author: WICKERSHAM, Judge: POPOVICH, Judge,

text:
    465 A.2d 1038
    COMMONWEALTH of Pennsylvania v. Antoine LEWIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 2, 1981.
    Filed Sept. 9, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   WICKERSHAM, Judge:

On November 8, 1978, following a non-jury trial before the Honorable Thomas N. Shiomos, appellant, Antoine Lewis, was found guilty of attempted burglary and possessing instruments of crime. Post-verdict motions were denied, and appellant was sentenced to probation for five years on the charge of attempted burglary and a concurrent term of three years of probation on the charge of possessing instruments of crime. Appellant took this appeal.

We adopt Judge Shiomos’ summary of the facts in this case:

At the trial of the case, Police Officer Thomas Barta testified that on April 11, 1978, at about two-thirty A.M., he received a radio call and that within 30 seconds, he arrived at 67th and Ogontz Avenue and observed a negro male [defendant] walking away from the side entrance of the [Merit] Television Shop located there. At that time, there was no other person in view. The defendant was some five to fifteen feet from the side entrance. Upon exiting his auto, the police officer noticed that there was a claw hammer, two screw drivers and a pair of pliers on the ground. He also noticed that the door knob to the side entrance had been removed. At that point, the police officer stopped the defendant and found on his person a chisel and a flash light. See N.T. pp [5]-9.

Lower ct. op. at 1.

In view of these facts, we find no merit to appellant’s contention that the evidence was insufficient to sustain his convictions for attempted burglary and possessing instruments of crime.

Appellant seeks to be discharged because his trial was held thirty-one (31) days after the one hundred and eighty (180) calendar day mandate of Pa.R.Crim.P. 1100. We hold that the Commonwealth filed a timely application for extension of time and proved to the satisfaction of the lower court that despite due diligence, the Commonwealth was unable to try the defendant within one hundred and eighty (180) calendar days from the date the complaint was filed.

The relevant procedural history of this case, as set forth in appellant’s brief, is, for the most part, uncontested. See Brief for Appellant at 3-4. Appellant was arrested and a complaint filed against him on April 11, 1978, resulting in a mechanical rúndate, under Rule 1100, of October 8, 1978. At the first trial listing on June 21, 1978, the Commonwealth was unable to proceed to trial because a Commonwealth witness was unavailable. On August 3, 1978, the case was listed in error. The next listing was on August 31, 1978, pursuant to a memorandum from a court trial coordinator. The Commonwealth was then unable to proceed to trial because the arresting officer was on vacation. At the fourth listing, on October 3, 1978, appellant appeared late and the bench warrant which was issued earlier that day was rescinded. The Commonwealth, however, was unprepared to proceed to trial.

On October 5, 1978, the Commonwealth filed a timely petition for an extension of time for the commencement of trial under Rule 1100(c). This petition was subsequently granted, on October 27, 1978, by the Honorable Edward J. Blake who extended the time for the commencement of trial until November 8, 1978. Appellant was tried and convicted on that date.

An extension hearing was held by the lower court at which hearing the Commonwealth relied on the official court records and offered no additional testimony. At the extension hearing, the court reviewed the official court records, and relied on the same in finding due diligence. We have repeatedly upheld such reliance on official court records. Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983), where we said:

We conclude that, in the instant case, the specific requirements of [Commonwealth v.] Mayfield [469 Pa. 214, 364 A.2d 1345] have been met. Although it is clear that ‘mere assertions of due diligence and unproven facts do not establish cause for an extension under Rule 1100(c),’ Commonwealth v. Ehredt, supra [485 Pa.] at 195-96, 401 A.2d [358] at 361 [ (1979) ], quoting Commonwealth v. Antonuccio, 257 Pa.Super. 535, 536, 390 A.2d 1366, 1367 (1978), we believe that a hearing court may properly take judicial notice of uncontested notations in the court record in deciding both issues, namely, whether the Commonwealth has exercised due diligence in attempting to bring an accused to trial and, whether the requirements necessary to warrant an extension on the basis of judicial delay as defined by Mayfield and Rule 1100(c) have been met. We have, of course, previously held that it is proper for a hearing court to accept such records in making a determination of the due diligence of the Commonwealth.

Commonwealth v. Postell, 280 Pa.Super. 550, 421 A.2d 1069 (1980); Commonwealth v. Gibson, 248 Pa.Super. 348, 375 A.2d 132 (1977); Commonwealth v. Kollock, 246 Pa.Super. 16, 369 A.2d 787 (1977). Since the notations on the record provided convincing evidence of due diligence, there was no need for the Commonwealth to provide further testimony on this issue.

Justice Kauffman, speaking for the supreme court, recently stated that:

Rule 1100 ‘serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society,’ Commonwealth v. Brockle-hurst, 491 Pa. 151, 153-54, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197 n. 4, 409 A.2d 308 n. 4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.

Commonwealth v. Genovese, 493 Pa. 65, 69-70, 72, 425 A.2d 367, 369-70, 371 (1981).

We note, however, that Lewis was convicted and sentenced for attempted burglary and possession of instruments of crime. The instruments of crime were burglary tools. Both of these inchoate crimes were designed to culminate in the commission of the offense of burglary. Accordingly, the convictions violate 18 Pa.C.S.A. § 906. We therefore vacate the sentence and underlying conviction of the lesser charge of possessing instruments of crime. See e.g., Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983) (collecting cases) and Commonwealth v. Kinnon, 308 Pa.Super. 28, 453 A.2d 1051 (1982).

Judgment of sentence for possession of instruments of crime is vacated, judgment of sentence for attempted burglary is affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I must dissent from the majority’s unwarranted approval of a delay which violates the Rule 1100 run date under the guise of following a rule of law reaffirmed in a recent case.

According to the majority, “there was no need for the Commonwealth to provide further testimony” because “a hearing court may properly take judicial notice of uncontested notations in the court record” in deciding (1) whether the prosecution has exercised due diligence in attempting to bring an accused to trial and (2) whether the requirements for an extension based on judicial delay have been established by the prosecution, quoting Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983).

To begin with, the notations in the record were not uncontested. At the hearing, the following dialogue occurred between defense counsel and the trial court:

“THE COURT: 4-11 with a normal run date of 10-8.
[Attorney for Appellant] MS. RAKINIC: I believe on that date, Judge, the complaining witness failed to appear, at least my file so indicates.
THE COURT: It doesn’t say it here. Strike that, it says, ‘Bench warrant BOSO rescinded, defendant appeared late, Commonwealth not ready.
6-21 to 8-3, Commonwealth witness not present.
8-31 to 10-3, [Arresting officer on vacation.’
Is there anything prior to that? That’s all I have.
MS. RAKINIC: No. I think that the Preliminary Hearing was held at the first listing on 4-21, Judge. 5-5 was just the trial arraignment date. So that there are three continuances at which the Commonwealth was unprepared and that would be 6-21, 8-31 and 10-3.
THE COURT: And there’s one in which your defendant arrived late.
MS. RAKINIC: That’s the same as the one where the complaining witness was not there at any rate.
THE COURT: I’m going to find enough to give them one more opportunity.
It's now listed for what date?
MS. RAKINIC: 11-8, Room 475.
THE COURT: 11-8 on a must be tried basis.” (N.T. 10/27/78, at 2-3) (Emphasis added).

Thus, the record shows that defense counsel contended that there were “three continuances at which the Commonwealth was unprepared.” Id. Defense counsel further contended that the one day delay which was caused by the appellant’s late appearance in court occurred at the same time as the delay where “the complaining witness was not there.” Id.

The court never responded to this assertion made by defense counsel but instead stated, “I’m going to find enough to give them [the prosecution] one more opportunity.” Id. The trial court also failed to address the Rule 1100 issue in its opinion. As a result, this factual matter remains unresolved. Additionally, this writer notes that the prosecutor did not contradict the defense counsel’s representation since the prosecutor did not utter a single word at the hearing.

This is significant because according to the majority, a trial court need not resolve the factual discrepancies or articulate the facts in support of its ruling to grant a prosecution’s petition for extension, as long as there is some evidence in the record that the court has examined the notations in the record at the Rule 1100 hearing. Moreover, although the majority has cited Commonwealth v. Harris, supra, that case is inapposite. To begin with, in Harris, we said that “a hearing court may properly take judicial notice of uncontested notations in the court.” 315 Pa.Superior Ct. at 551, 462 A.2d at 729. (Emphasis added). In this writer’s mind, the notations were not uncontested. In Harris, the record contained “three continuances for which the court was responsible, one defense continuance and no Commonwealth continuances:” At 550. (Footnote omitted) (Emphasis added). The first continuance was requested by the public defender, the second and third continuances were charged to the court because the wrong defendant was transported from the prison for the trial and because a judge recused himself upon the advice of the district attorney who advised the judge of a previous trial which involved the defendant. Id. at 552 and 553. On these facts, this Court held that “the record of the combined hearing reveals that despite diligent efforts, the Commonwealth could not bring appellant to trial on August 14, 1979 or August 22, 1979, although it was ready to proceed to trial on both of these dates and had been ready to proceed to trial on several listing dates prior to the original run date of August 6, 1979.” At 556. (Emphasis added).

In the instant case, unlike Harris, the prosecution requested the continuances, except for the one day which was due to the defendant’s late appearance in court. Additionally, there was no indication as to “why, despite the unavailability of its witness ... the case could still not be commenced on or before [the run date].” Commonwealth v. Postell, 280 Pa.Super. 550, 553-554, 421 A.2d 1069, 1070 (1980).

It is obvious that, in the instant case, existing case law fails to support the majority’s bootstrap logic. Hence, my dissent.

