author: ROWLEY, Judge:

text:
    483 A.2d 945
    Robert W. THOMAS, Appellant, v. Ruth H. THOMAS.
    Superior Court of Pennsylvania.
    Argued July 11, 1984.
    Filed Oct. 29, 1984.

      Lee A. Montgomery, Butler, for appellant.
    George C. Atwell, Butler, for appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   ROWLEY, Judge:

This is a direct appeal from the final Order of the Court en banc dismissing appellant’s exceptions to the trial court’s order denying a divorce under Section 201(d) of the Divorce Code, 23 P.S. § 201(d). Section 201(d)(1) provides that a court may grant a unilateral divorce, if it determines, after notice and hearing, that the parties have lived separate and apart for at least three years and that the parties’ marriage is irretrievably broken. In this case, the trial court determined that appellant, Robert W. Thomas, was not entitled to a divorce under Section 201(d) because the parties, although separated, had engaged in sexual relations during the three year separation period. Because we find that isolated acts of sexual intercourse during a three year separation period do not necessarily defeat a cause of action in divorce under Section 201(d), we reverse.

On June 2, 1980, Robert Thomas filed a complaint for divorce based upon indignities. On July 22, 1980, appellee, Ruth H. Thomas filed an application to proceed under the new Divorce Code, 23 P.S. §§ 101-801, and her application was granted by the trial court. On December 19, 1980, appellee filed a petition for counseling pursuant to Section 202 of the Divorce Code, 23 P.S. § 202(a), requesting that the divorce proceedings be delayed 90 days and that the parties be ordered to participate in a maximum of three counseling sessions. The trial court ordered counseling and the parties complied with that order. (N.T., August 15, 1983, p. 19). On May 6, 1983, almost three years after the original complaint in divorce was filed, appellant filed an amended complaint and affidavit pursuant to Section 201(d) alleging that he was entitled to a divorce because the parties’ marriage was irretrievably broken and because they had lived separate and apart for three years. On May 20, 1983, appellee filed her counter-affidavit denying that the parties have lived separate and apart for a period of three years. A hearing was then held before the trial court on August 15, 1983.

At the hearing, the testimony indicated that appellant moved out of the residence he shared with his wife on March 1, 1980. Appellant testified that he returned to the marital residence numerous times to visit his son. He stated that he had sexual intercourse with his wife approximately a dozen times during their separation. He testified, however, that his visits with his wife were prompted by the suggestions of the marriage counsellor and his wife’s threats to curtail his visits with his son. Appellee, Ruth Thomas testified that the parties engaged in sexual intercourse approximately 33 times during the separation period and that it was her feeling that the parties’ sexual activities were attempts at making the marriage work. She stated that her husband told her that he was “mixed up” and that he didn’t know what to do about the situation. She also stated that she initiated a few of his visits with her. Both parties testified that the last sexual encounter occurred in December of 1982.

On August 22, 1983, the trial court filed a Memorandum Opinion , and Order denying a divorce. Appellant’s exceptions to the Order were dismissed by the court en banc and the order denying the divorce was approved on October 17, 1983. This appeal timely followed.

In reviewing a divorce case, this court is bound to engage in a de novo evaluation of the record to decide, independent from the master or the trial court, whether a legal cause of action in divorce exists. Jones v. Jones, 311 Pa.Super. 407, 457 A.2d 951 (1983). In this case, the trial court held that the record did not support the grant of a unilateral “no-fault” divorce under § 201(d) because the parties testified that they had engaged in sexual relations during the required separation period. Appellant asserts that the denial of a divorce on that ground was error. We agree.

Section 201(d)(1) of the Divorce Code provides:

It shall be lawful for the court to grant a divorce where a party has filed a complaint and an affidavit alleging that the parties have lived separate and apart for a period of at least three years, and that the marriage is irretrievably broken, and:
(i) the respondent does not deny the allegations set forth in the affidavit; or
(ii) the respondent denies one or more of the allegations set forth in the affidavit, but after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least three years and that the marriage is irretrievably broken.

23 P.S. § 201(d)(1). “Irretrievable breakdown” is defined in the definitional section of the Divorce Code as “[estrangement due to marital difficulties with no reasonable prospect of reconciliation.” 23 P.S. § 104. “Separate and apart” is defined as the “[c]omplete cessation of any and all cohabitation.” 23 P.S. § 104. There is no definition of cohabitation provided in the Divorce Code. Thus, this appeal raises a question not heretofore decided by this Court, that is, whether isolated acts of sexual intercourse constitute “cohabitation”, thereby defeating a claim that the parties have lived “separate and apart” for three years in accordance with Section 201(d).

In Totino v. Totino, 176 Pa.Super. 108, 106 A.2d 881 (1954), a case involving a divorce action on the ground of desertion, our Court defined cohabitation as “living or dwelling together.” Id., 176 Pa.Superior Ct. at 113, 106 A.2d at 883. Similarly, Black’s Law Dictionary defines cohabitation in the following manner:

To live together as husband and wife. The mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations.

Black’s Law Dictionary 236 (rev. 5th ed. 1979), citing Boyd v. Boyd, 228 Cal.App.2d 374, 380, 39 Cal.Rptr. 400, 404 (1964). See Amelio v. Amelio, 18 D. & C.3d 673 (1981) (gravamen of requirement that parties live separate and apart for purposes of Section 201(d) is that parties lead “separate lives”). The legislators did not discuss the meaning of cohabitation in House and Senate debates regarding the definition of “separate and apart”. However, House debates regarding the question whether cohabitation with a person of the opposite sex should serve as a bar to alimony (23 P.S. § 507) reveal that the legislators perceived “cohabitation” as involving more than just sexual relations. This point is illustrated by the following comments of Representative Cunningham, Centre County:

Cohabitation is clearly not remaining at someone’s house overnight. It is clearly not remaining at someone’s house for the weekend. Cohabitation is a definition that has to be viewed in light of the facts of each individual case ... We are talking about a consistent pattern of conduct established over a substantial period of time with one person.

HJ 1843L, reprinted in J.A. Rounick, Pa. Matrimonial Practice, Part 3, Appendix B at 42-43 (1983).

Although our Court has not previously addressed this issue, it has been raised frequently before the Courts of Common Pleas in this Commonwealth. Specifically, we note the recent case of Osborn v. Osborn, 18 Centre Co.L.J. 83 (1983), wherein the trial court granted a divorce under Section 201(d), despite the fact that the parties had engaged in occasional sexual relations and that the wife desired a reconciliation. In that case, the court stated;

We believe cohabitation means more than two spouses seeing each other on an occasional basis after separation and taking a week long trip [together], even if they sporadically engage in sexual relations. We believe the legislature intended cohabitation to mean a more substantial sort of relationship — a renewed marital relationship ... Such a relationship involves significantly more than coition.

Id. at 85. We find that “cohabitation” means the mutual assumption of those rights and duties attendant to the relationship of husband and wife. The ties that bind two individuals in a marital relationship involve more than sexual intercourse. Thus, we find that instances of sexual relations during a separation period do not, without more, defeat a claim that the parties have lived separate and apart for purposes of Section 201(d). That sex is but one part of the many aspects of a normal marital relationship is dramatically illustrated by the case of Ellam v. Ellam, 132 N.J.Super. 358, 333 A.2d 577 (1975). In that case, the parties did not engage in sexual intercourse after their separation and they maintained separate residences. Nonetheless, the testimony revealed that although the husband slept at his mother’s home, he was continually present at the marital home, making sure his wife was well, taking care of the dog, watching television and engaging in conversations with his wife. He kept his car in the garage at the marital home and he spent weekends there doing household chores and occasionally eating his meals there. He testified that he loved his wife and his dog and he did not want the neighbors to know that he and his wife had separated. Basically, when the husband was not at work or attending classes, he spent all waking hours with his wife. Under New Jersey’s “no-fault” divorce statute, a unilateral divorce may be granted if the parties have lived separate and apart in different habitations for an eighteen month period and there is no reasonable prospect of reconciliation. The court in Ellam refused to grant a no-fault divorce on the ground that the parties lived “separate and apart” because the associations of the husband and wife after their separation continued to include a substantial number of the many elements that make up the marital relationship, with the exception of sexual intercourse.

Our holding reflects the public policy of this Commonwealth as declared in the legislative findings and intent outlined in Section 102 of the Divorce Code. Section 102 states that the legislature intended to “[e]ncourage and effect reconciliation and settlement of differences between spouses ...” 23 P.S. § 102(a)(2). A contrary holding in this case would have a chilling effect on efforts at reconciliation. Estranged spouses would be reluctant to attempt a reconciliation if we were to hold that a failed attempt to re-establish the marital relationship causes the three year separation period to begin running anew for purposes of Section 201(d). Our reasoning is in accordance with the law of our neighboring states. For example, in Brittner v. Brittner, 124 N.J.Super. 259, 306 A.2d 83 (1973), the New Jersey Superior Court held that a four week trial reconciliation period did not amount to a renewal of marital ties sufficient to deprive the husband of a cause of action under that state’s unilateral divorce provision. The court stated:

No real reconciliation was achieved, and plaintiff should not be penalized for an unsuccessful attempt at one. To hold otherwise would in general inhibit possible attempts at reconciliation by separated couples, a result to be avoided if possible. And if a divorce must be the ultimate result, what better evidence can be offered that there is no reasonable prospect of reconciliation than that the parties have recently tried and failed?

Id. at 263, 306 A.2d at 85.

In the instant case, the parties maintained separate residences because of marital discord. The husband stated that he visited the marital home either to see his son, to comply with court ordered counseling, or at his wife’s insistence. He testified that he never remained at the marital home overnight after the parties engaged in sexual intercourse. In our view, the fact that the parties engaged in sexual relations does not, by itself, defeat a claim for a unilateral divorce predicated on separation under Section 201(d), especially where there is no other evidence indicating that the parties resumed other aspects of their relationship.

