text:
    440 A.2d 623
    COMMONWEALTH of Pennsylvania, v. Larry E. HAGGERTY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1979.
    Filed Jan. 29, 1982.
    Petition for Allowance of Appeal Denied May 6, 1982.

      John J. Morgan, Butler, for appellant.
    William G. Martin, Jr., Assistant District Attorney, Franklin, for Commonwealth, appellee.
    Before PRICE, HESTER and CAVANAUGH, JJ.
   HESTER, Judge:

This is an appeal from the order of sentence of the Court of Common Pleas of Venango County. This is the second time this matter has been before us. In the prior case, we granted a new trial, holding that appellant’s confession was improperly admitted into evidence in violation of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). See Commonwealth v. Haggerty, 282 Pa.Super. 369, 422 A.2d 1336 (1980). The Supreme Court granted the Commonwealth’s petition for allowance of appeal, affirmed the trial court on the confession issue, reversed and remanded to this court for consideration of the two remaining assignments of error. Commonwealth v. Haggerty, 495 Pa. 612, 435 A.2d 174 (1981). The Supreme Court ruled that the six-hour requirement in Commonwealth v. Davenport, supra, had not been violated, the time of the actual arrest being the determining factor. We now address ourselves to the remaining issues raised by appellant in the original appeal.

Appellant was tried before a jury on charges of arson and burglary of the Franklin High School, Franklin, Pennsylvania, and was convicted only on the burglary charge. Following the denial of post trial motions, he was sentenced to seven and one-half (7V2) to fifteen (15) years’ imprisonment.

Appellant first questions the sufficiency of the evidence. In testing the sufficiency of the evidence, we proceed in several steps. First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next, we give the Commonwealth the benefit of all reasonable inferences arising from that evidence. And finally, we ask whether the evidence, and the inferences arising from it, are sufficient in law to prove beyond a reasonable doubt that the appellant is guilty of the crime of which he has been convicted. Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979); Commonwealth v. Williams, 468 Pa. 357, 362 A.2d 244 (1976); Commonwealth v. Carbonetto, 455 Pa. 93, 314 A.2d 304 (1974); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973).

Our review of the record indicates that counsel for appellant stipulated that a burglary was committed in the early morning hours of October 15, 1977. This was corroborated by the testimony of Albert J. Broznick, Director of Buildings and Grounds for the Franklin Area School District, and by both police officers who investigated the crime. This evidence was sufficient to prove the corpus delicti. The Commonwealth also presented the tape recorded confession of appellant in which he admits his involvement in this burglary. Many of the facts in the confession were verified by later investigation, such as where the gasoline can was obtained; that entrance was gained through breaking a door; that three soft drink machines were broken into, and the coin boxes taken, and that windows in the cafeteria were broken. We therefore have no difficulty in finding that the evidence was sufficient for the jury to find beyond a reasonable doubt that appellant was guilty of burglary.

Appellant also contends the sentence imposed was manifestly excessive, constituting an abuse of discretion. The appropriate guidelines for imposition of a sentence of total confinement are set forth in 42 Pa.C.S.A. Section 9725 as follows:

“Total Confinement
The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:
1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
3) a lesser sentence will depreciate the seriousness of the crime of the defendant.”

We note that the Legislature has mandated that one of these criteria must be the reason for a sentence of incarceration.

The sentencing court should also consider the particular circumstances of the offense, the character of the defendant, and should consult the presentence report or other information available. Commonwealth v. Kaminski, 244 Pa. Super. 388, 368 A.2d 776 (1976); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977).

Our review of the sentencing transcript indicates the court was in possession of a presentence report, and that both trial counsel made a statement prior to sentencing reviewing the circumstances of the offense, and the background and character of the appellant. While trial counsel reviewed with the court the reasons why a probationary sentence could have been imposed, the trial court did not agree.

We note that five hundred thousand ($500,000.00) dollars damage resulted from the crime involved, and therefore find that the trial court’s statement that any lesser sentence would depreciate the seriousness of the crime was in compliance with the mandates of the Sentencing Code and the aforementioned caselaw, and there was no abuse of discretion.

Accordingly, the judgment of sentence is affirmed.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    440 A.2d 625
    Lloyd LYONS, Jr. Personally and in his capacity as Executor of the Estate of Lloyd Lyons, Sr., v. BECHTEL CORPORATION and Public Service Electric & Gas Company and Liberty Organization, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed Jan. 29, 1982.
    Charles W. Craven, Philadelphia, for appellants.
    Jed Abramowitz, Philadelphia, for appellees.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

This is an appeal by Bechtel Corporation, Public Service Electric & Gas Company and Liberty Organization from an order of the lower court dismissing their preliminary objections as untimely. We conclude that we do not have jurisdiction to decide this case and we therefore quash this appeal.

On December 28, 1979, appellees commenced two identical actions against appellants one in the Court of Common Pleas of Philadelphia County, Pennsylvania and the other in the Superior Court of New Jersey, at Camden County. In April, 1980, John P. Penders, Esquire entered his appearance on behalf of all defendants. Mr. Penders immediately requested that plaintiff grant appellants an extension of time in which to answer or otherwise plead. Appellee’s counsel responded by granting appellants a reasonable extension of time to answer but not to otherwise plead. In May, 1980, appellants filed preliminary objections alleging that Pennsylvania action should be dismissed under the doctrine of forum non conveniens. In June, 1980, appellee filed preliminary objections to appellants’ preliminary objections averring that appellants’ preliminary objections were untimely and in contravention of Pa.R.Civil P. 1026 and therefore not properly cognizable. On September 25, 1980, the lower court entered the following order:

AND NOW, to wit, this 25th day of September, 1980, Defendants’ Preliminary Objections to Plaintiff’s Complaint in Trespass are sustained, and Defendants are granted leave to file an Answer to said Complaint, if desired, within twenty (20) days of the date of this Order.
Plaintiff’s Preliminary Objections to Defendants’ Preliminary Objections are dismissed as moot.

Judge Greenberg amended his order of September 25, 1980 to correct an error in the language of the original, order by entering the following order:

AND NOW, to wit, this 1st day of October, 1980, it appearing that in our Order dated 9/25/80, we inadvertently used the word “sustained” when we meant to use the word “overruled”, we hereby amend said Order and substitute the word “overruled” for the word “sustained”.
In all other respects said Order remains the same.

Appellants have brought this appeal alleging that the order of the court below determined a question of jurisdiction and is thus appealable pursuant to Pa.R.A.P. 341, Final Orders. Though orders dismissing a litigant’s preliminary objections predicated upon forum non conveniens are considered questions of jurisdiction, Schachtel v. Bloche, 272 Pa.Super. 32, 414 A.2d 654 (1980), the order of the court below denied appellants’ preliminary objections on procedural grounds, not on the merits. Therefore, the lower court order was interlocutory and unappealable. Grier v. Scientific Living, Inc., 253 Pa.Super. 113, 384 A.2d 1254 (1978).

The court below, by Judge Greenberg, has made no jurisdictional determination on the basis of forum non conveniens or otherwise. Appellants, erroneously, argue that the amended order of September 25,1980 overruled their preliminary objections on the merits and not for procedural defects. Though the language of Judge Greenberg’s order might be considered ambiguous, Judge Greenberg’s opinion of October 10,1980 is unquestionably clear that the dismissal was procedural and not on the merits. The court’s decision was simply to overrule the preliminary objection, not because it found jurisdiction to be proper but because appellants failed to timely file their preliminary objections. Thus, Grier, supra, is controlling and requires that this appeal be quashed.

Appeal quashed and case remanded in order that appellants may file their answer to appellee’s complaint.

      . Timeliness was the only grounds asserted in appellee’s preliminary objections to appellants’ preliminary objections.

      . The Act of March 5, 1925 P.L. 23, § 1, 12 P.S. § 672 was repealed effective June 27, 1980. The appealability of questions of jurisdiction is limited under Pa.R.A.P. 311.


author: BECK, Judge:

text:
    440 A.2d 627
    COMMONWEALTH of Pennsylvania, v. Peggy Jean KRAFT, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 23, 1981.
    Filed Jan. 29, 1982.

      John R. Merrick, Public Defender, Charles M. J. Nester, Assistant Public Defender, West Chester, for appellant.
    James Freeman, District Attorney, West Chester, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and BECK, JJ.
   BECK, Judge:

Appellant Peggy Jean Kraft pleaded guilty to the charge of arson in the first degree, 18 Pa.S.C. § 3301(a) and, on October 27, 1980, was sentenced to “imprisonment in a State Institution for a period of not less than two years, nor more than four years, and to stand committed to the State Correctional Institution at Muncy for diagnosis and further assignment upon service of the sentence.”

Appellant timely filed a Motion to Modify Sentence. The Motion was denied, and this appeal from judgment of sentence followed. The appellant presents two questions on appeal.

(1) Was the sentence to confinement of not less than two years nor more than four years manifestly excessive as to inflict too severe a punishment?
(2) Did the sentencing judge abuse discretion by reference to the proposed sentencing guidelines which were not in effect at the time sentence was imposed?

In reviewing a sentence challenged as manifestly excessive, this court is required to review the sentence itself and the process by which the sentencing judge reached it.

If the sentencing judge followed the obligatory procedures enacted to assure careful, intelligent and informed sentencing, then this court may review the sentence only to ensure that there has not been an abuse of the wide discretion accorded the sentencing court: Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1977); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980). On the other hand, if the sentencing judge did not follow the obligatory procedures, then this court must remand for resentencing in accordance with the applicable statutes and rules: Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979); Commonwealth v. Bryner, 285 Pa.Super. 305, 427 A.2d 236 (1981); Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979). We find that the judge failed to follow the statutory mandates of the Sentencing Code. We therefore vacate judgment of sentence and remand for resentencing in accordance with this opinion.