      . Appellant presents the issues on appeal as follows:
      1. Did not the lower court err by granting the Commonwealth’s petition of October 5, 1978 for an extension of the time in which to try appellant under Rule 1100, Pa.R.Crim.P., inasmuch as the Commonwealth failed to demonstrate the exercise of due diligence as required by 1100(c)?
      2. Was not the evidence insufficient to sustain appellant’s conviction for attempted burglary and possessing instruments of crime inasmuch as the Commonwealth established nothing more than appellant’s mere presence near the scene of an attempted burglary?
      Brief for Appellant at 2.

      . This decision was deferred pending the filing of Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    465 A.2d 1043
    COMMONWEALTH of Pennsylvania v. Purnell WHELTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 22, 1983.
    Filed Sept. 9, 1983.

      Joseph V. Furlong, Jr., Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

Appellant, Purnell Whelton, was convicted in the Municipal Court of Philadelphia of Carrying a Firearm Without a License (18 Pa.C.S.A. § 6106) and Carrying a Firearm on a Public Street or Place in Philadelphia (18 Pa.C.S.A. § 6108). Sentence consisted of a $50.00 fine for each charge, as well as the payment of $10.00 to the Victims’ Compensation Fund. A timely appeal, captioned a “Petition For Writ Of Certiorari,” was filed with the Court of Common Pleas of Philadelphia County, Criminal Division. After a hearing before the Hon. Charles L. Durham, appellant’s Petition was denied. This appeal followed. We affirm.

The facts, viewed in the light most favorable to the verdict winner, consist of the following: At approximately 11:30 a.m. on the 5th of March, 1980, Officer John Clinks-cale, of the Philadelphia police, received “flash information” over his car radio that a pocketbook snatching had just occurred at 9th and Montgomery Avenues. The culprit was identified as a Negro male, 20 to 30 years old, 5 feet 6 inches tall, 150 to 160 pounds, black hair, wearing a % length gray coat, sneakers and clean shaven with a scar on his chin. (N.T. 6 & 8)

Officer Clinkscale, being in the vicinity, began to survey the area for about 15 to 20 minutes before observing the appellant on the corner of 9th and Columbia Avenues, next to a bus stop along with two elderly people and a female, one block from the scene of the reported theft. Appellant matched the description given over the radio. (N.T. 11-12) As the officer approached the appellant on 9th Avenue, he said, “Sir, I’m stopping you to check about a robbery that happened up the street, a pocketbook snatch.” (N.T. 18) While talking to appellant, the officer “patted him down for [his, i.e., the officer’s] protection.” (N.T. 19) During the pat down, the officer felt a hard object inside appellant’s left coat pocket. When the object was removed, it proved to be a .25 caliber automatic pistol, two and a quarter inches in length, with four live rounds in the clip and one in the chamber. At this point, the officer took the appellant back to 9th and Montgomery for an on-the-scene identification. However, this could not be accomplished since the witness had already been taken to “East Detectives.” Although the appellant was not identified as the culprit, and, in fact, “turned out not to be the robbery perpetrator,” (Emphasis added) (Lower Court Opinion at 2), he was, nevertheless, “locked up for carrying a weapon.” (N.T. 7)

Prior to the close of the Commonwealth’s case, counsel introduced evidence that, as of the date of the incident, a check of the records indicated that appellant was not issued a valid license, pursuant to either Section 6109(b) or Section 6106(c) of the Crimes Code, to carry a firearm. (N.T. 21)

At the Municipal Court hearing, appellant took the stand and testified that on the day and time in question he had just left his daughter at his mother’s house. After leaving, he was in the process of cutting across a lot to catch a bus. “While running across the lot [he] noticed this object on the ground. [He] didn’t want to pick it up but [he] did.” (N.T. 22) It turned out to be the weapon in issue here. He went on to testify that he had all the intentions of turning the weapon over to the police department as soon as possible, but, because of the manner in which Officer Clinkscale confronted him concerning the reported robbery, i.e., with his hand on his pistol, appellant “was more or less scared” and did not surrender the weapon prior to the search.

The trier of fact, after hearing all of the evidence, denied appellant’s motion to suppress and adjudged him guilty of the two weapon offenses. These rulings were affirmed by the Court of Common Pleas of Philadelphia County.

On appeal, appellant challenges the denial of his motion to suppress and the legality of the sentence imposed.

In examining appellant’s argument concerning the propriety of the suppression ruling, we utilize the following criteria; viz.:

As was stated in Commonwealth v. Johnson, 467 Pa. 146, 151-52, 354 A.2d 886, 889 (1976):
“In reviewing th[e] ruling [of a suppression court,] our initial task is to determine whether the factual findings are supported by the record. ‘In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted.’ Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975). If, when so viewed, the evidence supports the factual findings we are bound by such findings; we may only reverse if the legal conclusions drawn therefrom are in error.” (Footnote omitted)

Commonwealth v. Hamlin, 302 Pa.Super. 86, 90, 448 A.2d 538, 540 (1982), petition for reargument denied August 17, 1982. Accord Commonwealth v. Walker, 470 Pa. 534, 539, 368 A.2d 1284, 1287 (1977); Commonwealth v. Kichline, 468 Pa. 265, 280, 361 A.2d 282, 290 (1976).

However, before delving into the suppression question, we need to decide if we are dealing with a probable cause to arrest or “stop and frisk” situation. “Although this appears to be primarily a question of semantics it is important in that if the incident is viewed as an arrest and subsequent search the standards used to determine whether the officer's] actions were proper would be the standards governing warrantless arrests while if the incident is viewed as a protective search and arrest the standard used would be those governing stop-and-frisk cases.” Commonwealth v. Cruse, 236 Pa.Super. 85, 87, 344 A.2d 532, 533 (1975). If the former situation predominates, i.e., a warrantless arrest and an accompanying search incident thereto, the probable cause to arrest depends “upon whether, at the moment the arrest was made ... the facts and circumstances within [the arresting officer’s] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). If the latter situation be the case (“stop and frisk”), the officer must observe unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot at the time of the seizure (“stop”), Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968); Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982); Commonwealth v. Williams, 298 Pa.Super. 466, 444 A.2d 1278 (1982); Commonwealth v. Dennis, 289 Pa.Super. 305, 433 A.2d 79 (1981); Commonwealth v. Galadyna, 248 Pa.Super. 226, 375 A.2d 69 (1977); and a subsequent search (“frisk”) withstands constitutional scrutiny:

... only when “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger”: Terry v. Ohio, supra n. 3 at 27, 88 S.Ct. at 1883. In other words, the sole justification for such a search is the protection of the police officer or others nearby. Moreover, the arresting officer must be able “to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968). Good faith on the part of the officer, in itself, is not enough: Terry v. Ohio, supra n. 3.

Commonwealth v. Berrios, 437 Pa. 338, 341, 263 A.2d 342, 343 (1970).

At first blush, it appears that appellant’s suppression claim is premised upon a probable-cause-to-arrest argument. {See Appellant’s Brief at 10) However, in support of such a contention, appellant relies heavily upon the decision of Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1298 (1978), which, curiously enough, is a “stop and frisk” case. Our review of the facts leads us to conclude that we are dealing with a “stop and frisk” rather than a probable-cause-to-arrest situation. Further, we find the decision in Anderson to be distinguishable from the case at bar.

In Anderson, an anonymous call was received by the police that an escapee from a drug rehabilitation program was in a bar at a certain street in Philadelphia. The caller described the person as a Negro male, named “Perry” about 5T0" with a large “bush” hair style and wearing a dark coat. The message was transmitted over the police radio, and, as a result thereof, two officers entered a bar on the street specified and “decided that [appellant] fitted the above description.” The police approached appellant, asked his name, which he gave as “Charles Hayes,” and whether he had any weapons. Before appellant had an opportunity to respond to the last question, an officer touched his right jacket pocket, felt an object which appeared to him to be a gun and retrieved therefrom a loaded, operable .22 caliber revolver. A further search of appellant’s person produced papers indicating he was known as “Perry” and that his correct name was “Gregory Anderson.”

Our Supreme Court, after reviewing the applicable law on “stop and frisk,” decided that the police acted improperly in “stopping” Anderson and suppressed the evidence removed from his person. In discussing its rationale for the ruling, the Court made mention that the information was supplied by an anonymous caller whose reliability was unknown and only a general description was given, one which would fit any number of individuals. Also, we think of at least equal importance is the fact that the Anderson Court “d[id] not believe that the mere fact that an individual was on an unauthorized leave from a drug rehabilitation program would justify a reasonable belief that he was armed and dangerous.” Id., 481 Pa. at 296, 392 A.2d at 1300.

Instantly, albeit the officer was acting on what was in essence an anonymous tip (see note 3, supra), we had, unlike in Anderson, a detailed description of an individual who had just minutes before been linked with the commission of a crime (robbery), perpetrated but one block from the situs of the purported offense. Given these facts, we find the case at bar to be more akin to, as well as controlled by, the holding in Commonwealth v. Prengle, 293 Pa.Super. 64, 437 A.2d 992 (1981).

In Prengle, a 5:50 a.m. radio bulletin advised police that a burglary had been committed at a particular address. The bulletin further advised that an unknown male would be driving a truck “loaded with tires and bearing the logo ‘Center City Tire Company.’ ” Officer Jaudon, hearing the report, proceeded to a location on a “hunch” that the driver would have to pass that way in order to make his escape. Within minutes, Officer Jaudon stopped a truck bearing the aforementioned logo, asked the driver to exit the cab and conducted a “frisk” of the driver’s outer clothing. The driver-appellant was found to be in possession of a screwdriver and “what appeared to be a switch with a key.”

The Court in Prengle, in upholding the “stop” and subsequent “frisk” of the accused, recounted those facts which it looked to in making its decision; namely:

1) a “crime of violence” (burglary) had been reported committed at a location in the vicinity of the “stop.” “In this connection, it is important to note that Officer Jaudon rightfully could assume not only that the perpetrator was a fleeing felon, but also that he had engaged in violent criminal activity.” Id., 293 Pa.Superior Ct. at 69 n. 4, 437 A.2d at 994 n. 4.
2) a truck matching the exact description of the vehicle suspected of having been stolen was stopped within 15 minutes of the radio bulletin announcing the theft.

