author: WIEAND, Judge:

text:
    549 A.2d 566
    COMMONWEALTH of Pennsylvania v. James RIFFERT, Appellant. COMMONWEALTH of Pennsylvania v. Kathleen WIBLE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 6, 1988.
    Filed Sept. 2, 1988.
    Reargument Denied Oct. 26, 1988.

      John P. Lawler, Stroudsburg, for appellant in No. 2934.

      George W. Westervelt, Jr., Stroudsburg, for appellant in No. 2939.
    Jane Roach, Assistant District Attorney, Allentown, for Com., appellee.
    Before WIEAND, McEWEN and BECK, JJ.
   WIEAND, Judge:

James Riffert and Kathleen Wible were tried by jury and were found guilty on two counts of conspiracy to possess a controlled substance and two counts of conspiracy to possess a controlled substance with intent to deliver. Following the denial of post-trial motions, Riffert was sentenced to serve two consecutive terms of imprisonment of four to eight years and ordered to pay a $5,000.00 fine; and Wible was sentenced to serve two concurrent terms of imprisonment of three to six years and ordered to pay a $1,000.00 fine. Both Riffert and Wible have appealed from their judgments of sentence, and those appeals have been consolidated for appellate review. We will consider seriatim the numerous issues raised by appellants Riffert and Wible.

The convictions of Riffert, Wible and their codefendants were the result of an extensive investigation by Pennsylvania State Police into drug trafficking in the Pocono Mountains area of northeastern Pennsylvania. The factual scenario underlying their convictions was summarized by the trial court as follows.

In late 1984, the Pennsylvania State Police received information from confidential informants that a criminal ° conspiracy involving a major drug ring dealing in large quántities of methamphetamine was in operation in the Pocono Mountains, Monroe County area. The police initially applied for and received search warrants of telephone records of various individuals, namely, Patty Moore, Margaret Carpenter, Kathleen Wible and Susan Kitchener. Finding similarities in numbers called, the police requested a pen register be ordered to record outgoing numbers dialed on these telephones. By Court Orders dated February 15 and 27, 1985, the pen registers were placed into operation.
The Commonwealth used the information gathered from the pen register to apply to the Superior Court for a wiretap on co-defendant Wible’s and Riffert’s two telephones. The wiretap was issued and conducted in March of 1985. One hundred twenty-eight coded messages were intercepted and recorded.
From these phone conversations, the police surmised that Riffert and co-defendant Wible were in the process of consummating a sale of one pound of methamphetamine with co-defendant Inadi on March 15, 1985. Following up on their suspicions, Officers Stern and Schaeffer observed Wible and Inadi meet at the designated location, but did not witness the actual exchange.
A similar incident on March 23/24, 1985 led to Defendant’s arrest. On this occasion, a purchase from Inadi was negotiated over the phone, however, Defendant Reeves was to pick up the methamphetamine. Several brief telephone conversations between Wible and Inadi and Wible and Reeves finally brought Inadi and Reeves together at the George Washington Motor Lodge. Observing the transaction, the police promptly arrested Reeves and Inadi. Wible and Riffert were arrested soon afterward.

Appellants argue initially that the Commonwealth violated Pa.R.Crim.P. 1100 by failing to bring them to trial within 180 days after the date on which criminal complaints had been filed against them. The specific basis for appellants’ Rule 1100 claim is that the Commonwealth failed to file a timely petition to extend the time for trial. By the time such a petition was filed, appellants contend, the 180 day period under Rule 1100 had expired. This, appellants argue, requires that they be discharged. The trial court, however, found that time was excludable pursuant to Rule 1100(d)(3), and, that when such time was excluded, the Commonwealth’s petition to extend the time for trial was timely.

Criminal complaints were filed against appellants on March 18, 1985. The Commonwealth did not file its petition to extend the time for trial until October 28, 1985, 224 days after the date on which the criminal complaints had been filed. On June 26, 1985, however, the trial court had issued an order mandating that the omnibus pre-trial motions of all defendants be filed no later than August 5, 1985. Riffert filed his omnibus pre-trial motion on August 12, 1985; Wible (lid not file her motion until February 5, 1986. Numerous discovery motions and additional pre-trial motions were also filed by the defendants. Because appellants and their co-defendants were to be tried together and in order that all proceedings could move ahead simultaneously, the trial court determined that the omnibus pre-trial motions of all defendants would be decided at the same time. Hearings were held and, on July 2, 1986, the trial court filed an opinion and accompanying order which denied the many suppression issues which had been raised in the omnibus pre-trial motions of appellants and their co-defendants. Trial commenced five days later on July 7, 1986.

During all periods of time relevant to this case, Rule 1100 mandated that a defendant be discharged unless all periods of delay beyond 180 days were accounted for either by an extension of time granted to the Commonwealth or by an exclusion of time pursuant to Rule 1100(d). Commonwealth v. Colon, 317 Pa.Super. 412, 418, 464 A.2d 388, 391 (1983). See also: Commonwealth v. Williams, 299 Pa.Super. 226, 445 A.2d 537 (1982). In determining whether a petition to extend the time for trial has been filed timely, however, all periods of time which are properly excludable under Rule 1100(d) must be subtracted. Commonwealth v. Shelton, 469 Pa. 8, 15, 364 A.2d 694, 697 (1976). See also: Commonwealth v. Bomboy, 357 Pa.Super. 265, 515 A.2d 969 (1986); Commonwealth v. Casper, 327 Pa.Super. 362, 475 A.2d 840 (1984). Time is excluded from the computation of the 180 day period under Rule 1100 for delays which are caused by the unavailability of a defendant. Commonwealth v. Armstead, 359 Pa.Super. 88, 91, 518 A.2d 579, 581 (1986); Commonwealth v. Colon, supra, 317 Pa.Super. at 425, 464 A.2d at 395. Also excluded, according to the decided cases, is the time intervening between a defendant’s filing of pre-trial motions and the trial court’s disposing of such motions. See: Commonwealth v. Mason, 358 Pa.Super. 562, 518 A.2d 282 (1986); Commonwealth v. Bond, 850 Pa.Super. 341, 504 A.2d 869 (1986) (en banc) (Spaeth, P.J. concurring); Id. (Wieand, J. concurring). See also: Commonwealth v. Fuchs, 372 Pa.Super. 499, 539 A.2d 1307 (1988); Commonwealth v. Wills, 370 Pa.Super. 173, 586 A.2d 351 (1987). The rationale for excluding such time has been explained as follows:

The critical point, as I see it, is that in instituting her constitutional challenge, appellant initiated foreseeable delay for which the Commonwealth was not responsible. The period extending from the date of appellant’s motion to the date of the trial court’s order denying the motion should be excluded from the 180-day period. To permit the period to run while the court deliberated on the motion would be to permit appellant to wield her right to a speedy trial in an unjust and uncontemplated manner.

Commonwealth v. Bond, supra, 350 Pa.Super. at 358, 504 A.2d at 878 (Spaeth, P.J. concurring). See also: Id., 350 Pa. Superior Ct. at 363, 504 A.2d at 881 (Wieand, J. concurring) (“appellant sought to delay the trial in order to obtain a ruling on the constitutional issue and thereby, in a practical sense, obtained a postponement or continuance of the trial”).

In the instant case, the trial court correctly determined that the time period between August 12, 1985, the date on which appellant Riffert filed his omnibus pre-trial motion, and October 28, 1985, the date on which the Commonwealth filed its petition to extend the time for trial, was excludable in computing the 180 day period. When this period of seventy-seven (77) days is subtracted from the computation of the 180 day period, it is apparent that the Commonwealth’s petition to extend the time for trial was filed on the 147th day following the filing of the criminal complaint against Riffert. A motion thus filed was timely. Because Riffert’s omnibus pre-trial motion had raised challenges to the Commonwealth’s evidence against him, his trial could not commence until the motion was disposed of by the trial court. Riffert thus was unavailable to be tried while his omnibus motion was pending. Implicitly, he had obtained a postponement or continuance of his trial during such time.

The trial court had determined that Riffert and Wible, together with two co-defendants, were to be tried together in a consolidated trial. Therefore, the trial against Wible also could not commence until all pre-trial matters had been decided. Wible aggravated this delay by her own tardiness. Although the trial court had set August 5, 1985 as the deadline for filing omnibus pre-trial motions, Wible’s pre-trial motion was not filed until February 5, 1986. Wible’s tardy compliance with the trial court’s order, therefore, contributed to the Commonwealth’s inability to commence trial. In effect, Wible was also unavailable for trial between August 5, 1985, when her pre-trial motions should have been filed, and October 28, 1985, when the Commonwealth requested an extension of time within which to commence trial. When this period of eighty-four (84) days is excluded, the Commonwealth’s petition was also filed timely with respect to the charges against Wible. We conclude, therefore, that Rule 1100 was not violated.

Riffert contends also that he is entitled to be discharged because his preliminary hearing was not held within ten days following his preliminary arraignment as required by Pa.R.Crim.P. 140(d). This issue, however, was not raised prior to or at the time of the preliminary hearing and, therefore, was waived. Pa.R.Crim.P. 150 provides that

[a] defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, summons, or warrant, or a defect in the procedures of this Chapter, unless the defendant raises the defect before the conclusion of the preliminary hearing and the defect is prejudicial to the rights of the defendant.

