author: KELLY, Judge:

text:
    539 A.2d 838
    COMMONWEALTH of Pennsylvania v. Joseph GRAHAM, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 14, 1987.
    Filed March 14, 1988.

      Edward R. Eidelman, Public Defender, Allentown, for appellant.
    William H. Platt, District Attorney, Allentown, for Com., appellee.
    Before OLSZEWSKI, KELLY and MONTGOMERY, JJ.
   KELLY, Judge:

Appellant, Joseph Graham, appeals from judgment of sentence imposed upon his convictions of terroristic threats and recklessly endangering another person. We deny allowance of appeal of the discretionary aspects of sentence.

On May 2,1986, the appellant was found guilty of terroristic threats (18 Pa.C.S.A. § 2706) and of recklessly endangering another person (18 Pa.C.S.A. § 2765) following a jury trial. No post-trial motions were filed. Sentencing was scheduled for June 16, 1986. On that date, the public defender representing appellant sought a continuance on the grounds that he feared that the pre-sentence report prepared by the Lehigh County Probation Office was prejudicial to appellant because appellant had once threatened one of its officers with a firearm. The public defender requested that instead of using the Lehigh County Probation Office’s report, a new report be drawn up by the state probation office. The trial judge granted a continuance but did not order that a second report be submitted to the court. On August 26, 1986, a second sentencing hearing was conducted following which appellant was sentenced to a term of two (2) to five (5) years imprisonment in a state correctional facility. Thereafter, appellant filed a timely motion to reconsider sentence which was denied by the trial court. This appeal followed.

Appellant raises two contentions on appeal: (1) the trial judge failed to properly articulate on the record sufficient reasons for the sentence imposed; and (2) the trial judge abused its discretion by improperly relying on a prejudicial pre-sentence investigation report, when an impartial source was available. Both contentions involve challenges to the discretionary aspects of sentence.

Appellant has made no attempt to comply with Pa.R.A.P. 2119(f) as required by Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). See Commonwealth v. Darden, 366 Pa.Super. 597, 600-605, 531 A.2d 1144, 1146-48. Though this Court has the authority to direct counsel to supplement the brief to cure the defect (see Commonwealth v. Zeitlen, 366 Pa.Super. 78, 530 A.2d 900 (1987)), we decline to do so in the instant case. Review of the record and appellant’s brief reveals the complete absence of a substantial question as to the adequacy of the statement of reasons for the sentence imposed or as to the appropriateness of sentence imposed considering the Sentencing Code as a whole {see 42 Pa.C.S.A. §§ 9781(b), 9781(c)). We see no reason to delay disposition of this appeal to compel submission of a Pa.R.A.P. 2119(f) statement which inevitably would be found to fail to raise the appearance of a substantial question as to the appropriateness of the sentence imposed. We note that the emphasis in Commonwealth v. Tuladziecki, supra, is on precise compliance with the procedural rules before granting allowance of appeal; the same precision would not appear to be necessary to a disposition denying allowance of appeal. See Commonwealth v. Pickford, 370 Pa.Super. 444, 459, 536 A.2d 1348, 1356 (1987) (Kelly, J., concurring and dissenting); Commonwealth v. Zeitlen, supra, 366 Pa.Superior Ct. at 87, 530 A.2d at 905 (Kelly, J., joining and concurring).

CONCLUSION

Based upon the foregoing, allowance of appeal of the discretionary aspects of sentence is denied.

MONTGOMERY, J., concurs in the result.

      . In Commonwealth v. Douglass, 370 Pa.Super. 104, 535 A.2d 1172 (1988), this author noted that an allegation that the trial court failed to provide an adequate statement of the reasons for the sentence imposed could be treated: 1) as a challenge to the legality of the sentence for violation of 42 Pa.C.S.A. § 9781(b); 2) as a challenge to the discretionary aspects of sentence for violation of 42 Pa.C.S.A. § 9781(b), see Commonwealth v. Tilghman, 366 Pa.Super. 328, 332, 531 A.2d 441, 443 n. 2 (1987); or 3) as a challenge to the discretionary aspects of sentence under 42 Pa.C.S.A. § 9781(c)(1) for violation of 204 Pa.Code § 303.1(h). Commonwealth v. Douglass, supra, 535 A.2d at 1174 n. 2 (Kelly, J., concurring). The issue regarding which, if any, aspect predominated was left unresolved in Douglass. In Commonwealth v. Thomas, 370 Pa.Super. 544, 537 A.2d 9 (1988) a panel of this Court held that such a challenge will be deemed a challenge to the discretionary aspects of sentence. 537 A.2d at 12. We note that if the challenge articulated herein were treated as a challenge to legality of sentence, we would, nonetheless, affirm judgment of sentence in this case for the reasons stated infra.

      . We note that the sentencing transcript clearly demonstrates that the trial court considered the pre-sentence report, the arguments of counsel, the applicable guidelines and the applicable statutory limits. (N.T. 8/26/86 at 1-21). We note particularly the trial court’s observations that: “when you (appellant) get out, you get a gun and you bother people,” (N.T. 8/26/86 at 14-15); and, "you say you haven’t done anything. You have 17 prior convictions. It’s very difficult for you to function in society, Mr. Graham. Very difficult.” (N.T. 8/26/86 at 18-19). Moreover, we note that the sentence included directives that appellant be imprisoned in a facility designated by the Deputy Commissioner for Treatment, Bureau of Corrections, and that any parole be conditioned upon participation by appellant in any psychiatric counseling recommended by the probation department with a further condition of parole that appellant be prohibited from owning any type of firearm or weapon; these restrictions clearly indicate the court’s awareness of the threat which appellant poses ti the community and his need for continued psychiatric treatment. (N.T. 8/26/86 at 16-17). Succinctly, the reasons for the sentence imposed appear on the face of the record and are more than sufficient to meet the requirements of Commonwealth v. Riggins, 474 Pa. 507, 378 A.2d 1229 (1977) and 42 Pa.C.S.A. § 9721(b). Cf. Commonwealth v. Darden, 366 Pa.Super. 597, 604, 531 A.2d 1144, 1148 (1987); Commonwealth v. Osborn, 364 Pa.Super. 505, 520, 528 A.2d 623, 631 (1987).

      . We note that appellant’s sole contention is that the trial court improperly relied on a potentially biased pre-sentence investigation report. The potential bias of the pre-sentence report was fully disclosed, and despite ample opportunity to review the challenged report, counsel’s sole objection was that the recommended sentence contained in the report was too high and should not be considered. No objection was raised to any other material contained in the report. (N.T. 8/26/86 at 3).


source: Caselaw Access Project

author:
POPOVICH, Judge: CIRILLO, President Judge,
      BROSKY, Judge, WIEAND, Judge, OLSZEWSKI, Judge,

license: Public Domain

text:
    539 A.2d 840
    COMMONWEALTH of Pennsylvania v. Evaristo SANCHEZ, Appellant.
    Superior Court of Pennsylvania.
    Argued March 9, 1987.
    Filed March 16, 1988.

      Edward R. Eidelman, Public Defender, Allentown, for appellant.
    Michael E. Moyer, Assistant District Attorney, Allentown, for Com., appellee.
    Before CIRILLO, President Judge, and BROSKY, WIEAND, OLSZEWSKI, DEL SOLE, MONTEMURO, TAMILIA, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence which was imposed upon appellant, Evaristo Sanchez, after he entered a plea of guilty to various drug charges. We granted en banc review and must remand the matter for resentencing.

