author: POPOVICH, Judge:

text:
    483 A.2d 974
    COMMONWEALTH of Pennsylvania v. Thomas K. THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 11, 1984.
    Filed Nov. 2, 1984.
    Petition for Allowance of Appeal Denied March 29, 1985.

      Arthur L. Zulick, Assistant Public Defender, Strouds-burg, for appellant.
    James F. Marsh, District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by appellant, Thomas K. Thomas, from a judgment of sentence of 10 to 20 years’ imprisonment entered following a plea of nolo contendere to rape. This is the maximum sentence permitted by 18 Pa.C.S.A. § 3121, 18 Pa.C.S.A. § 1103.

Appellant was charged with kidnapping, rape and related crimes arising from an incident which took place on July 1, 1983. On that day, the victim, responding to a request from one of appellant’s friends, agreed to give appellant a ride. He subsequently abducted and raped her in a wooded area on the Appalachia Trail in Monroe County in the presence of her 10-week old son. He then bound, gagged and blindfolded her and left her lying naked at this distant outpost. After appellant, departed, the victim, still bound, was forced to leave her son and walk a distance of approximately five miles before she was able to secure help.

On September 14, 1983, appellant entered his pleas of nolo contendere to the charges of rape and kidnapping. On October 31, 1983, he was sentenced to a term of five to ten years’ incarceration on the kidnapping charge to be served consecutively with the sentence which is the subject of this appeal. This appeal follows denial, after a hearing, of appellant’s motion for reconsideration. We affirm.

Appellant herein raises three issues for our consideration. First, he argues that the lower court erred in imposing a sentence in excess of the aggravated minimum range of the Pennsylvania Sentencing Guidelines.

It is true that the lower court imposed a sentence in excess of the minimum aggravated range for an offense with a gravity offense score of “9”; however, the court provided its reasons for so doing. 204 Pa.Code 303.1(h), 42 Pa.C.S.A. § 9721 et seq., effective July 22, 1982, provides

In every case where the court imposes a sentence outside the sentencing guidelines, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from this chapter.

The court listed the following reasons in the departure report:

The facts of this case show that the Defendant acted in an extremely brutal and calculating fashion in raping the victim in that:
1. The Defendant committed this act against a woman who had gone out of her way to befriend him;
2. The Defendant forced the woman into submission by exercising threats of physical violence against her ten-week-old child;
3. After committing the rape, Defendant jbound [sic] and gagged the victim while she was completely naked and left her in that condition in a remote part of the county as to virtually insure that she would not be found, thereby imperiling her life and the life of her ten-week-old child;
4. The victim, after she was fortunate enough to extricate the bindings from her feet, walked five miles through the woods, bound and gagged, before she was able to obtain assistance. During that time, the ten-week-old child was left in the woods because the victim was unable to extricate her hands from the bindings to take the child with her;
5. Defendant, in 1982, assaulted another woman with her young child in the Borough of Stroudsburg. Although the assault was foiled by a passer-by, the circumstances bear a degree of similarity to this case;
6. The Defendant has shown no remorse for his actions; and
7. The Defendant appears to have a violent nature.

Adequate reasons for the departure were supplied, and we hold that the lower court was justified in so sentencing appellant. Commonwealth v. Gunderman, 268 Pa.Super. 142, 407 A.2d 870 (1979). A more heinous and appalling crime would be difficult to imagine; only through fortuitous circumstances were the victim and her baby spared their lives.

Moreover, the sentencing court extensively and completely recorded its reasons for the imposition of sentence. Commonwealth v. Mead, 300 Pa.Super. 510, 446 A.2d 971 (1982). The judge’s statement, read as a whole, disclosed that proper weight was accorded to the particular circumstances of the offense and the character of the defendant. Commonwealth v. Gunderman, supra. The sentencing judge fulfilled his responsibilities under the Code. Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336 (1981).

Appellant next contends that' the sentencing judge’s statement of reasons for departure from the aggravated minimum was insufficient in that it failed to explain why a sentence within the aggravated minimum was not sufficient. By so setting forth reasons justifying departure, the Court was, in effect, attempting to elucidate its rationale therefor. For the reasons stated therein and for the reasons set forth at sentencing, the trial judge was implicitly stating why the aggravated minimum was insufficient. The imposition of a proper sentence under the Sentencing Code is a matter vested in the sound discretion of the trial court, whose determination must be respected unless it is an abuse of discretion. Commonwealth v. Knight, 479 Pa. 209, 212-213, 387 A.2d 1297, 1299 (1978). We find no abuse of discretion.

Finally, appellant contends that the lower court considered as a prior conviction an offense to which the defendant pled guilty but for which he had not yet been sentenced.

Appellant argues herein that the sentencing court improperly considered a prior conviction for which he had not yet been sentenced but to which he had pled guilty. This claim is meritless.

In reviewing the imposition of sentence, this court should ordinarily defer to the trial court which was better able to weigh the various considerations and should not replace the trial court’s judgment with its own unless the sentence demonstrates that the sentencing court clearly abused its discretion. Commonwealth v. Long, 310 Pa.Super. 339, 456 A.2d 641 (1983), Commonwealth v. Brown, 314 Pa.Super. 311, 460 A.2d 1155 (1983).

Although the Sentencing Guidelines do not permit consideration of a conviction for which sentence has not been imposed in computing a previous record score, such a consideration is proper as it relates to a defendant’s character.

For scoring purposes, a “prior conviction” is defined as a case in which a verdict of guilty has been entered in the record and sentence has been imposed for an offense which occurred prior to the date of the current offense, notwithstanding any appeal taken on the prior offense.

204 Pa.Code. § 303.7(g), 42 Pa.C.S.A. § 9721 et seq., effective July 22, 1982. (Emphasis added)

At the Sentencing Hearing, the lower court Judge observed

THE COURT: You have a history of violent conduct and I realize that the sentencing guidelines as far as they are concerned, are such that we can’t attribute a prior record score to you. But, the guidelines are only guidelines, they are not hard and mandatory requirements that we must follow with the circumstances deemed proper. But, I think there is one thread that comes through this and that is that you apparently are a violent person. We checked out the action in Northhampton County and my recollection is that this took place back in ’78 and you still haven’t been sentenced on those charges. However, the effect of the charge was that you beat a college student with a tire iron and broke his arms and legs.
(Sidebar discussion off record between the Court, Counsel and the Probation Officer.)
THE COURT: I have got you confused with someone else. You beat up a college student, but you didn’t use a tire iron. Now, there was another offense to my recollection in East Stroudsburg where you had another woman and a young child with you, apparently, attempted to attack her by pretending you had a gun and pointed it in her back for which the charges were ultimately reduced and you pled to Simple Assault. Apparently, the episode was broken up before any harm came to those people. (Sentencing Transcript 8, 9)

At the hearing on the motion for reconsideration, the Judge exposed his reasoning in response to defense counsel’s questioning.

MR. ZULICK: I didn’t have a transcript at the time I prepared this motion, Your Honor. I knew that it had been raised and I also knew that the Court didn’t consider it in computing the prior record score, but I wasn’t clear on whether or not the Court had considered it as a prior conviction generally in determining what the sentencing case should be.
THE COURT: Well, the only consideration that I think we can give to it is that it shows that Mr. Thomas is prone to violent conduct. The specifics of the offense were taken into consideration, itself a conviction, for the purpose of showing that he had been involved in violent conduct. It is like reputation evidence or character evidence and that is his history, he can’t do anything about that. That is the way it is and the effect of it, of course, is nothing we can consider, but at least it shows if he was a law-abiding person or peaceable person. That would have some play in it, but in this instance, he isn’t in that respect.
MR. ZULICK: My argument is that since the guidelines say that a prior conviction includes a case where there is no sentence rendered, that it shouldn’t be considered at all in the sentencing process.
THE COURT: Well, only for the limited purpose that it shows that he is not a peaceable person and in that respect, we had to take account of it, I think, and we didn’t consider it any further than that and it wasn’t used in the computation of the prior record score and I think we would be remiss not to at least take note of that. (Reconsideration Hearing Transcript 8, 9)

“It has been held that a court in imposing sentence may consider prior arrests ... as long as the court realizes that the defendant had not been convicted on those prior charges.” Commonwealth v. Craft, 304 Pa.Super. 494, 500, 450 A.2d 1021, 1024 (1982).

Moreover, in Commonwealth v. Tisdale, 233 Pa.Super. 77, 334 A.2d 722 (1975), this court noted

In [Com. v.] Shoemaker (226 Pa.Super. 203, 313 A.2d 342 (1973)) our court held that a sentencing court could consider as “prior criminal record” the arrests of defendant, whatever the outcome, that took place prior to the day of sentencing. However, the Court cautioned sentencing judges that a reference to an arrest may not be ambiguous, i.e. it may not be mistaken for a conviction. Therefore, our court placed upon the sentencing judge the requisite of using sound judgment in making use of the reference.