A failure to hold a preliminary hearing within the time constraints of Pa.R.Crim.P. 140(d) is a defect which is governed by the remedial provisions of Rule 150. See: Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987). Riffert’s preliminary hearing was held on April 29, 1985, but he did not object thereto and did not raise the Rule 140(d) issue until he filed an amended, omnibus pre-trial motion on February 10, 1986. By failing to raise the issue prior to the conclusion of the preliminary hearing, Riffert waived this alleged procedural defect and could not thereafter raise it. Cf. Commonwealth v. Schimelfenig, 361 Pa.Super. 325, 522 A.2d 605 (1987) (defendants who did not raise Commonwealth’s failure to comply with Pa.R.Crim.P. 130(d) prior to conclusion of preliminary hearing waived issue).

Appellants argue that the Commonwealth did not have probable cause to obtain the court order authorizing the wiretapping of telephones located at their residence. We find no merit in this contention. The applicable law governing probable cause to support an order authorizing a telephone intercept was set forth in Commonwealth v. Doty, 345 Pa.Super. 374, 498 A.2d 870 (1985), cert. denied, 479 U.S. 853, 107 S.Ct. 185, 93 L.Ed.2d 119 (1986) as follows:

An application for an order authorizing interceptions of telephone communications must contain, inter alia, the identity of the person, if known, committing the offense under investigation and whose communications are to be intercepted. It must also contain details about particular offenses, the type of communications to be intercepted, and must show that there is probable cause to believe that pertinent communications will be transmitted on the facility under surveillance. 18 Pa.C.S. § 5709(3). The standard for determining whether probable cause existed is the same as that used to determine cause for search warrants. See: United States v. Talbert, 706 F.2d 464, 467 (4th Cir.1983); United States v. Falcone, 505 F.2d 478, 481 (3d Cir.1974), cert. denied, 420 U.S. 955, 95 S.Ct. 1338, 43 L.Ed.2d 432 (1975). The facts contained in the affidavit for a search warrant must be such that an independent, issuing authority, exercising reasonable caution, can conclude that the items sought are connected with criminal activity and that they will be found in the place to be searched. Commonwealth v. Council, 491 Pa. 434, 443, 421 A.2d 623, 627 (1980); Commonwealth v. Ryan, 300 Pa.Super. 156, 167, 446 A.2d 277, 283 (1982). Similarly, in an application for a wiretap, the Commonwealth must establish probable cause to believe that (1) a person has or is about to commit one of the offenses enumerated in the statute, (2) that communications relating to that offense will be transmitted, and (3) that such communications will be intercepted on the facility under surveillance. See: United States v. Armocida, supra, 515 F.2d [29] at 35 [(3d Cir.1975)].

Id., 345 Pa.Superior Ct. at 397-398, 498 A.2d at 881-882.

Accompanying the Commonwealth’s application for wiretaps of telephones located at the Riffert-Wible residence was an affidavit supplied by Pennsylvania State Trooper Thomas C. Bachman. In addressing appellants’ suppression motions, the suppression court made the following observations concerning the Bachman affidavit:

The affidavit discloses that the Defendants Riffert, Wible and Inadi, are engaged in a conspiracy with Donahue, Isenberg, Schloder and other known drug dealers, to sell and distribute methamphetamine in Philadelphia and Monroe County and extending into Luzerne and Wyoming Counties. It shows that the Defendants have previously been arrested and convicted on drug charges. It shows that Riffert and Wible have been the source of supply of methamphetamine to convicted drug dealers. It shows they are armed and threaten injury to any one who may inform the police of their criminal activities. It shows that the telephone is the common means by which the Defendants carry out their conspiracy to violate the drug laws. Confidential informants revealed to the police that they have personally witnessed extensive criminal activity on the part of the Defendants [which] is continuous in character and not limited to a few isolated instances. That the residences of Defendants and associates are in an isolated area making access thereto for police surveillance both difficult and dangerous.
The contents of the affidavit show that since 1982, the police have carried on extensive investigation of the criminal activity of James Riffert and Kathleen Wible, that this activity was continuous to the date of arrest. They had evidence of such activity from confidential informants and prior wiretapping authorized by Judge Tamilia. They had supporting corroboration of the activity of the Defendants in the sale and distribution of methamphetamine from state police and municipal police.

Based upon this affidavit, both Judge Tamilia of the Superi- or Court and the trial court found that probable cause existed for the authorization of wiretaps in the instant case. We have also reviewed carefully the affidavit of Trooper Bachman and are persuaded that prior determinations of the existence of probable cause were correct.

Prior to the court ordered use of pen registers and wiretaps, police obtained a search warrant authorizing them to examine the long distance telephone records of the telephone company pertaining to telephones at the Riffert-Wible residence. Appellants contend that the affidavit of probable cause supporting the warrant was deficient because the reliability of information given by informants was not established. As a result thereof, they argue, all subsequent court orders authorizing pen registers and wiretaps were derived from the use of illegally obtained evidence. For this reason, appellants assert, all evidence obtained through the use of pen registers and wiretaps should have been suppressed.

In the first place, it is questionable whether appellants can have any expectation of privacy with respect to the business records of the telephone company. These are records which are used by the telephone company in doing business, and if it elects to disclose those records, it is questionable whether its customers can complain that their rights to be free of unreasonable searches have been violated. We need not decide that issue, however, in this appeal.

Even if we assume, as appellants contend, that a search warrant based upon probable cause was necessary for an examination of the telephone company’s records and that the affidavit in the instant case was deficient, it does not follow that all subsequently obtained evidence was illegally obtained and subject to suppression. In Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d 496 (1978), the Supreme Court said, “[i]n deciding whether a warrant issued in part upon information obtained through exploitation of illegal police conduct is valid, we must consider whether, absent the information obtained through the illegal activity, probable cause existed to issue the warrant.” Id,., 476 Pa. at 555, 383 A.2d at 502. See also: Commonwealth v. Gullett, 459 Pa. 431, 329 A.2d 513 (1974); Commonwealth v. Knowles, 459 Pa. 70, 327 A.2d 19 (1974); Commonwealth v. Tucker, 252 Pa.Super. 594, 384 A.2d 938 (1978); Commonwealth v. Cosby, 234 Pa.Super. 1, 335 A.2d 531 (1975). The applications for the pen registers and wiretaps in this case, when viewed without the information obtained in the search of appellants’ telephone records, were based on competent information, the reliability of which was established, and which was independently sufficient to establish probable cause for the subsequent court orders. The evidence obtained by use of the pen registers and wiretaps, therefore, was not subject to suppression on grounds that a search of the telephone company’s records pertaining to telephones used by Riffert and Wible had been illegally conducted.

All orders which authorize a wiretap must direct that “such interception begin and terminate as soon as practicable and be conducted in such a manner as to minimize or eliminate the interception of ... communication[s] not otherwise subject to interception under this chapter____” 18 Pa.C.S. § 5712(b). Wible contends that the Commonwealth failed to minimize the interception of communications over the telephones in the Riffert-Wible residence. This, Wible argues further, requires that all evidence obtained through the wiretaps be suppressed.

The minimization requirements of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701 et seq., were discussed by this Court in Commonwealth v. Doty, supra, in the following manner:

Minimization of the interception of communications not subject to seizure is a crucial requirement of a lawful wiretap. Scott v. United States, [436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)], supra; Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Without minimization, surveillance of telephone conversations amounts to a general search and an unreasonable intrusion into a citizen’s privacy. The purpose of minimization is to reduce the scope of an intrusion while at the same time allowing legitimate law enforcement aims to be pursued. An overly restrictive interpretation of the minimization requirement will make it impossible to use a telephone intercept as an effective method for investigating activities of organized crime, such as drug trafficking, gambling, political corruption, etc., which invariably are carried on in secret. See: United States v. Cox, 567 F.2d 930 (10th Cir.1977), cert. denied, 435 U.S. 927, 98 S.Ct. 1496, 55 L.Ed.2d 522 (1978). This is why minimization must be a question of what is reasonable and practical under the circumstances of each case. Scott v. United States, supra, 436 U.S., at 140, 98 S.Ct. at 1724, 56 L.Ed.2d at 179; United States v. Armocida, supra, 515 F.2d at 42. The Commonwealth has the burden of proving at a suppression hearing that the manner in which the wiretap was conducted did not impose a greater invasion of privacy than was reasonably necessary under the circumstances. See: United States v. Armocida, supra at 43. See also: Commonwealth v. Ryan, 296 Pa.Super. 222, 226-228, 442 A.2d 739, 741-742 (1982). Circumstances to be considered include, but are not limited to, the nature of the investigation, the length of calls, the percentage of pertinent calls, whether calls are repeatedly between the same parties, whether the contents of calls are ambiguous, whether coded or guarded language is used, and whether patterns develop during the surveillance. Scott v. United States, supra.

Id., 345 Pa.Super. at 399, 498 A.2d at 882-883.