Moreover, we find that the testimony elicited from the parties in this case conclusively demonstrates that there was no reasonable prospect of reconciliation. Thus, the second requirement for a unilateral divorce under Section 201(d) — irretrievable breakdown of the marriage — was also satisfied.

We point out that this action was originally instituted by the husband prior to the enactment of the new Divorce Code on the ground of indignities. Thereafter, appellee-wife was granted leave to proceed under the new Code and the court ordered counseling per her motion in accordance with Section 202(a). Although the parties complied with the counseling order, it did not result in a revival of their marriage. Thereafter, the husband amended his complaint to state divorce grounds under Section 201(d)(1). After notice and hearing, the trial court denied the divorce holding that the record did not support a finding that the parties lived separate and apart and that the marriage was irretrievably broken. The trial judge did not specifically find that there was a reasonable prospect of reconciliation. If he had made such a finding, he would have been bound to continue the matter and order counseling pursuant to Section 202(c). However, he did not take this action. It appears that he denied the divorce upon a determination that occasional sexual intercourse between estranged spouses is inherently inconsistent with the divorce grounds specified in Section 201(d)(1). As discussed above, we do not agree that sexual relations between the estranged spouses in this case tolled the separation period; similarly, we do not agree that the parties’ conduct precluded a finding that the marriage was irretrievably broken.

There was no evidence of record that the parties herein were committed to re-establishing their marriage, other than the fact that they engaged in sexual relations. Appellant stated that he never intended to resume the marital relationship and that he felt that the parties’ problems could not be solved. Indeed, the parties’ unsuccessful efforts at reconciliation were further evidence that their marriage was unworkable. Appellee admitted that appellant never actually said that he was interested in reconciling or starting over. She could only say that she hoped that their physical intimacy would lead to reconciliation. Our review of the testimony convinces us that any hopes she still harbored concerning the viability of this marriage were unrealistic. The facts in this case clearly supported a finding that the parties’ marriage was irretrievably broken.

Accordingly, we reverse the trial court’s order denying the divorce and direct that a divorce be granted pursuant to Section 201(d).

      . 23 P.S. § 202(a) provides:
      Whenever section 201(a)(6) [indignities] is the ground for divorce, the court shall require up to a maximum of three counseling sessions where either of the parties requests it.

      . See, Hepp v. Hepp, 70 Del.Co.Rep. 438 (1983); Osborn v. Osborn, 18 Centre Co.L.J. 83 (1983); O’Brien v. O’Brien, 7 Butler Co.L.J. 17 (1983); Robinson v. Robinson, Montgomery County Court of Common Pleas, Civil Division, No. 78-17749 (Sept. 27, 1982); and Oatman v. Oatman, Erie County Court of Common Pleas, No. 599A-1981 (April 12, 1982), holding that intermittent sexual relations during the separation period are not alone sufficient to deny a divorce under Section 201(d). But see, Caparosa v. Caparosa, Allegheny County Court of Common Pleas, Family Division, No. 1013 Jan. 1981 (Dec. 17, 1981), holding that husband’s five week stay at the marital residence tolled the separation period for purposes of 23 P.S. § 401(e)(4) regarding exclusion of property acquired after separation from equitable distribution.

      . See generally, J.A. Rounick, Pa. Matrimonial Practice, Part I, § 4:4 at 60-62; Comment, Divorce Reform: Pennsylvania Attempts to Break with the Past, 18 Duq.L.Rev. 877, 897-898 (1980).

      . The Delaware Divorce Statute provides in pertinent part:
      Bona fide efforts to achieve reconciliation prior to divorce, even those that include, temporarily, sleeping in the same bedroom and resumption of sexual relations, shall not interrupt any period of living separate and apart, provided that the parties have not occupied the same bedroom, or had sexual relations with each other within the 30 day period immediately preceding the day the Court hears the petition for divorce.

        Del.Code Ann. tit. 13 § 1505(e) (Supp.1978). See also, Sindel v. Sindel, 70 Ohio Op.3d 223, 226 (Ct.App.1975) (isolated acts of sexual intercourse do not constitute cohabitation thereby tolling two year separation period under Ohio Divorce Code where the parties do not otherwise function as husband and wife); Cowsert v. Cowsert, 78 Mich.App. 129, 259 N.W.2d 393 (1977) (isolated acts of sexual intercourse occurring after a divorce action is commenced and one year prior to trial are not sufficient basis to deny a divorce under Michigan no-fault statute); Gold-Bikin & Rounick, The New Pennsylvania Divorce Code, 25 Vill.L.Rev. 617 (1980).

      . See supra note 1.

      . 23 P.S. § 201(d)(2) provides:
      If a hearing has been held pursuant to paragraph (l)(ii), and the court determines that there is a reasonable prospect of reconciliation, then the court shall continue the matter for a period not less than 90 days nor more then 120 days, unless the parties agree to a period in excess of 120 days. During such period, the court shall require counseling as provided in section 202.¹ If the parties have not reconciled at the expiration of the time period and one party states under oath that the marriage is irretrievably broken, the court shall determine whether the marriage is irretrievably broken. If the court determines that the marriage is irretrievably broken, the court shall grant the divorce. Otherwise, the court shall deny the divorce.
      23 P.S. § 202(c) provides:
      Whenever the court orders a continuation period as provided in section 201(d)(2), the court shall require up to a maximum of three counseling sessions within the time period where either of the parties requests it or may require such counseling where the parties have at least one child under 16 years of age.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    483 A.2d 950
    COMMONWEALTH of Pennsylvania, v. Thomas PADDEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 10, 1984.
    Filed Oct. 30, 1984.

      Thomas P. Kennedy, Assistant Public Defender, Scranton, for appellant.
    James J. Walker, Assistant District Attorney, Scranton, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

In this appeal from an order denying a request to vacate sentences alleged to be illegally duplicitous, the issue is whether separate sentences may validly be imposed for the several offenses committed while a burglar attempts to flee from the scene of his crime.

Following a burglary in the City of Scranton, Thomas Padden stole a pickup truck and attempted to elude pursuing police. During a high speed chase covering more than twenty miles, he ran through three road blocks, twice rammed a Scranton police vehicle occupied by Sergeant Saccetti and Patrolman Witkowski, forcing it off the road, and at least three times struck, bumped and rammed a Dickson City police vehicle occupied by Harold Nudelman and engaged in maintaining a rolling road block intended to slow appellant’s vehicle and protect innocent motorists. Appellant was convicted, inter alia, of burglary and of committing three separate aggravated assaults upon Sac-cetti, Witkowski and Nudelman. He was sentenced to prison for not less than three nor more than six years for burglary and was given consecutive sentences of not less than one nor more than three years for each aggravated assault. The total sentence to be served, therefore, was not less than six nor more than fifteen years. A motion to modify the sentence was denied. On direct appeal, the judgment of sentence was affirmed. See: Commonwealth v. Padden, 314 Pa.Super. 209, 460 A.2d 840 (1983). Thereafter, Padden filed pro se a petition to vacate the sentences which he alleged to be illegally duplicitous. The order from which the present appeal has been taken was entered in response to that petition.

The opinion of a panel of this Court, filed in appellant’s direct appeal, demonstrates that the alleged illegality of appellant’s sentences was not then considered. Because an illegal sentence cannot be waived, appellant’s failure to raise it on direct appeal does not preclude our present consideration of the issue. Commonwealth v. Mitchell, 319 Pa.Super. 170, 178, 465 A.2d 1284, 1287-1288 (1983); Commonwealth v. Welch, 291 Pa.Super. 1, 3, 435 A.2d 189, 189 (1981). See: Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Zaengle, 332 Pa.Super. 137, 480 A.2d 1224 (1984); Commonwealth v. Bossche, 324 Pa.Super. 1, 471 A.2d 93 (1984).

In Commonwealth v. Walker, supra, the Supreme Court said:

Analysis of duplicitous sentence questions has traditionally revolved around the concept of injury to the sovereign, in this case the Commonwealth. One of the purposes of the criminal law is to punish offenses against the Commonwealth, as defined by the Legislature, and it follows that, “[t]he criminal prosecution is for the injury done to the Commonwealth, and not for the injury done to the individual who may, if entitled, obtain redress through a civil action. Where there is but one act of cause of injury, or death of a number of persons, there is but one injury to the Commonwealth, but where the acts or causes are separate, they are separate injuries to the peace and dignity of the Commonwealth.” Commonwealth v. Veley, 63 Pa.Super. 489, 496 (1916). See also Commonwealth v. Carroll, 131 Pa.Super. 357, 200 A. 139 (1938); Commonwealth v. Ernesto, 93 Pa.Super. 339 (1928); Commonwealth v. Camwell, 89 Pa.Super. 339 (1926). Therefore, in order to support the imposition of two sentences ... it must be found that [the defendant’s] conduct constituted two injuries to the Commonwealth.

Id. 468 Pa. at 331-332, 362 A.2d at 231.

Applying this principle to the facts of the instant case, it becomes apparent that four sentences were imposed for three separate offenses against the Commonwealth. The first offense occurred when appellant unlawfully entered a service station in the City of Scranton. For this offense he could most certainly be sentenced separately.