Additionally, the Court responded to a question proffered by the appellant that is quite germane to the case here; to-wit:

Appellant now contends that because the officer failed to establish at the suppression hearing that he personally observed “unusual conduct” that led him to conclude that appellant was armed and dangerous, his action in stopping appellant for investigatory purposes and patting him down for weapons was illegal. We disagree.
The police officer’s failure to observe personally appellant engaging in “unusual conduct” does not vitiate the reasonableness of the officer’s action in the instant case. The facts known to the officer prior to the frisk in question show that a crime of violence was reported, and, within minutes of the reported crime, the officer saw a moving vehicle matching the exact description of the stolen truck in the vicinity of the crime. Under these circumstances, we will not ignore the probable existence of danger and require that the officer first ask for identification prior to conducting a protective frisk. As Justice Harlan so aptly stated in Terry v. Ohio:
[w]here such a stop is reasonable ... the right to frisk must be immediate and automatic if the reason for the stop is, as here, an articulable suspicion of a crime of violence. Just as a full search incident to a lawful arrest requires no additional justification, a limited frisk incident to a lawful stop must often be rapid and routine. There is no reason why an officer rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet. Terry v. Ohio, 392 U.S. 1, 36, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889, 913 (1968) (Harlan, J., concurring) (emphasis added).
The facts of this case are illustrative of a proper investigatory stop and an incident frisk.

Commonwealth v. Prengle, supra, 293 Pa.Super. at 69, 437 A.2d at 994-995.

As in Prengle, the officer here was informed that a crime of violence had been committed (18 Pa.C.S.A. §§ 3701 and 6102), and, within minutes of the reported crime, the officer saw an individual that matched the exact description (both as to physical features and attire) of the suspect in the vicinity of the crime. Therefore, we are satisfied the description, coupled with appellant’s proximity in time and place to the crime, provided “ 'that conclusive quality which would necessarily draw attention to a particular individual.’ ” (Citation omitted) Commonwealth v. Sabb, 269 Pa. Super. 206, 213, 409 A.2d 437, 441 (1979). Having established the propriety of the “stop,” we have no hesitation in validating the officer’s “frisk” of the accused for, as stated quite aptly by the Court in Commonwealth v. Prengle, supra, “we will not ignore the probable existence of danger and require that the officer first ask for identification prior to conducting a protective frisk.” (Emphasis in original) Id., 293 Pa.Superior Ct. at 69, 437 A.2d at 995.

Because street encounters are so incredibly rich in diversity, each case is to be scrutinized in light of its own facts. Terry v. Ohio, supra. Therefore, we wish to make it clear that the present ruling is not to be interpreted as a carte blanche for police to act with impunity in ferreting out criminals in the course of investigating a crime. Quite the contrary, given the particular facts here, we find that Officer Clinkscale acted properly in “frisking” appellant for his own safety, not to mention the safety of others in the immediate area of the “stop”—two elderly people and a female waiting for a bus.

Lastly, appellant asserts that his convictions for violating both 18 Pa.C.S.A. § 6106 (Carrying a Firearm Without a License) and 18 Pa.C.S.A. § 6108 (Carrying a Firearm on a Public Street in Philadelphia) contravene his rights under the Double Jeopardy Clause of the United States Constitution to be free from being punished twice for the same offense. In particular, appellant avers: “... it is undisputed that [he] was apprehended on a public street within the City of Philadelphia in possession of an unlicensed fire-arm____ [Thus,] as only one wrong [was] committed against the Commonwealth, there should be only one sentence---- As the unlicensed possession occurred in a public place and both sections proscribe the same conduct, there [was] only one violation.” (Appellant’s Brief at 14-15) We disagree.

The test for merger of offenses was stated in Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 104-105, 21 A.2d 920, 921 (1941):

The true test of whether one criminal offense has merged in another is not (as is sometimes stated) whether the two criminal acts are “successive steps in the same transaction” but it is whether one crime necessarily involves another, as, for example, rape involves fornication, and robbery involves both assault and larceny. The “same transaction” test is valid only when “transaction” means a single act. When the “transaction” consists of two or more criminal acts, the fact that the two acts are “successive” does not require the conclusion that they have merged. Two crimes may be successive steps in one crime and therefore merge, as, e.g., larceny is merged in robbery, and assault and battery is merged in murder, or they may be two distinct crimes which do not merge. If a defendant commits a burglary and while in the burglarized dwelling he commits the crimes of rape or kidnapping, his crimes do not merge, for neither of them is necessarily involved in the other. When one of two criminal acts committed successively is not a necessary ingredient of the other, there may be a conviction and sentence for both. (Emphasis in original)

Accord Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) (“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”). Thus, if one crime necessarily involves another the two offenses merge. Commonwealth ex rel. Moszczynski v. Ashe, supra. Moreover, it is well settled that for one crime necessarily to involve another, the essential elements of one must be the essential elements of the other. Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982), petition for alloca-tur denied January 31, 1983. “ ‘That is, if no additional facts are needed to prove the additional offense, it merges into the primary offense for sentencing purposes. Only one sentence may therefore be imposed.’ ” Commonwealth v. Walls, supra, 303 Pa.Super. at 294, 449 A.2d at 695, quoting Commonwealth v. Eberts, 282 Pa.Super. 354, 358, 422 A.2d 1154, 1155-1156 (1980).

In applying the aforesaid principles to the case here, we observe that in order to obtain a conviction for violating Section 6108, the Commonwealth only had to prove that the appellant was carrying a firearm on the public streets of Philadelphia. The Commonwealth did not have the affirmative burden of proving as an element of the offense that the accused did not have a license to carry the firearm. Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979). Whereas, to establish a violation of Section 6106, the Commonwealth had the burden of proving that Whelton was “without a license” to carry the firearm “concealed” on or about his person. In other words, the absence of a license is an essential element of the crime of carrying a firearm without a license. Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). Thus, there is an essential element in Section 6106 (proof of licensure) that need not be proven to obtain a conviction under Section 6108. As a result, the convictions for violating Sections 6106 and 6108 do not merge for sentencing purposes. See Missouri v. Hunter, supra; Blockburger v. United States, supra; cf. Commonwealth v. Harrison, 262 Pa.Super. 236, 396 A.2d 732 (1978) (evidence sufficient to sustain convictions for 18 Pa.C.S.A. §§ 6106 & 6108). ,

Order affirmed.

      . Appellant was also charged with, but found not guilty of, Possession of an Instrument of Crime and Possessing a Prohibitive Offensive Weapon (18 Pa.C.S.A. §§ 907 & 908). Because none of the offenses charged carried a penalty of more than five (5) years incarceration, the Municipal Court of Philadelphia was vested with jurisdiction to hear the charges in the first instance. Pa.R.Crim.P. 6001.

      . The procedure for appeal from the Municipal Court to the Court of Common Pleas by Writ of Certiorari has been abolished in cases involving summary offenses. See Pa.R.Crim.P. 67(g).

      . This necessarily undermines that portion of the Commonwealth's position advanced on appeal that there was sufficient probable cause to justify appellant’s arrest and subsequent seizure of the weapon from his person as an incident thereto.
      To explicate, the identification information upon which Officer Clinkscale relied to detain the appellant was supplied by radio message. For this information to justify the officer's arrest of the appellant prior to the search, the Commonwealth was required to prove that the radio message itself had a proper basis. No less is required by Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971). Accord Commonwealth v. Rutigliano, 310 Pa.Super. 364, 456 A.2d 654 (1983).
      We note that although the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) has abandoned the two-pronged test of Aguilar-Spinelli for a "Totality of Circumstances” test, this turn of events has no impact on our decision today.

        In the instant case, the Commonwealth either at the Municipal Court proceeding or at the Writ of Certiorari hearing in the Court of Common Pleas made no effort to establish the basis for the radio call. Thus, we are confronted with a situation analogous to a radio call based on a tip from an anonymous informer. In this setting, the police’s hearsay information from an anonymous informer will supply the probable cause to justify a warrantless arrest, provided it meets the test in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1964) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). That is, first, the officer must know the underlying circumstances from which the informer concluded that the suspect participated in the crime. Second, the officer must have some reasonable basis for concluding that the source of the tip was reliable. Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973).
      Here, the officer neither knew the underlying circumstances from which the anonymous informer concluded the appellant was the thief nor did the officer have a reasonable basis for concluding that the source of the tip was reliable. Accordingly, the Commonwealth’s probable cause argument is specious since the warrantless arrest could not be based on information from an anonymous informer in accordance with Aguilar-Spineili, and, in turn, the evidence obtained from a subsequent search could not be offered into evidence on that basis. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Cruse, 236 Pa.Super. 85, 344 A.2d 532 (1975).
      Having determined that the necessary probable cause did not exist for a warrantless arrest, see e.g., Commonwealth v. Barensfeld, 278 Pa.Super. 289, 420 A.2d 544 (1980), we must now determine if the officer’s conduct was justifiable under the "stop and frisk” standards. See discussion infra.

      . On the question of the specificity of the identification provided the authorities, see Draper v. United States, 358 U.S. 307, 309 n. 2, 79 S.Ct. 329, 331 n. 2, 3 L.Ed.2d 327 (1959), Commonwealth v. Mears, 283 Pa.Super. 416, 424 A.2d 533 (1981), Commonwealth v. Sabb, 269 Pa.Super. 206, 409 A.2d 437 (1979) (probable cause to arrest context; citing cases) and compare with Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970) and Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969).
      We wish to emphasize that the “stop and frisk” is not justifiable solely on the basis of the specificity of the identification information. Rather, it is to be looked at in conjunction with the offense reported to have been committed, the proximity of the crime to the sighting of the suspect and the time when, as well as the place where, the confrontation occurs.