At trial, Corporal Thomas P. Baggott of the Pennsylvania State Police, the supervisor of the wiretapping operation, outlined the minimization procedures which had been followed. He testified as follows:

Q. And, were there proceedings involved to minimize phone investigations?
A. Yes, there were.
Q. Do you want to explain what minimize means to the Jury?
A. The court directs us when we conduct a wiretap that we must minimize the interception, that is, if we’re on a given phone, the court gives us permission to listen to those conversations to try to find criminal intent that we can use to continue our investigation.
If the conversation appears to us that the people are not subjects of the investigation that are using the phone or if they are subjects and there is indication that it’s not going to be a criminal conversation, we must do what’s call[ed] minimize, that is we push a button that records on the DNR — that means we push the button that electronically shuts off the recorder and headsets so we do not listen to a telephone conversation that is not drug-related, so that if you have a situation where you have two persons living in a house and you believe only one is involved in drugs, the second person gets on that telephone, you must minimize and not listen to that call.
Periodically, you can go back on line, push the button and again record it on the DNR and you listen and you make sure that person has not changed where you have a wife hand the phone to her husband and also to make sure the people talking, that it is still a general conversation and not criminal conversation.
All these are recorded electronically so the courts can examine that we have not listened to conversations that we’re not allowed to listen to.
Q. Were these procedures observed throughout the wiretapping?
A. Yes, sir, the monitors were required to minimize and the supervisor’s prime job was to see that minimization was carried out.
Q. And, did someone come from out of the state police to supervise the overall operation including posting orders and that sort of thing?
A. Yes.
Q. Who was that?
A. The the District Attorney of that county, Mr. Marsh.

With respect to the Commonwealth’s efforts to minimize the interceptions, the suppression court made the following findings:

The affidavit of probable cause reveals a wide spread conspiracy to distribute methamphetamine in large quantities in the Philadelphia area, the Pocono region extending into Luzerne and Wyoming Counties. The scope of criminal activity was extensive. It involved the criminal activities of a substantial number of people such as James Riffert, Kathleen Wible, Joseph Donahue, Kerry Schloder, Jerry Smith, Darlene Howell Isenberg, Martin Moore and others. It shows extensive criminal activity in the sale and distribution of methamphetamine over a substantial area of the Pocono region by people who have been arrested, convicted and sentenced for drug violations.
The pen register records show an abnormal use of the telephones. Many calls between the same persons, all known drug dealers, in a single day. These records show clearly that the telephones were not for normal use primarily but the conduits between the drug dealers to accomplish their objectives to sell illegal drugs, particularly methamphetamine.
The police in terminating the wiretapping within the time period fixed by the Court and not seeking an extension of said time period, both satisfied the requirement of the Court as well as the statutory minimization provisions.
The record shows that the police made a conscious effort to minimize the intrusion into the privacy of the Defendants’ telephone conversations. They intercepted only pertinent calls, calls which identified the conspirators, informed them of the nature of the criminal activity planned and the time and place it was to occur. They did not intercept general calls. A supervisor was present at the listening post at all times and any grey area was discussed by telephone with the District Attorney.
The District Attorney approved the minimization plan, monitored it personally by repeated visits to the listening post. The District Attorney also approved the names and identification of the police officers used in monitoring the telephone calls. Only pertinent calls were intercepted and transcribed.
The evidence shows that the District Attorney properly supervised the wiretapping. It further shows that the police avoided any unreasonable intrusion into the privacy of the Defendants’ telephone conversations.

After a careful review of the record, we are satisfied that the suppression court’s determination that the Commonwealth had adequately minimized its interception of telephone conversations from the Riffert-Wible residence was fully supported. Wible’s averments to the contrary are without merit.

The Commonwealth introduced at trial the contents of several conversations which it had intercepted as part of its wiretap operation. Appellants objected to the introduction of a conversation between Riffert and his ex-wife, Darlene Riffert, on the grounds that it was irrelevant — it pertained in part to custody arrangements for their son. They also argue that any probative value was outweighed by its prejudicial impact because the conversation contained foul language and sexual innuendo. Another part of the same conversation, however, pertained to Riffert’s having taken over the “Greenridge Corporation.” Corporal Baggott, testifying as an expert, said that the “Greenridge Corporation” had been a reference to the drug trade in the Pocono Mountains. This conversation, the trial court concluded, was relevant as evidence of Riffert’s involvement in drug trafficking.

In reviewing appellants’ challenge to the admission of this intercepted conversation, we are guided by the following principles:

The admission and exclusion of evidence is a matter vested within the trial court’s discretion. “An abuse of that discretion may be found if it appears that a trial judge admitted irrelevant evidence that was prejudicial to the accused or evidence the probative value of which was outweighed by its prejudicial impact or its tendency to suggest decision on an improper basis.” Commonwealth v. Shain, 324 Pa.Super. 456, 462, 471 A.2d 1246, 1248-49 (1984).
“Evidence is relevant if it tends to make more or less probable the existence of some fact material to the case, it tends to establish facts in issue or when it in some degree advances the inquiry and thus has probative value.” Commonwealth v. Shain, supra, 324 Pa.Superior Ct. at 462-463, at 471 A.2d at 1249.

Commonwealth v. Delligatti, 371 Pa.Super. 315, 331-332, 538 A.2d 34, 42 (1988). We will not substitute our judgment in this case for the trial court’s determination that the challenged conversation was relevant as evidence of Riffert’s involvement in drug trafficking in the Pocono Mountains. We reject appellants’ assertion that the use of foul language rendered otherwise relevant evidence inadmissible because of a possibly prejudicial effect.

Wible challenges the trial court’s ruling which permitted Corporal Baggott to testify as an expert to interpret coded messages which were intercepted. Not only was the testimony improper as a usurpation of the jury’s function, she argues, but Corporal Baggott was not qualified to express an opinion regarding the intended content of such messages.

We find no merit in Wible’s contention that Corporal Baggott’s opinion testimony usurped the function of the jury. In United States v. Dawson, 556 F.Supp. 418 (E.D. Pa.1982), affirmed, 727 F.2d 1101 (3d Cir.1984), the United States District Court for the Eastern District of Pennsylvania said that “expert testimony is readily admissible to interpret and explain the use of code words and the meaning of certain language used in drug trafficking.” Id. at 423. See also: United States v. Smith, 519 F.2d 516 (9th Cir.1975); United States v. Fletcher, 616 F.Supp. 16 (E.D. Pa.1985). In United States v. Cirillo, 499 F.2d 872 (2d Cir.), cert. denied, 419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974), moreover, the Second Circuit unequivocally rejected the argument which Wible attempts to assert in this Court. Specifically, the Cirillo court found that where a police officer, who had been qualified to testify as an expert, testified that, in his opinion, certain terms had been used as disguised references to narcotics, his testimony did not invade the province of the jury. Id. at 881. See also: United States v. Borrone-Iglar, 468 F.2d 419, 421 (2d Cir.1972), cert. denied, 410 U.S. 927, 93 S.Ct. 1360, 35 L.Ed.2d 588 (1973). So, too, in the instant case, expert testimony was admissible to decode drug language intercepted by the wiretaps. The trial court specifically instructed the jury that it was its responsibility to assess the credibility of Corporal Baggott’s testimony. His testimony did not usurp the jury’s fact finding function and was properly received.

We also find no abuse of the trial court’s discretion in its determination that Corporal Baggott had been qualified to give such testimony.

To qualify as an expert witness, a witness need only have a “reasonable pretension to specialized knowledge,” on a subject for which expert testimony is admissible. Commonwealth v. Washington, 235 Pa.Super. 339, 340 A.2d 896 (1975). An expert’s pretension to specialized knowledge may be based upon practical, occupational, or other experiential training; the expert need not have gained expertise through academic training. Commonwealth v. Ellis, 354 Pa.Super. 11, 510 A.2d 1253 (1986); Commonwealth v. Daniels, 280 Pa.Super. 278, 421 A.2d 721 (1980). The determination of whether a witness is qualified to offer an expert opinion on a particular subject is a matter addressed to the sound discretion of the trial court, and its discretion will not be reversed absent a clear abuse of discretion. Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221 (1986); Commonwealth v. Ellis, supra; Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984).

Commonwealth v. Pearsall, 368 Pa.Super. 327, 332, 534 A.2d 106, 109 (1987).

In response to Wible’s post-trial motions, the trial court determined that Corporal Baggott had been properly qualified as an expert. The trial court reasoned as follows:

Officer Baggott was qualified as a professional drug investigator involved in the aspects of dealings, selling, and buying, and also involved in deciphering coded language. Officer Baggott is a twenty-year veteran of the Pennsylvania State Police and served on the narcotics task force for the past eight years. In addition to normal drug training, Officer Baggott is specially trained as a full-time narcotics investigator. He is a class A certified electronic surveillance officer. As a part of his training, Officer Baggott is familiar with slang and street names of various drugs. While engaged in undercover investigations, he has become involved in coded drug language, and has been engaged in thousands of coded conversations with drug dealers. Although he has never had special training in coded language, Officer Baggott has been able to decode approximately 20 different non-consentual [sic] wiretap drug conversations. Based on these credentials, the Court accepted Officer Baggott as an expert in decoded wiretapped drug conversations.

We find no abuse of discretion in the trial court’s determination that Baggott was qualified to express an opinion regarding the coded terminology found in the intercepted telephone conversations between Wible and others known to be involved in illegal drug trafficking.

