author: POPOVICH, Judge:

text:
    640 A.2d 1315
    William K. NASSER and Catherine Nasser, His Wife, Appellees, v. EMPIRE SANITARY LANDFILL, INC. its Successors, Grantees, Devisees and Assigns, and any and all Persons Claiming by Through or From the Aforesaid Entity, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1994.
    Filed March 31, 1994.
    Reargument Denied June 3, 1994.

      Charles W. Bowser, Philadelphia, for appellant.
    Gene E. Goldenziel, Scranton, for appellees.

      Before KELLY, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Lackawanna County denying a motion to dismiss by the defendant/appellant, Empire Sanitary Landfill. We affirm in part and quash in part.

. The facts of record evidence that the plaintiffs, William K. and Catherine Nasser, his wife, filed a complaint to quiet title, as well as a petition for a temporary restraining order and preliminary injunction, against the defendant. In the complaint, the plaintiffs averred that they conveyed to the defendant’s predecessor, by deed, the right to extend the width of the.base of a roadway adjacent to their property, beyond the then existing 40-foot width. However, the defendant maintained that this right of extension entitled it to expand the roadway from the 40-foot limit to the intended 100-foot width for a distance of approximately 680 feet, which would create a driveway traversing the plaintiffs’ property.

With regard to the petition seeking injunctive relief, a rule was issued and made returnable on July 1, 1991. An answer with new matter and counterclaim was filed by the defendant. A hearing was conducted on July 1 and 9, 1991, at which the litigants “agreed” to hold in abeyance the taking of testimony pending the Commonwealth of Pennsylvania, Department of Transportation’s (PennDOT) ruling on the defendant’s amended application for a permit outlining its expansion of the disputed roadway onto the plaintiffs’ property. If the amendment were denied, the suit would be mooted.

However, when PennDOT granted the defendant’s permit, the plaintiffs returned to court and sought a continuation of their initial petition for injunctive relief. The basis for their request for injunctive relief was the defendant’s engagement in the following: 1) violation of an easement denying the plaintiffs the ability to travel by foot across their property; 2) placement of utility poles over the plaintiffs’ easement was contrary to the July, 1991 hearing agreement; and 3) placement of concrete barriers, trees and other plants over the easement obstructed the plaintiffs’ foot-path.

In response, the defendant filed a motion to dismiss for lack of subject matter jurisdiction and for failure to join an indispensable party (PennDOT). The motion was denied and this appeal ensued. At oral argument, the plaintiffs filed a motion to quash the defendant’s appeal as interlocutory.

In this Commonwealth,

[w]hether an order is final and appealable cannot necessarily be ascertained from the face of a decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications. * * * [A] finding of finality must be the result of practical rather than a technical construction. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, [546-48], 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949).

Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734, 735 (1975) (Footnote omitted). An order is also deemed final if it precludes a party from presenting the merits of his/her/its claim to the trial court. Lansdowne v. G.C. Murphy Co., 358 Pa.Super. 448, 517 A.2d 1318 (1986).

Instantly, the appellant argues that the court’s denial of its motion to dismiss is a final order since it “prevent[s] Empire from proving or otherwise foreclosed affirmative and complete defenses on the merits of the Nassers’ claims for equitable relief in the action to quiet title____” Appellants’ Answer to Motion to Quash Appeal, Paragraph 2.

We take no issue with the appellant’s general statement that a pre-trial order precluding a defendant from presenting proof of or otherwise foreclosing an affirmative defense on the merits is an appealable final order. See, Com. of Pa., DER v. Wheeling-Pittsburgh Steel Corp., 473 Pa. 432, 375 A.2d 320, 323 (1977), wherein the Court held a refusal to allow evidence of a “possibly” meritorious defense effectively put the appellant out of court, and, therefore, the order was “final” for appeal purposes.

At bar, we have examined the appellant’s Answer to Motion to Quash Appeal and come away with no insight as to the substance of the alleged “affirmative defenses”. In the absence of elaboration as to the basis for the claim sought to be reviewed, we are left to respond to issues framed in a vacuum. This we will not do. Cf. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).

The failure to raise an “affirmative defense” (considered compulsory in pleading practice) will result in a waiver of the defense. See Zarnecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873, 875 (1987). In the same vein, the absence of any articulation for such an affirmative defense leaves one with no choice, as is the case here, but to find the averment meritless.

Alternatively, the appellant argues that the denial of its Motion to Dismiss was contrary to the “consent order” entered by the court on July 9, 1991, a by-product of the hearing conducted on July 1 and 7 of 1991 in which the parties agreed to postpone the presentment of evidence covering the request for an injunction until after PennDOT had ruled on the appellant’s supplemental highway permit seeking expansion of its roadway onto the appellees’ property.

Albeit this “consent order” issue is collateral to the main cause of action (petition for injunction), it may await resolution for it does not involve a right that will be irreparably lost if review is postponed until the petition for injunction is decided by the court below. See Cohen v. Beneficial Indus trial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Bell v. Beneficial Consumer Discount Co., supra. At that time, the appellant can raise the issue, and, if the injunction is granted, challenge the matter on appeal. See Pa.R.App.F. 311(a).

Lastly, the appellant contends that the court below is without subject matter jurisdiction with the appellees’ failure to appeal PennDOT’s ruling. See, e.g., 2 Pa.C.S.A. § 702 (Right to appeal by aggrieved party of a Commonwealth agency adjudication); 42 Pa.C.S.A. § 763 (Direct appeals from government agencies); Popple v. Com. of Pa., Dept. of Transp., 133 Fa.Cmwlth. 375, 575 A.2d 973 (1990). The argument posed is mis-labelled (as one of “subject matter jurisdiction”) and is more appropriately described as one of primary jurisdiction (or primary exclusive jurisdiction). This doctrine has been defined by our Supreme Court in Elkin v. Bell Telephone Co. of Pennsylvania, 491 Pa. 123, 420 A.2d 371, 376 (1980) thusly:

Essentially, the doctrine [of primary jurisdiction] creates a workable relationship between the courts and administrative agencies wherein, in appropriate circumstances, the courts can have the benefit of the agency’s views on issues within the agency’s views on issues within the agency’s competence. This Court has approved the doctrine in Weston v. Reading Co., 445 Pa. 182, 282 A.2d 714 (1977 [1971]) (equity court must defer to Interstate Commerce Commission). In Weston, we stated:
The principles of the doctrine of primary jurisdiction are well settled. The United States Supreme Court “... recognized early in the development of administrative agencies that coordination between traditional judicial machinery and these agencies was necessary if consistent and coherent policy were to emerge---- The doctrine of primary jurisdiction has become one of the key judicial switches through which this current has passed.” The doctrine “... requires judicial abstention in cases where protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme.”
The doctrine serves several purposes, chief of which [is] the benefits to be derived by making use of the agency’s special experience and expertise in complex areas with which judges and juries have little familiarity.
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It is equally important to realize what the doctrine is not-it is not simply a polite gesture of deference to the agency seeking an advisory opinion wherein the court is free to ignore the agency’s determination. Rather, once the court properly refers a matter or a specific issue to the agency, that agency’s determination is binding upon the parties (subject, of course, to appellate review through normal channels), and is not subject to collateral attack in the pending court proceeding. “The common law doctrine of res judicata, including the subsidiary doctrine of collateral estoppel, is designed to prevent the relitigation by the same parties of the same claim or issues.” Once the administrative tribunal has determined the issues within its jurisdiction, then the temporarily suspended civil litigation may continue, guided in scope and direction by the nature and outcome of the agency determination. [Emphasis added; citations omitted in part]

In light of Elkin, our inquiry is not whether the trial court had subject matter jurisdiction to entertain this dispute. Clearly, it did. The complaint to quiet title and petition for injunctive relief sought to declare the plaintiffs as the legal owners of a parcel of land and to enjoin the defendant from encroaching on the property, respectively. Cf. Ostrov v. I.F.T., Inc., 402 Pa.Super. 87, 586 A.2d 409, 414 (1991).