Commonwealth v. Tisdale, 233 Pa.Superior Ct. 82, 334 A.2d at 724. See also Commonwealth v. Harold William Johnson, 333 Pa.Super. 42, 481 A.2d 1212 (1984), Commonwealth v. Bryant, 312 Pa.Super. 379, 458 A.2d 1010 (1983). Certainly, the relevancy of a prior conviction is far greater than that of a mere arrest since a defendant could conceivably be exonerated thereafter.

The most important prerequisite to consideration of any past acts of a defendant has been satisfied here, i.e., that the judge fully understood the status and disposition of charges brought against a defendant so as not to confuse a conviction with an arrest or a judgment of sentence imposed with a conviction. This prerequisite is satisfied to the fullest extent possible where the sentencing judge interposes on the record his understanding of the current status of such charges.

Accordingly, we affirm the judgment of sentence.

      . A motion for reconsideration appears to have been untimely filed; however, the Commonwealth concedes that said motion was presented within ten days of sentencing.

      . A prior record score of “1” is listed on the aforementioned guideline report; however, this error was corrected at sentencing. (Sentencing Transcript 2, 3)


source: Caselaw Access Project

author: POPOVICH, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    483 A.2d 979
    Spero T. LAPPAS, Appellant, v. Swanson BROWN.
    Superior Court of Pennsylvania.
    Submitted June 22, 1984.
    Filed Nov. 2, 1984.

      Spero T. Lappas, Harrisburg, appellant, in propria persona.
    Swanson Brown, appellee, in propria persona.
    Before DEL SOLE, POPOVICH and ROBERTS, JJ.
   POPOVICH, Judge:

This is an appeal by Spero T. Lappas, appellant, from an order of the Court of Common Pleas of Dauphin County which granted a stay in execution and ordered forfeiture of a fund in the amount of $1,450.00. This appeal arises out of the following factual context.

Swanson Brown, appellee, was arrested on February 13, 1982, and charged with possession of marijuana and possession with intent to deliver. A search of his residence pursuant to a search warrant resulted in seizure of quantities of marijuana and cash in the amount of $1,450.00. The money was held by the Dauphin County District Attorney and the Dauphin County Detective’s Office pending resolution of the criminal charges against Brown. On May 11, 1982, Brown entered a plea of guilty to possession with intent to deliver and was sentenced on January 26, 1983, to pay a fine of $1,000 and to imprisonment for a period of one to two years. On September 8, 1982, appellant confessed judgment on a note against Brown in the amount of $1,138.50, seeking satisfaction of fees for legal services rendered. On January 25, 1983, he filed a praecipe for writs of execution upon Brown; Richard Lewis, the District Attorney; Kenneth Barbush, the County Detective; John Goshert, the seizing officer; and the Harrisburg Police Department.

On February 7, 1983, one year after Brown’s arrest and 12 days after sentencing, the Commonwealth filed a Petition in Forfeiture captioned Commonwealth v. 1450 Dollars U.S. Currency, alleging that the funds were “derivative contraband” and thus subject to forfeiture, and the garnishees immediately filed an application for Stay of Execution. A Rule was issued upon appellant to show cause why the execution should not be stayed “pending the outcome of the appeal period in Commonwealth v. Swanson Brown ... and/or Commonwealth’s Petition in Forfeiture in that case, which ever shall last occur.” Appellant answered the Rule, and a hearing was conducted on April 6, 1983, on the forfeiture petition. The lower court held that the fund was not subject to garnishment by appellant and granted the stay. The court ordered the fund forfeited. This appeal followed, and we affirm.

Appellant raises two issues for our review. First, he claims that the Petition in Forfeiture filed by the Commonwealth was not filed “forthwith” as is required under 35 Pa.C.S.A. 780-128(b), (c). 35 Pa.C.S.A. 780-128 reads, in pertinent part, as follows:

(b) Property subject to forfeiture under this act may be seized by the law enforcement authority upon process issued by any court of common pleas having jurisdiction over the property. Seizure without process may be made if:
(1) The seizure is incident to an arrest or a search under a search warrant or inspection under an administrative inspection warrant;
******
(c) In the event seizure without process occurs, as provided herein, proceedings for the issuance thereof shall be instituted forthwith. (Emphasis added)

1972, April 14, P.L. 233, No. 64, § 28, eff. June 14, 1972. This court has recently noted that 35 Pa.C.S.A. 780-128 is not the proper act under “which forfeiture [of monies] is sought.”

That statute is most specific in enumerating the property which is subject to forfeiture, and nowhere does the act provide in any way for the forfeiture of money ____

Commonwealth v. Myers, 298 Pa.Super. 272, 279 n. 2, 444 A.2d 1170, 1174 n. 2 (1982). However, the court in Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999 (1976) stated:

Section 780-128 of the Drug, Device and Controlled Substance Act defines what property is “subject to forfeiture to the Commonwealth” as contraband. Among the items listed in § 780-128 are all controlled substances, all raw materials used in manufacturing controlled substances, all property used as a container for controlled substances, all vehicles which transport controlled substances, and all books and records pertaining to controlled substances. Section 720-128, however, does not specifically authorize the forfeiture of money received in exchange for the illegal delivery of controlled substances. We do not regard this omission as evidencing a legislative intent to immunize from forfeiture the proceeds of the sale of a controlled substance. Rather, the statutory scheme envisions the confiscation of the proceeds by the imposition of a fine following conviction: § 780-113(f)(l) provides that upon conviction of violating § 780-113(a)(30) (possession with intent to deliver), the defendant “shall be sentenced to imprisonment not exceeding fifteen years, or to pay a fine not exceeding two hundred fifty thousand dollars ($250,000), or both or such larger amount as is sufficient to exhaust assets utilized in and the profits obtained from the illegal activity." Any argument that the legislature intended a fine following conviction to be the sole means of depriving a seller of the fruits of his criminal act, however, must be rejected: § 780-113(h) provides that “[a]ny penalty imposed for violation of this act shall be in addition to, and not in lieu of, any civil or administrative penalty or sanction authorized by law.

Id., 240 Pa.Superior Ct. at 464, 362 A.2d at 1002 (Emphasis added). “The object of § 780-128 is to impose a penalty on those who are significantly involved in criminal enterprises in violation of the Drug Law.” Commonwealth v. 1978 Toyota, 321 Pa.Super. 549, 552, 468 A.2d 1125, 1126 (1983).

Accordingly, even though this cause of action does not fit strictly within the rubric of § 780-128 since it concerns currency, we can analogize to that act. We note that a delay of one year before the filing of a petition appears to have been violative of the “forthwith” provision. We are mindful, however, that this is an action between Brown’s creditor and those whom he is attempting to garnish. Although we do not wish to encourage the late filing of Petitions in Forfeiture, under the facts of this case, we find no prejudice claimed or apparently suffered by Brown or appellant. (See One 1965 Buick 4-Door Sedan v. Commonwealth, 46 Pa.Cmwlth. 189, 408 A.2d 157 (1979) which introduced the concept of prejudice into the analysis of whether a delay of three years before commencement of a forfeiture hearing violated the owner’s right to a hearing within a reasonable time). With respect to Brown, although he had a right to, he apparently did not file a motion for the return of his property under Pa.R.Crim.P. 324. With respect to appellant, no claim of prejudice appears nor does it seem likely that there has been any prejudice to his rights. Although it is true that the Commonwealth waited for one year after the funds were taken into custody before it filed a Petition, the fund would certainly have been held in custodia legis for use as evidence or for disposition in satisfaction of the fines and costs imposed upon Brown at sentencing and would, therefore, not have been available to Brown or appellant in any event. (See infra footnote 4).

Moreover, the hearing on the Petition was properly held after resolution of the charges against Brown. Commonwealth v. One (1) 1971 Ford LTD, 245 Pa.Super. 303, 369 A.2d 414 (1976). Brown pled guilty to the charge brought against him, and this plea could easily have been withdrawn before sentencing. We note that the Commonwealth’s Petition was filed less than two weeks after sentencing. Since we find no prejudice to appellant nor Brown, we will entertain on appeal the court’s distribution of the fund.

We agree with the lower court’s implicit characterization of the funds as “derivative contraband”. The Commonwealth had the burden of proving that the money was derived from the illegal sale of marijuana by a “preponderance of the evidence.” Commonwealth v. Coghe, 294 Pa. Super. 207, 439 A.2d 823 (1982); Commonwealth v. Landy, supra.

Money proceeds directly derived from and directly traceable to the sale of a controlled substance (contraband per se), a criminal act, are “derivative contraband” subject to forfeiture. Such money represents the fruit of the illegal act and it, therefore, takes on the illegal characteristics of the contraband controlled substance. It is not only the policy of the Controlled Substance, Drug, Device and Cosmetic Act, but also the policy of our criminal law to deprive a criminal of the fruits of his illegal act.

Commonwealth v. Landy, 240 Pa.Superior Ct. 465, 362 A.2d at 1002.

