gerald D. DECH, Appellee, v. Janet K. DECH, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1984.
    Filed April 26, 1985.

      William H. Agnew, Nazareth, for appellant (at 331) and appellee (at 478).
    John R. Vivian, Jr., Easton, for appellant (at 478) and appellee (at 331).
    Before BECK, HESTER and ROBERTS, JJ.
   BECK, Judge:

This is an appeal from a trial court order denying the exceptions of appellant Gerald D. Dech and appellee/cross-appellant Janet K. Dech to a master’s report and recommendations for equitable division and deferred distribution of marital property and for alimony payable to Mrs. Dech. We vacate in part and affirm in part.

In this appeal Mr. and Mrs. Dech question whether the trial court abused its discretion in (1) dividing and deferring distribution of the parties’ marital property; (2) awarding Mrs. Dech alimony before the entry of a divorce decree; (3) assessing each party’s share of the costs; (4) requiring the parties to pay their respective counsel fees, and (5) finding the master’s fees reasonable.

A brief factual history will facilitate resolution of the first two issues which we shall address in tandem. The parties were married on December 26, 1970, and separated on February 4, 1982, at which time Mr. Dech moved from the marital residence. On February 22, 1982, Mr. Dech filed a complaint in divorce which alleged an irretrievable breakdown in the parties’ marital relationship and requested that the court enter a divorce decree and equitably divide and distribute the parties’ marital property. On May 7, 1982, Mrs. Dech submitted an answer and counterclaim which averred that the parties might be reconciled through court-ordered marriage counseling and further sought alimony pendente lite, alimony, and equitable division and distribution of the parties’ marital property.

A master was appointed on June 16, 1982, to evaluate the parties’ property for the purposes of equitable division and distribution. On December 3, 1982, in response to Mrs. Dech’s petition, the trial court expanded the master’s function “to include the duty and power to make recommendations to the Court, in accordance with the Pennsylvania Rules of Civil Procedure.” Based upon the evidence received at two hearings, the master filed a comprehensive report (Pa.R.C.P. No. 1920.54) which principally advised that Mr. Dech received his nonvested pension benefits plus deferred distribution of forty percent of the sale price of the marital residence and that Mrs. Dech receive deferred distribution of sixty percent of the sale price of the marital residence plus alimony until the sale of the marital residence.

After reviewing the parties’ positions on the underlying divorce issue and the master’s recommendations on alimony and equitable division and distribution of the parties’ marital property, the trial court determined that in accordance with section 401(b) of the Divorce Code, 23 P.S. § 401(b), and Rule 1920.52(c), it was empowered to decide the alimony and property matters without first issuing a decree of divorce. We disagree.

Section 301(a) of the Code, 23 P.S. § 301(a), states that a court shall ascertain and dispose of property rights between spouses and shall order alimony “in conjunction with any decree granting (emphasis added) a divorce or annulment.” Similarly, section 401(b) declares that orders determining alimony and property interest between the parties shall be included in any “decree granting (emphasis added) a divorce or annulment.” Alimony is defined in section 104 of the Code, 23 P.S. § 104, as an “order of support ... in conjunction with a decree granting (emphasis added) a divorce or annulment.” Additionally, section 401(j) of the Code, 23 P.S. § 401(j), explains that “[whenever a decree ... is granted (emphasis added) which nullifies or absolutely terminates ... matrimony, any ... property rights ... dependent upon such matrimonial relation ... are terminated.” Finally, section 402 of the Code, 23 P.S. § 402, affords the parties freedom to dispose of their separate property “whenever a decree of annulment or divorce is decreed (emphasis added) by a court of competent jurisdiction.” Construing together these provisions of the Code and attributing to them their plain meaning, we conclude that although the Code permits bifurcated proceedings, the entry of a divorce decree is a Code prerequisite to an order for alimony or equitable division and distribution of marital property.

The statute is based on sound policy in mandating the entry of a divorce decree as a predicate to equitable distribution. If the parties decided to reconcile before the entry of decree, or if either or both parties die before the entry of decree, the premature distribution would convert property held by one or the other party or by the parties as joint tenants into individual ownership, thereby making it difficult, if not impossible, to place the estates in status quo ante. It would be like Humpty Dumpty. Once he fell, “all the kings horses and all the king’s men, couldn’t put Humpty Dumpty together again.” Consequently, we vacate the trial court’s order awarding alimony to Mrs. Dech and dividing and distributing the parties’ marital property.

With respect to the parties’ three remaining issues, we find that the trial court did not abuse its discretion. Mr. Dech argues that most of the costs associated with the resolution of the parties’ dispute resulted from the expansion of the master’s duties. Since the master’s duties were enlarged in response to Mrs. Dech’s petition, Mr. Dech maintains that Mrs. Dech should pay a larger portion of the costs. However, inasmuch as both parties requested equitable division and distribution of their marital property and the major portion of the master’s work related to the parties’ property apportionment, Mr. and Mrs. Dech benefit-ted equally from the master’s augmented capacity. Hence, we cannot say that the trial court abused its discretion in adopting the master’s recommendation of the parties’ even division of the costs.

Contrary to the trial court’s decision to have the parties assume their own counsel fees, Mrs. Dech asserts that she is entitled to have reasonable counsel fees paid by Mr. Dech. The determination to award counsel fees is made on a case-by-case basis after an analysis of all relevant factors including the “husband’s ability to pay, the separate estate of the wife, the character, situation and surroundings of the parties____ The statute contemplates ... the administration of fair and impartial justice by placing the parties on a par in defending their rights.” Jack v. Jack, 253 Pa.Super. 538, 545-46, 385 A.2d 469, 473 (1978); Fried v. Fried, 326 Pa.Super. 271, 473 A.2d 1087 (1984). “Counsel fees are not to be awarded to either spouse automatically____ Actual need must be shown in order to justify an award ... so that both parties are placed ‘on a par’ in defending their rights.” Hoover v. Hoover, 288 Pa.Super. 159, 161-62, 431 A.2d 337, 338 (1981). In the present case, Mrs. Dech has not established actual need for payment of her counsel fees by Mr. Dech. The evidence of record shows that the parties have similar economic resources. Therefore, the trial court did not err in requiring each spouse to pay his own attorney’s fees.

Finally, Mr. Dech contests the reasonableness of the master’s fees. Having reviewed the master’s itemized bills, the master’s comprehensive written report, and the transcripts of the master’s hearings, we affirm the trial court’s determination that the master’s fees are reasonable in light of the “complex and prolonged nature” of the parties’ litigation.

Accordingly, we vacate those portions of the trial court’s order concerning alimony for Mrs. Dech and division and distribution of the parties’ marital property and affirm those portions of the order concerning the payment of counsel fees and costs including the master’s fee.

      . This appeal is governed by the Divorce Code, Act of April 2, 1980, P.L. 63, 23 P.S. §§ 101-801.

      . Orders pursuant to the Divorce Code for property distribution, alimony, costs, and counsel fees are “reviewed only for an abuse of discretion and not broadly, as is the actual decree in divorce.” Remick v. Remick, 310 Pa.Super. 23, 30, 456 A.2d 163, 166 (1983); Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983).

      . See Pa.R.C.P. Nos. 1920.51-1920.54.

      . The sale of the marital residence was made contingent upon the happening of the first .of three events: "(a) Wife receives an inheritance from her mother in excess of $20,000.00; (b) Wife obtains employment in the computer science field; (c) The expiration of a three-year period.” We agree with Mr. Dech that the reference to a three-year period is ambiguous because neither the commencement date nor the termination date of the period is specified.

      . The trial court also relied upon our decision in Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983), that divorce and economic claims may be bifurcated. However, Wolk is distinguishable from the case sub judice because in Wolk the trial court first granted a divorce decree and then in a subsequent proceeding adjudicated the parties’ property rights. By contrast, in the present case, the trial court decided the parties’ property rights without having dissolved the parties’ marriage.

      . In statutory interpretation we are guided by the following precepts. “[T]he sections of the statute must be read together and construed with reference to the entire statute____ A construction which fails to give effect to all provisions of a statute ... must be avoided.” Wilson v. Central Penn Industries, Inc., 306 Pa.Super. 146, 150, 452 A.2d 257, 259 (1982); section 1921 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921. ‘‘[W]here the words of the statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit____ [T]here is no basis for concluding that the spirit of the legislation intended anything more than what the plain meaning of the words used convey [sic].” In re Estate of Fox, 494 Pa. 584, 588-89, 431 A.2d 1008, 1011 (1981); 1 Pa.C.S. § 1921. “The words and phrases used in any legislation are to be construed ‘according to their common meaning and accepted usage....”’ Fireman’s Fund Insurance v. Nationwide Mutual Insurance, 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983); section 1903 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903.