Although PennDOT had the authority to deny the appellant’s amended highway application, which would have rendered the need to address the appellees’ request for a preliminary injunction moot, the absence of such a course of conduct left open the resolution of the appellees’ quiet title complaint (which could not be resolved by PennDOT) and heightened the need to address the appellees’ injunctive issue. See Pa.R.Civ.P. 1061 et seq. (Action to Quiet Title); Rule 1531 (Special Relief, Injunctions).

In a case in which an aggrieved property owner sidestepped a zoning board to resolve a dispute and proceeded to court to enjoin its neighbors’ violation of a zoning ordinance, our Supreme Court held that the complainant did not have to exhaust its administrative remedies before opting to seek relief via the courts. In doing so, the Court made remarks which we find to be instructive; to-wit:

Where deliberate violations of a zoning ordinance have the effect of wrongfully infringing on the property rights of a neighbor, that neighbor is entitled to prompt vindication in the court of equity without regard to alternate administrative remedies that might be available.
‡ ‡ ‡ ‡ ‡
... Exhaustion is not an absolute doctrine. Feingold v. Bell of Pa., 477 Pa. 1, 383 A.2d 791 (1977). Whether a court ought to apply the exhaustion doctrine in a given set of circumstances is itself a matter of the exercise of judgment and sound discretion. Feingold v. Bell of Pa., supra. The availability of an administrative remedy does not deprive a court of the power to entertain claims challenging the agency’s failure to afford the required remedy; and the availability of the administrative remedy bears only on the appropriateness of granting the relief requested. * * * [C]ourts are as well equipped to apply a written ordinance to a given set of facts as is any municipal authority. In short, there is no reason to apply the exhaustion doctrine here.

Frye Construction, Inc. v. City of Monongahela, 526 Pa. 170, 584 A.2d 946, 948-49 (1991) (Citations omitted in part).

Consistent with Frye, we focus on the nature of the issue sought to be resolved, and, if the issue is within the governmental agency’s jurisdiction and is a complex matter requiring special competence, it should be referred to the agency. See Elkin v. Bell Telephone Co. of Pennsylvania, supra. However, a court should not be too hasty in referring a matter to an agency when the court is equally capable of resolving it. Id.; Ostrov v. I.F.T., Inc., supra.

In applying these general principles here, we observe that the preliminary injunction question was stayed so that, had PennDOT denied the appellant’s amended application for a highway permit traversing the appellees’ property, the dispute could have come to an end. Additionally, the trial court and the parties did not seek the peculiar expertise of PennDOT to resolve a complex dispute concerning property rights, for the quiet title action was reserved for the court to decide, and it alone had the power to enjoin. See Rules 1026 & 1529.

Further, amelioration of the encroachment question was tangential to the amended highway permit issue, and the question of title ownership to property was not to be decided by PennDOT. As stated earlier, resolution of the permit issue against the appellant’s interest would have dispensed with the need to proceed with the preliminary injunction and/or the action to quiet title.

However, with PennDOT ruling against the appellees’ interest, they were not precluded from returning to court to seek re-activation of their dual causes of action (quiet title and injunction), the former of which was peculiarly within the bailiwick of the trial court to decide as a matter of law. And, as an adjunct thereto, this would allow for the entry of an injunctive order if the conditions warranted such immediate relief pending completion of the quiet title action. Id.

Consequently, we find that the denial of the Motion to Dismiss for want of subject matter jurisdiction is meritless, and, therefore, does not place the appellant “out of court”. T.C.R. Realty, Inc. v. Cox, 472 Pa. 381, 372 A.2d 721 (1977). Nor is the appellant prohibited from presenting the merits of its case in defense of the requested injunction or quiet title action. Cf. Lansdowne v. G.C. Murphy, Inc., supra.

In contrast, we find the appellant’s claim that the Motion to Dismiss should not have been denied for the appellees’ failure to join an indispensable party (PennDOT) is an issue which, unlike the “consent order” allegation, may not await disposition until the court below addresses the preliminary injunction and quiet title action.

To explicate, under Pennsylvania Rule of Civil Procedure 1032, failure to join an indispensable party is a ground to dismiss an action. As such, we need to examine the merits of the “indispensable party” claim, and not postpone its resolution until after the quiet title and/or injunction question is decided, for it may be that PennDOT’s involvement is integral to a resolution of either or both the law (quiet title) and equitable (injunction) action. See Insurance Company of the State of Pennsylvania v. Lumbermens Mutual Casualty, 405 Pa. 618, 177 A.2d 94 (1962).

We find that, consistent with the requirements necessary to be labelled as an indispensable party, see Grimme Combustion, Inc. v. Mergentime Corp., 406 Pa.Super. 620, 595 A.2d 77 (1991), PennDOT does not so qualify. For example, resolution of the quiet title action does not necessitate the inclusion of this governmental agency to settle the dispute. See Lumbermens Mutual Casualty, supra. And, as for the issuance of an injunction, PennDOT is only tangentially involved by having issued a permit allowing the appellant to engage in, allegedly, expansion of the roadway onto the appellees’ property. This authorization (and the basis for its issuance — in written form) may be submitted into evidence and argued by the appellant without the necessity of PennDOT being made a party to the suit. If need be, PennDOT may be called as a witness to verify its issuance of the highway permit to the appellant, but it need not be given party status to achieve this result.

Accordingly, to the extent that the appellant appeals the order of the court denying its Motion to Dismiss for want of subject matter jurisdiction and failure to join an indispensable party, we affirm. However, to the extent that the appellant seeks appellate review of the same order on grounds that it is contrary to a “consent order”, we quash.

For the reasons herein stated, we affirm in part and quash in part; jurisdiction is not retained.

      . Initially, we make inquiry of the issue because the opportunity to assert an "affirmative defense” might bring closure to a case without the need to litigate the matter fully. Stated otherwise, this protects the affirmative-defense-raising-party from having to expend unnecessary time and money in defending against a cause of action. Also, this cuts short the necessity of having to go to trial by raising the defense in pretrial pleadings. Cf. Commonwealth v. Kotz, 411 Pa.Super. 319, 601 A.2d 811, 814 (1992); Pa.R.Civ.P. 1032(2).

      . We would note that, at the July, 1991 hearing, the appellant acknowledged that if its amended highway permit were granted, the appellees would have the "right” to return to court and reactivate their petition for injunctive relief because, at that point, the appellees would not have an adequate remedy at law. RR. 147.

      . This question of subject matter jurisdiction, if applicable, would have deprived the Common Pleas Court of jurisdiction, and, as such, could have been raised at any time. LeFlar v. Gulf Creek Industrial Park No. 2, 511 Pa. 574, 515 A.2d 875 (1986); Pa.R.Civ.P. 1032(2).

      . We do not believe that a "grant” of the amended application would have brought about the same result — mootness of the injunctive issue— as proffered by the appellant. In fact, this position is contrary to the appellant’s statements at the July, 1991 preliminary injunction hearing. See RR. 147.


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    640 A.2d 1321
    COMMONWEALTH of Pennsylvania v. Timothy T. DECKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 9, 1994.
    Filed April 8, 1994.

      Robert B. McGuinness, Towanda, for appellant.
    Robert Fleury, Asst. Dist. Atty., Troy, for Com., appellee.
    Before WIEAND, McEWEN and BROSKY, JJ.
   BROSKY, Judge.

