text:
    491 A.2d 907
    COMMONWEALTH of Pennsylvania v. William HINES, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 28, 1984.
    Filed April 12, 1985.

      David S. Shrager, Duquesne, for appellant.
    Edward M. Clark, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before JOHNSON, CERCONE and HESTER, JJ.
   CERCONE, Judge:

This is an appeal from judgment of sentence for life imprisonment which was imposed following a jury verdict of First Degree Murder on June 22, 1982. Appellant, William Hines was found guilty of the murder of a seventeen year old girl which occurred on April 1, 1970. He had initially pled guilty when he was fifteen years old to the crime; after a degree of guilty hearing, a court en banc concluded that appellant was guilty of First Degree Murder on October 2, 1970, and he was sentenced to life imprisonment. Post-verdict motions were denied in May 1972, but no direct appeal was taken.

In 1974, appellant filed a petition under the Post Conviction Hearing Act which alleged that the plea of guilty was not entered intelligently and voluntarily. It was denied after a hearing, and on appeal to the Pennsylvania Supreme Court, the denial of relief was affirmed. The court found that appellant’s claim was waived for failure to allege any extraordinary circumstances which precluded his raising the issue on direct appeal.

Then, in 1979, appellant filed a PCHA petition to withdraw his guilty plea in the court of common pleas. After a hearing and argument, the petition was denied. The Supreme Court reversed and remanded this case for a new trial because there appeared in the colloquy no factual basis for appellant’s plea, nor any indication to conclude that appellant understood the nature and elements of the charges against him or the consequences of the plea. Commonwealth v. Hines, 496 Pa. 555, 437 A.2d 1180 (1981).

A suppression hearing on appellant’s motion was held; the motion was denied. A jury trial was held on June 19, 1982, and appellant was sentenced to life imprisonment. This appeal followed.

Appellant raises a number of suppression issues concerning his statement to police upon apprehension, the search of his home which police conducted, and the use of prior testimony of witnesses who were unavailable at the 1982 retrial. Additionally, he contends that the trial court erred in refusing to charge the jury that they should view the testimony of one witness with caution as that of an accomplice.

Paramount in our consideration of the issue concerning voluntariness of appellant’s statement is the fact that appellant was only fifteen years old when he made it. Appellant was arrested on April 5, 1970, at approximately 11:15 p.m. in the home of a friend. At 11:18 p.m. he was told by one of the officers that he was charged with the murder of Eileen Taylor and he was shown the arrest warrant. The officer advised him under the Miranda warnings that he had the right to be silent and that anything he said would be used against him; he had the right to an attorney of his choice and if he had no funds the officer would contact the Public Defender’s Office and have one appointed for him at no cost. Appellant acknowledged that he understood. The officer related that appellant had seemed scared at first. They placed him in the rear right passenger side of the police car with a police officer next to him and two in the front seat.

On the way to the public safety building, appellant talked with the officer. He told him he was fifteen and that he belonged to a “decathlon” organization. The officer explained that he engaged appellant in conversation primarily to determine his level of understanding, whether he was “street wise” or had “street sense.” The officer determined that appellant appeared to understand the questions he posed, that he knew where he was and what he was doing; appellant did not appear to be under the influence of drugs or alcohol.

They arrived at the Public Safety Building between 11:30 and 11:45 p.m. Appellant was taken to an interview room, advised of his Miranda rights again, and orally interviewed by this same officer until approximately 3:00 a.m. During this interview, appellant admitted to having been with the victim and to wearing the black raincoat and pink pants, but he denied any involvement in the killing. Appellant then requested to speak with a black detective, Warran Walton, whom he had seen on his way in to the Public Safety Building, but whom he did not know. Appellant spoke with detective Walton for about 45 minutes.

Walton was deceased at the time of the suppression hearing; his testimony which was offered at the degree of guilt hearing on September 30, 1970, was admitted into evidence. According to Walton, appellant apparently requested to talk with him because he was also black. Appellant was told by Walton to remain silent if he had anything at all to do with Eileen Taylor’s murder. Walton also told him if appellant did not do it and knew who did, that if appellant gave him the information, the parties would be arrested. Appellant told Walton that he didn’t do it, but he knew who did.

Walton explained that while “appellant did not seem like the brightest boy in the world, ... he seemed to know what he wanted to say and what he was saying.”

After the talk with Walton, appellant admitted raping the victim, but he furnished the name of James Jefferson as her murderer. Appellant was taken to a cell with a bed so that he could get some sleep, although there is no evidence that he slept. Around 8:00 a.m., the first officer who had interviewed appellant went to get him. He was placed in a room alone with James Jefferson, whom police had arrested pursuant to appellant’s statement. After approximately 25 minutes, appellant gave an eleven page question-and-answer type statement to police, who typed it as he spoke. Each page was initialed by appellant after he checked it for errors.

The statement began with appellant’s acknowledgement of an understanding of his rights, but also with an expression of willingness to give the statement anyway. Appellant stated that he had gone to eighth grade in school and to being fifteen years of age. Appellant indicated that he understood his rights again and went on to describe how he and Jefferson planned to accost the victim for her purse, how they both raped her, and that Jefferson killed her. At the conclusion of the statement, he answered that he had been treated all right during custody and that he had not been promised anything nor threatened in any way.

After the police had interviewed Jefferson and performed tests on his clothing, blood, and hair, they released him, having concluded that he was not involved at all.

The law pertaining to juvenile confessions has been in flux since appellant’s confession in 1970 until the present time. In 1970, Commonwealth v. Darden, 441 Pa. 41, 271 A.2d 257 (1970) stated the law as a totality of the circumstances rule. See also Commonwealth v. Moses, 446 Pa. 350, 287 A.2d 131 (1971) and In re: Curry, 284 Pa.Super. 37, 424 A.2d 1380 (1981) (Summary of Pennsylvania case law regarding juvenile confessions). In Moses, supra, the court specifically rejected the argument that a juvenile per se lacks the ability to assert his rights without the advice of a more mature person.

However, it was the change from a totality of the circumstances test to the per se interested adult rule of Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974) from which appellant asserts he should benefit. As the court set forth in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), the confession of a 15 year old defendant, who was not given an opportunity to consult with his mother or interested adult before he waived his rights and made a confession, should have been suppressed. Appellant claims that the interested adult rule should be applied to his confession, thereby rendering it inadmissible since he did not speak to anyone who was interested in his welfare prior to his waiver of Miranda rights and at the time of his retrial, McCutchen was the law.

McCutchen has already been applied to appellants whose direct appeals were pending at the time of the decision and who had properly preserved the issue for appeal. Commonwealth v. Barnes, 482 Pa. 555, 557 n.2, 394 A.2d 461 n.2 (1978); Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1976). See also Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982) (Despite possible applicability of McCutchen rule, appellant failed to preserve said claim for review). However, the instant appellant comes before us, not on direct appeal, nor on appeal nunc pro tunc, but as a result of a successful PCHA appeal to the Supreme Court which resulted in a new trial. This is the appeal from the new trial. Thus, we must decide whether the interested adult rule of McCutchen should be applicable to a post-McCutchen retrial.

While the U.S. Supreme Court and Pennsylvania Supreme Court have not ruled on the precise issue of retroactivity presented for our consideration in this case, in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) it held that the Escobedo and Miranda decisions were to be applied prospectively only. Those cases concerned an adult accused’s rights at the time of interrogation. And in Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969), the Miranda standards were held not to apply to post-Miranda retrials of cases. Our own Pennsylvania Supreme Court adopted the reasoning and result of Johnson and Jenkins in Commonwealth v. Willman, 434 Pa. 489, 255 A.2d 534 (1969), in which the appellant argued that because he was not advised of his Miranda warnings, his confessions should not have been admitted at his second trial, even though his first trial took place prior to Miranda and his retrial took place after Miranda. (Willman’s new trial was the result of a successful post-conviction motion.)

"... [T]he court has wisely chosen in Jenkins to restrict to as great an extent as possible, within the limits of Johnson, the anomalous situation where the police are required to have given Miranda warnings before Miranda had been decided. Since the requirements of Miranda do not go to the validity of the guilt-determining process, it seems fair in striking the balance between individual rights and the administration of criminal justice to limit the retroactive application of the case.” Commonwealth v. Willman, supra, 434 Pa. at 492, 255 A.2d at 535.

Thus, the court held that Miranda is not to be applied on retrials of cases where the original trial was held before the decision in Miranda.

