text:
    500 A.2d 1194
    RUDOLPH ROSA, INC., Eastwood Beer Distributors, Inc., and Mosso Beverage, Inc., Appellees, v. LATROBE BREWING COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 11, 1985.
    Filed Nov. 15, 1985.

      Daniel I. Booker, Pittsburgh, for appellant.
    Thomas R. Betz, Pittsburgh, for appellees.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

This appeal requires that we interpret 1980 amendments to the Pennsylvania Liquor Code and determine their effect on distributing rights agreements in existence prior to the effective date of such amendments.

The appellant, Latrobe Brewing Company, brewers of Rolling Rock beer, and the appellees, Rudolph Rosa, Inc. (Rosa), Eastwood Beer Distributors, Inc. (Eastwood), and Mosso Beverage, Inc. (Mosso) had been parties to agreements entered circa 1966 by which appellant had designated appellees as distributors of its beer in Latrobe and surrounding areas in Westmoreland County. The appointments were for indefinite periods, but each agreement contained a provision that it could be cancelled and the distributorship terminated upon notice by either party.

On June 22, 1980, the Governor approved Act Number 1980-73. By this statute, the legislature amended the Liquor Code, effective in sixty days, by adding the following:

(d)(1) All distributing rights as hereinabove required shall be in writing, shall be equitable in their provisions and shall be substantially similar as to terms and conditions with all other distributing rights agreements between the manufacturer giving such agreement and its other importing distributors and distributors shall not be modified, cancelled, terminated or rescinded by the manufacturer without good cause, and shall contain a provision in substance or effect as follows: “The manufacturer recognizes that the importing distributor and distributor are free to manage their business in the manner the importing distributor and distributor deem best and that this prerogative vests in the importing distributor and distributor the exclusive right to establish a selling price, to select the brands of malt or brewed beverages they wish to handle and to determine the efforts and resources which the importing distributor and distributor will exert to develop and promote the same of the manufacturer’s products handled by the importing distributor and distributor. However, the manufacturer expects that the importing distributor and distributor will price competitively the products handled by them, devote reasonable effort and resources to the sale of such products and maintain a reasonable sales level.” “Good Cause” shall mean the failure by any party to an agreement, without reasonable excuse or justification, to comply substantially with an essential, reasonable and commercially acceptable requirement imposed by the other party under the terms of an agreement.
(2) After January 1, 1980, no manufacturer shall enter into any agreement with more than one distributor or importing distributor for the purpose of establishing more than one agreement for designated brand or brands of malt or brewed beverages in any one territory. Each franchise territory which is granted by a manufacturer shall be geographically contiguous.
(3) Except for discontinuance of a brand or a valid termination for good cause, the purchaser of the assets of the manufacturer as defined in this act shall become obligated to all the territorial and brand designations of the agreement in effect on the date of purchase. Purchase of assets as defined for the purposes of this act shall include, but not be limited to, the sale of stock, sale of assets, merger, lease, transfer or consolidation.
(4) The court of common pleas of the county wherein the licensed premises of the importing distributor or distributor are located is hereby vested with jurisdiction and power to enjoin the modification, rescission, cancellation or termination of a franchise or agreement between a manufacturer and an importing distributor or distributor at the instance of such importing distributor or distributor who is or might be ádversely affected by such modification, rescission, cancellation or termination, and in granting an injunction the court shall provide that no manufacturer shall supply the customers or territory of the importing distributor or distributor by servicing the territory or customers through other importing distributors or distributors or any other means while the injunction is in effect: Provided, however, That any injunction issued under this subsection shall require the posting of sufficient bond against damages arising from an injunction improvidently granted and a showing that the danger of irrevocable loss or damage is immediate and that during the pendency of such injunction the importing distributor or distributor shall continue to service the accounts of the manufacturer in good faith.
(5) The provisions of this subsection shall not apply to Pennsylvania manufacturers whose principal place of business is located in Pennsylvania unless they name or constitute a distributor or importing distribu tor as a primary or original supplier of their products subsequent to the effective date of this act, or unless such Pennsylvania manufacturers have named or constituted a distributor or importing distributor as a primary or original supplier of their products prior to the effective date of this act, and which status is continuing when this act becomes effective.

Act of June 22, 1980, P.L. 253, § 1, 47 P.S. § 4-431(d) (emphasis added) (amending Act of April 12, 1951, supra, § 431, 47 P.S. § 4-431). Section 2 of the same Act of 1980, also effective in sixty days, added subsection (19) to Section 4-492 of the Liquor Code, making it unlawful

(19) For any manufacturer or any officer, agent or representative of any manufacturer to modify, cancel, terminate, rescind or not renew, without good cause, any distributing rights agreement, and in no event shall any modification, cancellation, termination, rescission or non-renewal of any distributing rights agreement become effective for at least ninety (90) days after written notice of such modification, cancellation, termination, rescission or intention not to renew has been served on the affected party and board by certified mail, return receipt requested, except by written consent of the parties to the agreement. The notice shall state all the reasons for the intended modification, termination, cancellation, rescission or nonrenewal. The distributor or importing distributor holding such agreement shall have ninety (90) days in which to rectify any claimed deficiency, or challenge the alleged cause.
If the deficiency shall be rectified within ninety (90) days of notice, then the proposed modification, termination, cancellation, rescission or nonrenewal shall be null and void and without legal effect.
If the notice states as one of the reasons for the intended modification, cancellation, termination, rescission or renewal that the importing distributor or distributor’s equipment or warehouse requires major changes or additions, then if the distributor or importing distributor shall have taken some positive action to comply with the required changes or additions, the distributor or importing distributor shall have deemed to have complied with the deficiency as set forth in the notice. The notice provisions of this section shall not apply if the reason for termination, cancellation or nonrenewal is insolvency, assignment for the benefit of creditors, bankruptcy, liquidation, fraudulent conduct in its dealings with the manufacturer, revocation or suspension for more than a thirty (30) day period of the importing distributor or distributor license.

Act of June 23, 1980, supra, § 2, 47 P.S. § 4-492(19).

On August 16, 1980, prior to the effective date of these amendments, Latrobe Brewing Co. entered new agreements with Rosa and Mosso; and on August 19, 1980, also prior to the effective date of the amendments, a new agreement was entered with Eastwood. Each agreement named the distributor as “secondary importing distributor or distributor for [appellant’s] Rolling Rock Premium Beer” in Westmore-land County. The intent was that appellant, a Pennsylvania manufacturer, should continue to act as primary or original distributor of its product as contemplated by Section 4-431(b) of the Liquor Code, Act of April 12, 1951, supra, § 431, as amended, 47 P.S. § 4-431(b^). Each agreement also contained an express provision that “[the] agreement may be cancelled immediately upon written notice by either party.”

During the summer of 1983, appellant’s employees in Latrobe went on strike. Appellant, therefore, obtained and distributed beer that had been brewed out of state and bottled under the Rolling Rock label. Appellees refused to handle it. After the strike had been settled, appellant terminated its distributing agreements with appellees, effective immediately, and named another distributor for its product in the Latrobe area.

An amicable action was commenced in the Court of Common Pleas of Westmoreland County to determine whether appellant’s immediate termination of appellees’ distributing rights agreements had been in violation of Section 492(19) of the Liquor Code. Acting on stipulated facts, the trial court held that Section 492(19) was binding upon appellant and that its attempt to terminate appellees’ distributing agreements had been “in contravention of that section by failing to give [appellees] ninety (90) days notice of the termination and by failing to afford the [appellees] the opportunity to rectify the claimed deficiency.” Judgment was entered, and this appeal followed.

Appellant’s attempted termination of appellees’ distributing rights agreements without complying with the terms of Section 492(19) is conceded. It is equally clear that Section 431(d)’s proscriptions against terminating distributing rights agreements without cause have no application to the agreements in this case, for they were expressly excluded by Section 431(d)(5). Appellant argues that Sections 492(19) and 431(d) must be read in pari materia. Therefore, appellant argues, the provisions of both 492(19) and 431(d) are inapplicable to

Pennsylvania manufacturers whose principal place of business is located in Pennsylvania unless they name or constitute a distributor ... as a primary or original supplier of their products subsequent to the effective date of this [amendatory] act, or unless such Pennsylvania manufacturers have named or constituted a distributor ... as a primary or original supplier of their products prior to the effective date of this [amendatory] act, and which status is continuing when this [amendatory] act becomes effective.

See: Act of June 22, 1980, supra, § 1, 47 P.S. § 431(d)(5). The agreements entered with appellees prior to the effective date of the Act, appellant argues, specifically named appellees “secondary distributors” so that appellant could continue to act as “primary or original” supplier of its product in Westmoreland County. Appellant argues further that the legislature did not intend that Section 492(19) should have retrospective application so as to alter existing agreements which permitted termination at will by either party. Otherwise, appellant suggests, the amendment to Section 492 would constitute an impairment of contracts in violation of constitutional guarantees.

We agree with appellant that there is an ambiguity, if not an inconsistency, which has been created by Sections 431(d) and 492(19). The trial court, reading the two provisions separately, concluded that the legislature, by adopting Section 492(19) had intended to go beyond the express language of Section 431(d) and make unlawful the immediate termination of a distributor’s rights agreement even under circumstances which the legislature had expressly excluded from Section 431(d)’s proscription against the termination of distributor’s rights agreements without cause.

The function of this Court, of course, is to ascertain and effectuate the intention of the legislature. Commonwealth v. Fisher, 485 Pa. 8, 12, 400 A.2d 1284, 1287 (1979); Sohmer v. Sohmer, 318 Pa.Super. 500, 505, 465 A.2d 665, 667 (1983); 1 Pa.C.S. § 1921(a). In doing so, we must view the statute in its entirety. Causer v. Mandarino, 338 Pa.Super. 564, 568, 488 A.2d 36, 38 (1985). Each section must be read with reference to and in light of other sections of the same statute. Commonwealth v. Mlinarich, 345 Pa.Super. 269, 283-285, 498 A.2d 395, 402 (1985). When parts of the same statute relate to the same persons or things, they are to be construed together, if possible, as one statute. City of York v. Reihart, 475 Pa. 151, 156, 379 A.2d 1328, 1330 (1977); 1 Pa.C.S. § 1932. “Because the object of the rule is to ascertain and carry into effect the legislative intent, it proceeds upon the supposition that the several [parts] were governed by one spirit and policy, and were intended to be consistent and harmonious.... Under this rule, each ... section is construed in the light of, with reference to, or in connection with, other ... sections.” 73 Am.Jur.2d, Statutes § 187 (1974) (footnotes omitted). “Application of the rule ... is most justified, and light from that source has the greatest probative force, ... especially if [sections pertaining to the same subject matter] were passed or approved or take effect on the same day.... In these situations the probability that acts [or sections of the same act] relating to the same subject matter were actuated by the same policy is very high, for in the ... situations mentioned they were passed by the same men____” Turner v. May Corp., 285 Pa.Super. 241, 250, 427 A.2d 203, 207 (1981), quoting 2A Sutherland Statutory Construction § 51.03 at 299 (4th ed. 1973) (emphasis added).