Timothy Decker appeals from the judgment of sentence of the trial court following his guilty plea to driving under the influence of alcohol (“D.U.I.”). Appellant was sentenced to a term of imprisonment of five months to twenty-three months and twenty-nine days.

On July 5,1992 appellant and his girlfriend, Tammy Smiley, patronized the Monroetown Rod and Gun Club in Monroe Township, Bradford County. Appellant consumed eight or nine beers; his blood alcohol content was subsequently determined to be .19 percent. The couple then rode on appellant’s motorcycle (appellant drove and Ms. Smiley was his passenger). Appellant drove his motorcycle over the center dividing line of the highway directly at and into the path of an oncoming automobile; appellant’s motorcycle crashed into the automobile. Both appellant and Ms. Smiley suffered substantial injuries. Since the accident appellant has been unable to work and has undergone five operations. The pre-sentence report prepared prior to appellant’s sentencing indicated that Ms. Smiley’s left leg had to be amputated as a result of the accident (this was in addition to her other injuries).

On February 23,1993 appellant pled guilty to D.U.I.; at the plea colloquy there was no discussion regarding Ms. Smiley’s injuries. A plea agreement was reached whereby appellant would plead guilty to D.U.I [75 Pa.C.S. § 3731(a)(1) ] and be sentenced to, inter alia, a minimum term of imprisonment of two months and a maximum term of imprisonment to be subsequently determined by the trial court. The trial court accepted the plea and ordered a pre-sentence report. The pre-sentence report revealed that Ms. Smiley’s left leg had been amputated; the report stated that the amputation constituted serious bodily injury and that, as a result, the Sentencing Guidelines recommended a sentence greater than appellant would have received under the “mandatory sentencing statute governing DUI.” Appellant’s Pre-Sentence Report, 4/15/93, at page 5. Also noted in the pre-sentence report was Ms. Smiley’s request for leniency toward appellant regarding his sentence; she stated that she and appellant had grown closer emotionally since the accident and that appellant had suffered enough for his crime. At appellant’s June 15, 1993 sentencing hearing appellant’s counsel stated that no sentencing enhancement provision should be added to the proposed sentence in the plea agreement since the Commonwealth waived any right to raise the issue, and, the plea agreement colloquy contained no reference to Ms. Smiley’s serious bodily injury. The trial court decided that Ms. Smiley had suffered serious. bodily injury and decided to apply the Sentencing Guideline provision found at 204 Pa.Code § 303.5(b). Said guideline states, inter alia, that when one or more of the victims in a DUI case suffered serious bodily injury, the Sentencing Guidelines recommend that if this is a defendant’s second DUI conviction he should be sentenced to one of the following minimum sentences: mitigated range — five to seven months imprisonment, standard range — seven to nine months, aggravated range — nine to eleven months. 204 Pa.Code § 308.5(b). The trial court stated that it was rejecting the plea agreement and gave appellant an opportunity to withdraw his guilty plea; appellant declined to do so. Appellant was sentenced to a term of imprisonment five months to twenty-three months and twenty-nine days. His motion to modify sentence was denied and appellant filed the instant appeal.

Appellant’s issues on appeal are as follows:

1. Whereas the record of the plea proceeding made no reference to any “serious bodily injury,” it was abuse of discretion for the trial court to rely on material contained in the pre-sentence investigation report to find 204 Pa.Code § 303.5(b) applicable.
2. The trial court erred in holding that the prosecutor lacked discretion to waive 204 Pa.Code Section 303.5(b).
3. The enhancement provisions of 204 Pa.Code Section 303.5(b) are invalid as they exceed the scope of the enabling legislation.
4. The lower court’s application of this guideline was in violation of Article III of the Pennsylvania Constitution.

Appellant’s Brief at 11, 14, 17, 18. We vacate the judgment of sentence of the trial court and remand for resentencing.

We first note that although appellant has supplied this Court with a concise statement of reasons relied upon for appeal, as required by Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and Pa.R.A.P. 2119(f), this is not an appeal from the discretionary aspects of a sentence. Appellant is asking us to decide whether the enhancement provision found at 204 Pa.Code § 303.5(b) is applicable in the instant case. A determination of whether a Sentencing Guideline section applies is a legal question and not a discretionary matter. Commonwealth v. Gallagher, 430 Pa.Super. 457, 634 A.2d 1147 (1993). This Court may raise sua sponte an issue involving the legality of a sentence imposed. Commonwealth v. Murphy, 405 Pa.Super. 452, 456, n. 8, 592 A.2d 750, 752, n. 8 (1991). We therefore address the merits of appellant’s issues as a direct appeal. Id.; Commonwealth v. Gallagher, supra.

Appellant first claims that the trial court erred in finding that Ms. Smiley had suffered serious bodily injury and in applying the sentencing enhancement provision at 204 Pa.Code § 303.5(b) since the only references to Ms. Smiley’s alleged serious bodily injury were in the criminal complaint and in the pre-sentence report (the issue was not raised at the guilty plea colloquy).

Our Court stated in Commonwealth v. Murphy, supra, The imposition of a proper sentence is a matter vested in the sound discretion of the trial court whose determination must be respected unless it involves a manifest abuse of discretion. However, the trial court must exercise its discretion in accordance with the applicable provisions of the Sentencing Code, 42 Pa.C.S. §§ 9701 et seq. The Code provides, in pertinent part, that the trial court “shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any [relevant] guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing. In every case where the court imposes a sentence outside the sentencing guidelines the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.” 42 Pa.C.S. § 9721(b).
[A] sentencing court is not required to adopt the recommendations in the Sentencing Guidelines but it must at least consider them. The sentencing guidelines do not preclude judicial discretion.

Id. at 457, 592 A.2d at 753.

We note that at sentencing, in appellant’s motion to modify sentence and in the instant appeal appellant has not stated that the criminal complaint was inaccurate in its description of Ms. Smiley’s injuries as serious, or, the pre-sentence report was inaccurate in its description of Ms. Smiley’s injuries as “serious bodily injury”, or, the allegation that Ms. Smiley’s left leg was amputated as a result of the accident caused by appellant’s intoxication while driving. However, we are constrained, pursuant to Commonwealth v. Gallagher, supra, Commonwealth v. Black, 355 Pa.Super. 369, 513 A.2d 475 (1986), and Commonwealth v. Taylor, 346 Pa.Super. 599, 500 A.2d 110 (1985), to find that the trial court erred in applying 204 Pa.Code § 303.5(b) and we vacate the judgment of sentence of the trial court and remand for resentencing.

In Taylor, the defendant pled guilty to unlawful restraint, theft and aggravated assault. At that defendant’s guilty plea colloquy there was no mention of the use of a deadly weapon during the crimes. At that defendant’s sentencing hearing the victim gave testimony which established that appellant utilized a knife in the time period surrounding those crimes, but her testimony did not establish that the defendant had utilized the knife during the specific crimes that the defendant pled guilty to; the only way that the trial court could have determined that the defendant had utilized a knife during the crimes pled guilty to was to consider the wording of the criminal complaint in conjunction with a hearsay statement of the victim that was appended to the pre-sentence report. Id. Our Court determined in Taylor that the Commonwealth (and, by implication, the trial court) was bound by the record regarding that defendant’s admissions at the guilty plea colloquy, and since there was no mention at that hearing of the use of a deadly weapon the Sentencing Guidelines enhancement provision found at 204 Pa.Code § 303.4 could not be applied. Id.