      . We wish to note, as did the Court in Commonwealth v. Prengle, 293 Pa.Super. 64, 70 n. 5, 437 A.2d 992, 995 n. 5 (1981), that we find Commonwealth v. Pegram, 450 Pa. 590, 301 A.2d 695 (1979) not to control the case sub judice. In Pegram the police received a call that a burglary was in progress at a particular home. No description of the intruder(s) was given. When the police arrived no one was on the premises. However, they noticed the appellant walking down an alley which ran parallel to the street where the burglarized house was situated. The appellant ran from the police when he initially saw them, but later on that same evening he inadvertently ran into them again and, this time, voluntarily approached the police cruiser when they called him. The officers asked the accused his name and "patted him down.” The Pegram Court decided that the officers did not possess sufficient information at the moment the “frisk” occurred to warrant such an intrusion.
      Instantly, unlike in Pegram, we had the transmission of a specific description of the culprit who purportedly committed a crime of violence. The “stop and frisk” was accomplished within a short time and distance of the reported robbery, on a public street in the presence of innocent bystanders. The result we reach, in light of the relevant and different facts recounted instantly, is not at odds with the holding in Pegram. See Commonwealth v. Prengle, supra.

      . Section 6106 provides in relevant part:
      (a) Offense defined.—No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor as provided in this subchapter.

      . Section 6108 provides:

        No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless:
      (1) such person is licensed to carry a firearm; or
      (2) such person is exempt from licensing under section 6106(b) of this title (relating to firearms not to be carried without a license).


author: ROWLEY, Judge:

text:
    465 A.2d 1050
    COMMONWEALTH of Pennsylvania, Appellant, v. Charles PALMER.
    Superior Court of Pennsylvania.
    Submitted April 27, 1982.
    Filed Sept. 16, 1983.

      David Forrest Mowrey, Assistant District Attorney, Ti-tusville, for Commonwealth, appellant.
    John F. Spataro, Meadville, for appellee.
    Before CERCONE, P.J., and ROWLEY and BECK, JJ.
   ROWLEY, Judge:

Appellee was convicted, after a jury trial, of arson, criminal solicitation, theft by deception, and false report to a law enforcement agency. The charges arose out of the burning of appellant’s car.

Appellee subsequently filed a Motion for New Trial, which was granted on June 5, 1981. In addition to ordering a new trial, the court “suppressed” a statement made by appellee to a Pennsylvania State Trooper. The Commonwealth has appealed from that order.

Prior to trial, appellee filed a discovery motion requesting the Commonwealth to disclose any statements he had made. The Commonwealth responded that it had no such statements.

During presentation of the Commonwealth’s case, the District Attorney attempted to introduce into evidence an inculpatory statement made by appellee to the investigating officer. Defense counsel objected on the ground that the Commonwealth had failed to disclose this statement pre-trial as required by Pa.R.Crim.P. 305(B)(1)(b). The objection was sustained.

Later, during cross-examination of appellee, the District Attorney asked if appellee had made any inculpatory statements to the trooper. Appellee responded that he had not. During rebuttal, the District Attorney called the trooper to the stand and again attempted to introduce the inculpatory statement. The court overruled defense counsel’s objection and allowed the statement into evidence.

In granting a new trial, the court determined that it was improper to allow the statement for impeachment purposes after it had been disallowed during the Commonwealth’s case-in-chief.

The decision of the trial court to grant a new trial will not be reversed absent an abuse of discretion or an error of law. Commonwealth v. White, 482 Pa. 197, 393 A.2d 447 (1978). In its memorandum opinion, the trial court acknowledges that the grant of a new trial was not required in this case by Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975), since the statement involved was not obtained in violation of any constitutional right and no allegation has been made that it was not given voluntarily by appellee. Commonwealth v. Bennett, 287 Pa.Super. 485, 430 A.2d 994 (1981). Rather, appellee’s Motion for New Trial was granted as a remedy for the Commonwealth’s violation of Pa.R.Crim.P. 305. See Commonwealth v. Jenkins, 476 Pa. 467, 383 A.2d 195 (1978). When a party has failed to comply with Rule 305, the trial court has broad discretion in choosing an appropriate remedy. See Pa.R. Crim.P. 305(E); Commonwealth v. Parente, 294 Pa.Super. 446, 440 A.2d 549 (1982). We find no abuse of discretion in the trial court’s granting a new trial under the facts of this case.

However, the court went on to impose an additional sanction for violation of the rule, ordering that the statement not be used at appellee’s new trial.

As has already been stated, this case does not involve a violation of constitutional dimension. Therefore, the “exclusionary rule” does not apply. All that is involved here is a violation of the discovery rules. An appropriate sanction for that violation, the grant of a new trial, has been ordered.

The facts of this case do not justify the trial court’s additional sanction that the statement not be used at appel-lee’s retrial. The purpose of Rule 305, to avoid unfair surprise, has been served by granting appellee a new trial. Appellee is now aware of the fact that the statement exists and will be used by the Commonwealth. Therefore, we conclude that the second part of the order is not an appropriate remedy for violation of the rule and constitutes an abuse of discretion.

For these reasons, only that part of the order which grants a new trial will be affirmed. The remainder of the order is reversed.

Order affirmed in part and reversed in part.


author: BECK, Judge: SPAETH, Judge,

text:
    465 A.2d 1052
    In re Petition of Rosborough J. McMILLAN, Jr. for a Private Detective License. Appeal of COMMONWEALTH of Pennsylvania, Appellant. In re Petition of Michael J. MANCHESTER, Renewal of Private Detective License. Appeal of COMMONWEALTH of Pennsylvania, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1983.
    Filed Sept. 16, 1983.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.

      Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Mead S. Spurio, Philadelphia, for McMillan, appellee.
    Joseph M. Smith, Philadelphia, for Manchester, appellee.
    Before SPAETH, JOHNSON and BECK, JJ.
   BECK, Judge:

The Commonwealth appeals from two orders of the court of common pleas, Philadelphia County, which granted private detective licenses to Rosborough J. McMillan, Jr. and Michael J. Manchester. The Commonwealth claims that it was error to grant the private detective licenses because McMillan and Manchester have been convicted of felonies in federal court in this state, and therefore are ineligible for licenses under the Private Detective Act, 22 P.S. §§ 11-30. We agree, and therefore reverse the orders of the lower court.

The Private Detective Act regulates those engaged in various investigative activities of a broad range, including criminal activity, the credibility of witnesses, evidence to be used at judicial proceedings, and other endeavors which require a high level of moral responsibility and absolute reliability. The Act itself confers authority on the court of quarter sessions or the district attorney to assure that applicants are of “good character, competency, and integrity” (22 P.S. § 16[a]).

The purpose of the statute is explained in In re Sentry Security, Inc., 259 Pa.Super. 385, 393 A.2d 880 (1978), aff'd, 490 Pa. 578, 417 A.2d 190 (1980). Quoting Application for Harding, 246 Pa.Super. 180, 369 A.2d 871 (1977) the Sentry Security Court observed tht “[T]he qualifications required by [the Act] were designed to make sure that only people of good character, integrity, and competency could obtain a license” (259 Pa.Super. at 392, 393 A.2d at 884).

Section 16(b) of the Private Detective Act clearly states that “no ... license shall be issued to any person who has been convicted in this State or any other state or territory of a felony____” McMillan and Manchester have been convicted of felonies in federal court in Pennsylvania.

McMillan was convicted in the District Court for the Eastern District of Pennsylvania for a violation of 18 U.S. C.A. § 241. McMillan, then a Philadelphia police detective, and his co-conspirators were guilty of the illegal detention of eight people. Manchester was convicted in the District Court for the Eastern District of Pennsylvania for violations of 18 U.S.C.A. §§ 1961, 1962(c), 1963; 26 U.S.C.A. 7206(1), racketeering, conspiracy, mail fraud and filing false tax returns.

Manchester had received a private detective license in 1957 which expired in 1980. McMillan, dismissed from the Philadelphia Police Department because of his conviction, applied for a private detective license at about the same time that Manchester petitioned for a renewal of his. They claim that their convictions in federal court in Pennsylvania do not prevent their obtaining licenses under the terms of the statute.

We agree with the Commonwealth’s opposition to the granting of the licenses. In Meth v. Commonwealth, State Real Estate Commission, 14 Pa.Commw. 203, 321 A.2d 221 (1974) real estate brokers had their licenses revoked because they had been convicted of a felony in federal court. The Real Estate Brokers License Act required revocation of licenses of brokers convicted of a felony in a court “in this or any other state.” The Commonwealth Court upheld the revocation against a challenge from the brokers that the federal felony conviction was not within the reach of the statute. The Court was guided by decisions in other jurisdictions, which determined that “federal courts are indeed ‘courts of the state.’ ” (14 Pa.Commw. at 207, 321 A.2d at 223).

In the instant case, the Private Detective Act’s prohibition is not restricted to those convicted of state offenses. The Act forbids licenses to persons “convicted in this state____” McMillan and Manchester have been convicted of felonies in courts in this state. The lower court orders are reversed and McMillan’s and Manchester’s applications for private detective licenses are denied.

SPAETH, J., files dissenting opinion.

SPAETH, Judge,

dissenting:

Section 16(b) of the Private Detective Act of 1953, Act of August 21, 1953, P.L. 1273, §§ 1-20, 22 P.S. § 11-30, provides in part: “[N]o .:. license shall be issued to any person who has been convicted in this State or any other state or territory of a felony, ...” 22 P.S. § 16(b). Each appellee has been convicted in a federal court of a felony. The trial court reasoned that one convicted in a federal court has not “been convicted in this State or any other state or territory,” and that therefore Section 16(b) does not bar appellees from being licensed as private detectives. I agree with this reasoning and therefore dissent.