We see no reason to refuse to apply this same analysis to the instant case involving whether safeguards additional to Miranda which were found to be mandatory in juvenile confession cases from 1975 until 1983 should be applied to a new trial in 1982 involving a statement elicited in 1970. To hold appellant’s statement per se inadmissible because an informed and interested adult was not present at that time would violate the balance that must be struck between individual rights and the administration of criminal justice. In 1970 it was not the practice that an interested adult be present at a juvenile’s interrogation; indeed, it did not become mandatory until Commonwealth v. McCutchen commanded a majority of the Supreme Court. Moreover, the voluntariness of appellant’s statement is reviewable despite the inapplicability of McCutchen. Therefore, we hold that the interested adult rule of McCutchen is not applicable to post-McCutchen retrials. Appellant’s confession will not be rendered inadmissible per se for the lack of participation of an interested adult.

We must next determine whether, under the totality of the circumstances rule of juvenile confessions, appellant’s statement was voluntary. Commonwealth v. Moses, supra. All of the attending circumstances must be considered, including the age, maturity and intellect of the individual involved. Id.

Appellant was fifteen years of age. While there is some confusion about what grade appellant reached in school, he himself stated in his confession that he attended eighth grade. Police testified that he appeared to be aware of what was happening and of what his rights were. He conversed freely with police on the way to the station. He initiated contact with the black police officer who advised him to keep quiet. The total time he was in custody before his statement was taken was approximately nine hours, four of which were spent in a cell in the matron’s section of the police station. Miranda warnings were administered at least three times to which appellant indicated his understanding. Moreover, he said he had been treated all right during his custody. Our review of the totality of the circumstances convinces us that appellant’s statement was indeed voluntary.

Appellant alleges that the trial court erred in admitting into evidence at the trial, the testimony of nine unavailable or deceased witnesses from the degree of guilt hearing which was held in 1970. While appellant acknowledges that the requirements for the admission of former testimony is controlled by statute, 42 Pa.C.S.A. § 5917, he contends that the fact that the former proceeding was a degree of guilt hearing necessarily forclosed a need to cross-examine these witnesses. Thus, he argues he was denied the right to confront his accusers. We have examined the trial court’s review of each of the nine witnesses’ testimony and the degree to which each was cross-examined at the degree of guilt hearing. We agree with the trial court, which, following the standards of Commonwealth v. Velasquez, 437 Pa. 262, 263 A.2d 351 (1970), concluded that the testimony of the nine witnesses was not inadmissible hearsay and did not violate appellant’s Sixth Amendment rights.

Appellant next argues that the trial court erred in not instructing the jury that the testimony of James Jefferson, one of the witnesses whose testimony was read into the record, should have been considered as coming from a corrupt source as an accomplice. Jefferson testified at the degree of guilt hearing that he had been with appellant until 9:00 p.m. on the night of the murder, but that he had gone home alone at that time. He described appellant as wearing clothes different from those which led to the identification of appellant, that is, the pink pants and black trench coat. Jefferson’s testimony was hardly in the nature of an accomplice. Moreover, only appellant’s words linked Jefferson to the crime. Police investigation revealed no involvement of Jefferson. The Commonwealth did not indict Jefferson, nor did it proceed on an accomplice theory at trial.

Only if the evidence is sufficient to present a jury question with respect to whether the prosecution’s witness was an accomplice, is the defendant entitled to an instruction as to the weight to be given that witness’s testimony. Commonwealth v. Thomas, 479 Pa. 34, 387 A.2d 820 (1978). This is not such a case. Therefore, the court properly omitted the corrupt source section of the accomplice instruction with regard to Jefferson’s testimony.

Finally, appellant argues that the clothing seized from appellant’s bedroom should have been suppressed as seized pursuant to an invalid search warrant. However, we agree with the court below that the search of appellant’s home was done with the consent of appellant’s mother, despite contradictory testimony by members of appellant’s family, including appellant’s mother, whose individual testimonies also contradicted each other. The court chose to believe the officers and evidence elicited at the hearing supports the court’s findings. We are bound by these factual findings, Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983), and agree with the lower court that consent to search was thereby demonstrated.

For all of the above reasons, judgment of sentence is affirmed.

      . As elicited at trial, police investigation led to various witnesses who passed appellant in the vicinity of the crime on the night it happened, late evening April 1, and early morning April 2, 1970. One witness, a motorist, saw the victim, wearing a plaid poncho, walking unaccompanied down the street. (She had left a friend’s apartment for another person’s apartment around midnight.) This same motorist observed a black male begin to follow the victim, apparently attempting to talk to her. According to the motorist witness, the girl seemed to be trying to avoid him. The man was wearing a three-quarter length dark colored coat and very vivid pink pants. After circling the block out of concern for her safety, the motorist saw them again. However, there did not seem to be any trouble, so he went on his way.
      Another witness who lived nearby saw a boy struggling with a girl under the street lamp. The girl wore a plaid poncho, but the witness could not describe the clothing worn by the male. Another person heard a girl screaming for help and pounding on someone’s door at about the same time, but she did not call the police. She concluded that the victim had been let inside the house.
      Appellant was seen by witnesses wearing a trench coat and pink trousers that night. He was also seen later wearing clothes covered with mud and suspected blood.
      On April 4, 1970, police took a search warrant to appellant’s home, but according to police, appellant’s mother gave her consent to search the house. Police recovered heavily soiled men’s underpants and a black trench coat from appellant’s bedroom. Appellant's mother also responded to police inquiry that the family patronized two particular dry cleaning establishments. At one of the shops, police recovered a pair of heavily stained pink trousers which had been brought in on the day of the murder. Appellant’s last name and home address were on the claim check.

      . Commonwealth v. Williams, 504 Pa. 511, 521, 475 A.2d 1283, 1288 (1984) is the Pa.Supreme Court’s most recent declaration of the law regarding juvenile confessions, and, interestingly, is a return to the totality of the circumstances test. It abrogates the rule of Commonwealth v. Christmas, infra.

      "All of the attending facts and circumstances must be considered and weighed in determining whether a juvenile’s confession was knowingly and freely given. Among those factors are the juvenile’s youth, experience, comprehension, and the presence or absence of an interested adult.”

      . "The [McCutchen] rule appreciates that the inexperience of the minor affects not only his or her ability to understand the full implication and consequences of the predicament but also renders the judgment inadequate to assess the spectrum of considerations encompassed in the waiver decision. It was therefore reasoned that the impediment of immaturity can only be overcome where the record establishes that the youth had access to the advice of an attorney, parent or other interested adult and that the consulted adult was informed as to the constitutional rights available to the minor and aware of the consequences that might follow the election to be made.”

        Commonwealth v. Smith, 472 Pa. 492, 498-499, 372 A.2d 797, 800 (1977) in Commonwealth v. Christmas, 502 Pa. 218, 221, 465 A.2d 989, 991 (1983) (Court abrogates per se rule for rebuttable presumption of inadmissibility.)

      . Escobedo v. State of Ill., 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The crux of our decision lies in the fact that appellant’s claim arises by collateral attack. Thus, although we acknowledge the instant claim as a constitutional one, and as thereby triggering the possible retroactivity of McCutchen, see Commonwealth v. Geschwendt (plurality) 500 Pa. 120, 454 A.2d 991 (1982) and Recent decisions, 22 Duquense Law Review 1121 (1984), the fact remains that appellant’s case had proceeded to final judgment prior to the change from which he seeks to benefit. For the same reason, our holding is not contrary to Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983), which held that where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.

      . Whenever any person has been examined as a witness, either for the Commonwealth or for the defense, in any criminal proceeding conducted in or before a court of record, and the defendant has been present and has had an opportunity to examine or cross-examine if such witness afterwards dies, or is out of the jurisdiction so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he becomes incompetent to testify for any legally sufficient reason properly proven, notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue. For the purpose of contradicting a witness the testimony given by him in another or in a former proceeding may be orally proved.

      . The fact that there were nine such witnesses in this case does not alter our conclusion, but rather is a comment on the fact that twelve years separated the two proceedings.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    491 A.2d 1352
    COMMONWEALTH of Pennsylvania, Appellant, v. Mahlon W. DRUMGOOLE, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 9, 1984.
    Filed March 8, 1985.
    Reargument Denied May 15, 1985.