42 Pa.C.S. § 9701 et seq. and Chapter 1400 of the Pennsylvania Rules of Criminal Procedure control the procedure by which sentences are imposed. Within those confines, it is recognized that the sentencing judge has broad discretion. However, the judge is limited by the enacted boundaries. In the instant case, the sentencing judge demonstrated a total failure to comply with the mandated procedures, inasmuch as he failed to follow:

(1) 42 Pa.C.S. § 9721(a): “In determining the sentence to be imposed the court shall . . . consider and select one or more of the following alternatives . . . . ” (emphasis added)
(1) an order of probation
(2) a determination of guilt without further penalty
(3) partial confinement
(4) total confinement
(5) a fine
(2) 42 Pa.C.S. § 9721(b): The sentence must be imposed for the minimum amount of “confinement that is consistent with the protection of the public, the gravity of the offense . . . and the rehabilitative needs of the defendant . . . . ”
(3) 42 Pa.C.S. § 9721(b): “The court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.”
(4) Pa.R.Cr.P. 1403(A)(2): “The sentencing judge shall place on the record his reasons for dispensing with the pre-sentence investigation report in any of the following instances:
(a) where incarceration for one year or more is a possible disposition under the applicable statutes . . .. ”

FAILURE TO CONSIDER ALTERNATIVES IN SENTENCING

The sentencing judge failed to consider sentencing alternatives other than total confinement. The record is devoid of any indication that he considered probation or partial confinement, inter alia, as provided in the statute.

In the Sentencing Code, the Legislature established standards for a court to observe when imposing sentence. Section [9722] ‘while not controlling the discretion of the court,’ lists twelve grounds which ‘shall be accorded weight in favor of an an order of probation . .. ’ Section [9725] directs the court to consider ‘the nature and circumstances of the crime and the history, character, and condition of the defendant . . . ’ before imposing total confinement.

Commonwealth v. Butch, supra, 487 Pa. at 32, 407 A.2d 1302.

The Court established that failure by the lower court to consider the broad range of sentencing alternatives constituted reversible error, particularly where, as here, the sentencing court based its decision solely on the nature of the crime without regard for factors individual to the offender.

FAILURE TO CONSIDER FACTORS INDIVIDUAL TO THE OFFENDER

The Pennsylvania Supreme Court, in Commonwealth v. Martin, supra, also emphasized that sentencing may not focus solely on the nature of the crime, holding that selection of the appropriate sentence must include consideration of factors individual to the offender.

The sentence must be imposed for the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. See [42 Pa.C.S. § 9721(b) ]. At least two factors are crucial to such determinations— the particular circumstances of the offense and the character of the defendant.

Id., 466 Pa. at 133, 351 A.2d 650. See also Commonwealth v. Riggins, 474 Pa. 115, 133 n. 24, 377 A.2d 140, 149 n. 24 (1977) (Plurality opinion); Commonwealth v. Kostka, 475 Pa. 85, 92 n. 8, 379 A.2d 884, 888 n. 8 (1977); Commonwealth v. Landi, supra, 421 A.2d at 443.

The sentencing judge is required to evaluate the character of the defendant as well as the gravity of the offense. It is clear that in the instant case the judge failed to do so. He characterized the defendant as dangerous without adequate foundation—indeed with unopposed evidence to the contrary. He stated, “You are a danger to the public. Incarceration is called for and incarceration shall be ordered.” The judge dismissed the reports of two psychiatrists who recommended that the defendant not be incarcerated by stating that he did not understand them, “in view of the [defendant’s] conduct . . . . ”

The sentencing record does not reveal that the judge took account of the fact that the defendant was a 41-year old mother of two with no prior criminal record and a tragic recent personal life, including the accidental death of her teen-aged son. The circumstances of her son’s death plus the recent beatings and abuse by the man with whom she lived left her adrift, confused and depressed, unable to hold a job. Prior to the death of her son, she worked in a responsible position for over eight years. On the night of the incident in question, she was at a bar with her boyfriend drinking fairly steadily for four or five hours. She then went to the apartment she had shared with him, put a lit match on the ironing board, and left, going to the home of her mother.

While it is essential for the judge to place information on the record as to the factors he considered and gave weight to in sentencing, it is not incumbent on him to note each and every factor which may or may not have entered into his determination in sentencing.

In the present instance, there is no suggestion in the record that the sentencing judge considered or accorded weight to the individual factors set forth in the Sentencing Code, 42 Pa.C.S. § 9701 et seq., factors present in this case “which shall be accorded weight in favor of probation” under 42 Pa.C.S. § 9722, to wit:

That there were substantial grounds tending to excuse or justify the criminal conduct of defendant, though failing to establish a defense;

That defendant has no criminal record;

That defendant is particularly likely to respond affirmatively to probationary treatment.

FAILURE TO DISCLOSE REASONS FOR THE SENTENCE IMPOSED

The sentencing judge failed to disclose reasons for the sentence imposed, other than his conclusionary assertion that the defendant was “dangerous.” Such a statement falls short of meeting the requirements of 42 Pa.C.S. § 9721(b): Commonwealth v. Bryner, supra, 285 Pa.Super. 308, 427 A.2d at 237. And the mere presence in the record of evidence or testimony upon which the sentencing judge could have relied does not meet the requirement that the judge state what it was that the court did rely on in imposing sentence: Commonwealth v. Wicks, supra.

The policy behind requiring the sentencing judge to disclose in open court the reasons for the sentence is to make public “the thought process by which he arrives at a particular appropriate sentence.” Commonwealth v. O’Brien, 282 Pa.Super. 193, 422 A.2d 894, 895 (1980). It is a safeguard against arbitrary decisions and prevents consideration of improper and irrelevant factors. It provides the appellate court with a basis on which to understand and review the sentencing court’s decision. The judge’s thought process should demonstrate that he or she reflected upon the standards established in the Sentencing Code.

DISPOSITION

For the reasons stated above, the judgment of sentence is vacated and the case is remanded for resentencing in accordance with this opinion.

CAVANAUGH, J., concurs in the result.

      . Appellee argues that appellant has waived any right to assert that the sentence is manifestly excessive by a failure to use those particular words in the Motion to Modify Sentence. We find that the language used in the Motion to Modify clearly raised this issue and reject appellee’s waiver argument.

      . In light of our decision, we need not consider appellant’s claim that a reference to proposed Guidelines for Sentencing as an aid in sentencing constitutes an abuse of discretion.

      . “It is not our province to guess at the lower court’s reasons for the sentence, and we must not substitute our thought processes for what might have been the thought processes of the lower court.” Commonwealth v. Wicks, supra, 265 Pa.Super. 314, 401 A.2d at 1227.

      . See also Pa.R.Cr.P. 1405(b).

      . Dr. Robert Sadoff recommended, “I would strongly urge that she not be placed in prison.” Dr. Leo Colton Freeman stated, “She needs continued support from public and social agencies.”

      . In light of the defendant’s guilty plea, in which the colloquy omitted any discussion of available possible defenses, we do not know whether the defendant’s diminished capacity resulting from her mental state and her use of alcohol just prior to the act would have been found, in a jury trial, to establish a defense or to have reduced the crime to Recklessly Endangering Another Person, but they were clearly factors to be accorded weight in the sentencing process under § 9722(4).

      . Other factors not reviewed by the sentencing judge include, inter alia, the fact that appellant did plead guilty and express extreme remorse and distress at the results of her act.

      . See also Commonwealth v. Wicks, supra, where mere reference to the code provisions without articulation of reasons was held to be insufficient, and compare Commonwealth v. Wareham, 259 Pa.Super. 527, 393 A.2d 951 (1978) where articulation of reasons was held to be sufficient even though the code provisions were not specifically cited.


text:
    440 A.2d 630
    COMMONWEALTH of Pennsylvania v. Elizabeth HUBERT, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1981.
    Filed Jan. 29, 1982.
    Wieand, J., concurred in result.

      William Scarpitti, Erie, for appellant.
    Paul Susko, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   BECK, Judge:

Appellant, Elizabeth Hubert, was tried without a jury for the offense of Retail Theft, a summary offense, 18 Pa.C.S.A. § 3929. She was fined $15. She contends she was denied a fair and impartial trial in the lower court because the judge disclosed his conclusion prior to the completion of the case. We do not find merit in the appellant’s argument and we affirm the lower court.

A person is guilty of a Retail Theft if he or she “transfers any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment from the container in or on which the same shall be displayed to any other container with intent to deprive the merchant of all or some of the full retail value thereof . . . . ” 18 Pa.C.S.A. § 3929(a)(3). See also Commonwealth v. Shapiro, 223 Pa.Super. 15, 297 A.2d 161 (1972).

The appellant in her testimony admitted that she put a package of razor blades and a small jar of dried roast beef in her purse. She further admitted that at the time she transferred these items to her purse, she did not intend to pay for them. She added, however, that she then felt embarrassed and intended to put them back or tell a clerk about them. She was apprehended before she did either.