      . See Remick v. Remick, 310 Pa.Super. 23, 29 n. 4, 456 A.2d 163, 166 n. 4 (1983) ("Pennsylvania law ... permits an award of alimony following a permanent divorce.").

      . We further find that the trial court did not err in increasing the master’s duties beyond those enumerated in Northampton County’s local rule 1920.51(g). The master’s expanded duties conformed with Pa.R.C.P. No. 1920.54. (In the interest of completeness we note that where, as here, a complaint in divorce alleges an irretrievable breakdown of the marital relationship, a master may not be appointed to hear the underlying divorce claim. Pa.R.C.P. Nos. 1920.42(a) & 1920.-51(a)(2)(h).)

      . Mr. Dech also protests the payment of the master’s fee, stenographer’s fee and home appraiser’s fee from the parties’ liquid marital assets which had been frozen by an order of the trial court. The purpose of the “freeze” order was to prevent either spouse’s unilateral dissipation of the marital assets to the disadvantage of the other spouse. Use of the joint marital assets to pay the parties’ joint obligations to the master and the home appraiser benefitted both parties and thus did not violate the court’s freeze order; therefore, the trial court’s subsequent approval of said payment was not error.

      . Although Mrs. Dech’s appellate brief also seeks our review of the trial court’s denial of alimony pendente lite, we do not address this issue because Mrs. Dech failed to include it in her exceptions to the master’s report and thus waived it for purposes of appeal. Pa.R.C.P. No. 1920.55(a).


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    492 A.2d 44
    COMMONWEALTH of Pennsylvania v. Bart Randolph GODSEY, Appellant.
    Superior Court of Pennsylvania.
    Argued March 11, 1985.
    Filed April 26, 1985.

      Gary Lysaght, Lemoyne, for appellant.
    Merle L. Ebert, Assistant District Attorney, Harrisburg, for Com., appellee.
    Before TAMILIA, LIPEZ and BUCHER, JJ.

       Judge Wilson Bucher, Senior Judge, of the Court of Common Pleas of Lancaster County, Pennsylvania, is sitting by designation.

   TAMILIA, Judge:

This appeal involves the mandatory sentencing provisions of the current Pennsylvania law, driving under the influence of alcohol or controlled substance, penalty 75 Pa.C.S.A. § 3731(e).

On October 4, 1981, appellant was arrested for driving under the influence of alcohol and was thereafter placed in the Accelerated Rehabilitation Disposition Program (A.R. D.). Subsequently, on February 24, 1984, appellant was again arrested for driving under the influence. Following the entry of a guilty plea on June 22, 1984, appellant received the mandatory sentence for a second conviction of not less than thirty days nor more than six months imprisonment and a fine of $300. A timely motion for modification of sentence was filed and denied without a hearing, and this appeal followed.

The appellant’s arguments are all variations of the same theme, that a prior A.R.D. should not be considered a first offense under the current law (75 Pa.C.S.A. § 3731(e)) when it was not so considered prior to its effective date. This appears to be a matter of first impression in Pennsylvania. Appellant’s argument is threefold:

1. ) Application of the mandatory sentencing treating appellant as a repeat offender violates the constitutional proscription against ex post facto laws.
2. ) His acceptance of A.R.D. was not knowing, intelligent and voluntary.
3. ) The legislature did not intend section 3731(e) to apply retroactively.

Appellant’s arguments 1 and 2 must fail. By imposing a more severe penalty on subsequent offenses, the legislature did not increase the penalty for the prior offense. The new section could properly include consideration of a conviction under a prior or comparable law in enhancing the sentence for the present offense. This was an appropriate consideration for sentencing on a subsequent offense. See Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962 (1984) (Grady had entered a plea of guilty to drunk driving under an earlier charge), followed in Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985). Likewise, in volunteering to accept A.R.D., the appellant could not reasonably have concluded that it forever bound the legislature against further legislation it deemed necessary to deal with repeat offenses of the class which was subject of the A.R.D. The benefits of A.R.D. were substantial and he obtained what he bargained for — an opportunity to obtain a clean record and to avoid the possibility of incarceration, upon successful completion of the program.

We believe the appellant must prevail on his third argument as it appears from a close review of 75 Pa.C.S.A. § 3731(e) the intent was prospective only as it must be read in pari materia with the rules on Accelerated Disposition, Rule 175 et seq.

Section 3731(e)(l)(ii) provides:

(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of
(ii) not less than 30 days if the person has previously been convicted of an offense under this section or an equivalent offense in this or other jurisdictions within the previous seven years, (emphasis added)

Reading this section in conjunction with the rules on A.R.D., which provide, by Rule 181, Deferring Adjudication of the Charges Upon Admission of Program After Information or Indictment, that,

When a defendant is accepted into the program of accelerated rehabilitative disposition after information or indictment, the judge shall order that further proceedings on the charge shall be postponed during the term of the program.

Rule 185, Procedure for Obtaining Order Upon Successful Completion of the Program, provides:

When the defendant shall have completed satisfactorily the program prescribed for him and complied with its conditions, he may make an application to the court for an order dismissing the charges against him____ If there are no objections filed [by the Commonwealth] within the thirty-day period, [allowed to the Commonwealth] the judge shall thereafter dismiss the charges against the defendant.

Thus in this case, appellant entered and successfully completed the A.R.D. program. Pursuant to the requirements of the rules, charges were filed, never prosecuted, and subsequently dismissed. The appellant was never convicted. The complication arises with an additional subsection of the present act. It is further provided under 75 Pa.C.S.A. § 3731(e)(2):

Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction. (emphasis added)

The language above clearly applies to that section as presently written. Any doubt in construing a penal statute must be resolved in favor of the accused. Commonwealth v. Ashford, 263 Pa.Super. 100, 397 A.2d 420 (1979); Commonwealth v. Darush, 256 Pa.Super. 344, 389 A.2d 1156 (1978). If the legislature intended to include A.R.D. disposition under prior enactments, it could easily have incorporated language eliminating any ambiguity. The defendant who accepts A.R.D. under the 1982 amendment does so with full notice that an A.R.D. acceptance is equivalent to a conviction for future computation of penalty under the present enactment. A person who accepted A.R.D. previous to this enactment was assured by the then existing law, as applied to the rules, that successful completion of A.R.D. would result in a discharge, which cannot be construed in any fashion to be a conviction. We may not now treat this as a conviction without denial of due process because the effect is that of a conviction, resulting in a penalty, where none existed before. In our system of justice, the requirement that a persons guilt be established in accordance with due process and beyond a reasonable doubt is inviolable. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). Grady and Hernandez are not controlling here, as they were, in fact, convictions whereas here, no conviction existed by virtue of the A.R.D. discharge. The prohibition against retroactive application of the law and strict construction of a penal statute does, however, apply to prior A.R.D. cases. § 1928, supra.

It is apparent that the legislature saw a need to revise the treatment and practice of A.R.D. determinations under the practice existing before enactment of section 3731(e). An A.R.D. drunk driving discharge did not count as a first offense, but only a subsequent conviction so qualified because of the clear intent of the A.R.D. program. The new section corrects this in a fashion that comports with due process, but only prospectively. We would, therefore, construe section 3731(e)(2) to apply only to A.R.D. cases which arose subsequent to January 15, 1983 as being equivalent to a conviction for purposes of computing the penalty on subsequent convictions.

Thus we affirm in part as to the fine imposed of $300 under section 3731(e) but reverse as to the sentence of 30 days imprisonment, since as a first offender, appellant could be sentenced only to 48 hours imprisonment under section 3731(e)(l)(i).

Judgment of sentence is affirmed as to the fine of $300 and vacated as to the 30 days imprisonment; case is remanded for resentencing consistent with this Opinion.

Jurisdiction relinquished.

      . The amendment became effective January 15, 1981.

      . 1 Pa.C.S.A. § 1932. Statutes in pari materia
      (a) Statutes or parts of statutes tire in pari materia when they relate to the same persons or things or to the same class of persons or things.
      (b) Statutes in pari material shall be construed together, if possible, as one statute.

      . 1 Pa.C.S.A. § 1901 et seq. Rules of Construction, § 1928 Rules of strict and liberal construction
      (b) All provisions of a statute of the classes hereafter enumerated shall be strictly construed:
      (1) Penal provisions.
      (2) Retroactive provisions.