Plain words are to be given their plain meaning. 1 Pa.C.S.A. § 1903(a); Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (1980). Furthermore, here plain meaning is made even plainer by other statutory provisions. As the trial court observed, slip op. at 3, in Section 12(b)(1) of the Private Detective Act the legislature defined one of the functions of a private detective agency as the investigation of “[c]rime or wrongs done or threatened against the government of the United States of America or any state or territory of the United States of America.” The court also compared the language of Section 16(b) (“conviction] in this State or any other state or territory of a felony”) with analogous provisions in other professional licensing statutes. An accountant’s license, for example, may be revoked if the licensee is “found guilty of a felony under the laws of any state or political subdivision of the United States or of the United States.” 63 P.S. § 9.9a(5) (Supp. 1982-1983). And see 63 P.S. § 390-5(a)(2) (pharmacist’s license may be revoked or suspended if licensee has been “found guilty, ... [of] any offense in connection with the practice of pharmacy ... before any court of record of any jurisdiction”). When the legislature has thus manifested its intention to distinguish between A and B, its reference to A— “this State”—will not be construed to include B—“The United States.” See 1 Pa.C.S.A. § 1921; Commonwealth v. Duncan, 279 Pa.Super. 395, 421 A.2d 257 (1980) (letter of a statute will not be disregarded under pretext of pursuing unstated legislative intent); In re Private Detective License of Keibler Detective Agency, 279 Pa.Super. 276, 420 A.2d 1331 (1980) (court may not create additional authority in a statute if the words of the statute are clear and unambiguous); Commonwealth v. Aljia Dumas Private Detective Agency, 246 Pa.Super. 140, 369 A.2d 850 (1977) (court will not create an additional remedy when the legislature has clearly expressed its intent).

I ám not persuaded by the majority’s reliance on Meth v. Commonwealth, State Real Estate Commission, 14 Pa. Commw. 203, 321 A.2d 221 (1974). Meth construed a provision of the Real Estate Brokers License Act, Act of May 1, 1929, P.L. 1216, 63 P.S. § 441(b), repealed by Act of Feb. 19, 1980, P.L., No. 9, to mean that conviction of certain crimes “in a court of competent jurisdiction, in this state or any other state” means conviction in state or federal court. However, the Real Estate Brokers License Act provided:

Where ... the licensee shall have pleaded guilty, or entered a plea of nolo contendere, or has been found guilty in a court of competent jurisdiction, in this or any other state, of forgery, embezzlement, obtaining money under false pretenses, extortion, criminal conspiracy to defraud, bribery, or other offense or offenses, involving ... property belonging to the Commonwealth or any of its political subdivisions or to private persons, businesses or corporations or involving obligations insured by the United States of America or any of its agencies or the Commonwealth of Pennsylvania or any of its agencies and a duly certified or exemplified copy of the record in such proceeding shall be filed with the commission, the commission shall revoke forthwith the license by it theretofore issued to the licensee 'so convicted. 63 P.S. § 441(b) (emphasis added).

“[A] court of competent jurisdiction in this or any other state” to hear cases involving alleged “forgery... [etc.] ... involving obligations insured by the United States of America ...” is a federal court. There is no comparable reference to federal authority in the Private Detective Act. Nor did the Real Estate Brokers License Act contain any section comparable to Section 12(b)(1) of the Private Detective Act. I therefore find Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853 (1878), also cited by the majority, at 62 n. 3, inapposite, for in Section 12(b)(1) the legislature has indicated a contrary intent.

The Commonwealth says that a “construction [of the Private Detective Act that] permits a person convicted of a federal felony to investigate another person allegedly committing federal crimes, .... is absurd and ... subjects the public to the possibility of shocking abuses____” Brief for Commonwealth at 12. It is not for us, nor for the Commonwealth, to say that a statute that can reasonably be read only one way is “absurd.” If the Commonwealth can prove “the possibility of shocking abuses,” if appellees are licensed as private detectives, it may do so. The Private Detective Act provides that

[t]he district attorneys of the various counties shall have the power to enforce the provisions of this act, and upon complaint of any person, or on his own initiative, to investigate any violation thereof, or to investigate the business, business practices and business methods of any person, ... applying for or holding a license as a private detective ... if, in the opinion of the district attorney, such investigation is warranted____ 22 P.S. § 15(a).

Moreover, the Act authorizes district attorneys to subpoena witnesses

[f]or the purpose of enforcing the provisions of this act and in making investigations relating to any violation thereof, and for the purpose of investigating the character, competency and integrity of the applicants or licensees hereunder, and for the purpose of investigating the business, business practices and business methods of any applicant or licensee, ...

22 P.S. § 15(b).

Finally, as the majority acknowledges, under Section 16(a) of the Act, the trial court may issue a certificate of license only after “the application shall have been examined, and such further inquiry and investigation made as the court of quarter sessions or the district attorney shall deem proper, and when the court of quarter sessions shall be satisfied of the good character, competency and integrity of such applicant....” 22 P.S. § 16(a).

Here the Commonwealth made no attempt to challenge either the “business practices and business methods” or the “character, competency and integrity” of appellees. Instead the Commonwealth relied on its interpretation of Section 16(b) of The Private Detective Act.

I should affirm the orders of the trial court, without prejudice, however, to the right of the Commonwealth to petition the court to revoke the license of either appellee on the ground of improper business practices or lack of good character, competency, or integrity.

      . Act of August 21, 1953, P.L. 1273, §§ 1-20.

      . Act of May 1, 1929, P.O. 1216, as amended 63 P.S. § 440(b).

      . Commonwealth v. Nelson, 435 S.W.2d 449 (Ky., 1968) and Alliance Trust Co. v. Hall, 11 F.Supp. 668 (S.D.Idaho, 1935). See also Ex Parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853 (1878) (federal court is a "court of this Commonwealth” because state legislature did not indicate contrary intent).

      . The Real Estate Brokers License Act was replaced by the Real Estate Licensing and Registration Act, Act of February 19, 1980, P.L. 15, No. 9, 63 P.S. § 455.101 et seq. The Real Estate Licensing and Registration Act does not contain a provision like Section 441(b) of the Real Estate Brokers License Act.

      . With respect to appellee McMillan, the assistant district attorney stated: "Mr. McMillan is qualified under all the terms of the Act except for the prohibition that may be caused by the Federal conviction.” N.T. 9/15/80, 4-5. No similar remark was made as to appel-lee Manchester.


author: MONTEMURO, Judge:

text:
    465 A.2d 1056
    COMMONWEALTH of Pennsylvania, Appellant, v. Steve K. NELSON.
    Superior Court of Pennsylvania.
    Argued Feb. 15, 1983.
    Filed Sept. 16, 1983.

      Joseph John Hylan, Assistant District Attorney, Norris-town, for Commonwealth, appellant.
    Marc Robert Steinberg, Souderton, for appellee.
    Before CERCONE, President Judge, and JOHNSON and MONTEMURO, JJ.
   MONTEMURO, Judge:

The Commonwealth takes this appeal from an order of the Court of Common Pleas, Montgomery County, granting the appellee’s motion to withdraw his guilty plea subsequent to the imposition of sentence. The Commonwealth contends that the trial court abused its discretion in doing so, in that the record is devoid of circumstances which would substantiate a finding of manifest injustice. We agree, and reverse.

On May 2, 1981, the appellee, Steve K. Nelson, was arrested and charged with criminal attempt, simple assault, recklessly endangering another person, indecent assault, indecent exposure, burglary, unlawful restraint and criminal trespass. These charges were filed against the appellee as a result of accusations made by a woman who identified the appellee as the man who had broken into her apartment and who had confronted and assaulted her. That same day, the appellee contacted an attorney, through a friend, and hired him to handle his defense.

On June 2, 1981, a preliminary hearing was held, where most of the crimes originally charged were dismissed.

On August 31, 1981, appellee pled guilty to criminal trespass before the Honorable Vincent A. Cirillo. He filled out a written form titled “Guilty Plea” containing five (5) pages of thirty-four (34) questions. He initialed each page, except page four (4), and along with his attorney, he signed it. In addition to the written form, the trial court conducted a colloquy basically to inquire whether the appellee understood the charges, the elements, whether he had sufficient time to answer the questions and whether he understood those questions. The appellee stated that he understood.

On September 10, 1981, the appellee filed a motion to withdraw his guilty plea, represented by different counsel. A hearing on this motion was held on December 11, 1981, with the Honorable Vincent A. Cirillo again presiding. On December 14, 1981, the trial court entered its order permitting the appellee to withdraw his guilty plea. This appeal followed.

Appellee argues that his plea was involuntary because he never once failed to assert his innocence to his attorney, that his counsel was unprepared to go to trial because of his failure to interview witnesses in order to pursue appellee’s purported alibi, and that counsel misled him, up until the day he pled guilty, into believing that his case would be tried. Appellee says that his attorney scared him into pleading guilty. Appellee also attacks the constitutional validity of the written guilty plea form which he initialed and signed, and which he contends is insufficient without a full scale verbal colloquy conducted by the court pursuant to Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). In appellee’s view, the verbal exchange is the only means by which a court can discern whether or not a plea is knowing and voluntary, and that, in any event, in this case, he did not complete the written form. He left one question unanswered.

It is well settled in Pennsylvania that to properly withdraw a guilty plea after sentence, a petitioner must prove to the trial court that withdrawal is necessary to correct a manifest injustice. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973). Examples of manifest injustice contained in The Standards Relating to Pleas of Guilty (2d ed. 1980), Standard 14-2.1(b)(ii)(A) and (C) have been approved in this Commonwealth. Commonwealth v. Shaffer, 498 Pa. 342, 346 n. 2, 446 A.2d 591, 593 n. 2 (1982). These standards require withdrawal of a guilty plea “to correct a manifest injustice” where the defendant has been subjected to ineffective assistance of counsel and where the plea is involuntary or that it was entered without knowledge of the charge which, sub judice, appellee argues serves as a basis for the withdrawal of his guilty plea. Our task is to review the record to determine whether or not there are sufficient facts to support these justifications.