      Maxine Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Stanton M. Lacks, Doylestown, for appellee.
    Before ROWLEY, McEWEN and HOFFMAN, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

In May, 1988, appellee Mahlon W. Drumgoole was convicted in a non-jury trial of robbery, aggravated assault and criminal conspiracy. During the robbery, which was committed on November 19, 1982, the sixty-one year old victim was shot by appellee’s accomplice. At the subsequent sentence hearing, the Commonwealth requested that appellee be given a minimum sentence for robbery within the mitigated minimum range provided by the Pennsylvania Sentencing Guidelines. The mitigated minimum range provided by the Guidelines is thirty-nine (39) to sixty (60) months imprisonment. The trial court, however, imposed a five (5) year term of probation on the robbery charge and a concurrent sentence, on the aggravated assault charge, of “Time in to twenty-three (23) months”. The “Time in”, according to the trial court, was approximately two (2) months at the time of sentence. No sentence was imposed on the charge of conspiracy.

The Commonwealth filed a petition for reconsideration of sentence. The trial court vacated the sentence originally imposed but after further consideration reimposed the same sentence. The Commonwealth has filed this appeal claiming that the trial court, in imposing sentence, abused its discretion by unreasonably deviating from the Sentencing Guidelines. Since we agree, the judgment of sentence is vacated and the case remanded for resentencing.

Initially, it is important to consider whether the Commonwealth’s appeal is properly before us. The Commonwealth claims that the appeal is taken pursuant to 42 Pa.C.S.A. § 742 and 42 Pa.C.S.A. § 9781(b). Section 742, however, does not grant a right of appeal to any party but merely provides for the exclusive appellate jurisdiction of this Court from final orders when a right of appeal exists. Section 9781, however, is part of the “Sentencing Code” and extends to the Commonwealth the right to appeal the discretionary aspects of a sentence imposed for a felony or a misdemeanor. Section 9781(b) further provides, however, that an appeal of the discretionary aspects of a sentence is to be taken by filing a petition for allowance of appeal with the appropriate appellate court. The subsection goes on to provide that “[ajllowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.” The Commonwealth has not filed a petition for allowance of appeal and this Court, prior to argument, had not determined that an appeal should be granted to the Commonwealth.

However, the Supreme Court of Pennsylvania by amendment to the Note following Pa.R.A.P. 902 provided:

Section 9781 of the Sentencing Code (42 Pa.C.S. § 9781) provides that the defendant or the Commonwealth may file a ‘petition for allowance of appeal’ of the discretionary aspects of a sentence for a felony or a misdemeanor. The notice of appeal under this chapter (see Rule 904 (content of the notice of appeal)) operates as the ‘petition for allowance of appeal’ under the Sentencing Code. It automatically raises all possible questions under 42 Pa. C.S. § 9781 and is available and appropriate even where no issue relating to guilt or the legality of the sentence (in the sense that the sentence falls outside of the range of discretion vested by law in the sentencing court) is presented. No additional wording is required or appropriate in the notice of appeal.
In effect the filing of the ‘petition for allowance of appeal’ contemplated by the statute is deferred by these rules until the briefing stage, where the question of the appropriateness of the discretionary aspects of the sentence may be briefed and argued in the usual manner.

At the same time, the Supreme Court amended the Note accompanying Pa.R.A.P. 341. As that Note now provides, in part:

Section 9781 of the Sentencing Code (42 Pa.C.S. § 9781) states that the defendant or the Commonwealth may ‘petition for allowance of appeal’ of the discretionary aspects of a sentence for a felony or a misdemeanor. The practice under these rules is to file a notice of appeal. See Note to Rule 902 (manner of taking appeal). If the defendant has a right to an appeal with respect to the discretionary aspects of a sentence, the appellate court must, of course, entertain the appeal. Otherwise such an appeal may be entertained by an appellate court if, but only if, it appears to the court that there is a substantial question that the sentence imposed is not appropriate under the applicable guidelines.

Thus, although the Commonwealth, in seeking to appeal from the discretionary aspects of a sentence, may initiate such an appeal by merely filing a notice as required by Pa.R.A.P. 902, the appellate court, before proceeding to the merits of the issue raised by the appeal, must determine whether or not there is a substantial question that the sentence imposed is not appropriate under the Sentencing Guidelines. Our review of the record convinces us that a substantial question exists in this case and, therefore, the Commonwealth’s appeal will be allowed.

The legislature has provided that the appellate court, in reviewing the discretionary aspects of a sentence on appeal, shall affirm the trial court’s sentence unless it finds: (1) that the guidelines were erroneously applied; (2) that the sentence, even though within the guidelines, is “clearly unreasonable”; or (3) that the sentence, if outside the guidelines, “is unreasonable.” In any one of these three circumstances, we are required to vacate the trial court’s sentence and remand the case with instructions. 42 Pa.C. S.A. § 9781(c). In determining whether a particular sentence is “clearly unreasonable” or “unreasonable”, the appellate court must consider the defendant’s background and characteristics as well as the particular circumstances of the offense involved, the trial court’s opportunity to observe the defendant, the pre-sentence investigation report, if any, the Sentencing Guidelines as promulgated by the Sentencing Commission, and the “findings” upon which the trial court based its sentence. After reviewing the record in this case, we find that the guidelines were erroneously applied and that the trial court’s “findings” do not warrant the sentence imposed.

On the charge of robbery, the trial court calculated the offense gravity score as nine (9) and the prior record score as zero (0). The minimum sentence range under those circumstances is thirty-six (36) to sixty (60) months imprisonment. The guidelines further provide that when a deadly weapon is used, either by the defendant or an accomplice, in the commission of the offense under consideration, an additional twelve (12) to twenty-four (24) months confinement “shall be added ” to the sentence prescribed in the guidelines. 204 Pa.Code §§ 303.2(5) and 303.4 (deadly weapon enhancement). Inclusion of the deadly weapon enhancement provision evidences the Sentencing Commission’s and the Legislature’s recognition of the potential for violence and serious personal injury or death in such situations. Therefore, the minimum range of the applicable guideline sentence in this case is forty-eight (48) to eighty-four (84) months. This, then, was the starting point for the trial court in calculating an appropriate sentence under the applicable guidelines. In completing the sentence form and considering the guidelines, the trial court, however, determined that the deadly weapon enhancement provisions of the guidelines were not applicable. This was error. The sentencing court has not been given discretion .to determine whether or not consideration should be given to the fact that a deadly weapon was used in calculating the guideline sentence ranges. Although the trial court is vested with the right, in the proper exercise of its discretion, to sentence outside the guidelines, it is imperative that before making that determination the correct starting point in the guidelines be determined. Since that was not done in this case, it is necessary that the sentence be reconsidered.

In addition we find that the sentence imposed is “unreasonable” and that the trial court’s “findings” do not warrant going outside the guidelines on the basis of the record before us. The court is required, when imposing a sentence outside the guidelines, to provide a statement of the reason or reasons for the deviation. However, the reasons expressed by the sentencing court in this case are not adequate to support the sentence of probation, given that the most lenient guideline sentence applicable would require at least thirty-nine (39) months imprisonment. On the sentencing form, the trial court listed as its reasons for deviating from the guidelines:

“(1) lack of prior record;
(2) solid support at home;
(3) prior community activity; and
(4) not actual shooter”

The trial court’s first reason for deviating from the guidelines is that the appellee lacked a prior record. However, the pre-sentence report, as well as the mental health evaluation, show that appellee has a prior conviction as an adult for harassment. Thus, the court erred in declaring that the defendant had “no ” prior record. Moreover, the guidelines inherently give credit to those who have led a relatively law-abiding life. An accused’s prior record, or lack thereof, is one of the two elements utilized in determining the guideline sentence ranges. The guideline sentence as computed in this case is based on a prior record score of zero (0). Thus, to assign the lack of, or even a minimal, prior record as a reason for deviating from the guidelines is to, in effect, give an accused credit for the same factor twice. Such an evaluation is error.

In addition, the basis for the trial court’s conclusion that the appellee’s “prior community activity” warranted the deviation from the guidelines is not clear. The trial court made no findings and made no specific comments about appellee’s activities. The record shows that a friend of appellee stated that once, when he was twelve years old, he lived with appellee’s family and appellee helped him stay out of trouble. The defendant and his mother testified similarly, in conclusory terms. However, the record is not clear as to the nature or duration of such help or involvement by the appellee. In the absence of specific findings by the trial court regarding appellee’s “community involvement,” we cannot say that the deviation, for that reason, is reasonable.