Offenses occurring during appellant’s attempted escape from pursuing police thereafter were not essential parts of the burglary, and separate sentences could properly be imposed for each distinct offense occurring during flight. The first of these occurred when appellant rammed and attempted to force the Scranton police vehicle from the road. The evidence showed that appellant was engaged in a continuous effort to escape from the vehicle occupied by Sergeant Saccetti and Patrolman Witkowski, who were engaged in a joint effort to apprehend him. Although the jury found appellant guilty, as charged, of two aggravated assaults during this incident, it seems clear that only one offense against the Commonwealth occurred. This Court has repeatedly held that one vehicular act resulting in death or injury to several persons is a single injury to the Commonwealth for sentencing purposes. Therefore, separate punishments for each person threatened or injured have been held improper. See: Commonwealth v. Zaengle, supra; Commonwealth v. Frisbie, 318 Pa.Super. 168, 464 A.2d 1283 (1983); Commonwealth v. Laing, 310 Pa.Super. 105, 456 A.2d 204 (1983); Commonwealth v. Reynolds, 256 Pa.Super. 259, 389 A.2d 1113 (1978); Commonwealth v. Speelman, 235 Pa.Super. 109, 341 A.2d 138 (1975). For sentencing purposes, appellant’s conduct toward the vehicle occupied by Saccetti and Witkowski was one offense. It did not become two offenses against the Commonwealth, as the trial court seemed to think, because appellant bumped or rammed the police vehicle more than once during the chase. This scenario was no different factually or in legal consequence than an assault consisting of several blows upon the same victim. For sentencing purposes, there is but one assault.

Appellant’s bumping and ramming of the vehicle used by Officer Nudelman to establish a rolling road block, however, constituted a separate aggravated assault for which appellant could be sentenced. Saccetti and Witkowski had been left behind. Nudelman was not attempting to apprehend appellant, from whom appellant was trying to escape. Appellant’s conduct calculated to remove Nudelman from the chase was temporally and geographically separate and distinct from his offense during the earlier pursuit. Thus, it was a separately identifiable offense against the dignity and peace of the Commonwealth for which a separate sentence could properly be imposed. See: Commonwealth v. Walker, supra; Commonwealth v. Adams, 296 Pa.Super. 24, 442 A.2d 277 (1982). See also: Commonwealth v. Dieterly, 294 Pa.Super. 25, 439 A.2d 732 (1981); Commonwealth v. Marker, 231 Pa.Super. 471, 331 A.2d 883 (1974). Moreover, appellant’s later offense was directed toward a separate victim. See and compare: Commonwealth v. Watson, 311 Pa.Super. 89, 457 A.2d 127 (1983) (although separate sentences for indecent assault and corruption of minors were improper because they related to the same criminal act, the court could properly impose separate sentences with respect to each of two victims); Commonwealth v. Marker, supra (several persons blackmailed at or about the same time); Commonwealth v. Lockhart, 223 Pa.Super. 60, 296 A.2d 883 (1972) (several victims robbed during same holdup).

When this Court invalidates one of several sentences, it may either remand for resentencing or vacate the invalid sentence. Commonwealth v. Watts, 319 Pa.Super. 137, 140, 465 A.2d 1267, 1269 (1983); Commonwealth v. Fulton, 315 Pa.Super. 420, 424, 462 A.2d 265, 267 (1983). In the instant case, we are satisfied that the sentence for burglary was not influenced by the sentences imposed for the aggravated assault. This sentence, therefore, will be affirmed. Whether the trial court would have imposed the same sentences for two aggravated assaults if it had known that a third would be invalidated we are unable to ascertain. Therefore, we will vacate the sentences imposed for the aggravated assaults and remand for resentencing.

The judgment of sentence for burglary is affirmed. The several sentences imposed for aggravated assaults are vacated, and those matters are remanded for resentencing in accordance with the foregoing opinion.

Jurisdiction is relinquished.

      . An aggravated assault consists, inter alia, of an attempt to cause “bodily injury to a police officer making or attempting to make a lawful arrest.” 18 Pa.C.S. § 2702(a)(3).


author: SPAETH, President Judge:

text:
    483 A.2d 953
    COMMONWEALTH of Pennsylvania v. Mark SIMMONS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 2, 1984.
    Filed Nov. 2, 1984.

      Cheryl Anne Furey, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   SPAETH, President Judge:

This is an appeal from judgment of sentence for robbery, criminal conspiracy, and theft. Appellant argues that the trial judge should have recused himself. We agree, and therefore vacate the judgment of sentence and remand for new trial.

On January 19, 1981, three men robbed a 78 year-old man at knifepoint, taking his money and car. Appellant and another man were caught after a police chase and were charged with the robbery. Appellant’s counsel filed a petition for a mental examination to determine appellant’s competency to stand trial. The petition was granted, and on November 24, 1981, appellant was found incompetent to stand trial. The psychiatric report stated: “The defendant currently appears to have a major mental illness which would appear to render him unable to cooperate with counsel in his own defense. It is felt that he is not capable of standing trial at the present time. It is recommended that he be committed for a period of 30 days to the Hahnemann Psychiatric Facility at the Philadelphia prisons for further evaluation and treatment.” The trial court ordered appellant committed to the Forensic Unit of the Philadelphia Detention Center for a period not to exceed sixty days. On January 5, 1982, appellant was again examined. The psychiatric report, dated January 25, 1982, stated that appellant’s condition was “consistent with the diagnosis of Schizophrenia-Paranoid Type____” The report further stated that appellant was “able to proceed to trial ... under the condition that he had received medication and inpatient treatment at that time,” and that his paranoia was in remission but he would “need close follow-up ... and continued monitoring.” On February 18, 1982, appellant was found competent to stand trial.

On March 2, 1982, appellant appeared before the trial court to plead guilty. The court conducted an on-the-record colloquy during which appellant admitted his guilt:

Q. [THE COURT]: In other words, by pleading guilty to this count of the robbery information, you are saying that on January 19, 1981, in Philadelphia County, in the course of committing a theft, you threatened a man by the name of Walter Shelton and put him in fear of immediate, serious bodily injury and by means of that, you were able to take his car, wallet and keys. Do you agree that’s what you did?
A. [APPELLANT]: Yes, sir.
N.T. 8/2/82 at 41.

Later in the colloquy the court asked:

Q. Are you pleading guilty because you are, in fact, guilty?
A. I don’t understand what you’re saying.
Q. Are you pleading guilty because you are guilty? MR. DAVIS [ASSISTANT DISTRICT ATTORNEY]: Did you do it, is what he’s asking you?
MR. CORCORAN [DEFENSE COUNSEL]: The judge wants to know if you did do what you’re charged with? Were you with Jerome Gay and did you do what they charged you with?
THE DEFENDANT: No.
BY THE COURT:
Q. What’s that?
A. No.
MR. DAYIS: Can he talk to his lawyer?
THE COURT: Yes.
N.T. 3/2/82 at 44, 45.

After appellant had consulted with his attorney, the Commonwealth presented the facts of the case. The court again questioned appellant:

BY THE COURT:
Q. Mr. Simmons, did you hear the district attorney read that?
A. Yes, sir.
Q. Did you understand what he said?
A. Yes, sir.
Q. Now, do you agree with those facts?
A. No, sir.
Q. Well, a few minutes ago you indicated to me you were guilty. Now you’re saying you’re not guilty, is that what you’re saying?
A. I am not guilty to none of them charges.
Q. May I ask you why did you say you were guilty when we asked you at the very beginning of this?
A. I was talking to my lawyer. I thought I had no choice.
Q. Well, you have a choice. You can plead guilty or you can plead not guilty and go to trial.
Mr. Simmons, do you wish to have a trial?
A. Yes.
Q. A jury trial?
A. Yes.
N.T. 3/2/82 at 50-51.

The court then heard and denied a suppression motion. A jury was selected and dismissed until the next day. However, on the next day, when court resumed, defense counsel informed the court that “both [appellant and his mother] are insisting that he go to trial non-jury,” adding, “Now, I don’t believe that [appellant] is competent to stand trial.” N.T. 3/3/82 at 3. Counsel requested another psychiatric evaluation. The court granted the request. Appellant was examined, and the psychiatrist testified that in his opinion appellant had “a rational and factual understanding of the proceedings” and “[psychologically [he] saw no reason why [appellant] could not proceed to trial----” N.T. 3/3/82 at 22, 23. The court then asked counsel their positions. The assistant district attorney responded that he had no objection to appellant waiving a jury and proceeding to trial before the court “so long as several things were clear” to appellant: “Number one, that [appellant] is in the career criminal program and the Court would know, of course, that he has a record of at least two felonies. The second thing is that Your Honor heard him attempt to tender a guilty plea yesterday and there is a possibility that might affect Your Honor.” N.T. 3/3/82 at 25. Defense counsel then asked the trial judge to recuse himself, but the judge refused:

MR. CORCORAN: Your Honor, I think it would be incumbent upon me to ask the Court to recuse himself because of the guilty plea and the things that were said during the guilty plea and the testimony that was heard in the [suppression] motion.
THE COURT: Well, I would be very glad to recuse myself if some other judge in the program [career criminal program] would take the case as a waiver judge. However, there are no particular judges available at this time.
N.T. 3/3/82 at 25-26.

We hold that the trial judge should have recused himself. Appellant’s right to be tried before an impartial judge should not have been subordinated to the administrative matter of the availability of another judge assigned to a particular program. In Commonwealth v. Goodman, 454 Pa. 358, 362, 311 A.2d 652, 654 (1973), the Court held: “[A] judge should honor a request for recusation where prejudicial information is received in a pre-trial proceeding that would be otherwise inadmissible during the trial of the cause.” In Commonwealth v. Conti, 236 Pa.Super. 488, 345 A.2d 238 (1975), this court held that a new trial was required where in a non-jury trial the trial judge was informed through testimony that the defendant had pleaded guilty at his preliminary hearing. And in Commonwealth v. Walls, 261 Pa.Super. 321, 325 n. 2, 396 A.2d 419, 421 n. 2 (1978), we stated: “In a case where the judge hears highly prejudicial testimony, such as a withdrawn guilty plea, he should recuse himself from sitting as factfinder....” See also, Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978) (trial counsel held ineffective for failing to request recusal in non-jury trial where judge had heard withdrawn guilty plea).