Subsection (d) of Section 431 of the Liquor Code sought to regulate distributing rights agreements and protect distributors from becoming totally subservient to the will of the manufacturer. Thus, after the effective date of the amendment, distributing rights agreements were to be subject to termination by the manufacturer only upon “good cause.” Courts of common pleas were authorized to enjoin terminations which were not based on “good cause.” Subsection (d)(5), however, provided expressly that the provisions of 431(d) should not apply to a Pennsylvania manufacturer, whose principal place of business was in Pennsylvania, unless it named or constituted a distributor as “primary or original supplier of [its] products.” The purpose of this exclusion was, as explained by Senator Zemprelli, to permit “a Pennsylvania manufacturer to act as the primary or original supplier of his products for any designated area, including the entire Commonwealth of Pennsylvania, if he so desires.” Legislative Journal, 164 General Assembly, Senate, Vol. 2, No. 36, at 1743 (June 3, 1980). The significance of the section is, inter alia, that the “good cause” requirement does not apply to Pennsylvania manufacturers unless they name a distributor as a primary or original supplier. Matt Lamb & Sons, Inc. v. Christian Schmidt Brewing Co., 336 Pa.Super. 341, 349, 485 A.2d 836, 840 (1984).

In Section 492(19), the legislature gave meaning to the proscription of Section 431(d) and elected to enforce it by imposing upon the manufacturer a notice procedure which was made a prerequisite to any termination of a distributing rights agreement. Thus, the legislature made it “unlawful” to terminate “any distributing rights agreement” without cause and provided that, except by written consent of the parties, termination was not to become effective until after ninety days’ written notice had been given. During that ninety day period, the distributor could “rectify any claimed deficiency or challenge the alleged cause.”

The language used by the legislature in Section 492(19), it must be conceded, is broad. It is necessary, nonetheless, to determine whether the legislature intended by this section to reinstate the “for cause” requirement to situations where it had said in Section 431(d)(5) that the “for cause” requirement should have no application. We conclude, after lengthy consideration and a review of the entire statute, that the legislature did not intend such an absurd result. Simply stated, the legislature intended to exclude the application of the “for cause” requirements of the statute, whether included in Sections 431(d) or 492(19),

to Pennsylvania manufacturers whose principal place of business is located in Pennsylvania unless they name or constitute a distributor ... as a primary or original supplier of their products subsequent to the effective date of [the] act, or unless such Pennsylvania manufacturers have named or constituted a distributor ... as a primary or original supplier of their products prior to the effective date of [the] act, and which status is continuing when this act becomes effective.

Act of June 22, 1980, supra, § 1, 47 P.S. § 4-431(d)(5). Only in this manner can we interpret the several parts of the amending statute consistently and harmoniously.

Prior to the effective date of the statute, appellant, a Pennsylvania manufacturer whose principal place of business was in Pennsylvania, entered new agreements with appellee-distributors. By the terms of those agreements, the distributors were named secondary distributors of appellant’s products in Westmoreland County; and appellant reserved to itself the right to act as primary or original distributor of its products. The agreements provided further that appellant’s appointment of the appellee-distribu-tors “may be cancelled immediately upon written notice by either party.”

To rely upon Section 492(19) to prevent appellant to terminate its agreements with appellees would require that we apply the amendment retroactively to strike down the right, granted by contract, to terminate the distributing rights agreement immediately upon notice. This would run afoul of the principle that no statute is to be “construed to be retroactive unless clearly and manifestly intended by the [legislature].” Krenzelak v. Krenzelak, 503 Pa. 373, 380, 469 A.2d 987, 990 (1983). A statute acts retrospectively if a vested right or contractual obligation is altered or affected. Burger v. Unemployment Compensation Case, 168 Pa.Super. 89, 94, 77 A.2d 737, 739 (1951). Appellant argues, and we agree, that to require termination of these distributing rights agreements only upon a showing of cause and after ninety days notice would be to apply the amendment retroactively to alter existing contracts.

We also agree with appellant that the legislature did not intend Section 492(19) to have this retroactive effect. Where the application of a statute would make a substantive change in the rights and obligations of the parties, it is presumed that the legislature intended its provisions to have no application to contracts existing prior to the effective date of the law. See: Southwest Distributing Co. v. Olympia Brewing Co., 90 N.M. 502, 508, 565 P.2d 1019, 1025 (1977). See also: McAleer Buick-Pontiac Co. v. General Motors Corp., 95 Ill.App.3d 111, 50 Ill.Dec. 500, 419 N.E.2d 608 (1981); Hein-Werner Corp. v. Jackson Industries, Inc., 364 Mass. 523, 306 N.E.2d 440 (1974); Scuncio Motors, Inc. v. Subaru of New England, Inc., 715 F.2d 10 (1st Cir.1983) (applying Rhode Island law); Excello Wine Co. v. Monsieur Henri Wines, Ltd., 474 F.Supp. 203 (S.D. Ohio 1979). In general, new laws which have the effect of adding requirements or limiting the reasons for terminating franchise or distributing rights agreements are deemed to effect substantive changes and not merely procedural changes. See: Coulter Pontiac, Inc. v. Pontiac Motor Div., General Motors Corp., 4 Ohio App.3d 169, 170-172, 446 N.E.2d 1128, 1130-1131 (1981). The ninety day notice requirement of Section 492(19), even though facially procedural, exists only to give substance to the requirement that distributing rights agreements be terminated only for “good cause.” We are directed, therefore, to presume that the legislature did not intend to make it apply retroactively to contractual provisions in effect prior to the effective date of the statutory amendment.

The legislature has not expressly made Section 492(19) or other substantive provisions of the amendatory statute retroactive. Rather, its affirmative decision to postpone the effective date of the Liquor Code amendments for sixty days suggests an intent to allow Pennsylvania manufacturers to enter contracts expressly permitted by the statute. See: Mobil Oil Corp. v. Rubenfeld, 40 N.Y.2d 936, 390 N.Y.S.2d 57, 358 N.E.2d 882 (1976). In any event, in the absence of an expressly stated legislative intent to apply the statute retroactively, we will not infer that Section 492(19) was to be applied retroactively to render unlawful pre-existing contractual rights to terminate a distributorship immediately and without notice. See: Centre Beverage Co. v. Miller Brewing Co., No. 83-0459, slip op. at 4 (M.D.Pa. Nov. 3, 1983), aff'd for other reasons at 746 F.2d 1465 (3d Cir. Sept. 4, 1984). See also: Excello Wine Co. v. Monsieur Henri Wines, Ltd., supra.

Because we conclude that Section 492(19) is not to be applied retroactively to alter pre-existing contractual rights allowing termination of distributorship agreements, we do not decide whether retroactive application would have constituted an unconstitutional interference with the right of contract.

The order entering judgment for appellee distributors is reversed.

      . Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 et seq.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    500 A.2d 1200
    COMMONWEALTH of Pennsylvania v. Vanders RICHARDSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 6, 1985.
    Filed Nov. 15, 1985.

      Michael A. Jankowski, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before BROSKY, ROWLEY and OLSZEWSKI, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence imposed after a jury trial at which appellant was found guilty of aggravated assault, robbery, carrying firearms in a public street and without a license in a vehicle, and conspiracy.

Appellant raises three issues for our determination: whether the trial court erred by not granting a motion to suppress appellant’s identification due to a suggestive encounter between the victim and appellant at a preliminary hearing; whether initial trial counsel rendered ineffective assistance by failing to appear at appellant’s first scheduled preliminary hearing; and whether the trial court abused its discretion by ruling appellant’s prior criminal convictions could be used for impeachment.

We have carefully reviewed the record and briefs submitted by counsel and find appellant’s issues to be without merit. Therefore, we affirm the judgment of sentence.

On February 17, 1977 Paul Kretovich returned to his car after stopping at a bar to get some beer. As he was getting into his car he was attacked by two males. He was pushed into the car while one of the attackers continually beat him on the head with a pistol. The two attackers jumped into the car, and after driving for ten minutes, pulled over and threw Kretovich out. He summoned the aid of a police patrolman and gave a description and tag number of his car. Thereafter, another police officer spotted the car and began pursuit. The stolen car struck a parked car and the attackers fled on foot. In haste, one of the attackers left some papers and a subpoena addressed to one Allen Whitman on the seat of the car. The next day, Kretovich identified Allen Whitman as one of his attackers. Whitman was arrested and based on information he gave the police, appellant was apprehended.

Kretovich was later subpoenaed to appear at a preliminary hearing in the matter on March 18, 1977. At that hearing only appellant was present, as his accomplice was not transferred from the detention center. Appellant was also without his counsel. The victim saw appellant in the courtroom, but before the hearing could begin it was continued until March 25, 1977.

At trial, appellant moved to have the identification made by Kretovich suppressed, due to the March 18th encounter. His motion was denied. After a jury trial, appellant was sentenced on December 12, 1977. Although appellant’s trial counsel timely filed an appeal to this Court, counsel never filed an appeal brief. Therefore, this Court entered an order of non pros to appellant’s initial appeal. On January 31, 1985, appellant was granted relief under the Post Conviction Hearing Act, “to the extent of permitting the defendant (appellant) to pursue direct appeal nunc pro tunc from his judgment of sentence.”