Finally, the trial court stated that the appellee was not the actual shooter. However, the record, viewed in the light most favorable to the Commonwealth, discloses that the appellee, when told by his accomplice that he was going to “pull a stickup”, handed him a handgun which was used within minutes to shoot the victim of the robbery. The record also shows that at the time appellee gave him the gun, the accomplice appeared to be “high”. There is a distinction between a conspirator who is surprised when his accomplice uses a firearm of which the conspirator had no prior knowledge, and a conspirator who furnishes the firearm with which the offense is committed. The fact that appellee’s accomplice, rather than he, actually pulled the trigger makes very little difference under the facts of this case and does not warrant the extreme deviation from the guidelines that was adopted.

Therefore, we conclude that the order of probation, which is outside the Sentencing Guidelines, is unreasonable on the basis of the record before us. Consequently, the record must be remanded for resentencing. In resentencing appellee, the trial court must take into account the dangerous weapon provision of the guidelines, appellee’s prior record, and the fact that appellee furnished the gun with full knowledge that it was to be used in a robbery. The court should also make findings regarding appellee’s alleged “community involvement.” Judgment of sentence vacated and case remanded to the sentencing court for resentencing.

Jurisdiction is relinquished.

      . The trial court did not complete the sentence form for, or make reference to, the calculation of a guideline sentence for the charge of aggravated assault. Nevertheless, it is clear that the sentence imposed is also outside the guideline range on that charge.

      . Appellee also suggests that to grant the relief sought by the Commonwealth "would appear to be a violation of the Fifth Amendment Constitutional guarantee against double jeopardy.” This argument has been resolved contrary to appellee's claim. United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), Commonwealth v. Love, 295 Pa.Super. 276, 441 A.2d 1230 (1982) (Hoffman, J., Concurring, joined by Cirillo, J.). Also see Commonwealth v. Anderson, 304 Pa.Super. 476, 450 A.2d 1011 (1982).


author: PER CURIAM:

text:
    491 A.2d 1356
    Mathilde MOELLER, Appellant, v. Alfred METZGER and Martha Metzger, his wife, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1984.
    Filed March 15, 1985.
    Reargument Denied May 15, 1985.

      John T. Stieh, Milford, for appellant.
    Stephen A. McBride, Milford, for appellees.
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   PER CURIAM:

Mathilde Moeller commenced an action in equity to enjoin the flooding of her Pike County real estate by water emanating from an artesian well owned by her neighbors, Alfred and Martha Metzger. After the presentation of plaintiff’s evidence, the trial court entered a compulsory nonsuit which it later refused to remove. This appeal followed. We reverse.

The law is clear that a nonsuit can be entered in an equity action only in clear cases. The plaintiff must be given the benefit of all evidence favorable to her, together with all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in her favor. McConnell v. Estate of Wells, 259 Pa.Super. 286, 290, 393 A.2d 830, 832 (1978). See also: Engle v. Spino, 425 Pa. 254, 256, 228 A.2d 745, 746 (1967).

The trial court granted a nonsuit “because plaintiff could not prove damages.” The court explained further:

Plaintiffs testimony did not establish the cause of death at [sic] her plants. They could have died because of the runoff, because of winter, or due to natural causes. Defendant’s well was rebored in 1980 starting a fresh runoff. Plaintiff testified that she then left her home and spent the winter of 1980-1981 in the city with her sister. When she came back in the spring her raspberry bushes were gone. Record at 106. Plaintiff never saw her bushes die. Without this testimony she was unable to establish damages and the Court was forced to grant a Non-Suit.

This was error. In the first place, proof of the cause of the death of plaintiff’s flowers was not an essential element in her cause of action. The primary relief requested by the plaintiff was an order enjoining the flooding of her land by water coming from defendant’s artesian well. The fact that plaintiff’s land had been flooded and the source of the invading water were established by oral testimony and by photographic evidence. The evidence also showed that the flow of water had been concentrated artificially in pipes and in a ditch and then allowed to flow onto plaintiff’s land. This evidence was sufficient, if found credible, to warrant equitable relief. McCormick Coal Co. v. Schubert, 379 Pa. 309, 311, 108 A.2d 723, 724-725 (1954); Rau v. Wilden Acres, Inc., 376 Pa. 493, 103 A.2d 422 (1954); Ridgeway Court, Inc. v. Landon Courts, Inc., 295 Pa.Super. 493, 442 A.2d 246 (1981); Elliott v. H.B. Alexander & Son, Inc., 41 Pa.Cmwlth. 184, 399 A.2d 1130 (1979).

With respect to the damages caused by the neighbors’ water, moreover, appellant’s expert witness, Lynnwood Scholl, Jr., testified that water from the Metzger property had washed out appellant’s raspberry bushes. The court also received in evidence, without objection, an estimate of the cost of replacing the bushes which had been prepared by Scholl.

Whether appellant’s evidence will ultimately be found reliable we cannot say. It is eminently clear, however, that the trial court’s entry of a compulsory nonsuit was premature.

Reversed and remanded for a new trial.

Jurisdiction is not retained.


text:
    491 A.2d 1358
    COMMONWEALTH of Pennsylvania v. Roland CHECCA, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 20, 1984.
    Filed April 12, 1985.
    Petition for Allowance of Appeal Denied Oct. 7, 1985.

      Robert C. Brady, Washington, for appellant.
    Lawrence N. Claus, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, ROWLEY and JOHNSON, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is a direct appeal from a Judgment of Sentence imposing a term of 11 and Vz to 24 months imprisonment and payment of the costs of prosecution, following appellant’s conviction by a jury of Official Oppression. Upon a careful review of the record and consideration of the numerous issues raised by appellant, we affirm.

The record herein reveals the following facts. On August 26, 1981, John Zimmerman and Patty Teyssier were involved in an altercation in McDonald Borough that resulted in the arrest of Zimmerman. In the presence of Cecil Township Police officers, Ms. Teyssier was ordered to get into her car and drive home. On her way home, she was arrested for Driving Under the Influence (D.W.I.) by the same officers from Cecil Township. Administration of a breathalyzer test revealed a blood alcohol content of .09. An affidavit of probable cause for Ms. Teyssier’s arrest was issued by appellant, Roland Checca, a District Justice in Washington County, on the same day.

On September 2, 1981, Ms. Teyssier attended a hearing before Mr. Checca regarding the charges filed against Zimmerman. Following the hearing, Ms. Teyssier asked Mr. Checca about the consequences of her arrest for driving under the influence on August 26, 1981. Ms. Teyssier expressed her concern about facing charges for D.W.I. because she only had a few days left on probation concerning an unrelated offense. Mr. Checca testified at trial in this matter that he told Ms. Teyssier that he already knew about the circumstances of the incident and that he thought the charges would probably be dismissed. Mr. Checca further stated that Ms. Teyssier told him at that time that she would give him anything he wanted. (N.T. October 26 — November 2, 1982 at 450).

Mr. Checca admitted that he called the Teyssier residence on September 4, 1981 and that he was told that Ms. Teyssier was at work. He then called Ms. Teyssier at work and discussed her case with her. He further admitted that she agreed to come to his office at her convenience and that he probably had invited her to do so. On September 14, 1981, Ms. Teyssier called Mr. Checca’s office and he told her to come down between 12:00 and 1:00 p.m. Mr. Checca testified that he had called Ms. Teyssier because he wanted to see her and to be alone with her. He admitted that he was interested and excited by her because she was young and he had never had a young girl approach him before. He admitted that he wanted to have a private conversation with her and for that reason he asked her to come to his office on September 14, 1981. When Ms. Teyssier arrived, she met Mr. Checca in the hearing room and they discussed the D.W.I. charges. Mr. Checca then asked her to go into his back office. Ms. Teyssier testified that Mr. Checca hugged and touched her and exposed himself to her. She further stated that he attempted to engage her in further sexual contact which she resisted. Ms. Teyssier testified that Mr. Checca asked her for a sexual favor and that he then asked her about different types of sexual acts. She also testified that Mr. Checca told her that he had done this sort of thing before.

Mr. Checca testified that the incident occurred a little differently. He stated that he asked Ms. Teyssier if the remark “anything he wanted” included sex and she replied affirmatively. He recounted that they then discussed sexual preferences and that she initiated the sexual contact. He insisted that he gave Ms. Teyssier no indication that the sexual encounter had anything to do with the D.W.I. charges and that he was not using those charges as leverage against her.