Wible also contends that the trial court erred when it allowed two pounds of methamphetamine to be taken by the jury into the deliberating room. The methamphetamine had been seized by police at the time when Reeves and Inadi were arrested while engaged in a drug transaction.

Decisions as to what exhibits may be taken out of by the jury are within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Commonwealth v. Sparks, 351 Pa.Super. 320, 327-328, 505 A.2d 1002, 1006 (1986); Commonwealth v. Lybrand, 272 Pa.Super. 475, 484, 416 A.2d 555, 560 (1979); Commonwealth v. Merbah, 270 Pa.Super. 190, 196, 411 A.2d 244, 247 (1979). See also: Pa.R.Crim.P. 1114. To establish an abuse of discretion, appellant must show that the trial court disregarded or misapplied the law or that “ ‘the judgment exercised was manifestly unreasonable,. or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record____’” Commonwealth v. Jackson, 336 Pa.Super. 609, 627, 486 A.2d 431, 441 (1984).

Commonwealth v. Thomas, 372 Pa.Super. 349, 363, 539 A.2d 829, 836-837 (1988).

In the instant case, Wible has been unable to show that she was prejudiced in any way by this exhibit. The evidence at trial showed that appellant Wible, via telephone, had coordinated the meeting between Reeves and Inadi for the purchase of the methamphetamine. Thus, the drugs were directly linked to Wible and properly admitted against her at trial. Wible does not suggest otherwise. Under these circumstances, we hold that it was not an abuse of discretion for the trial court to allow the drugs to go out with the jury during its deliberations. See: United States v. Gordy, 425 F.Supp. 208, 212 (E.D.Pa.), affirmed, 559 F.2d 1209 (3d Cir.1977) (trial court did not abuse its discretion by allowing heroin, which defendant allegedly sold and delivered, to go out with the jury).

The last of Wible’s arguments which we will discuss is that the trial court erred by consolidating her trial with that of her co-defendants, Riffert, Inadi and Reeves. The decision whether to try co-defendants jointly or separately is committed to the sound discretion of the trial court, and that decision “will not be disturbed on appeal absent a manifest abuse of discretion or a showing of substantial prejudice and clear injustice to the accused.” Commonwealth v. Thomas, 346 Pa.Super. 11, 19, 498 A.2d 1345, 1348 (1985). See also: Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984); Commonwealth v. Gelormo, 327 Pa.Super. 219, 475 A.2d 765 (1984). “A joint trial of co-defendants is ‘advisable when the crimes charged grew out of the same acts and much of the same evidence is necessary or applicable to [all] defendants.’ ” Commonwealth v. Thomas, supra, 346 Pa.Super. at 19, 498 A.2d at 1349, quoting Commonwealth v. Morales, 508 Pa. 51, 61, 494 A.2d 367, 372 (1985). Wible has not demonstrated that the trial court abused its discretion in consolidating her trial with that of her co-defendants. The four defendants were charged with the same crimes arising from the same series of events. Much of the trial evidence, particularly the wiretapped conversations, was relevant and admissible against all four defendants. The trial court did not abuse its discretion when it ordered that all defendants be tried together.

Having found no merit in any of the appellants’ several contentions, we affirm the judgments of sentence entered against them.

AFFIRMED.

BECK, J., concurs in the result.

      . Co-defendants, Joseph Inadi and Richard Reeves, were also tried with Riffert and Wible. Inadi was convicted of two counts of conspiracy to possess a controlled substance and two counts of conspiracy to possess a controlled substance with intent to deliver. Reeves was convicted of one count of the same offenses.

      . Riffert raises the following four issues for our review:
      1. Does the failure to provide the Appellant with a preliminary hearing until thirty-five days after his preliminary arraignment require his discharge?
      2. Did the Commonwealth’s failure to file any timely Petition to Extend the period in which to bring the Appellant to trial more than one hundred and eighty (180) days after the initiation of criminal proceedings require the discharge of the Appellant?
      3. Did the Commonwealth lack probable cause to obtain its initial search warrants which formed the basis for the installation of pen registers subsequently approved by the Honorable Ronald E. Vican the product of prior illegally obtained evidence?
      4. Did the Trial Court err in admitting wiretap tape number one in that it had no probative value to the charges for which the Appellants were tried and that its admission was solely for the purpose of prejudicing the jury against the Appellants?

      . Wible argues the following eleven issues:

        1. Did the trial court err in finding the evidence sufficient to sustain convictions of conspiracy?
      2. Is probable cause to obtain court ordered wiretaps established by inconclusive and vague police affidavits?
      3. Are court ordered wiretaps which are the product of prior illegally obtained evidence proper?
      4. Does the Commonwealth minimize its interception of telephone conversations by failing to discontinue interception of telephone conversations dealing with personal, noncriminal matters?
      5. Is a tape recording of a co-defendant’s telephone conversation with his ex-wife containing profane and lewd statements and which discusses unrelated crimes properly admitted into evidence?
      6. Does the Commonwealth's failure to bring a defendant to trial within one hundred and eighty days of the date the criminal complaint was filed require that the charges be dismissed with prejudice?
      7. Does a court err in permitting the Commonwealth to qualify a state police corporal as an "expert” in drug investigations and drug terminology?
      8. Does a court err in permitting the jury to take two pounds of methamphetamine into the jury deliberation room?
      9. Does a court err in refusing to read a defendant’s points for charge which apply to the facts of the case?
      10. Does a court err in consolidating a defendant’s trial with that of co-defendants when consolidation is clearly prejudicial and without reasonable basis?
      11. Is a sentence of a minimum three years to a maximum of six years, plus a fine of one thousand ($1,000) dollars excessive in view of the minimal involvement, if any, of the defendant in the crimes?

      . Rule 1100 was amended on December 31, 1987. However, our analysis in this appeal is based on the version of the rule as it existed at the time of the trial court’s ruling on appellants’ motions to dismiss.

      . Indeed, we might well exclude all time after August 5, 1985, when the pre-trial motions should have been filed.

      . Wible’s remaining contentions are wholly lacking in merit. The evidence introduced at trial was clearly sufficient to prove beyond a reasonable doubt that a conspiracy existed and that Wible had participated in that conspiracy.
      There is in the trial court’s instructions to the jury no error which requires the granting of a new trial. The jury was fully and accurately instructed on the applicable law, and appellant was not prejudiced by the trial court’s divergence from the precise language which she had requested. See: Commonwealth v. Neely, 372 Pa.Super. 519, 539 A.2d 1317 (1988).
      Wible has not preserved for our review the claim that her sentence is excessive. She has failed to comply with Pa.R.A.P. 2119(f) and, as such, we are precluded from further reviewing her challenge to the discretionary aspects of sentencing. See: Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    549 A.2d 578
    COMMONWEALTH of Pennsylvania, Appellee, v. Gloria RODRIGUEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 18, 1988.
    Filed Sept. 21, 1988.
    Reargument Denied Nov. 14, 1988.

      Richard K. Renn, York, for appellant.
    William H. Graff, Jr., Assistant District Attorney, York, for Com., appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and MONTEMURO, JJ.
   OLSZEWSKI, Judge:

Appellant, Gloria Rodriguez, takes this appeal from the July 17, 1987, judgment of sentence of the Court of Common Pleas of York County. Appellant was convicted of possession of drugs with intent to deliver. Pa.Stat.Ann.Tit. 35 § 780-113(a)(30) (Purdon 1986). Appellant was sentenced to a period of imprisonment of not less than one year and not more than two years.

On appeal, Appellant raises three issues for our consideration: (1) whether the trial court erred in refusing to suppress the evidence seized in a search of her automobile, (2) whether the denial of Appellant’s request for a new trial because trial counsel was ineffective was proper, and (3) whether the evidence was sufficient to sustain the verdict of the lower court on the charge of possession of drugs with intent to deliver. We will discuss these issues seriatim.

On November 15, 1985, police received information from an informant that, appellant and her husband were delivering cocaine to subjects in the York area and to the mobile home of Stephen Conn. Police observed appellant’s vehicle in York on that day and were later advised by the informant that appellant and her husband had already delivered drugs to Conn.

A second informant told police that appellant and her husband were transporting cocaine to the York area and, more specifically, that on November 23, 1985, they were in the east end of York. Police followed up on this information and observed appellant’s vehicle in York City.

On November 27, 1985, informant # 2 informed police that appellant and her husband would be coming to York to deliver drugs. Police then observed appellant’s vehicle on Route 1-83 entering York, but lost sight of it before it entered the city. Appellant’s vehicle was later discovered by the police parked outside of the residence of Stephen Conn.

Officers observed appellant’s vehicle exiting the trailer court where Stephen Conn resided. Police pursued and stopped the vehicle on Route 234. After a search of the vehicle revealed cocaine and a large sum of money, appellant and her husband were arrested. The police then immediately returned to the Conn residence and found cocaine and other drug-related paraphernalia. Appellant’s vehicle was later secured, and an inventory search disclosed additional cocaine and heroin.