The appeal is based upon the appellant’s contention that the presiding judge denied her a fair and impartial trial when he disclosed his conclusion prior to completion of defendant’s case. After appellant had admitted the taking and the concealment with intent not to pay for the items, the following exchange, which is the subject of this appeal, took place:

MR. SCARPITTI (appellant’s counsel):
Q. Have you had trouble with Super Duper in the past on occasions?
A. Several times.
Q. What were those problems?
JUDGE MC CLELLAND: No, I’m not interested in that. I mean she’s admitted it.
MR. SCARPITTI: Well, your Honor, our defense is renunciation.
JUDGE MC CLELLAND: No, no, I’m not going to do anything to her, but I’m not going to find her not guilty under these circumstances. She’s admitted it.
MR. SCARPITTI: But, Your Honor, our defense would be that even though she had put them in her purse, she intended to put them back and she had not gone through the cashiers yet.
JUDGE MC CLELLAND: It doesn’t appeal to me in the least. You can say it if you wish to, but after she admits it, there’s no way she’s not going to be found not guilty. I don’t intend to put her in jail or anything.
MR. SCARPITTI: I understand your Honor, but it would be our position that renunciation—
JUDGE MC CLELLAND: That may be true, but I don’t believe her. I heard what she said, I don’t believe she intended to put them back. (N.T. 8, 9)

After this exchange, appellant’s counsel requested and was granted permission to continue with the testimony. Appellant testified that she did not intend to take the items out of the store. She testified that she decided to put the items back “[a]s soon as I had done it,” that she “wanted” to tell the clerk that she had taken the items, return the items, clear her conscience and leave the store. (N.T. 10).

In addition, the defense then called four persons who attempted to buttress appellant’s renunciation defense by testifying to her reputation for truthfulness in the community*

After the defense rested its case, Judge McClelland stated, “I don’t doubt she’s [the appellant] a nice woman, and I don’t doubt that she’d ever do anything of that sort again . . . but I can’t overlook it, when she admits she did it. Even if she’s the finest woman in the world, I believe all you people, you can’t just say not guilty and set her free.” (N.T. 16).

It certainly would have been preferable for the trial judge to have accepted the testimony of renunciation, or in the alternative, to have rejected that testimony as unnecessary without stating his personal views as to the appellant’s guilt or innocence. See Commonwealth v. Harrison, 228 Pa.Super. 412, 323 A.2d 72 (1974); Commonwealth v. Myma, 278 Pa. 505, 123 A. 486 (1924). These statements by the trial judge, however, did not deny the appellant a fair and impartial trial.

The trial judge would have been justified in refusing to hear any testimony on renunciation, because the crime of Retail Theft precludes the defense of renunciation. The plain language of the statute, which seeks to deter shoplifting, provides that the crime of Retail Theft is complete at the moment when a person takes possession of an item with the requisite intent. Moreover, the Pennsylvania Crimes Code establishes renunciation as a defense to only three crimes, and each of these crimes, Criminal Attempt, Criminal Solicitation, and Criminal Conspiracy, is designated as an inchoate crime. 18 Pa.C.S.A. §§ 901(c), 902(b), 903(f). Commonwealth v. Gaithers, 13 D.&C.3rd 668 (1978), aff’d per curiam, 271 Pa.Super. 624, 422 A.2d 683 (1979).

This court concludes that the judge heard appellant’s full testimony on the question of her guilt or innocence. The testimony as to renunciation was irrelevant to that issue. The judge, however, considered the appellant’s renunciation testimony, including that of her character witnesses, in imposing her penalty. He fined appellant $15 for a summary offense. By statute, he was empowered to fine her up to $300. 18 Pa.C.S.A. § 1101(6).

The order of the court below is affirmed.

WIEAND, J., concurs in the result.

      . In providing for a defense of renunciation to the crimes of Criminal Attempt, Criminal Solicitation and Criminal Conspiracy, the Pennsylvania Crimes Code follows the Model Penal Code, §§ 5.01(4), 5.02(3), 5.03(6). Neither the Model Penal Code nor the Crimes Code provides for renunciation as a defense to any other crime.


author: PER CURIAM:

text:
    440 A.2d 632
    COMMONWEALTH of Pennsylvania ex rel. George D. DONACHY v. Robert R. KEARNEY, Sheriff of Northumberland County. Appeal of: the COMMONWEALTH OF PENNSYLVANIA.
    Superior Court of Pennsylvania.
    Argued May 11, 1981.
    Filed Jan. 29, 1982.

      Thomas E. Boop, Assistant District Attorney, Sunbury, for Commonwealth, appellant.
    Charles H. Saylor, Sunbury, for appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   PER CURIAM:

The Commonwealth contends that the lower court erred in granting appellee’s petition for a writ of habeas corpus in these extradition proceedings. We cannot reach the merits of its contention, however, because the lower court has not prepared an opinion in support of its order. Upon receiving a notice of appeal from an order he has entered, a trial judge must generally file an opinion stating the reasons for his order “if the reasons do not already appear of record.” Pa.R.A.P. 1925(a). See also Mims v. City of Philadelphia, 267 Pa. Superior Ct. 129, 406 A.2d 552 (1979); Dresner v. Povlow, 267 Pa.Superior Ct. 89, 406 A.2d 350 (1979). In its order, the lower court stated “that the Commonwealth failed to meet its burden of proving all the essential requirements necessary prior to the entry of an Order of Extradition . ... ” Because it gave not even the slightest suggestion as to how the Commonwealth’s proof was lacking, we cannot view that order as substantially complying with rule 1925(a). See Nigrelli v. Cody, 281 Pa.Superior Ct. 156, 161, 421 A.2d 1195, 1198 (1980). “Only by this remand can the issues be properly framed after consideration and explanation by the court below.” Dresner v. Povlow, supra, 267 Pa.Super. at 90, 406 A.2d at 351. Accordingly, we must remand to the court below for preparation of an opinion in support of its order. Upon completion, the record shall be returned to this Court, where argument will be rescheduled and new briefs submitted by the parties. Mims v. City of Philadelphia, supra, 267 Pa.Super. at 131, 406 A.2d at 553.

So ordered.


text:
    440 A.2d 633
    COMMONWEALTH of Pennsylvania, v. Clarence BILLETT, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 12, 1980.
    Filed Jan. 29, 1982.

      Claude V. Falkenhan, Zelienople, for appellant.
    Howard C. Klebe, Assistant District Attorney, New Castle, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   PER CURIAM:

Clarence Billett, appellant herein, entered a plea of guilty in January 1977 on thirteen counts of forgery and was sentenced on February 15, 1977 to a term of imprisonment of not less than three and one-half nor more than seven years, and other lesser concurrent sentences.

On direct appeal, he challenged the voluntariness of his guilty plea without having first filed a petition with the lower court to withdraw that plea as required by Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140 (1975). A review of the record showed, however, that there were no warnings given to appellant of the consequences on appeal of his failure to file a petition to withdraw his guilty plea prior to challenging its validity. In an opinion per curiam, dated December 28, 1978, we vacated the judgment of sentence and remanded the case for the filing of a petition nunc pro tunc.

The lower court then set a hearing for August 13, 1979 on appellant’s application for leave to withdraw his plea of guilty. On August 10, 1979, defendant moved to continue the hearing and his motion was denied and he has taken an appeal back to our court from the denial of his motion to continue the hearing. Obviously, the appeal is interlocutory and will be quashed.

Appeal quashed.

      . In Commonwealth v. Pollick, 420 Pa. 61, 215 A.2d 904 (1966), Justice (later Chief Justice) Eagen wrote:
      Is this order appealable?
      It is established beyond argument that an interlocutory order is not appealable, unless expressly made so by statute: Goldstein v. Stadler, 417 Pa. 589, 208 A.2d 850 (1965); Commonwealth v. O’Brien, 389 Pa. 109, 132 A.2d 265 (1957); Sullivan v. City and County of Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954); and, Petition of quay, 189 Pa. 517, 42 A. 199 (1899).
      It is likewise well established that as a general rule the defendant in a criminal case may appeal only from the judgment of sentence: Commonwealth v. Wright, 383 Pa. 532, 119 A.2d 492 (1956). For example, a defendant may not appeal from an order overruling a demurrer to the Commonwealth’s evidence: Commonwealth v. Kephart, State Treasurer (No. 1), 80 Pa.Super. 315 (1923); nor from an order refusing to quash an indictment: Commonwealth v. O’Brien, supra; nor from an order denying a request to suppress evidence: Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). As stated in the early case of Marsh v. Commonwealth, 16 S. & R. 318 (1827), ‘[I]t is time enough to permit him to arrest the course of the criminal law, when he has suffered actual injury.’ The issue here, therefore, is whether or not the Act of 1957, supra, creates an exception to the established rule and permits a defendant to appeal from an order (which is patently interlocutory) refusing his discharge after motion filed under the act. We conclude it does not.

         This rule is not inflexible, and will yield in exceptional cases of great public interest to safeguard basic human rights. See, Commonwealth v. Haimbach, 151 Pa.Super. 581, 30 A.2d 653 (1943), and Commonwealth v. Kilgallen, 175 Pa.Super. 52, 103 A.2d 183 (1954). However, we are not here concerned with such ‘exceptional’ circumstances.

        Id., 420 Pa. at 63, 215 A.2d at 905-6.


text:
    440 A.2d 635
    COMMONWEALTH of Pennsylvania, v. Samuel FOSTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Jan. 29, 1982.
    Richard M. Lovenwirth, Pottstown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and DiSALLE, JJ.
   PER CURIAM:

Appellant, Samuel Foster, appeals from the lower court’s denial, after hearing, of his requested relief under the Post-conviction Hearing Act. (hereinafter P.C.H.A.) Appellant claims that his trial and appellate counsel were ineffective for failing to raise the defense of Agreement on Detainers, 42 Pa.C.S.A. § 9101, eff. June 27, 1978, a reenactment of the Act of September 8, 1959, P.L. 829, No. 324, § 1, 19 P.S. § 1431.