The Commonwealth sustained its burden of proof. Naturally, in order to show a nexus between the funds and the contraband, it was necessary to show that, although Brown was not arrested for the sale of drugs, he was nonetheless involved in sales. A police officer testified that an informant told him that Brown was selling marijuana. (T-12). A man sitting in the living room of Brown’s residence at the time of the execution of the warrant had one-quarter pound of marijuana on the floor beside him. A police officer testified that its worth would be approximately $125 which exact sum was found in Brown’s pocket. (T-16). There was evidence of a purported admission by Brown that he had sold ten pounds of marijuana (T-21) and that he procured drugs in 25-pound lots from “a white guy across the river.” (T-28). He was in the company of a suspected drug dealer (T-33). Most convincing, however, was the admission of his bank statements which tended to refute his statement that he received no other income than his employment wages. (T-41). The statements showed deposits in excess of that amount which would represent his wages. (T-42, 43).

In Commonwealth v. Myers, this court reversed a lower court order characterizing money as derivative contraband; however,

the trial record and the jury verdict related solely to possession by the [accused] of marijuana with the intention of delivering it. No evidence was presented of any sale of marijuana or of anything else, and no attempt was made by the Commonwealth to show any specific transaction. (Emphasis added)

Id., 298 Pa.Superior Ct. at 280, 444 A.2d at 1175.

Here, the Commonwealth not only showed that Brown’s acts were preliminaries to prospective sales but attempted to show that he had been involved in past sales.

Where money is characterized as derivative contraband, then that was its character on the date of its seizure.

The determination by the Court must attach nunc pro tunc to the date of the seizure. “Contraband, by its very term, is not that to which possession may attach, contraband being that which it is illegal to possess. Thus, if the Court’s determination was correct, [Brown] had no pos-sessory right to the money at any time after [it was seized].

Id., 298 Pa.Superior Ct. at 279-280, 444 A.2d at 1174.

The possessory rights of appellant can rise no higher than those of Brown and since an attachment fails if the garnishee has in his possession no money or property belonging to the debtor, we affirm the lower court order granting the stay and mandating forfeiture.

Order affirmed..

DEL SOLE, J., files a concurring opinion.

DEL SOLE, Judge,

concurring:

While I concur in the result reached by the majority in this matter, I write to explain my view that we should not even reach the issue of whether the fund was derivative contraband.

The record reflects that on September 8, 1982, the Appellant secured a judgment against Swanson Brown by virtue of a note which was filed in the prothonotary’s office in Dauphin County. This matter was assigned No. 2916 N. 1982. On January 25, 1983, a writ of execution was issued on the judgment naming as garnishees, Richard A. Lewis the District Attorney of Dauphin County, Kenneth Barbish a County Detective, the Harrisburg Police Department and Detective John Goshert of that department. Between January 28, 1983 and February 1, 1983, the Sheriff served the writ on the garnishees so named. The item sought to be garnished was the sum of money, which was described as “1,450 more or less”.

On February 7, 1983, the garnishee petitioned the court for a stay of execution and filed preliminary objections. A rule was granted on the Appellant to show cause why the execution should not be stayed pending the outcome of the underlying criminal action or determination on a contemporaneously filed petition in forfeiture. The rule was returnable in 20 days.

The Commonwealth filed a petition in forfeiture, Commonwealth v. One Thousand Four Hundred Fifty Dollars U.S. Currency, at No. 38 MD 1983 in the Court of Common Pleas of Dauphin County, Pennsylvania and sought forfeiture of the fund held by the District Attorney as derivative contraband. Said sum of money having been confiscated by the authorities at the time of the arrest of Swanson Brown on drug charges.

Subsequently, a hearing was held in the forfeiture proceeding and the court determined that the money was derivative contraband and ordered a forfeiture. The court stayed the execution as to the garnishees in the case at 2916 N. 1982. It is from the order in the case at 2916 N. 1982 that the Appellant appeals.

Forfeiture in this case was ordered in the forfeiture proceeding, Commonwealth v. One Thousand Four Hundred U.S. Currency, at No. 38 MD 1983 in which the Appellant did not petition to intervene nor from which did Appellant take an appeal. Therefore, no appeal having been filed from the case wherein the court declared a forfeiture, I would not reach the issue. While there is no question that the Appellant would have had standing to pursue the claim in the forfeiture action, had he petitioned to intervene in that action, Appellant did not do so.

The Appellant cannot collaterally attack a determination by the trial court made in another proceeding which has litigated title to the fund. The mere fact that the writ of execution garnishing the fund was filed before the petition for forfeiture does not automatically give Appellant standing in the forfeiture action.

      . Although neither side has raised the ethical considerations hereafter discussed, our review would be inadequate were we to ignore the obvious improprieties involved herein, which tend to "leap out from the record”. If the record presents a substantial question whether counsel has properly discharged his professional responsibilities, a court cannot ignore such question. Polascik v. Baldwin, 245 Pa.Super. 1, 369 A.2d 263 (1976).
      Appellant sues his client while at the same time asserting his client’s • rights to the fund. We would stress that an attorney should avoid even the appearance of professional impropriety and our present disposition of the merits of the appeal in no way condones the practices employed by appellant.
      Disciplinary Rule 5-101 Refusing Employment
      When the Interests of the Lawyer May Impair His Independent Professional Judgment
      (A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.
      Ethical Canon 2-23. A lawyer should be zealous in his efforts to avoid controversies over fees with clients and should attempt to resolve amicably any differences on the subject. He should not sue a client for a fee unless necessary to prevent fraud or gross imposition by the client.

      . John Goshert joined in the brief filed by D.A. Richard A. Lewis by letter dated May 1, 1984.

      . Appellant discusses three issues, but only two are included in his statement of questions involved. See Pa.R.A.P. 2116.

      . Even if the petition in forfeiture was not timely filed and Brown had a possessory right to the fund at the time judgment was entered by appellant,
      Money which is held by the Commonwealth as the result of seizure pursuant to a search warrant, or in connection with an arrest, is property which is subject to the order of court and is clearly in custodia legis and not subject to attachment or garnishment.

        Commonwealth v. Myers, 298 Pa.Super. 272, 282, 444 A.2d 1170, 1175 (1982).

      . Rule 324. Motion for Return of Property
      (a) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he is entitled to lawful possession thereof. Such motion shall be filed in the Court of Common Pleas for the judicial district in which the property was seized.
      (b) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.

      . We note that a claim that the forfeiture is in derogation of Brown’s rights is not strictly at issue since this case involves Brown and appellant in a procedurally adversarial stance; however, since the lower court ordered forfeiture and the issue is timeliness of the Petition, Brown’s rights are affected thereby.

      . "T” will denote the Notes of Testimony from the Forfeiture Hearing.

      . Folmar v. Shaffer, 232 Pa.Super. 22, 24-25, 332 A.2d 821, 823 (1974).


author: WATKINS, Judge:

text:
    483 A.2d 985
    COMMONWEALTH of Pennsylvania v. Randy Lynn DRAWBAUGH, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 16, 1984.
    Filed Nov. 2, 1984.

      Daniel F. Wolf son, York, for appellant.
    Sheryl Ann Dorney, First Assistant District Attorney, York, for Commonwealth, appellee.
    Before WICKERSHAM, JOHNSON and WATKINS, JJ.
   WATKINS, Judge:

This is an appeal from a judgment of sentence by the Court of Common Pleas of York County, Criminal Division, dated April 4, 1983. Appellant was sentenced to 3V2 (three and one-half) to 7 (seven) years imprisonment at a state correctional institution in connection with an escape charge.

The primary issue for our consideration is whether the escape count was properly graded a felony of the third degree instead of a misdemeanor of the second degree. We hold that the offense was improperly graded.

Appellant was arrested July 28, 1982 on several summary warrants and a bail process issued by the Court of Common Pleas of York County for failure to appear in connection with separate charges. En route to police headquarters the appellant was permitted to leave the police vehicle to talk with his girlfriend whose car was stopped along the road. Once out of the police vehicle appellant fled and was not apprehended for several weeks. Appellant pled guilty to the escape charge as well as to two theft charges. During the guilty plea colloquy the court twice designated the escape charge as a felony of the third degree. While this gradation was clear, it was not correct.

18 Pa.C.S.A. § 5121(d), relating to grading of the offense, provides, in relevant part, as follows:

(1) An offense under this section is a felony of the third degree where:
(i) the actor was under arrest for or detained on a charge of felony...
(ii) the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape;
(2) Otherwise an offense under this section is a misdemeanor of the second degree.

There is no evidence in the record that Subsection (ii) has any applicability. Further, since the appellant was under arrest on various summary warrants and as the result of a bail process, his conduct does not fit into Subsection (i) grading escape as a felony. We note that if appellant had been arrested pursuant to a charge of “bail jumping”, i.e. Default in Required Appearance, 18 Pa.C.S.A. 5124, the result would be very different because under those circumstances, the arrest would have been for a felony, i.e. default in required appearance where the required appearance was to answer to a charge of felony, i.e. the burglaries. See 18 Pa.C.S.A. 5124(a).