Next we must examine the procedural posture in which we find this case. We now set out the sequence of events in pertinent part. On November 27, 1985, appellant was charged by complaint with possession of drugs with intent to deliver and criminal conspiracy. A pre-trial suppression hearing was held at which motions to suppress were denied in an opinion dated February 20, 1987. The case was then tried and a guilty verdict was entered on April 20,1987. On June 3, 1987, post-trial motions on the suppression issue were denied. Appellant was sentenced on July 17, 1987. An appeal was filed on August 12, 1987, by appellant through previous counsel; but as no briefs were ever submitted, the appeal was dismissed on December 10, 1987. Appellant filed a PCHA petition on February 9, 1988, setting forth the above three issues. The PCHA order of March 7, 1988, permitted appellant to file this appeal nunc pro tunc.

We now turn to appellant’s first contention: failure of the trial court to suppress evidence. Our initial task in reviewing the ruling of a suppression court is to determine whether the factual findings are supported by the record. We must then determine the legitimacy of the inferences and legal conclusions drawn from those facts. Since the trial court found for the prosecution on this motion, we will consider only the evidence of the prosecution and so much of the evidence for the defense which, as fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Lark, 505 Pa. 126, 129, 477 A.2d 857, 859 (1984) (citations omitted); Commonwealth v. Monarch, 510 Pa. 138, 146-47, 507 A.2d 74, 78 (1986) (citations omitted).

Basic constitutional jurisprudence holds that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967) (footnotes omitted). Both United States and Pennsylvania constitutional law permit the warrantless search and seizure of automobiles if based upon probable cause and accompanied by exigent circumstances. Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564, 575-76 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985). This exception was created based on the inherent mobility of vehicles, with the consequent practical problems in obtaining a warrant prior to searching and on the “diminished expectation of privacy which is accorded automobiles because of their open construction, their function and their subjection to a myriad of state regulations.” Milyak, 508 Pa. at 8, 493 A.2d at 1349 (citing Commonwealth v. Timko, 491 Pa. 32, 38, 417 A.2d 620, 623 (1980)) (additional citations omitted). Thus, our initial consideration must be whether the police had probable cause to stop and search appellant’s vehicle. We find that such probable cause existed.

Probable cause is a flexible, common-sense standard which “merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief’ that certain items may be contraband or stolen property or useful as evidence of a crime.” Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502, 514 (1983) (citations omitted). As our Supreme Court stated in Commonwealth v. Lewis, 442 Pa. 98, 101, 275 A.2d 51, 52 (1971):

To justify ... a [warrantless] search ... an officer must have independent probable cause to believe that a felony has been committed by the occupants of the vehicle, or that it has been used in the furtherance of the commission of a felony, or the officer must have a basis for believing that evidence of a crime is concealed within the vehicle, or that there are weapons contained therein which are accessible to the occupants.

Id. See also Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972). “Thus, where there exists probable cause related to the vehicle or its occupants, a search of the vehicle is permissible.” Milyak, 508 Pa. at 8, 493 A.2d at 1349.

As to the determination of probable cause in actions involving informants, the Supreme Court enunciated the “totality-of-the-circumstances” approach in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). This test was adopted by the Pennsylvania Supreme Court in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985).

In examining the totality of the circumstances, the court must scrutinize (1) the specific information provided by the informants, (2) the reliability of the informants, and (3) the independent corroboration of the information. Gates, supra. The information in this case does satisfy these three elements.

As to the first, the information provided by the informants consisted of the following:

(1) that the Rodriguezes brought cocaine into York in the past;

(2) that on the 15th of November, the Rodriguezes would be bringing drugs to York to sell;

(3) that they would deliver drugs to an address on Bergman Street in York and to Stephen Conn’s residence;

(4) that the Rodriguezes actually delivered drugs to Stephen Conn’s residence prior to the officer’s observation of the Rodriguezes at the Bergman Street address;

(5) that on the 23rd and 27th of November, the Rodriguezes would again be in York to deliver drugs at the two above-mentioned addresses;

(6) that the Rodriguezes had several different vehicles including a black Trans Am, a white Chevy, and two or three cycles;

(7) that Conn would receive anywhere from one to three ounces of cocaine from the Rodriguezes; and

(8) that the Rodriguezes would quickly get rid of the drugs.

Police testimony demonstrated the reliability of the confidential informants. Informant # 1, a poly-drug user, had provided information in the past which led to the issuance of four search warrants, four arrests, and the confiscation of large amounts of drugs. Informant # 2, also a poly-drug user, had given information in the past to the police officers in this case which had proven to be correct. As we noted in Commonwealth v. Benjamin, 260 Pa.Super. 1, 393 A.2d 982 (1978), “past ‘investigative leads’ that proved reliable and accurate were a sufficient indicator of the informant’s reliability”; convictions are not the sine qua non of reliability. Id., 260 Pa.Superior Ct. at 7, 393 A.2d 985; see also Commonwealth v. White, 311 Pa.Super. 146, 152, 457 A.2d 537, 539 (1983).

Finally, the independent corroboration of the information was affected in two ways. First, two independent and distinct informants provided the same information. The statements of different informants may corroborate each other. Commonwealth v. Jones, 506 Pa. 262, 270-71, 484 A.2d 1383, 1388 (1984), and case cited therein. Secondly, police surveillance established the following:

1. On the 15th of November, the officers observed Mr. Rodriguez at 535 Bergman Street and later identified a car parked in the neighborhood with New Jersey tags which proved to be registered to Mrs. Rodriguez;
2. They called the informant on the 15th of November and were informed that the Rodriguezes had been to the Conn residence prior to their being at the Bergman Street address;
3. On the 23rd of November, the officers again found the Rodriguezes’ car in the City of York as the informant had said it would be;
4. On the 27th of November, the officers saw the Rodriguezes’ car entering York via Route 83 and later observed it parked at the Conn residence.

Trial court opinion on motion to suppress, February 20, 1987, at 5. Because “only a probability or substantial chance of criminal activity, not an actual showing of such activity [is required]____innocent behavior frequently will provide the basis for a showing of probable cause.” Gates, 462 U.S. at 243 n. 13, 103 S.Ct. 2335 n. 13, 76 L.Ed.2d at 552 n. 13.

Thus, we conclude that the officers had probable cause to search the vehicle based upon the information provided by the informants whose reliability was established and whose information was independently corroborated. See Jones, supra.

Since probable cause has been established, our next inquiry must be whether exigent circumstances existed such that immediate action was necessary. As our Supreme Court has stated,

The warrant requirement ... is excused where exigent circumstances exist ... Exceptions arise when the need for prompt police action is imperative, either because evidence sought to be preserved is likely to be destroyed or secreted from investigation, or because the officer must protect himself from danger to his person by checking for concealed weapons.

Commonwealth v. Landamus, 333 Pa.Super. 382, 390, 482 A.2d 619, 623 (1984) (quoting Coolidge v. New Hampshire, supra; Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970); Milyak, supra, and citations therein). In Chambers v. Maroney, 399 U.S. at 52, 90 S.Ct. at 1981, 26 L.Ed.2d at 428, the Supreme Court stated:

For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to the magistrate and on the other hand carrying out the immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

Id. See also, United States v. Ross, 456 U.S. 798, 807 n. 9, 102 S.Ct. 2157, 2163 n. 9, 72 L.Ed.2d 572, 582 (1982).

Appellant’s vehicle was mobile just prior to the search, and so the opportunity for search was fleeting. Additionally, it was believed that a felony had been committed and that evidence of it might be destroyed or removed from the car and/or jurisdiction if not obtained. Therefore, we find that both probable cause and exigent circumstances existed, thus permitting a warrantless search of appellant’s vehicle.

Appellant’s second issue raises two claims of ineffective assistance of counsel: (1) failure by counsel to allow appellant to testify, and (2) failure of counsel to disclose the conflict of interest caused by representing both appellant and her ex-husband. When reviewing a claim of ineffectiveness of counsel, this Court must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). If the issue is found to be of arguable merit, our inquiry shifts to a determination of whether counsel’s actions had a reasonable basis in promoting the client’s interests. Id. Finally, appellant must demonstrate that the ineffectiveness was prejudicial to the point of having an adverse effect upon the outcome of the proceedings. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). The burden of proving counsel’s ineffectiveness rests on the party claiming such, as counsel is presumed to be effective. See Commonwealth v. Verdekal, 351 Pa.Super. 412, 506 A.2d 415 (1986).

As to the first claim of ineffectiveness, we note that it is well established that the decision of whether to testify on one’s own behalf rests solely on the defendant. Com monwealth v. Rawles, 501 Pa. 514, 525 n. 3, 462 A.2d 619, 624 n. 3 (1983). We also note that in Rawles our Supreme Court stated that the record indicated no disagreement between appellant and his trial counsel as to the course taken. Id. We find the record before us to be the same; thus, the first claim underlying the charge of ineffective assistance of counsel is meritless.