First, with recent case law in mind, we have no difficulty in concluding that the extensive written guilty plea form and the supplemental oral colloquy were more than adequate to confirm the trial court’s belief that the appellee’s plea of guilty was voluntary. See, Commonwealth v. Martinez, 499 Pa. 417, 453 A.2d 940 (1982); Commonwealth v. Shaffer, supra. Accord, Commonwealth v. Smith, 498 Pa. 661, 450 A.2d 973 (1982). During the colloquy, the court inquired into the following area:

THE COURT: How far did you go in school?
MR. NELSON: Twelfth grade, sir.
THE COURT: What school did you go to?
MR. NELSON: North Penn High School.
THE COURT: Do you read and write the English language?
MR. NELSON: Yes, sir.
THE COURT: Do you understand me as I’m speaking with you here today?
MR. NELSON: Yes, sir.
THE COURT: Do you understand Senator Rovner as he speaks with you?
MR. NELSON: Yes, sir.
THE COURT: Did you have enough time to go over the colloquy with him?
MR. NELSON: Yes.
THE COURT: Is that your initials at the bottom of the page?
MR. NELSON: Yes, sir.
THE COURT: Did you understand all the questions that were asked there?
MR. NELSON: Yes, sir.
THE COURT: Do you have any questions to ask me, your lawyer, or the district attorney at this time?
MR. NELSON: No, sir.
THE COURT: Do you understand what you’re pleading guilty to, criminal trespass?
MR. NELSON: Yes, sir.
THE COURT: What is the—
MRS. KILLINGER: I’ll read the criminal trespass section to the defendant, Your Honor.
Criminal trespass is found in Section 3503 of the Crimes Code, it’s important that you understand the nature of that crime.
A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof; or breaks into any building or occupied structure or separately secured or occupied portion thereof.
It’s the Commonwealth’s position in this case that on May 2nd you broke into Carin O’Neill’s apartment.
THE COURT: Do you understand that?
MR. NELSON: Yes, sir.
THE COURT: You did so without her permission?
MR. NELSON: Yes, sir.
THE COURT: All right. I find this defendant has intelligently and voluntarily entered his plea of guilty. D-l is admitted in the record.
What’s that, a misdemeanor of the—
MRS. KILLINGER: No, Your Honor, it’s a felony two, Your Honor.
THE COURT: You could be sentenced up to ten years in prison for this.
Do you understand that?
MR. NELSON: Yes.
MRS. KILLINGER: Should I read the facts into the record, Your Honor?
THE COURT: I think you already gave them, didn’t you?
MRS. KILLINGER: I want to make sure that we have the—I would like to get time.
THE COURT: All right, go ahead.
MRS. KILLINGER: At 3:30 a.m. on May 2nd, 1981, and that’s the Woods Apartment which is at 2115 Lincoln Drive in Upper Dublin Township, which is in Montgomery County. And it was owned by a Carin—rented by a Carin O’Neill who did not give Mr. Nelson permission to be there then or at any time.

(N.T. 3-6)

Thus, the written form and the oral colloquy inquired into the following areas: the age and educational background of the appellee; his mental health; his right to a jury trial; the right to a unanimous verdict; that he could participate in the selection of jurors chosen from the community; the presumption of innocence and the Commonwealth’s burden to prove his guilt beyond a reasonable doubt; the factual basis for the plea; the nature of the charges; the terms of the plea bargain agreement; that the court was not bound by those terms; permissible range of sentences; the motions waived by pleading guilty and grounds for appeal. Since we must consider the totality of the circumstances, Martinez, supra; Shaffer, supra, it is clear that the information elicited by the form and the colloquy was over and above the requirements set forth in the Comment to Pa.R. Crim.P. 319 and Commonwealth v. Ingram, supra.

Second, the question concerning the ineffectiveness of counsel must be analyzed in a two step process. Our first inquiry is whether the underlying claim is of arguable merit, and, if so, whether there was some reasonable basis for counsel’s action designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

The testimony presented at the hearing on the appellee’s motion was conflicting. The appellee testified that he never once intended to plead guilty. However, when he found out on August 31, 1981, that his attorney wanted him to plead guilty, he was “shocked” and “scared” into doing so. He felt he had no other choice since his witnesses were not at the courthouse and his attorney was obviously unprepared. He further testified that he was told by his attorney to fill in the written guilty plea form, and that the questions he did not answer, the attorney dictated to him the appropriate response. During the colloquy, the appellee testified that he still did not want to plead guilty but felt pressured into giving the right answers.

The attorney disagreed. He testified that the appellee was fully aware that he was going to plead guilty on August 31, 1981, and that he did so voluntarily. The attorney also felt that the recommended three (3) years probation under the plea agreement was excellent considering the circumstances of this particular case; especially the victim’s solid identification of the appellee.

Since the appellee’s testimony was found incredible by the trial judge, the appellee has failed to establish that his counsel was ineffective. In any event, there is nothing in the appellee’s testimony to indicate that counsel did not conduct an investigation of his witnesses or that he did not determine the validity of appellee’s alibi. The attorney said that he did those things and found that a defense based on those witnesses would not be effective. More importantly, the attorney testified that the victim was an excellent witness who unequivocally identified the appellee as the perpretrator of the crime. This statement was not challenged by the appellee, and, as a matter of fact, the appellee’s counsel at the hearing on his motion to withdraw, admitted that the victim “was a good witness.” In light of these factors, and after due consideration of the entire record, we hold that counsel was not ineffective.

We hold that the trial court abused its discretion in granting the appellee’s petition to withdraw his guilty plea.

Order reversed.

      . 18 Pa.C.S.A. § 901.

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 3126.

      . 18 Pa.C.S.A. § 3127.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 2902.

      . 18 Pa.C.S.A. § 3503.

      . The Honorable Vincent A. Cirillo granted the order but was unavailable to write an opinion setting forth his reasons for allowing the appellee to withdraw his guilty plea. The Honorable Richard Lowe, P.J., undertook that assignment but refused to analyze or question the trial judge’s use of discretion in this instance. Thus, we are left without the benefit of a statement of reasons by the trial court in support of the order.

      . The appellee did not answer question 15 which read: Do you admit to committing the crimes to which you are pleading guilty and to the legal elements explained to you making up those crimes? This omission, however, was fully considered by the court during the colloquy where the appellee admitted that he did commit the crimes after being informed as to the legal elements involved. See p. 1059 infra.

      . Standard 14—2.l(b)(ii) provides:
      (ii) Withdrawal is necessary to correct a manifest injustice whenever the defendant proves, for example, that:
      (A) the defendant was denied the effective assistance of counsel guaranteed by constitution, statute, or rule;
      (B) the plea was not entered or ratified by the defendant or a person authorized to so act in the defendant’s behalf;

        (C) the plea was involuntary, or was entered without knowledge of the charge or knowledge that the sentence actually imposed could be imposed;
      (D) the defendant did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement; or
      (E) the defendant did not receive the charge or sentence concessions contemplated by the plea agreement, which was either tentatively or fully concurred in by the court, and the defendant did not affirm the plea after being advised that the court no longer concurred and after being called upon to either affirm or withdraw the plea; or
      (F) the guilty plea was entered upon the express condition, approved by the judge, that the plea could be withdrawn if the charge or sentence concessions were subsequently rejected by the court.
      American Bar Association Standards for Criminal Justice, Pleas of Guilty (2d ed. 1980) (Emphasis supplied).

      . THE COURT: But you are asking me to believe your client and disbelieve Mr. Rovner, is that correct?
      MR. STEINBERG: Well, if it please the Court, I am asking you to listen to what testimony you have and make a determination.
      THE COURT: Mr. Rovner is not a criminal. He is a member of the bar. He is more credible than your client. Your client either lied to me then or he is lying to me now and regardless of what the reason was he lied then, suppose Mr. Rovner asked him to lie to me, he is a liar then or a liar now.
      MR. STEINBERG: I wouldn’t even suggest that Mr. Rovner asked him to lie. I would not accept that as an answer.
      THE COURT: Well, your client didn’t tell me the truth then when I asked him these questions for whatever reason. So when you ask me to test credibility I say this guy has already lied to me once. I have never had Senator Rovner lie to me.
      (N.T. 100.)


author: MONTGOMERY, Judge:

text:
    465 A.2d 1060
    GEORGE I. REITZ & SONS, INC., v. DONISE ENTERPRISE, INC. T/D/B/A Engineered Industrial Services, a Pennsylvania Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued March 29, 1983.
    Filed Sept. 16, 1983.

      John R. Fernán, Ridgway, for appellant.
    William H. Schorling, Pittsburgh, for appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeal by the Defendant-Appellant Donise Enterprise, Inc., t/t/b/a Engineered Industrial Services (hereinafter referred to as “Donise”) arises following the lower court’s denial of a motion for new trial. The case had been tried before a jury, which returned a verdict for the Plaintiff-Appellee, George I. Reitz & Sons, Inc. (hereinafter referred to as “Reitz”), awarding damages on a breach of contract claim.

The evidence, as adduced in the lower court, shows that in July, 1979, the parties entered into a contract calling for Reitz to manufacture a large stainless steel part of a paper making machine, known as a transition piece. The agreed consideration for the work was to be $11,419.00, and it was to be picked up by Donise at the Plaintiffs plant. On December 19, 1979, Donise picked up the transition piece at Reitz’s plant, by truck, and conveyed it to a customer of a paper mill in Johnsonburg, Pennsylvania. On the same date, Reitz issued an invoice to Donise for $11,419.00, which was to be paid within 30 days.