However, the facts as they actually exist in this case do not bring it under the statutory provision grading escape as a felony. Therefore, we vacate the judgment of sentence and remand for sentencing consistent with this opinion. With regard to appellant’s additional claims that the trial court improperly considered the defendant’s prior record score twice, we have reviewed the record and we do not agree that the judge considered defendant’s prior record in determining the existence of mitigating factors.

Judgment of sentence vacated; case remanded for sentencing consistent with this opinion. Jurisdiction is relinquished.


author: HESTER, Judge:

text:
    483 A.2d 986
    COMMONWEALTH of Pennsylvania v. Stephen Paul RAFALKO, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 7, 1984.
    Filed Nov. 2, 1984.
    Petition for Allowance of Appeal Denied March 18, 1985.

      Robert J. Tesone, Hermitage, for appellant.
    James P. Epstein, Assistant District Attorney, Mercer, for Commonwealth, appellee.
    Before BROSKY, WATKINS and HESTER, JJ.
   HESTER, Judge:

Appellant appeals from a judgment of sentence imposed August 24, 1982, of not less than (10) nor more than twenty (20) years. Admitted into evidence at trial was appellant’s incriminating statement wherein he admitted killing the victim first by striking her several times in the head with a tire iron and then running over her with his car. However, appellant professed self-defense. After appellant’s demurrer to the Commonwealth’s evidence was denied, the jury found appellant guilty of third degree murder on April 20, 1981.

Appellant raises several issues on appeal including bad faith prosecutorial overreaching. Appellant’s defense counsel was suspected of intimidating key Commonwealth witnesses to avoid subpoena. During appellant’s trial the Commonwealth was unable to locate, after a diligent search, a previously cooperative witness. Prior to appellant’s trial, the witness’ sisters admitted that they had been indirectly advised by appellant’s defense counsel to avoid subpoena.

In supplemental post-verdict motions filed approximately five months after appellant’s conviction, appellant contends the post-trial execution of a non-specific search warrant on his attorney’s office violated the attorney-client privilege. This search occurred while appellant’s Motion for a New Trial was pending. Appellant asserts that had he been successful in his Motion for a New Trial, he would have been unduly prejudiced by the confidential information illegally obtained from his attorney’s office and through his attorney’s secretary.

Appellant submits the Commonwealth’s investigation of defense counsel was prosecutorial overreaching designed to harass and prejudice him and therefore, the lower court improperly denied his supplemental Motion in Arrest of Judgment and Motion for a New Trial. Appellant maintains the Commonwealth is barred from retrying him due to the constitutional prohibition against double jeopardy.

As noted in the lower court opinion, there is a question whether the appellant has properly raised the contention of double jeopardy at this time for there has been no mistrial or a new trial declared. However, in view of the holding in Commonwealth v. Hallowell, 497 Pa. 203, 439 A.2d 1140 (1981), wherein two justices held that the defendant lost the opportunity to contend double jeopardy by not asserting it on an initial direct appeal, we will now address that issue.

Appellant does not allege intentional prosecutorial misconduct designed to provoke the defendant into moving for a mistrial. See Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). In fact, in his brief, appellant specifically states prosecutorial misconduct designed to provoke a mistrial was not the situation in this case. Appellant alleges only prosecutorial misconduct undertaken in bad faith to prejudice or harass him.

The Supreme Court in Oregon v. Kennedy, supra, clarified the standard of review to be utilized in ascertaining prosecutorial overreaching from one of “intent” or “bad faith” misconduct to that of “intent only”. This Court in Commonwealth v. Beaver, 317 Pa.Super. 88, 463 A.2d 1097 (1983) adopted the narrower standard propounded in Oregon v. Kennedy, stating:

We find that the dual standard of (“intent” or “bad faith”) review first articulated with any degree of clarity in Commonwealth v. Starks [490 Pa.Super. 336, 340, 416 A.2d 498, 500 (1980) ], supra, being premised upon federal case law that has been subsequently “clarified” (to one of “intent” only), is rendered somewhat suspect by Oregon v. Kennedy, supra. See generally Commonwealth v. Wallace [500 Pa.Super. 270, 455 A.2d 1187 (1983)], supra (Justice Nix’s Concurring Opinion); Commonwealth v. Arelt [308 Pa.Super. 236, 454 A.2d 108 (1982) ], supra.

Commonwealth v. Beaver, supra, 317 Pa.Superior Ct. at 101, 463 A.2d at 1104.

However, the Court therein did not apply the narrower standard of Oregon, but rather applied the broader standard of: 1) prosecutorial misconduct intentionally calculated to trigger the declaration of a mistrial; and 2) prosecuto-rial misconduct undertaken in bad faith to harass the accused. The Court stated:

The reasons for adopting a non-retroactive application of Oregon to the case sub judice are:
First, the decision in Oregon resulted in a “rule” being “adopted,” id. 456 U.S. at 678 n. 8, 102 S.Ct. at 2091 n. 8; Commonwealth v. Wallace, supra (Justice Nix’s Concurring Opinion), that narrowed the prior standard of review applicable to mistrials, i.e., overruled cases holding to the contrary.
Second, because the purpose and effect of the present (“intent” only) rule of review is consistent with the pre- Oregon (“intent” or “bad faith”) standard, we do not find that its operation will be retarded if not applied retroactively.
Third, appellant’s appeal having been perfected prior to the Oregon decision, we think, in weighing the equities, that “injustice or hardship” will be avoided by non-re-troactivity, i.e., the accused will have the benefit of having his claims scrutinized under the broader standard.

Commonwealth v. Beaver, supra, 317 Pa.Superior Ct. at 102, 463 A.2d at 1104-1105.

Such is not the case herein as the instant appeal was filed on August 31, 1982 after the decision in Oregon v. Kennedy, supra, which was filed on May 24, 1982. See Commonwealth v. Freedman, 317 Pa.Super. 207, 210 n. 3, 463 A.2d 1158, 1159 n. 3 (1983); Commonwealth v. Riffert, 322 Pa.Super. 230, 469 A.2d 267 (1983) was the first case in this Commonwealth to actually apply the Oregon v. Kennedy standard.

Appellant specifically states intentional prosecutorial overreaching designed to provoke a mistrial is not the case herein. We therefore affirm the lower court, notwithstanding the lower court’s reliance on the pre-Oregon v. Kennedy standard.

Appellant’s defense counsel orally amended the post-verdict motions at the post-verdict motions hearing. The hearing was continued and the Commonwealth filed a Motion for a More Specific Pleading to which defense counsel responded. She maintained appellant was harassed and prejudiced when the prosecution read defense counsel her Miranda rights in the presence of the trial judge prior to trial. Although the lower court addressed this issue in its opinion, it is not properly preserved for appellate review. Only those issues included in post-verdict motions will be considered preserved for appellate review. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Cardona, 316 Pa.Super. 381, 463 A.2d 11 (1983).

We again apply the Oregon v. Kennedy standard to review appellant’s claim that the lower court improperly denied appellant’s Motion for a Mistrial due to a prosecution witness’ reference to a polygraph examination. We conclude there was no prosecutorial intent designed to provoke appellant into moving for a mistrial. The Pennsylvania State Police officer, on direct examination, testified as follows:

“We then advised Rafalko he was lying. We had witnesses in Pennsylvania who saw the car. And the description matched his mother’s Cordoba. We further advised him the car was towed in, and we found a mud flap at the scene which matched the mud flap on the right front of his mother’s car. We advised him the left front mud flap was missing from his mother’s car and I told him. T think the missing mud flap is the one we found at the scene.’ Mr. Rafalko denied any involvement and told me hadn’t been to Pennsylvania since he was about thirteen when he visited some relatives in Scranton. We asked him to take a polygraph ...” (T.T. 348).

The salient consideration in determining the district attorney’s intent is his questioning of the trooper. Could it be said that the reference to the polygraph examination was prompted by the question put to the witness? In his brief, appellant does not focus on any specific question or questions by the prosecution that would evidence intent to provoke a mistrial. Appellant, in his brief, states:

“A review of the officer’s testimony leading up to the reference to the polygraph would indicate that the district attorney had been asking questions that resulted in long narrative answers from the trooper up to this point.” (p. 26).

Questions that result in long, narrative answers do not guarantee that a witness will testify with deliberate, specific, prejudicial information. The trooper was merely reading verbatim from his notes.

The statement did not suggest a favorable result, nor was it conclusive as to whether the test was in fact administered. The trial judge gave the jury proper cautionary instructions and told them to disregard the reference to the polygraph. Commonwealth v. Miller, 497 Pa. 257, 439 A.2d 1167 (1982).

The final issue to be resolved on appeal, as the lower court opinion, Acker, J., sufficiently addresses appellant’s remaining issues, is the denial of appellant’s application for a modification of sentence. Appellant claims the trial judge disbelieved appellant’s motive and therefore imposed a manifestly excessive sentence.

The trial court is given broad discretionary powers in imposing sentence within statutory limits. Commonwealth v. Artis, 294 Pa.Super. 276, 439 A.2d 1199 (1982). Accordingly, the imposition of sentence will not constitute an abuse of discretion unless it exceeds statutory limits or is manifestly excessive. Commonwealth v. Rooney, 296 Pa. Super. 288, 442 A.2d 773 (1982).