Appellant first contends that the trial court erred by not granting his motion to suppress the victim’s identification testimony. This issue turns on whether the March 18, 1977 encounter between the victim and appellant at the postponed preliminary hearing was so suggestive that Kreto-vich’s identification testimony became unreliable. There is no indication in the record that the victim’s testimony was rendered unreliable due to the encounter.

The United States Supreme Court addressed the suggestibility issue in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972):

As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Later in Manson v. Bráthwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), the Court said, “We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony____” This Court adopted a similar position in Commonwealth v. Ferguson, 327 Pa.Super. 305, 313, 475 A.2d 810, 814 (1984).

[W]e employ a totality of the circumstances test when determining the reliability of a challenged identification; and, specifically, we consider the following factors:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

In the case before us, Kretovich was no less than positive in his identification of appellant as one of his two attackers. Kretovich had ample time during the commission of the crime to see both men. The record supports a finding of reliability. Any taint of suggestion caused by the March 18, 1977 encounter was far outweighed by the circumstances that led to an unquestionable identification of appellant.

In conjunction with the aforesaid reasoning we also conclude that appellant was not denied effective assistance of counsel. As indicated, the identification of appellant by Kretovich was extremely reliable. Had circumstances been different and the March 18, 1977 hearing not been continued, there may have been some merit to appellant’s contention. However, we can see absolutely no prejudice derived from counsel’s absence at the postponed March 18, 1977 hearing. Absent prejudice to appellant, there can be no claim of ineffectiveness of counsel. Commonwealth v. Larkins, 340 Pa.Super. 56, 489 A.2d 837 (1985).

Appellant, in his final assignment of error, contends that the trial court abused its discretion by ruling that his prior robbery convictions could be used for impeachment. Faced with that ruling, appellant declined to take the stand. The admissibility of evidence of prior convictions for the impeachment of a defendant witness is within the sound discretion of the trial judge, whose decision thereon will not be reversed absent an abuse of discretion. Commonwealth v. Kearse, 326 Pa.Super. 1, 6, 473 A.2d 577, 580 (1984). In exercising its discretion, the trial court must consider the factors enunciated in Commonwealth v. Roots, 482 Pa. 33, 39-40, 393 A.2d 364, 367 (1978):

1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness;
2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecution’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant’s credibility, (footnote omitted).

Furthermore, it is the prosecution’s burden to show that the need for prior conviction evidence overcomes its inherent potential for prejudice. Id.

The Commonwealth asserts that appellant’s failure to testify at his trial precludes appellate review of his Bighum claim, citing the recent United States Supreme Court opinion in Luce v. United States, — U.S. —, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). This assertion is an incorrect statement of the law of Pennsylvania. The decision in Luce is not binding on the courts of this Commonwealth because it is a decision based solely on a Federal Rule of Evidence. Furthermore, we cannot follow Luce as a matter of choice because the decisions of the courts of this Commonwealth clearly reject the Supreme Court’s rationale for its decision.

The decision in Luce is grounded on the notion that, absent testimony by a defendant, an appellate court is unable to give meaningful review to the trial court’s determination that evidence of prior convictions would be admissible for impeachment. The opinion states at-, 105 S.Ct. at 463-464:

“A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant’s testimony, which is unknowable when, as here, the defendant does not testify....
When the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction. If, for example, the Government’s case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect not to use an arguably inadmissible prior conviction.... Because an accused’s decision whether to testify seldom turns on the resolution of one factor,” New Jersey v. Portash, 440 U.S. 450, 467, 99 S.Ct. 1292, 1301, 59 L.Ed.2d 501 (1979) (BLACKMUN, J. dissenting), a reviewing court cannot assume that the adverse ruling motivated a defendant’s decision not to testify. (Footnotes omitted).

After setting forth these and other observations, the Luce court held that to preserve the issue of improper impeachment by prior convictions, a defendant must testify.

To accept this requirement for preservation of a Bighum issue, as the Commonwealth would have us do, would require us to ignore years of contrary case law in Pennsylvania. The appellate courts of Pennsylvania have consistently been able to give meaningful review to Bighum claims in the absence of testimony by defendants. In fact, the two keystone cases which helped to develop Pennsylvania’s law as to the use of prior convictions for impeachment purposes, Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973) and Roots, supra, both involved trials in which the respective appellants had not testified. Since Bighum, supra, the appellate courts of this Commonwealth have continued to provide meaningful review in the absence of testimony by defendants. See, e.g., Commonwealth v. Bunch, 329 Pa.Super. 101, 477 A.2d 1372 (1984); Commonwealth v. Williams, 273 Pa.Super. 389, 417 A.2d 704 (1980); Commonwealth v. Campbell, 244 Pa.Super. 505, 368 A.2d 1299 (1976).

Finally, our courts do not agree with Chief Justice Burger’s observation in Luce, supra, that a defendant’s decision to testify seldom turns on the trial court’s ruling on the use of prior conviction evidence. To the contrary, the Pennsylvania Supreme Court noted in Roots, supra, 482 Pa. at 36, 393 A.2d at 364, that “knowledge that [a defendant’s] past convictions will be revealed to the jury, if he testifies, may well foreclose his only opportunity to present his version of the occurrence.” Therefore, we expressly reject the Commonwealth’s assertion that a Bighum issue is waived where an appellant does not testify at trial.

At the conclusion of the Commonwealth’s case, the trial court excused the jury and held a Bighum hearing to determine whether any of appellant’s past convictions could be introduced for impeachment purposes, if appellant decided to testify. The record of the Bighum hearing conducted by the trial court in the instant case indicates that the Roots factors were properly considered and that the Commonwealth met its burden of proof. The two prior convictions were for robbery and, thus, necessarily reflected upon appellant’s veracity. The convictions sought to be introduced were not stale, having occurred within five years of trial. Most important is the fact that the prosecution’s case rested solely on the testimony of the victim and various police officers. There was no conclusive physical evidence.

Therefore, if appellant had testified, the Commonwealth would have had to attempt to impeach the testimony. In this case, the prosecution had no other means available to impeach appellant’s testimony. Therefore, we find no abuse of discretion by the trial court in its ruling that it would allow evidence of appellant’s two prior convictions for robbery to be used for impeachment purposes. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . The Luce case addresses Federal District Court procedures in applying Federal Rule of Evidence 609(a), 28 U.S.C.A.

      . We recognize that the Pennsylvania Supreme Court is free to diverge from past case law and adopt the rationale and holding in Luce. However, in the absence of such a decision we reject the Commonwealth’s assertion of waiver.


author: PER CURIAM: BECK, Judge,

text:
    500 A.2d 1205
    COMMONWEALTH of Pennsylvania v. Douglas KUPHAL, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1984.
    Filed Nov. 15, 1985.

      Stuart M. Wilder, Assistant Public Defender, Doylestown, for appellant.
    Stephen B. Harris, Assistant District Attorney, Warrington, for Com., appellee.
    Before SPAETH, President Judge, and CAVANAUGH, WICKERSHAM, ROWLEY, OLSZEWSKI, MONTEMURO, BECK, TAMILIA and JOHNSON, JJ.
   PER CURIAM:

Three appeals are before the court. The principal issue is whether the legislative veto provided by 42 Pa.C.S. § 2155(b) is constitutional. On Appeal Nos. 2803 and 2804 Philadelphia 1983, Judge WICKERSHAM, joined by Judges CAVANAUGH, ROWLEY, and JOHNSON, would hold that the legislative veto is not unconstitutional and would affirm. President Judge SPAETH, joined by Judges OLSZEWSKI, MONTEMURO and TAMILIA, would hold that the legislative veto is unconstitutional and would vacate the judgments of sentence. Judge BECK would hold that the legislative veto is unconstitutional but would further hold that the provision providing for the veto is severable; she therefore joins the judges who would affirm. The judgments of sentence on Appeal No. 2803 and 2804 Philadelphia 1983 are therefore affirmed. Appeal No. 2802 Philadelphia 1983 presents only the issue of whether the trial court in imposing sentence abused its discretion. On that appeal, all of the judges agree that the judgment of sentence should be, and it therefore is, affirmed. The several opinions follow.

WICKERSHAM, Judge:

On June 20, 1983, appellant Douglas Kuphal entered guilty pleas in the Court of Common Pleas of Bucks County to three separate informations, charging him with robbery, theft, receiving stolen property, assault, terroristic threats, criminal mischief, and driving under the influence. Following a presentence investigation, appellant was sentenced to concurrent terms of state imprisonment of twelve (12) to thirty-six (36) months and six (6) to twelve (12) months. These sentences were to run consecutively from a county sentence appellant was serving at the time. Following the denial of his motion for reconsideration of sentence, appellant filed these timely appeals.

On appeal, appellant questions the validity of Pennsylvania’s sentencing guidelines, 204 Pa.Code § 303.1 et seq. As in its companion cases, the principal issue in this case is whether section 3 of the Act of November 26, 1978, P.L. 1316, No. 319, 18 Pa.C.S. § 1321(b); transferred by Act of October 5, 1980, P.L. 693, No. 142, to 42 Pa.C.S. §§ 2151-2155, 9721 is unconstitutional. Section 3 of the Act provides for the creation of the Pennsylvania Commission on Sentencing and the adoption of sentencing guidelines by the Commission. Appellant argues that section 3 is unconstitutional and that, therefore, the sentencing guidelines under which he was sentenced, are invalid. We disagree.

The above Act provides that the Sentencing Commission should adopt sentencing guidelines and then publish them in the Pennsylvania Bulletin. After the Commission adopts and publishes the guidelines, “[t]he General Assembly may by concurrent resolution reject [the guidelines] in their entirety ... within 90 days of their publication.” If not so rejected, the guidelines become effective 180 days after publication.

In January 1981, the Commission adopted and published proposed guidelines; these were rejected, however, by a concurrent resolution. In January 1982, the Commission presented a new set of guidelines to the General Assembly. The Senate expressly approved the new guidelines; the House, however, took no action on them within the 90 day period specified by the Act. In May 1982, the Sentencing Commission announced that the General Assembly had “adopted” the revised guidelines. They became effective July 22, 1982.