In Commonwealth v. Black, supra, our Court again found that the trial court erred in applying the Guidelines deadly weapon enhancement provision. In Black that defendant pled guilty to robbery, false imprisonment and criminal mischief. At that defendant’s guilty plea colloquy there was no mention of the use of a knife during the commission of the crimes. At that defendant’s sentencing it was revealed (through properly admitted evidence) that appellant had utilized a knife during the commission of the crimes. Our Court held, pursuant to Commonwealth v. Taylor, supra, that since the use of the knife was not established at the guilty plea colloquy, the trial court erred in applying the deadly weapons enhancement found at 204 Pa.Code § 303.4. Commonwealth v. Black, supra.

Although the Guidelines deadly weapons enhancement was not applied in the instant case, the application of the Guidelines provision at 204 Pa.Code § 303.5(b) is analogous to the application of the deadly weapons enhancement. The Sentencing Guidelines state that if a victim does not suffer serious bodily injury in a DUI case, the sentence for the DUI conviction is determined by application of 75 Pa.C.S. § 3731. 204 Pa.Code § 303.5(a). If § 3731 had been applied in the instant case appellant would have been sentenced to a term of imprisonment of not less than 30 days and a fine of not less than $300. 75 Pa.C.S. § 3731(e)(1)(ii). Only when one of the victims suffers serious bodily injury is 204 Pa.Code § 303.5(b) applicable. Before § 303.5(b) can be applied the Commonwealth must establish that a DUI defendant’s conduct was a direct and substantial cause of any serious bodily injury suffered by a victim or victims. Commonwealth v. Gallagher, supra. Such a finding is not possible in the instant case since the Commonwealth never produced any evidence regarding Ms. Smiley’s injuries. Moreover, § 303.5(b) is a guideline provision similar in purpose and effect to the guideline provision regarding the deadly weapon enhancement (§ 303.4). Both provisions are triggered when an additional factor is introduced into a crime: In § 303.4 the element is the utilization of a deadly weapon in the commission of a crime; in § 303.5(b) the element is a finding of serious bodily injury resulting from a defendant’s act of driving while under the influence of alcohol or drugs. The two guideline provisions recommend increased terms of imprisonment when the requisite factors are present; a trial court is not mandated to adopt the recommendations of the Guidelines but it must consider them. Commonwealth v. Murphy, supra. Since this Court has determined in Commonwealth v. Black, supra, and Commonwealth v. Taylor, supra, that the presence of a deadly weapon must be established at a guilty plea colloquy in order to enable application of § 303.4 of the Guidelines, and § 303.4 and § 303.5(b) are similar in purpose and effect, we find that § 303.5(b) can only be applied when it is demonstrated and determined at a guilty plea colloquy that a victim’s serious bodily injury was caused by a DUI defendant’s actions regarding that crime. Since in the instant case there was no determination regarding Ms. Smiley’s injuries at appellant’s guilty plea colloquy (and, indeed, no proper determination regarding her injuries at any stage of the instant case), the trial court erred in applying 204 Pa.Code § 303.5(b) when determining appellant’s sentence. We must therefore vacate appellant’s judgment of sentence and remand for resentencing.

In resentencing appellant the trial court can not look to the Sentencing Guidelines since this case is governed by 75 Pa.C.S. § 3731(e)(1)(h); the Guidelines can not supersede the mandatory penalties of 75 Pa.C.S. § 3731. 75 Pa.C.S. § 3731(e)(3). Appellant must be sentenced to pay a fine of not less than $300 and to serve a mandatory minimum term of imprisonment of not less than thirty days. 75 Pa.C.S. § 3731(e)(1)(h). The highest minimum term of imprisonment that appellant may receive is one year, and the maximum total sentence that he may receive is two years. 18 Pa.C.S. § 1101(2). The highest fine that appellant may receive is $5,000. 18 Pa.C.S. § 1101(4). A defendant may be given credit for time served in custody. Commonwealth v. Conahan, 527 Pa. 199, 589 A.2d 1107 (1991). Additionally, if a defendant voluntarily commits himself or herself to voluntary custodial inpatient alcohol rehabilitation, said time served may be substituted in place of time served in a penal institution. Id.

Our disposition of appellant’s first issues makes addressal of his final three issues unnecessary.

Judgment of sentence vacated. Case remanded to the trial court for resentencing with directives consistent with this Opinion. Jurisdiction relinquished.

WIEAND and McEWEN, JJ., concur in the result.

      . 75 Pa.C.S. § 3731(a)(1) (which states that a person shall not operate a vehicle while under the influence of alcohol to a degree which renders the person incapable of safe driving).

      . We note at this point that none of Ms. Smiley’s injuries have been verified or substantiated through the presentation of evidence.

      . Appellant’s counsel did not dispute the allegation that Ms. Smiley had suffered serious bodily injury as a result of the vehicular accident caused by appellant.

      . The instant conviction was in addition to a previous DUI charge in which appellant was placed in Accelerated Rehabilitative Disposition (“ARD”). N.T., 3/23/93, at 10.

      . The trial court only rejected the plea agreement; it did not reject appellant’s plea of guilty. The guilty plea merely became an open plea.

      . It could also be determined pursuant to 42 Pa.C.S. § 9763, but that statute is not applicable to the instant case.

      . This sentence would be attributable to the fact that appellant had previously accepted ARD in an unrelated DUI case.

      . The only reference to Ms. Smiley’s injuries was contained in an unsubstantiated statement in the pre-sentence report.


author: WIEAND, Judge:

text:
    640 A.2d 1326
    COMMONWEALTH of Pennsylvania, v. David Todd JACOBS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1994.
    Filed April 20, 1994.

      Michael Bangs, Lemoyne, for appellant.
    Alison Taylor, Asst Dist. Atty., Carlisle, for Com., appellee.
    Before WIEAND, McEWEN and SAYLOR, JJ.
   WIEAND, Judge:

In this “drunk driving” case, the district justice, following a preliminary hearing, dismissed a charge of violating 75 Pa.C.S. § 3731(a)(4) and returned to court for trial a charge of violating 75 Pa.C.S. § 3731(a)(1). The district attorney thereafter prepared an information charging violations of both subsections of the statute, and the jury which heard the evidence found the defendant guilty of violating 75 Pa.C.S. § 3731(a)(4). On appeal, the defendant argues that he should not have been tried for violating 75 Fa.C.S. § 3731(a)(4) without being rearrested and given another preliminary hearing. This argument, although interesting, does not entitle the defendant to post-trial relief.

David Todd Jacobs was arrested on May 25, 1991, and charged with driving while under the influence of alcohol pursuant to 75 Fa.C.S. § 3731(a)(1) and (a)(4). A preliminary hearing was held on July 10, 1991, at which the district justice determined that the Commonwealth had presented prima facie evidence that Jacobs had violated subsection (a)(1) of the drunk driving statute, but had failed to establish a prima facie case under subsection (a)(4). Therefore, only the charge under subsection (a)(1) was bound over for court; and the district justice dismissed the charge under subsection (a)(4). Subsequently, the district attorney filed a criminal information charging Jacobs with violating both subsections (a)(1) and (a)(4) of 75 Pa.C.S. § 3731. Jacobs filed a pre-trial motion to quash the information on grounds that the charge under subsection (a)(4) had been dismissed at his preliminary hearing. When this motion was denied, Jacobs proceeded to trial before a jury, which found him guilty of violating 75 Pa.C.S. § 3731(a)(4). Jacobs then filed a post-trial motion in arrest of judgment, which was denied following argument before a court en banc. Jacobs was sentenced to serve a term of imprisonment for not less than forty-eight (48) hours nor more than twenty-three (23) months and to pay a fine and the costs of prosecution. This appeal followed.