In formulating a sentence, the trial judge must consider the particular circumstances of the offense and must enunciate his reasons for the sentence on the record. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (plurality opinion). Clearly the trial judge wisely used his discretion in sentencing the statutory maximum, and delineated his reasons for doing so, given the heinous nature of appellant’s brutal acts. We are satisfied the trial judge considered, and gave weight to, the standards set forth at 42 Pa.C.S. § 9721 and the factors mandated for consideration at 42 Pa.C.S. § 9722 through § 9725 of the Sentencing Code.

Judgment of sentence affirmed.


text:
    483 A.2d 990
    COMMONWEALTH of Pennsylvania v. Gene Leroy ROGERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1984.
    Filed Nov. 2, 1984.
    Petition for Allowance of Appeal Denied March 25, 1985.

      Samuel C. Stretton, West Chester, for appellant.

      Stuart B. Suss, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   HESTER, Judge:

On May 5, 1980, appellant, Gene Leroy Rogers, entered a plea of guilty to murder in the second degree, robbery and conspiracy in the Court of Common Pleas of Chester County-

Appellant had been charged with murder, kidnapping, robbery, theft by unlawful taking (automobile), receiving stolen property, unauthorized use of a motor vehicle, aggravated assault, simple assault and criminal conspiracy. At trial, the Commonwealth was seeking the death penalty. Trial started April 28,1980. Upon listening to the Commonwealth’s witnesses during the first week of trial, appellant became concerned, along with members of his family, with the possibility of being convicted of First Degree Murder and receiving the death penalty. His counsel’s concern was the potential for consecutive sentences on the kidnapping, robbery and related offenses in the event appellant was convicted of all the charges. Trial counsel was of the opinion that a single life sentence without sentences on the related offenses, offered appellant the most advantageous opportunity of eventual release from prison. At this point in the trial, counsel for appellant advised the court that appellant would enter guilty pleas to second degree murder, robbery and conspiracy. Pursuant to an agreement with the Commonwealth, the remaining charges were to be nol prossed and it was further agreed that a consecutive sentence would not be imposed on the criminal conspiracy charge. The colloquy conducted by the trial court, the learned President Judge E.T. Marrone, in accepting the plea, lasted one hour and ten minutes and covered 43 pages of transcribed testimony. It was complete in every detail.

A motion to withdraw the plea or to challenge its validity was not filed. Appellant was sentenced on May 19, 1980 to mandatory life imprisonment on the murder conviction. No sentence was imposed on the robbery and conspiracy convictions.

Appellant did not challenge the propriety of sentence nor did he appeal from the judgment of sentence. Instead, on September 17, 1980, he filed a petition for post conviction relief alleging ineffectiveness of counsel and an unlawfully-induced guilty plea. This appeal was taken from the order dated November 12, 1982 denying post conviction relief.

The facts in this case are as follows: on October 16, 1979, between 9:00 and 10:00 p.m., appellant and Donald Middleton left the Central Tavern in Coatesville, Pennsylvania and joined several friends who were loitering across the street. Shortly thereafter, sixteen-year-old Tommy Flood left the tavern in an obviously intoxicated condition, entered his vehicle and fell asleep at the steering wheel without attempting to drive. Flood’s actions were apparent to appellant, Middleton and the others. Appellant announced that he was going to “roll” the victim and borrowed a knife for that purpose.

Without provocation, appellant and Middleton approached the automobile, opened the driver’s door and commenced striking Flood’s face and torso and kicking his ribs. Then, with Flood inside, the assailants drove off.

Although there were no eyewitnesses to most of the assailants’ subsequent actions, there was circumstantial evidence that appellant and Middleton continued to assault Flood both inside and outside the vehicle, drove the vehicle over him and left him lie on Rock Run Road in Chester County. Flood’s body was discovered at 12:20 a.m. on October 17, 1979. An autopsy determined multiple head injuries as the cause of death.

At approximately 11:30 p.m. on October 16, 1979, appellant and Middleton drove to the apartment of Middleton’s sister. They were driving Flood’s automobile without the victim, apparently having disposed of the body. Thereafter, they drove to Downington, Pennsylvania, to visit appellant’s girlfriend, Peggy Hunter. Ms. Hunter joined the two assailants in the victim’s automobile. When the vehicle stalled due to mechanical problems in Downington, all three were apprehended. At that time Ms. Hunter was wearing a jacket given to her by appellant a short while before. It was identified as the victim’s. When Flood’s automobile was recovered following arrest, an indentation was discovered on the hood. It was apparently caused by the victim’s head being pushed violently onto the hood. Also, hair samples, identified as the victim’s were removed from the windshield wipers.

First, appellant argues that his guilty plea was improperly induced by counsel’s alleged misrepresentations concerning length and conditions of sentence. Particularly, appellant complains that counsel assured him that actual imprisonment would not exceed ten to twelve years. Therefore, appellant alleges that he interpreted the mandatory life sentence as ten to twelve years of imprisonment. Appellant further alleges that counsel did not inform him that commutation of a life sentence by the governor was required for release and that the victim’s family had the right to oppose commutation. For these reasons, appellant maintains that his guilty plea was involuntary and his failure to file a petition to withdraw was not a waiver of his right to challenge the plea.

Where ineffectiveness of counsel causes the entry of an involuntary and unknowing plea, the defendant is entitled to post conviction relief. Commonwealth v. Whittaker, 292 Pa.Super. 172, 436 A.2d 1207 (1981). That appellant pled guilty due to counsel’s assurance that he would actually serve ten to twelve years of the life sentence is belied by the record. During the guilty plea colloquy, appellant acknowledged his understanding of counsel’s advisory position and his right as defendant to choose ultimate defense strategy. Furthermore, he answered affirmatively to whether he understood the mandatory life sentence on second degree murder and the range of sentences on robbery and conspiracy. Finally, appellant assured the court that neither the prosecutor’s office nor counsel induced his plea with promises of leniency.

Appellant is essentially contending that he lied during the colloquy so that his plea would be accepted and counsel’s alleged promises fulfilled. Defendants are obligated to respond truthfully to the court’s inquiries during a guilty plea colloquy. A guilty plea will not be withdrawn where the defendant lies during the colloquy and subsequently alleges that his lies were improperly induced by counsel. Commonwealth v. Scott, 318 Pa.Super. 526, 465 A.2d 678 (1983); Commonwealth v. Edrington, 317 Pa.Super. 545, 464 A.2d 456 (1983); Commonwealth v. Brown, 242 Pa.Super. 240, 363 A.2d 1249 (1976).

Moreover, the post conviction hearing court resolved a conflict in credibility in favor of trial counsel. At the post conviction hearing, counsel testified that he advised appellant of his possible release from prison following ten to fifteen years should the Parole Board deem it appropriate. Counsel instructed appellant that this opportunity was available following conviction pursuant to a guilty plea. Counsel further testified that his early release was left to the sole discretion of the Parole Board over which he had no influence.

It is apparent that counsel was not equating a life sentence with ten to twelve years of imprisonment. He was advising appellant of his eligibility for parole and not the termination of sentence. The credibility finding is supported by the record and will not be reversed on appeal. Commonwealth v. Williams, 310 Pa.Super. 501, 456 A.2d 1047 (1983).

Counsel had no independent recollection of whether he advised appellant that life sentences are commuted by the governor and of the victim’s family’s right to oppose commutation. He suspected that he so advised appellant as it was his practice to discuss commutation with clients facing potential life sentences.

Assuming appellant was not informed of commutation prior to entry of his plea, he does not demonstrate why that would precipitate an unknowing and involuntary plea. Claims of prejudice and ineffectiveness are not successful when presented in a vacuum. Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983); Commonwealth v. Kittrell, 285 Pa.Super. 464, 427 A.2d 1380 (1981); Commonwealth v. Possinger, 264 Pa.Super. 332, 399 A.2d 1077 (1979).

Appellant also contends that his plea was not intelligently, knowing and voluntarily entered due to counsel’s failure to request a change of venue and to advise him that intoxication could reduce murder from first to third degree. According to appellant, at least forty-five newspaper articles reported on the proceedings prior to the entry of his plea. Also, he allegedly suffered from alcoholism and was being treated by a prison drug and alcohol counselor.

Counsel explained at the post conviction hearing that [there] was not, in my opinion, any extensive pretrial publicity. It was certainly not the type that would warrant a change of venue. It had been my experience in numerous cases prior to this where I certainly felt publicity was more substantial that the Court was reluctant to grant changes of venue, and in my opinion a motion, if made, would have been denied, ...