The Commonwealth, citing Commonwealth v. Casella, 312 Pa.Super. 375, 458 A.2d 1007 (1983), argues that the trial judge, unlike a jury, was capable of disregarding prejudicial matters. Casella, however, was an unusual case and must be limited to its facts. The defendant there was charged with burglary, criminal trespass and simple assault. The testimony at the trial was that the defendant

secretly entered a woman’s apartment; that when discovered, he refused to identify himself; that he had “a hankie on his face and a pair of gloves and a rope around his neck,” N.T. 11/9/79 at 12; that when the woman began screaming, he came toward her and put his hand over her mouth to stop her screaming; and that eventually he ran off. Id. at 13.
Id., 312 Pa.Superior Ct. at 376, 458 A.2d at 1008.

The defendant pleaded guilty to criminal trespass and not guilty to burglary, but then changed his plea to not guilty on both charges, and proceeded to a non-jury trial before the judge who had heard his withdrawn guilty plea. The judge found him guilty and imposed two sentences: one for criminal trespass and one for burglary. On appeal, the defendant argued that the offenses merged and that the judge should not have imposed two sentences. We agreed, holding that there had been only one unlawful entry, and we therefore vacated the sentence for criminal trespass. The defendant also argued that counsel was ineffective for failing to ask the trial judge to recuse himself. We held that in the particular circumstances the judge was not required to recuse himself, explaining that

a judge may be relied upon to know — as a jury may not be — that a guilty plea is not an unambiguous event. Even so, if this were only a criminal trespass case, we might remand for a hearing, at which counsel could explain why he didn’t ask the judge to recuse himself. But as our discussion of merger has shown, this is not a criminal trespass case but a burglary case, and as to the charge of burglary, appellant pleaded not guilty
Id., 312 Pa.Superior Ct. at 379, 458 A.2d at 1009.

The situation in this case is entirely different. Here the guilty plea was an unambiguous event. There could be no doubt about the legal significance of the acts charged, and there was no question that appellant had admitted his guilt to the trial judge. Thus the judge knew things he could not possibly put out of his mind. In these circumstances the judge’s partiality could reasonably be questioned. Indeed, at one point, before he deferred to administrative considerations, the trial judge recognized this fact, and cautioned defense counsel: “I’ll tell you. I don’t think it is a very good idea. I heard him practically plead guilty yesterday.” N.T. 3/3/82 at 10.

The Commonwealth argues that “appellant must point to some specific acts of bias or prejudice.” Brief for Commonwealth at 5. However, such a showing is unnecessary where the trial judge has heard a guilty plea. In Commonwealth v. Goodman, supra, the Court held:

Justice ... requires that we relieve the defendant of the responsibility of establishing that the information in fact influenced the court’s decision. If it is established that the information received during the pre-trial proceed- ' ing would have been incompetent in the subsequent proceeding and that it was of a sufficiently inflammatory nature to arouse a prejudice against the defendant he need not demonstrate that the information actually influenced the court’s actions. We are impressed with the wisdom of the ABA § 1.7 Standards Relating to the Function of the Trial Judge which provides:
“The trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can be reasonably questioned.” (Emphasis supplied).
Id., 454 Pa., at 361, 311 A.2d at 654.

Finally, the Commonwealth argues that appellant waived his right to be tried before another, impartial, judge. In some circumstances a party may waive his right to have a judge recuse himself, Commonwealth v. Corbin, 447 Pa. 463, 291 A.2d 307 (1972); Commonwealth v. Stanton, 294 Pa.Super. 516, 521 n. 6, 440 A.2d 585, 588 n. 6 (1982), but here there was no waiver.

Defense counsel twice moved for recusal. N.T. 3/3/82 at 25-26, 50. Each time the trial judge refused to recuse himself, stating that no other judge in the career criminal program was available to hear the case. Immediately after his first refusal to recuse himself, the trial judge made the following statement to appellant:

THE COURT: The jury has been picked. I’d like to say this to the defendant.
Sir, what is your request? You have a right to waive— you have the right to waive a jury trial. Your choice is either myself and I do know that you tried to plead guilty. At some point you admitted some things yesterday in the guilty plea colloquy. You may not have — the record will speak for itself. You may not have bluntly stated that you did the acts complained of, but you implied it in some way during the guilty plea colloquy. You then indicated that you were not guilty at some point in the colloquy and we went ahead and ordered the jury panel and picked the jury.
So you have your choice in trying the case before me. I was present. I do know that you withdrew from entering a guilty plea.
I also know that you have a record because you would not be in the career criminal program if you didn’t have a record.
My recommendation to you is to go ahead with the jury. If you insist on having a non-jury trial before me, I will hear your case and I’ll do my very best to be fair about that.
N.T. 3/3/82 at 27-29 (emphasis added).

The trial judge then stated that he wished appellant and his mother to know that if appellant waived a jury, “the sentence is not going to be any different. I’m not going to hold it against him because he requested a jury trial.” N.T. 3/3/82 at 29. When defense counsel then indicated that he understood from appellant’s mother that appellant “wants to go non-jury”, id., the trial judge, after the mother had been sworn, asked the mother whether she knew why appellant “wishe[d] to waive a jury trial before me as the Judge,” to which the mother replied, “I don’t know, Your Honor”. N.T. 7/3/82 at 31. The judge then questioned appellant:

BY THE COURT:
Q. Mr. Simmons, yesterday you had what is known as a colloquy, that’s a discussion between the Judge and there was some discussion about your pleading guilty in the case, is that correct?
A. Correct.
Q. You said at the end that you were not guilty and wished to have a trial. We then brought in a jury panel and picked a jury.
Now I understand you wish to waive a jury trial and just have the case before me for some reason, is that right?
A. Yes.
Q. Any particular reason why you wish to do that? A. No, sir.
Q. Which would you rather have, a judge hear the case, which would be me, or a jury which has already been picked?
A. You.
Q. Why would you want to have me since I heard something about some possibility of you pleading guilty? I heard that. Do you understand that?
A. Yes, sir.
Q. Also I know that you have a record or you would not be in what is called the career criminal program. Do you understand that?
A. Yes.
Q. You still wish to have me hear the case without a jury?
A. Right.
Q. Are you sure about that?
A. Yes, sir.
THE COURT: Do you have any comment Mr. Corcor-an?
MR. CORCORAN: No, sir.
THE COURT: Let me talk to the lawyers for a minute. (Off the record conversation between counsel and the Court).
THE COURT: Since the defendant has indicated he prefers to have a judge, namely myself, hear the case rather than a jury, I’ll hear the case.
N.T. 3/3/82 at 32-34 (emphasis added).

On this record we cannot find that appellant waived his right to be tried before another, impartial, judge. Appellant was presented with an improperly restricted choice (“Your choice [is] in trying the case before me”. “Which would you rather have, a judge hear the case, which would be me, or a jury....?”) He was never given the choice of having a judge whose impartiality could not reasonably be questioned hear the case. It was especially important to make sure that appellant understood that he had a right to a different judge, given the psychiatric evaluations of appellant’s mental condition.

When defense counsel argued in support of appellant’s post-trial motions that the trial judge should have recused himself, the judge responded:

MR. CORCORAN: Your Honor, through all that you have read, it’s in the record there you told him his choice was a jury trial or a nonjury trial in front of you. I believe that the proper thing would have been to disqualify yourself and sent it back to [Room] 625.
THE COURT: No sir, I couldn’t do that for reasons I have explained to you. There were no other Judges in the career criminal program and we have the situation which happens quite a bit. Lawyers for the defense attempt to get out of this program by requesting a nonjury trial. It happens a lot. Public Defenders have a standard ploy at this time. They use it almost every day, every case.
MR. CORCORAN: I’d like to indicate for the record that I am not from the Public Defender’s Office.
THE COURT: I know you are not. I am saying this is a very common effort to try and get out of the career criminal program. First you try to waive a jury trial and then you say the Judge should recuse himself because he knows he has a record because he’s in the career criminal program. It has been tried in the various high percentage of the cases that have come before me.
MR. CORCORAN: That may be so. I have no knowledge of that. I think Your Honor would agree from the record, up to that point that that wasn’t our intention. THE COURT: I am not saying it was. I am not trying to guess your motive. I am only saying this type of situation develops regularly and if it were permitted to take place, there would not be any career criminal program because everybody would attempt to get out of it by using that device.
N.T. 6/15/82 at 12-13.

We do not find this statement by the trial judge persuasive. It acknowledges that appellant’s counsel was not engaged in a “ploy”, and as already discussed, the administrative availability or not of “other Judges in the career criminal program” was not a sufficient reason for the judge to refuse to recuse himself.

The judgment of sentence is vacated and the case is remanded for a new trial before a different judge.

      . The Commonwealth argues that at the post-verdict motions hearing defense counsel abandoned this argument. On the contrary, counsel pressed the argument with vigor, N.T. 6/15/82 at 2-16, and the trial court responded, both at the hearing, id., and in its opinion, slip op. at 9-20.

      . We need not address appellant’s other arguments, which are: 1) that the court erred in permitting hearsay testimony at the sentencing hearing; 2) that the court erred in refusing to allow a psychiatric examination to determine appellant’s sanity at the time of the incident; and 3) several instances of alleged ineffectiveness of counsel.


author: WICKERSHAM, Judge:

text:
    483 A.2d 959
    COMMONWEALTH of Pennsylvania v. Harry PHILLIPS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 30, 1983.
    Filed Nov. 2, 1984.