On September 15, 1981, Ms. Teyssier told Police Chief Schweers of McDonald Borough about the incident in Mr. Checca’s office. Thereafter, on September 24, 1981, Ms. Teyssier met with Elaine Surma, an agent from the Pennsylvania Attorney General’s office. Ms. Teyssier told Agent Surma what had occurred and as a result of her statement an investigation ensued. Ms. Teyssier consented to electronic interception of her future conversations with Mr. Checca and electronic surveillance was authorized by Deputy Attorney General James West and Deputy Attorney General Henry Barr.

On September 24, 1981, Ms. Teyssier placed a call to Mr. Checca from Chief Schweers’ office which was electronically recorded by Agent Surma. A convenient time for a meeting could not be established on that day.

On September 28, 1981, the day set for Ms. Teyssier’s hearing before Mr. Checca on the D.W.I. charges, she placed a second call to Mr. Checca which was again recorded. Mr. Checca requested that she come to his office at noon to discuss the hearing which was to begin at 3:00 p.m. Ms. Teyssier arrived at Mr. Checca’s office at approximately 12:30 p.m. She was wearing a body transmitter that enabled Agent Surma to monitor and record the conversation. Ms. Teyssier first encountered Mr. Checca in the hearing room and they then proceeded to his back office. Mr. Checca showed Ms. Teyssier boxes containing pornographic films that he had in a drawer in his office. Ms. Teyssier and Mr. Checca then discussed the sexual acts depicted on the boxcovers. Ms. Teyssier testified that Mr. Checca told her that he would not force her into anything. When he tried to touch her, Ms. Teyssier asked him to stop and told him that she would engage in sexual activity if he would dismiss the charges against her. At the hearing held later on the same day, the charges against Ms. Teyssier were dismissed.

Based on the tapes and the previous incidents described by Ms. Teyssier, a criminal complaint was filed on October 15, 1981. Mr. Checca was charged with Indecent Exposure, Indecent Assault, Solicitation to Commit Deviate Sexual Intercourse, Official Oppression and Bribery. A search warrant for the office of Mr. Checca was also executed on October 15, 1981. Mr. Checca was arrested on October 15, 1981 at his office and advised of his Miranda Rights. He consented to the search of his office which revealed the pornographic films described by Ms. Teyssier as well as the record of the dismissal of the D.W.I. complaint filed against Ms. Teyssier. At the time of his arrest, Mr. Checca made a written statement which he signed wherein he stated that he agreed to accept a sexual favor from Patty Teyssier in exchange for dismissing a traffic violation. In his statement, Mr. Checca further admitted that he had attempted to make Ms. Teyssier more comfortable by telling her that he had done this sort of thing before.

On December 22, 1981, Mr. Checca filed a request for Pre-trial Discovery and Inspection and a request for a Bill of Particulars wherein he demanded detailed information pertaining to Ms. Teyssier’s prior status as a government informant. Specifically, Mr. Checca requested, inter alia, names and numbers of cases wherein Patty Teyssier was utilized as an informant, names of cases wherein information obtained by her was reliable or unreliable, and copies of search warrants containing information received by Ms. Teyssier. These specific requests for discovery were objected to by the Commonwealth and ultimately denied by the trial court on February 11, 1982 by Memorandum and Order. The trial judge noted that Ms. Teyssier’s reliability as an informant in other cases was irrelevant as to the probable cause issue and that, insofar as the requested information was relevant to the entrapment defense in this case, it could be developed on cross-examination.

On February 2, 1981, Mr. Checca filed omnibus pre-trial motions including a motion to suppress the recorded tapes, the evidence seized incident to the alleged unlawful search of his office, and the signed statement he gave at the time of his arrest. Following an extensive Suppression Hearing which commenced on June 30, 1982, the suppression court denied Mr. Checca’s motion to suppress the above-mentioned evidence. (Suppression Transcript, June 30 — July 2, 1982 at 559-564). ■

On July 7, 1982, appellant’s trial commenced before a jury from Erie, Pennsylvania, which had been transported to Washington County. A mistrial was declared at the close of the opening statement of the Assistant District Attorney. The mistrial was granted because of the following statement by the prosecutor: “we have brought these criminal charges based upon evidence that we believe that he is guilty of the charges that have been brought.” Appellant’s motion to dismiss the charges against him on double jeopardy grounds was dismissed by the trial court on August 6, 1982.

Appellant’s trial commenced before a second jury from Erie County on October 26, 1982. At the close of the trial, the jury acquitted appellant of Bribery, Indecent Exposure and Indecent Assault, but convicted him on the charge of Official Oppression. Appellant was subsequently sentenced to undergo imprisonment for a period of eleven and one-half months to twenty four months and to pay the costs of prosecution. This timely appeal followed.

Appellant raises numerous issues on appeal. His initial contention is that the Double Jeopardy Clause of the Fifth Amendment barred a second trial regarding these charges because the prosecutor’s misconduct at his first trial was intended to provoke the defense into moving for a mistrial. The trial judge found that the prosecutor’s remarks were unintentional and inadvertent and that they were not intended to abort the trial. He therefore refused to dismiss the charges against appellant on double jeopardy grounds. (Opinion of Kiester, J., August 5, 1982). We find that the trial judge’s decision was supported by evidence of record and we need add nothing further to his resolution of this issue.

Appellant next contends that electronic surveillance of his conversations with Ms. Teyssier was made without proper authorization and that the search warrant executed on the basis of information obtained through electronic interception was invalid. Accordingly, appellant contends that the trial court erred in denying his motion to suppress the recorded tapes, the evidence obtained during the search and appellant’s signed statement given at the time of his arrest. Appellant’s contentions are without merit.

Appellant argues that a memorandum of consent issued by Deputy Attorney General James West containing the phrase “between September 24, 1981 and September 28, 1981” did not give proper authorization for consensual interceptions conducted on September 28, 1981 since “between” should be interpreted as excluding the first and last days from the authorization. Appellant urges that the language “occurring on September 24, 1981 through and including September 28, 1981” was required in order to properly authorize the interception on September 28, 1981. Although the Pennsylvania Wiretapping and Electronic Surveillance Act (Wiretap Act) requires that approval must be obtained from the District Attorney or Attorney General or a designee thereof prior to commencement of a consensual interception, 18 Pa.Cons.Stat. § 5704(2)(ii), neither the Wiretap Act or relevant case law requires that a “Memorandum of Consent” be executed by the proper authority. Surveillance conducted with the consent of a party to the conversation is not subject to the exacting standards of authorization required for non-consensual surveillance under the Wiretap Act.

The “Memorandum of Consent” in this case was prepared by Deputy Attorney General West so that he would have something available to refresh his recollection regarding the interceptions. (Suppression Transcript, June 30 — July 2, 1982 at 210). Deputy Attorney General West testified that the interceptions in this case were further approved “for through and including September 24th through September 28th, 1981.” (Suppression Transcript, June 30 — July 2, 1982, at 210). Because of the informal nature of the memorandum, and the fact that such documentation in cases where one party consents to interception is not specifically required by the Wiretap Act, we find that the suppression judge properly looked beyond the scope of the written document to determine the scope of the authorization.

Appellant also argues that the information in the affidavit of probable cause executed in support of the search warrant was stale because the facts alleged in the affidavit occurred on or before September 28, 1981 and the warrant was not obtained until October 15, 1981. This contention has been waived since it was not specifically raised in appellant’s pre-trial motion to suppress. We nevertheless find this contention to be without merit because the activities involved herein were of a continuous nature and they were the subject of an ongoing criminal investigation. See e.g., Commonwealth v. O’Bryant, 320 Pa.Super. 231, 467 A.2d 14 (1983); Commonwealth v. Marzel, 291 Pa.Super. 553, 436 A.2d 639 (1981). Because we find that the electronic interceptions were properly authorized and the search warrant based thereon was properly made out, we conclude that the suppression judge did not err in refusing to suppress the tapes and the evidence obtained during the search, including appellant’s written statement.

Appellant next contends that the trial court erred in refusing to grant his request for discovery, and refusing to allow cross-examination of Ms. Teyssier, regarding her pri- or status as a police informant. Appellant further argues that the trial court erred in refusing to instruct the jury on the entrapment defense. We find these claims to be equally without merit.