(N.T. September 28, 1981, pp. 49-50). We acknowledge that this explanation does not constitute a “reasonable basis designed to effectuate” appellant’s interest; counsel merely expresses his opinion that to pursue a change of venue would be futile. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Furthermore, with the possibility of forty-five newspaper articles reporting during pre-trial, we are not prepared to hold meritless a motion for change of venue. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Nevertheless, appellant does not allege that his guilty plea was motivated by his dissatisfaction with venue. At the post conviction hearing, appellant’s full testimony on counsel’s decision not to move for change of venue was as follows:

Q. What is the next point you raise in your petition?
A. Okay, Mr. Gavin failed to file a pretrial motion for change of venue, saying there was not enough pretrial publicity concerning my case.
Q. Did you collect the newspaper articles concerning your case?
A. My mother did.
Q. About how many articles were there concerning your case?
A. Between forty and forty-five.
Q. In what papers?
A. West Chester Daily Local News and Coatesville Record.
Q. Over how long a period of time were these articles?
A. Since the arrest up until the date my jury was picked.
Q. Did you ask Mr. Gavin to file a motion for change of venue?
A. Yes, I did.
Q. Did he tell you why he did not?
A. He said it wouldn’t do any good. He said there wasn’t enough pretrial publicity.

(N.T., September 28, 1981, pp. 15-16). This testimony was evidence of the number of newspaper articles, the period of publication and counsel’s refusal to file a motion for change of venue. As such, it provided no grounds for withdrawal of a plea. See Commonwealth v. Anderson, supra.

According to appellant, he had suffered from alcoholism for five years prior to the crime. Counsel’s failure to investigate his alcoholism and advise him of its potential for a defense, allegedly encouraged him to plead guilty.

In response to whether he advised appellant that intoxication would serve as a defense which would earn an acquittal of all charges, counsel testified at the post conviction hearing:

I advised Mr. Rodgers (sic) very clearly that intoxication was mitigating on the charge of homicide only and on any other charge there was no defense whatsoever.

(N.T., September 28, 1981, p. 43). Furthermore, counsel explained why intoxication was not a feasible defense for purposes of reducing murder from first to third degree:

I indicated to him on the homicide charge on the facts, as I knew them and anticipated them being presented, I did not see any way that a jury would come in with anything less than second degree murder because of the viciousness of the assault and then the subsequent running over the victim with his own car.

(N.T., September 28, 1981, p. 44). In addition to the improbability of the jury returning a guilty verdict on less than second degree murder, counsel was fearful of consecutive sentencing in the event appellant was convicted by jury:

What was really concerning me was he would get convicted of everything and get consecutive sentencing.

(N.T., September 28, 1981, p. 46). The plea of guilty eliminated consecutive sentences as evidenced by the imposition of sentence on second degree murder only.

Counsel’s post conviction testimony provides a “reasonable basis” for promoting appellant’s interest. The entry of a guilty plea to avoid the death penalty as well as consecutive sentences was sound strategy in light of the brutal nature of the assault.

Having determined that appellant’s guilty plea was voluntarily, knowingly, and intelligently entered, we believe that appellant’s appeal is actually the result of his displeasure with the consequences of that plea. In Commonwealth v. Anthony, 504 Pa. 551, 475 A.2d 1303 (1984), our Pennsylvania Supreme Court viewed a guilty plea as a “confession of guilt” and not a “ceremony of innocence”. Id., 504 Pa. at 559, 475 A.2d at 1307, 1308. The Anthony court commented further:

The defendant is before the court to acknowledge facts that he is instructed constitute a crime. He is not there to gauge the likelihood of their proof, nor to weigh them in light of the available procedures for their proof. He is there to voluntarily say what he knows occurred, whether the Commonwealth would prove them or not, and that he will accept their legal meaning and their legal consequence.

Id., 504 Pa. at 559, 475 A.2d at 1308. (Emphasis added).

Finally, appellant demands a new post conviction hearing on grounds that the Public Defender of Chester County represented him at the P.C.H.A. hearing despite a conflict of interest. As a result of this alleged conflict, appellant complains that post conviction counsel did not provide effective representation. Post conviction counsel’s failure to amend the P.C.H.A. petition, subpoena newspaper articles, cross-examine more extensively and file a brief is allegedly evidence of indifference caused by the conflict of interest.

The Public Defender withdrew from representing appellant at trial due to the fact that it represented co-defendant Middleton in a severed trial. However, at the time of appellant’s P.C.H.A. proceeding, the Public Defender had ceased representing Middleton three and one-half months earlier. Its representation of Middleton terminated when private counsel filed a petition to withdraw Middleton’s guilty plea.

Although a conflict apparently existed at the time appellant and his co-defendant entered their guilty pleas, there was no conflict throughout appellant’s post conviction proceedings.

Appellant’s alleged illustrations of ineffectiveness by post conviction counsel are similarly without merit. Once again, the ineffectiveness allegations do not exceed bare assertions. Commonwealth v. Brown, 313 Pa.Super. 256, 459 A.2d 837 (1983).

Order affirmed.


author: JOHNSON, Judge:

text:
    483 A.2d 1377
    Rebekah HARRIS, A Minor, by Brigitte HARRIS, Her Guardian, and Brigitte Harris, James Harris and Janis Harris, Appellants, v. EASTON PUBLISHING CO., Commonwealth of Pennsylvania, Department of Public Welfare, and Northampton County Board of Public Assistance.
    Superior Court of Pennsylvania.
    Argued March 26, 1984.
    Filed Nov. 9, 1984.

      Margaret H. Poswistilo, Easton, for appellants.
    April L. Cordts, Easton, for appellees.
    Before ROWLEY, MONTEMURO and JOHNSON, JJ.
   JOHNSON, Judge:

We are called upon to review the summary dismissal of an action for invasion of privacy where a newspaper of general circulation published facts concerning the private lives of an applicant for public welfare benefits and her family on information supplied by the Department of Public Welfare. The appeal is from an order granting summary judgment in favor of Easton Publishing Company (Company). Since we find that the pleadings raise genuine issues of material fact concerning publicity given to private life, we reverse and remand.

Appellants filed a complaint in trespass on September 10, 1980 alleging that a column appearing in the Company’s newspaper on April 25, 1979 had revealed personal facts of appellants. The complaint alleged that publication of the column constituted an invasion of privacy as (1) an unreasonable intrusion upon appellants’ seclusion and (2) publicity given to appellants’ private lives. The complaint also alleged a violation of the Public Welfare Code, 62 P.S. § 101 et seq.

The record establishes that appellant Brigitte Harris was born in Germany, married a U.S. enlisted man and gave birth to three children in Germany. She subsequently moved to the United States and gave birth to a fourth child. In January of 1979, Brigitte filled out an application for medical assistance and food stamps on behalf of herself, her granddaughter Rebekah, and pregnant daughter Phyllis all of whom occupied the same household, along with Brigitte’s son James and daughter Janis. Brigitte refused to sign the application and subsequently withdrew it because (1) she refused to permit the caseworker to photocopy certain documents which bore a written prohibition against photocopying and (2) there was some question regarding household size and the income of her son, James.

On February 21, 1979, Brigitte Harris telephoned the Department of Public Welfare (Department) and discussed with an employee her difficulties in applying for benefits. The Department subsequently altered some of the facts in order to disguise appellants’ identities and fashioned a fictionalized account of the inquiry. This account was sent to various newspapers in northeast Pennsylvania for inclusion as part of a public service column regularly provided by the Department. The purpose of the column was to create more public understanding of the Department’s operations, policies and available services.

The column, consisting of a question and response, stated:

Welfare Corner
Q. I recently applied for medical assistance and food stamps for myself, grandson, and my youngest daughter who is 17 and lives with me. She is pregnant and needs the help of a doctor. The welfare office told me I would have to let them make a copy of my naturalization papers. I was born in Germany, married a G.I. and had four children in Germany by him. Then we came to this country and my youngest child, now 17, was born in New Jersey. The trouble is that the welfare office didn’t want to give me medical assistance because I refused to let them copy my naturalization papers. It already says on this paper that it must not be copied. My daughter has a birth certificate in this country which I showed them and they wanted to copy that also.
I called the Immigration Service in Washington and they referred me to you. Can you help?
A. The county assistance office supervisor reported to this office that you decided not to sign the application and, therefore, it is being held pending your decision. The worker stated that she could waive the copying of the naturalization papers even though it is customary to establish proof of age. An examination of your daughter’s birth certificate was sufficient to establish her age as a minor child, although we now make copies of these to maintain proper documentation. We were also informed that you had a 19-year old son who works intermittently for a company which has irregular work. Since he and a young grandson of yours also live in your home, your total family income (all those presently living in the home) will have to be established to determine your eligibility. From what you have stated, you are probably eligible for food stamps as well as medical assistance, but complete information must be given.
We were also informed that a letter had recently been sent to you urging you to come back so that your eligibility and that of your daughter, in particular, can be determined. We hope you will do this for your daughter and her unborn child’s sake. At the time your completion of the application and the determination of eligibility is made, you should also ask your worker about sources of other kinds of help for your daughter. Please be sure that we want you to have the assistance your family needs if you are entitled to it.