As to the second claim of ineffectiveness, it is again well established that dual representation alone does not create or indicate a conflict of interest. Commonwealth v. Joyner, 489 Pa. 502, 506, 414 A.2d 1003, 1005 (1980). Although it is true that the mere existence of a conflict of interest will vitiate the proceedings, Commonwealth v. Westbrook, 484 Pa. 534, 400 A.2d 160 (1979), such conflict must appear from the facts of the proceeding as they appear on record. Commonwealth v. Burch, 248 Pa.Super. 8, 14, 374 A.2d 1291, 1293 (1977). Appellant here claims, after the fact, to have had a defense which was inconsistent with that of her co-defendant. This defense was not communicated to her counsel and, therefore, was not used at trial. Where neither defendant relies on a defense which is antagonistic to that of the other, no conflict is made out. Joyner, 489 Pa. at 506, 414 A.2d at 1005. Counsel, then, cannot be deemed ineffective for failure to pursue a defense of which he was not informed. Cf Commonwealth v. Madison, 501 Pa. 485, 491, 462 A.2d 228, 231 (1983) (counsel deemed effective when failure to call witness was due to failure of defendant to notify counsel of existence of witness). We again find that this underlying claim of ineffective assistance of counsel is without merit. Therefore, we find that appellant was provided effective assistance of counsel.

Appellant’s third and final allegation of error is that the evidence was insufficient to sustain the verdict. This issue is waived because appellant failed to preserve it by including it in her post-verdict motions. Commonwealth v. Seachrist, 478 Pa. 621, 623, 387 A.2d 661, 662 (1978); Com monwealth v. Goins, 348 Pa.Super. 22, 24, 501 A.2d 279, 280 (1985).

Judgment of sentence affirmed.


author: MELINSON, Judge:

text:
    549 A.2d 583
    COMMONWEALTH of Pennsylvania v. John A. HILL, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 11, 1988.
    Filed Oct. 11, 1988.
    Petition for Allowance of Appeal Denied March 16, 1989.

      Gary Lysaght, Lemoyne, for appellant.
    Keith E. Kendall, Assistant District Attorney, Lewistown, for Com., appellee.
    Before CAVANAUGH, MELINSON and WATKINS, JJ.
   MELINSON, Judge:

This is an appeal from the Judgment of Sentence of the Court of Common Pleas of Mifflin County sentencing appellant for his violation of 75 Pa.C.S.A. Section 1543(b). We affirm.

The facts of the case are undisputed. On 31 March 1985, appellant, John A. Hill, was arrested and charged with a violation of 75 Pa.C.S.A. Section 3731, driving while under the influence of alcohol. In addition, Hill was charged with violating 75 Pa.C.S.A. Section 1547(b)(1) as a result of his refusal to submit to a chemical breath test. The charge of driving under the influence of alcohol was dismissed at a preliminary hearing before a District Justice. However, Hill’s license was automatically suspended, effective 31 August 1985, for one year for his failure to submit to a chemical breath test.

On 30 June 1986, Hill was convicted by a District Justice of violating 75 Pa.C.S.A. Section 1543(b) by driving a motor vehicle while his operator’s license was already under suspension for his previous violation of Section 1547(b)(1). Hill appealed his conviction to the Court of Common Pleas of Mifflin County. The Honorable Francis A. Searer presided over a de novo trial at which Hill was convicted. The learned trial court imposed the mandatory minimum sentence of ninety days’ incarceration, fined Hill One Thousand Dollars ($1,000.00), suspended his operator’s license an additional six months, and ordered him to pay the costs of prosecution. The trial court granted Hill leave to file a post-trial motion nunc pro tunc. Subsequently, the motion was denied by the trial court and this timely appeal followed.

On appeal, Hill claims that Section 1543(b) is unconstitutional as applied to him. More specifically, Hill contends that the sentence constitutes cruel and unusual punishment and, therefore, is unconstitutional because he is subject to the mandatory sentence regardless of the factual circumstances of his case; that Section 1543(b), as applied, violates due process of law because he was denied the opportunity to present evidence of mitigating circumstances in support of a lesser sentence; and, that he, as a member of an alleged “suspect sub-class” of DUI-related suspension offenders, was denied equal protection under the law because he received the same mandatory sentence for a DUI-related suspension as a person who was actually convicted for driving while under the influence of alcohol.

Although Hill does not challenge the constitutionality of 75 Pa.C.S.A. Section 1547 (“Implied Consent Law”), he does challenge the validity of Section 1543 as applied to him. Therefore, a review of the Implied Consent Law and the purpose underlying the Implied Consent Law is relevant to our determination of the constitutionality of the enhancement provisions of Section 1543. Section 1547 provides, in pertinent part:

Section 1547. Chemical testing to determine amount of alcohol or controlled substance
(a) General rule. — Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle: (1) while under the influence- of alcohol or a controlled substance or both ...
(b) Suspension for refusal.—
(1) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.

75 Pa.C.S.A. Section 1547(a)(1) & (b)(1).

The purpose of Section 1547 is to protect the public by providing an effective means of denying intoxicated motorists the privilege of using the roads of the Commonwealth. Hando v. Commonwealth, 84 Pa.Cmwlth. 63, 478 A.2d 932 (1984); Commonwealth v. Charles, 270 Pa.Super. 280, 411 A.2d 527 (1979). Further, the purpose is to facilitate acquisition of chemical analyses and to permit their utilization in legal proceedings. Commonwealth v. Tylwalk, 258 Pa.Super. 506, 393 A.2d 473 (1978).

Section 1543 sets forth the enhanced, mandatory penalties for driving while license is under suspension for a DUI-related offense as follows:

Section 1543. Driving while operating privilege is suspended or revoked
(a) Offense defined. — Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.
(b) Certain offenses. — Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended ... because of a violation of section 1547(b)(1) (relating to suspension for refusal) ... shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.

75 Pa.C.S.A. Section 1543(a) & (b).

It is evident that the penalties imposed pursuant to Subsection (b) of Section 1543 are much harsher than the penalty contained in Subsection (a), including a larger fine and a mandatory period of incarceration. As noted by this court, “Section 1543(b) was enacted in coordination with the New Drunk Driving Law as part of the legislature’s broad response to the serious problem of intoxicated drivers. The economic losses, social disruptions and personal tragedies resulting from drunk driving are well documented and the subject of increasing public awareness.” Commonwealth v. Hoover, 343 Pa.Super. 372, 376, 494 A.2d 1131, 1133 (1985).

The trial court relied upon Hoover as its authority for holding that the sentencing provisions of Section 1543(b) are constitutional as applied to Hill. While we agree with the trial court’s disposition of the instant matter, there are critical distinctions between this case and Hoover which must be noted and which makes this a matter of first impression. As a result, we are compelled to analyze anew the constitutionality of Section 1543(b).

Hoover was arrested for a violation of 75 Pa.C.S.A. Section 3731, which prohibits the operation of a motor vehicle while under the influence of alcohol. He was convicted of the charge, and his driver’s license was suspended. Some time later, Hoover was charged with driving while his license was suspended as a result of his drunken driving conviction. He was sentenced, pursuant to Section 1543(b), to a mandatory ninety (90) day prison term and fined One Thousand Dollars ($1,000). Hoover challenged the constitutionality of Section 1543(b), alleging that it violated the constitutional prohibition against cruel and unusual punishment, his right to due process, and the Equal Protection Clause.

Hoover’s precise issues were strikingly similar to the issues in the instant matter. First, Hoover asserted that the mandatory sentence constituted cruel and unusual punishment. Second, he alleged that his right to due process was infringed by the retroactive application of Section 1543(b). Third, he argued that Section 1543(b) violated the Equal Protection Clause by improperly creating a new classification of suspension offenders, i.e. DUI-related suspension offenders. This court addressed and rejected the contentions raised by Hoover.

Like Hoover, Hill claims that the mandatory punishment, meted out to Hill as set forth in Section 1543(b), violates the prohibition against cruel and unusual punishment set forth in the United States Constitution and the Constitution of the Commonwealth of Pennsylvania. Initially, we must note that “an act of the legislature enjoys a presumption of constitutional validity which is not overcome unless the law clearly, palpably and plainly violates the constitution.” Commonwealth v. Cherpes, 360 Pa.Super. 246, 268, 520 A.2d 439, 450 (1987) (citations omitted). A penalty is cruel and unusual when it is “an excessive and unnecessary punishment disproportionate to the crime” and when it “shocks the moral conscience of the community.” Commonwealth v. Sourbeer, 492 Pa. 17, 33, 422 A.2d 116, 123 (1980). The most accurate indicators of “societal standards of justice” are the enactments of the duly elected representatives in the legislature____ In a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people. Commonwealth v. Hernandez, 339 Pa.Super. 32, 40, 488 A.2d 293, 298 (1985) (citations omitted).

Hill challenges the constitutionality of Section 1543(b) because of the mandatory nature of the punishment given to DUI-related suspension offenders. In a related contention, Hill asserts that the punishment is too harsh when one considers that he has not, at any time, been convicted of driving under the influence of alcohol. We have previously addressed the first prong of Hill’s challenge to the mandatory penalties for all DUI-related suspension offenders. In Hoover and Hernandez, in response to that precise allegation, we held that “the sentences imposed under Section 1543(b) are not disproportionate to the gravity of the offense and are not repugnant to societal standards of justice.” Hoover, 343 Pa.Super. at 377, 494 A.2d 1131. Accordingly, Hill’s assertion is meritless.