      . At approximately the same time this Opinion was filed, another panel filed an Opinion in Commonwealth v. David Frost, 342 Pa.Superior Ct. 173, 492 A.2d 448 (1985) on the identical issue and reaching the same result.


author: JOHNSON, Judge: OLSZEWSKI, Judge,

text:
    492 A. 2d 48
    COMMONWEALTH of Pennsylvania v. Lori B. KEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 18, 1985.
    Filed April 26, 1985.

      William F. Ochs, Jr., Public Defender, Reading, for appellant.
    George C. Yatron, District Attorney, Reading, for Commonwealth, appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant, Lori B. Key, takes this appeal from her conviction on charges of theft by unlawful taking or disposition, receiving stolen property, and criminal conspiracy. Appellant raises but one issue for our consideration: Whether the evidence was insufficient to convict appellant, in that the Commonwealth proved only appellant’s mere presence at the scene. Finding the evidence to fall far short of that needed to support appellant’s conviction beyond a reasonable doubt, we agree with appellant and hereby reverse all convictions and order appellant discharged.

Reviewing the evidence in the light most favorable to the Commonwealth, as verdict winner, the record discloses the following: On October 20, 1982, at 3:00 p.m., appellant began working her shift at the David Crystal warehouse in Reading. Appellant was folding and bagging in a department with fifteen other people. The other three individuals who were arrested with appellant later that day were working in departments different from appellant. John Thomas was working on the loading docks, Pamela Green was working in the shipping department, and Randolph Simmons was carrying boxes to the workers in the shipping department. At 6:30 p.m., while the night shift was working, the manager of security for the warehouse, David Valleau, made a complete check of the outside of the facility, including the trash bins, and did not see any merchandise hidden outside the building.

At 7:00 p.m., all of the employees in the warehouse were permitted to leave the plant to go out to eat lunch, although they had to be back by 7:30 p.m. During lunchbreak, at approximately 7:20 p.m., William Girton, a security guard for David Crystal, was sitting in his car, which was parked across the street from the warehouse, when a car with two women in the front seat drove by him. Girton did not notice if anyone was seated in the back. Girton’s attention was again drawn to the car when he saw it leave one of the parking lots at the warehouse and drive into the adjacent lot. Girton observed the car come to a stop and then saw two men, later identified as Simmons and Thomas, get out of the back seat and run up to the building. From where he sat, Girton could see that the men went to an area near the loading dock where they got two boxes. In a matter of seconds, the men ran back to the car. Girton called for assistance over a walkie-talkie to another security guard, Charles Johnson. When Girton and Johnson converged on the vehicle, one of the two male suspects had already entered the back seat of the car. (The record does not disclose whether this was Simmons or Thomas.) The other man was in the process of getting into the car. The car was a two-door model, and Girton and Johnson saw that appellant, who was in the passenger seat, was pulling the seat back forward to allow the men to enter. Pamela Green was behind the wheel.

The boxes taken by Simmons and Thomas were of a type generally available throughout the warehouse and could be obtained without special permission. Both boxes were closed and one box had no labels at all on the outside. The other had a label which indicated that the contents were supposed to be the bottom half of other smaller boxes used in packing.

Appellant took the stand at and testified that on the day in question she rode into work with Pamela Green, in Green’s car. On the lunchbreak, appellant and Green went out together in Green’s car. They ate their lunch at a fast-food place only a few minutes away from work, and were back at the parking lot of the David Crystal warehouse at about 7:15 p.m. There they encountered Simmons and Thomas, who asked the women if they could all go for a ride. The women agreed and allowed the men to get into the car. No sooner had Green pulled out of the lot than Thomas said that he had to go to the bathroom, so Green pulled into the lot on the other side of the warehouse and stopped near the building. The men then got out of the car and went down an embankment near the loadingdock. Within a short time, the men came running back with two boxes and immediately got into the car. Appellant denied that she assisted the men in getting into the car.

On the above evidence, the jury convicted appellant of theft by unlawful taking or disposition, receiving stolen property, and criminal conspiracy. Appellant argues, both here and in the trial court, that the Commonwealth proved only appellant’s mere presence at the scene. We must agree with appellant.

Although the Commonwealth does not have to establish guilt to a mathematical certainty, and may in a proper case rely upon wholly circumstantial evidence, a conviction must be based upon more than mere suspicion or conjecture. Commonwealth v. Jones, 312 Pa.Super. 496, 459 A.2d 11 (1983). Evidence of something more than mere presence at or near the scene of the crime is required to justify a conclusion that someone committed or participated in a crime. Commonwealth v. Stores, 317 Pa.Super. 109, 463 A.2d 1108 (1983). When evidence is as consistent with innocence as it is with guilt, a conviction may not stand. Commonwealth v. Davis, 312 Pa.Super. 85, 458 A.2d 248 (1983); Commonwealth v. Monville, 306 Pa.Super. 323, 452 A.2d 747 (1982). For example, in Commonwealth v. Til-man, 273 Pa.Super. 416, 417 A.2d 717 (1980), we held that where the record established only that the defendant was in the general vicinity shortly before the theft, and about a half hour afterward was found riding as a passenger in the front seat of a car which had stolen articles in the back seat, the evidence was insufficient to prove defendant’s participation in the criminal activity beyond a reasonable doubt. We noted that while the evidence raised a possibility or even a strong suspicion of the defendant’s participation, this was not enough to warrant submission of the case to the jury. See also Commonwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003 (1980) (fact that defendant was a passenger in a van which had stolen property in the back, along with paint used for painting van’s side windows, and that the operator attempted to avoid police, was insufficient to support conviction of defendant for receiving stolen goods).

In the instant case, the Commonwealth proved only that appellant was present at the time of the theft. No one saw appellant with either of the two males, who actually did the stealing, at any time except in the parking lot immediately before the theft. By testimony of the Commonwealth’s own witness, the crime was over in a matter of seconds. The boxes, which were closed at the time, gave no indication from their outside of the stolen contents. There is simply no evidence of appellant’s participation in the conspiracy among the other suspects, nor is there evidence showing her receipt of the stolen goods or her taking part in the theft. It would appear that the instant conviction is a case of guilt by association. For this reason, we would reverse and discharge appellant on all counts.

Reversed and appellant is discharged on all counts.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent. Although the evidence of appellant’s participation in the crime is scant, I would hold that the evidence was sufficient to convict and affirm the judgment of sentence.

The majority misapprehends the standard of review: we must view the evidence in the light most favorable to the Commonwealth, as verdict winner, as well as all reasonable inferences therefrom to determine whether that evidence is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Smith, 283 Pa.Super. 360, 423 A.2d 1296 (1981). The issue in this case is not, as the majority states, whether the evidence was insufficient to convict appellant, “in that the Commonwealth proved only appellant’s mere presence at the scene.” Rather, we must view all the evidence and inferences which the jury, as finder of fact, reasonably may have considered in determining appellant’s guilt. Our consideration must be guided by our traditional deference to the jury and its unique opportunity to observe the demeanor of witnesses and the subtle interplay of circumstantial evidence in this case.

In the light most favorable to the Commonwealth, I submit that the record shows that a car carrying four employees of David Crystal pulled into a lot adjacent to the warehouse. Two men got out of the back seat and ran up to the building. A security guard observed the men going to an area near the loading dock and retrieving two boxes. Seconds later, the men ran back to the car. As security converged on the car, one nian had already climbed into the back seat. The appellant, in the front passenger seat, was pulling the seat forward to allow the second man to enter.

I believe the jury reasonably may have inferred from the evidence, including appellant’s own testimony, that all four passengers participated in the theft. The appellant, as an employee of David Crystal, may reasonably be expected to know that employees do not innocently run to a loading dock, seize several company boxes, and run back to the car. The appellant’s action in assisting the men climb into the back seat is substantially more than the mere presence in the general vicinity found non-eulpable in Commonwealth v. Tillman, 273 Pa.Super. 416, 417 A.2d 717 (1980). Appellant’s action was substantially more than sitting passively as a passenger. Commonwealth v. Scudder, 490 Pa. 415, 416 A.2d 1003 (1980). The accumulated circumstantial evidence allows the inference that appellant had reasonable cause to know that the boxes were stolen, allowing a final inference that she knew the boxes were stolen. Commonwealth v. Phillips, 258 Pa.Super. 109, 392 A.2d 708 (1978).