The above column, as sent to the Company by the Department prior to its appearance in the newspaper, set forth the initials and address “J.S., Reading” following the sentence “Can you help?” The initials and address were not included by the Company when it published the column. A disclaimer was also regularly included by the Department with the proposed columns which stated, inter alia, that the information in the column is disguised and that attempts should not be made to identify specific persons from the information provided. This disclaimer was also not published with the column.

The complaint alleged that from the information which appeared in the column, numerous persons had indicated to appellants and to others that from reading the column, they had immediately recognized appellants as the purportedly fictional characters in the account. In response to interrogatories, appellants listed seventeen persons who had so identified them from reading the column.

Appellees filed answers and new matter, to which appellants replied. The complaint was subsequently dismissed with prejudice as to appellees Commonwealth of Pennsylvania, Department of Public Welfare and the Northampton County Board of Public Assistance, based on governmental immunity. The Company’s motion for summary judgment was subsequently granted and the instant appeal taken.

Appellants raise two issues on appeal: (1) whether summary judgment was improper because of the existence of a genuine issue of material fact and (2) whether the Company was properly entitled to summary judgment as a matter of law.

Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Husak v. Berkel, Inc., 234 Pa.Super. 452, 341 A.2d 174 (1975). To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. Id. In so doing, we accept as true all well-pleaded facts in appellant’s pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983). Summary judgment is appropriate only in those cases which are clear and free from doubt. Id.

Appellants’ first two bases for relief concern the alleged invasion of their right of privacy. It is well established in Pennsylvania that a violation of the right of privacy is an actionable tort. See Vogel v. W.T. Grant Co., 458 Pa. 124, 327 A.2d 133 (1974); Bennett v. Norban, 396 Pa. 94, 151 A.2d 476 (1959). “The gist of privacy is the sense of seclusion, the wish to be obscure and alone, and it is a trespass to abuse these personal sensibilities.” Bennett v. Norban, 396 Pa. at 99, 151 A.2d at 479. The right of privacy is a qualified right to be let alone; but to be actionable, the alleged invasion of that right must be unlawful or unjustifiable. Lynch v. Johnston, 76 Pa.Commw. 8, 463 A.2d 87 (1983).

An action for invasion of privacy is comprised of four distinct torts: (1) intrusion upon seclusion, (2) appropriation of name or likeness, (3) publicity given to private life and (4) publicity placing the person in a false light. Marks v. Bell Tel. Co. of Pa., 460 Pa. 73, 331 A.2d 424 (1975); Vogel v. W.T. Grant Co., supra. The Restatement (Second) of Torts §§ 652B-E set forth those four categories of invasion of privacy. No Pennsylvania case has specifically adopted the final draft of the Restatement regarding these sections, although our supreme court did adopt section 652D, as it appeared in Tentative Draft No. 13 of the Restatement (Second) of Torts. Vogel v. W.T. Grant Co., supra; see also Wells v. Thomas, 569 F.Supp. 426 (E.D.Pa. 1983). But see Fogel v. Forbes, Inc., 500 F.Supp. 1081 (E.D.Pa.1980) (stating the Pennsylvania courts have adopted Restatement (Second) of Torts §§ 652B-E and citing to the final draft of the Restatement). Our state courts have cited with approval the Restatement (Second) of Torts §§ 652B-E for support regarding invasion of privacy matters. See e.g. Nagy v. Bell Tel. Co. of Pa., 292 Pa.Super. 24, 436 A.2d 701 (1981); see also Martin v. Municipal Publications, 510 F.Supp. 255 (E.D.Pa.1981). We believe that the Restatement most ably defines the elements of invasion of privacy as that tort has developed in Pennsylvania.

Appellants’ first privacy claim alleges intrusion upon seclusion. Section 652B of the Restatement (Second) of Torts states:

§ 652B. Intrusion upon Seclusion
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

An action pursuant to this section does not depend upon any publicity given to the person whose interest is invaded or to his affairs. Restatement (Second) of Torts § 652B, comment a. The invasion may be (1) by physical intrusion into a place where the plaintiff has secluded himself, (2) by use of the defendant’s senses to oversee or overhear the plaintiff’s private affairs, or (3) some other form of investigation or examination into plaintiff’s private concerns. Id., comment b.

The defendant is subject to liability under this section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs. Id., comment c; Fogel v. Forbes, Inc., 500 F.Supp. at 1087. There is also no liability unless the interference with the plaintiffs seclusion is substantial and would be highly offensive to the ordinary reasonable person. Restatement (Second) of Torts § 652B, comment d.

The facts alleged to constitute the invasion of privacy in the instant case were not obtained by the Company by means of any intentional intrusion. Brigitte Harris voluntarily exposed the facts to the Board of Assistance and the Department. Also, the Company received these facts unsolicited from the Department. Hence, the trial court properly granted summary judgment as to this portion of the complaint, as no genuine issue of material fact exists and because the Company was entitled to judgment as a matter of law.

Appellants’ second privacy claim was based on section 652D of the Restatement (Second) of Torts which states:

§ 652D. Publicity Given to Private Life
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter published is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.

The elements of the tort are: (1) publicity, given to (2) private facts, (3) which would be highly offensive to a reasonable person and (4) is not of legitimate concern to the public. See e.g. Brown v. Mullarkey, 632 S.W.2d 507 (Mo.App.1982); Forsher v. Bugliosi, 26 Cal.3d 792, 163 Cal.Rptr. 628, 608 P.2d 716 (1980).

The element of “publicity” requires that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. Restatement (Second) of Torts § 652D, comment a. Wells v. Thomas, supra. Disclosure of information to only one person is insufficient. Nagy v. Bell Tel. Co. of Pa., supra. See also Vogel v. W. T. Grant Co., supra (disclosure to four persons held insufficient).

We note that there is a legal distinction between “publication” as that term is used in connection with liability for defamation, and “publicity” as it is used in a § 652D action for invasion of privacy. While the intentional or negligent communication of defamatory matter to a single person (or to a newspaper) might constitute a “publication” in the context of an action for defamation, see Restatement (Second) of Torts § 577 and comment b, that does not concern us here. The “publicity” which we here examine requires that the matter is made public by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. Where a communication involving private facts reaches, or is sure to reach, the public, then publicity has been given to that party’s private life.

The second element requires that the publicity involve a private fact. A private fact is one that has not already been made public. Liability cannot be based upon that which the plaintiff himself leaves open to the public eye. Restatement (Second) of Torts § 652D, comment b. It also follows from the use of the term private fact that the reader or recipient of the private fact not have prior knowledge of that fact: there can be no liability where the publicity given involves facts with which the recipient is familiar.

The third element requires that a reasonable person of ordinary sensibilities would find such publicity highly offensive. In making this determination, the customs of the time and place, occupation of the plaintiff and habits of his neighbors and fellow citizens are material. Restatement (Second) of Torts § 652D, comment c. Aquino v. Bulletin Company, 190 Pa.Super. 528, 154 A.2d 422 (1959). The act which constitutes the tortious invasion of privacy must be committed in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. Nagy v. Bell Tel. Co. of Pa., supra.

The final element exempts from liability those facts which are of legitimate concern to the public, such as official court records open to public inspection. Cox Broadcasting Co. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). This also applies to persons who, voluntarily or involuntarily, have become public figures, Restatement (Second) of Torts § 652D, comments e and f, and may also apply to certain private facts relating to those public figures, such as the life history of one accused of a sensational crime, id., comment h, and even to the members of that person’s family. Id., comment i, Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971). See also Prosser, Handbook of the Law of Torts 809-12 (4th ed. 1971).

In Aquino v. Bulletin Company, 190 Pa.Super. at 533-34, 154 A.2d at 426, this court stated that:

The rule does not depend for its validity upon a breach of confidence, nor upon the untruth of the statements. The liability exists only if the defendant’s conduct was such that he should have realized that it would be offensive to persons of ordinary sensibilities. It is only where the intrusion has gone beyond the limits of decency that liability accrues. These limits are exceeded where intimate details of the life of one who has never manifested a desire to have publicity are exposed to the public. On the other hand, there is no invasion of a right of privacy in the description of the ordinary goings and comings of a person, or of weddings, even though intended to be entirely private, or of other publications to which people do not ordinarily seriously object. The fact that the plaintiff suffered neither pecuniary loss nor physical harm is unimportant. The damages whether nominal, compensatory or punitive can be awarded in the same way in which general damages are given for defamation, (citation omitted)

We must initially determine whether the evidence as presented satisfies the element of publicity, as a matter of law. The evidence indicates that the column appeared in the Company’s generál circulation newspaper. However, this fact alone is insufficient to establish publicity. For a fact concerning a complainant’s private life to be communicated to anyone, the disclosed facts must necessarily be identified with the complainant. Absent an ability to identify the complainant, there can be no communication and hence, no publicity.

The column in the instant case did not, on its face, reveal appellants’ identities. The fact that the complainant was not specifically named in a defamatory publication or utterance does not prevent recovery in a libel action. Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. 314, 182 A.2d 751 (1962). In such circumstances, the court must initially decide whether the defamatory material was capable of being reasonably understood as intended to refer to the complainant. Davis v. R.K.O. Radio Pictures, Inc., 191 F.2d 901 (8th Cir.1951); Prosser, supra, § 111. The same analysis should be accorded to an alleged tort action pursuant to section 652D of the Restatement, regarding the element of publicity.