Further, we find no merit to Hill’s related contention that the mandatory penalties imposed upon Hill are too harsh. This court recognizes, as does our legislature, that drunk driving is a serious social problem that must be eradicated. The purpose of the drunk driving statutes is to protect the public from the tremendous hazard created by intoxicated motor vehicle operators both by facilitating the compilation of evidence of drunk driving and, by punishing, more stringently, those persons who violate the drunk driving laws. Consequently, the legislature has enacted enhanced mandatory penalties applicable to all DUI-related suspension offenders.

Hill refused to consent to a chemical examination of his breath, in violation of the Implied Consent Law. The express purpose of the Implied Consent Law is to facilitate the acquisition of chemical tests to determine whether a motor vehicle operator is under the influence of alcohol or a controlled substance. Accordingly, such test results may lead to removing a greater number of intoxicated drivers from the roadways. Therefore, the enhanced, mandatory penalties applicable to those persons who have their licenses suspended for refusing to comply with Section 1547 are appropriate and necessary in order to combat drunk driving. We conclude that the sentence imposed is certainly not disproportionate to the seriousness of the offense and is not inconsistent with societal standards of justice.

We now turn to a consideration of whether Section 1543(b), as applied to Hill, violates his constitutional right to due process. In effect, Hill has advanced two separate due process claims. He contends that Section 1543(b) is over-broad because it encompasses persons who have been convicted of driving under the influence of alcohol, as well as persons convicted of merely violating the Implied Consent Statute. In addition, the trial court’s denial of an opportunity to present, as mitigating evidence in support of a lesser sentence, the dismissal of the charge of driving while under the influence of alcohol in 1985, allegedly violated his right to due process.

We find that Section 1543(b) is not overbroad in its application to DUI-related suspension offenders such as Hill. Statutes are overbroad either when they do not give fair notice to people of ordinary intelligence that their contemplated activity may be unlawful, or when they do not establish reasonably clear guidelines for law enforcement officials and courts, thus inviting arbitrary and discriminatory enforcement. Commonwealth v. Stenhach, 356 Pa. Super. 5, 514 A.2d 114 (1986) (citations omitted). Hill has failed to allege that he was not given fair notice that driving while under a DUI-related suspension would result in enhanced mandatory penalties. Moreover, the Department of Transportation notice sent to persons who have their licenses suspended for DUI-related offenses contains a specific warning advising recipients of the enhanced, mandatory penalties incurred if they operate a motor vehicle while their operators’ privileges are subject to DUI-related suspension. Hill also fails to successfully argue that the statute does not provide reasonably clear enforcement guidelines. The statute establishes unambiguous guidelines for the courts to follow. Therefore, Section 1543(b) is not overbroad as applied to Hill:

We also find no merit to Hill’s allegation that he was denied his right to substantive due process because he was not permitted to introduce mitigating evidence, the dismissal of his underlying drunk driving charge, in support of a lesser sentence. The touchstone of due process is protection of the individual against arbitrary action of the government. Commonwealth v. Robinson, 497 Pa. 49, 54, 438 A.2d 964, 966 appeal dismissed Robinson v. Pennsylvania, 457 U.S. 1101, 102 S.Ct. 2898, 73 L.Ed.2d 1310; Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935, 952 (1974). To satisfy due process, the legislative means must bear “a reasonable relation to a proper legislative purpose” and be “neither arbitrary nor discriminatory.” United States v. Coastal States Crude Gathering Co., 643 F.2d 1125, 1127-1128 (5th Cir.), cert. denied, 454 U.S. 835, 102 S.Ct. 136, 70 L.Ed.2d 114 (1981), citing Nebbia v. New York, 291 U.S. 502, 537, 54 S.Ct. 505, 537, 78 L.Ed. 940.

The Pennsylvania legislature has expressed a determination to reduce the number of deaths, injuries, and accidents caused by intoxicated drivers. See Hernandez, 339 Pa.Super. at 32, 448 A.2d 293; Hoover, 343 Pa.Super. at 372, 494 A.2d 1131. In Hoover, we relied upon the legitimate state interests expressed in Hernandez and stated, in pertinent part:

Finally, Section 1543(b) is rationally related to the same state interests which motivated the legislature to enact the statutes at issue in Hernandez. The imposition of mandatory license suspensions for drunk driving reflects a proper legislative determination of the seriousness of the drunk driving problem, and Section 1543(b) is rationally related to the legitimate goal of keeping those convicted drunk drivers off the roads during the period of their suspensions.

Hoover, 343 Pa.Super. at 377, 494 A.2d 1131. We acknowledge that there is a legitimate state interest reflected by the enactment of Section 1543(b) and expressed clearly in Hoover and Hernandez. We must evaluate whether the legislation bears a rational relationship to this legitimate state purpose.

Again, we emphasize that Hill, unlike Hoover, is not a convicted drunk driver. However, he was convicted of an offense which requires mandatory penalties pursuant to Section 1543(b). The purposes of the Implied Consent Law, as previously noted, are to facilitate the accumulation of evidence of drunk driving and, subsequently, to keep drunk drivers off the roadways of the Commonwealth. Hill’s refusal to submit to a chemical test, as required by Section 1547, wrongfully deprived the Commonwealth of vital evidence of his intoxication or his sobriety. In view of the suspension notice issued to Hill by the Department of Transportation, Hill’s argument that he was unaware of the potentially harsh penalties accompanying his conviction is unpersuasive. The mandatory penalties set forth in Section 1543(b), even for a mere refusal to submit to a chemical test, are rationally related to the Commonwealth’s interest in keeping our highways safe. Hence, it was proper for the trial court to refuse to consider evidence (as mitigation in considering imposition of less than the mandatory sentence) of the dismissal of the underlying charge of driving under the influence of alcohol.

Finally, Hill asserts that he has been denied equal protection as a member of a “suspect sub-class.” The “suspect sub-class” consists of the suspension offenders who have been convicted of refusing to submit to a chemical test, but not of driving under the influence of alcohol. Such a classification must be reasonable and not arbitrary, and must rest upon some rational difference having a fair, substantial and reasonable relationship to the objective or objectives of the legislation at issue so that all persons similarly situated will be treated alike. Commonwealth v. Church, 513 Pa. 534, 545, 522 A.2d 30, 35-36 (1987). Further, “the Equal Protection Clause does not compel the legislature to choose between attacking all aspects of a problem or none at all.” Hoover, 343 Pa.Super. at 377, 494 A.2d 1131 citing Dandridge v. Williams, 397 U.S. 471, 486-487, 90 S.Ct. 1153, 1162-1163, 25 L.Ed.2d 491, 503 (1970).

Hill has failed to persuade this court that Section 1543(b) is not reasonable or is arbitrary when applied to persons situated similarly to Hill. For the precise reasons expressed in our evaluation of Hill’s due process claim, and in the absence of any allegation that persons similarly situated to Hill are not treated alike, we hold that Section 1543(b) is rationally related to a legitimate state interest and, for that reason, does not violate the Equal Protection Clause.

Judgment of Sentence affirmed.

      . In Hernandez, cited by Hoover as authority for its holdings, we held that the mandatory sentencing provisions contained in 75 Pa.C.S.A. Section 3731 (Driving While Under the Influence of Alcohol or Controlled Substance) coincided with societal standards of respectability and, consequently, did not "impose a penalty so out of proportion to the crimes as to shock a balanced sense of justice.” Hernandez, 339 Pa.Super. at 41, 448 A.2d 293.

        . Hernandez upheld the constitutionality of 75 Pa.C.S.A. Section 3731. Section 3731 provides for mandatory penalties to those persons convicted of driving while under the influence of alcohol or a controlled substance. With regard to a claim that Section 3731 violated the defendant’s right to due process, we stated as follows:
      We find that due process of law is not violated when courts accede to legislative authority to frame a coherent statutory scheme for the administration of sentencing for certain criminal offenses. The mandatory sentencing provisions, designed by the legislature to protect human life and property, represent sound public policy, are reasonably related to the ends ought to be accomplished, and are not constitutionally impermissible.

        Hernandez, 339 Pa.Super. at 42, 448 A.2d 293.


author: TAMILIA, Judge: BECK, Judge,

text:
    549 A.2d 588
    Marlene Kaskey DECHTER, Appellant, v. Stanley KASKEY.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1987.
    Filed Oct. 21, 1988.

      Harold Einhorn, Philadelphia, for appellant.
    Llynne Z. Gold-Bikin, Norristown, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

This is an appeal from the Order of the Montgomery County Domestic Relations Court, reducing the amount of support for minor children, fixed by a separation/property settlement agreement and a support Order at $235 per week, to $150 per week, plus $25 per week on account of arrearages. The Court en banc considered this case at the same time and in conjunction with Sonder v. Sonder (E5009/87) as the issues are the same (in part) and involve opposite interpretations by two judges of the Montgomery County Court of a court-approved Decree and Order Form.

The issue presented in this appeal is whether the court had jurisdiction and authority to modify a support agreement which was incorporated but not merged in a subsequent decree of divorce. Briefly, the facts in this case are as follows.