On appeal, Jacobs argues that, because the charge of drunk driving under subsection (a)(4) was dismissed at his preliminary hearing for lack of prima facie evidence, the Commonwealth, if it desired to pursue a charge under subsection (a)(4), was required to refile the charge before a district justice to determine whether prima facie evidence existed sufficient to compel him to stand trial thereon. Because no finding of a prima facie case to support the charge under subsection (a)(4) had ever been made, appellant asserts, judgment on his conviction for that charge should be arrested and he should be discharged with prejudice. For its part, the Commonwealth takes the position that, because the charges of drunk driving under subsections (a)(1) and (a)(4) involved cognate offenses, Pa.R.Crim.P. 225(b)(5) permitted the inclusion in the criminal information of a charge under subsection (a)(4). We will consider these arguments carefully in order to determine whether appellant should have been afforded a second preliminary hearing on the charge under 75 Pa.C.S. § 3731(a)(4).

“There is no constitutional right, federal or state, to a preliminary hearing.” Commonwealth v. Ruza, 511 Pa. 59, 64, 511 A.2d 808, 810 (1986). See also: Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 419, 581 A.2d 172, 175 (1990) (Flaherty, J., concurring), cert. denied, 499 U.S. 907, 111 S.Ct. 1108, 113 L.Ed.2d 217 (1991); Commonwealth v. Mayberry, 459 Pa. 91, 103, 327 A.2d 86, 92 (1974). Rather, a defendant’s right to a preliminary hearing is conferred by the Rules of Criminal Procedure. See: Pa.R.Crim.P. 141. See also: Commonwealth ex rel. Fitzpatrick v. Mirarchi, 481 Pa. 385, 392-393, 392 A.2d 1346, 1349 (1978); Commonwealth v. Jennings, 405 Pa.Super. 590, 594, 592 A.2d 1370, 1372 (1991) (en banc). The purpose of a preliminary hearing has been described by the Supreme Court in the following manner:

The preliminary hearing is not a trial. The principal function of a preliminary hearing is to protect an individual’s right against an unlawful arrest and detention. Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975). At this hearing the Commonwealth bears the burden of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978); Pa.R.Crim.P. 141(d). It is not necessary for the Commonwealth to establish at this stage the accused’s guilt beyond a reasonable doubt. Commonwealth v. Rick, 244 Pa.Super. 33, 366 A.2d 302 (1976). In order to meet its burden at the preliminary hearing, the Commonwealth is required to present evidence with regard to each of the material elements of the charge and to establish sufficient probable cause to warrant the belief that the accused committed the offense.

Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983). Commonwealth v. McBride, 528 Pa. 153, 157-158, 595 A.2d 589, 591 (1991). See also: Commonwealth v. Rogers, 416 Pa.Super. 59, 63, 610 A.2d 970, 972 (1992); Commonwealth v. Nacrelli, 280 Pa.Super. 338, 342, 421 A.2d 752, 754 (1980).

“A finding by a committing magistrate that the Commonwealth has failed to establish a prima facie case is not a final determination, such as an acquittal, and only entitles the accused to his liberty for the present, leaving him subject to rearrest.” Commonwealth v. Hetherington, 460 Pa. 17, 22, 331 A.2d 205, 208 (1975). See also: Commonwealth v. Genovese, 493 Pa. 65, 69 n. 7, 425 A.2d 367, 369 n. 7 (1981); Commonwealth v. Cartagena, 482 Pa. 6, 14-15, 393 A.2d 350, 354 (1978); Commonwealth v. Chermansky, 381 Pa.Super. 129, 131, 552 A.2d 1128, 1129 (1989). In this regard, the Supreme Court “has acknowledged that re-arrest is the appropriate procedure and the Commonwealth’s only recourse where charges are dismissed and the defendant discharged upon a finding of a lack of a prima facie case since such a determination is interlocutory in nature and, therefore, not appealable.” Commonwealth ex rel. Fitzpatrick v. Mirarchi, supra, 481 Pa.Super. at 390, 392 A.2d at 1348. See: Commonwealth v. Hetherington, supra; Riggins Case, 435 Pa. 321, 254 A.2d 616 (1969). Pursuant thereto “[t]he prosecution may bring the matter again before any other officer empowered to hold a preliminary hearing.” Commonwealth v. Prado, 481 Pa. 485, 487, 393 A.2d 8, 9 (1978). See also: Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 266-267, 566 A.2d 246, 249-250 (1989); Commonwealth v. Jones, 429 Pa.Super. 601, 605-608, 633 A.2d 185, 187-188 (1993); Commonwealth v. Shoop, 420 Pa.Super. 606, 609, 617 A.2d 351, 353 (1992).

In the instant case, however, the Commonwealth proceeded, pursuant to Pa.R.Crim.P. 225(b)(5), by adding the charge of drunk driving under 75 Pa.C.S. § 3731(a)(4) to the information, which also charged a violation of 75 Pa.C.S. § 3731(a)(1). It did so on grounds that, since the offenses were cognate, both could be charged in the information based upon the finding that prima facie evidence existed to prosecute appellant generally for driving while under the influence of alcohol.

Pa.R.Crim.P. 225(b)(5) provides:

(b) The information shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains:
(5) a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint.

“Rule 225(b)(5) does not require that the crime charged in the Information be identical to that charged in the Complaint as long as the charge is cognate to the one laid in the Complaint.” Commonwealth v. Donaldson, 339 Pa.Super. 237, 239, 488 A.2d 639, 640 (1985). See also: Commonwealth v. Wilkinson, 278 Pa.Super. 490, 500, 420 A.2d 647, 652 (1980); Commonwealth v. El, 273 Pa.Super. 1, 9, 416 A.2d 1058, 1062 (1979). This is so because “[a] defendant cannot be required to answer a charge different from or unrelated to the one for which he was arrested and held to bail.” Commonwealth v. Taylor, 324 Pa.Super. 420, 429, 471 A.2d 1228, 1232 (1984). See also: Commonwealth v. Musto, 348 Pa. 300, 302-303, 35 A.2d 307, 309 (1944); Commonwealth v. Wilkinson, supra at 497-498, 420 A.2d at 650-651.

In Commonwealth v. Slingerland, 358 Pa.Super. 531, 518 A.2d 266 (1986), the defendant was charged with drunk driving under subsection (a)(1). A preliminary hearing was held and the charge was held over for court. Thereafter, the Commonwealth filed an information charging the defendant with drunk driving under both subsections (a)(1) and (a)(4). The defendant was tried and found guilty of violating subsection (a)(4), but acquitted by the jury on the charge that he had violated subsection (a)(1). On appeal, the Superior Court held that the drunk driving offenses set forth in subsections (a)(1) and (a)(4) were cognate and that, therefore, the district attorney could properly add the charge under subsection (a)(4) to the information, even though the offense had not been charged in the complaint.

A majority of the trial court in this case found Slingerland to be dispositive. Appellant argues, however, that Slingerland is not controlling because, in that case, the charge of drunk driving under subsection (a)(4) had not been presented at the preliminary hearing and had not been found to be lacking in evidentiary support. In rejecting appellant’s argument, the trial court reasoned as follows:

An offense is either cognate to another offense at the time the criminal conduct takes place or it is not. Since the Superior Court has held that subsection (a)(1) and (a)(4) offenses are cognate, then the fact that the District Justice dismissed the subsection (a)(4) charge, in contrast to where that charge was not originally filed in Slingerland, is a distinction of no legal significance. The cognate offense never had to be filed in the first place as long as the subsection (a)(1) offense was bound over by the District Justice. Since it was bound over, the District Attorney legally added a subsection (a)(4) offense to the information exactly as in Slingerland. Accordingly, our pretrial order refusing to quash the information on the subsection (a)(4) violation was properly entered, and defendant is not now entitled to an arrest of judgment of his conviction on that charge.