The evidence establishes that seventeen individuals did in fact identify appellants from the column. Hence, the allegedly private facts were communicated by the appearance of the column in the newspaper to those seventeen individuals. A question of law arises as to whether the communication to seventeen individuals is a large enough group that the matter must be regarded as substantially certain to become one of public knowledge. See Vogel v. W.T. Grant Co., supra. We hold that, under the facts of this case, communication to a group of seventeen individuals is large enough to constitute publicity as a matter of law. Therefore, we hold that the element of publicity has been established.

The second element, private facts, is shown by the allegations in the complaint which set forth the details in the column which corresponded to the private lives of the appellants. The fact question at issue here involves whether the seventeen individuals who “recognized” appellants from the information in the column did so with or without prior knowledge of these facts. The use of the term “recognize” should not, on its face, be considered to limit the averment in the complaint where no further allegations in any of the pleadings set forth that these individuals had prior knowledge of any or all of the facts revealed in the column.

The extent of the knowledge held by the seventeen individuals, or others, prior to publication is a matter for proof and factual determination. Of course, there can be no recovery of damages on the basis of the publication of “private facts” that were already known to the recipients of the publication prior to publication.

We disagree with the trial court’s determination that the facts were not private because they had been made public by the Department’s distribution of the column to various newspapers for publication. Such a distribution does not constitute publicity so as to render private facts public where the general public is not privy to such distributions and the column as distributed is anonymous. Also, the Company has made no allegation that anyone in receipt of the article as distributed by the Department was able to identify appellants.

The third element requires the publicity given to private facts be highly offensive to a reasonable person. This element finds support from both the protection afforded welfare applicants pursuant to 62 P.S. § 404 of the Public Welfare Code and from a commonsense analysis of the type of information at issue.

Section 404 of the Public Welfare Code states:

§ 404. Regulations for protection of information
(a) The department shall have the power to make and enforce regulations:
(1) To protect the names of applicants for and recipients of public assistance from improper publication, and to restrict the use of information furnished to other agencies or persons to purposes connected with the administration of public assistance. Upon request by an adult resident of the Commonwealth, the department may furnish the address and amount of assistance with respect to persons about whom inquiry is made; but, information so obtained shall not be used for commercial or political purposes; and, no information shall be furnished regarding any person’s application for, or receipt of, medical assistance.
(2) To protect the rights and interests of persons about whom personal or confidential information is in its possession.
(b) The regulations shall not prevent or interfere with investigations by proper authorities as to the rights of persons to receive assistance or as to the amounts of assistance received.

Clearly, while recipients of assistance do not have an absolute right to keep private their addresses and amount of assistance in certain cases, applicants have a legitimate basis for believing that the personal or confidential information revealed to the Department as part of their applications for assistance will not subsequently appear in their local newspaper for all to read. This belief is supported by language found in McMullan v. Wohlgemuth, 453 Pa. 147, 165, 308 A.2d 888, 897 (1973), appeal dismissed, 415 U.S. 970, 94 S.Ct. 1547, 39 L.Ed.2d 863 (1974).

The statutory ban against disclosing the names of public assistance recipients is a clear recognition and directive by the Legislature that the privacy of the recipient is a fundamental need worthy of protection. This Court is bound to give great deference to this sound legislative judgment. The statutory limitation imposed on appellee’s asserted First Amendment right to compel the disclosure of those receiving assistance is no greater than necessary to protect the substantial governmental and individual interests involved, (citations omitted)

We hold that a question of fact arises from the averments presented as to whether the publicity given to these facts was highly offensive to a reasonable person.

The fourth element requires that the publicity given to private facts not involve a subject of legitimate public concern. There can be no doubt as to the benefits inherent in the publication of information to aid those eligible for public assistance who encounter difficulties in applying for assistance or continuing their receipt thereof. However, there is no legitimate public concern in giving publicity to the actual circumstances of a person’s application for assistance where intimate personal facts are revealed (1) in such a way as to imply that those facts are true and (2) where the personal facts are unnecessary to aid those interested in receiving advice in their applications for assistance.

The article in question consisted of a purported letter from a medical assistance and food stamp applicant and a response from the Department. The letter requested aid concerning a specific problem: the propriety of copying naturalization papers by the welfare office. Various personal facts unrelated to this question appeared in both the letter and the response, such as: (1) the pregnancy of the seventeen-year-old daughter of the applicant, (2) the pregnant daughter’s need of help from a doctor, (3) the fact that the applicant was born in Germany, married a G.I. and had four children in Germany by him, (4) the failure of the applicant to sign the application, and (5) the fact that the applicant had a nineteen-year-old son working intermittently. None of this information was necessary to understand or respond to the letter’s request for aid. The form and tone of the article clearly implied that the facts were true. Therefore, there was no legitimate public concern in giving publicity to the intimate personal facts set forth in the article.

The trial court, in its opinion dated June 30, 1982, set forth its interpretation of the issue in this case as being whether the defendant Easton Publishing Company invaded the plaintiffs’ privacy by printing information received by it, unsolicited, from the Department of Public Welfare. The court went on to state that the case concerns the right of the press to publish information which it has already acquired without solicitation. Whether the information came to the attention of the defendant by means of its own solicitation or completely unsolicited, the only possible relevance of this fact goes to the determination of whether the information was private. There is no exception to the tort of invasion of privacy for giving publicity to the private life of another where the party giving such publicity does so on the basis of an unsolicited receipt of the private information.

In support of its conclusion, the trial court cites McMul-lan v. Wohlgemuth, supra. In McMullan a newspaper was denied access by the Department of Public Welfare to the names and addresses of, and amounts received by, public welfare recipients. The court held that the Public Welfare Code prohibited disclosure of such information to a newspaper, the “Right to Know Act”, 65 P.S. § 66.1 et seq., did not entitle the newspaper to the information, and neither the federal nor state constitutional provisions regarding freedom of the press gave the newspaper the right to gather news by compelling disclosure of the information. The court states, in dictum, that “we emphasize that this Court is not here concerned with the right of a newspaper to publish information which it has already acquired.” 453 Pa. at 165-66, 308 A.2d at 898 (emphasis in original; citations omitted).

The information in the instant case, however, was far more injurious than merely the name, address and amount of assistance contemplated in McMullan. Applicants for welfare benefits would be justifiably appalled at having the confidential and highly personal information they provide publicized in a newspaper. Our legislature apparently has come to the same conclusion, and protected that information by statute. 62 P.S. §§ 401, 404.

The court also cites to Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) for support. However, the situation in Time differed greatly from the instant case. In Time, the plaintiff had become a public figure, albeit involuntarily, by his having been held hostage with his family by escaped convicts in his home. Life magazine published an article reviewing a play allegedly based on the incident. The plaintiff alleged invasion of his privacy for falsely reporting that the play was based on the incident, when in fact the play varied greatly from the actual circumstances. Hence, a different type of invasion of privacy was present in that case: one that introduced the element of the facts being public and which also involved a question of whether the statements made were false. That case has no direct application to the instant situation.

The right of privacy competes with the freedom of the press as well as the interest of the public in the free dissemination of news and information, and these permanent public interests must be considered when placing the necessary limitations upon the right of privacy. See Hull v. Curtis Publishing Company, 182 Pa.Super. 86, 125 A.2d 644 (1956). An action based on such right must not become a vehicle for establishment of a judicial censorship of the press. Aquino v. Bulletin Company, supra. However, on balancing the various interests, we hold that the Company was not entitled to judgment as a matter of law.

The right of privacy is intended, inter alia, to protect persons from unwarranted publicity concerning their personal lives. There can be no doubt that the facts publicized in the instant case were of the type which were designed to be protected. Their dissemination to the general public was highly offensive, particularly in light of the statutory protection afforded to them pursuant to the Public Welfare Code. The facts publicized were not of legitimate concern to the public. No other exception is applicable to plaintiffs, as they were not public figures, nor were the facts made public prior to this publication. We therefore hold that because genuine issues of material fact are present, summary judgment was inappropriate.

Appellants alleged in their complaint that the disclosure of the facts constituted a violation of the provisions of the Public Welfare Code. The Company’s motion for summary judgment included the said violations and the trial court’s order granted summary judgment generally. However, appellants have not specifically argued that the trial court erred in granting summary judgment as to the alleged violations of the Public Welfare Code. Hence, we need not review the propriety of the order with respect to those violations.

The order of June 30, 1982 is affirmed, as to the counts alleging a violation of the Public Welfare Code and alleging a violation of appellants’ right of privacy pursuant to the Restatement (Second) of Torts § 652B.

The order of June 30, 1982 is reversed, as to the count of appellants’ complaint alleging a violation of their right of privacy pursuant to the Restatement (Second) of Torts § 652D, and the case remanded for further proceedings, consistent with this opinion.

Jurisdiction is not retained.