In January, 1980, a Donise employee contacted officers of Reitz, to request a meeting at the paper mill to discuss some welds and discolored spots on the transition piece that allegedly had not been ground smooth and polished sufficiently to the standards necessary for the use of the transition piece in the paper making process. At the subsequent meeting, the representatives of Reitz and Donise agreed that because the transition piece was a large and cumbersome piece of equipment, Donise would grind and polish the welds and discolored spots at the plant site, and that the cost of this work would be charged back against Reitz.

During the period from January through April, 1980, Reitz demanded payment for the transition piece, but no payment was forthcoming from Donise. Unknown to Reitz, Donise had been paid for the transition piece in early February, 1980 by the paper mill owner. In April, 1980, Donise requested that Reitz pick up the transition piece because plans had been altered and the transition piece required changes. Reitz picked up the transition piece at the paper mill and thereafter advised Donise that the additional work to meet the new specifications would result in additional charges of $8,115.00. Reitz again requested that it receive either full or partial payment from Donise on the $11,419.00 charge for the original fabrication of the transition piece. Donise refused to pay anything until after Reitz had performed the alterations necessitated by the changed plans. Reitz then informed Donise that no further work would be done on the transition piece until it had been paid for its original work. Donise refused to pay Reitz and purchased a substitute transition piece elsewhere which it delivered to its customer at the paper mill.

After considering the evidence, the jury returned a verdict against Donise for the contract price, $11,419.00. On the motion of Reitz, the lower court molded the verdict to include prejudgment interest of $1,610.08, resulting in a final verdict in the amount of $13,029.08. Donise raises three separate arguments on this appeal in support of its contention that the lower court erred in denying its motion for new trial.

First, Donise maintains that the lower court erred in allowing Reitz to introduce evidence of an alleged agreement between the parties regarding efforts by Reitz to cure the allegedly defective condition of the welds and discoloration on the transition piece. The Appellant contended that this evidence should not have been admitted because there was no consideration for such an agreement.

We find no substance to this claim as there was evidence that Reitz promised to pay Donise for its work in grinding and polishing the welds. A promise to pay has long been held to be valid consideration in our Commonwealth. See In re Estate of Ratony, 443 Pa. 454, 277 A.2d 791 (1971), and cases and other authorities cited therein. Thus, the Appellant’s contention that there was no consideration for the agreement is incorrect. Moreover, we note that the lower court found that the agreement in question was admissible into evidence as proof on behalf of Reitz that Donise had “accepted” the transition piece, pursuant to the Commercial Code, 13 Pa.C.S.A. § 2606. Such evidence showed that Donise agreed to keep the transition piece and grind and polish the non-conforming parts and charged the cost of same back against Reitz. Therefore, the evidence as to the agreement was clearly relevant to prove that Donise did not act to “reject” the transition piece, but instead “accepted” it despite the non-conforming welds. It is evident that there is no merit to the Appellants’ initial claim of error.

Second, Donise maintains that the jury verdict was improper because it did not give the Appelant credit, in the amount of $500.00, which was the cost of remedying the nonconforming welds. Donise claims that the verdict was, in that particular, in direct contravention of the lower court’s instructions. It is clear that the grant of a new trial is proper only when the jury’s verdict is so contrary to the weight of the evidence as to shock one’s sense of justice and make a new trial imperative in order that right may be given another opportunity to prevail. See Yandrich v. Radic, 291 Pa.Super. 75, 435 A.2d 226 (1981). Further, the decision as to whether a new trial should be granted because of any impropriety in the verdict is held to be within the competence of the trial court, and we will not disturb the lower court’s decision in the absence of indications of a clear abuse of its considerable discretion in such circumstances. See Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982).

In the instant case, the jury obviously concluded that Donise accepted the transition piece and did not reject it after learning of the non-conforming welds. See the Commercial Code, 13 Pa.C.S.A. § 2607, which provides that a buyer must pay at the contract rate for any goods “accepted”. In this case, the jury awarded the full contract price for the transition piece. It is clear that under 13 Pa.C.S.A. § 2714, Donise had the burden of proving any set-off to which it might have been entitled because of the weld defects. Testimony was offered by witnesses for Reitz which indicated that the cost of grinding and polishing the two welds and other problems was approximately $500.00. The evidence showed that Donise never did polish and grind the two welds in question. Instead, it purchased a substitute transition piece elsewhere for its customer. Therefore, it does not appear that the jury abused its discretion in denying Donise a set-off for the cost of repairs which the evidence indicated it did not perform. In these circumstances, we find no abuse of discretion in the lower court’s denial of the Appellant’s challenges to the verdict.

Finally, Donise contends that the lower court erred by not charging the jury that the time for acceptance or rejection of non-conforming goods can be delayed when the buyer and seller are attempting to resolve disputes. Several reasons are apparent for rejecting this claim of error. First, the record shows that the Appellant did not submit this point in writing prior to the charge, an apparent violation of Rule 226 of the Pennsylvania Rules of Civil Procedure. Thus, we could find a waiver because the Appellant merely requested this additional charge orally at the conclusion of the lower court’s instructions to the jury. However, even if we would not find a waiver in such circumstances, it is clear that the lower court did not abuse its discretion in refusing to give the instruction requested by Appellant, because the point did not apply to the evidence presented in the case. The record shows that Donise indicated it would remedy the non-conformity and held the transition piece in silence for three months while assuring Reitz, the seller, that its payment was forthcoming. Thus, the lower court would have had no basis to charge the jury that the time for acceptance or rejection of non-conforming goods can be delayed when the buyer or seller are attempting to resolve disputes. Such a charge, even if correct in other circumstances, was inapplicable to the facts of record adduced in the instant case. Accordingly, we reject the Appellant’s final claim of error.

The order of the lower court is hereby affirmed.

      . Donise also moved for judgment n.o.v. Local Rule L304.1 of the Jefferson County Court provides that the moving party in all post-trial and post-hearing motions or petitions shall include a request for a transcript of the testimony of trial, if argument is to be offered based upon the testimony. The Appellant did not comply with that Rule and the lower court held that this foreclosed its consideration of the motion for judgment n.o.v. That ruling is not challenged on the instant appeal. The lower court, despite Appellant’s failure to observe the Local Rule, considered the merits of Appellant’s motion for new trial. On the instant appeal, the Appellee contends that the Appellant's failure to have the record transcribed should result in a finding that the Appellant has waived all of its arguments on this appeal, including those relating to' the lower court’s denial of its motion for new trial. Our appellate courts give great weight to a lower court’s interpretation of its own rules. See Dunham v. Temple University, 288 Pa.Super. 522, 432 A.2d 993 (1981); Gordon v. Board of Directors of West Side Area Vocational Technical School, 21 Pa.Cmwlth. 616, 347 A.2d 347 (1975). Because the lower court did not find a waiver of the Appellant’s arguments relating to its motion for new trial, despite the apparent violation of the Local Rule, we will not hold that the Appellant has waived its arguments on this appeal, relating to the new trial motion, solely on the basis of the Appellant's failure to have the trial transcript prepared in time for its consideration by the lower court at the time of post-trial motions.

      . The evidence showed the welds in question had been ground to a smooth and polished finish, as provided in the agreement between the parties. However, they required a higher degree of grinding and polishing for the particular paper process for which the transition piece was intended. The additional finishing required was not explained to the Appellee before the completion of the manufacturing and the delivery of the transition piece to the mill, but we are assuming there was a "defect” for purposes of our consideration of this appeal.


author: HESTER, Judge:

text:
    465 A.2d 1064
    Charles SKOLNICK and Sarah Skolnick, His Wife, Appellants, v. FORD MOTOR CREDIT COMPANY.
    Superior Court of Pennsylvania.
    Argued March 23, 1983.
    Filed Sept. 16, 1983.
    Petition for Allowance of Appeal Granted Jan. 19, 1984.

      Joel Weisberg, Harrisburg, for appellants.
    William H. Lowery, Philadelphia, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

On July 10, 1978, John Kennedy Ford, a motor vehicle sales corporation, contracted in writing to sell a used 1974 Chevrolet Caprice to appellants, Charles Skolnick and Sarah Skolnick, husband and wife. The cash price of the vehicle was $2,515.00; appellants made a down payment of $600.00, leaving an unpaid cash price balance of $1,915.00. Use and sales tax of $150.90, along with registration fees of $43.10, were added to the unpaid cash price balance, culminating in a principal amount financed of $2,109.00. A finance charge of $629.70 was added to the principal amount financed and a time balance of $2,738.00 was reached. A deferred payment price of $3,338.70 was derived from adding the down payment to the time balance. Twenty-nine monthly installments of $91.29 and one installment of $91.29, commencing on August 24, 1978, were set forth in the agreement. Following execution of the agreement and prior to commencement of the lower court action, John Kennedy Ford assigned the contract to appellee, Ford Motor Credit Company-

On January 30, 1980, appellants filed a Complaint in Assumpsit in the Court of Common Pleas of Philadelphia County against appellee for alleged violations of the Motor Vehicle Sales Finance Act, hereinafter “MVSFA”, and the Pennsylvania Maximum Interest Rates Law, hereinafter “Interest Law”. According to appellants, the alleged violations were predicated upon appellee’s use of an annual finance charge rate of 21.35%, computed on a simple interest basis. The MVSFA authorized a maximum finance charge rate of 12% on the installment sale of the class of motor vehicles to which the 1974 Chevrolet Caprice belonged.