President Judge Spaeth’s dissenting opinion notes that the Pennsylvania Constitution provides that the legislative power of the Commonwealth, which is vested in both Houses of the General Assembly, may be exercised only with the concurrence of both Houses and after presentment to the Governor. Pa. Const. art. II, § 1; art. III, §§ 1, 4, 5, and 9; art. IV, § 15. The Act under consideration provides thatf the General Assembly, by concurrent resolution, may reject the sentencing guidelines adopted by the Sentencing Commission. President Judge Spaeth argues that such a rejection is an exercise of legislative power and can only be made after presentment to the Governor and that since the Act does not provide for presentment to the Governor, it is unconstitutional.

We do not believe that the General Assembly’s rejection of the guidelines was an “exercise of legislative power”. An “exercise of legislative power” is an act that is legislative in purpose and effect. President Judge Spaeth says that the rejection was legislative in effect because it changed the procedure which sentencing judges would follow. We disagree. Since the guidelines were not in effect at the time of the rejection, the rejection did not change the procedure sentencing judges would follow, but merely maintained the status quo. Thus, we do not see how this can be considered an exercise of legislative power.

We believe that the “legislative power” with respect to the sentencing guidelines was exercised not when the General Assembly rejected the first set of guidelines, but when it passed the Act which created this procedure for adopting the guidelines. The Act itself was passed by both Houses and signed by the Governor. This was the “presentment” required by our Constitution. The rejection of the guidelines was not an “exercise of legislative power” such that it also required presentment to the Governor; hence the sentencing guidelines are not invalid on that ground. We hold that section 3 of the Act is constitutional. Finding no merit to the other constitutional challenges presented by appellant, we, therefore, affirm the judgments of sentence.

Judgments of sentence affirmed.

BECK, J., files a concurring opinion.

SPAETH, President Judge, files a dissenting opinion joined by OLSZEWSKI, MONTEMURO and TAMILIA, JJ.

BECK, Judge,

concurring:

I agree with Judge Wickersham that the sentencing guidelines are constitutional but I reach that determination through a different analysis.

If the legislative veto provision, 42 Pa.C.S. § 2155(b), of the sentencing guidelines legislation were non-severable, I should support Judge Spaeth’s view that the process by which the guidelines came into being is unconstitutional. See Pa. Const. art. III, § 9. But inasmuch as I find that subsections 218(c) and 218(d) of the Act of October 5, 1980 (“Act of 1980”), P.L. 693, make the legislative veto provision severable, I uphold the constitutionality of the sentencing guidelines adopted pursuant to the Act of 1980.

“The public policy of this Commonwealth favors sever-ability” of statutory provisions. Department of Education v. First School, 471 Pa. 471, 478, 370 A.2d 702, 705 (1977). Hence, a statutory provision is presumed severable unless the provision is so interrelated with the statute as a whole that the legislature clearly would not have intended to enact the remainder of the statute without the provision in question, Heller v. Frankston, 504 Pa. 528, 475 A.2d 1291 (1984); 1 Pa.C.S. § 1925, or the wording of the statute specifically rebuts the presumption of severability. See First School.

The language of the severability clause in the Act of 1980 supports the conclusion that the legislative veto provision is severable. In analyzing the severability clause in the Act of 1980, I consider two basic principles of statutory construction: (1) the legislature is presumed to change the wording of a statute in order to signal a change in legislative intent and (2) the legislature is presumed not to intend any provision of a statute as surplusage but rather is presumed to intend that every word in a statute have effect. Masland v. Bachman, 473 Pa. 280, 374 A.2d 517 (1977); Crusco v. Insurance Company of North America, 292 Pa.Super. 293, 437 A.2d 52 (1981).

The Act of 1980 does not adopt the severability language of its predecessor act, the Act of November 26, 1978 (“Act of 1978”), P.L. 1316, which clearly proclaimed that the legislative veto was non-severable. The legislative veto provision of the Act of 1978 appears in section 3 of that act. The severability clause (section 7) in the Act of 1978 states that “[t]he provisions of section 3 [which includes the legislative veto] are not severable and if any provision thereof ... is held invalid, the remainder of section 3 and section 6 shall be invalid.”

The legislative veto provision of section 3 of the Act of 1978 is now contained in subsection 218(a) of the Act of 1980. Subsection 218(d) of the Act of 1980 specifically repeals the severability clause (section 7) of the Act of 1978. The Act of 1980 severability clause appears in subsection 218(c) which declares that “[t]he provisions of subsection (a), 42 Pa.C.S. § 9781 (relating to appellate review of sentence), and section 6 of the act of November 26, 1978 ... are not severable and if any provision thereof ... is held invalid, the remainder of subsection (a), 42 Pa.C.S. § 9781 and such section 6 shall be invalid.”

While the plain meaning of the words in the Act of 1978 severability clause evidences that the legislative veto provision in that act was non-severable, the question remains whether the language in the Act of 1980 precludes sever-ability of the Act of 1980 legislative veto provision.

The severability clause in the Act of 1980 provides that subsection (a), 42 Pa.C.S. § 9781 and section 6 of the Act of 1978 are non-severable from the remainder of the Act of 1980. Guided by the tenets of statutory construction, I interpret the phrase “subsection (a), 42 Pa.C.S. § 9781” to mean subsection (a) of 42 Pa.C.S. § 9781 rather than subsection (a) of section 218 of the Act of 1980.

If the legislature had intended “subsection (a)” to refer to section 218 of the Act of 1980, the legislature could have unequivocally indicated so by inserting the words “of this section” immediately after the reference to subsection (a). This is precisely the technique utilized by the legislature in subsection 218(e) of the Act of 1980 where in a sentence referring, inter alia, to Title 42 (42 Pa.C.S.) and the Act of 1980, the legislature employed the phrase “subsection (c) of this section” to show that subsection (c) related to section 218 of the Act of 1980 and not to Title 42.

Given the repealer provision and the severability clause language in the Act of 1980, I am convinced that nothing in the Act of 1980 forecloses the severability of the legislative veto provision from the rest of the Act of 1980.

Agreeing with Judge Spaeth that the legislative veto provision is unconstitutional, I should strike that single provision of the Act of 1980. However, inasmuch as the Act of 1980 legislative veto provision was not exercised in conjunction with the sentencing guidelines adopted pursuant to the Act of 1980 and is, by my analysis, severable, I should uphold the constitutionality of the remaining provisions of the Act of 1980 and the sentencing guidelines adopted in conformity therewith.

SPAETH, President Judge:

The issue on this appeal and its companion cases is the constitutionality of Section 3 of the Act of November 26, 1978, P.L. 1316, No. 319, providing for the Pennsylvania Commission on Sentencing and the adoption of sentencing guidelines. I should hold that Section 3 of the Act is unconstitutional, from which it follows that the sentencing guidelines, 204 Pa.Code § 303.1 et seq., are invalid. Since in sentencing appellant, the trial court considered the guidelines, the judgments of sentence should be vacated and the case remanded for resentencing. I should further hold, however, that this decision is prospective only and therefore does not apply to cases in which the sentencing guidelines were considered by the sentencing judge but not challenged by the defendant as unconstitutional.

-1-

The Sentencing Code provides that the sentencing judge has discretion to choose from among five sentencing alternatives. 42 Pa.C.S. § 9721 (providing for a sentence of total confinement, partial confinement, probation, fine, or determination of guilt without further penalty). The Code sets general standards by which this discretion is to be exercised, 42 Pa.C.S. § 9721(b), states the principles specific to each alternative, 42 Pa.C.S. §§ 9722-9726, and identifies the factors that weigh in favor of probation, 42 Pa.C.S. § 9722.

By Act of November 26, 1978, the General Assembly provided that the sentencing judge must also consider “sentencing guidelines,” to be adopted by the Pennsylvania Commission on Sentencing. The Act further provided that until guidelines adopted by the Commission became effective, the judge was to “consider as a guideline in imposing sentence” that certain repeat offenders should “be sentenced to a minimum term of not less than four years imprisonment.”

This legislation was the result of widespread interest in the sentencing commission concept. In 1978, the Uniform Law Commissioners’ Model Sentencing and Corrections Act proposed a sentencing commission to develop sentencing guidelines, which would be effective following notice and comment rulemaking procedures and filing in the appropriate state office. § 3-110 et seq. Senate Bill No. 1437, 95th Cong., 2d Sess. (1978), which was the subject of considerable debate, also proposed a sentencing commission to develop sentencing guidelines. And just prior to passage of the Act of 1978, Minnesota had created a sentencing commission to establish guidelines for that state. Since 1978, the sentencing commission concept has gained acceptance in other states and in the Congress, and in 1979, the American Bar Association recommended the use of a commission for setting minimum sentences. Standards Relating to Sentencing Alternatives and Procedures, Standard 18-4.-3(c)(i) (1979).

Under the Act of 1978, the Pennsylvania Commission on Sentencing is specifically authorized to

(1) Establish general policies and promulgate such rules and regulations for the commission as are necessary to carry out the purposes of this subchapter and Chapter 97 (relating to sentencing).
(2) Utilize, with their consent, the services, equipment, personnel, information and facilities of Federal, State, local and private agencies and instrumentalities with or without reimbursement therefor.
(3) Enter into and perform such contracts, leases, cooperative agreements and other transactions as may be necessary in the conduct of the functions of the commission, with any public agency or with any person, firm, association, corporation, educational institution or nonprofit organization.
(4) Request such information, data and reports from any officer or agency of the Commonwealth government as the commission may from time to time require and as may be produced consistent with other law.
(5) Arrange with the head of any government unit for the performance by the government unit of any function of the commission, with or without reimbursement.
(6) Issue invitations requesting the attendance and testimony of witnesses and the production of any evidence that relates directly to a matter with respect to which the commission or any member thereof is empowered to make a determination under this subchapter.
(7) Establish a research and development program within the commission for the purpose of:
(i) Serving as a clearinghouse and information center for the collection, preparation and dissemination of information on Commonwealth sentencing practices.
(ii) Assisting and serving in a consulting capacity to State courts, departments and agencies in the development, maintenance and coordination of sound sentencing practices.
(8) Collect systematically the data obtained from studies, research and the empirical experience of public and private agencies concerning the sentencing processes.
(9) Publish data concerning the sentencing processes.
(10) Collect systematically and disseminate information concerning sentences actually imposed.
(11) Collect systematically and disseminate information regarding effectiveness of sentences imposed.
(12) Make recommendations to the General Assembly concerning modification or enactment of sentencing and correctional statutes which the commission finds to be necessary and advisable to carry out an effective, humane and rational sentencing policy.
42 Pa.C.S. § 2153(a).