Commonwealth v. Jacobs, 42 Cumb.L.J. 342, 346 (Cumberland Co., 1993) (en banc) (footnotes omitted).

After careful review, we agree with the trial court. The Commonwealth was not required to re-arrest appellant on the charge of violating 75 Pa.C.S. § 3731(a)(4) and again take that charge before a district justice for a determination of the existence of prima facie evidence. Pursuant to Pa.R.Crim.P. 225(b)(5), the Commonwealth could properly include the charge under subsection (a)(4) in the same criminal information in which appellant was charged with the cognate offense of drunk driving in violation of subsection (a)(1) of 75 Pa.C.S. § 3731. After, the Commonwealth had established a prima facie case under subsection (a)(1), it could thereafter include a charge for the cognate offense of violating subsection (a)(4) in the same criminal information, even though it had been unable to establish a prima facie case for that charge at appellant’s preliminary hearing.

We are guided by the decision of the Superior Court in Commonwealth v. Epps, 260 Pa.Super. 57, 393 A.2d 1010 (1978), where the Court rejected a claim that the defendant’s due process rights had been violated when he was indicted by a grand jury for robbery after the magistrate at his preliminary hearing had dismissed the robbery charge and substituted a charge of attempted robbery. The defendant argued that the magistrate’s dismissal of the robbery charge for lack of prima facie evidence had precluded the Commonwealth from presenting the same charge to a grand jury for indictment and required that he be re-arrested and given a new preliminary hearing on the robbery charge. In rejecting this argument, the Superior Court reasoned as follows:

Appellant’s reliance on cases such as Commonwealth v. Nelson, 230 Pa.Super. 89, 326 A.2d 598 (1974), and Riggins Case, 435 Pa. 321, 254 A.2d 616 (1969), is misplaced. In Riggins, the suspect was charged with murder but subsequently discharged at the preliminary hearing on the failure of the Commonwealth to establish a prima facie case. Our supreme court ruled that the only alternative for the Commonwealth, when it believes a defendant has been improperly discharged by the committing magistrate, is to have the defendant re-arrested and taken before another magistrate. This, however, is necessary only when all charges have been dismissed and no prima facie case established. It does not encompass situations, such as the instant case, in which a prima facie case has been established and a cognate crime is substituted in the indictment.

Commonwealth v. Epps, supra, 260 Pa.Super. at 61, 393 A.2d at 1012.

Similarly in the instant case, all of the charges against appellant were not dismissed at his preliminary hearing. Instead, the Commonwealth established a prima facie case that appellant had violated 75 Pa.C.S. § 3731(a)(1) by driving while under the influence of alcohol. Under these circumstances, even though the Commonwealth faded to establish a prima facie case under 75 Pa.C.S. § 3731(a)(4), the district justice’s dismissal of that charge did not preclude the inclusion of the charge in the criminal information which also charged appellant with violation of 75 Pa.C.S. § 3731(a)(1).

Even if we were to hold that the Commonwealth was required to re-arrest appellant for drunk driving under 75 Pa.C.S. § 3731(a)(4) and afford him a new preliminary hearing on that charge, it does not follow that, after being tried by a jury and found guilty beyond a reasonable doubt of violating 75 Pa.C.S. § 3731(a)(4), appellant is now entitled to have his conviction set aside. It is well settled that “once a defendant has gone to trial and been found guilty of a crime, any defect in the preliminary hearing is rendered immaterial.” Commonwealth v. Worrall, 415 Pa.Super. 478, 479, 609 A.2d 851, 852 (1992). See also: Commonwealth v. McCullough, 501 Pa. 423, 427, 461 A.2d 1229, 1231 (1983); Commonwealth v. Tyler, 402 Pa.Super. 429, 433, 587 A.2d 326, 328 (1991); Commonwealth v. Troop, 391 Pa.Super. 613, 620, 571 A.2d 1084, 1088 (1990). Where, as in the instant case, “it is determined at trial that the evidence of the Commonwealth is sufficient to be submitted to the jury, then any deficiency in the presentation before the district justice would have been harmless.” Commonwealth v. Hess, 489 Pa. 580, 590, 414 A.2d 1043, 1048 (1980). See also: Commonwealth v. Cassidy, 423 Pa.Super. 1, 5-6, 620 A.2d 9, 11 (1993); Commonwealth v. Taylor, 408 Pa.Super. 121, 126-127, 596 A.2d 222, 224-225 (1991); Commonwealth v. Lyons, 390 Pa.Super. 464, 468, 568 A.2d 1266, 1268 (1989).

The judgment of sentence is affirmed.

      . Section 3731 of the Vehicle Code provides, in pertinent part:

        (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle:
      (1) while under the influence of alcohol to a degree which renders the person incapable of safe driving; [or]
      (4) while the amount of alcohol by weight in the blood of the person is 0.10% or greater.
      75 Pa.C.S. § 3731(a)(1) and (a)(4).

      . On the charge that Jacobs had violated 75 Pa.C.S. § 3731(a)(1), the jury was unable to reach a verdict; and, therefore, a mistrial was declared with respect to that charge.


author: ROWLEY, President Judge:

text:
    640 A.2d 1330
    COMMONWEALTH of Pennsylvania, v. Todd Daniel JONES, Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1994.
    Filed April 28, 1994.

      Lynette M. Petruska, Erie, for appellant.
    Matthew R. Hayes, Asst. Dist. Atty., Erie, for Com., appellee.
    Before ROWLEY, President Judge, and BECK and JOHNSON, JJ.
   ROWLEY, President Judge:

In these two separate, but nevertheless related, appeals, Todd Daniel Jones (hereinafter “appellant”) challenges both the denial of his petition for post conviction collateral relief, filed pursuant to the Post Conviction Relief Act, (hereinafter “PCRA”), 42 Pa.C.S.A. § 9541 et seq., and also the judgments of sentence imposed upon him following his no contest pleas to several violations of the Controlled Substance, Drug, Device and Cosmetic Act, (hereinafter “Drug Act”), 35 Pa.C.S.A. § 780-101, et seq. Having carefully reviewed the record and the legal principles relevant to this appeal, we vacate and remand in both appeals.

The facts relevant to these two appeals were accurately and succinctly stated by the trial court in its August 11, 1993 opinion as follows:

“On January 29, 1991, appellant appeared in court with his counsel, Ian M.C. Murray, Esquire, and at docket number 6*81 of 1990 pled no contest to [a] Violation of the [Drug Act] (Unlawful delivery), Counts 1, 3, 5, 7, and 9. However, the charge of Criminal Conspiracy, at Counts 2, 4, 6, 8 and 10, was nolle prossed with costs on appellant.
Further[,] at docket number 955 of 1990[,] appellant pled no contest to [a] Violation of the [Drug Act] (Unlawful Delivery), Count 1. Finally, at docket number 1404 of 1990[,] appellant pled no contest to one count of [a] Violation of the [Drug Act] (Unlawful Delivery).”

Thereafter, on March 11, 1991, appellant was sentenced on the foregoing offenses. He received a total aggregate sentence of 8 to 18 years imprisonment, together with costs and restitution, at the three above-noted docket numbers. Several of the sentences were imposed consecutively to one another. A motion to reconsider and modify sentence was filed at all three docket numbers on March 21, 1991. The motion was denied by the trial court.