The records sets forth the following scenario:

On July 11, 1985, appellant entered a plea of guilty to possession with intent to deliver heroin, possession of heroin, possession with intent to deliver cocaine, and possession of cocaine, counts one (1) to four (4) respectively.

On September 9, 1985, appellant received consecutive terms of imprisonment of not less than seven and one-half (7V2) nor more than fifteen (15) years on count one (1) and not less than two and one-half (2V2) nor more than ten (10) years on count three (3). The trial court merged counts two (2) and four (4) with counts one (1) and three (3). A motion for reconsideration of sentence was filed in a timely manner on September 16, 1985, and was subsequently denied. This appeal followed.

Appellant raises two issues in this appeal: (1) whether the trial court erred in failing to state appropriate reasons on the record for exceeding the Sentencing Guidelines, 204 Pa.Code § 303.1 et seq., and failed to state appropriate and sufficient reasons for the extremely harsh sentence and (2) whether the sentence of ten (10) to twenty-five (25) years in prison was manifestly excessive.

According to the prosecution, a waiver has occurred because “no motion to modify was ever filed.” Brief for Appellee at 6. However our review of the record indicates that a motion for reconsideration was filed on September 16, 1985 and was denied on September 18, 1985. Because the issues which appellant raises were set forth in the reconsideration motion, these issues have not been waived. Commonwealth v. Tomasso, 506 Pa. 344, 485 A.2d 395 (1984).

Additionally, we note that the sentence which was imposed was authorized by the legislature. The maximum limits which could have been imposed under counts one (1) and three (3) were fifteen (15) and ten (10) years in prison, respectively. See 35 P.S. § 780-113(f)(l) and (1.1). Hence, appellant’s sentence of not less than seven and one-half (7V2) nor more than fifteen (15) years in prison on count (1) and not less than two and one-half (2V2) nor more than ten (10) years in prison on count three (3) was within the statutory limits.

Because the instant appeal raises issues concerning the discretionary aspects of sentence, we must examine our Court’s recent decision in Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987). In Krum, we applied our Supreme Court’s recent decision in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) and said the following:

In Tuladziecki, the defendant preserved his challenge to the Commonwealth’s procedural violation of Rule 2119(f) by raising the issue (1) in the Superior Court, and (2) in the Supreme Court. In the instant case, the Commonwealth has not objected to or otherwise preserved the defendant’s failure to include in his brief a separate showing, as required by Pa.R.App.P. 2119(f), a “substantial question that the sentence imposed [was] not appropriate.” Because the requirement of Rule 2119(f), is procedural and not jurisdictional, the Commonwealth’s failure to object to or otherwise assert the defect in the form of appellant’s brief has resulted in a waiver of the defect. Therefore, the Superior Court will determine, in its own discretion, whether there is a substantial issue requiring it to review the discretionary aspects of the sentence imposed by the trial court. Id. [ (at 511, 522 A.2d at 18) ] (footnote omitted).

Because the prosecution has failed to mention appellant’s noncompliance with Rule 2119(f), we may conclude that “the Commonwealth’s failure to object to or otherwise assert the defect in the form of appellant’s brief has resulted in a waiver of the defect.” Id. In this case, appellant contends that the sentence which was imposed was almost twice as long as the sentence which was recommended by the guidelines. Under these circumstances, we find that there is a substantial question that the sentence which was imposed was not appropriate, and we may therefore examine the merits of appellant’s claim that the trial court erred in failing to state appropriate or sufficient reasons for deviating from the guidelines. See, e.g., Commonwealth v. Tuladziecki, supra; Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987).

We granted en banc review to determine whether the trial court failed to comply with this Court’s previous decision in Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984). In Royer, we held that the trial court must provide a contemporaneous written statement of the permissible range of sentences where a sentence is imposed which deviates from the statutory guidelines. In this case, it is undisputed that the sentence deviated from the guidelines. We have examined the record in this case and conclude that “nowhere did the court allude to the guidelines, nor did it indicate that it was aware of the guidelines’ suggested ranges.” Commonwealth v. Chesson, 353 Pa.Super. 255, 509 A.2d 875, 876.

The written record which was compiled at the sentencing hearing consisted of the following:

“THE COURT: Well, let’s take a look at that for a moment. In 1980, some gambling charge, guilty to disorderly conduct, pay fines and costs. A Judge gave you a chance to do something. Right, Mr. Sanchez? A Judge gave you a chance in 1980.
“Possession of marijuana, November, 1980, pay fine and costs. Again, a Judge gave you a chance then, right?
“I assume Mr. Lauer, Defense Counsel, has that. Do you have that report in front of you?
“MR. LAUER [Defense Counsel]: I have the pre-sentence report.
“THE COURT: Judge gave you chance then.
“April 1982, possession of marijuana, pay fine and costs. Judge gave you a chance then.
“May 21, 1982, public drunkenness. A Judge gave you a chance, $25 fine.
“In December of 1982, robbery charges dismissed. I don’t know anything about that.
“September 1983, possession of alcoholic beverages in a public place. Pay fine and costs.
“April 19, 1984, a year ago, a little bit over a year ago now, drugs. Cocaine. Possession with intent to deliver. Some sort of a plea bargain presumably. A Judge gave you a chance, 6 to 23 months in the Lehigh County Prison for which you are on parole, I believe, at this time.
“June 1984, delivery of a controlled substance, heroin, possession with intent to deliver, 4 to 23 months. Somebody gave you a chance then.
“Other charges pending. I don’t know what they are.
“You have been given chances. Your chances have run out, Mr. Sanchez. Prior record, there is something like ten arrests, seven convictions, also in 1980 including four previous drug offenses and another one yet pending. These involve heroin and cocaine which are among the worst of our society. Certainly we don’t need them in this community.
“Your guilty plea is a recognition by you, sir, that you had complicity in very serious drug charges in dealing with rather large quantities of cocaine and heroin with some substantial street value.
“You had a spotty employment record. In our view, Mr. Sanchez, you clearly represent a danger to this community and to society. There is no indication that you appreciate the seriousness of the anti-social aspect of the distribution of elicit drugs which are against the law. Heroin, cocaine, whole list against the law. You have been in it and in it and in it apparently for years.
“We believe that the public should know that people who are so involved should be dealt with firmly so that notice will go out to those who are engaged and contemplating such offense that the penalty will be serious.
“We don’t regard that you’ve learned anything from all your prior involvement with the law and all your other sentences that you have had because you're back here bigger than ever, more deeply involved than ever.
“In our view, any lesser sentence would depreciate the seriousness of what you have done. And in our view you represent as much a danger to the citizens of this community, Mr. Sanchez, with drug involvement as if you had a gun and you held up everybody. Just as serious.
“Now, not only did you engage in serious elicit drug dealings, but you did so making all sorts of money presumably while you were milking the Commonwealth and who else of welfare money, and that’s indicated by reason of the cash in something close to $1500 in cash which was found in your apartment during the raid.
“So for all of these reasons, Mr. Sanchez, while, believe me, we gain no pleasure in doing it, we believe that in the interests of the community and society that you receive lengthy periods of incarceration in a state correctional institution.
“You may take these sentences:
“NOW, SEPTEMBER 9, 1985, the sentence of the Court is that you, Evaristo Sanchez, in No. 1863 of 1984, Count 1, that you pay the costs of prosecution and that you undergo total confinement, that is imprisonment, forthwith for a period of no less than seven and a half years nor more than fifteen years in such State Correctional Institution as shall be designated by the Deputy Commissioner for Treatment, Bureau of Corrections, and that you be sent to the Correctional Diagnostic Classification Center at Graterford, Pennsylvania, for that purpose; that credit be given you, as required by law, for all time spent in custody, as a result of the criminal charges for which sentence is being imposed; and that you stand committed until this sentence is complied with.
“In Count 3, the sentence of the Court is that you, Evaristo Sanchez, in Count 3 of 1863 of 1984, pay the costs of prosecution and that you undergo total confinement, that is imprisonment, forthwith for a period of no less than two and a half nor more than ten years in such State Correctional Institution as shall be designated by the Deputy Commissioner of Treatment, Bureau of Corrections, and that you be sent to the Correctional Diagnostic Classification Center at Graterford, Pennsylvania, for this purpose; that credit be given you, as required by law, for all time spent in custody, as a result of the criminal charges for which sentence is being imposed and that you stand committed until this sentence is complied with.
“IT IS ORDERED that the sentence in Count 3 run consecutive to the sentence in Count 1 so that the total minimum sentence that you are to serve is no less than ten and the total maximum no less than twenty-five years in a state correctional institution.
“MR. MOYER [the Prosecution]: Your Honor, on Count 3, the pre-sentence indicates that the maximum is 5 years. I’m not quite sure that that’s correct or—
“THE COURT: That is incorrect because at the time the plea was entered I think we all agreed that the maximum on Count 1 was fifteen and the maximum on Count 3 was ten. The record may reflect that that’s what my notes reflect.
“Now, you have been sentenced on guilty pleas, Mr. Sanchez, and you have certain rights. You have a right to file an appeal within 30 days on the grounds that your plea was unlawfully induced or that it had not been voluntarily and understandingly made by you, if a higher court should rule favorably thereon your sentence and guilty plea would be set aside and you would be granted a new trial; or that the sentences imposed are illegal, if a higher court should so find you would be resentenced; or that the court did not have jurisdiction, if a higher court should so rule you would be discharged and the charges dismissed.
“Further, you have the right to file a written motion challenging the validity of your guilty plea or the legality of your sentence imposed pursuant thereto provided that you do so in writing within ten days.
“You’re entitled to be represented by counsel in preparing and litigating your Motion. And you can only raise on appeal such grounds as are set forth in your written motion. “(Sentencing Transcript at 17-24)”
Although the trial court did refer to the maximum sentence which had been agreed upon with respect to counts one (1) and two (2), the sentencing court failed to provide a contemporaneous written statement of its reasons for deviations from the guidelines, and we must accordingly remand for resentencing. 42 Pa.C.S.A. § 9721; 204 Pa.Code § 303.1(h).

In view of our disposition, we need not address the other questions raised by appellant, which concern the adequacy of the reasons which were articulated by the trial court at sentencing under Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and the harshness of the sentence which was imposed.

Accordingly, we must vacate the sentence and remand the matter for resentencing. Jurisdiction is not retained.

CIRILLO, President Judge, and BROSKY, J., file a dissenting opinion.

WIEAND and OLSZEWSKI, JJ., file a dissenting statement.

CIRILLO, President Judge,

dissenting:

I join in the observations of Judge BROSKY in dissent, and write separately to highlight my own concerns.

In vacating appellant Sanchez’s sentence and remanding for resentencing, this court continues to eviscerate the Supreme Court of Pennsylvania’s ruling in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) and to misread its decision in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). Because Sanchez waived his right to appeal by failing to include the required Pa.R.A.P. 2119(f) statement of reasons relied on for allowance of appeal showing a “substantial question” that the sentence is inappropriate under the Sentencing Code, see 42 Pa.C.S. § 9781(b), I would quash the appeal. I therefore respectfully dissent.

Sanchez was arrested on charges of possession of and possession with intent to deliver heroin and cocaine. He entered a guilty plea with respect to those charges, and was sentenced to consecutive terms of imprisonment of not less than seven and one half nor more than fifteen years for the counts involving cocaine, and not less than two and one half to not more than ten years for the counts involving heroin. The sentencing court merged the counts involving possession and possession with intent to deliver of each drug for sentencing purposes. Appellant then filed a motion to reconsider sentence. The court denied that motion, and Sanchez appealed to this court. On appeal, Sanchez argues that the sentence of ten to twenty-five years was manifestly excessive. He argues further that the sentence was inappropriate because the trial court failed to state appropriate reasons on the record for its deviation from the Sentencing Guidelines. Appellant fails, however, to include in his brief the statement of reasons relied on for appeal mandated by Pennsylvania Rule of Appellate Procedure 2119(f) in appeals from discretionary aspects of sentence. Because, regardless of this court’s decision in Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc), I cannot accept the premise that the supreme court in Tuladziecki meant to make the 2119(f) requirement readily waived by the appellee, I would find that appellant’s failure to include such a statement in his brief created a fatal jurisdictional defect, and that we are precluded from exercising our discretion to hear this appeal.

I disagree at the outset with this court’s introduction of a procedural versus jurisdictional dichotomy in Krum. This distinction was a semantic one of the court’s own creation, and was not one which the court in Tuladziecki found significant. “Procedural” violations often have results which affect a court’s ability to exercise jurisdiction. The most obvious example is the “procedural” shortcoming of filing an appeal beyond the jurisdictional time limit of thirty days. Other examples are the “procedural” deficiencies of failing to raise issues in post-verdict motions, or filing such motions out of time, which may have the “jurisdictional” effect of precluding this court’s review of certain issues on appeal. In that sense, procedural violations may defeat this court’s “jurisdiction” to review certain claims, and the whole point of the supreme court’s reversal of our decision vacating a sentence in Tuladziecki was that this court should stop ignoring the jurisdictional prerequisite of Rule of Appellate Procedure 2119(f) in discretionary sentencing matters. In Krum, however, this court sidestepped the Tuladziecki decision and found the requirement of a 2119(f) statement “procedural” and hence subject to waiver by the appellee. Since the court will also permit the appellant to supplement his brief to supply the missing statement when the appellee does raise its absence, cf. Commonwealth v. Tilghman, 366 Pa.Super. 328, 531 A.2d 441 (1987), we have, in practical effect, rendered Pa.R.A.P. 2119(f) a nullity, and robbed the Tuladziecki case of any significance.

In Tuladziecki, the supreme court did, in fact, refer to the absence of a 2119(f) statement as a “procedural violation.” Tuladziecki, 513 Pa. at 515, 522 A.2d at 21. However, it is a non sequitur to conclude, as we did in Krum, that because the violation is “procedural,” an appellee can “waive” it. While the requirement of a statement listing the reasons upon which an appellant relies for appeal may be procedural, it is part of the procedure by which an appellant perfects his claim to this court’s discretionary jurisdiction in sentencing matters. This court has never held that procedural requirements of this nature are waivable at the option of the appellee. In fact, the action or inaction of the appellee makes no difference to our ability to look past procedural deficiencies to review the merits of a case.