The salient facts are: The offense for which defendant was convicted occurred in Upper Moreland Township, Montgomery County, on July 10, 1972, and a criminal complaint was lodged against defendant on July 12, 1972. The day before, July 11, 1972, petitioner had been arrested on another offense in New Jersey. He was subsequently tried on the New Jersey offense, convicted and transferred to Federal custody. In July of 1972, the Upper Moreland Police Department lodged detainers against petitioner under the name Ralph Hargrove, a/k/a Samuel Foster, in Cinnaminson Township, New Jersey, but the department was not informed until September, 1973 that petitioner was incarcerated in the federal penitentiary in Petersburg, Virginia. On October 31,1973, petitioner was for some reason delivered to the Philadelphia Detention Center apparently on the order of Judge Blake of Philadelphia. According to stipulation by counsel, however, petitioner was in fact brought into Philadelphia on Montgomery County’s detainer. Nevertheless, Upper Moreland authorities were not informed of his presence in Philadelphia until late December, 1973 or early January, 1974.

Appellant was then arraigned on the subject charges on January 3, 1974. A preliminary hearing was scheduled for January 10, 1974, but was postponed. Subsequently, on April 8,1974, petitioner was sent back to Petersburg, Virginia, pursuant to an order issued by Judge Blake of Philadelphia. There was a gap in the chronology of events presented at the P.C.H.A. hearing, but it is apparent from the fact that a bail bond was issued on May 28, 1974, and from the testimony of Albert Deutsch, Esq., petitioner’s trial counsel, that petitioner was released from Federal custody some time between April 8, 1974 and May 28, 1974, and voluntarily returned to Pennsylvania. The preliminary hearing was then held on July 9, 1974. On August 21, 1974, defendant appeared before Judge Smillie of Montgomery County, and agreed to a postponement of trial until October, 1974 so that his trial could be consolidated with a co-defendant’s trial. A consolidated trial commenced on October 2, 1974, but on October 3, 1974, a severance was ordered. Defendant’s trial proceeded, resulting in verdicts of guilty on October 7, 1974.

Specifically, appellant claims that his trial and appellate counsel were ineffective for failing to raise the defense of Article IV(e) of the Agreement on Detainers. Article IV(e) states that

[I]f trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment . . ., such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Because of serious omissions in the testimony of the P.C.H.A. hearing, we cannot at this juncture decide appellant’s claim of ineffectiveness of counsel.

For example, why was the petitioner-appellant sent back to the federal penitentiary in Petersburg, Virginia, discharged and then voluntarily returned to Pennsylvania?

Did petitioner request the return to Virginia thus perhaps altering his right to a trial before his return? More importantly, was this (as the record tends to suggest) whole area part of petitioner’s admitted strategy to “buy” time and “rehabilitate” himself in the eyes of the Pennsylvania court? Indeed, a careful reading of the trial transcript reveals that during the P.C.H.A. hearing below, trial counsel himself was never asked the crucial question of why the right to trial before return was not raised, even thought this question was asked of others during the same proceeding.

Because of this glaring omission in the P.C.H.A. testimony, any decision at this point would be based in large part on speculation as to why counsel omitted this argument. We cannot assume that there can be no reason to omit and summarily order the discharge of a man found guilty of several serious crimes (and with a history of other crimes). On the contrary, there may have been good reasons, based on sound inferences drawn from the record and based on the clear opinion of the court below—an opinion written by one who had the opportunity to personally observe the crucial parties and their testimony and which is to be accorded great deference under the law of our Commonwealth.

Therefore, we are remanding for further testimony as to the reasons for counsel’s actions since it is not absolutely clear from the record that no reasonable basis existed for those actions.

This court shall retain jurisdiction.

Decision was rendered prior to DiSALLE, J., leaving the bench of the Superior Court of Pennsylvania.

      . Act of January 25, 1966, P.L. (1965) 1580, as amended 19 P.S. § 1180-1, et seq. (Supp. 1981-82)

      . Although appellant raises numerous allegations on this appeal, we regard this as the most crucial.

      . The record does not indicate how the Philadelphia Court system became involved, however, the P.C.H.A. Court speculated that Philadelphia wanted to dispose of its charges involving this defendant.


text:
    July 2, 1982.
    435 A.2d 1304
    Commonwealth v. Barringer, Appellant.
    Submitted September 13, 1979.
    John S. Di Giorgio, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WATKINS and HOFFMAN, JJ.
   Judgment of sentence of the lower court is affirmed.


text:
    435 A.2d 1304
    Commonwealth v. Campbell, Appellant.
    Petition for Allowance of Appeal Denied Nov. 30, 1981.
    Argued June 10, 1980.
    Janet W. Mason, Assistant Public Defender, for appellant; Donald A. Mancini, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Judgment affirmed.


text:
    435 A.2d 1304
    Commonwealth v. Clark, Appellant.
    Submitted September 11, 1980.
    John W. Packel, Chief, Appeals, Assistant Public Defender, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   The judgment of sentence is hereby affirmed.


text:
    435 A.2d 1305
    Commonwealth v. Faust, Appellant.
    Submitted June 13, 1980.
    Arthur J. King, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Order affirmed.


text:
    435 A.2d 1305
    Commonwealth v. Glasshofer, Appellant.
    Submitted March 21, 1980.
    John H. Lewis, Jr., for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.

LIPEZ, J., filed a memorandum concurring opinion.


text:
    435 A.2d 1305
    Commonwealth v. Hancox, Appellant.
    Petition for Allowance of Appeal Denied Nov. 6, 1981.
    Submitted April 16, 1980.
    M. Dan Mason, for appellant; F. Walter Bloom, III, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1306
    Commonwealth v. Hartwig, Appellant.
    Submitted June 13, 1980.
    Stewart J. Green-leaf, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Judgment affirmed.

CAVANAUGH, J., concurred in the result.


text:
    435 A.2d 1306
    Commonwealth v. Morris, Jr., Appellant.
    Argued June 9, 1980.
    Douglas Breidenbach, Assistant Public Defender, for appellant; Joseph Hylan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Order affirmed.


text:
    435 A.2d 1306
    Commonwealth v. Nelson, Appellant.
    Submitted March 4, 1981.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Michael H. Ranck, District Attorney, for appellee.
    Before CERCONE, P. J., and WICKERSHAM and BRO-SKY, JJ.
   Judgment of sentence of the lower court is affirmed.


text:
    435 A.2d 1306
    Commonwealth v. Paull, Appellant.
    Submitted September 11, 1980.
    Kenneth Pauli, in propria persona, appellant; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   Order affirmed.


text:
    435 A.2d 1307
    Commonwealth v. Spina, Appellant.
    Reargument Denied Sept. 25, 1981.
    Argued September 10, 1980.
    Andrew G. Gay, for appellant; Jean Marie Celia, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1307
    Commonwealth v. Tancini, Appellant.
    Submitted December 5, 1980.
    Arthur J. King, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, SHERTZ and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1307
    Commonwealth v. Upsher, Appellant.
    Petition for Allowance of Appeal Denied Nov. 17, 1981.
    Submitted November 14, 1980.
    Paulette J. Balogh, for appellant; Kathryn L. Simpson, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and SHERTZ and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    437 A.2d 1016
    Cooper v. Western Penna. National Bank, Appellant.
    Reargument Denied Dec. 10, 1981.
    Petition for Allowance of Appeal Denied Jan. 26, 1982.
    Argued April 14, 1980.
    Burton D. Morris, for appellant; Thomas L. Cooper, for appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Judgment affirmed.


text:
    435 A.2d 1308
    Harper et al. v. Bank et al., Appellants.
    Argued April 15, 1981.
    Gary F. Selway, for appellants; Mary Ann Rapp Durkin, for appellees.
    Before CAVANAUGH, JOHNSON and SHERTZ, JJ.
   Order affirmed.


text:
    435 A.2d 1308
    In Re Adoption of Ann Olivia Hlabangana. Appeal of Oscar H. Harris and Barbara A. Harris. Victor Hlabangana, participating party.

      Argued September 10, 1980.
    Maxwell P. Gorson, for appellant; Alii Majeed, for participating party, Victor Hlabangana.
    Before CERCONE, P. J. and WICKERSHAM and VAN der VOORT, JJ.
   The order of the lower court is affirmed.

VAN der VOORT, J., filed a memorandum dissenting opinion.


text:
    435 A.2d 1308
    Kulla v. Natco Drilling Honing etc., et al. Appeal of National Automatic Tool Company, Inc., Preliminary Objector.
    Argued April 22, 1981.
    William F. Sullivan, Jr., for appellant; Nicholas J. Lisi, for Kulla, appellee; Roger B. Wood, for Brakemaster Co. & Edgcomb Steel, appellees.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   The order of the court below is hereby affirmed on the comprehensive opinion of the Honorable Charles A. Lord of the Court of Common Pleas of Philadelphia County.


text:
    435 A.2d 1308
    Ralston-Purina v. International Brotherhood of Electrical Workers, Appellants.
    Petition for Allowance of Appeal Denied Oct. 30, 1981.
    Argued December 4, 1980.
    Charles W. Johnston, Jr., for appellants; Jason S. Shapiro, did not file a brief on behalf of appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Order affirmed.


text:
    435 A.2d 1309
    Thelin et al. v. Mead et al., Appellants.
    Argued November 10, 1980.
    Richard A. Leuthold, for appellants; Bernard J. Hessley, for appellees.
   Decree affirmed.


text:
    435 A.2d 1309
    Thompson v. Claycomb, Appellant.