On May 9, 1991, appellant appeared in court again with his attorney, Ian M.C. Murray, Esquire, and entered pleas of no contest at docket number 699 of 1991 to one count of unlawful delivery of a controlled substance, and also to one count of criminal conspiracy, which related to the delivery charge. Also on that day, appellant was sentenced on these offenses to consecutive terms of imprisonment of 1 to 5 years on each count for a total aggregate sentence of 2 to 10 years None of the sentences were appealed.

“On July 18, 1991, appellant filed a pro se motion for post conviction collateral relief (hereinafter “PCRA”) at docket numbers 681, 955 and 1404 of 1990, as well as docket number 699 of 1991. On August 5, 1991[,] the court[,] upon considering appellant’s pro se PCRA motion[,] appointed Jack E. Grayer, Esquire to represent appellant. Attorney Grayer was ordered to amend or supplement appellant’s motion. On August 12, 1991, Attorney Grayer petitioned the court for a continuance to file an amendment to the appellant’s PCRA motion[, which] was granted by the court. The court ordered that Attorney Grayer [would] have 30 days after the last transcribed notes of testimony were filed for plea and sentence proceedings in appellant’s cases in order to amend the appellant’s PCRA motion. However, on October 29,1991, inasmuch as Attorney Grayer failed to file an amendment and/or supplement [to] the appellant’s PCRA [petition] pursuant to the court’s Order of August 5, 1991[,] and having been granted an additional 30 days to do so after the last transcribed notes of testimony were filed, which would have been September 11,1991, the court ordered that the Commonwealth answer appellant’s pro se PCRA motion. The Commonwealth’s answer to the appellant’s original PCRA motion was filed on November 26, 1991.
On January 3, 1992, th[e trial] court by Opinion and Order denied appellant’s original PCRA motion at docket numbers 681, 955 and 1404 of 1990 and docket number 699 of 1991. [On January 22, 1992, attorney Grayer filed a ‘no-merit letter’ and a motion to withdraw, which was granted by the trial court on the same day.] Appellant filed a notice of appeal (in forma pauperis) on January 29, 1992. On January 31, 1992[,] the court ordered appellant to file a concise statement within 14 days of said Order. Appellant’s motion for continuation of in forma pauperis [status] for purposes of this appeal was also granted on [the] same date.
The Superior Court of Pennsylvania by its Order and Opinion dated September 11, 1992, reversed the judgment of th[e trial] court; appellant’s case was remanded for appointment of counsel who within 30 days of receipt of the record was to file an amended or supplemented PCRA petition with the trial court. The Superior Court Order and Opinion was filed in the Erie County Clerk of Courts Office on December 1, 1992. On December 2, 1992, th[e trial] court[,] in accordance with the Superior Court order dated September 11, 1992, appointed Joseph P. Burt, Esquire', Assistant Public Defender, to represent the appellant. Attomey Burt was ordered to amend or supplement the appellant’s PCRA petition within 30 days from the date of this Order. On December 31, 1992, Attorney Burt filed an amended and supplemented PCRA petition at docket number 681, 955 and 1404 of 1990, and [6]99 of 1991. On January 4, 1993, the court ordered that the Commonwealth answer appellant’s amended and supplemented PCRA petition. The Commonwealth filed its response to petitioner’s amended PCRA petition on February 2, 1993.
On February 24, 1993, the [trial] court granted appellant leave to appeal nunc pro tunc at docket numbers 681, 955 and 1404 of 1990. Appellant was not granted leave to file an appeal nunc pro tunc at docket number 699 of 1991[,] which was also included in appellant’s supplemented and amended PCRA petition. Appellant’s petition at docket number 699 of 1991 was denied.
Appellant filed [two] noticefs] of appeal [to the Superior Court] on March 25, 1993. A praecipe for appearance was [then] filed [on behalf of appellant] by Lynette M. Petruska, Esquire on March 24, 1993. A statement of matters complained of on appeal was filed on April 12, 1993.”

(Trial Court Opinion, 8/11/93, p. 4-6).

First, we will address the second of the two related appeals filed by appellant. This is a direct appeal nunc pro tunc from the judgment of sentence imposed upon appellant following his no contest pleas at trial court docket numbers 681, 955 and 1404 of 1990 to various violations of the Drug Act. On appeal, appellant contends that his no contest pleas were not knowingly, voluntarily and intelligently made for two reasons. First, appellant claims that there was an insufficient factual basis laid for his pleas because he was not apprised during the plea colloquy of the differing amounts of cocaine allegedly involved in each transaction, nor was he advised of the various dates that the transactions in Counts 3, 5, 7, and 9 at docket number 681 were allegedly to have taken place.

Secondly, appellant contends that his pleas were not entered with a full understanding of the consequences thereof because he was not told that the sentencing court could impose his sentences consecutively, rather than concurrently, to one another. Finally, appellant contends that his trial counsel rendered ineffective assistance of counsel in this case because he failed to ensure that appellant’s plea colloquy was legally sufficient and also because he failed to file a motion to withdraw appellant’s pleas, both before and after sentencing, in spite of appellant’s request that such a motion be filed.

“We begin by noting that the appropriate standard against which all claims of ineffective assistance of counsel must be measured is well settled.
The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interest. Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him.
Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989) (citations omitted); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).
In determining whether appellant’s claim has arguable merit we must first look to the standard applied in withdraw of [] plea cases.
When considering a petition to withdraw a [ ] plea submitted to a trial court after sentencing, ..., it is well-established that ‘a showing of prejudice on the order of manifest injustice is required before withdrawal is properly justified.’
Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982) (emphasis omitted) (citations omitted).”

Commonwealth v. Persinger, 532 Pa. 317, 321, 615 A.2d 1305, 1307 (1992).

In Persinger, our Supreme Court reiterated the well-established principle that:

“... the decision to plead guilty [or no contest] to a charge could not be accepted as being knowingly and intelligently entered without an assurance that the accused fully comprehended the maximum punishment that might be imposed for his conduct. This information is obviously an integral part of the knowledge that should be possessed by one who is called upon to make the difficult decision whether to surrender his right to trial and place himself at the mercy of the sentencing court. No civilized society could tolerate the waiver of such basic rights from one who was unaware of or misinformed as to such a critical fact.”

Id. at 322, 615 A.2d at 1307, quoting Commonwealth v. Kulp, 476 Pa. 358, 361, 382 A.2d 1209, 1211 (1978) (emphasis added in Persinger).

From that starting point, the Persinger court addressed the issue of whether or not a defendant is entitled to know that the sentences which he will receive in connection with a plea could be imposed either consecutively or concurrently within the discretion of the sentencing court. In this regard, our high court opined:

“[t]he goal sought to be attained by the [ ] plea colloquy is assurance that a defendant’s [ ] plea is tendered knowingly, intelligently, voluntarily, and understandingly. See Pa.R.Crim.P. 319. A defendant obviously cannot be expected to plead intelligently without understanding the consequences of his plea. In order to understand the consequences of his plea it is clear that a defendant must be informed of the maximum punishment that might be imposed for his conduct. Commonwealth v. Kulp, supra. To hold that the term ‘maximum’ does not include the total possible aggregate sentence is clearly incorrect. And to hold that a plea was intelligently and understandingly entered where a defendant was not informed that consecutive sentences could be imposed upon his multiple convictions is equally incorrect.”

Persinger, supra, 535 Pa. at 323, 615 A.2d at 1308 (emphasis in original).