In perpetuating the error that the supreme court had corrected in Tuladziecki, this court in Krum cited to several cases to show that procedural violations could be “waived” by the appellee’s failure to object. Upon closer examination, the court’s misapprehension of these cases is evident. Firstly, in none of the cases cited by the Krum majority did this court comment upon the appellee’s objection or failure to object. See, e.g., Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984) (although court stated it would consider merits of appeal even though appellant violated rules limiting statement of questions presented, it did not state why). In fact, in Commonwealth v. Gumpert, 354 Pa.Super. 595, 512 A.2d 699 (1986), the Commonwealth, appellee in that case, had complained that the appellant’s captioning of his appeal as an appeal from the order denying post-trial motions was incorrect because such appeals are interlocutory, and that the appeal should have been taken from the final judgment of sentence. Id., 354 Pa.Superior Ct. at 597, 512 A.2d at 700. That argument on the part of the Commonwealth would have precluded any “waiver” of the violation, under Krum’s rationale. In allowing that appeal to be heard, however, a panel of this court stated that the error was one of form, and not substance, so that the principles surrounding the rule that appeals must be taken from a final judgment of sentence were not contravened. Id.; see also Commonwealth v. Lahoud, 339 Pa.Super. 59, 488 A.2d 307 (1985) (court, by authority of Pa.R.A.P. 105(a), which allows liberal construction of rules at court’s discretion, treated appeal from post-trial motions as appeal from judgment of sentence).

What this court has said in the cases cited by the majority is that a procedural violation will result in the dismissal of the appeal if this court cannot, in its discretion, provide effective appellate review because of that procedural noncompliance. In Commonwealth v. Williams, 269 Pa.Super. 544, 410 A.2d 835 (1979), for example, we held that the appellant’s failure to include ineffective assistance of counsel among the reasons for appeal cited in his Pa.R.A.P. 1925 statement filed in response to the trial court’s order could have waived that issue but did not. Instead, we considered the merits of the issue “because appellant’s failure to comply with the rule [did] not defeat our ability to exercise appellate review.” Id., 269 Pa.Superior Ct. at 548, 410 A.2d at 837. The decision concerning whether or not the defect is so grievous as to prevent review is one for us as the appellate court to make; it does not hinge upon what the appellee does or does not do. In Commonwealth v. Dougherty, 351 Pa.Super. 603, 506 A.2d 936 (1986), we reviewed the merits of appellant’s ineffective assistance of counsel claim even though he had couched that issue in “boilerplate” language, saying, “We are able to glean from appellant’s inartfully drafted brief his mistaken belief that an ineffective assistance of counsel claim revives those substantive claims which counsel is allegedly ineffective for failing to preserve.” Id., 351 Pa.Superior Ct. at 607, 506 A.2d at 938. Exercising our discretion, we overlooked the appellant’s procedural error. In Commonwealth v. Stoppie, 337 Pa.Super. 235, 486 A.2d 994 (1984), we exercised that same discretion even though the violations were much more serious. Id., 337 Pa.Superior Ct. at 240, 486 A.2d at 997. In both cases, we did so without regard to any action or inaction on the part of the appellee. It is rather incongruous, then, for the Krum majority to have relied on these cases for its proposition that the appellee’s waiver of a procedural violation permits review by this court. If such a tenet is extant, none of the cases cited by the Krum majority give it support.

Closer examination of the supreme court’s opinion in Tuladziecki, on the other hand, shows that the court considered omission of the Pa.R.A.P. 2119(f) statement not subject to cure. Tuladziecki overturned a decision in which this court had ignored the fact that the appellant had not included a 2119(f) statement in its brief, and had found a substantial question that the sentence imposed was not appropriate under the Sentencing Code. This court had read the note to rule 902 which states that “the question of the appropriateness of sentence may be briefed and argued in the usual manner,” Pa.R.A.P. 902 note, to allow an examination of the appellant’s argument on the merits to determine whether or not a substantial question warranting an appeal under 42 Pa.C.S. § 9781(b) existed. See Tuladziecki, 513 Pa. at 512, 522 A.2d at 19. In refuting this analysis, the supreme court examined Pa.R.A.P. 2116(b), and drew a distinction between the requirement that an “appellant shall include any questions relating to the discretionary aspects of the sentence imposed” and the necessity of briefing “the issue whether the appellate court should exercise its discretion to reach such question.” Pa.R.A.P. 2116(b).

It must first be observed that our rules make a careful distinction between “questions relating to the discretionary aspects of the sentence” and “the issue whether the appellate court should exercise its discretion to reach such question____” Recognizing this distinction, the language from the Note to Pa.R.A.P. 902 quoted in footnote 1 of the Superior Court’s memorandum, speaks only to the fact that the appellant is to supply his brief, with argument on the merits of the question, at the same time as he provides his concise statement of the reasons relied on for appeal. It does not and cannot obviate the need for such a statement.

Tuladziecki, 513 Pa. at 512, 522 A.2d at 19. This language mandates that the appellant include such a statement, and, further, indicates that the supreme court viewed this statement as a threshold requirement for the exercise of jurisdiction by this court. “The procedure outlined in the Note accompanying Rule 902 was published in the interest of maintaining consistency between practice under this section of the Sentencing Code and typical appellate practice in [the] Superior Court, which does not ordinarily have discretion as to the exercise of its jurisdiction.” Id. (emphasis added).

Unless the requirement of the 2119(f) statement is seen to be jurisdictional and therefore non-waivable, the supreme court’s decision in Tuladziecki is nonsense. One can be no clearer than the supreme court in stating its holding in Tuladziecki: “It is only where a party can articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.” Id., 513 Pa. at 515, 522 A.2d at 20 (emphasis added). If a party does not first articulate those reasons, we cannot, according to the decision in Tuladziecki, go rummaging through the record and the merits of the issue raised to discover some substantial question. I therefore take issue with the decision in Krum, and would find appellant’s appeal waived for failure to supply a 2119(f) statement of reasons relied on for appeal.

Although I would quash Sanchez’s appeal, had I, like the majority, been able to determine that this appeal is proper, I would also take issue with the majority’s interpretation of Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). Sessoms declared that the Sentencing Guidelines were unconstitutional and void ab initio. The court in Sessoms further propounded that its ruling was not available to a party challenging a sentence unless that party had previously raised the issue of the guidelines’ unconstitutionality at every appropriate stage of the appellate proceedings. Properly understood, the Sessoms ruling means only that a defendant sentenced under the guidelines may not belatedly raise the issue of their unconstitutionality as grounds for vacating an otherwise proper sentence. However, it does not follow, and Sessoms does not mean, that non-compliance with the guidelines alone can still be grounds for finding a “substantial question” that the sentence is inappropriate simply because the parties have not attacked the guidelines’ constitutionality. To date, despite the Sessoms caveat that the guidelines’ unconstitutionality must be raised to be applied, the supreme court has never found lack of compliance with the guidelines to be sufficient reason for overturning a sentence. Compare Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404 (1987) (reinstating legal sentence which superior court had vacated on erroneous ground that it was imposed under unconstitutional portion of guidelines) with Commonwealth v. Mourar, 517 Pa. 83, 534 A.2d 1050 (1987) (per curiam) (vacating superior court’s vacation of sentence entered on erroneous ground that guidelines were applied improperly; remanding in light of Sessoms). Rather, because the guidelines are void ab initio, even a sentence that ignores them completely is not for that reason objectionable. A sentencing court’s failure to follow the invalid guidelines cannot logically raise a “substantial question” about the appropriateness of a sentence, nor can non-compliance with them provide grounds for vacating a sentence, because the guidelines are “of no force at all." 516 Pa. at 380, 532 A.2d at 782. The Sessoms declaration that its ruling was available only to parties who had raised the guidelines’ unconstitutionality therefore means only that to achieve reversal of a sentence, a party must have timely raised the unconstitutionality issue; it does not mean that the failure to follow the guidelines itself provides the requisite grounds for vacating a sentence.