      Argued February 23, 1981.
    Frederick B. Gieg, Jr., for appellant; Ronald Keeler, for appellee.
    Before SPAETH, JOHNSON and WIEAND, JJ.
   Order affirmed.


text:
    435 A.2d 1309
    Zeglin et al., Appellants, v. Farm Family Mutual Insurance Co.
    Reargument Denied Oct. 20, 1981.
    Petition for Allowance of Appeal Granted Dec. 7, 1981.
    Argued November 11, 1980.
    Stuart J. Horner, Jr., for appellants; Rabe F. Marsh, III, for appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   Order affirmed.


text:
    July 10, 1981.
    435 A.2d 1309
    Commonwealth v. Keefe, Appellant.
    Argued January 26, 1981.
    Clement E. Kisailus, for appellant; Chester Muroski, District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1310
    Commonwealth v. Makay, Appellant.
    Submitted June 13, 1980.
    Ronald Keeler, for appellant; Gordon E. Stroup, District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1310
    Commonwealth v. Mitchell, Appellant.
    Submitted December 5, 1980.
    Elaine DeMasse, Assistant Public Defender, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   Judgment of sentence of January 29, 1980, is affirmed.

POPOVICH, J., concurred in the result.


text:
    435 A.2d 1310
    Commonwealth v. Osborne, Appellant.
    Submitted December 6, 1979.
    Robert Lee Moore, Assistant Public Defender, for appellant; J. Michael Morrissey, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and ROBERTS, JJ.

       Justice Samuel J. Roberts of the Supreme Court of Pennsylvania is sitting by designation.

   Judgment of sentence affirmed.

ROBERTS, J., concurred in the result.


text:
    435 A.2d 1311
    Commonwealth v. Riebow, Appellant.
    Submitted September 11, 1980.
    John W. Packel, Chief, Appeals, Assistant Public Defender, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    435 A.2d 1311
    Commonwealth v. Summerford, Appellant.
    Submitted September 11, 1980.
    Michael J. Cam-marano, Assistant Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1311
    Commonwealth ex rel. Wright v. Wright, Appellant.
    Argued May 27, 1981.
    David H. Kubert, for appellant; Germaine Ingram, for appellee.
    Before WICKERSHAM, McEWEN and WIEAND, JJ.
   Order affirmed.


text:
    435 A.2d 1311
    Feingold, Appellant v. Mueller, etc. et al.

      Argued December 4, 1980.
    Allen Feingold, for appellant; Martin N. Ghen, for Mueller, appel-lee; William M. Shields, for Thunderbird, appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    435 A.2d 1312
    Howarth, Appellant v. Howarth.
    Submitted May 20, 1981.
    Mark J. Goldberg, for appellant; J. Kerrington Lewis, for appellee.
    Before MONTGOMERY, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    435 A.2d 1312
    Huss v. Huss, Jr., Appellant.
    Argued December 5, 1980.
    Peter J. Fagan, for appellant; Maureen E. Hogan, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Order affirmed.


text:
    437 A.2d 1016
    In the Matter of Donna Gaerttner, Julie Gaerttner, Angela Gaerttner, Donald Gaerttner and George Gaerttner, minors. Appeal of Donald Gaerttner. Appeal of Rose Gaerttner.
    Reargument Denied Dec. 14, 1981.
    Petition for Allowance of Appeal Denied Feb. 24, 1982.
    Submitted May 20, 1981.
    John E. Cooper, for Donald Ga-erttner, appellant (at Nos. 694, 774, 775, 776 and 777) and participating party (at Nos. 734, 735, 736, 737 and 738); Alois Lubiejewski, for Rose Gaerttner, appellant (at Nos. 734, 735, 736, 737 and 738) and participating party (at Nos. 694, 774, 775, 776 and 777); Dennis Kuftic, for Donna Gaerttner, Julie Gaerttner, Angela Gaerttner, Donald Ga-erttner and George Gaerttner, appellees; James E. Bever-idge, for Childrens Service, participating party.
    Before MONTGOMERY, HOFFMAN and VAN der VOORT, JJ.
   Orders affirmed.


text:
    435 A.2d 1312
    Kowaleski v. Kowaleski, Appellant.

      Submitted May 20, 1981.
    H. Barry Bier, for appellant; Charles E. Weston, for appellee.
    Before MONTGOMERY, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    435 A.2d 1312
    Security Insurance Co. of Hartford v. Kutner Buick, Appellant.
    Argued September 8, 1980.
    Wilbur Greenberg, for appellant; Martin J. Kilstein, for appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   Judgment affirmed.


text:
    July 17, 1981.
    435 A.2d 1313
    Brody et al., Appellants v. Acme Markets Inc., et al.
    Argued September 8, 1980.
    Jeffrey L. Rudnick, for appellants; James M. Marsh, for Acme, appellee; Alan Belfus, did not file a brief on behalf of Cheltenham, appel-lee.

      Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    435 A.2d 1313
    Bryant v. Kelly’s Corner Discount Department Store, Appellant.
    Petition for Allowance of Appeal Denied Nov. 6, 1981.
    Argued December 5, 1980.
    Catharine Jasons, for appellant; Alan B. Epstein, for appel-lees.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   Order affirmed on the opinion of the lower court.


text:
    435 A.2d 1313
    Commonwealth, v. Angelucci, Appellant.
    Submitted February 2, 1981.
    Norris E. Gelman, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, for appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1314
    Commonwealth v. Angelucci, Appellant.
    Submitted April 21, 1981.
    Norris E. Gelman, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   The order of the lower court, denying relief under the Post Conviction Hearing Act is affirmed.


text:
    435 A.2d 1314
    Commonwealth v. Barnard, Appellant.
    Submitted April 21, 1981.
    Charles M. J. Nester, Assistant Public Defender, for appellant; James Freeman, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Judgments of sentence affirmed.


text:
    435 A.2d 1314
    Commonwealth v. Belden, Appellant.
    Submitted November 14, 1980.
    Jesse E. Shearin, for appellant; Charles S. Hersh, Assistant District Attorney, for Commonwealth, ap-pellee.
    Before CERCONE, P. J., and SHERTZ and WIEAND, JJ.
   Order affirmed.


text:
    435 A.2d 1314
    Commonwealth v. Bell, Appellant.
    Submitted September 11,1980.
    Arthur J. King, Assistant Public Defender, for appellant; John J. Burfete, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WICKERSHAM and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1315
    Commonwealth v. Bownes, Appellant.
    Submitted December 5, 1980.
    Nicholas A. Clemente, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, SHERTZ and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1315
    Commonwealth v. Busch, Appellant.
    Submitted April 22, 1981.
    Frederick S. Wolf, for appellant; David J. Brightbill, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Order of the lower court is affirmed.


text:
    435 A.2d 1315
    Commonwealth v. Carbone, Jr., Appellant.

      Submitted November 14, 1980.
    Wendell G. Freeland, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and SHERTZ and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1316
    Commonwealth v. Coda, Appellant.
    Submitted November 16, 1979.
    Alphonse P. Lepore, Jr., for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before PRICE, HESTER and CAVANAUGH, JJ.
   The order of January 4, 1979 is affirmed.

CAVANAUGH, J., concurred in the result.


text:
    435 A.2d 1316
    Commonwealth v. Cugini, Appellant.

      Submitted December 5, 1980.
    Elaine DeMasse, Assistant Public Defender, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   Judgment of sentence dated January 4, 1980 is affirmed.


text:
    435 A.2d 1316
    Commonwealth v. Guest, Appellant.
    Petition for Allowance of Appeal Denied Jan. 29, 1982.
    Submitted April 20, 1981.
    Douglas M. Johnson, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Order affirmed.


text:
    435 A.2d 1316
    Commonwealth v. Harris, Appellant.
    Petition for Allowance of Appeal Denied Feb. 25, 1982.

      Submitted December 5, 1980.
    Elaine DeMasse, Assistant Public Defender, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   Judgment of sentence dated December 17, 1979 is affirmed.

POPOVICH, J., dissented.


text:
    435 A.2d 1317
    Commonwealth v. Henry, Appellant.
    Submitted January 19, 1981.
    Thomas G. Klingen-smith, Assistant Public Defender, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before HESTER, DiSALLE and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1317
    Commonwealth v. Hudacko, Appellant.

      Submitted April 21, 1981.
    Thomas J. Munley, Assistant Public Defender, for appellant; Ernest D. Preate, Jr., District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1317
    Commonwealth v. Jackson a/k/a Ray, Appellant.
    Petition for Allowance of Appeal Denied Nov. 9, 1981.
    Submitted November 14, 1980.
    Donald R. Calaiaro, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before PRICE, DiSALLE and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1318
    Commonwealth v. Jones, Appellant.

      Submitted April 22, 1981.
    Robert R. Redmond, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Order of the court below affirmed.


text:
    435 A.2d 1318
    Commonwealth v. Levenite, Appellant.
    Petition for Allowance of Appeal Denied Nov. 30, 1981.
    Argued January 27, 1981.
    Janet W. Mason, Assistant Public Defender, for appellant; Donald A. Mancini, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   Judgment of sentence dated June 24, 1980 is affirmed.


text:
    435 A.2d 1318
    Commonwealth v. Matsinger, Appellant.
    Petition for Allowance of Appeal Denied Nov. 30, 1981.