Pre-trial disclosure of all exculpatory evidence held by the Commonwealth is required. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, the defendant’s right to disclosure is not unlimited. Where the Commonwealth represents to the court that the requested materials do not contain exculpatory information the question is whether or not the court properly accepted the Commonwealth’s representations without personally inspecting the documents. Commonwealth v. Watson, 276 Pa.Super. 606, 419 A.2d 623 (1980).

In Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977), our Supreme Court stated:

A defendant is entitled to a court inspection of the Commonwealth’s investigatory files only when there exists at least some reason to believe the inspection would lead to the discovery of evidence helpful to the defense. See Commonwealth v. Royster, 472 Pa. 581, 372 A.2d 1194 (1977) (plurality opinion). Here, appellants made no showing that the court’s inspection would reveal evidence helpful to the defense. The court’s denial of appellants’ request was proper. See United States v. Agurs, 427 U.S. 97, 106, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976).

Id., 475 Pa. at 525, 381 A.2d at 120. In the instant case, appellant claims that the trial court’s denial of discovery of Commonwealth files regarding Ms. Teyssier’s prior status as an informant deprived him of the opportunity to raise the entrapment defense. Nonetheless, appellant offered no valid reason for the court to question the Commonwealth’s representation that the materials requested did not contain exculpatory information. The trial court thus found that there was no evidence to support a finding that the victim was acting as an agent of law enforcement officials in this case and he therefore refused discovery of the requested materials. We find no error in that determination.

These same principles support the trial court’s refusal to allow cross-examination of the victim regarding her prior status as a government informant. Appellant offered no evidence to support his theory that the victim acted as an agent of law enforcement authorities during initial encounters with appellant. Moreover, the victim’s prior status as an informant was irrelevant as to the issue of her credibility with respect to this case. A witness’ credibility cannot be attacked on the basis of prior conduct which is unrelated to the issues at the present trial. See Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973); Commonwealth v. Cragle, 281 Pa.Super. 434, 422 A.2d 547 (1980). Appellant had ample opportunity during cross-examination to ask Ms. Teyssier whether she was working for, or hoping to derive benefit from, law enforcement authorities with respect to the instant case. Under these circumstances, we find no abuse of discretion in the trial court’s refusal to allow cross-examination into the victim’s status as an informant in other unrelated cases.

Regarding entrapment, no evidence was offered to show that the initial contacts between Mr. Checca and Ms. Teyssier were instigated or encouraged by, or on behalf of, law enforcement officials. Mr. Checca admitted that he initiated the discussions regarding sexual favors. (N.T. October 26 — November 2, 1982 at pp. 454-455). The burden of proof is on the person prosecuted for an offense to prove, by a preponderance of the evidence, that his conduct occurred in response to an entrapment. 18 Pa.Cons.Stat. § 313(b). Appellant offered no evidence whatsoever to show that his conduct was so induced. Accordingly, appellant’s requested instruction on the entrapment defense was properly denied by the trial judge. Compare Commonwealth v. McGuire, 339 Pa.Super. 320, 488 A.2d 1144 (1985).

Appellant’s next contention is that the trial court erred in charging the jury that consent is not a defense to the charge of official oppression. Our research has revealed no case in Pennsylvania wherein this issue has been addressed. Nonetheless, our analysis of the consent statute and the statutory definition of the crime of official oppression convinces us that the trial judge properly instructed the jury not to consider consent of the victim as a defense to official oppression in this case.

Official oppression is defined as follows:

A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor of the second degree if, knowing that his conduct is illegal, he:
(1) subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights; or
(2) denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity.

18 Pa.Cons.Stat. § 5301. This section is modeled after § 243.1 of the Model Penal Code. See Historical Note to 18 Pa.Cons.Stat. § 5301. The statute was broadly drafted to include all opportunities for oppressive use of official power. Thus, the section applies to improper denial of aid, privilege or protection to which a person is entitled by law, as well as aggressive action against the individual. Model Penal Code, Tentative Draft No. 9, 214 (1959).

18 Pa.Cons.Stat. § 311 regarding consent as a defense to criminal offenses provides, in pertinent part:

(a) General rule. — The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.
******
(c) Ineffective consent. — Unless otherwise provided by this title or by the law defining the offense, assent does not constitute consent if:
******
(3) it is given by a person whose improvident consent is sought to be prevented by the law defining the offense; or
(4) it is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.

The evil sought to be prevented by the law against official oppression is the unlawful abuse of the power of public officials. Mr. Checca’s action in using his position as a district justice to receive sexual favors from a woman whose case was pending before him was an illegal use of his office proscribed by the law against official oppression. That Ms. Teyssier may have solicited him at the outset does not change our analysis since the facts support a conclusion that Mr. Checca agreed with her proposal. Moreover, the record reveals that it was appellant who suggested a sexual encounter between himself and Ms. Teyssier. The consensual nature of Ms. Teyssier’s conduct did not negative the harm sought to be prevented by the law against official oppression, especially since her consent may have been motivated by her concern that the D.W.I. charges would provide a basis for revocation of her probation. Mr. Checca’s action in using his official position as a vehicle to take advantage of a defendant whose case was pending before him was conduct meant to be covered by the official oppression statute whether or not Ms. Teyssier consented. We find that under circumstances where a public official, under color of his office, solicits or accepts a sexual favor in the course of discharging a duty of his office, the assent of the victim is not a defense to a charge of official oppression. See e.g., Commonwealth v. Froelich, 458 Pa. 104, 326 A.2d 364 (1974).

Appellant urges that because consent is a defense to indecent exposure and indecent assault, it is also a defense to official oppression. This contention is without merit. The elements of the offense of official oppression are different than the elements of either of these offenses. The harm sought to be prevented by the laws against indecent assault and indecent exposure is non-consensual contact; such unlawful conduct does not affect the administration of public office unless an abuse of official authority is also involved. Such behavior may constitute official oppression only if that behavior involves the added element of a public official’s use of his status to wrong another. Moreover, behavior that does not constitute indecent exposure or assault — because of the victim’s consent or otherwise — may constitute official oppression.

We are likewise unpersuaded by appellant’s argument that his acquittal on charges of bribery was inconsistent with his conviction for official oppression. The official oppression statute was broadly drafted to reach numerous situations wherein an official engages in wrongdoing while acting in his official capacity. The offense overlaps offenses such as bribery and indecent assault, but it also reaches abuses of official authority that are not covered by these other statutes. See Model Penal Code, Tentative Draft No. 9, 216 (1959). Thus, evidence that appellant accepted a sexual favor, but did not do so in consideration for dismissing D.W.I. charges against Ms. Teyssier, may have precluded a conviction for bribery, if such evidence was believed by the jury. However, such evidence wouldn’t necessarily negate an element of the crime of official oppression since that crime requires proof only that appellant acted in his official capacity and, knowing his conduct to be illegal, subjected another to a “mistreatment.”

Appellant also argues that the term “mistreatment” in the official oppression statute is unconstitutionally vague as applied to the particular facts of this case. Appellant contends that a common understanding of the term mistreatment does not encompass an action which is consented to by the victim. Examining the challenged statute in the light of the conduct with which appellant was charged, we find that appellant should reasonably have understood that his actions were proscribed by the statutory prohibition against “mistreatment”. Appellant’s treatment of Ms. Teyssier was no less of an abuse of his office because she may have consented in order to insure dismissal of the charges against her. See Commonwealth v. Manlin, 270 Pa.Super. 290, 411 A.2d 532 (1979).

Appellant’s final contention is that the trial court abused its discretion in sentencing appellant to 11 and V2 months to 24 months imprisonment at the State Correctional Institute at Greensburg following his conviction of official oppression. In determining the proper sentence, the trial court must consider the character of the defendant and the particular circumstances of the offense in light of legislative guidelines for sentencing. The court must impose a sentence that is the minimum sentence that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. Commonwealth v. Golden, 309 Pa.Super. 286, 289, 455 A.2d 162, 163 (1983). Official oppression is a Misdemeanor of the Second Degree and the penalty provided is a maximum term of imprisonment of two years and a maximum fine of $5,000.00. In sentencing appellant, the judge observed that Mr. Checca would probably not commit another crime of this nature and that there was no need for rehabilitation. The trial judge further observed that Mr. Checca presented no danger to the public. However, regarding the gravity of the offense, the judge stated that Mr. Checca had violated not only his oath of office, but had betrayed his family and the community. The judge observed that appellant had employed the authority and power of his office for a dishonest and dishonorable purpose. In imposing sentence, the judge stated that he felt confinement was required because of the nature and circumstances of the crime and because a lesser sentence would depreciate the seriousness of such a crime. We find that the sentencing judge’s explanation of his reasons for sentencing reveals that he considered all relevant factors under the Sentencing Code in sentencing appellant. See 42 Pa.Cons.Stat. § 9721(b). We find no error which constitutes an abuse of discretion.