For these reasons, I respectfully dissent.

BROSKY, Judge,

dissenting:

I must respectfully dissent from the majority’s resolution of this matter.

Initially, I do not concur in the majority’s determination that Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) is inapplicable in its entirety to the first issue presented in this appeal. I feel the majority has reached this determination by overlooking the significance of the placement of the footnote 2 annotation in the body of the Sessoms opinion.

The footnote in question arises in the following context: ____ Because the present guidelines were not adopted according to [the constitutional] scheme, however, but were the product of a rejection resolution that was not presented to the Governor in violation of Article III, § 9, they must be declared to be of no force at all. The appellant’s sentence is vacated and his case remanded for resentencing pursuant to the remaining valid provisions of the Sentencing Code.

Sessoms, supra, 516 Pa. at 380, 532 A.2d at 782. The footnote annotation does not follow the pronouncement that the Sentencing Guidelines “must be declared to be of no force at all”, but, rather, annotates the directive for vacation and remand for resentencing “under the remaining valid provisions of the Sentencing Code”. Hence, I interpret “(T)his ruling”, in footnote 2, as a reference to the directive for resentencing only. In other words, I construe footnote 2 as limiting the availability of the remedy of vacation and resentencing in Guideline cases, to those cases in which the precise Sessoms issue, i.e. the unconstitutional passage of the Guidelines, has been preserved at all stages of adjudication. I do not believe it was the Supreme Court’s intent to condition in any way its holding that the Guidelines were void ab initio, and to permit vacation and resentencing in other Guidelines cases where the appellant has challenged only the application of, or a deviation from, the Guidelines, where the sentence is otherwise appropriate under the remaining valid provisions of the Sentencing Code. Cf. Sessoms, supra, 516 Pa. at 380, 532 A.2d at 783. (Concurring Opinion by Papadakos, J.) (“(T)he Sentencing Code, devoid of the Sentencing Guidelines, forms an adequate foundation to support sentences heretofore imposed by the judiciary.”)

I therefore would find that the first issue presented, concerning the failure of the sentencing court to state reasons for its departure from the Guidelines, fails to raise a substantial question that the sentence was inappropriate under the Sentencing Code as a whole, and I would decline to resolve the first issue on the merits.

Appellant secondly contends that the sentence imposed was manifestly excessive, in that the sentencing court failed to take into account the probation officer’s recommendation, based upon presentence investigation. However, appellant has failed to give any reasons in his argument as to why the probation officer’s recommendation should have been binding upon the sentencing court, and has not explained how the sentence imposed was in any way inconsistent with the gravity of the offense, the protection of the public, or appellant’s rehabilitative needs. See 42 Pa.C.S. § 9721(b). As such, I find appellant’s second issue also fails to present a substantial question under the remaining valid provisions of the Sentencing Code.

As I believe appellant has not presented any substantial questions under the Sentencing Code, I would hold that he has waived all claims as to the appropriateness of his sentence, and would quash the current appeal.

WIEAND, Judge,

dissenting:

I respectfully dissent. In view of the Supreme Court decision in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), which held the sentencing guidelines invalid and of no effect, I would hold that appellant has failed to state a substantial issue regarding the discretionary aspects of the sentence imposed upon him by the trial court. See: Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987). Therefore, I would disallow the appeal.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent.

I join in the view of the esteemed dissenting members of the Court that, pursuant to Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), this appeal should be disallowed for lack of a substantial question regarding a discretionary aspect of sentencing. I do not agree, however, with the view expressed by the President Judge regarding Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

      . 35 P.S. § 780-113(a)(30).

      . 35 P.S. § 780-113(a)(16).

      . 35 P.S. § 780-113(a)(30).

      . 35 P.S. § 780-113(a)(16).

      . Pa.R.A.P. 2119(f) provides:
      An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

      . Given the relevant offense gravity scores of seven (7) with a prior record score of three (3) for count one (1), possession with intent to deliver heroin, a minimum sentence of forty-nine (49) months in prison was recommended as compared to a minimum term of ninety (90) months which was imposed. 42 Pa.C.S.A. § 9721. On the charge of possession to deliver cocaine, with an offense gravity score of five (5) and a prior record score of zero (0), a minimum term of eighteen (18) months was recommended as compared to the minimum term of thirty (30) months which was imposed. Id. The trial court did not refer to these scores at the hearing.

      . Because neither party has argued that the sentencing guidelines are invalid, we need not apply our Supreme Court’s recent ruling in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). In Sessoms, our Supreme Court invalidated the guidelines; however, this ruling is inapplicable because appellant has failed to preserve it "at all stages of adjudication up to and including any direct appeal.” Id., 516 at 380 n. 2, 532 A.2d 782 n. 2 (quoting Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983). Accord Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404 (1987).

      . As we aptly stated in Commonwealth v. Chesson, 353 Pa.Super. 255, 257, 509 A.2d 875, 877 (1986),
      This is not to say that we necessarily disagree with the court’s reasons for the sentence imposed. We make no judgment as to that question____

      . This ruling is applicable to cases where the issue has been "properly preserved at all stages of adjudication up to and including and direct appeal.” Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).

      . I am aware that several of my colleagues do not concur in my position, in light of the later Supreme Court decision in Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404 (1987). In Samuels, the Supreme Court implicitly overruled this Court's interpretation of the enabling legislation at 42 Pa.C.S. § 2154, in Commonwealth v. Tilghman, 366 Pa.Super. 328, 531 A.2d 441 (1987) (en banc), and reinstated the original judgment of sentence as enhanced by prior non-deadly weapon misdemeanor convictions. It has been the position of many panels of this Court that, had Sessoms precluded consideration of other Guideline cases, Samuels would not have been necessary. However, I believe footnotes 3 and 4, 516 Pa. at p. 304, 532 A.2d at pp. 405-06, indicate precisely the opposite:
      3. It is noted that the effect of our decision is limited to the present case and others decided in reliance on the Superior Court’s decision in it where the Commonwealth has pursued the matter on appeal. Act 165 of 1986, effective February 9, 1987, amended § 2154(2) to overcome the uncertainty caused by the Superior Court's decision in this case and even more explicitly provided the Commission with authority to increase the severity of guideline sentences on the basis of misdemeanors of any kind.
      . 4. Inasmuch as Samuels failed to preserve his challenge to the constitutionality of the sentencing guidelines. Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) is inapplicable. See Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983) (appellate decision announcing new principle to be applied "retroactively" to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.) The trial court’s sentence, being within the statutory limits, is not illegal and, in the absence of a valid claim of error properly preserved must be reinstated.