In so far as appellant’s testimony contradicted that of the security guards as to whether she assisted the men in getting into the back seat, a question of credibility was presented for the jury. Commonwealth v. Lybrand, 272 Pa.Super 475, 416 A.2d 555 (1979). Ultimately, the issue of credibility which pervaded this trial was resolved against appellant. This court should not presume to substitute its judgment for the conviction of those who observed the trial first hand.

I would affirm the judgment of sentence.


text:
    492 A.2d 51
    COMMONWEALTH of Pennsylvania v. John KAMINSKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 18, 1985.
    Filed April 26, 1985.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

John Kaminski appeals from the denial of a pre-trial motion to dismiss, on double jeopardy grounds, charges of conspiracy, delivery of a controlled substance and knowing and intentional possession of a controlled substance.

On March 8, 1983, Appellant sold one ounce of cocaine to a Philadelphia undercover police officer for $200 down and $1,900 dollars to be paid at a later date. Three days later, on March 11th, Appellant sold an additional three ounces of cocaine to the same undercover police officer.

Appellant was tried and convicted for his involvement in the March 8th sale. Charges against Appellant in the instant case stem from the sale on March 11th.

On October 18, 1983 Appellant moved to dismiss the instant charges arguing that his conviction on charges arising from the March 8th sale barred a separate trial based upon charges from the March 11th incident. Initially, the trial court agreed with Appellant’s position but, upon reconsideration, the trial court rescinded its earlier order which granted Appellant’s motion and issued its February 29, 1984 order denying Appellant’s motion to dismiss.

Appellant argues that the Commonwealth failed to comply with 18 Pa.C.S. § 110. We agree. Section 110 provides in pertinent part:

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or conviction ... and the subsequent prosecution is for:
(ii) any offense on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense. (Emphasis added).

In Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983) our supreme court held that Section 110 of the Crimes Code was violated when the Commonwealth attempted to try Appellant for his involvement in sales of marijuana made to a self-confessed drug dealer between the end of November 1974 and the middle of January, 1975, when Appellant had already been tried and acquitted for sales of marijuana in October, 1974 to the same drug dealer.

The facts in the instant case present an even more compelling case for finding that the alleged illegal conduct arose from the “same criminal episode.” As in Hude, the instant drug sales involve the same type of contraband and were made to a single individual; but, in the case at bar, the elapsed time between sales was only three days rather than several weeks. Justice (now Chief Justice) Nix, speaking for the supreme court in Hude, discussed the “same or single criminal episode” test in the following manner:

To interpret the “single criminal episode” test in such a manner as to permit successive trials for each of the alleged transactions would clearly be offensive to the prohibition against successive prosecutions as well as an unjustifiable expenditure of judicial resources. The interpretation of the term “single criminal episode” must not be approached from a hypertechnical and rigid perspective which defeats the purposes for which it was created____ Thus, where a number of charges are logically and/or temporally related and share common issues of law and fact, a single criminal episode exists, and separate trials would involve substantial duplication and waste of scarce judicial resources. In such cases, failure to consolidate will bar successive prosecutions.

Commonwealth v. Hude, 500 Pa. at 494, 458 A.2d at 183 (citations omitted).

We find Commonwealth v. Hude to be controlling. The drug sales on March 8th and 11th arose from the same criminal episode under 18 Pa.C.S. § 110. We, therefore, reverse the trial court’s order of February 29, 1984 and order Appellant discharged.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent.

Appellant has invoked the Campana rule, Section 110 of the Crimes Code, and the constitutional guarantees against double jeopardy. I do not agree that the Commonwealth’s failure initially to consolidate the two prosecutions bars prosecution on the instant charges. For the reasons below, I would affirm the lower court’s order.

Section 110 of the Crimes Code in pertinent part provides:

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or a conviction ... and the subsequent prosecution is for:
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense.

18 Pa.C.S.Sec. 110(l)(ii) (emphasis added). Simply stated, where two offenses form part and parcel of the same criminal episode, prosecution for one offense will bar a subsequent prosecution for the second, different offense.

“(W)here a number of charges are logically and/or temporally related and share common issues of law and fact, a single criminal episode exists.” Commonwealth v. Hude, 500 Pa. at 494, 458 A.2d at 183. Reviewing the record and the brief, we find appellant has failed to establish sufficient nexus between the March 8th and March 11th sales. We start with the fact of successive sales to the same undercover police officer. Those sales spanned a period of four days. The first sale, March 8, 1983, involved a single ounce of cocaine. Only at the second sale, March 11, 1983, did appellant meeting the officer at a pre-designated time offer him the larger amount three ounces of cocaine. The two arrests did result from one continuing undercover investigation of appellant by the Philadelphia police. I am not satisfied, however, that the individual sales were so Iogically/temporally linked as to constitute the “same criminal episode.”

The Hude court, interpreting Sec. 110, noted the lack of a bright-line rule. Id., 500 Pa. at 490, 458 A.2d at 181. In its stead, the court employed a fact-sensitive analysis looking first to the temporal sequence of events, then to their logical relationship. Id. See, e.g., Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 (1981) (possession of heroin and a gun at precisely the same time); Commonwealth v. Muffley, 493 Pa. 32, 425 A.2d 350 (1981) (possession of marijuana and LSD at the same time); but see Commonwealth v. Stewart, 325 Pa.Super. 465, 473 A.2d 161 (1984) (no logical relationship between the contemporaneous crimes of theft by receiving stolen property and possession of a controlled substance). Further the Court cautioned that “single criminal episode” must be read broadly, not “approached from a hypertechnical and rigid perspective which defeats the purposes for which it was created.”

Commonwealth v. Hude, 500 Pa. at 494, 458 A.2d at 183. Those purposes are twofold:

(1) to protect a person accused of crimes from governmental harassment of being forced to undergo successive trial for offenses stemming from the same criminal episode; and
(2) as a matter of judicial administration and economy, to assure finality without unduly overburdening the judicial process by repetitious litigation.

Id., 500 Pa. at 495, 458 A.2d at 180. Compare Commonwealth v. Dozier, 333 Pa.Super. 188, 482 A.2d 236 (1984) (court refusing to enforce admittedly applicable Sec. 110 “where its application fails to serve the purposes for which it was designed.”).

Vagaries appear as courts test the bounds of “same criminal episode.” In Hude, for instance, the Court found one episode from eight sales over four months. Today I find separate episodes from two sales in four days. The problem in its extreme is illustrated by Judge McEwen’s dissent in Commonwealth v. Stewart, 325 Pa.Super. 465, 473 A.2d 161 (1984). There Judge McEwen compares the facts of that case with those of the (unrelated) Supreme Court case, Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 (1981). On facts under Judge McEwen’s analysis strikingly similar, different relief results. In the Superior Court case, denial of the defendant’s motion to dismiss is affirmed; in the Supreme Court case, judgment of sentence is reversed and the defendant dismissed.

The problem is exacerbated where, as here, the offenses could arguably have been joined for trial. Under Rule 1127:

Offenses charged in separate indictments or informations may be tried together if: (a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or (b) the offenses charged are based on the same act or transaction.

Pa.R.Crim.P., Rule 1127, 42 Pa.C.S.A. See Commonwealth v. Taylor, 299 Pa.Super. 113, 121, 445 A.2d 174, 182 (1982) (explaining that the later transaction could be admissible to explain discussions at the earlier sale; similarly, at trial for second sale, Commonwealth could refer back to first sale to explain how second sale was arranged). Section 110 seemingly anticipates a presumptive joinder. Under that section, the Commonwealth having joined the offenses need only request the court grant separate trials. 18 Pa.C.S.Sec. 110(1X2).

Confusion will continue until such time as we draw a line between when Commonwealth may and when it must seek joinder. See Commonwealth v. Slyman, 334 Pa.Super. 415, 483 A.2d 519 (1984) (upholding consolidation of six informations for sales over a two-month period); Commonwealth v. Taylor, 299 Pa.Super. 113, 445 A.2d 174 (1982) (two drug sales in two months); Commonwealth v. Fiorini, 257 Pa.Super. 185, 390 A.2d 774 (1978) (five drug sales in a “series of clandestine meetings”).

The lower court, ruling on Commonwealth’s motion to reconsider, relied upon this Court’s decision in Commonwealth v. Webster, 323 Pa.Super. 164, 470 A.2d 532 (1983). That case involved multiple actors on multiple charges. Defense had moved to consolidate the charges by actor; Commonwealth sought joinder of defendants by alleged offense. The trial court denied appellant’s request that all charges against her be consolidated in one trial. A panel of this Court affirmed.