Judgment of sentence affirmed.

      . The charge of Solicitation to Commit Deviate Sexual Intercourse was subsequently nol prossed.

      . Appellant also contends that the search was illegal because the search occurred at night whereas the warrant authorized a daytime search. This contention is entirely without merit. The search began at approximately 8:00 p.m. and it was completed before 10:00 p.m. Pa.R.Crim.P. 2005 governing requirements for issuance of warrants states that the term "daytime” means between the hours of 6:00 a.m. and 10:00 p.m.


author: SPAETH, President Judge:

text:
    491 A.2d 1368
    COMMONWEALTH of Pennsylvania v. James GORHAM, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1984.
    Filed April 19, 1985.

      John J. Calabro, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and OLSZEWSKI and CERCONE, JJ.
   SPAETH, President Judge:

This is an appeal from judgment of sentence for burglary and related charges. Appellant argues that the trial court erred in (1) denying his Rule 1100 motion to dismiss, (2) admitting his inculpatory statements, and (3) admitting evidence obtained through a search of appellant. He also argues that trial counsel was ineffective. We find appellant’s arguments without merit and therefore affirm.

Rule 1100 requires that trial commence no later than 180 days from the date on which the complaint is filed, but excludable from this period, is “such period of delay at any stage of the proceedings as results from: (i) the unavailability of the defendant or his attorney; (ii) any continuance granted at the request of the defendant or his attorney.” Pa.R.Crim.P. 1100(a)(2) and (d)(3). The complaint in this case was filed on November 3, 1982, resulting in a run date of May 2, 1983. Appellant was not tried until August 18, 1983 — 108 days beyond the run date. Appellant concedes, however, that as a result of his motion for a continuance, 76 days are excludable. N.T. 8. Excluding this period brings the run date to July 17, 1983.

The Commonwealth argues that it may exclude a second period. On February 14, 1983, appellant, who had been on bail, failed to appear for trial. Instead, his sister-in-law appeared and told the court, and the district attorney, that appellant was in federal custody in Lexington, Kentucky. N.T. 8-9. The case was continued to March 21, so that the Commonwealth could initiate extradition proceedings. On March 21 appellant was still in custody in Kentucky, and the case was continued to June 3. On March 24 the Commonwealth obtained custody of appellant. On June 3 appellant’s counsel requested and was granted a continuance, and on August 18 trial commenced. Under Pa.R. Crim.P. 4013(c), appellant as a person admitted to bail was required to “give written notice to the issuing authority, the clerk of courts, the district attorney, and the court bail agency or other designated court bail officer, of any change of address within forty eight (48) hours of the date of such change____” The Commonwealth’s argument is that because appellant failed to give written notice that he was in custody in Kentucky — of his “change of address” — and because he failed to appear for trial when his case was called on February 14, he violated the conditions of his bail, and that “any resulting delay [is] excludable under Rule 1100(d)(1).” Brief for Commonwealth at 5.

A defendant on bail who fails to appear at a court proceeding of which he has been properly notified is unavailable from the time of that proceeding until he is subsequently apprehended or voluntarily surrenders, and the Commonwealth is entitled to exclude this period without any showing of due diligence. Commonwealth v. Cohen, 481 Pa. 349, 356, 392 A.2d 1327, 1331 (1978); Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111 (1983); Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983); Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982); Commonwealth v. Bell, 283 Pa.Super. 196, 423 A.2d 1056 (1980). We have held that this principle applies even where the defendant is incarcerated, and therefore can not appear, if he has not complied with the notice requirement of Rule 4013(c). Commonwealth v. Byrd, 325 Pa.Super. 325, 472 A.2d 1141 (1984); Commonwealth v. Colon, supra 317 Pa.Super. at 421, 464 A.2d at 393; Commonwealth v. Williams, supra 299 Pa.Super. at 230, 445 A.2d at 539. However, in each of these cases the district attorney was unaware of the defendant’s incarceration. Here, in contrast, the district attorney was informed of appellant’s whereabouts, even though, contrary to Rule 4013(c), not in writing and not until the day set for trial. We therefore do not agree with the trial court, which found Byrd “dispositive.” Slip op. of tr. ct. at 2.

Nevertheless, we find that appellant was accorded his right to a speedy trial. Under Rule 1100(d), the Commonwealth may exclude not just the time that the defendant or his attorney is unavailable for trial, but the entire period of delay that results from such unavailability. Commonwealth v. Robinson, 498 Pa. 379, 384, 446 A.2d 895, 898 (1982) (sixteen day delay occasioned by need to put case on backup status behind two other cases at conclusion of defense continuance excludable); Commonwealth v. Millhouse, 470 Pa. 512, 518, 368 A.2d 1273, 1276 (1977). Thus a defendant, by his unavailability, may occasion a delay greater than the actual time of his unavailability. Commonwealth v. Colon, supra, 317 Pa.Superior Ct. at 423, 464 A.2d at 394; Commonwealth v. Perry, 296 Pa.Super. 359, 442 A.2d 808, 810 (1982). Nothing in the record indicates that appellant notified anyone of his incarceration prior to February 14, 1983, when he failed to appear for trial. Accordingly, he was unavailable for trial at least on that date, and the delay occasioned by the need to continue the case to March 21 was attributable to him and excludable. Commonwealth v. Donaldson, 334 Pa.Super. 473, 477, 483 A.2d 549, 551 (1984) (forty-six day continuance resulting from defendant’s tardiness excludable); Commonwealth v. Ressler, 308 Pa.Super. 438, 454 A.2d 615, 617 (1982) (forty-nine day continuance resulting from defendant’s failure to appear excludable); Commonwealth v. Perry, supra 296 Pa.Super. at 362, 442 A.2d at 810 (twenty-two day continuance when defendant did not appear until after his case was passed because he was detained at a district hearing excludable). Accord Commonwealth v. Derrick, supra 322 Pa. Super, at 530, 469 A.2d at 1118 (when defendant failed to appear for trial and three days later appeared without counsel, entire period from date he failed to appear to date he appeared without counsel excludable, and also period to date to which trial was rescheduled when that date was earliest possible date consistent with court’s business). Exclusion of the 35 day continuance from February 14 to March 21 brings the run date in this case to August 21, 1983, three days after the trial.

A qualification to this conclusion should be noted lest it be interpreted too broadly. It is not enough to show only that the defendant has violated the conditions of his bail; it must also be shown that the period of delay in question resulted from that violation. Here we are satisfied that the 35 day continuance did result from appellant’s violation of the conditions of his bail. But in other cases, that has not been shown. Thus in Commonwealth v. Johnson, supra, where the defendant only appeared late on the day on which trial was scheduled, and the case was continued for 34 days, we declined to find unavailability during the entire period of the continuance. 265 Pa.Super. 27, 33, 401 A.2d 783, 786. And in Commonwealth v. Morgan, 484 Pa. 117, 121, 398 A.2d 972, 975 (1979), the Supreme Court found a 20 day delay caused by the defendant’s failure to appear for her arraignment not excludable because, while the defendant was unavailable during the 20 days, “[a] critical fact” was that her “unavailability ... did not result in delaying the schedule of the proceedings.” Morgan also involved a 49 day continuance. Instead of appearing when her case was called for trial, the defendant notified the district attorney that she was required to appear in federal court. The case was then continued for 49 days, without inquiring how long the federal proceedings would detain her. The Commonwealth argued that the entire period of the continuance should be excluded. However, assuming the defendant’s unavailability on the date set for trial, the Court found that the Commonwealth’s claim was in the nature of a claim of “judicial delay,” and since the Commonwealth had failed to apply for an extension, the claim was rejected. 484 Pa. at 124-26, 398 A.2d at 975-76. Here we do not regard the Commonwealth claim as in the nature of a claim of judicial delay. When appellant’s sister-in-law notified the trial court and the district attorney that appellant was in custody in Kentucky, it became evident that some delay would result. How much delay could not then be known, but an estimate of 35 days — the continuance ordered — was reasonable. It is therefore fairly attributable to appellant.