The Supreme Court found that the Persinger defendant had suffered manifest injustice as a result of the fact that his plea colloquy lacked any mention of the maximum sentence he could receive in connection with that plea. Therefore, the Supreme Court concluded that Persinger’s ineffectiveness claim had merit. The Persinger court also decided that “because there were adequate grounds for withdrawal of [the defendant’s] plea, counsel’s failure to seek withdrawal of [his] plea was prejudicial to [him].” Id. Finally, in Persinger, the court opined that “there could have been no reasonable basis for counsel’s course of action under these circumstances.” Id. at 324, 615 A.2d at 1309. Thus, defense counsel was held to be ineffective as a matter of law for failing to file a motion to withdraw the defendant’s guilty plea when the plea colloquy was so clearly defective.

Our review of the record indicates that the instant appellant was no more aware of the maximum penalty he could receive as a consequence of his no contest pleas than was the defendant in Persinger. However, the Commonwealth contends that despite the analogous nature of the present case to Persinger, we cannot dispose of this appeal based on Persinger because this appellant did not take the proper steps to preserve this issue for appeal. We do not agree.

As this Court unequivocally stated in Commonwealth v. Moore, 365 Pa.Super. 65, 528 A.2d 1364 (1987):

“ ‘Ordinarily, a party on appeal who seeks to challenge a guilty [or no contest] plea must first have filed a motion to withdraw the plea in the court where it was entered.’ [citation omitted]. However, ‘the failure to file a petition to withdraw an unlawfully induced plea does not result in a waiver where such failure is due to ineffectiveness of counsel.’ [citation omitted]. A claim of ineffectiveness is an extraordinary circumstance which prevents waiver of claims, [citation omitted]. Here, appellant’s claim that counsel failed to file a motion to withdraw is a sufficient allegation of ineffectiveness to prevent waiver.”

Id. at 69, 528 A.2d at 1366. (emphasis added).

In this case, as in Persinger, we decide that by failing to apprise appellant of the fact that his sentences could be imposed in a consecutive manner, trial counsel caused appellant to enter an involuntary and unknowing plea. Further, in this case, as in Persinger, there was no reasonable basis designed to effectuate appellant’s interests for failing to ensure that the colloquy was adequate, nor for refusing to file a motion to withdraw the pleas when specifically asked to do so by appellant. And, clearly, as in Persinger, appellant was prejudiced by the manifest injustice of his defective plea colloquy. Therefore, we conclude that counsel in this case was ineffective as a matter of law in refusing to file a motion to withdraw the defective plea. Accordingly, appellant’s Per-singer issue has not been waived.

In this case, as in Persinger, it is unnecessary for us to remand for an evidentiary hearing on the issue of counsel’s stewardship, and therefore, we simply vacate appellant’s judgments of sentence and remand this matter for further proceedings.

We now move on to a consideration of the other appeal presently before this Court. This appeal is from the trial court’s denial of appellant’s amended and supplemented PCRA motion at docket number 699 of 1991. Appellant contends that, despite his trial counsel’s knowledge that appellant wished to stand trial on the charges at docket number 699 of 1991, counsel failed to investigate two potential defenses (entrapment and duress) before advising him to plead no contest. Appellant requests that we vacate the trial court’s order denying his motion for post conviction collateral relief and remand this matter back to the trial court for an evidentiary hearing on the issue of trial counsel’s effectiveness.

In cases such as this, our standard of review has been previously stated as follows:

“[ajlthough the right to an evidentiary hearing is not an absolute one, a hearing should be held on any issue which the PC[R]A court is not certain lacks merit. Commonwealth v. Rhodes, 272 Pa.Super. 546, 416 A.2d 1031 (1979). We will only remand for an evidentiary hearing if it is not possible to determine from the record whether the petition is frivolous and without support. Commonwealth v. Payton, 253 Pa.Super. 422, 385 A.2d 410 (1978). Otherwise, «we will affirm if our review of the record evinces that the claims are patently frivolous. Commonwealth v. Taylor, 491 Pa. 205, 420 A.2d 413 (1980).”

Commonwealth v. Heck, 321 Pa.Super. 66, 69, 467 A.2d 896, 897 (1983).

In order to be eligible for PCRA relief, pursuant to 42 Pa.C.S.A. § 9543(a):

“... a petitioner is required to plead and prove, by a preponderance of the evidence, his conviction or sentence resulted from one or more enumerated errors or defects in the proceedings.”

Commonwealth v. Edwards, 417 Pa.Super. 555, 558, 612 A.2d 1077, 1079 (1992), appeal denied, 533 Pa. 656, 625 A.2d 1191 (1993). In the instant case, appellant has pled that his trial counsel provided ineffective assistance of counsel. The PCRA provides relief for a petitioner who received ineffective assistance from his counsel if counsel’s flawed stewardship “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(h). “We have interpreted this to mean that an ineffectiveness claim brought under the PCRA must raise a question of whether an ‘innocent individual’ has been convicted.” Commonwealth v. Grier, 410 Pa.Super. 284, 288, 599 A.2d 993, 995 (1991), appeal denied, 530 Pa. 639, 607 A.2d 250 (1992).

A claim that trial counsel was ineffective for failing to pursue an entrapment defense is cognizable in a PCRA petition because such a claim goes to the innocence of the defendant and calls into question the truth determining process. Commonwealth v. Dukeman, 413 Pa.Super. 397, 605 A.2d 418 (1992). Also for these reasons, appellant’s claim has not been waived pursuant to 42 Pa.C.S.A. § 9543(a)(3)(h). Id.

Thus, following an exhaustive review of the record in the instant appeal, we conclude that:

“[t]he information gleaned from the record before us is insufficient to support a finding [by the trial court] of patently frivolous claims. We must, therefore remand the matter for an evidentiary hearing on appellant’s claim that ineffective assistance of counsel before and during his [no contest] plea hearing rendered his plea involuntary and unintelligent.”

Heck, supra, 321 Pa.Super. at 69, 467 A.2d at 897.

At Superior Court docket number 512 Pittsburgh 1993, we vacate the trial court’s order denying his PCRA petition and remand the matter to the trial court for an evidentiary hearing to be held on the issue of trial counsel’s effectiveness. At Superior Court docket number 513 Pittsburgh 1993, we vacate appellant’s judgments of sentence, and remand for further proceedings on the charges appearing at trial court docket numbers 681, 955 and 1404 of 1990.

      . Appellant’s sentence on count 1 at docket number 699 of 1991 was made concurrent with the sentence he received at docket number 1404 of 1990.

      . The Commonwealth concedes that the plea colloquy was defective as to Counts 3, 5, 7 and 9 at docket number 681 due to the fact that an inadequate factual basis was laid for the pleas by the Commonwealth’s failure to note the dates on which the drug transactions allegedly took place. However, the Commonwealth argues that the rest of appellant’s no contest pleas were knowing, voluntary and intelligent.

      . The Commonwealth also argues that trial counsel cannot be found ineffective in this case because an attorney cannot be found ineffective for failure to anticipate a change in the law. However, the Persinger decision did not reverse the law in this Commonwealth with regard to the requirements of a plea colloquy; it merely clarified it. Indeed, in deciding Persinger, the Supreme Court relied on a previous Supreme Court case, Commonwealth v. Kulp, 476 Pa. 358, 361, 382 A.2d 1209, 1211 (1978), which held that an accused must comprehend the maximum punishment that might be imposed for his conduct before he enters a plea. Furthermore, inasmuch as our Supreme Court has applied the Persinger decision retroactively, we are required to do the same. The Commonwealth’s argument that counsel cannot be held accountable for the defectiveness of the instant plea colloquy is without merit.

      . We note that in this appeal, appellant does not argue that his pleas were unknowing and involuntary in that he was not aware of the fact that his sentences could be imposed consecutively rather than concurrently. This is because in the plea colloquy conducted on May 9, 1991, appellant was apprised that the maximum penalties for the offenses to which he was pleading could be imposed consecutively by the sentencing court.