      Submitted June 13, 1980.
    Frank J. Marcone, for appellant; Frank T. Hazel, for Commonwealth, appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1319
    Commonwealth v. Miller, Appellant.
    Submitted November 14, 1980.
    Charles C. Gentile, for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, ap-pellee.
    Before PRICE, DiSALLE and MONTEMURO, JJ.
   Judgment of sentence affirmed.

PRICE, J., dissented.


text:
    435 A.2d 1319
    Commonwealth v. Morrelli, Appellant.
    Submitted November 14, 1980.
    Joseph G. Kanfoush, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before PRICE, DiSALLE and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1319
    Commonwealth v. O’Brien, Appellant.
    Submitted January 5, 1981.
    Bruce S. Miller, Assistant Public Defender, for appellant; Chester B. Muroski, District Attorney, for Commonwealth, appellee.
    Before PRICE, WIEAND and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1319
    Commonwealth v. Oliver, Appellant.
    Petition for Allowance of Appeal Denied Jan. 15, 1982.
    Submitted December 5,1980.
    William J. Perrone, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, SHERTZ and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1320
    Commonwealth v. Smith, Appellant.
    Submitted September 11, 1980.
    Albert J. Flora, Assistant Public Defender, for appellant; Chester B. Muroski, District Attorney, for Commonwealth, appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1320
    Commonwealth v. Sullivan, Appellant.
    Petition for Allowance of Appeal Granted, Sentence Vacated, Remanded Dec. 16, 1981.
    Argued March 3, 1980.
    Peter B. Foster, for appellant; Gary E. Hartman, District Attorney, submitted a brief on behalf of Commonwealth, appellee.

      Before CERCONE, P. J., and WATKINS and MONTGOMERY, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    435 A.2d 1320
    Commonwealth v. Tartaglia, Appellant.
    Argued January 19, 1981.
    Chester P. Confer, for appellant; David E. Fritchey, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, DiSALLE and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1321
    Commonwealth v. Turlish, Appellant.
    Submitted February 25, 1981.
    Salvatore J. Cucinotta, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and WIEAND, JJ.
   The order of the lower court is hereby affirmed.


text:
    435 A.2d 1321
    Commonwealth v. Turner, Appellant.
    Submitted November 14, 1980.
    Paulette J. Balogh, for appellant;
    Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1321
    Commonwealth v. Worley, Appellant.
    Argued March 6, 1980.
    Allen H. Smith, for appellant; John C. Uhler, District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before CERCONE, P. J., and WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    445 A.2d 194
    Georgian Apts., Inc. v. Kamin et ux., Appellants.
    Rehearing Denied Nov. 9, 1981 and Jan. 4, 1982.
    Argued April 16, 1980.
    Edward Goldberg, for appellants; David F. Alpern, for appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Judgment affirmed.


text:
    435 A.2d 1321
    Nassaux-Hemsley, Appellant v. Township of Southampton.
    Argued April 20, 1981.
    J. Justin Blewitt, Jr., for appellant; John McCrea, III, for appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Order of the lower court is affirmed.

WATKINS, J., filed a dissenting opinion.


text:
    435 A.2d 1322
    Thomas, etc. v. Shuman, Appellant.
    Argued April 20, 1981.
    Robert E. Bull, for appellant; C. Cleveland Hummel, for appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Order of the lower court is affirmed.


text:
    July 24, 1981.
    435 A.2d 1322
    A. F. T., Inc. v. Robert Builders, Inc., Appellant. Bethel Park Electric v. Robert Builders, Inc., Appellant.
    Submitted February 11, 1981.
    John A. Tumolo, for appellant; John F. Becker, for A. F. T., Inc., appellee; Thomas E. Lippard, for Bethel, appellee.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   Orders affirmed.


text:
    435 A.2d 1322
    Banks et al., Appellants v. Silver.
    Argued March 2, 1981.
    Herman Blumenthal, for appellants; Max Silver, appellee, in propria persona.
    Before CERCONE, P. J., ¿nd WICKERSHAM and BRO-SKY, JJ.
   Judgment and order affirmed.


text:
    435 A.2d 1323
    Chazak, Appellant v. Government Employees Insurance, Co.
    Argued September 9, 1980.
    Allen L. Feingold, for appellant; Marcy B. Tanker, did not file a brief on behalf of appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    435 A.2d 1323
    Commonwealth v. Brosnick, Appellant.
    Petition for Allowance of Appeal Denied Dec. 21, 1981.

      Submitted February 10, 1981.
    Alfred B. Bell, for appellant; Albert M. Nichols, District Attorney, for Commonwealth, appellee.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1323
    Commonwealth v. Dunois, Appellant.
    Petition for Allowance of Appeal Denied Oct. 30, 1981.
    Argued November 11, 1980.
    P. Andrew Diamond, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1323
    Commonwealth v. Elliott, Appellant.

      Submitted March 4, 1981.
    Gary S. Pronheiser, Assistant Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WICKERSHAM and BRO-SKY, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1324
    Commonwealth v. Fake, Jr., Appellant.
    Petition for Allowance of Appeal Denied Oct. 20, 1981.
    Submitted April 22, 1981.
    Keith L. Kilgore, for appellant; David J. Brightbill, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Appeal quashed.


text:
    435 A.2d 1324
    Commonwealth v. Fake, Jr., Appellant.

      Submitted April 22, 1981.
    Keith L. Kilgore, for appellant; David J. Brightbill, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Order of court affirmed.


text:
    435 A.2d 1324
    Commonwealth v. Jaszczak, Appellant.
    Petition for Allowance of Appeal Denied Nov. 6, 1981.
    Submitted September 11, 1980.
    Arthur J. King, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1325
    Commonwealth v. Rawls, Appellant.

      Argued September 11, 1980.
    Adam 0. Renfroe, submitted a brief on behalf of appellant; Franklin L. Noel, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WICKERSHAM and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1325
    Commonwealth v. Reesemen, Appellant.
    Argued November 11, 1980.
    James H. Owen, for appellant; George R. Kepple, District Attorney, for Commonwealth, appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1325
    Commonwealth v. Rowkosky, Appellant.

      Submitted March 16, 1981.
    David G. Metinko, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1325
    Commonwealth v. Selb, Appellant.
    Submitted March 21, 1980.
    Arthur J. King, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    435 A.2d 1326
    Commonwealth v. Sullivan, Appellant.
    Submitted January 14, 1981.
    Thomas P. Ruane, Jr., for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.

      Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   The judgment of sentence of the lower court is hereby affirmed.


text:
    435 A.2d 1326
    Commonwealth v. Veres, Appellant.
    Argued February 9, 1981.
    Herman M. Rodgers, for appellant; Charles Hersh, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   Judgment of sentence affirmed.

SHERTZ, J., concurred in the result.


text:
    435 A.2d 1326
    Commonwealth ex rel. Jamie Armstrong v. Donald D. Armstrong and Lucy M. Armstrong. Commonwealth ex rel. Daniel Armstrong v. Donald D. Armstrong and Lucy M. Armstrong. Appeal of Donald D. Armstrong.

      Argued November 11, 1980.
    Henry A. Hudson, Jr., for appellant; Lucy Armstrong, appellee, in propria persona.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   Orders affirmed.


text:
    435 A.2d 1327
    Commonwealth ex rel. Lodge v. Lodge, Appellant.
    Argued December 3, 1979.
    Emil L. Iannelli, for appellant; Robert 0. Baldi, for appellee.
    Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       President Judge Joseph F. O’Kicki, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.

   Order in the above-captioned case is affirmed.

SPAETH and CAVANAUGH, JJ., concurred in the result.


text:
    435 A.2d 1327
    Commonwealth ex rel. Saalfrank v. Saalfrank, Appellant.
    Argued December 1, 1980.
    Harold Diamond, for appellant; Sidney Ginsberg, did not file a brief on behalf of appellee.

      Before SPAETH, BROSKY and HOFFMAN, JJ.
   Order affirmed.


text:
    435 A.2d 1327
    Dziak, et ux., Appellants, v. Yurkovich v. Dziak.
    Petition for Allowance of Appeal Denied Feb. 26, 1982.
    Argued January 13, 1981.
    Charles Skomski, for appellants; Stephen P. McCloskey, for appel-lees.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   The order of the lower court is hereby affirmed.


text:
    435 A.2d 1328
    Groce, Appellant, v. Sears Roebuck and Co.
    Argued April 16, 1980.
    Linda L. Pretz, for appellant; Robert E. Wayman, for appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Order of the Court below affirmed.

LIPEZ, J., concurred in the result.


text:
    435 A.2d 1328
    Hubert, Appellant, v. Millville Mutual Insurance Co.
    Argued April 29, 1981.
    Paul D. Shafer, Jr., for appellant; Willis E. Schug, for appellee.
    Before CERCONE, P. J., and BROSKY and HOFFMAN, JJ.
   Order affirmed.


text:
    435 A.2d 1328
    In the Interest of Anthony Elliott, etc. Appeal of Anthony Elliott.
    Submitted December 5, 1980.
    Seth Weber, Assistant Public Defender, for appellant; Michael Kane, District Attorney, for appellee.
    Before CAVANAUGH, DiSALLE and MONTEMURO, JJ.
   Order affirmed.

DiSALLE, J., filed a memorandum dissenting statement.


text:
    435 A.2d 1328
    In the Interest of Anton Turkovic Leppo. Appeal of Joseph Leppo.
    Submitted September 11,1980.
    Link Christin, for appellant; Carol S. Mills McCarthy, for appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.