      Harry Phillips, in propria persona.
    Thomas F. Morgan, Dist. Atty., Clearfield, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and POPOVICH, JJ.
   WICKERSHAM, Judge:

A warrant of arrest was issued against appellant, Harry Phillips, on charges of Burglary, Theft by Unlawful Taking and Receiving Stolen Property. Phillips was held in the Clearfield County Jail pending trial and he escaped from the County Jail and was arrested on September 9, 1974 on a charge of escape. He waived indictment by the Grand Jury and was once again placed in the Clearfield County Jail to await trial. On October 3, 1974, the Appellant, represented by counsel, Barry P. Tumpson, Esquire, entered a plea of guilty to the Burglary and Escape charges in accord with a negotiated plea agreement. Sentencing was scheduled on October 30, 1974, at which time Phillips, through his counsel, requested that the pleas of guilty be withdrawn. The request was granted, and the Appellant was held pending the next term of criminal court. Subsequent to the entry of his plea of guilty on October 3, 1974, Phillips was arrested on additional charges of Burglary, Theft by Unlawful Taking and Receiving Stolen Property. Appellant entered into a negotiated plea agreement with regard to all of the above charges and was sentenced on December 10, 1974. The terms of the plea bargain and sentence were that Appellant would receive a term of incarceration of ZVz to 7 years on the Escape charge, 1 to 2 years on each of the Burglary charges and 6 to 12 months on the Criminal Trespass charge. All sentences to be served concurrently. Phillips on June 2, 1975 then filed a petition seeking reconsideration of the sentences which had been imposed. Following hearing held July 11, 1975, the Court denied the requested reconsideration by Order dated October 14, 1975. Appellant on November 19, 1975 filed a petition seeking relief under the Post Conviction Hearing Act. John Sughrue, Esquire, Public Defender, was appointed to represent the Appellant, and a hearing was held on January 21, 1976. By Order of Court dated January 22, 1976, the petition was denied and Appellant filed an appeal. In Commonwealth v. Phillips, 248 Pa.Super. 400, 375 A.2d 158 (1977) we affirmed the Order of the lower court.

On January 9, 1981, Phillips filed a second petition seeking relief under the Post Conviction Hearing Act. The Court of Common Pleas of Clearfield County by Order dated January 25, 1982 denied the relief requested without a hearing, and this appeal was taken.

Appellant states the first issue as follows:

1. Whether appellant’s post conviction hearing act petition was properly denied without hearing and appointment of counsel?

Brief for Appellant at 2.

We agree with appellant that his petition was improperly denied; therefore, we will reverse and remand for appointment of counsel.

The lower court denied appellant’s petition on the basis that the issues either had been previously litigated or had been waived by failure to assert them at an earlier opportunity (i.e., in his first PCHA hearing).

The lower court found that some of the allegations raised in appellant’s petition concerning the validity of his guilty plea were previously resolved against him in his first post conviction proceeding. While this is true, a review of the record indicates that in this appeal, appellant has abandoned those issues that were previously litigated. None of the issues raised in appellant’s brief have been finally decided; thus, they are cognizable in this appeal.

We also find that none of the issues stated by appellant are waived. Essentially, appellant’s brief raises two assignments of error in the original trial court proceedings against him: (1) a defective guilty plea colloquy, and (2) denial of his right to formal arraignment. These assignments of error are stated as issues three and four in his appellate brief.2 Appellant’s issue two alleges that his guilty plea counsel was ineffective in failing to challenge the defects in the colloquy and the denial of his right to formal arraignment, and that his first post conviction proceeding counsel was ineffective in failing to challenge prior counsel’s effectiveness as to these claims. These issues are not waived. In Commonwealth v. Von Smith, 486 Pa. 564, 406 A.2d 1034 (1979), the Pennsylvania Supreme Court stated:

[A]ppellant did not waive the issue of ineffective assistance of counsel by failing to raise it on direct appeal or in his first PCHA petition. In Commonwealth v. Dancer, this Court held that claims of ineffectiveness may be raised in PCHA proceedings “where petitioner is represented on appeal by his trial counsel, for it is unrealistic to expect trial counsel on direct appeal to argue his own ineffectiveness.” 460 Pa. 95, 100, 331 A.2d 435, 438 (1975). Where, as here, appellant’s assigned counsel for his first PCHA petition is a member of the same office that represented appellant at trial, there is no waiver of the ineffectiveness claim.

Id., 486 Pa. at 566 n. 2, 406 A.2d at 1035 n. 2.

Instantly, appellant’s guilty plea counsel and his first PCHA counsel were members of the same public defender’s office. Thus, his claims are not waived.

Furthermore, appellant has proceeded pro se both in his second PCHA proceeding and in this appeal. “[A] court cannot dismiss a petition summarily without appointment of counsel on grounds that the issues sought to be raised have been waived.” Commonwealth v. Miller, 325 Pa.Super. 163, 166, 472 A.2d 698, 700 (1984). Accord, Commonwealth v. Wallace, 322 Pa.Super. 157, 469 A.2d 230 (1983). Since the issues raised in appellant’s second PCHA petition were not finally determined in prior proceedings, the post conviction court erred in dismissing the petition summarily without appointing counsel. Miller, supra. Upon remand, appointed counsel shall be permitted to file an amended PCHA petition and shall represent appellant in an evidentiary hearing if such a hearing is deemed necessary. Commonwealth v. Moyer, 329 Pa.Super. 282, 478 A.2d 469 (1984).

Reversed and remanded. Upon remand, we instruct the lower court to appoint counsel to represent appellant. Jurisdiction is not retained.

      . 42 Pa.C.S.A., §§ 9541-9551, Act of May 13, 1982, P.L. 417, No. 122, § 2.

        3. Whether appellant's guilty pleas were knowingly and voluntarily entered when the record fails to demonstrate that he was advised of the nature of the charges against him and the essential elements of his right to a jury trial?
      4. Whether appellant was denied due process of law when he was denied his right to a formal arraignment of the charge of escape, as required by Pennsylvania Rules of Criminal Procedure 303(a)?
      Brief for Appellant at 2-3.

      . Appellant states issue two as follows:
      2. Whether the assistance of trial and post conviction counsel who were from the same public defender’s office was constitutionally effective when they failed to challenge the defects in the guilty plea colloquy, and appellant's right to formal arraignment?
      Brief for Appellant at 2.


author: DEL SOLE, Judge:

text:
    483 A.2d 961
    COMMONWEALTH of Pennsylvania, Appellant, v. Kenneth B. GOBLE.
    Superior Court of Pennsylvania.
    Argued Aug. 2, 1984.
    Filed Nov. 2, 1984.

      William M. Kern, District Attorney, Clarion, for Commonwealth, appellant.
    Ralph L.S. Montana, Clarion, for appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

This is an appeal by the Commonwealth from an Order quashing informations charging appellee with, inter alia, Homicide by Vehicle, 75 P.S. § 3732 (1977), and Driving under the Influence, 75 P.S. § 3731(a)(l)(3) (1977).

The two charges which are relevant to this appeal read as follows:

COUNT 1: HOMICIDE BY VEHICLE: At the aforesaid time and place, the Actor, while driving a motor vehicle, did unintentionally cause the death of Jeffrey Alan Spangler while engaged in the violation of any law of the Commonwealth applying to the operation or use of a vehicle, to wit: Actor drove a 1982 Chevrolet Caprice Classic station wagon westbound on U.S. 322 into a curve to the left at a speed greater that was reasonable and prudent under the conditions and failed to negotiate said curve in violation of Vehicle Code Section 75 P.S. 3361 and/or Actor did drive the aforementioned vehicle in a careless manner with disregard for the safety of persons or property in that Actor attempted to negotiate said curve and having failed to negotiate the curve failed and neglected to maintain control of his vehicle and failed to bring his vehicle to a safe stop in violation of Section 75 P.S. 3714 (Reckless Driving), in violation of Section 3732 of the Pennsylvania Vehicle Code of 1976, as amended, 75 P.S. 3732, (emphasis added)
COUNT 2: DRIVING UNDER THE INFLUENCE OF ALCOHOL OR CONTROLLED SUBSTANCE: At the aforesaid time and place, the Actor did drive the aforementioned vehicle while under the influence of alcohol or a controlled substance or a combination of both to a degree which rendered him incapable of safe driving, to wit: the Actor’s ability to drive was impaired to a degree that he was unable to negotiate a curve and having failed to negotiate the curve was unable to react in time to bring the vehicle to a safe stop, in violation of Section 3731(a)(l)(3) of the Pennsylvania Vehicle Code of 1976, as amended, 75 P.S. 3731(a)(l)(3), (emphasis added)

The trial court quashed the informations for lack of specificity solely because of the use of the disjunctive “or”, rather than the conjunctive “and”, in the wording of the charges.

We find that the informations more than adequately advised the appellee of the charges against him. Therefore, we reverse the order of the trial court and reinstate the informations.

In so concluding, we adopt the reasoning of this Court in Commonwealth v. Schuler, 157 Pa.Super. 442, 43 A.2d 646 (1945):

“We shall resist the temptation to indulge in a profitless exercise in ancient and sterile dialectics. The difference between disjunctive and conjunctive pleading is mostly the difference between tweedledum and tweedle-dee, and modern jurisprudence, which appraises substance and not form as its essence, accords to such useless learning only a nodding acquaintance. What earthly difference is there between “or” and “and” in a count when the end result is that defendant in both instances must be prepared to meet both or all charges?” Id., 157 Pa.Superior Ct. at 443-444, 43 A.2d at 646.

As the court in Schuler noted, if a defendant is confused by a disjunctive, or even a conjunctive, pleading he may request clarification in a Bill of Particulars.

Order reversed and the informations are reinstated. Case remanded for trial. Jurisdiction relinquished.


text:
    483 A.2d 963
    COMMONWEALTH of Pennsylvania v. Roy L. JANNENGA, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1984.
    Filed Nov. 2, 1984.