The Act further provides that the guidelines adopted by the Commission shall:

(1) Specify the range of sentences applicable to crimes of a given degree of gravity.
(2) Specify a range of sentences of increased severity for defendants previously convicted of a felony or felonies or convicted of a crime involving the use of a deadly weapon.
(3) Prescribe variations from the range of sentences applicable on account of aggravating or mitigating circumstances.
42 Pa.C.S. § 2154.

Finally, the Act provides the procedure by which the guidelines may become effective. Before adopting any guidelines, the Commission must publish proposed guidelines in the Pennsylvania Bulletin, and hold public hearings, at which specified persons and representatives of specified organizations may testify. 42 Pa.C.S. § 2155(a)(1). The Commission must then publish the guidelines, as adopted after such hearings, in the Pennsylvania Bulletin, 42 Pa.C.S. § 2155(a)(2). The guidelines must be adopted and published within 21 months of the Commission’s first meeting. 42 Pa.C.S. § 2155(a)(3). However, when the guidelines have been thus adopted and published, “[t]he General Assembly may by concurrent resolution reject [the guidelines] in their entirety ... within 90 days of their publication.... ” 42 Pa.C.S. § 2155(b). If not so rejected, the guidelines become effective 180 days after publication. 42 Pa.C.S. § 2155(c).

-2-

The Commission on Sentencing began its work in April 1979, and published its proposed guidelines in October 1980. See 10 Pa.Admin.Bull. 4181-96 (Oct. 25, 1980). After hearings, the guidelines were revised, and in January 1981 they were adopted by the Commission and published. See 11 Pa.Admin.Bull. 463-76 (Jan. 24, 1981). However, in April 1981 the General Assembly by concurrent resolution rejected the guidelines. H.Res. 24 (adopted by House, Apr. 1, 1981; adopted by Senate, Apr. 8, 1981). The resolution “urge[d] and direct[ed]” the Commission to “revise and resubmit” the guidelines within six months. Id. In this regard, the resolution

submitted] the following suggestions to the Sentencing Commission as the areas where the Commission should review the initial sentencing guidelines and examine the advisability of revisions:
(1) Increase the upper limit of sentences within each section of the grid.
(2) Provide judges more latitude in sentencing where aggravating or mitigating circumstances are found.
(3) Clarify that the list of aggravating and mitigating circumstances is not exclusive.
(4) Eliminate prior guideline proposal relating to treatment of concurrent or consecutive sentencing practices.
(5) Increase the severity of sentences for crimes involving serious bodily injury or the likelihood or threat of serious bodily injury.
Id.

In October 1981, as instructed by the concurrent resolution, the Commission proposed new guidelines, see 11 Pa. Admin.Bull. 3597-3605 (Oct. 17, 1981), and in January 1982, after hearing and publication, guidelines were again presented to the General Assembly. See 12 Pa.Admin.Bull. 431-40 (Jan. 23, 1982). The Senate expressly approved the new guidelines, S.Res. 227 (adopted by Senate, Apr. 20, 1982), but the House took no action on them within the 90-day period specified by the Act of 1978. 42 Pa.C.S. § 2155(b). In May 1982 the Commission announced that the General Assembly had “adopted” the guidelines, and, in anticipation of their effective date, scheduled training sessions for trial court judges. See 12 Pa.Admin.Bull. 1536 (May 15, 1982). The guidelines became effective July 22, 1982, 204 Pa.Code § 303.1 et seq., applicable to cases in which the offense was committed on or after that date, id. § 303.1(d).

-3-

Before one may consider appellant’s arguments that the sentencing guidelines are unconstitutional, it is necessary to consider the issue of appellant’s standing.

Appellant has no standing to argue that in adopting and promulgating the guidelines as effective, the Sentencing Commission infringed upon the authority of either the General Assembly or the Governor. Cf. United States v. City of Yonkers, 592 F.Supp. 570 (S.D.N.Y.1984) (no standing to raise rights of Congress in case involving statute providing for one-house veto); United States v. Sutton, 585 F.Supp. 1478 (N.D.Okla.1984) (no standing where veto not exercised, for no showing of injury). To have standing, a defendant must be “affected by the particular feature alleged to be in conflict with the constitution.” Commonwealth v. Dodge, 287 Pa.Super. 148, 153, 429 A.2d 1143, 1146 (1981). See also Commonwealth v. Haldeman, 288 Pa. 81, 135 A. 651 (1927). Here, appellant has been affected by the allegedly unconstitutional guidelines. Having committed crimes after the purported effective date of the guidelines, July 22, 1982, appellant was sentenced by a judge who in arriving at the sentence, considered the guidelines, as the Act of 1978 required the judge to do. If the judge should not have considered the guidelines, because they are invalid as adopted pursuant to an unconstitutional Act, then appellant has been injured, and he is entitled to be resentenced without reference to the guidelines. In Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), it was argued that the appellant lacked standing to challenge the constitutionality of a provision in a statute authorizing one House of Congress to veto the decision of the Executive Branch to allow him, a deportable alien, to remain in the United States. The argument was that “Chadha [the appellant] lacks standing because a consequence of his prevailing will advance the interests of the Executive Branch in a separation of powers dispute with Congress, rather than simply Chadha’s private interests.” Id. at 935, 103 S.Ct. at 2776. Rejecting this argument, the Court held:

Chadha has demonstrated “injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury____” [citation omitted].
If the veto provision violates the Constitution, ... the deportation order against Chadha will be cancelled. Cha-dha therefore has standing____
Id.

This reasoning is equally persuasive here. Indeed, if appellant does not have standing to challenge his sentence as imposed on consideration of invalid guidelines, it is difficult to conceive who would have standing.

-4-

In explaining my conclusion, noted at the beginning of this opinion, that Section 3 of the Act of 1978 is unconstitutional, I shall not discuss all of the arguments that have been made to us, for I should find one argument dispositive. This argument may be summarized as follows: The Pennsylvania Constitution provides that the legislative power of the Commonwealth is vested in both Houses of the General Assembly, and may be exercised only with the concurrence of both Houses and after presentment to the Governor. Pa. Const. art. II, § 1; art. III, §§ 1, 4, 5 and 9; art. IV, § 15. The Act of 1978 provides that the General Assembly may reject sentencing guidelines adopted by the Pennsylvania Commission on Sentencing, 42 Pa.C.S. § 2155(b), and since a decision to reject sentencing guidelines is an exercise of legislative power, it must be made with the concurrence of both Houses and after presentment to the Governor. However, the Act of 1978 provides for only the concurrence of both Houses. Id. Since this provision is expressly declared to be not severable, Act of Nov. 26, 1978, P.L. 1316, No. 319, § 7, the entire provision of the Act providing for the Pennsylvania Commission on Sentencing and the adoption of sentencing guidelines must be declared unconstitutional.

-a-

The Constitution of 1776, Pennsylvania’s first constitution, provided for a unicameral legislature and plural executive.’ No provision for an executive veto was included. To provide a method of checking legislative action, the Constitution required the following:

To the end that laws before they are enacted may be more maturely considered, and the inconvenience of hasty determinations as much as possible prevented, all bills of public nature shall be printed for the consideration of the people, before they are read in general assembly the last time for debate and amendment; and, except on occasions of sudden necessity, shall not be passed into laws until the next session of assembly; and for the more perfect satisfaction of the public, the reasons and motives for making such laws shall be fully and clearly expressed in the preambles.
Pa. Const. § 15 (1776).

This governmental structure had its critics from the beginning. See generally R.L. Brunhouse, The CounterRevolution in Pennsylvania 1776-1790 (1942); E. Douglass, Rebels and Democrats (1955); Ryerson, Republican Theory and Partisan Reality in Revolutionary Pennsylvania, in Sovereign States in an Age of Uncertainty (R. Hoffman and P.J. Albert eds. 1981). The critics challenged the effectiveness of the checks on legislative action, but it was not until 1789 that a convention to reconsider the 1776 Constitution was convened. See generally, Ryerson, supra.

The convention resulted in Pennsylvania’s second Constitution, the Constitution of 1790. This Constitution, modeled after the Federal Constitution adopted the preceding year, established our present form of government, creating a bicameral legislature and an executive with veto power. In Commonwealth v. Sutley, 474 Pa. 256, 378 A.2d 780 (1977), the Supreme Court explained our form of government by saying:

In Pennsylvania we embraced the concept of tripartite government with three equal, separate and autonomous branches in an effort to prevent governmental power from becoming concentrated into a single body. It was believed that each branch would act as a check on the other and by this diffusion of power prevent tyranny where the rights of the individual citizen would be ignored.
Id., 474 Pa. at 269, 378 A.2d at 786 (citations omitted).

-b-

It will be recalled that the Act of 1978 provides that sentencing guidelines adopted by the Pennsylvania Commission on Sentencing may be rejected by concurrent resolution of both Houses, without presentment to the Governor, 42 Pa.C.S. § 2155(b), and that here in fact both Houses did by concurrent resolution reject the guidelines adopted by the Commission, with the result that new guidelines were adopted by the Commission. The question must therefore be decided: Was the decision by both Houses to reject the sentencing guidelines an exercise of legislative power? For if it was, the Constitution requires presentment, from which it follows that unless it can be severed, the Act’s provision that there need not be presentment renders the Act unconstitutional.