Webster dealt with a trial court’s discretion in awarding separate trials under Sec. 110. The case at bar deals with the Commonwealth’s failure to move for joinder. Webster does not control our decision today. Some clarification of that decision, however, is necessary. In Webster, the Court seeking to distinguish Hude purported to limit that case to its facts. Limitation of the Supreme Court’s holding must, of course, be accomplished by that Court. Other panels of our Court have endorsed, and even extended, the holding in Hude. See Commonwealth v. Abbott, 319 Pa.Super. 479, 466 A.2d 644 (1983); Commonwealth v. Gaerttner, 316 Pa.Super. 183, 462 A.2d 855 (1983).

I would affirm the order below.

      . Denial of a motion to dismiss on double jeopardy grounds is immediately appealable despite the interlocutory aspects of the order. Commonwealth v. Edwards, 264 Pa.Super. 223, 399 A.2d 747 (1979).

      . Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).

      . 18 Pa.C.S.Sec. 110.

      . U.S. Const, amend. V; Pa. Const. Art. I, Sec. 10.

      . (I)f the provisions of Section 110 are satisfied, there will also have been compliance with the requirement as set forth under the Campana rule. The necessity to consider the double jeopardy complaints will arise only if it is determined that the statutory provision does not require the grant of relief requested.

        Commonwealth v. Hude, 500 Pa. 482, 489, 458 A.2d 177, 180 (1983). Here appellant raises but does not develop the double jeopardy argument.

      . Prosecution, not defense, has the burden of seeking consolidation. See Commonwealth v. Stewart, 493 Pa. at 29, 425 A.2d at 349-350.

      . Commonwealth, in its letter-brief, has suggested several tests. I agree with appellant that, as Sec. 110 specifically requires consolidation even if the subsequent prosecution is based on different facts or a different provision of the statutes, “different evidence,” “different police officers” and “different provisions” are insufficient factors. There will always be differences, witnesses, time, place, etc., between any two prosecutions. To hold that can be no consolidations for those differences is to gut Campana and Sec. 110.


author: WATKINS, Judge:

text:
    492 A.2d 55
    COMMONWEALTH of Pennsylvania v. David PHILLIPS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1985.
    Filed April 26, 1985.

      Dorothy Livaditis, York, for appellant.
    J. Christian Ness, District Attorney, York, for Commonwealth, appellee.
    Before POPOVICH, WATKINS and LIPEZ, JJ.
   WATKINS, Judge:

This is an appeal from the judgment of sentence dated January 23, 1984, in the Court of Common Pleas of York County. On November 7, 1983, the appellant entered a guilty plea to the offenses of burglary and theft alleged to have occurred on May 24, 1983. On January 23, 1984, the appellant was sentenced to a term of not less than three (3) years nor more than six (6) years in a state correctional institution. A subsequent petition for reconsideration was denied and this appeal followed.

The first issue raised by the appellant concerns the lower court’s computation of the “Prior Record Score” which becomes material in the application of the Pennsylvania Sentencing Guidelines, 204 Pa.Code Ch. 303. In arriving at the sentence to be imposed upon the appellant, the lower court relied upon a prior record score of six, which is the maximum that can be used in any case. The lower court’s reliance was based partly upon the Pre-Sentence Report prepared by the York County Probation Department. According to the report, the appellant had three prior juvenile adjudications for burglary. However, the appellant has taken the position that he had only been adjudicated delinquent within the meaning of the Sentencing Guidelines on one occasion and, therefore, his prior record score should have been two points.

In support of his position, the appellant cites Section 303.7(b)(l)(ii) of the Sentencing Guidelines which provides as follows:

§ 303.7. Prior record score.
(b) Adjudications of delinquency and other prior convictions.
(1) The offenses scored in this subsection are as follows:
(ii) All prior juvenile adjudications of delinquency where there was an express finding that the adjudication was based on the commission of a felony or one of the weapons misdemeanors listed in subsection (a)(3) where the adjudication occurred on or after the defendant’s 14th birthday.

Section 303.7(b)(2)(ii) of the Sentencing Guidelines provides that two points are to be added for each adjudication for any felony I or II not listed in subparagraph (i). Since burglary is not among those felonies listed in subparagraph (i), two points should be added to the prior record score for each such adjudication. According to the provisions quoted above, if, in fact, the appellant had three prior juvenile adjudications for burglary, his prior record score would properly have been computed to be six points. However, if the appellant is correct, his prior record score should have been computed to be two points.

The confusion in this case arises from differing interpretations of two orders entered by the Honorable Robert J. Shadle, who was Juvenile Court Judge in York County on two occasions when the appellant appeared before that court. The first order, which was entered on March 13, 1980, provided as follows:

“In this case, we find as facts that David did commit the offense of attempted theft with regard to the parking meters and the offense of burglary, as charged in the two complaints. These are violations of the criminal law. We adjudge David to be a delinquent youth and we make him a ward of the Court.”

The appellant concedes that this Order did constitute an adjudication of delinquency within the meaning of Section 303.7(b)(l)(ii) of the Sentencing Guidelines, supra.

The appellant was released on probation following the adjudication of March 13, 1980. On May 30, 1980, a new petition was filed with the Juvenile Court alleging that the appellant had violated the conditions of his probation in that, inter alia, he had committed various crimes which resulted in the filing of four additional complaints against him. A probation violation hearing was held and, on June 12, 1980, Judge Shadle entered the following Order:

“AND NOW, TO WIT, this 12th day of June, 1980, in this case we find that David has failed to comply with the Order of Court previously entered with respect to employment or entering the Job Corps; that since that time he has committed or participated in the various burglaries and thefts as charged in the complaints. These are additional violations of the law. We adjudge David to be in violation of the terms of his parole.” (Emphasis— ours)

The lower court held that the Order dated June 12, 1980, constituted two additional adjudications of delinquency within the meaning of Section 303.7(b)(l)(ii) of the Sentencing Guidelines, supra. The appellant had taken the position that this Order does not contain any additional adjudications because there is “no express finding that the adjudication was based on the commission of a felony” as required by Section 303.7(b)(l)(ii).

Although Judge Shadle’s Order of June 12, 1980 did not specifically adjudge the appellant to be delinquent, we do not believe, under the circumstances presented here, that a specific adjudication is a prerequisite to the inclusion of the two burglaries in the computation of the appellant’s prior record score. The appellant was already under the jurisdiction of the Juvenile Court at the time the alleged offenses to which Judge Shadle referred were committed. Therefore, the disposition of those offenses was made part of a probation violation hearing. The pertinent part of Section 303.7(b)(l)(ii) is that which requires “an express finding that the adjudication was based on the commission of a felony ...” Judge Shadle made an express finding in his Order of June 12, 1980, that the appellant had committed the two burglaries as charged in the complaints. A careful reading of Section 303.7 of the Sentencing guidelines, and the mere existence of the prior record score provision itself, evidences the fact that those with a pattern of serious criminal conduct are to be judged more harshly than those whose conduct evidences no such pattern. Therefore, we believe that the primary consideration in this case is whether the appellant had been expressly adjudged by Judge Shadle to have committed the two burglaries. Since he made such an express finding, we hold that the lower court was correct in including those two burglaries in the computation of the appellant’s prior record score.

The other issues raised by the appellant concern whether the sentence imposed was excessive or in violation of Section 9721(b) of the Sentencing Code, 42 Pa.C.S. § 9721(b), in that it exceeds the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the appellant.

Where the statute under which a defendant is convicted carries no specified penalty, sentencing is a matter within the sound discretion of the trial judge, whose determination will not be disturbed unless there is an abuse of that discretion. Commonwealth v. Bedleyoung, 319 Pa.Superior Ct. 323, 466 A.2d 180 (1983). An abuse of discretion will be found only where the sentence exceeds the statutory limits or is manifestly excessive. Commonwealth v. Lee, 254 Pa.Superior Ct. 291, 385 A.2d 1025 (1978). Since the appellant’s sentence does not exceed the statutory maximum, we need review the sentence only to determine whether it is manifestly excessive.