      Roy L. Jannenga, appellant, in propria persona.
    Clyde' W. Vedder, Assistant District Attorney, York, for Commonwealth, appellee.
    Before DEL SOLE, POPOVICH and ROBERTS, JJ.
   DEL SOLE, Judge:

On August 29, 1981 the Appellant was issued a citation for violation of section 3362(a)(2) of the Pennsylvania Motor Vehicle Code, 75 Pa.C.S. § 3362(a)(2), a summary offense. Appellant pleaded not guilty and was convicted on October 1, 1981 by a district justice. Appellant then filed a timely de novo appeal of the summary conviction with the court of common pleas, but was again convicted on April 7, 1982. The trial court set a fine of $41.00 plus costs, but deferred sentencing pending post-trial motions. On April 14, 1982 Appellant filed a motion to have pre-trial motions heard which in effect constituted post-trial motions.

Nothing further happened in the case until September 1, 1983 when Appellant filed a motion to dismiss the charges against him because the proceedings in the case had not been completed within two years. On September 16, 1983 the trial court filed an opinion and order dismissing Appellant’s motions of April 14, 1982 and September 1, 1983, and sentenced Appellant to a fine of $41.00 plus costs. However, the trial court did not address in its opinion the specific issue raised by Appellant in his September 1, 1983 motion to dismiss.

A hearing was held on September 26, 1983 at which time Appellant asked the court why his case had not been resolved within two years from the date of the offense. The trial court responded that the delay was caused by the court, not by the Commonwealth, and thus entered another order dismissing Appellant’s September 1, 1983 motion to dismiss, which it had apparently already dismissed by its September 16, 1983 order. Appellant then filed this timely appeal from the judgment of sentence imposed by the trial court on September 16, 1983.

Appellant raises several issues before this Court, however, our disposition of the instant appeal rests solely on our resolution of the following issue simply stated by Appellant: Was the court in error in holding proceedings subsequent to two years after the commission of the offense? We find the answer to be yes, and accordingly vacate the judgment of sentence and discharge Appellant.

The statute relevant to the instant appeal is found at 42 Pa.C.S. § 5553, the section of the Pennsylvania Judicial Code which provides the limitation periods for summary offenses under Title 75 of the Pennsylvania Consolidated Statutes, or the Pennsylvania Motor Vehicle Code. Subsections (a) and (b) under section 5553 set forth the time periods within which summary proceedings must be commenced. Subsection (c) provides a limited exception to those time periods in case of reasonable mistake in the identity of the offender. Subsection (d) merely provides that overtime parking violations are governed by local ordinances. Finally, subsection (e) provides that no proceedings shall be held or action taken pursuant to a summary offense under Title 75 subsequent to two years after the commission of the offense. It is the latter provision that Appellant claims was violated in the instant case.

A review of the reported case law in this Commonwealth reveals only one case in which the specific argument raised by Appellant is discussed. In Lewis v. Commonwealth, 73 Pa.Cmwlth. 607, 458 A.2d 1053 (1983), the defendant’s driver’s license was suspended in connection with a motor vehicle violation. Defendant alleged that the suspension proceedings had not been completed within two years and that the Department of Transportation was accordingly barred from suspending his license by section 5553(e). The case offers us little or no guidance, however, since the Commonwealth Court did not reach the merits of the argument but rather found that section 5553(e) was applicable only to criminal proceedings and not to license suspension proceedings which that court has found to be. essentially civil in nature. Thus, this case presents an issue of first impression in the Commonwealth.

The Commonwealth argues in its brief that the two year limitation period prescribed by section 5553(e) was meant merely to be a limitation on the commencement of summary proceedings under Title 75, and should not be interpreted as urged by Appellant. We simply cannot agree with the Commonwealth’s position.

A close reading of section 5553 reveals that the legislature has enacted a comprehensive scheme of limitation periods for summary motor vehicle offenses. Subsections (a), (b) and (c) clearly set forth specific mandatory time periods in which an action must be commenced. This was recognized by this Court in Commonwealth v. Matthews, 286 Pa.Super. 474, 429 A.2d 37 (1981). In Matthews, the trial court had found that the limitation periods set forth in subsection (b) and (c) were merely “directory” and that the only “mandatory” limitation on commencement was the two year period under subsection (e). This Court rejected such a view because to so hold would render the language of subsections (b) and (c) mere surplussage. Thus, this Court rejected the notion the subsection (e) is a limitation on commencement. Were we to adopt the Commonwealth’s argument in the instant case, it would render the language of subsection (e) meaningless.

A reading of subsection (e) clearly shows that it does not pertain to the commencement of proceedings, but rather their completion. Subsection (e) is susceptible of no other interpretation than that any summary proceedings initiated under Title 75 must be disposed of at the trial level within two years or not at all. In addition, to treat the two year period as merely a limitation on commencement would violate the perceived legislative intent behind the provision which is to ensure the timely resolution of minor vehicle offenses. In the instant case, the proceedings against Appellant had to commence within fifteen days and be completed within two years. The former limitation was met, the latter was not.

The record reveals that on April 7, 1982 the trial court deferred imposition of sentence pending post-verdict motions, which we have found were filed by Appellant on April 14, 1982. Appellant was not sentenced until September 16, 1983, more than two years after the commission of the offense. The only activity in the case after April 14, 1982 until the date of sentencing was the filing of Appellant’s motion to dismiss on September 1, 1983. The explanation for the delay was given at the September 26, 1983 hearing as being court related with the trial court even implying that Appellant’s pro se representation contributed to the problem. Our review of the record shows that Appellant in no way did anything to cause the delay in his sentencing, and indeed complied with all procedural requirements. Whatever the reason for the delay, the fact remains that the trial court failed to complete the proceedings against Appellant within two years of the offense, thus violating section 5553(e). In Commonwealth v. Matthews, supra, we required no less than strict adherence to the mandatory limitation periods under section 5553(b) and (c). We require no less here.

The only just remedy in the instant case is to vacate the judgment of sentence and discharge the Appellant. This is not an unusual remedy. This Court has mandated discharge in cases involving a violation of subsections (b) and (c) under section 5553, when the Commonwealth failed to commence proceedings within the prescribed period of time. See Commonwealth v. Larson, 299 Pa.Super. 252, 445 A.2d 550 (1982); Commonwealth v. Matthews, supra. Based on the foregoing reasons, the judgment of sentence is vacated and the Appellant is discharged.

Judgment of Sentence vacated. Appellant discharged.


author: MONTEMURO, Judge:

text:
    483 A.2d 965
    COMMONWEALTH of Pennsylvania v. Kay DUGAN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 23, 1984.
    Filed Nov. 2, 1984.

      Maurino J. Rossanese, Jr., Norristown, for appellant.
    Joseph Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   MONTEMURO, Judge:

The instant appeal arises from the judgment of sentence which was imposed after revocation of probation. Appellant makes three arguments on appeal: (1) that she was denied her right to a speedy probation violation hearing; (2) that the sentencing judge failed to state on the record adequate reasons for the sentence imposed; and (3) that the sentence imposed was excessive.

On January 12, 1978, appellant, Kay H. Dugan, pleaded guilty to nine counts of theft by deception, nine counts of failure to make required disposition of funds received, one count of forgery, two counts of misappropriation of entrusted money, two counts of securing execution of documents by deception, and two counts of deceptive business practices. She received consecutive sentences of probation at that time but was shortly thereafter found in violation of her probation and sentenced to two to five years imprisonment on April 28, 1978. On May 8, 1978, in response to a petition to reconsider sentence, appellant was again placed on probation. Appellant then took an appeal to this court.

While her appeal was pending, appellant again appeared before the trial court on June 19, 1979, as a result of a technical violation of her probation. On that date, she was sentenced to numerous concurrent seven year probations and one consecutive probation. She also agreed to pay restitution and withdraw her pending appeals.

On February 26, 1982, appellant was convicted of three bad check charges in Bucks County. She was subsequently sentenced on June 18, 1982, to one year probation and to pay the costs of restitution.

Upon hearing that a bench warrant had been issued for her arrest, appellant surrendered herself to her probation officer and was remanded to Montgomery County Prison on October 7, 1982. A violation hearing was scheduled for October 22, 1982, but was subsequently continued until October 29, 1982, pursuant to a request by appellant’s counsel. On October 29, 1982 and again on November 22, 1982, the court requested a continuance which appellant’s counsel consented to. A Gagnon II hearing was finally held before the Honorable Frederick B. Smillie on December 13, 1982. At the conclusion of the hearing, probation was revoked and appellant was sentenced to imprisonment for a period of not less than three (3) years nor more than seven (7) years. It is from this disposition that the instant appeal was taken.

Turning to appellant’s first allegation of error, she contends that her right to a speedy hearing as guaranteed by Pa.R.Crim.P. 1409 was denied. Rule 1409 provides in relevant part:

Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law unless there has been a hearing held as speedily as possible at which the defendant is present and represented by counsel and there has been a finding of record that the defendant violated a condition of probation or parole. In the event that probation is revoked and sentence is reimposed, the judge shall comply with the pertinent provisions of Rule 1405.

Rule 1409 does not specify a particular period by which the Commonwealth must revoke probation but instead, focuses on whether the delay was reasonable under the circumstances of the case at hand. Commonwealth v. McCain, 320 Pa.Super. 394, 467 A.2d 382 (1983); Commonwealth v. Kane, 315 Pa.Super. 212, 461 A.2d 1246 (1983). Three factors are looked to in determining the reasonableness of the delay: the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant for the delay. Commonwealth v. Young, 262 Pa.Super. 253, 396 A.2d 741 (1978).