Although there is a strong presumption of constitutionality, see Commonwealth v. Robinson, 497 Pa. 49, 438 A.2d 964 (1981), appeal dismissed, 457 U.S. 1101, 102 S.Ct. 2898, 73 L.Ed.2d 1310 (1982), nevertheless, I have no doubt that in rejecting the sentencing guidelines, the two Houses engaged in an exercise of legislative power. It is within “[the] exclusive power [of the General Assembly] to determine the penological system of the Commonwealth. It alone can prescribe the punishments to be meted out for crime.” Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 587, 28 A.2d 897, 900 (1942). See also Commonwealth v. Sutley, supra; Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959). Of course, as to any given offender the determination of the precise punishment is decided by the sentencing judge, that is to say, is exclusively within the judicial power. However, the sentencing judge must exercise this judicial power within the limits prescribed by the General Assembly. Two different sorts of limits may be prescribed, the first going to the nature and duration of the sentence that may be imposed, the second, to the procedure that the judge must follow in deciding upon the nature and duration of the sentence. While the Crimes Code prescribes the duration of the possible sentence for a given offense, the Sentencing Code prescribes the nature of the sentence that within this limit may be imposed (total confinement; partial confinement; probation; fine; and determination of guilt without further penalty). The Sentencing Code also prescribes the procedure that the judge must follow in deciding upon the nature and duration of the sentence. For example, the judge must consider whether factors identified in the Code as favoring probation are present, 42 Pa.C.S. § 9722; he must order a presentence investigation report, or state of record why he has not, 42 Pa.C.S. § 9731, suspended insofar as inconsistent with Pa.R.Crim.P., Chapter 14; and he must state of record the reasons for his sentence, 42 Pa.C.S, § 9721(b). When the General Assembly by the Act of 1978 provided for sentencing guidelines, it changed the procedure that the sentencing judge had to follow. Specifically, it provided that

[t]he court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing and taking effect pursuant to section 1385 [now 2155 of Title 42] (relating to publication of guidelines for sentencing)____ In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing pursuant to section 1384 [now 2154 of Title 42] (relating to adoption of guidelines for sentencing) and made effective pursuant to section 1385 [now 2155 of Title 42], the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.
Act of Nov. 26, 1978, P.L. 1316, No. 319, § 1, 18 Pa.C.S. § 1321(b) [now 42 Pa.C.S. § 9721(b) ].

When by concurrent resolution of both Houses the General Assembly rejected the sentencing guidelines that the Commission had adopted, it again changed the procedure that the sentencing judge had to follow. Without the concurrent resolution, the judge would have had to follow the guidelines adopted by the Commission. The concurrent resolution, however, rejected those guidelines as too lenient, thereby prescribing that the sentencing judge was not to consider them, but instead was to consider other guidelines, to be adopted later. This action was as much an exercise of legislative power as was the enactment of the Act of 1978 itself, or the enactment of the Crimes Code, or of the Sentencing Code. The conclusion is therefore inescapable that the provision of the Act of 1978, that such legislative power could be exercised only by the concurrent resolution of both Houses, without presentment to the Governor, is unconstitutional.

-c-

This conclusion is not only confirmed as correct but is required by the decision of the United States Supreme Court in Immigration and Naturalization Service v. Cha-dha, supra. In Chadha, the Court held unconstitutional § 244(c)(2) of the Immigration and Nationality Act, which provided that a resolution by either House would invalidate a decision by the Attorney General to suspend deportation of an alien. The Court reviewed the constitutional prescriptions for bicameralism and presentment to the President, art. I, §§ 1, 7, and concluded that the Framers of the Federal Constitution had decided “that the legislative power ... [would] be exercised in accord with a single, finely wrought and exhaustively considered, procedure.” 462 U.S. at 951, 103 S.Ct. at 2784. It was clear to the Court that the one-House veto was “essentially legislative in purpose and effect ... [because it] alterfed] the legal rights, duties and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the legislative branch.” Id. at 952, 103 S.Ct. at 2784. In this regard, the Court pointed out that neither House had argued that in the absence of the veto provision, it could have ordered the Attorney General to deport an alien whose deportation had been suspended. The Court summarily rejected “the suggestion that the one-House veto provision ... either removes or modifies the bicameralism and presentation requirements” that legislative action must satisfy, observing that “[t]he explicit prescription for legislative action contained in Art. I cannot be amended by legislation.” Id. at 957 n. 22, 103 S.Ct. at 2787 n. 22. Since the one-House veto failed to satisfy the constitutional requirements of bicameralism and presentment, the Court held that the provision authorizing it was unconstitutional.

This reasoning is controlling. While Chadha concerned a one-House veto instead of, as here, a two-House veto, that fact is immaterial. See Consumers Union of U.S., Inc. v. Federal Trade Commission, 691 F.2d 575 (D.C.Cir.1982) (en banc), aff'd sub nom. United States Senate v. Federal Trade Commission; United States House of Representatives v. Federal Trade Commission, 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402 (1983) (two-House veto unconstitutional). It is equally immaterial that Chadha arose under the United States Constitution instead of the Pennsylvania Constitution. See discussion, subsection a, supra. See also Legislative Research Commission by Prather v. Brown, 664 S.W.2d 907 (Ky.1984) (interpreting Kentucky Constitution); Burstein v. Morial, 438 So.2d 554 (La. 1983) (interpreting home rule charter); Planned Parenthood Association v. Department of Human Resources, 297 Or. 562, 687 P.2d 785 (1984) (en banc) (interpreting Oregon Constitution). Compare State ex rel. Stephan v. Kansas House of Representatives, 236 Kan. 45, 687 P.2d 622 (1984), which held provisions permitting the legislature to adopt, modify or revoke administrative rules by concurrent resolution without presentation to the governor unconstitutional under the Kansas Constitution. This conclusion was supported by federal and state decisions, 236 Kan. at 61, 687 P.2d at 636, including Chadha, State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980); Maloney v. Pac, 183 Conn. 313, 439 A.2d 349 (1981); Opinion of the Justices, 121 N.H. 552, 431 A.2d 783 (1981); General Assembly of State of New Jersey v. Byrne, 90 N.J. 376, 448 A.2d 438 (1982).

-d-

The remaining question is whether the unconstitutional concurrent resolution provision of Section 3 of the Act of 1978 may be severed from the other provisions of the section, so that these other provisions may remain in effect.

Under Pennsylvania rules of statutory construction, separate provisions of a statute are presumed severable. However, this presumption is not available, for the Act of 1978 contained an express inseverability clause:

Section 7. The provisions of section 3 [relating to the Pennsylvania Commission on Sentencing] are not severa-ble and if any provisions thereof or the application thereof to any person or circumstance is held invalid, the remainder of section 3 and section 6 [appropriating funds to the Commission] shall be invalid.
Act of Nov. 26, 1978, P.L. 1316, No. 319.

Although reworded in 1980, the legislature again provided that the Act was inseverable:

(c) The provisions of subsection (a) [relating to the Pennsylvania Commission on Sentencing], 42 Pa.C.S. § 9781 (relating to appellate review of sentence), and section 6 [relating to appropriations to the Commission] of the act of November 26, 1978 (P.L. 1316, No. 319), entitled “An act amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, further providing for sentencing and providing for alteration of identification marks on personal property,” are not severable and if any provision thereof or the application thereof to any person or circumstance is held invalid, the remainder of subsection (a), 42 Pa.C.S. § 9781 and such section 6 shall be invalid.
(d) Subchapter G of Chapter 13 (relating to Pennsylvania Commission on Sentencing) of Title 18, and sections 7 and
8(a) and (b) [of the 1978 Act] ... are repealed----
Act of Oct. 5, 1980, P.L. 693, No. 142, § 218.

These changes were made as part of the JARA Continuation Act of 1980, which transferred sections of Title 18, relating to the Commission, to Title 42. Id., § 218(a).

Although this explicit expression of inseverability is by itself sufficient to overcome the presumption of severability, I have also examined the legislative record for evidence of intent. It discloses that indeed the legislature would not have created the Commission and authorized it to adopt guidelines without at the same time reserving the power by concurrent resolution to reject those guidelines. Thus, Representative Scirica, sponsor of the bill, noted that “[bjefore the guidelines become effective, they have to be submitted in their entirety to both Houses of the General Assembly, and we have 90 days to look them over and to decide whether or not to veto them.” Pa.House Leg. J., Sept. 21, 1978, at 3131. In 1981, during the debate on the concurrent resolution rejecting the guidelines adopted by the Commission, Representative Reber pointed out

that when the guideline enactment went into effect allowing you the right to review this, it had to be for a purpose, and I submit it was just this particular purpose that we do want to look at these, if in fact they come back too lenient.
Pa.House Leg. J., Apr. 1, 1981, at 564.

See also Pa.House Leg. J., Apr. 1, 1981, at 566 (remarks of Rep. Hagarty). And in 1982, while debating the Senate resolution that approved the new guidelines, Senator Gekas stated:

We will always have that ability [to reject the guidelines] because the Commission on Sentencing will continue to monitor and report to us and we as a Body will be on top of these guidelines and the sentencing procedures and the whole gamut of the judicial system having to do with sentencing from top to bottom.
Pa.Senate Leg. J., Apr. 20, 1982, at 2160.

(I note in passing that one legislator correctly described the two-House veto as an “end run” around the constitutional requirements applicable to the exercise of legislative power:

I cannot sit down without being critical of the way this whole issue comes before us. It is really being done by an end run and I think the proponents of this very involved sentencing guideline device realize it would have a hard time getting through the Legislature on its own merits.
Pa.Senate Leg. J., Apr. 20, 1982, at 2164 (remarks of Sen. Snyder).)

Since the legislature thus made plain its intention that the provisions of Section 3 of the Act of 1978 should be “essentially and inseparably connected,” 1 Pa.C.S. § 1925, note 23, supra, the conclusion that the concurrent veto resolution provision of the Section is unconstitutional renders the entire Section unconstitutional. The judgment of sentence should therefore be vacated and the case remanded for resentencing under the Sentencing Code.

-5-

I should not apply this decision retroactively, for I have reviewed the various factors used to resolve the issue of retroactivity, and have concluded that sentences imposed since the effective date of the 1982 guidelines need not be vacated. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Commonwealth v. Cain, 471 Pa. 140, 369 A.2d 1234 (1977) (aff'd by an equally divided court) (EAGEN, J., Opinion in Support of Affirmance, joined by JONES, C.J., and POMEROY, J.); Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923 (1969); Commonwealth v. Parrott, 287 Pa.Super. 83, 429 A.2d 731 (1981).