HOFFMAN, J., noted his dissent.


text:
    435 A.2d 1329
    Jewelers Mutual Insurance Co., Appellant, v. M. A. Perlhard Co.
    Argued April 21, 1981.
    Edward L. McCandless, Jr., for appellant; Joseph R. Danella, for appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   The appeal is quashed as being interlocutory.


text:
    435 A.2d 1329
    J. J. DiPietro Enterprises, etc., et al. v. Bach and Assoc., Appellant.
    Argued February 10, 1981.
    Richard B. Tucker, for appellant; Theodore E. Breault, for appellees.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   Order affirmed.


text:
    435 A.2d 1329
    NYE et al., Appellants, v. Yost et al.
    Petition for Allowance of Appeal Denied Nov. 19, 1981.
    Argued June 10, 1980.
    G. Robert Fitzpatrick, for appellants; Robert Steinberg, did not file a brief on behalf of Yost, appellee; James Rosini, for Garancosky, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Order affirmed.

CAVANAUGH, J., filed a memorandum dissenting opinion.


text:
    435 A.2d 1330
    Petrie et ux. v. Scott etc., et al. Petrie et ux., Appellants, v. Scott etc., et al. Appeal of James H. Scott T/D/B/A Scott Brothers Equipment.
    Argued November 13, 1980.
    Joseph Friedman, for Scott, appellant, (at No. 429) and for Petrie, appellant, (at No. 434): John D. Rhodes, for appellees.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   Order affirmed.

VAN der VOORT, J., filed a memorandum dissenting opinion.


text:
    435 A.2d 1330
    Redevelopment Authority v. U. S. Fidelity and Guarantee Co., Appellants.
    Argued April 14, 1980.
    G. N. Evashavik, for appellants; Robert W. McFate, for appellee.

      Before PRICE, BROSKY and MONTGOMERY, JJ.
   Order affirmed.


text:
    435 A.2d 1330
    White v. White, Appellant.
    Argued April 14, 1980.
    Joseph M. Wymard, for appellant; Gerald S. Lesher, submitted a brief on behalf of appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Order of the court below affirmed.


author: SPAETH, Judge:

text:
    440 A.2d 1192
    COMMONWEALTH of Pennsylvania, ex rel., M.B., J.B., and S.B. v. L. D. B. Appeal of T. P. B.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1981.
    Filed Jan. 22, 1982.

      David F. Pollock, Waynesburg, for appellant.
    Steven R. Wolf, Canonsburg, for appellee.
    Before SPAETH, HESTER and JOHNSON, JJ.
   SPAETH, Judge:

This is an appeal by a father from an order awarding custody of his four children to their mother. During the second of the two hearings the father offered the testimony of the family minister. On objection by counsel for the mother, the lower court held that under the new Divorce Code, Act of April 2,1980, P.L. 63, Act No. 26, 23 P.S. § 101 et seq., the minister was precluded from testifying. The father argues that this was error. We agree and remand for further proceedings.

The parties’ four children are Michelle, born January 2, 1970; Jodi, born March 31,1972; Stacy, born April 15, 1973; and Joel, born April 5, 1980. The first hearing was held on April 18, 1980. After the hearing, the lower court awarded custody of the children as follows:

ORDER
AND NOW, this 19th day of April 1980, the Court, believing the children’s interest be better served, orders and directs now that the custody of Michelle, Jodi, and Stacy be immediately placed with their father, this custody placement to continue until the end of the school year, that custody under the supervision of Children and Youth Services and during that time, that agency to obtain and present to the Court of the home conditions in the home of Linda Demurray Bruno [the mother] and the home conditions in the home of Tom Bruno [the father] and it being the interest of the Court that as of the effective date, the closing of the school year, if the home conditions are satisfactory, that the children will be placed in the permanent custody of the mother.
Record at 17.

The order also provided for visitation by the mother and directed the father to pay support.

As instructed by this order, caseworkers from Children and Youth Services visited the mother’s home and the father’s home, and reported to the lower court. On July 22, 1980, a second hearing was held. On November 14,1980, the lower court issued an adjudication containing findings of fact and conclusions of law, and the folio-wing order:

ORDER
AND NOW, this 14th day of Nov., 1980, the Court orders that the custody of the children shall be placed with the mother, under the supervision of the Children and Youth Services of this County, and the custody transfer shall be effected during the second week of the Christmas holidays. The father shall thereafter have the right of in-custody visitation on the second and fourth weekends of each month, between the hours of six o’clock P.M. on Friday until six o’clock P.M. on Sunday, and also for one-half of the Easter vacation, each of the children’s birthdays, and for two months in the summer, those two months being separated by a return of their custody to the mother for a week in between.

Counsel for the father filed exceptions to this adjudication. In response, on January 30, 1981, the court issued an opinion in which it corrected some of its findings of fact. The court declined, however, to change its conclusions of law, and in the order accompanying its opinion the court dismissed the exceptions to the conclusions of law and affirmed its award of custody to the mother.

Most of the testimony at the first hearing concerned alleged extramarital affairs of the mother. N.T. 4/18/80, 18-22, 27-33, 38-50, 62, 66-68, 72, 80, 95-99, 101-3, 112-13, 115, 120-123, 126, 127. We assume that this testimony was one reason for the lower court’s order of April 19, 1980, placing the three oldest children—the youngest was only two weeks old—with the father until the end of the school year.

The mother denied most of the testimony regarding her alleged extramarital affairs. Nevertheless, in its adjudication, issued after the second hearing, the lower court found that “[d]uring the course of the marriage the mother has had several extramarital affairs, and for several months before her separation, had been frequently identified with another man, and that relationship continued during and after her separation from the marital domicile.” Finding of Fact No. 3. The court also found, however, that since the first hearing, the mother had “obtained better residence facilities,” Finding of Fact No. 5, and that she had been “making a diligent effort to arrange for a home” for the children, Adjudication at 4. While finding that both parents loved and were capable of caring for the children, Finding of Fact No. 8, the court stated that

from a careful consideration of all of the ingredients involved, ... [the mother] now is and will be better able to provide for their needs. She can give them full time care; has a closer bond with of [sic] confidence and understanding with them; can make the children feel more comfortable in her care; and is able to give them guidance and direction without the need for sitters and the father’s harshness. It is the moral climate which we find to be most objectionable, and that especially as it relates to her continuing interest in a paramour, which at times, has preempted more of her interests and has dictated more of her decisions than has the children’s welfare, and is therefore a matter which must still be better resolved.

Adjudication at 4-5.

The court concluded that “[t]he children’s best interest is served by the placement of permanent custody in the mother, after the mid-year school brea[k], with ample visitation privileges in the father.” Conclusion of Law No. 4.

In its opinion of January 30, 1981, in response to the father’s exceptions, the lower court corrected some of its findings of fact, in particular stating that instead of “being on shift work” and on “somewhat irregular” hours, the father “works a steady day shift.” Slip op. at 2, correcting Finding of Fact No. 7. The court declined, however, to change its conclusion of law that it was in the best interest of the children to be in the mother’s custody.

One of the father’s exceptions was that

[d]uring the second hearing the Court erred in sustaining the defendant’s [the mother’s] objection to the testimony of Reverend Evans based on the non-existent counselor-client privilege.

In its opinion dismissing exceptions, the lower court did not discuss this exception.

During the second hearing, counsel for the father called the family minister, Reverend Evans, to testify on the father’s behalf. Counsel for the mother requested an offer of proof, and the following exchange took place:

MR. POLLOCK: Your honor, Reverend Evans has participated in counseling of Mr. and Mrs. Bruno as was recommended by the Court since the prior custody hearing and as such would have some recommendations as to fruits of his counsel as to who would be the better parent or in hopes to enlighten the Court.
MR. KUSTURISS: I would submit to the Court, your honor, that this man, excuse me, I’m sorry, the Reverend from time to time had a confidential relationship with Mrs. Bruno. Is that correct, sir?
REV. EVANS: That is correct.
MR. KUSTURISS: And has talked to her in confidence long before this particular problem came before the Court. She had gone to him voluntarily in the past, that whatever information he has to offer here today is that which he got from talking to Mr. Bruno alone, that the report of the Child Welfare Office directed my client not to continue counseling with Reverend Evans for reasons stated in the report, I believe the Court has a copy of that report and based on that confidential relationship and based on all the factors involved in this case I don’t feel it is proper for him to testify at this time ....
MR. POLLOCK: Well, your honor . ..
MR. KUSTURISS: Just a minute, I am not done. ... to make an opinion. In fact, I believe that his last statement is that he would not involve himself either way in this proceeding out of consideration he has had with both parties.
BY THE COURT: Your response to that objection?
MR. POLLOCK: Yes, your honor, in the state of Pennsylvania there is no confidential privilege extended between the relationship of a counselor to his client. Further more, as an extended part of our offer of proof we do not intend to ask Mr. Evans any questions he may have asked . . . any responses by Mrs. Bruno, but merely any recommendations he might have as a result of that and any insight he might give us into emotional stability on the part of either party.
N.T. 7/22/80, 194-196.