Here nine and one-half months passed from the time of appellant’s conviction in Bucks County until the Gagnon II hearing on December 13, 1982. In view of the fact that this court has found that a five month delay can be unreasonable, Commonwealth v. White, 218 Pa.Super. 188, 279 A.2d 768 (1971), certainly the nine and one-half month delay here cannot be classified as “intrinsically reasonable”. Commonwealth v. Jones, 250 Pa.Super. 116, 120, 378 A.2d 481, 483 (1977).

Looking next to the reasons for the delay, the lower court, in its opinion, suggests that the delay was due to requests for continuances by appellant’s attorneys. It is true that approximately one month of the delay was either requested, or consented to, by appellant’s attorneys. (R. 22). The only proffered explanation for the remaining eight months was the severe illness of the trial court judge which prevented him from sitting on the bench from March 17, 1982, until August 1, 1982. This factor would account for only four and one-half months of the nine and one-half month period. Moreover, we note that this case is not from a single-judge county.

Such a paucity of explanation, in combination with the length of the delay here, would very likely require us to reverse the judgment of sentence on this ground if appellant had been prejudiced as a result of the delay. She, however, was not. In fact, it appears that appellant benefited from the delay. As was stated previously, appellant was not incarcerated in this matter until October 7, 1982. (R. 29). This incarceration resulted from a voluntary surrender to authorities after appellant had learned that a bench warrant had been issued for her arrest. If the trial court had issued a similar warrant shortly after appellant’s February 26, 1982 conviction, her incarceration would have begun sooner than it did. Consequently, we conclude that appellant’s argument is not persuasive.

Appellant’s second allegation of error is that the trial judge failed to state adequate reasons for the sentence imposed. It is now beyond question that the trial judge must state reasons for the sentence he imposes, Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), and that this statement of reasons should reflect consideration of the sentencing code guidelines. Commonwealth v. O’Brien, 282 Pa.Super. 193, 422 A.2d 894 (1980). Our courts have also articulated the principle that, “It is sufficient to render a sentence invalid, if it reasonably appears from the record that the trial court relied in whole or in part on an impermissible factor. Only the aforementioned [sentencing code] guidelines should be considered”. Commonwealth v. Kostka, 276 Pa.Super. 494, 506, 419 A.2d 566, 572 (1980); Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977).

Appellant first asserts that the trial judge’s statement of reasons does not reflect sufficient consideration of appellant’s behavior subsequent to her original sentencing in 1978. She further asserts that some of the reasons which are stated reveal considerations of impermissible factors. As we find this second assertion dispositive we do not address the first.

Examination of the statement of reasons given by the trial judge does disclose that several grounds listed in the sentencing code were considered. The judge specifically discussed appellant’s criminal history, her character and attitudes, and whether she would be likely to respond affirmatively to probationary treatment. All are relevant and perfectly proper factors to consider. See 42 Pa. C.S.A. § 9722(7), (9), (10). However, the trial judge also made the following comments:

You were born in Japan, but you are now a naturalized citizen by reason of your marriage to an American. (N.T. December 13, 1982, p. 47).
All the way through you have ignored and treated the laws of the United States as though they were meant to be broken. But I am sure if it happened in your country you would receive much shorter shrift than you have here. (N.T. December 13, 1982, p. 49).
Apparently, you think the American System of Justice is a joke and the only respect you have is for your native tribunal. You obtained United States Citizenship by reason of your marriage to an American and you are not even' living with him..
The Probation Department here has been most permissive of you and more than with anybody that I know if, American citizen or otherwise. (N.T. December 13, 1982, p. 51).

Obviously, the fact that appellant is a naturalized citizen is in no way relevant to any of the criteria which are set forth for consideration in the sentencing code. See 42 Pa.C.S.C. § 9722. That these repeated remarks indicate that the sentencing judge ruled in part on an impermissible factor is corroborated by a section in his opinion wherein he states that: “Defendant is incapable of telling the truth and thinks the United States’ Courts are gullible enough to believe her____ The United States has been a fertile field for defendant’s operation with signal success. She has bought her way out of many situations which would be unthinkable to the ordinary citizen”. (Trial Court Opinion, p. 7.)

As stated earlier, we do recognize that the trial judge did consider several permissible factors in imposing sentence on appellant; the question is, however, whether he considered only permissible factors. In ruling that he did not, we are guided by the test set forth by our supreme court in Commonwealth v. Bethea, supra, 474 Pa. at 580, 379 A.2d at 106-107.

In deciding whether a trial judge considered only permissible factors in sentencing a defendant, an appellate court must, of necessity, review all of the judge’s comments. Moreover, in making this determination it is not necessary that an appellate court be convinced that the trial judge in fact relied upon an erroneous consideration; it is sufficient to render a sentence invalid if it reasonably appears from the record that the trial court relied in whole or in part upon such a factor.

In view of our determination above, we need not address the question of whether the sentence imposed was excessive.

Judgment of sentence is vacated and case is remanded for resentencing. Jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 3922

      . 18 Pa.C.S.A. § 3927

      . 18 Pa.C.S.A. § 4101

      . 18 Pa.C.S.A. § 4113

      . 18 Pa.C.S.A. § 4114

      . 18 Pa.C.S.A. § 4107


author:
POPOVICH, Judge:
      CERCONE, Judge,

text:
    483 A.2d 969
    COMMONWEALTH of Pennsylvania v. Wilbert DE SHIELDS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 5, 1984.
    Filed Nov. 2, 1984.
    Petition for Allowance of Appeal Denied March 25, 1985.

      Lewis S. Small, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and CERCONE, JJ.:
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County following the appellant’s, Wilbert DeShields’, convictions of first degree murder and possession of an instrument of crime, generally. We affirm.

The facts, viewed in a light most favorable to the verdict-winner, reveal that at 12:45 a.m. on the 30th of October, 1980, Tyrone Johnson, Derrick Hart and Richard Moore (also known as “Fats”) were engaged in a conversation at the corner of 32nd and Morris Streets in Philadelphia. Shortly thereafter the appellant joined the group and got into an argument with Moore. The appellant accused Moore of taking his drugs (“speed”) and girl. Moore did not deny the accusations, and this caused the appellant to pull a knife and threaten Moore that “somebody’s going to die tonight.” Moore told the appellant to put the knife away and fight fair. A fight never materialized, but the appellant did put the knife away.

The four then walked down 32nd Street, with Johnson leaving the group at Arlington. The others continued on their way with Moore walking to the left of Hart and the appellant trailing the two. At 32nd and Monument Streets the appellant came up to Moore and said, “You took so much. Take this.” Initially, Hart thought that the appellant had punched Moore somewhere on the top of the right shoulder. But, when he turned to see the appellant bring his arm down to his side, he noticed that the appellant “had a knife in his hand.” Moore reacted by running into the street and yelling at the appellant that “he would kill him.”

The appellant warned Hart that if he “snitched” he would be blamed for the stabbing. In point of fact, Hart did not report what he had seen to the police until the following day, after hearing of Moore’s death.

At 12:45 a.m., James Roberts, who lived one block from the scene and knew both the appellant and the victim, heard a knock at his front door. Upon answering, Richard Moore asked Roberts to take him to the hospital because he had been stabbed. However, by the time Roberts got dressed Moore was nowhere to be found.

At 12:55 a.m., Officers Jordan and Edney received a radio bulletin of a stabbing at 3000 Euclid Street, which is approximately 3 blocks from 32nd and Monument. Upon arriving at the stated address, the police were told by a female that the male in her home had knocked on her door and “just fell in.” As Officer Jordan attempted to open the front door, he was hampered by the fact that the victim was lying on his left side blocking the door with his feet. Officer Jordan finally gained entry and knelt down beside the victim and saw that he “was breathing rather erratically. He had a hard time breathing, had a lot of pain on his face[.]” The officer asked him who stabbed him. Before the victim lost consciousness, he stated, “Wilbert did it.”

Thereafter, the victim was transported to the hospital and there he died as a result of a stab wound sustained on his right shoulder which severed a vein causing 3 pints of blood to collect in his chest cavity.

Within 20 minutes after information concerning the stabbing had been relayed over the radio, two Philadelphia police officers arrived on the scene with Samuel DeShields. One of the officers (Carter), upon viewing the individual, “stated ... that he knew this guy, and that Wilbert — this Wilbert was this man’s brother, and that he lived in the 3200 block of Monument Street.” Also, Samuel DeShields told the police that “he believed his brother Wilbert had stabbed Fats____”

Once the police arrived at the appellant’s residence, Officer Jordan knocked on the front door and stated, “This is the police.” He then heard a female, later determined to be the appellant’s mother, say, “Wilbert, it is the cops. Get out.” Again, the officer knocked on the door, and, finding it ajar, stepped into a vestibule area that had another door which also was open and led into the living room. The officer yelled his identity a second time before appellant’s mother came to ask what he wanted.

Officer Jordan informed the appellant’s mother his purpose for being there. The appellant, thereafter, was advised of his rights and handcuffed. As he was being escorted out of the house, the appellant turned to Officer Jordan and said, “I beat one. I will beat this one, too.”

Later on that same evening, as the appellant was being placed in an elevator to be taken from the basement to the homicide division at Eighth and Race Streets in Philadelphia, he turned to Officer Jordan and asked, “Is that guy dead?” The officer remarked, “Look, you don’t have to say nothing until you talk to your lawyer.” Nevertheless, the appellant turned to the officer and stated, “If the dude died, he deserved what he got.”

Between 1:30-1:45 a.m., the appellant’s invocation of his right to an attorney, coupled with what Detective James McCaffery felt was insufficient evidence, prompted his release. It was not until Derrick Hart reported to the police that he witnessed the stabbing that the appellant was rearrested and charged with the killing.