Appellant’s remaining arguments are also without merit. The record supports the trial court’s admission of appellant’s inculpatory statements and of the credit cards and checks found on appellant on the night of his arrest. We will not disturb findings supported by the record and legal conclusions based on those findings. Commonwealth v. Henderson, 497 Pa. 23, 36, 438 A.2d 951, 957 (1981); Commonwealth v. Rodriguez, 330 Pa.Super. 295, 299, 479 A.2d 558, 560 (1984). Nor has appellant demonstrated any ineffectiveness of counsel. Appellant argues that counsel “was ineffective for failing to subpoena a, print-out of the police radio message which led to the arrest...” Brief for Appellant at 13. However, he does not suggest how the print-out, if subpoenaed, would have assisted in his defense. A purely abstract claim of ineffectiveness will be denied. Commonwealth v. Wallace, 495 Pa. 295, 298, 433 A.2d 856, 858 (1981).

Affirmed.


author: SPAETH, President Judge: OLSZEWSKI, Judge,

text:
    491 A.2d 1371
    COMMONWEALTH of Pennsylvania v. Franklin D. SYPIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1984.
    Filed April 19, 1985.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Tim Lucas, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   SPAETH, President Judge:

This appeal is from a judgment of sentence following pleas of guilty to involuntary deviate sexual intercourse and corruption of minors. Appellant was sentenced to twelve and one-half to twenty-five years imprisonment. The charges to which appellant pleaded guilty arose out of an incident in which appellant engaged in sexual acts with a nine year old boy. On appeal appellant argues that the trial court abused its discretion at sentencing by considering factors that were not related to this case and by not stating adequate reasons for the sentence. We agree and therefore vacate the sentence and remand for resentencing.

-1-

In sentencing appellant the trial court stated:

As you know, there are thousands of kids, and I mean it’s thousands of kids that disappear every year.
Youngsters that no one ever sees or hears from again. Sometimes they’re found dead; sometimes they’re never found.
And their problems result from men like you____
N.T. 9.

These statements require that the judgment of sentence be vacated and the case remanded for resentencing. Appellant was not charged in connection with the disappearance or death of any child. See Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977) (sentence invalid if it appears that sentencing court may have relied on an impermissible consideration); Commonwealth v. Stufflet, 322 Pa.Super. 176, 469 A.2d 240 (1983) (improper reference to rape at sentencing when defendant not charged with rape); Commonwealth v. Karash, 306 Pa.Super. 229, 452 A.2d 528 (1982) (in sentencing defendant for burglary, court should not have referred to escape for which defendant had not been charged); Commonwealth v. Cruz, 265 Pa.Super. 474, 402 A.2d 536 (1979) (error for sentencing court to rely on unsubstantiated hearsay that defendant dealt in large quantities of drugs).

-2-

There is a second reason for vacation and remand. It involves the issue of whether the trial court, in sentencing appellant to prison, considered appellant’s mental condition.

At the sentencing hearing counsel for appellant referred to a presentence investigation report. N.T. 6. The trial court did not make the report part of the record on appeal, but the Commonwealth has appended a copy of the report to its brief. The report describes appellant’s “Past or Present Problem” as follows:

The defendant has an extensive mental health/sexual presenting problem. Mr. Sypin has been hospitalized three different times at Warren State Hospital. His last hospitalization at Warren occurred in November of 1977. He was involuntarily committed ... while ... still incarcerated in the Erie County Prison. The course of treatment was pursued at Warren. Mr. Sypin was released from Warren in April of 1978. At that time he was discharged from Warren back to the Erie County Prison then paroled. At this time he was placed on intensive supervision. During the parole period, Mr. Sypin was referred to various Erie area mental health facilities for services and treatment. He continuously received anti-psychotic medication from Hamot Mental Health. At this time, Mr. Sypin was on parole status for involuntary deviate sexual intercourse involving sexual activities with his eleven year old nephew.

The report then goes on to state that appellant “[djuring his most recent incarceration” was under the care of Dr. David B. Paul, the Prison Psychiatrist. A letter from Dr. Paul, evaluating appellant, is attached to the report. The letter is dated January 21, 1983, less than a month before sentence was imposed, on February 14, 1983. In the letter Dr. Paul states that in January 1975, and again in April 1975, when at Warren State Hospital, appellant was diagnosed as suffering from “Schizophrenia, Chronic Undifferentiated Type,” and that in August 1982, when at Hamot Mental Health, the diagnosis was “Schizophrenia, Chronic Paranoid Type and Borderline I.Q.” Dr. Paul states that his own impression of appellant is “Schizophrenia, Chronic Undifferentiated Type: Dull Normal Intelligence.” In describing appellant’s “Treatment Course,” Dr. Paul states that appellant’s “dependence on the Thorazine for anxiety control was such that he declined offers [to use] medications with a lesser tendency to produce blurred vision.”

Appellant’s counsel asked the sentencing judge to consider appellant’s history of mental illness:

[T]here isn’t much available in the system for rehabilitation, but there are hospitals, there are treatment facilities; and I would ask the Court in sentencing Mr. Sypin ... that he be sent to someplace within the system where he can get some kind of help, ... because not only will Mr. Sypin be assisted but the community will because there would be less likelihood that there would be a repetition of this type of activity.
N.T. 8.

However, the sentencing judge made no reference to appellant’s history of mental illness; the judge only said that “they tried to work with you; you tried to help, I agree; but it didn’t work,” and that “I think it’s like a disease of alcoholism; you can’t do anything about it. You want help. You don’t know how to get it. Nobody knows how to do it yet. Maybe someday there’ll be an answer to that.” N.T. 9. Nowhere did the judge explain, either what “it” referred to, or why he was ordering appellant confined to a prison instead of a mental hospital.

The first responsibility of the sentencing judge is a fact-finding responsibility; the judge must be sure that he has before him “sufficient information to enable him to make a determination of the circumstances of the offense and the character of the defendant.” Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336, 1340 (1979) citing Commonwealth v. Wicks, [265 Pa.Super. 305, 401 A.2d 1223 (1979) ]. The second responsibility of the sentencing judge is an application-and-explanation responsibility; the judge must apply to the information he has gathered the statutory guidelines specified in the Sentencing Code, Act of Dec. 30, 1974, P.L. 1052, No. 345, § 1, 18 Pa.C.S. § 1321 et seq. (Supp.1977), and then explain on the record how that application has resulted in the sentence imposed. Commonwealth v. Doyle, supra [275 Pa.Super.], at 383, 418 A.2d at 1341. See Commonwealth v. Farrar, 271 Pa.Super. 434, 447-453, 413 A.2d 1094, 1101-1104 [ (1979) ].
Commonwealth v. Kostka, 276 Pa.Super. 494, 509, 419 A.2d 566, 573-74 (1980) (SPAETH, J., concurring).

Here, the evidence that appellant suffers from chronic undifferentiated schizophrenia was uncontroverted, and might, therefore, have been found by the sentencing judge to represent “sufficient information to enable him to make a determination of ... the character” of appellant. However, since the judge made no comment on that evidence, we cannot know whether he found it sufficient. In this regard, it may be noted that the presentence investigation report makes no recommendation on how appellant should be sentenced; also, Dr. Paul’s letter contains no prognosis. The sufficiency of the information before the sentencing judge is therefore not apparent, and testimony from Dr. Paul might well have been helpful. Nor did the sentencing judge meet his responsibility of “applying] the information he has gathered to the statutory guidelines specified in the sentencing code.” Although, as just mentioned, the presentence investigation report makes no sentencing recommendation, the facts contained in the report strongly imply that incarceration in a mental institution should be considered. Yet the sentencing judge appears to have ignored that alternative; he at least makes no reference to it.

We are unable on this record to say that appellant should have been sentenced to a mental institution. There is no doubt that he should be totally confined somewhere. However, the sentencing record does not support the judgment sentencing him to prison.

-3-

In addition to vacating and remanding, we order that the resentencing proceeding be conducted by another trial judge. The statements made by the judge who imposed the sentence under review are such as to raise a reasonable question regarding the judge’s impartiality. See Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983).

The judgment of sentence is vacated and the case remanded for resentencing before another trial judge.

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

OLSZEWSKI, Judge,

concurring and dissenting:

While I agree that the matter must be remanded for resentencing, I see no reason to order resentencing before another judge.