Guidelines have been established by the legislature for consideration by trial judges in the imposition of sentences. The guidelines require judges to “follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community and the rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). Judges are to apply this principle in choosing among the available sentencing alternatives; Probation, determination of guilt without penalty, partial confinement, total confinement, and fines. 42 Pa.C.S. § 9721(a). Further, in imposing sentence, each judge must make part of the record a statement of the reason or reasons for the sentence imposed. 42 Pa.C.S. § 9721(b). This statement of reasons must show that in imposing sentence, the judge attached weight to the factors set forth in the statutory guidelines for sentencing and carefully considered the facts concerning the circumstances of the offense and the character of the defendant. Commonwealth v. Wicks, 265 Pa.Superior Ct. 305, 401 A.2d 1223 (1979). Reference should be made to the individual’s prior criminal record, his age, his personal characteristics and his potential for rehabilitation. Commonwealth v. O’Brien, 282 Pa.Superior Ct. 193, 197, 422 A.2d 894, 896 (1980).

The lower court’s statement of reasons for the imposition of the subject sentence states that the judge considered the various sentencing alternatives before imposing a sentence of total confinement. He also considered the presentence report, the particular circumstances of the offense, the appellant’s age, and his prior contacts with the court. On the positive side, the judge noted that the appellant was only nineteen years of age at the time of the offense and that he had no prior record of conviction as an adult. He determined, however, that the negative factors outweighed the positive factors. On the negative side, the judge noted that this particular offense involved a burglary and theft of eight weapons, specifically guns. There was also damage done to the premises during the burglary. Further, the appellant had been given the opportunity for treatment and rehabilitation at the Glen Mills School while he was a juvenile. Those efforts at rehabilitation were apparently ineffective. Finally, the judge noted that although the appellant had no prior record as an adult, this offense took place less than one year after his discharge from the jurisdiction of the juvenile court. Based upon all of the above factors, the judge determined that a sentence of total confinement for a period of time falling within the minimum range was appropriate.

We find that the lower court considered all the factors required by law and its determination is adequately supported by the record. We conclude, therefore, that the sentence imposed is not excessive and the lower court did not abuse its discretion.

Judgment of sentence affirmed.


author: CERCONE, Judge:

text:
    492 A.2d 59
    Brian M. PILON v. Medine PILON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 25, 1985.
    Filed April 26, 1985.

      Bernard T. McArdle, Greensburg, for appellant.
    Joseph B. Govi, Greensburg, for appellee.
    Before McEWEN, CERCONE and HANDLER , JJ.

       Judge Earl R. Handler of the Court of Common Pleas of Indiana County, Pennsylvania, is sitting by designation.

   CERCONE, Judge:

This is an appeal from a child custody order entered on January 30, 1984, in the Court of Common Pleas of Westmoreland County by the Honorable Donetta W. Ambrose, J. Appellant is Medine Pilón, the mother, and appellee is Brian M. Pilón, the father.

The parties were divorced by Decree on January 29, 1982, and by a consent order signed by the Honorable Charles E. Marker, J., custody of the four children was vested in the mother with visitation privileges in the father every weekend an as the parties should agree. The children born of the marriage of the parties include: Adam Pilón, born November 16, 1972; Heather Pilón, born January 8, 1977; and Shane Pilón, born July 31, 1978. A fourth child, the oldest, Leyla Pilón, born August 15, 1969, was adopted by the parties during their marriage.

On May 26, 1983, the father filed a claim seeking a modification of the Consent Order to obtain custody of the four children. After hearing all of the evidence, Judge Ambrose issued Findings of Fact, Conclusions of Law and an Order of Court, which directed 1.) that the two older children, Leyla, then age 14, and Adam, then age 11, were to remain in the custody of their mother, and 2.) that the two younger children, Heather, then age 7, and Shane, then age 5, were to be in the custody of their father. It is this order from which the mother appeals.

The sole issue raised on appeal is that the court below abused its discretion in dividing the children between the mother and the father in the absence of compelling reasons to do so. Our scope of review in custody cases is clear.

[It] is of the broadest type ... Thus, an appellate court is not bound by deductions or inferences made by a trial court from the facts found; ... nor must a reviewing court accept a finding which has no competent evidence to support it ... [However], this [broad] power of review was never intended to mean that an appellate court is free to nullify the fact finding function of the hearing judge ...

Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 236, 478 A.2d 800, 804 (1984), citing Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977).

It is with this backdrop that we review the instant matter. At the outset, we must emphasize that the cardinal concern in all custody matters is the best interest and permanent welfare of the child, in this case, children. It has always been a strong policy in our law that in the absence of compelling reasons to the contrary, siblings should be raised together whenever possible. In re Davis, 502 Pa. 110, 465 A.2d 614 (1983); Witmayer v. Witmayer, 320 Pa.Super.Ct. 372, 467 A.2d 371 (1983); Hall v. Mason, 316 Pa.Superior Ct. 160, 462 A.2d 843 (1983); Albright v. Commonwealth ex rel. Fetters, 491 Pa.( 320, 421 A.2d 157 (1980). The phrase “compelling reasons” has, however, never been defined in this context. Yet, President Judge Spaeth, when outlining the burden of proof that a third party bears in a custody case, had occasion to examine the phrase “compelling reasons” in In re Custody of Hernandez, 249 Pa.Superior Ct. 274, 376 A.2d 648 (1977). Therein, he wrote, “The ... requirement of a showing of ‘compelling reasons’ ... might appear synonymous with the ‘clear necessity’ requirement of the Juvenile Act ... If one is ‘compelled’ to do something, it might be said that is is ‘necessary’ to do it.” Id., 249 Pa.Superior Ct. at 283-4, 376 A.2d at 653-4. Moreover, the term “compelling” is defined as “tending to convince or convert by or as if by forcefulness of evidence.” Websters 3rd New International Dictionary, unabridged ed. 1981. The question, then, is did the evidence indicate that it was “necessary” to separate the children, was the evidence “forceful” in this regard, or was it, in other words, “compelling.” Rather than view the evidence in this view, the lower court judge expressed the standard in terms of good reason; that is, in the lower court opinion the following appeared:

It is true that there is a strong policy in our law to avoid separating siblings ... However, this policy does not apply where there is a good reason for separation ... An examination of the reasons for separating these children demonstrates that good reasons were present.

Although we do not want to engage in a game of semantics, we believe that good reasons are not necessarily the compelling reasons required for disrupting the integrity of the family unit. And, absent these compelling reasons, the children should be raised together in one household, for this permits the continuity and stability necessary for a young child’s development. Witmayer v. Witmayer, supra.

To offer a bit more concrete direction, we suggest that the lower court, based upon the facts elicited, carefully outline the detriments or benefits that would result if the minors were or were not raised in the same house, keeping in mind that the detriments or benefits must be “compélling” to permit division of the children between the parents. Herein, the court drew its inferences and deductions and decided that “good reasons” existed to allow such a separation. As explained previously, “good reasons” are not necessarily the requisite “compelling reasons.” Accordingly, we vacate the order of the lower court and remand the case to that court in order for the court to reassess the fact for a determination of whether “compelling reasons” exist, allowing the children to be separated between the parents.

Order of lower court is vacated and case is remanded. Jurisdiction is relinquished.

      . In discussing the confusion which existed concerning third party burdens in custody cases, President Judge Spaeth pointed out that three different standards were applied, one of which was that absent “compelling reasons” to the contrary, it will be presumed that the child’s best interest will be served by being raised by its parents. In Hernandez he rejected this standard, in favor of a standard which recognized the parents prima facie right to custody which may be forfeited only if "convincing reasons” appear that the best interests of the child would be served by awarding custody to someone else.


author: PER CURIAM:

text:
    492 A.2d 61
    COMMONWEALTH of Pennsylvania v. Dwayne Keith HICKS a/k/a Dwayne Hicks, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 27, 1984.
    Filed April 26, 1985.
    John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   PER CURIAM:

This Opinion will supplement our earlier Opinion Per Curiam filed June 1, 1984. 328 Pa.Super. 233, 476 A.2d 978.

We have now thoroughly reviewed the trial record, briefs submitted by counsel, applicable law and the Opinion of the Honorable Samuel Strauss filed December 14, 1984.

We agree with Judge Strauss that there is no merit whatsoever to any of the issues raised in this appeal.

Judgment of sentence affirmed.


author: HOFFMAN, Judge:

text:
    492 A.2d 63
    COMMONWEALTH of Pennsylvania v. Carl Edward COOKE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 10, 1984.
    Decided April 4, 1985.
    Petition for Allowance of Appeal Denied Sept. 16, 1985.