Following a trial by jury, post-verdict motions were filed in which the appellant questioned the competency of trial counsel. New counsel was appointed for the appellant and a hearing was conducted to review the merits of all of the appellant’s claims. A court en banc ruled against the appellant, and, thereafter, a sentence of life imprisonment was issued for the stabbing death of Roger Moore and a concurrent sentence of 21/2 to 5 years was imposed for the weapons offense. This appeal was then perfected.

The appellant now assails the admissibility of the victim’s statement as a dying declaration and trial counsel’s stewardship.

The appellant argues that there was no evidence to show that Roger Moore was aware of the severity of his wound, as evidenced by his threats of retaliation and running a substantial distance before collapsing. Thus, he continues, one of the criteria necessary to admit a statement as a dying declaration was missing and should have caused appellant’s statement to be excluded at trial.

It is true that the admission of a hearsay statement as a dying declaration requires proof that at the time the declarant spoke, death was imminent, he had a sense of impending death and death did in fact ensue. Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980). However, as correctly observed by the trial court, in Pennsylvania a declarant’s belief in his imminent demise may be inferred from surrounding circumstances, including the nature of the declarant’s wounds. Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103 (1975).

Instantly, the assistant medical examiner recounted that the victim had sustained a % inch stab wound which severed a major vein behind the collarbone. This caused in excess of 3 pints of blood to drain into the decedent’s chest cavity and hastened death. Couple the preceding with Officer Jordan’s description of the victim grimacing and breathing with difficulty while lying prostrate on the floor of a stranger’s house, and we have no difficulty in concluding that the evidence was sufficient to infer the declarant’s awareness that he was near death so as to render his statement (“Wilbert did it”) a dying declaration. See Commonwealth v. Plubell, 367 Pa. 452, 80 A.2d 825 (1951).

The last of the appellant’s complaints concerns eight instances of trial counsel’s alleged ineptness.

The first two points (A & B) in appellant’s brief center upon his warrantless arrest and the resultant taint of his statements. In particular, the appellant argues that the police acted without probable cause. We disagree.

The police had been told by the victim that “Wilbert did it,” just before he lost consciousness from a knife wound inflicted by his assailant. A short time and distance from the incident, the police detained a Samuel DeShields because they knew Samuel had a brother by the name of Wilbert. Upon questioning, Samuel told the police, “I think Wilbert’s the one who did it.” Hearing this, the police made their way to the appellant’s residence. Once there, after identifying themselves, they heard a female say, “Wilbert, it is the cops. Get out.”

Thereafter, the police effectuated a warrantless arrest of the appellant and advised him of his Miranda rights, to which he now protests was constitutionally infirm as having occurred without the benefit of probable cause.

It cannot be gainsaid that the police, prior to entering the appellant’s home, had sufficient information to label the appellant a “suspect” in regard to the offense under investigation. Thus, when the police heard a warning to the appellant to flee the area, we find that “the facts and circumstances within the arresting officers’] knowledge and of which [they] had reasonably trustworthy information were sufficient to warrant ... prudent m[e]n in believing that [a] citizen had committed or was committing an offense.” Commonwealth v. Mackie, 456 Pa. 372, 375, 320 A.2d 842, 843-844 (1974); see also Commonwealth v. Bo-surgi, 411 Pa. 56, 67, 190 A.2d 304, 310 (1963) (“ ‘In dealing with probable cause ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ”).

Also, the (“exigent”) circumstances which prefaced the appellant’s arrest were consonant with those factors enumerated in Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), save for one not herein relevant, to render the actions of the police proper and legitimate in the face of information of an armed and dangerous individual.

We have no reason to hold that the police acted illegally in the case at bar. Rather, the initial suspicions culminated into full-blown probable cause once the police arrived at the appellant’s premises and heard statements advising him to exit the residence because the police had arrived. See Commonwealth v. Bosurgi, supra (an arrest may be based upon hearsay evidence). For the authorities to have turned their backs would have been in derogation of their duty to uphold law and order, to investigate legitimate leads and react in a common sense fashion. See Commonwealth v. Bosurgi, supra; cf. Commonwealth v. Dennis, 289 Pa.Super. 305, 433 A.2d 79 (1981).

Accordingly, finding that the actions of the police were proper in arresting the appellant, we cannot deem trial counsel to be ineffective for failing to assault such conduct in the context of a motion to suppress. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977) (Counsel will not be deemed ineffective for failing to do a meritless act). Likewise, since our review of the record indicates that the appellant’s incriminating statements were volunteered and not the product of custodial interrogation, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), nor any intoxication, we hold trial counsel’s actions proper in not attacking such statements at the suppression stage of the case.

Furthermore, finding that the other claims raised by the appellant in his brief (see Points C-H) to be equally merit-less, we affirm the appellant’s judgment of sentence.

CERCONE, J., files a dissenting opinion.

CERCONE, Judge,

dissenting:

I must respectfully dissent as I find that the police were without probable cause to effect appellant’s arrest, at his home, shortly after the stabbing of Richard Moore.

The existence of probable cause to arrest a suspect is dependent upon whether at the time of the arrest, the facts and circumstances within the knowledge of the police, or of which they have reasonably trustworthy information, would have caused a person of reasonable caution to believe that the suspected individual committed the criminal act. Commonwealth v. Mack, 313 Pa.Superior Ct. 372, 459 A.2d 1276 (1983). Each case must be reviewed in light of its own unique facts and circumstances. Id. In assessing the presence or absence of probable cause, we must remember that the police may rely upon information supplied by another person, where there is a substantial basis for crediting that source. Commonwealth v. Rutigliano, 310 Pa.Superior Ct. 364, 456 A.2d 654 (1983).

I believe that Commonwealth v. Sorrell, 319 Pa.Superior Ct. 103, 465 A.2d 1250 (1983), controls the disposition of this case. In Sorrell, a co-defendant’s brother indicated to the police that the defendant was involved in the crime being investigated. As there was no indication as to why the police had reason to believe the informant, such information could not justify the defendant’s arrest and therefore, statements arising from such illegal arrest had to be suppressed.

Similarly, here no reason was given as to why appellant’s brother was thought to be trustworthy. An informant’s mere suspicion will not establish probable cause. Commonwealth v. Allessie, 267 Pa.Superior Ct. 334, 406 A.2d 1068 (1979). Without added information, the police could only rely upon the deceased’s reference to “Wilbert.” Admittedly, such dying declaration does greatly reduce the proportion of the populace who could have been responsible, however it still included too large a group to have reasonably concluded that any particular Wilbert was responsible. Descriptions applicable to large numbers of persons will not support a finding of probable cause. Commonwealth v. Jackson, 459 Pa. 669, 331 A.2d 189 (1975); Commonwealth v. Bynum, 265 Pa.Superior Ct. 13, 401 A.2d 776 (1979).

The unique facts of this case distinguish it from Commonwealth v. Canady, 500 Pa. 624, 459 A.2d 715 (1982). There, probable cause was established by the fact that, the defendant and the victim had been observed together late in the evening of the night when the victim disappeared, and by information of a prior incident between the victim and defendant. Whereas, in the case at hand, while appellant’s brother referred to prior dealings between the victim and appellant, the police had no information, at that time, that appellant and the victim had been seen together on the night of the stabbing. Therefore, while the police were justified in suspecting appellant, that suspicion did not rise to the level of probable cause. In fact the police even released him the following morning and only re-arrested him when an eyewitness came forward. Suspicion will not substitute for probable cause. Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21 (1979).

Nor do I find that the warning, apparently issued by appellant’s mother to appellant, “Wilbert, the cops, get out”, supplies the missing fact needed to legally arrest appellant. Flight in conjunction with other circumstances may supply the authorities with probable cause. Commonwealth v. Derrick, 322 Pa.Superior Ct. 517, 469 A.2d 1111 (1983); Commonwealth v. Gease, 304 Pa.Superior Ct. 433, 450 A.2d 989 (1982). In the current case appellant did not attempt to flee and was arrested without incident. While there are situations where a third party’s words or actions may obviate the need of the police to adhere to procedural niceties, see Commonwealth v. Davis, 331 Pa.Superior Ct. 285, 480 A.2d 1035 (1984) (knock and announce rule not strictly applied), I fail to see how appellant’s mother’s warnings could provide probable cause, especially when appellant did not follow it up.

While counsel did seek to suppress the incriminating statements on other basis, he did not allege the lack of probable cause. Since in our opinion such a challenge was of arguable merit, counsel should have proceeded on such basis. “Ordinarily, there is little tactical reason for not filing a suppression motion.” Commonwealth v. Felder, 246 Pa.Superior Ct. 324, 337, 370 A.2d 1214, 1220 (1976). Therefore, I am constrained to dissent as I would remand for a suppression hearing on this matter.

      . The brother was not a witness to the stabbing, did not claim that he had talked to appellant about the incident, and testimony was elicited that the brother had not seen appellant on the night in question.

      . I commend the police for their efficient investigation of this case and I believe the police were not "required to simply shrug their shoulders", see Commonwealth v. Woodard, 307 Pa.Superior Ct. 293, 453 A.2d 358 (1982), nonetheless I find the information available to them did not amount to probable cause to arrest.

      . Much of this testimony discussed above is extracted from the trial counsel’s second hand account of the police officers’ knowledge and the officers’ incident reports which were discussed at the evidentiary hearings. While the burden is upon the Commonwealth to establish probable cause, Rutigliano, supra, the Commonwealth is not put to that burden unless a defendant explicitly voices such a challenge. Commonwealth v. Ryan, 296 Pa.Superior Ct. 222, 442 A.2d 739 (1982). Since trial counsel did not put the prosecution to its test, it is possible that the police could have had additional information justifying appellant's arrest, therefore at this juncture a suppression hearing is warranted and not a new trial.