A decision that the two-House veto resolution is unconstitutional was not foreshadowed in previous decisions. Indeed, this court has interpreted various aspects of the sentencing guidelines without intimating that fundamental constitutional problems existed in the Act of 1978. See, e.g., Commonwealth v. Rainey, 338 Pa.Super. 560, 488 A.2d 34 (1985); Commonwealth v. Rivera, 338 Pa.Super. 199, 487 A.2d 923 (1985); Commonwealth v. Smith, 333 Pa.Super. 179, 481 A.2d 1365 (1984); Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984). The parties have pointed out only two other instances in Pennsylvania law that might pose the same constitutional issue raised in this case, and in these instances, the issue apparently has not been raised. Moreover, until Chadha, there was no indication from the United States Supreme Court that Congress’ incorporation of legislative review mechanisms violated the Constitution. See Exxon Corp. v. U.S. Department of Energy, 744 F.2d 98 (Em.Ct.App.), cert. denied sub nom. Energy Reserves Group, Inc. v. Department of Energy, — U.S. —, 105 S.Ct. 576, 83 L.Ed.2d 515 (1984) {Chadha not retroactive in part because Chadha posed issue of first impression not clearly foreshadowed by earlier cases).

In addition, retroactive application of a holding to the effective date of the 1982 guidelines, July 22, 1982, would not further the purpose of the holding, i.e., to preclude continued violation of the presentment provision by the legislature enacting review mechanisms not requiring executive consideration. See Exxon Corp. v. U.S. Department of Energy, supra. It is obvious that my conclusion that Section 3 of the Act of 1978 is unconstitutional does not affect the truth-finding process, which has been a significant fact in determining retroactivity, see Commonwealth v. Cain, supra, 471 Pa. at 162, 164, 166, 369 A.2d at 1245-47 (1977) (EAGEN, J., Opinion in Support of Affirmance, joined by JONES, C.J., and POMEROY, J.), and it does not follow that because a sentence was imposed upon consideration of the guidelines, the sentence was unfair.

Finally, to apply a decision of unconstitutionality retroactively would disrupt the already over-burdened criminal justice system. Cf. Commonwealth v. Cain, supra, 471 Pa. at 163, 369 A.2d at 1245-46 (EAGEN, J., Opinion in Support of Affirmance, joined by JONES, C.J., and POMEROY, J.). According to the Pennsylvania Commission on Sentencing, 29,908 sentences, on 20,529 separate forms, were reported during 1983, as having been imposed for offenses occurring on or after the effective date of the guidelines. Sentencing in Pennsylvania ii (June 1984). Cf. Exxon Corp. v. U.S. Department of Energy, supra at 114. These figures suggest the magnitude of the problem if a decision of unconstitutionality were applied retroactively: it would create havoc. Cf. Commonwealth v. Godfrey, supra, 434 Pa. at 536-37, 254 A.2d at 925; Commonwealth v. Oliver, 251 Pa.Super. 17, 22-23, 379 A.2d 309, 312 (1977); Commonwealth v. Lockhart, 227 Pa.Super. 503, 507-08, 322 A.2d 707, 709 (1974).

For each of these reasons, I should hold that the decision that Act of 1978 is unconstitutional should be applied prospectively only.

The judgment of sentence in No. 2802 Philadelphia 1983 should be affirmed.

The judgments of sentence in No. 2803 Philadelphia 1983 and No. 2804 Philadelphia 1983 judgment of sentence should be vacated and the case should be remanded for resentencing in accordance with this opinion.

OLSZEWSKI, MONTEMURO and TAMILIA, JJ., join this dissenting opinion.

      . The companion cases are: Commonwealth v. Mourar, 03076 Philadelphia 1983; Commonwealth v. Bates, 02941 Philadelphia 1983; and Commonwealth v. Sessoms, 01999 Philadelphia 1983.

      . Appellant’s statement of questions involved were:
      A. Do the sentencing guidelines, 204 Pa.Code § 303.1, result from an invalid delegation of legislative authority by the general assembly in violation of article II, § 1 of the Pennsylvania constitution?
      B. Are the sentencing guidelines, 204 Pa.Code § 303.1, null and void because they were not enacted by a bill by the general assembly in violation of article III, § 1 of the Pennsylvania constitution?
      C. Are all sentences imposed in Pennsylvania necessarily the product of the sentencing guidelines?
      Brief for Appellant at 3,

      . Section 6 of the Act of 1978 appropriates $100,000 to the Pennsylvania Commission on Sentencing.

      . Section 3 of the Act of 1978 encompassed the following subjects: composition and organization of the sentencing commission, powers and duties of the commission, Commonwealth agency cooperation, adoption of sentencing guidelines, publication of sentencing guidelines, and appellate review of sentence. The legislative veto provision appeared under the heading "publication of sentencing guidelines.” Subsection 218(a) of the Act of 1980 contains the following topics: Pennsylvania Commission on Sentencing, composition of commission, powers and duties, adoption of sentencing guidelines, and publication of sentencing guidelines. The legislative veto provision appears under the heading "publication of sentencing guidelines.” Subsection 401(a) of the Act of 1980 covers appellate review of sentence.

      . The subject matter of 42 Pa.C.S. § 9781 (relating to appellate review of sentence) is covered by subsection 401(a) of the Act of 1980.

      . The enabling legislation for the establishment of the sentencing commission authorized to provide sentencing guidelines was passed in accordance with the constitutional requirement of bicameral approval and presentment to the governor.

      . The companion cases are: Commonwealth v. Mourar, 03076 Philadelphia 1983; Commonwealth v. Bates, 02941 Philadelphia 1983; and Commonwealth v. Sessoms, 01999 Philadelphia 1983. In this case, there are three appeals from judgments of sentence. Appeal from judgment of sentence No. 2802 Philadelphia 1983 raises only the question of whether the trial court abused its discretion in sentencing appellant to six to twelve months incarceration. Upon review of the record, I find no abuse of discretion and therefore I should not disturb this sentence. Appeals No. 2803 Philadelphia 1983 and No. 2804 Philadelphia 1983 both raise the constitutionality of the sentencing guidelines.

      . This Act amended various sections of Title 18 (Crimes and Offenses): § 1 amended 18 Pa.C.S. § 1321(b) (general standards for sentencing); § 2 repealed Subchapter G of Chapter 13 of Title 18; § 3 amended Chapter 13 and added Subchapter G, 18 Pa.C.S. § 1381-1386 (providing for the Pennsylvania Commission on Sentencing); § 4 amended 18 Pa.C.S. § 4104 (tampering with records or identification); § 5 established interim guidelines for certain repeat offenses, see note 7, infra; § 6 appropriated money for the Pennsylvania Commission on Sentencing; § 7 provided that the provisions of § 3 were inseverable; and § 8 specified the effective date of the Act and included a sunset provision. The provisions of the Act relating to sentencing were repealed and transferred to Title 42 by the Act of Oct. 5, 1980, P.L. 693, No. 142, §§ 218(a), 401(a). (Act of July 10, 1980, P.L. 513, No. 106, § 3, amended H.B. 1873, which became the Act of Oct. 5, 1980.) Section 3 of the Act of 1978, which is being challenged on this appeal, was transferred by § 218(a) and § 401(a) of the Act of 1980 and now is codified at 42 Pa.C.S. §§ 2151-2155, 9781. For convenience, unless otherwise noted, when I refer to the Act of 1978,1 am referring to § 3 relating to the Pennsylvania Commission on Sentencing as repealed, transferred, and amended.

      . Act of December 30, 1974, P.L. 1052, No. 345, § 1 ef seq., 18 Pa.C.S. § 1301, et seq.; transferred by Act of Oct. 5, 1980, P.L. 693, No. 142, § 401(a) to 42 Pa.C.S. § 9701 et seq.

      . In the case of certain offenses, the sentence is not discretionary but mandatory: murder in the second degree, 18 Pa.C.S. § 1102(b) (life imprisonment); certain offenses committed with a firearm, 42 Pa.C.S. § 9712 (minimum must be at least five years confinement); certain offenses committed on public transportation, 42 Pa.C.S. § 9713 (same); certain second and subsequent offenses, 42 Pa.C.S. § 9714 (same); and murder in the third degree when the offender has a prior conviction for murder or voluntary manslaughter, 42 Pa.C.S. § 9715 (life imprisonment).

      . Act of Nov. 26, 1978, P.L. 1316, No. 319, § 1, 18 Pa.C.S. § 1321(b); transferred by Act of Oct. 5, 1980, P.L. 693, No. 142, § 401(a) to 42 Pa.C.S. § 9721(b). For a discussion of the background of sentencing guidelines in Pennsylvania, see Martin, Interests and Politics in Sentencing Reform: The Development of Sentencing Guidelines in Minnesota and Pennsylvania, 29 Vill.L.Rev. 21, 61-70 (1983-84).

      . Act of Nov. 26, 1978, P.L. 1316, No. 319, § 5 states:
      Pursuant to this section, there is established an interim guideline for the minimum sentencing of certain repeat offenders.
      (a) Until sentencing guidelines adopted by the Pennsylvania Commission on Sentencing and relating to the offenses set out in this subsection become effective pursuant to 18 Pa.C.S. § 1385 (relating to publication of guidelines for sentencing) [repealed; see, now, 42 Pa.C.S. § 2155], when any person is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery, aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) involving the use of a firearm, arson or kidnapping, or of attempt to commit any of these crimes, and when that person has been previously convicted in this Commonwealth, or any other state or the District of Columbia, or any Federal court, of any of the offenses set forth in this section or their equivalent, the sentencing court shall consider as a guideline in imposing sentence that such person be sentenced to a minimum term of not less than four years imprisonment.
      (j) This section shall expire and be deemed null and void upon the effective date of sentencing guidelines adopted by the Pennsylvania Commission on Sentencing relating to the offenses set out in subsection (a).

      . 1978 Minn. Laws 723, Minn.Stat.Ann. § 244.09 et seq.

      . Congress has recently passed the Comprehensive Crime Control Act of 1984, which creates an independent sentencing commission to develop sentencing guidelines. Act of Oct. 12, 1984, Pub.L. 98-473, Title II, § 217, 98 Stat. 2017, 28 U.S.C. § 991-98. Maryland authorizes the judiciary to adopt sentencing guidelines. Md.Code Ann. Art. 27, § 643C. Laws in New York, South Carolina, and Washington provide for sentencing commissions. 1983 N.Y. Laws 711; S.C.Code Ann. § 24-27-10 et seq.; Wash.Rev.Code § 9.94A.040 et seq. In Wisconsin, a sentencing commission was given the authority to promulgate guidelines if the Supreme Court determined it did not have the authority. Wis.Stat.Ann. § 973.011. See Judicial Administration: Felony Sentencing Guidelines, 120 Wis.2d 198, 353 N.W.2d 793 (1984) (holding that the Supreme Court did not have authority to create sentencing guidelines).