      Robert A. Longo, Lancaster, for appellant.
    Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that (1) the lower court erred in denying his motion for a change of venue and a mistrial, (2) the evidence was insufficient to support his convictions for attempted robbery and conspiracy, and (3) the mandatory sentence imposed upon him pursuant to 42 Pa.C.S.A. § 9712 was unconstitutional. We vacate the judgment of sentence in part.

On June 12, 1982, appellant and Robert Dixon were arrested and charged with attempted robbery and conspiracy. Appellant filed a pre-trial motion for change of venue which was denied on September 17, 1982. Following a November 15, 1982 jury trial, appellant was found guilty of both charges. On November 18, he filed post-verdict motions which were denied on July 6, 1983. On September 2, 1983, appellant was sentenced to a term of imprisonment of five-to-ten years on the attempted robbery charge, and to a concurrent term of ten years probation on the conspiracy charge. This appeal followed.

Appellant first contends that the lower court erred in denying his motion for a change of venue due to pretrial publicity. Appellant and Robert Dixon were the first defendants to be charged with crimes which would subject them to the mandatory minimum sentence requirements of a new statute. See 42 Pa.C.S.A. § 9712 (five years minimum sentence for committing certain crimes with a gun). As a result, on July 14, 1982, two articles were published in a Lancaster newspaper detailing the Commonwealth’s intent to apply the mandatory sentence to appellant and Dixon. On July 16, another article reported the dismissal of the attempted robbery charge against Dixon. On July 21, the newspaper reported that appellant would stand trial on charges of attempted robbery and conspiracy and summarized the testimony at appellant’s pretrial hearing. On August 17, the newspaper reported that appellant’s parole for a previous crime had been revoked.

An application for a change of venue is addressed to the sound discretion of the trial court, and its exercise of that discretion will not be reversed absent abuse. Commonwealth v. Tolassi, 489 Pa. 41, 50, 413 A.2d 1003, 1007; Commonwealth v. Casper, 481 Pa. 143, 150, 392 A.2d 287, 290-91 (1978); Commonwealth v. Keeler, 302 Pa.Superior Ct. 324, 328, 448 A.2d 1064, 1065-66 (1982). Therefore, this Court’s only inquiry is whether any juror formed a fixed opinion of appellant’s guilt as a result of the pretrial publicity. Commonwealth v. Casper, supra; Commonwealth v. Kichline, 468 Pa. 265, 273, 361 A.2d 282, 287 (1976). Ordinarily, one who claims that he was denied a fair trial by prejudicial publicity must show actual prejudice in the empaneling of the jury. Commonwealth v. Casper, supra; Commonwealth v. Keeler, supra. However, our Supreme Court has made an exception to that rule for cases in which pretrial publicity is “ ‘so sustained, so pervasive, so inflammatory, and so inculpatory as to demand a change of venue,’ ” because circumstances make it apparent that a fair trial cannot be held. Commonwealth v. Casper, supra 481 Pa. at 151, 392 A.2d 291, quoting Commonwealth v. Frazier, 471 Pa. 121, 127, 369 A.2d 1224, 1227 (1977). If the pretrial publicity is not inherently prejudicial, however, this Court will consider the following factors in assessing whether the trial court abused its discretion in denying a change of venue:

(1) the length of time between the publicity and the trial;
(2) the nature and extent of the publicity (whether inflammatory or basically factual and how pervasively the information has been disseminated); (3) the degree to which the information is attributable to police or prosecution sources; (4) the community atmosphere; (5) the trial court’s efforts to insulate the jury against and/or diminish the impact of the publicity; and (6) the probable efficacy of a change of venue.

Commonwealth v. Richardson, 476 Pa. 571, 586, 383 A.2d 510, 518 (1978), cert. denied, 436 U.S. 910, 98 S.Ct. 2248, 56 L.Ed.2d 410 (1978) (citations omitted); Commonwealth v. Keeler, supra 302 Pa.Super. at 329-30, 448 A.2d at 1066-67.

Here, appellant alleges that the pretrial publicity was prejudicial and inflammatory because it (1) stressed the applicability of the new mandatory sentencing statute, (2) quoted a police captain’s statement that appellant and Dixon would get “no deals”, (3) noted that Dixon had given police a statement implicating appellant, and (4) reported the revocation of appellant’s parole on a prior criminal charge. We do not believe that the four articles cited by appellant constitute publicity so sustained and inflammatory as to be inherently prejudicial and deny him a fair trial. We base our conclusion on the following factors: the reporting was basically factual, the four articles could not constitute “pervasive dissemination” of the information, and three months elapsed between the last of the four articles and the beginning of appellant’s trial. See Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220 (1981) (five-and-one-half months “cooling-off period” sufficient); Commonwealth v. Casper, supra (two-and-one-half months sufficient); Commonwealth v. Kivlin, 267 Pa.Superior Ct. 270, 406 A.2d 799 (1979) (two months sufficient). Appellant has also failed to allege or show that there was actual prejudice in the empaneling of the jury. Under these circumstances, we find that the trial court did not abuse its discretion in denying appellant’s motion for a change of venue.

Appellant argues next that the trial court should have granted a mistrial when a police officer allegedly testified to prior criminal conduct by appellant as follows:

[Commonwealth Attorney]: What caused you to say Mr. Cooke had the gun?
[Police Officer]: I really don’t know. I just — it just slipped my mind for a moment but I do — I do remember that I had Mr. Cooke at the vehicle because I knew Mr. Cooke from speaking to him before.

(N.T. November 15, 1982 at 44) (emphasis added). At that point, appellant’s counsel objected and requested a mistrial and a curative instruction. The trial court refused both requests, stating that a curative instruction would just bring attention to the remark. (Id. at 45).

If testimony indicates to the jury that the accused has been involved in prior criminal activity, a mistrial is warranted. Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979); Commonwealth v. Colon, 264 Pa. Superior Ct. 314, 321, 399 A.2d 1068, 1071 (1977). In the instant case, the police officer’s remark that he knew appellant “from speaking to him before” cannot reasonably be construed as indicating to the jury that appellant had been involved in prior criminal conduct. See, e.g., Commonwealth v. Starks, 484 Pa. 399, 399 A.2d 353 (1979) (police officer’s testimony that he knew defendant’s nickname “from other contacts” with him did not imply prior criminal conduct); Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978) (police officer’s testimony that he knew where defendant lived did not indicate defendant had prior criminal activity). Moreover, we agree with the trial court that a curative instruction would only have drawn unnecessary attention to the remark. Accordingly, we hold that the court below properly denied appellant’s motions for a mistrial and a curative instruction.

Appellant also contends that the evidence presented at his trial was insufficient to sustain his convictions for attempted robbery and conspiracy. The test for the sufficiency of the evidence in a criminal case is whether the evidence admitted at trial is sufficient to prove every element of the crimes charged beyond a reasonable doubt. Commonwealth v. Smith, 502 Pa. 600, 604, 467 A.2d 1120, 1122 (1983). In making this determination, the reviewing court must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder could properly have based its verdict. Commonwealth v. Davis, 491 Pa. 363, 369, 421 A.2d 179, 182 (1980).

The elements of the crime of attempt are (1) an intent to commit a specific crime and (2) any act constituting a substantial step toward the commission of that crime. Commonwealth v. Chance, 312 Pa.Superior Ct. 435, 441-443, 458 A.2d 1371, 1374 (1983). See also 18 Pa.C.S.A. § 901(a). The elements of the offenses of robbery and conspiracy are as follows:

(1) A person is guilty of robbery if, in the course of committing a theft, he:
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony of the first or second degree;
(2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.

18 Pa.C.S.A. § 3701(a).

(a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903(a). However, because an express agreement to commit a crime can seldom be proved by direct evidence, circumstantial evidence may be used to establish the conspiracy. Commonwealth v. Kennedy, 499 Pa. 389, 395, 453 A.2d 927, 929-930 (1982); Commonwealth v. Eiland, 450 Pa. 566, 570, 301 A.2d 651, 652-53 (1973).

Among the circumstances relevant, but not sufficient by themselves, to prove a corrupt confederacy are (1) association between alleged conspirators, ...; (2) knowledge of the commission of a crime, ...; (3) presence at the scene of the crime, ...; and (4) in some situations, participation in the object of the conspiracy,____ However, while such circumstances are insufficient standing alone, they may furnish a web of evidence linking an accused to the alleged conspiracy beyond a reasonable doubt “when viewed in conjunction with each other and in the context in which they occurred.” Commonwealth v. Clarke, 256 Pa. Superior Ct. 97, 103, 389 A.2d 619, 621 (1978).