Before ruling, the court asked Reverend Evans, “I take it you have been in a sense, the family pastor for these folks for some time?”, to which Reverend Evans replied, “That is correct, your Honor.” Id. 200. The court further determined that since the first hearing, Reverend Evans had seen both parties “in a ministerial capacity”—the mother “several times” and the father “many more times than that.” Id. The court’s questioning of Reverend Evans continued as follows:

Q. If the question or questions were placed before you, Reverend Evans, by either counsel as to your opinion of the better setting of the children for permanent custody, would the answer to that question of necessity draw on information or identity of circumstances obtained in your counseling?
A. Your honor, I am not sure I could separate the information gathered in a formal counseling setting from the information gathered in the informal relationships. I am not sure I can sort that out and assure the Court that it would not be of a confidential nature.
Q. Reverend Evans, going beyond this case, this circumstance, will it, in your opinion lessen your effectiveness in counseling where you understand that later you would be called and questioned concerning that counseling with respect to a case concerning custody between those parties?
A. Your honor, if it involved the question of confidentiality and revealing information received in a confidential counseling relationship, I believe it would be detrimental to the future counseling relationships with other people because I believe they would be hesitant in sharing in the counseling relationship if they knew that information could be recalled by the Court at a later date.
Q. At the time you were counseling these parties did you anticipate being called as a witness?
A. No, your honor. In the beginning all the counseling relationship, Mr. Kusturiss I believe it is, is correct. In the beginning of this counseling I indicated to both Mrs. Bruno and Mr. Bruno that I would rather be informal party who would be open to help both of them.
Id. at 199-200.

The court then sustained the mother’s objection to Reverend Evans testifying. The court did not state the basis of its ruling, when it sustained the objection. However, in colloquy with counsel shortly before making the ruling the court said:

It is my understanding that the new divorce code which certainly does much to sponsor counseling does preclude the persons who are assigned to counsel parties from coming into Court and testifying .... In the Court’s mind that [sic] he cannot testify as to anything that he received during a full counseling session with either of the parties.
Id. 197-98.

The lower court was correct in its understanding that the new Divorce Code does much to sponsor counseling. Specifically, the Code requires counseling in three situations:

(a) Whenever section 201(a)(6) [indignities] is the ground for divorce, the court shall require up to a maximum of three counseling sessions where either of the parties requests it.
[295 Pa.Superior Ct. 1, (1982).]
(b) Whenever section 201(c) [marriage irretrievably broken] is the ground for divorce, the court shall require up to a maximum of three counseling sessions where either of the parties requests it.
(c) Whenever the court orders a continuation period as provided in section 201(d)(2) [reasonable prospect of reconciliation], the court shall require up to a maximum of three counseling sessions within the time period where either of the parties requests it or may require such counseling where the parties have at least one child under 16 years of age.
23 P.S. § 202.

The Code also requires that the counselor submit a report stating whether the parties attended the sessions. 23 P.S. § 202(f).

In stating that the Code “precludefs] the persons who are assigned to counsel parties from coming into court and testifying,” the lower court no doubt had in mind Section 703 of the Code, which provides:

Communications of a confidential character made by a spouse to an attorney, or a qualified professional, shall be privileged and inadmissible as evidence in any matrimonial cause unless the party concerned waives such immunity-
23 P.S. § 703.

We are unable to agree with the lower court that Section 703 precluded Reverend Evans from testifying on behalf of the father. If we assume, without deciding, that Section 703 was designed to protect “the confidentiality of all communications between the qualified professional in the counseling sessions ordered pursuant to Section 202,” Perlberger, Pennsylvania Divorce Code § 4.5 (1980), still, here the counseling sessions between the Brunos and Reverend Evans were not ordered pursuant to Section 202. Instead, as is evident from Reverend Evans’s answers to the lower court’s questions, the sessions began in March, which was before the Divorce Code was enacted. It follows that Section 703 could not preclude the testimony of Reverend Evans.

Having concluded that the lower court erred in its reliance on Section 703, we must consider what remedy, if any, is appropriate. For if Reverend Evans’s testimony was inadmissible for some other reason, the lower court’s reliance on Section 703 would be harmless error, and no remedy would be required. It is possible that Reverend Evans’s testimony was inadmissible. Two possibilities in particular occur to us.

First, it may be that the mother could preclude the testimony by invoking her privilege under the Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 5943, which provides that “[n]o clergyman .. . who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding ■...." Here, however, we cannot tell from the record whether counsel for the father intended to ask Reverend Evans to disclose any information acquired from the mother “secretly and in confidence.”

Second, Reverend Evans’s testimony might be an inadmissible expression of opinion. It is not clear whether counsel for the father was offering Reverend Evans as a lay witness or as an expert witness. As a lay witness, Reverend Evans would not be competent to express an opinion unless it were both rationally based on his own perceptions and helpful to a clear understanding of his testimony or the determination of a fact in issue. Lewis v. Mellor, 259 Pa.Superior Ct. 509, 393 A.2d 941 (1978). As an expert witness, Reverend Evans would not be competent to express an opinion unless it pertained to a subject “so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman,” Ragan v. Steen, 229 Pa.Superior Ct. 515, 538, 331 A.2d 724, 736 (1974) (concurring opinion), and it appeared that the Reverend had “sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in the search for truth.” Id. See Kravinsky v. Glover, 263 Pa.Superior Ct. 8, 396 A.2d 1349 (1979) (no error in qualifying witness as expert in psychology with special focus on driving phobia similar to plaintiff’s); Taylor v. Spencer Hospital, 222 Pa. Superior Ct. 17, 292 A.2d 449 (1972) (error not to allow nurse to testify about standards for restraints where she had experience). As the record stands now, we cannot tell whether the Reverend’s proferred testimony would meet these requirements.

It appears from the transcript, however, that the lower court regarded Reverend Evans as an expert witness who was competent to express an opinion regarding what was in the children’s best interest. Thus the court said:

Now, it does seem that a person of Mr. Evans’ stature and position could relatively make certain recommendations to the Court, not by his confidences but from a purely professional standpoint.
N. T. 7/22/80, 197.

Although the record does not show it, this observation may well have been correct; that is, further questioning might have shown that Reverend Evans did have the knowledge of the parties and their children and the experience in counseling to be able to offer a helpful opinion regarding what would be in the children’s best interest. Expert testimony, usually by psychiatrists or psychologists, is common in child custody cases. L.D. v. B.D., 291 Pa.Superior Ct. 589, 436 A.2d 657 (1981) (psychologist testified regarding father’s skills as parent; written report of psychological consultant submitted on mother’s behalf); In re Breisch, 290 Pa.Superior Ct. 404, 434 A.2d 815 (1981) (dependency case; speech therapist testified about child’s slow rate of speech development while in mother’s care); Tomlinson v. Tomlinson, 248 Pa.Superior Ct. 196, 374 A.2d 1386 (1977) (letter from clinical psychologist regarding separation of children); In Interest of Clouse, 244 Pa.Superior Ct. 396, 368 A.2d 780 (1976) (letter from clinical psychologist regarding mother’s emotional instability). But see, Commonwealth ex rel. Grimes v. Yack, 289 Pa.Superior Ct. 495, 433 A.2d 1363 (1981) (adoption case; denying remand for child psychiatrist’s testimony). Moreover, we have repeatedly emphasized the importance in child custody cases of a complete record. Gunter v. Gunter, 240 Pa.Superior Ct. 382, 361 A.2d 307 (1976) (record did not contain transcription of child’s preference); Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa.Superior Ct. 144, 331 A.2d 665 (1974) (opinion did not discuss basis for decision or evidence); Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Superior Ct. 229, 312 A.2d 58 (1973) (record did not reflect preference of children and opinion did not discuss weight given to certain factors in case where mother’s virtue was focus of litigation). In some cases such testimony may be necessary to ensure that the record is complete.

Here the lower court’s comments indicate rather plainly that the court wished to receive Reverend Evans’s testimony, and would have received it but for the court’s belief— which we have held was mistaken—that the testimony was precluded by Section 703 of the Divorce Code. The lower court’s comments further indicate a concern—to be expected of a sensitive and conscientious judge—that the mother had not faced up to the fact that if she was to be able to care for the children properly, she would have to settle down.

In these circumstances, we have concluded that the best disposition is to remand for further proceedings. We are not persuaded that we should disturb the court’s award of custody to the mother. On remand the lower court will be able to receive evidence of how the children have fared in the custody of their mother, and of how the father and mother have been conducting themselves, and can enter an award accordingly. If Reverend Evans’s testimony is offered again, we hope this opinion will serve as some guidance to its admissibility.

The case is remanded for further proceedings consistent with this opinion. At the conclusion of these proceedings, the lower court shall enter a new custody order, accompanied by such explanatory opinion as is required by law. Any further appeal must be a new appeal, from that order. Meanwhile, the lower court’s present order of custody shall remain in effect.

      . The father also argues that the lower court erred: (1) in finding that the mother’s sexual misconduct was offset by the advantages to the children of being placed in her custody; (2) in giving too much weight to the children’s preference to live with their mother; and (3) in giving too much weight to the fact that the mother, unlike the father, could remain at home all day with the children. We are not persuaded by these arguments, and shall not discuss them, both because the lower court’s opinion adequately explains the basis of its award and because on remand the lower court will be enabled to reconsider the entire case.

      . Mr. Bruno has brought an action in divorce, which is now before this court in another appeal. Bruno v. Bruno, (283 Pittsburgh 1981). At issue there is Mrs. Bruno’s application that the new Divorce Code be applied to the action. However, nothing of record in that case or in the present case suggests that counseling was ordered incident to the divorce action, nor was a report filed by Reverend Evans, as he would have been required to do under Section 202(f) of the Divorce Code.

      . Because of this conclusion, we do not decide any questions regarding the interpretation of Section 703, such as whether a witness’s expression of an opinion is a “[c]ommunication[] of a confidential character,” or whether a custody case is a “matrimonial cause.”

      . In determining the possible role of Children and Youth Services the lower court will wish to consider In re Custody of Frank, 283 Pa.Superior Ct. 229, 423 A.2d 1229 (1980).