      . In addition, the Commission is required to report annually to the General Assembly, the Administrative Office of Pennsylvania Courts, and the Governor, 42 Pa.C.S. § 2153(b), and is granted "such other powers ... as may be necessary to carry out the purposes of this subchapter or as may be provided under any other provision of law....” 42 Pa.C.S. § 2153(c).

      . Act of November 26, 1978, P.L. 1316, No. 319, § 3, 18 Pa.C.S. § 1385(a)(3) provided for an 18-month period. In 1980, the provision was amended to 21 mouths. Act of July 10, 1980, P.L. 513, No. 106, § 3, 42 Pa.C.S. § 2155(a)(3). The 1980 transfer act, see note 2, supra, provided for an 18-month period. Act of Oct. 5, 1980, P.L. 693, No. 142, § 218(b). The Act of July 10, 1980 purported to amend H.B. 1873, which became the Act of Oct. 5, 1980.

      . Other jurisdictions also provide for legislative review. The federal statute provides that the initial guidelines must be submitted to Congress, that the General Accounting Office is to undertake a study and make e report within 150 days, and that guidelines shall not go into effect until six months after submission. Comprehensive Crime Control Act of 1984, Act of Oct. 12, 1984, Pub.L. 98-473, Title II, § 235(a). 98 Stat. 2031. Amendments to the guidelines must also be submitted to Congress and “shall take effect one hundred and eighty davs after the Commission reports them, except to the extent the, effective date is enlarged or the guidelines are disapproved or modified by Act of Congress.” Id., § 217, 28 U.S.C. § 994(o). In Minnesota, "[t]he guidelines shall be submitted to the legislature on January 1, 1980, and shall be effective May 1, 1980, unless the legislature provides otherwise.” Minn.Stat.Ann. § 244.09(12). In New York, the State Committee on Sentencing Guidelines must transmit guidelines to the governor and legislature, and they shall have no force and effect “unless enacted into law.” 1983 N.Y. Laws 711. In Washington, "[T]he legislature shall enact laws approving or modifying either the standards recommended by the sentencing commission, ....” Wash.Rev.Code § 9.94A.070(1).

      . Originally, the effective date was 90 days after publication. See Act of Nov. 26, 1978, P.L. 1316, No. 319, § 3, amended Act of July 10, 1980, P.L. 513, No. 106, § 3.

      . At the beginning of the sentencing hearing, the sentencing judge specifically noted the recommended guideline ranges for burglary and robbery, see N.T. 10/11/83, 3-4, and there can be no question that the judge considered the guidelines in the determination of sentence. See slip op. of tr. ct. at 8. As required under 204 Pa.Code § 303.1(b), the sentencing guidelines forms were included in the records of both appeals, No. 2803 Philadelphia 1983 and No. 2804 Philadelphia 1983.

      . These arguments include arguments presented by amici, Defender Association of Philadelphia, Public Defender Association of Pennsylvania, and the Pennsylvania District Attorneys Association. Although Pa.R.A.P. 521(a) requires that the Attorney General be notified when the constitutionality of a statute is challenged, and here no such notice appears to have been given, cases in which the Commonwealth is a party are excluded from this requirement. See Commonwealth v. Bottchenbaugh, 306 Pa.Super. 406, 452 A.2d 789 (1982).

      . This provision was repealed and added, as modified, by the Act of Oct. 5, 1980, P.L. 693, No. 142, § 218(c) (added, as modified) and (d) (repealed).

      . Pa. Const. § 2 (1776) provided that "[t]he supreme legislative power shall be vested in a house of representatives of the freemen of the Commonwealth, or state of Pennsylvania.” Pa. Const. § 3 (1776) provided that "[t]he supreme executive power shall be vested in a president and council.”

      . The legislature apparently violated both the public notice provision and the "laying over” provision. See A Report of the Committee of the Council of Censors 12-13 (1784). See also Council of Censors, January 19, 1784, in the Proceedings Relative to Calling the Convention of 1776 and 1790, at 69-75 (1825); R.L. Brunhouse, The Counter-Revolution in Pennsylvania 1776-1790 (1942); E. Douglass, Rebels and Democrats 269 (1955); A. Nevins, The American States During and After the Revolution 1775-1789, at 152 (1924).

      . Compare the wording of the bicameral and presentment provisions of the U.S. Constitution, art. I, §§ 1, 7, with the wording of the equivalent provisions of the 1790 Pennsylvania Constitution, art. I, §§ 1, 22, 23.

      . Pa. Const. art. I, § 1 (1790) provided:
      The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.
      This provision was not altered in subsequent constitutions: Pa. Const. art. I, § 1 (1838); Pa. Const. art. II, § 1 (1873).

      . Pa. Const. art. I, § 22 (1790) provided:
      Every bill, which shall have passed both houses, shall be presented to the governor. If he approve, he shall sign it; but if he shall not approve, he shall return it, with his objections, to the house in which it shall have originated, who shall enter the objections at large upon their journals, and proceed to reconsider it. If after such reconsideration two-thirds of that house shall agree to pass the bill, it shall be sent, with the objections, to the other house, by which likewise it shall be reconsidered; and if approved by two-thirds of that house, it shall be a law. But in such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for or against the bill shall be entered on the journals of each house respectively. If any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have been presented to him, it shall be a law, in like manner as if he had signed it, unless the general assembly, by their adjournment, prevent its return; in which case it shall be a law, unless sent back within three days after their next meeting.
      This provision was not substantially altered in subsequent constitutions: Pa.Const. art. I, § 23 (1838); Pa.Const. art. IV, § 15 (1873). Pa.Const. art. I, § 23 (1790) provided:
      Every order, resolution or vote, to which the concurrence of both Houses may be necessary (except on the question of adjournment) shall be presented to the governor, and, before it shall take effect be approved by him, or, being disapproved, shall be repassed by two-thirds of both houses according to the rules and limitations prescribed in case of a bill.
      This provision was not altered in subsequent constitutions: Pa.Const. art. I, § 24 (1838); Pa.Const. art. III, § 26 (1873), renumbered in 1967, art. III, § 9.

      . In his opinion Judge WICKERSHAM suggests that “since the guidelines were not in effect at the time of the rejection, the rejection did not change the procedure sentencing judges would follow, but merely maintained the status quo.” At 576 (emphasis in original). The difficulty with this suggestion, however, is that if the concurrent veto was not an exercise of legislative power, what was it? As Professor Goldsmith has put this point, in his article, INS v. CHADHA and the Nondelegation Doctrine: A Speculation, 35 Syracuse L.Rev. 749 (1984): “If ... an exercise of the veto was not a 'legislative' act, then perhaps the House had no business exercising it at all.” Id. at 753. Also in this regard I note the Supreme Court’s affirmance of Consumers Union of U.S., Inc. v. Federal Trade Commission, 691 F.2d 575 (D.C.Cir.1982) (en banc), aff'd sub nom. United States Senate v. Federal Trade Commission; United States House of Representatives v. Federal Trade Commission, 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402, (1983). There, the Court of Appeals held that a concurrent veto resolution, which prevented a commission’s proposed rule from taking effect, violated procedures established by the Constitution for the exercise of legislative powers. See also Consumer Energy Council of America v. Federal Energy Regulatory Commission, 673 F.2d 425 (D.C.Cir.1982), aff’d sub nom. Process Gas Consumers Group v. Consumer Energy Council of America, 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402 (1983) (affirmance of decision holding unconstitutional one-house veto of Commission’s proposed rule); Allen v. Carmen, 578 F.Supp. 951 (D.D.C.1983) (one-house veto of proposed administrative regulations unconstitutional).

      . This case does not raise the issue of the constitutionality of a statute requiring that before they become effective an agency’s proposed guidelines must be enacted into law. Cf. 1983 N.Y.Laws 711; Wash.Rev.Code § 9.94A.070(1). Nor does it raise the issue of the constitutionality of a statute requiring an agency to report proposed guidelines to the legislature for their consideration and providing for their effective date at the end of a certain period of time in the absence of an act to the contrary. Cf. Comprehensive Crime Control Act of 1984, Act of Oct. 12, 1984, Pub.L. 98-473, Title II, §§ 217, 235, 98 Stat. 2017; Minn.Stat.Ann. § 244.09(12).

      . The Statutory Construction Act of 1972 provides:
      The provisions of every statute shall be severable. If any provision of any statute or the application thereof to any person or circumstance is held invalid, the remainder of the statute, and the application of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds that the valid provisions of the statute are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.
      1 Pa.C.S. § 1925.

      . An earlier version of the bill, Printer’s No. 2164, contained only the following clause:
      The provisions of 18 Pa.C.S. § 1386 (relating to appellate review of sentence) are not severable and if any provision thereof or the application thereof to any person or circumstance is held invalid, the remainder of the section shall be invalid.
      S. 195, § 6.

      . The legislatively-set interim guidelines, see note 6, supra, apparently would not be applicable in this case.

      . The question of retroactivity is not strictly before this court. However, given the potential impact of a decision holding the guidelines unconstitutional, I nevertheless address that issue. Compare Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), where the Supreme Court addressed, without explanation, the retroactivity of its decision affirming a District Court holding that Congressional delegation of jurisdiction to bankruptcy judges under the Bankruptcy Act of 1978 violates Art. III of the Constitution.
      Although I should conclude that a decision holding the guidelines unconstitutional should not be applied retroactively, appellants who have raised and properly preserved the issue posed by this appeal— that the guidelines are unconstitutional for lack of presentment of the concurrent resolution — should receive the benefits of such a decision. Cf. Shea v. Louisiana, - U.S. —, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985); United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).

      . See Regulatory Review Act, Act of June 25, 1982, P.L. 633, No. 181, 71 P.S. § 745.1 et seq.; Sunset Act, Act of Dec. 22, 1981, P.L. 508, No. 142, as amended, 71 P.S. § 1795.1 et seq. (Attorney General Official Opinion, No. 84-3, advised the governor that Sunset Review Resolutions continuing certain bodies are subject to the presentment clause).