Commonwealth v. Anderson, 265 Pa.Superior Ct. 494, 500-01, 402 A.2d 546, 549-550 (1979) (citations omitted).

With these principles in mind, we review the facts of the instant case: On June 12, 1982, at approximately 10:15 p.m., Charles Sanford left a tavern to walk home. (N.T. November 15, 1982 at 12). As he walked along the street, he noticed that two men walking behind him parted company. (Id. at 13). One of them jogged by Sanford and feigned a leg injury. (Id. at 13-14). Sanford looked back over his shoulder just as the other man, appellant, ran up to him and said, “don’t move, give me your money.” (Id. at 14). Appellant had a gun in his hand and pointed it at Sanford’s midsection. (Id. at 14-16). Sanford yelled “no” and ran across the street. He testified that the incident was one-and-a-half-to-two minutes in duration, that appellant was an arm’s length away from him, and that the area was amply lit. (Id. at 16). Sanford then ran to a nearby police station where he described the two men as black, one taller than the other, and one wearing a jogging suit with a white stripe. (Id. at 24). After driving around the neighborhood with two police officers for about ten minutes, Sanford spotted appellant and Robert Dixon walking together about two or three blocks from the scene of the crime. (Id. at 27, 30). Dixon, who is shorter than appellant, was wearing a sweatsuit. (Id. at 35, 54). Sanford positively identified appellant and Dixon as the men who had accosted him. (Id. at 28, 34, 38, 42). When the police searched the men, they found a handgun in Dixon’s pocket. (Id. at 35-37). Later, at the police station, eight live bullets of the same type as those in the gun were found in appellant’s jacket pocket. (Id. at 52).

On these facts, we find that the jury reasonably concluded that there was sufficient evidence to find appellant guilty of attempted robbery and conspiracy. Although there is no direct evidence of appellant’s agreement to commit a crime, we think that his presence at the scene of the crime, his association with Dixon, Dixon’s apparent attempt to distract Sanford, and appellant’s joint control of the gun with Dixon are more than sufficient to create a “web of evidence” linking him to the conspiracy.

Finally, appellant contends that the statute which required that he be sentenced to a minimum term of five years imprisonment for attempted robbery with a visible firearm is unconstitutional. See 42 Pa.C.S.A. § 9712. Specifically, he argues that the law violates his right to due process because the legislature has removed the discretion of the sentencing judge to sentence a defendant to a lesser term.

“Our analysis begins with the strong presumption of constitutionality and the heavy burden of persuasion upon one who challenges the constitutionality of an Act of the General Assembly.” Commonwealth v. Mikulan, 504 Pa. 244, 247, 470 A.2d 1339, 1340 (1983). We therefore will not declare an act void unless its violation of the Constitution is so clear as to preclude doubt or hesitation. Commonwealth v. Bryant, 239 Pa.Superior Ct. 43, 46, 361 A.2d 350, 351-52 (1976).

Although the judiciary imposes sentences upon conviction, the fixing of penalties for crimes is a task for the legislature, and, as one of its options, the legislature may prescribe a mandatory minimum term of imprisonment. Commonwealth v. Hernandez, 339 Pa.Superior Ct. 32, 40, 488 A.2d 293, 297 (1985); Commonwealth v. Bryant, supra. “[D]ue process of law is not violated when courts accede to legislative authority to frame a coherent statutory scheme for the administration of sentencing for certain criminal offenses.” Commonwealth v. Hernandez, supra, 339 Pa.Superior Ct. at 42, 488 A.2d at 298. Furthermore, courts have upheld the constitutionality of mandatory sentencing provisions on numerous occasions. See Commonwealth v. Hernandez, supra (mandatory minimum three year sentence for vehicular homicide while driving under the influence — 75 Pa.C.S.A. § 3735(a)); Commonwealth v. Waters, 334 Pa.Superior Ct. 513, 483 A.2d 855 (1984) (mandatory life sentence for first degree murder — 18 Pa.C.S.A. § 3123(5)); Commonwealth v. Middleton, 320 Pa.Superior Ct. 533, 467 A.2d 841 (1983) (mandatory life sentence for felony murder — 18 Pa.C.S.A. § 1102(b)); Commonwealth v. Dessus, 262 Pa. Superior Ct. 443, 396 A.2d 1254 (1978) (mandatory life sentence for assault by a life prisoner — 18 Pa.C.S.A. § 2704).

Appellant argues that the mandatory sentence provision violates the individualized consideration which the Sentencing Guidelines require sentencing judges to give each offender and crime. The statute, however, states that the Sentencing Guidelines do not supersede the mandatory sentencing provision. See 42 Pa.C.S.A. § 9712(c). We have previously held that the Eighth Amendment requirement for individualized consideration of offender and crime in capital cases has not been extended to non-capital offenses. Commonwealth v. Waters, supra 334 Pa.Superior Ct. at 525-526, 483 A.2d at 861; Commonwealth v. Dessus, supra 262 Pa.Super.Ct. at 450, 396 A.2d at 1257. Therefore, the creation of mandatory minimum sentences which remove judicial sentencing discretion in non-capital cases is not a constitutional violation.

In the instant case, the mandatory five year minimum sentence for the commission of certain serious crimes with a visible firearm is designed to protect human life and is reasonably related to accomplishing that goal. We therefore find that the mandatory sentencing provision in 42 Pa.C.S.A. § 9712 does not violate due process of law. We are further persuaded in this result by decisions in other jurisdictions upholding the constitutionality of similar laws. See, e.g., Rocker v. State, 443 So.2d 1316 (Ala.Crim.App. 1983), cert. denied, Ala.Sup.Ct. No. 83-211 (1984) (mandatory ten year minimum sentence for using a gun while committing certain felonies); State v. Williams, 115 Ariz. 288, 564 P.2d 1255 (1977) (defendant must serve minimum sentence for armed robbery or assault without being eligible for parole, probation, suspension, etc.); Sowell v. State, 342 So.2d 969 (Fla.1977) (three year mandatory minimum sentence for aggravated assault with a firearm); State v. Holmes, 276 N.W.2d 823 (Iowa 1979) (five year mandatory minimum sentence for committing forcible felony with a gun); State v. DeCourcy, 224 Kan. 278, 580 P.2d 86 (1978) (five year mandatory minimum sentence for committing certain crimes with a gun); State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978) (same); State v. Des Marets, 92 N.J. 62, 455 A.2d 1074 (1983) (three year mandatory minimum sentence for use/possession of a gun during commission of certain serious offenses).

We note, however, that appellant was improperly convicted and sentenced for two inchoate crimes, criminal attempt (18 Pa.C.S.A. § 901) and criminal conspiracy (18 Pa.C.S.A. § 903). Conviction on both of these charges is prohibited by 18 Pa.C.S.A. § 906. See Commonwealth v. Watts, 319 Pa.Superior Ct. 137, 465 A.2d 1267 (1983): When a lower court improperly convicts and sentences a defendant for two inchoate crimes, this Court has the option either to remand for resentencing or amend the sentence directly. Commonwealth v. Watts, supra; Commonwealth v. Gonzales, 297 Pa.Superior Ct. 66, 443 A.2d 301 (1982). Because the lower court imposed concurrent sentences, we need not remand for resentencing but will simply vacate the judgment of sentence imposed on the criminal conspiracy charge. See Commonwealth v. Kinnon, 308 Pa.Superior Ct. 28, 453 A.2d 1051 (1982).

Judgment of sentence for criminal conspiracy is vacated. Judgment of sentence for attempted robbery is affirmed.

      . Although appellant did not raise this issue at sentencing or in a motion to modify sentence, the legality of a sentence can never be waived. Commonwealth v. Norris, 498 Pa. 308, 319 n. 9, 446 A.2d 246, 251 n. 9 (1982); Commonwealth v. Fulton, 315 Pa.Superior Ct. 420, 422 n. 4, 462 A.2d 265, 266 n. 4 (1983). An illegal sentence is void. See Commonwealth v. Hoffman, 210 Pa.Superior Ct. 48, 232 A.2d 19 (1967).

      . 42 Pa.C.S.A. § 9712 provides:

        (a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(1)(f), (ii), or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
      (c) Authority of court in sentencing. — There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.

      . Although appellant has not raised this issue, we may raise it sua sponte because it concerns the legality of the sentence imposed. Commonwealth v. Watts, 312 Pa.Superior Ct. 137, 465 A.2d 1267 (1983).