      (Emphasis added to the original).
      The import of this language is clear. Where our Court has vacated and remanded for resentencing pursuant to a Guidelines misapplication or deviation, and the resentencing issue has been properly preserved on appeal to the Supreme Court, the original sentence will be reinstated, regardless of the Guidelines violation, unless the resentencing was ordered pursuant to a Sessoms challenge i.e. unconstitutional passage of the Guidelines. Where the original sentence is “within the statutory limits” and “not illegal”, it will be permitted to stand. The remedy sought in Samuels was not a vacation and remand for resentencing pursuant to the void Guidelines, but the reinstatement of the original sentence as a valid sentence. As such, I do not concur in the conclusion reached by my other colleagues that Sessoms and Samuels, read together, permit a remand for resentencing sheerly for failure to conform to the void Sentencing Guidelines.

      . Appellant’s first issue, as set forth in his statement of questions presented, also challenges the adequacy of the sentencing court’s reasons for the imposition of a severe sentence under the Sentencing Code as a whole. However, appellant’s argument focuses upon the inadequacy of the reasons as they relate to the sentencing court’s departure from the Guidelines. Hence, I would find that appellant has waived any challenge to the adequacy of the reasons as a whole, for failure to carry forth argumentation in his brief. Trustees of the First Presbyterian Church of Pittsburgh v. Oliver — Tyrone Corp., 248 Pa.Super. 470, 375 A.2d 193, 194 n. 1 (1977) (en banc).

      . Appellant has explained his position, with respect to the sentencing criteria specified in 42 Pa.C.S. § 9721(b), in his argumentation of his first claim, concerning the adequacy of the sentencing court’s statement of reasons. He has not, however, repeated that position, or made reference to it, in his argumentation pursuant to his excessiveness claim. Hence, I believe appellant has, once again, waived argumentation in his brief.

      . The Dissenting Opinion by Cirillo, P.J., would also quash the current appeal, but for a different reason: the failure of appellant to comply with Pa.R.A.P. 2119(f), as interpreted by Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). As I authored the Dissenting Opinion in Commonwealth v. Krum, 533 A.2d 134 (Pa.Super.1987) (en banc), I am clearly in agreement with his analysis that Tuladziecki’s requirements are jurisdictional. It is only because I am constrained by precedent, as established by the Krum majority, that I am quashing on different grounds.


author: OLSZEWSKI, Judge:

text:
    539 A.2d 849
    COMMONWEALTH of Pennsylvania v. Omar CRUZ ORTEGA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 8, 1988.
    Filed March 28, 1988.

      Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
    James J. Karl, Assistant District Attorney, Lancaster, for Com., appellee.
    Before OLSZEWSKI, MONTEMURO and WATKINS, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence imposed after appellant was convicted by jury of possession with intent to deliver and criminal conspiracy. On appeal, appellant claims that: (1) the Commonwealth failed to prove beyond a reasonable doubt that appellant possessed contraband; (2) the evidence was insufficient to prove that appellant actively participated in a conspiracy; and (3) the eleven and one-half to twenty-three month sentence was excessive. We affirm the decision of the trial court.

The trial court put forth the facts as follows.

On May 16, 1986, Detectives Jan Walters and William J. Chalfant of the Lancaster City Police Department were conducting surveillance in the City of Lancaster based upon information that [Rolando U.] Martinez was driving a vehicle in which cocaine was located. The detectives sighted the vehicle and proceeded after it in their cruiser on South Prince Street in Lancaster City. The suspect vehicle thereupon picked up speed, moved into the right hand lane, and as it approached the intersection with Conestoga Street, the driver, who was Martinez, activated the right-turn directional signal. As the detectives’ cruiser proceeded to do likewise, the suspect vehicle swerved back into the left-hand lane and made a left turn onto Conestoga Street. Shortly thereafter, another police unit arrived on the scene and blocked the path of the suspect vehicle. Martinez was the driver of the vehicle and [appellant] was seated in the front passenger’s seat. Shortly before the suspect vehicle was forced to stop, [appellant] was observed leaning over in his seat. Martinez consented to a search of the vehicle, and, under the front passenger’s seat, the detectives found a package containing a substance which they suspected to be cocaine.
The vehicle in which [appellant] and Martinez were riding was rented from an agency in North Bergen, New Jersey, whose records indicated that it was rented to a Victor Oliva, of 2514 Summit Avenue, Union City, New Jersey. [Appellant’s] address is 71 26th Street, Union City, New Jersey. Martinez’ address is 433 South Prince Street, in Lancaster City. At the time of the arrest, the detectives found two items in the glove compartment of the suspect vehicle. One was a parking ticket issued by the Lancaster City Police Department on May 15,1986, the day prior to the arrest, citing the suspect vehicle for a parking violation at 435 South Prince Street. The second item recovered from the glove compartment was a receipt from a Western Union money order showing the sender’s name as “Omar Cruz”, of 433 South Prince Street, Lancaster, Pennsylvania. Counsel stipulated to the fact that the packet found under the front passenger’s seat of the suspect vehicle contained approximately two ounces of cocaine.

Opinion at 3-4 (citations omitted).

Appellant first asserts that because the evidence established that the cocaine was found under the passenger’s seat of a rented automobile, the Commonwealth failed to prove beyond a reasonable doubt that appellant possessed contraband. The Commonwealth’s case was based on constructive possession. Regarding constructive possession, our Supreme Court has declared:

Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. We have defined constructive possession as “conscious dominion.” Commonwealth v. Davis, 444 Pa. 11, 15, 280 A.2d 119, 121 (1971). We subsequently defined “conscious dominion” as “the power to control the contraband and the intent to exercise that control.” Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983)....
To aid application, we have held that constructive possession may be established by the totality of the circumstances. Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974).

Commonwealth v. Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213 (1986).

Instantly, the totality of the circumstances support a finding of constructive possession. The record reflects that appellant had access to the contraband, the power to control it, and the requisite intent to exercise control over it. Commonwealth v. Speaks, 351 Pa.Super 149, 505 A.2d 310 (1986). Further, it is of no consequence that the vehicle was rented or by which of the co-conspirators it was rented. A search of the vehicle disclosed that a money order which appellant had purchased was found in the glove compartment. Opinion at 4. “[C]onstructive possession may be found in either or both actors if contraband is found in an area of joint control and equal access.” Mudrick, supra, 510 Pa. at 309, 507 A.2d at 1214. We find that the evidence establishes that appellant had as much control of and access to the rented vehicle as Martinez. We are satisfied, based on the foregoing, that the Commonwealth established constructive possession beyond a reasonable doubt.

Next, appellant maintains that the evidence was insufficient to prove a conspiracy. Specifically, appellant contends that the Commonwealth did not establish the requisite elements of an agreement and shared criminal intent. We have determined that an explicit or formal agreement to commit crimes can seldom be proved and it need not be, for proof of a criminal partnership may be extracted from circumstances that surround the crime. Commonwealth v. Campbell, 353 Pa.Super. 178, 509 A.2d 394 (1986). “A conspiracy may be proven inferentially by showing the relation, conduct, or circumstances of the parties, and the overt acts of alleged co-conspirators are competent as proof that a criminal confederation has in fact been formed.” Id., 353 Pa.Superior Ct. at 181, 509 A.2d at 395 (citations omitted); see also Commonwealth v. Mills, 332 Pa.Super. 75, 480 A.2d 1192 (1984). It follows that shared criminal intent may likewise be proven circumstantially. Commonwealth v. Davenport, 307 Pa.Super. 102, 452 A.2d 1058 (1982).