Appellants filed the assumpsit complaint as a class action under Pa.R.C.P. No. 1701 on behalf of several thousand individuals and entities purchasing used motor vehicles from appellee beginning with July 10, 1978, and thereafter. Appellants sought for themselves and other class members a permanent injunction enjoining appellee from continuing its practice of charging unlawful interest rates to purchasers of used motor vehicles under installment-sale contracts and damages of triple the amount of interest in excess of the maximum amount permitted under the MVSFA. Damages were pursued according to the calculation provided for in the Interest Law. 41 P.S. § 502. Appellants also included within their prayer a demand for reasonable costs, expenses and attorney fees pursuant to § 503 of the Interest Law.

Appellee filed a petition for the removal of the proceedings to the United States District Court for the Eastern District of Pennsylvania; however, in response to appellants’ motion to remand, the District Court remanded the case to the Court of Common Pleas of Philadelphia County. Thereafter, appellee filed a motion for summary judgment; it was granted and judgment was entered for appellee. Appellants filed this timely appeal from the Order, dated October 29, 1981, granting appellee’s motion for summary judgment.

Pursuant to the filing of appellee’s motion for summary judgment, the parties stipulated as to the facts, including the terms of the installment contract discussed above. Additionally, it was stipulated that the MVSFA, applicable to the retail installment sale herein, became effective June 28, 1947, and its administration and enforcement has been entrusted since that time to the Pennsylvania Department of Banking; that the 1974 Chevrolet Caprice was a Class III vehicle as defined in § 619(A) of the MVSFA; therefore, an annual maximum finance charge rate of 12% for an installment sale of such a vehicle was applicable; that the Department of Banking has continuously computed the maximum finance charge permitted under § 619 according to an “add-on” interest rate; that this Department of Banking policy has been made known to all sellers and sales finance companies licensed under the MVSFA; that the “add-on” method is applied by multiplying the principal amount financed (here $2,109.00) by the maximum interest rate permissible under § 619(A) (12%), and the product is in turn multiplied by the contractual payment period (here 2.5 years); that the actual finance charge rate applied by the parties, computed on an “add-on” basis, was 11.94%; that the simple interest rate, also known under the Federal Truth and Lending Act as the “annual percentage rate”, had it been applied by appellee, was 21.35%.

The parties, therefore, agree on all pertinent facts; their dispute concerns the proper application of the law. Appel-lee’s foremost argument is that usury laws do not apply to finance charge rates due to the fact that such rates cannot be construed as interest. Alternatively, appellee maintains that, providing interest laws are applicable, interest computed on the “add-on” basis was properly applied here. Conversely, appellants aver that finance charge rates are indeed subject to usury laws and that simple interest, not “add-on” interest, is applicable to installment sales under the MYSFA.

Prior to addressing the issues, we deem it advisable to discuss and distinguish the interest methods espoused by the respective parties.

Interest is chargeable, not in excess of 12% per annum, on the loan of money for the sale of a Class III vehicle. 69 P.S. § 619(A). Section 619(A) does not specify whether such interest is applied through the simple interest method, “add-on” method or some other method. Assuming simple interest is applicable, interest earnings are reduced proportionately as the principal amount borrowed decreases during the term. A simple interest rate of 21.35% would be necessary to reach the finance charge of $629.70 on the two and one-half year loan of $2,109.00 here. Clearly, usury laws would be violated.

Instead, however, the “add-on” method was utilized by appellee’s assignor. Contrary to the application of simple interest, interest is charged under this method on the original amount financed during the entire financing term, irrespective of the fact that the principal sum is gradually-reduced. Consequently, as previously stipulated, the principal amount financed is first multiplied by the maximum lawful interest rate permissible (here 12%) under the applicable statutory section. That product is in turn multiplied by the term of years during which the unpaid balance is financed (here 2.5 years). The finance charge of $629.70 was derived here through the application of an “add-on” interest rate of 11.94%, certainly not in excess of the 12% statutory maximum.

Whether the simple interest or “add-on” interest rate is applicable to installment sales under the MVSFA is not a novel issue for this court. It was addressed in Dear v. Holly Jon Equipment Company, 283 Pa.Super. 74, 423 A.2d 721 (1980). There, Robert and Ruth Dear purchased a tri-axle dump truck. The finance charge assessed against the unpaid portion of the purchase price of $32,822.00 was the product of applying the “add-on” interest method. The dump truck was a Class IV vehicle as set forth in § 619(A), rendering 772% per year the maximum lawful interest rate.

In response to the Dears’ contention that the amount of interest charged was in excess of 772%, the Dear court began with a reference to those statutory clauses defining “Class IV vehicles”, “finance charge” and “principal amount financed.” Its perusal of the language in those clauses convinced the Dear court that simple interest rates were not applicable; and that had the legislature intended simple interest rates to apply to the financing of vehicles under § 619(A), it could have easily provided for it. Further evidence that simple interest was not intended, according to the Dear court, was reflected in § 622’s reference to a rebate of the “unearned interest charge”. Simple interest does not accumulate in advance, rather it is paid only as it accrues on the principal balance remaining. Therefore, no simple interest is available to be refunded in the event of pre-payment. The refund of the “unearned interest charge” is comprehensible only in view of a finance charge calculated on the “add-on” basis where interest is applied to the initial unpaid balance for the entire financing term. Similarly, the parties in Dear stipulated that the interest rate on an “add-on” basis was TVa%; consequently, it was not in excess of the statutory limit, while simple interest was applicable at an excessive rate of 13V2%.

Next, in further rejection of the Dears’ position, the Dear court noted the Department of Banking’s thirty-year policy of computing finance charges on an “add-on” basis and concluded that, had the legislature intended a computation according to simple interest rates, it would have reversed the Department’s policy prior to the Dear proceedings. Finally, the Dear court concluded that the Usury Act, with its maximum interest rates, has been deemed by Pennsylvania courts to be inapplicable to a “bona fide sale of goods on credit.”

Both parties here agree that the Dear decision directly addresses their dispute. Appellants would have us reverse Dear and prohibit the use of “add-on” interest to compute finance charges under the MVSFA. We are disinclined to do so.

We subscribe to the analysis employed by the Dear court. Moreover, we expand its interpretation of the appropriate statutory provisions. This dispute arises from the absence of a definitive provision within the MVSFA setting forth the proper method of calculating interest. “Finance charge” is defined in § 603(14), and “finance charge rates” are set forth in § 619(A), according to three classes of vehicles. These provisions are ambiguous insofar as they fail to identify the interest rate as one based upon simple interest or “add-on” interest methods.

The Rules of Construction of the Pennsylvania Consolidated Statutes provide in 1 Pa.C.S.A. § 1921(c) accordingly:

When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(8) Legislative and administrative interpretations of such statute.

This maxim of statutory construction was utilized where the judiciary submitted to the longstanding interpretation applied by the Department of Public Welfare to the federal food stamp program in Pennsylvania, Spicer v. Commonwealth, Dept. of Public Welfare, 58 Pa.Cmwlth. 558, 428 A.2d 1008 (1981); to the Public Utility Commission’s interpretation of the certificate exemption provision of the Public Utility Code, Chappell v. Pennsylvania, 57 Pa.Cmwlth. 17, 425 A.2d 873 (1981); and, the Department of Health’s belief that it possessed regulatory authority under the Public Welfare Code, Hospital Ass’n of Pennsylvania v. MacLeod, 487 Pa. 516, 410 A.2d 731 (1980). These decisions demonstrate the judiciary’s reluctance to disrupt administrative practice derived from a sound interpretation of statutory provisions. We follow this precedent of acknowledging legislative and administrative interpretation due to the equivocal language within the MVSFA and appellant’s inability to convince us that the Department of Banking’s thirty-year practice of calculating the finance charge according to the “add-on” method is unreasonable.

It must also be noted that § 619 of the MVSFA had been amended on five occasions between its enactment in 1947 and 1980, yet a particular interest rate calculation has never been specified. We view this as a further indication that the Department of Banking’s interpretation was approved sub silentio.

In 1982, by Act of June 18, 1982, P.L. 553, No. 160, § 1, 69 P.S. § 619, the maximum interest rate chargeable on the principal amount financed was increased for the installment sale of each of the four classes of motor vehicles and the designation “simple interest” was added for the first time. The interest ceiling for Class III vehicles rose from 12%, the rate in effect at the time of the execution of the installment sales agreement by appellants and John Kennedy Ford, to 21% under the 1982 amendment. This significant increase in the percentage rate indicates the transformation from interest previously applied on an “add-on” basis to interest applied on a simple interest basis. Simple interest rates are generally double the percentage of “add-on” rates where both methods compute the same finance charge; consequently, the significantly higher percentage provided in the 1982 amendment was properly attributed to simple interest. We consider this last amendment as further evidence of the approved use of “add-on” interest prior to 1982.

Having determined that the finance charge rate was properly calculated by appellee’s assignor on an “add-on” basis, we need not address appellee’s argument concerning applicable penalty provisions.

Order affirmed.

      . Act of June 28, 1947, P.L. 1110, § 1 et seq., 69 P.S. § 601 et seq. (as amended).

      . Act of January 30, 1974, P.L. 13; 41 P.S. § 101 et seq. (as amended).

      . 69 P.S. § 619(A).

      . By Act of June 18, 1982, P.L. 553, § 1; 69 P.S. 619(A), 21% simple interest per year on the unpaid balance of the purchase price of Class III vehicles was substituted for 12% per year.

      . It seems that whether the Usury Act is applicable is not determinative. The Act provides that interest rates cannot exceed the maximum lawful rate "provided by the Act or otherwise by law" (Emphasis added). The phrase "otherwise by law” authorizes the legislature, through the provisions of other Acts of General Assembly, to set a particular interest rate for that legislation only. Indeed, this was done through the MVSFA where financing for four classes of motor vehicles was computed with the application of different interest rates. Since the Dear court authorized the application of interest on an "add-on” basis, the iViVo “add-on" rate utilized was not in excess of that permitted by the Usury Act.