In the present case, the Commonwealth showed that appellant and Martinez were together in a vehicle, in constructive possession of cocaine, and attempting to elude police. From this evidence, the jury could properly infer that appellant and Martinez had been acting in concert in possessing cocaine with intent to deliver. This claim is meritless.

Finally, appellant contends that the sentence of eleven and one-half to twenty-three months was excessive under the circumstances. We do not agree. It is well established that sentencing is a matter within the sound discretion of the trial court and will not be disturbed unless it is outside the statutory limits or manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Yacoubian, 339 Pa.Super. 413, 489 A.2d 228 (1985), citing Commonwealth v. Gaus, 300 Pa.Super. 372, 377, 446 A.2d 661, 664 (1982).

Appellant’s sentence was within the statutory maximum. Therefore, we proceed to determine if the sentence was manifestly excessive. When a sentencing court deviates from the sentencing guidelines, it is important that the court reflect a consideration of the sentencing guidelines, the background and character of the defendant, the circumstances of the crime, and impose a sentence that is consistent with the protection of the public and the rehabilitative needs of the defendant. Commonwealth v. Arent, 352 Pa.Super. 520, 508 A.2d 596 (1986); 42 Pa.C.S.A. § 9711(b).

When imposing sentence, the trial court in the instant case thoroughly evaluated appellant’s history, situation, and character. The court also indicated that it had considered the sentencing guidelines and the penalty authorized by the legislature. Further, the court acknowledged the circumstances of the crime and noted the effect of cocaine on the community. We find that the sentence imposed was not manifestly excessive.

The judgment of sentence is affirmed.

      . The cocaine was found under the seat in which appellant was sitting. Before police stopped the vehicle, appellant was observed leaning over in his seat. We conclude that this evidence is sufficient to establish access to and control of the contraband.

      . The maximum sentence for possession with intent to deliver cocaine is ten years and/or $100,000. 35 P.S. § 780-113(f)(l.l). Conspiracy is a crime of the same grade and degree as the offense which is the object of the conspiracy. 18 Pa.C.S.A. § 905. Therefore, the statutory maximum for the conspiracy was also ten years and/or $100,000.


author: WIEAND, Judge:

text:
    539 A.2d 852
    COMMONWEALTH of Pennsylvania v. Leon BYUSS, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 10, 1987.
    Filed March 29, 1988.

      Robert E.H. Miller, Philadelphia, for appellant.
    Deborah Fleisher, Assistant District Attorney, Philadelphia, for Com.
    Before WIEAND, KELLY and HESTER, JJ.
   WIEAND, Judge:

Leon Byuss was tried without jury and was found guilty of rape, involuntary deviate sexual intercourse, aggravated assault, and possession of an instrument of crime. Post-trial motions and supplemental post-trial motions were denied, and Byuss was sentenced to serve concurrent terms of imprisonment for not less than four years nor more than eight years on the convictions for rape and involuntary deviate sexual, intercourse. Separate sentences were not imposed on the other convictions. On direct appeal, Byuss argues that the trial court erred when it refused to allow defense counsel to examine medical reports pertaining to the victim’s psychological condition and, instead, made an in camera examination of the records. We disagree with appellant and affirm the judgment of sentence.

Appellant and Janet Henderson were members of a Bible research ministry known as “The Way.” As such, they lived in a communal home which was maintained for members of the ministry. On the morning of October 28, 1985, while appellant and Henderson were alone in the home, appellant entered Henderson’s bedroom with a meat cleaver and demanded that she disrobe. After a struggle, Henderson was forced to submit to vaginal intercourse and perform fellatio. Henderson thereafter left the house and contacted police. An examination at Jefferson Hospital revealed sperm in the area of her vagina, a laceration of her lower lip, chipped teeth, and abrasions of her forehead, nose, and throat.

Prior to trial, appellant sought to examine reports of psychological and psychiatric examinations performed on the victim for “any diagnosis which would bear on her psychiatric situation at the time [of the incident] or her ability to testify competently.” Appellant also sought any accounts of the incident appearing in such reports. Appellant asked, in the alternative, that the court examine the reports to determine the existence of any such discoverable material. The court examined the reports in camera. After determining that they contained no relevant, exculpatory material, the trial court refused to compel disclosure. Appellant contends that the Commonwealth had no right of confidentiality with respect to the records and that the trial court’s order deprived him of his constitutional right to confront and cross-examine his accuser.

The United States Supreme Court, in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), observed that the right of confrontation is a trial right. “The ability to question adverse witnesses,” the Court said, “does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony.” Id. at-, 107 S.Ct. at 999, 94 L.Ed.2d at 54. Thus, the confrontation clause was not violated by the withholding of the files pertaining to the victim which were held by Child Welfare Services. Similarly, the Court held, the compulsory process clause of the Sixth Amendment did not grant to a defendant the right to search through the Commonwealth’s files. Although it is well settled that the Commonwealth has an obligation to turn over evidence in its possession which is favorable to the defense and material to guilt or punishment,

[a] defendant’s right to discover exculpatory evidence does not include the unsupervised authority to search through the Commonwealth’s files. Although the eye of an advocate may be helpful to a defendant in ferreting out information, this Court has never held — even in the absence of a statute restricting disclosure — that a defendant alone may make the determination as to the materiality of the information. Settled practice is to the contrary. In the typical case where a defendant makes only a general request for exculpatory material under Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215], it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court’s attention, the prosecutor’s decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the [Commonwealth’s] files to argue relevance.

Id. at-, 107 S.Ct. at 1003, 94 L.Ed.2d at 58-59 (citations and footnotes omitted). Therefore, the Court held, the defendant’s interest in a fair trial could “be protected fully by requiring that the [Child Welfare Services] file be submitted only to the trial court for in camera review.” Id.

In the instant case, the medical reports of Janet Henderson were delivered to the trial court prior to trial and examined in camera by the trial judge. That examination disclosed no information relevant or material to appellant’s guilt or innocence. Therefore, the trial court did not make the reports available to appellant. This was all that appellant was entitled to receive. He has not shown and, indeed, does not now allege that the reports contained exculpatory information. His right to confront his accuser, as guaranteed by the Constitution of the United States, was not violated under the circumstances of this case.

After Ritchie had been decided by the Supreme Court of the United States, the appellant in this case filed additional post-verdict motions asking the court to hold that the right to review medical and psychological reports of the alleged victim was guaranteed by Article I, Section 9 of the Pennsylvania Constitution. These rights, conferred by Article I, Section 9 of the Pennsylvania Constitution, are also trial rights. They do not guarantee the right to search unsupervised through the Commonwealth’s file prior to trial.

A defendant’s right to discover materials in the possession of the Commonwealth is determined in Pennsylvania not by constitutional guarantee but by Pa.R.Crim.F. 305. Under this rule, the reports sought to be examined by-appellant are not the subject of mandatory disclosure, but are discoverable only at the discretion of the trial court under Rule 305 B(2). In the instant case, the trial court, having examined the medical reports of the alleged victim, found the information irrelevant to the issue of guilt or innocence and declined to make them available to defense counsel. The trial court thereafter sealed the medical records in order to preserve them for appellate review. See: Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221 (1986). After an examination of these reports, we agree that they contain no exculpatory information or other matters that would have been helpful to the defense.

The judgment of sentence is affirmed.

      . The United States Supreme Court had granted certiorari from a decision of the Pennsylvania Supreme Court in Commonwealth v. Ritchie, 509 Pa. 357, 502 A.2d 148 (1985).

      . Section 9 of Article I of the Pennsylvania Constitution is as follows:
      In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.

      . Pa.R.Crim.P. 305 B(2) is as follows:
      (2) Discretionary with the Court: In all court cases, except as otherwise provided in Rule 263 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant, files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, arid that the request is reasonable:
      (a) the names and addresses of eyewitnesses;
      (b) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial;
      (c) all written or recorded statements, and substantially verbatim oral statemenfs, made by co-defendants, and by co-conspirators or accomplices, whether such individuals have been charged or not;
      (d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.

      . The Superior Court decision in Samuels was handed down before the decision of the United States Supreme Court in Ritchie. It wets subsequently reversed on other grounds in Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404 (1987).


text:
    539 A.2d 855
    COMMONWEALTH of Pennsylvania v. Joseph QUARTAPELLA, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1987.
    Filed March 29, 1988.

      Rosemary W. Dann, Public Defender, Wallingford, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, Newton Square, for Com.
    Before WIEAND, KELLY and HESTER, JJ.
   WIEAND, Judge:

Joseph Quartapella was tried non-jury and was found guilty of theft by deception. Post-trial motions were denied, and he was sentenced to make restitution and undergo imprisonment for not less than six months nor more than twelve months. On direct appeal, he argues that the evidence was insufficient to sustain the verdict and that the sentence was excessive. We disagree and affirm the judgment of sentence.

Theft by deception is defined at 18 Pa.C.S. § 3922 as follows:

(a) A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
(2) prevents another from acquiring information which would affect his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver previously created or reinforced or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.
(b) Exception — The term “deceive” does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed.

This statute rejects the traditional restriction that fraud must entail deception as to an existing fact. “This is accomplished ... by the unqualified definition of deception in subsection ... [ (a) ]: the deception may relate to the intention of any person, the opinion of the actor or a third person, the state of the law in any jurisdiction, or events of the past, present or future. Whatever means the actor selects as the effective ones to deceive will be included." Toll, Pennsylvania Crimes Code Annotated § 3922 (emphasis added). As a general rule, however, the statute will not be interpreted so broadly as to jeopardize normal business practices. Commonwealth v. Gallo, 473 Pa. 186, 373 A.2d 1109 (1977); Commonwealth v. Peduzzi, 338 Pa.Super. 551, 488 A.2d 29 (1985). “[Deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise.” 18 Pa.C.S. § 3922(a)(1).

“The test of the sufficiency of the evidence in a criminal case is whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt.” Commonwealth v. Peduzzi, supra, 338 Pa.Superior Ct. at 555, 488 A.2d at 31-32, quoting Commonwealth v. Carter, 329 Pa.Super. 490, 495-496, 478 A.2d 1286, 1288 (1984) . The findings made by the trier of the facts, however, may be based on circumstantial evidence. Commonwealth v. Shirey, 343 Pa.Super. 189, 193, 494 A.2d 420, 422 (1985), citing Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979). Thus, criminal intent may be established by circumstantial evidence. Commonwealth v. Russell, 313 Pa.Super. 534, 543, 460 A.2d 316, 321 (1983). When circumstantial evidence is used to establish an essential element of the crime, that element must flow beyond a reasonable doubt from the proven circumstances. Commonwealth v. Meredith, 490 Pa. 303, 310, 416 A.2d 481, 485 (1980), citing Commonwealth v. DiFrancesco, 458 Pa. 188, 329 A.2d 204 (1974). This court must fix “a line of demarcation between the requisite degree of persuasion (‘beyond a reasonable doubt’) and impermissible speculation. The former is required while the latter is not tolerated as a basis for conviction.” Commonwealth v. Paschall, 333 Pa.Super. 323, 327, 482 A.2d 589, 591 (1984), citing Commonwealth v. Meredith, supra (citation omitted).

The only evidence presented by the Commonwealth was the testimony of Dolores Roulston, the alleged victim. In July of 1984, Roulston met Quartapella at a nursing home where Roulston’s mother was confined and where Quartapella was convalescing from an illness. During Roulston’s frequent visits to the nursing home, she would stop and talk with Quartapella. In August, 1984, they spent a day at Atlantic City. It was during or shortly after that trip that appellant asked Roulston to obtain a loan on his behalf for $5,000.00. He executed a note for this amount and promised that he would repay it from an anticipated insurance payment. Roulston obtained the loan from the credit union at her place of employment and gave the money to Quartapella. No part of this loan has been repaid.

A short time later, appellant represented that his stepfather needed $1,700.00 for tires. Roulston withdrew the money from a bank account and delivered it to Quartapella’s stepfather. This money has not been repaid.

Next, appellant asked for $10,000.00 to purchase a home in Rose Tree. Roulston withdrew $8,000.00 from the credit union, cashed a check for $2,000.00, and delivered the $10,000.00 to appellant. No home has been purchased, and no part of the $10,000.00 has been returned.

Appellant later asked for another $10,000.00, representing that he wanted to venture into an automobile business with a friend. In November, 1984, this money was also advanced. Roulston testified that, according to appellant, she was to take care of the books. However, no business has been purchased, and the money has not been repaid.

Additional loans were made for Christmas gifts and because appellant’s sister was represented to be ill. None of these moneys have been repaid.

From this evidence, including the frequency of the requests, the misrepresented reasons for several of the advances, and the failure to make any attempt to repay the moneys, it is possible to infer an intent to defraud. Although the failure to repay the loans does not alone create an inference that appellant intended to defraud, the fact of non-payment may be considered with the other evidence in determining whether appellant intended to defraud. Appellant was unemployed and had no apparent source of income. Although he borrowed moneys to buy a home and to invest in a business, neither the home nor the business ever materialized. Instead, the funds disappeared, and no effort was made to repay them. Contrary to appellant’s assertion, an intent to deceive was not rendered non-existent merely because Roulston had been induced to advance the money in part by a belief that she would be able thereby to nurture a relationship between herself and appellant. After a careful review of the evidence, we conclude that it was sufficient to support the trial court’s finding that appellant obtained and withheld Roulston’s money by a deceptive scheme to defraud.

As required by Pa.R.App.P. 2119(f), appellant has requested that we review the discretionary aspects of the sentence which the trial court imposed upon him. The only reason offered in support of this request, however, is that the sentence, “while falling within the guidelines, is inappropriate under the circumstances of this case, and that application of the guidelines was clearly unreasonable.” We deem this inadequate to suggest a substantial issue. The sentencing guidelines have been determined by the Supreme Court to be invalid and of no effect. Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). Moreover, appellant has been unable to suggest any basis whatsoever for holding that his sentence was inappropriate. Under these circumstances, we decline to review the exercise of the trial court’s discretion in formulating the sentence to be imposed.

The judgment of sentence is affirmed.