The parties were married on April 13, 1969 and, from this union, three children were born. As a result of marital discord, the parties separated in 1983 and, on September 5, 1985, they entered into a 24-page counselled property settlement/separation agreement which provided for support for the children in the amount of $200 per week, retroactive to November 1, 1984 (until each is emancipated), and $235 per week as of January 1, 1985. Paragraph 25 of the agreement provided the agreement would not be modified or annulled by the parties thereto except in the same manner and with the same formalities of the agreement. Shortly thereafter, a divorce decree and Order were entered on September 16, 1985, which provided:

[Tjerms, provisions and conditions of a certain property agreement between the parties, dated September 5, 1985, (attached as exhibit “A”) is hereby incorporated into this Decree and Order by reference as fully as though the same were set forth herein at length. Said agreement shall not merge with but shall survive this Decree and Order.

Subsequently, appellee fell in arrears on the payment of support and, after issuance of six bench warrants for failure to pay, on February 26, 1986, he filed a petition to modify “Order of July 1, 1985.” The petition was heard before a Master in Support and was dismissed. On July 10, 1986, a hearing on exceptions to the master’s finding and decision were heard before the Honorable Gerald Corso. Following a hearing during which extensive testimony was taken, an Order was entered on July 14, 1986, granting appellee’s petition and reducing the child support Order of July 1, 1985 from $235 to $150 per week.

The Order of July 1, 1985, which was identical in amount and provisions as contained in the agreement of September 5, 1985, appears never to have been vacated and continues in effect. The agreement of September 5, 1985 makes no mention of that Order and makes no provisions for its suspension or supersedance by the agreement. The agreement was entered into after several negotiations relating to payment (or nonpayment) of the support Order. In Judge Corso’s Opinion, he referred to both the separation agreement and the support Order of July 1, 1985 and purported to reduce both, at least by implication.

Dealing with each separately, we affirm the reduction of the support Order of July 1, 1985 and vacate the reduction of the amount of support under the support agreement. The original permanent Order of support was entered on June 28, 1983, and there was considerable activity on that Order to bring about enforcement until the time of the agreement.

The record and evidence sustain the court’s finding that due to a change of circumstance, including liquidation of appellee’s prior business and reduced income in his present business (Slip Op. p. 2), he is unable to pay the amount of support ordered on July 1, 1985. We find no abuse of discretion in the trial judge’s action and, therefore, he must be affirmed. Shindel v. Leedom, 350 Pa.Super. 274, 504 A.2d 353 (1986); D’Arciprete v. D'Arciprete, 323 Pa.Super. 430, 470 A.2d 995 (1984) (lower court’s determination not to be disturbed absent clear abuse of discretion).

As to the modification of the agreement which the court lumped together with the support Order, the court’s determination that the agreement was merged into the decree and, therefore, is modifiable, is in error. Since we have dealt exhaustively with this issue in Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988) (Opinion by Tamilia, J.), which concerns the “Decree and Order, Form 2” of the Montgomery County Court, our determination that the agreement does not merge, pursuant to that form of decree, is controlling here. It is interesting to note that Judge Salus of the Montgomery Court, in Sonder, found he had no jurisdiction to entertain a petition for modification because the agreement was not merged, whereas Judge Corso, in the same court interpreting the same decree and Order form, found it did merge and a petition for modification could be entertained.

Having decided the support Order could be modified but the agreement could not, we will consider briefly the effect of our holding.

Pursuant to Sonder, we held both agreements and support Orders under certain circumstances could be given independent effect. Obviously, double recovery cannot be allowed on both the agreement and the support Order. To the extent the agreement is not completely satisfied by giving credit for the amount paid pursuant to the support Order, a debt is accumulated which may be recovered in an action of assumpsit or in equity. However, as we stated in Sonder, the enforcement remedies are not those pursuant to the support laws, therefore, attachment of the person and wage attachment are not permissible. In this respect, by retaining the validity of the agreement, we do not offend Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983) (an agreement for child support may not be reduced by the court, although an Order to increase support is permissible when circumstances warrant) and Brown v. Hall, 495 Pa.Super. 635, 435 A.2d 859 (1981) (unless an agreement is merged into the divorce decree, it may not be modified by the court). By holding the agreement specifically rules out merger, we distinguish it from Tokach v. Tokach, 326 Pa.Super. 359, 474 A.2d 41 (1984) and rule in accordance with McGough v. McGough, 361 Pa.Super. 391, 522 A.2d 638 (1987), Trumpp v. Trumpp, 351 Pa.Super. 205, 505 A.2d 601 (1985) and Madnick v. Madnick, 339 Pa.Super. 130, 488 A.2d 344 (1985). Appellee is incorrect in alleging incorporation of an agreement requires enforcement as a support Order but does not permit modification. To do so would permit attachment of the person for a debt arising out of contract, which is impermissible. See Commonwealth ex rel. Magaziner v. Magaziner, 434 Pa. 1, 253 A.2d 263 (1969); Silvestri v. Slatowski, 423 Pa. 498, 224 A.2d 212 (1966); Colburn v. Colburn, 279 Pa. 249, 123 A. 775 (1924); Pierce’s Appeal, 103 Pa. 27 (1883).

The portion of the trial court’s Order modifying the support Order of July 1, 1985 is affirmed; that portion of the Order, modifying the agreement of September 5, 1985, is vacated.

Jurisdiction relinquished.

CAVANAUGH, ROWLEY and WIEAND, JJ., concur in the result.

BECK, J., concurs and dissents.

BECK, Judge,

concurring and dissenting:

This is an appeal from an order of the Montgomery County Court of Common Pleas reducing husband appellee’s child support obligation from $235 per week to $150 per week plus $25 per week in payment toward arrearages.

Although the record as transmitted to this court is in a state of disarray, the facts pertinent to the issue on appeal can be ascertained and stated as follows. The parties were married in 1969 and separated in 1982. It would appear that wife first filed a complaint seeking child support in July 1982 and thereafter attempted to conduct discovery concerning husband’s financial condition. The record contains a report of a domestic relations officer dated February 22, 1983 indicating that husband did not appear at a hearing before that officer and that the facts were as yet so undeveloped that the officer could not make a recommendation as to support. However, on May 3, 1983 the Montgomery County Court of Common Pleas, on recommendation of a master, entered a temporary child support order directing payment of $225 per week, “plus payment of mortgage on family dwelling” and $25 per week toward arrearages. The order states that it is to be retroactively effective to July 22, 1982.

On June 28, 1983, a new order providing for $250 per week in spousal support and $220 per week in child support was entered. Husband was also ordered to pay dental and medical expenses and to pay $30 per week toward arrearages.

Wife thereafter continued to attempt to conduct discovery concerning husband’s financial situation. Numerous contempt proceedings initiated by wife followed, with several bench warrants being issued for husband’s arrest for noncompliance with his support obligation.

On April 23, 1984, husband filed a petition to modify the June 28th order and a hearing on his petition was scheduled. Prior to the hearing, however, Judge Brown of the Montgomery County Court entered an order dated July 10, 1984 directing husband to pay $150 per week in child support and indicating that a full hearing on the matter was to be scheduled.

The hearing on husband’s petition to modify was conducted on November 21, 1984. No evidence was taken. In lieu thereof, counsel for both parties informed presiding Judge Brown that the parties had come to a verbal agreement as to all issues, including their divorce, custody of their children, equitable distribution of their property and child support. Counsel stated this agreement on the record at length. We are concerned only with the child support aspect of this agreement. As to this, the parties agreed that husband would pay $200 per week retroactive to November 1, 1984, would pay all arrearages then due under Judge Brown’s July 10, 1984 order, and that effective January 1, 1985, husband would pay $235 per week. Counsel stated that the parties agreed that this obligation would be entered as a court order and that the parties would execute, as promptly as possible, a written agreement including these terms. At the end of the hearing, Judge Brown solicited from both husband and wife a statement that they understood and consented to the terms of this “agreement”.

We find nothing in this record to indicate that any order reflecting the parties’ oral agreement was ever entered. The agreement was merely stated on the record at the November 21, 1984 hearing.

Following this hearing, and presumably while the parties’ counsel undertook to draft and secure execution of the parties’ agreement in written form, wife continued in her efforts to secure husband’s compliance with his support obligations. Once again, at least one bench warrant had to be issued in order to secure compliance. Finally, on September 5, 1985, the parties’ final separation agreement was fully executed and effective. It contained the following language:

In the event either Husband or Wife at any time hereafter obtain a divorce in the cause presently pending or hereafter pending between them, this Agreement and all of its provisions shall be incorporated, but not merged, into any such judgment for divorce, either directly or by reference. The court on entry of the judgment for divorce shall retain the right to enforce the provisions and the terms of this Agreement. This Agreement shall not be modified or annulled by the parties hereto except by written instrument, executed in the same manner and with the same formalities of this Agreement.

On September 16, 1985, the parties were divorced. The divorce decree provided that the parties’ Agreement was incorporated but not merged into the decree.

Husband thereafter continued to fail to pay the required amounts of child support and wife continued to attempt to enforce husband’s obligation. Numerous bench warrants were issued.

On February 25, 1986, husband filed a petition to modify an order of support allegedly dated July 1, 1985, alleging a change of circumstances. As indicated above, no such order exists. In fact, at the July 10, 1986 hearing on husband’s petition to modify, counsel for husband, although stating that she “thought” such an order had been entered, admitted that she had no copy thereof. The court also did not have a copy and the record before us contains no such order.

Thus, at the time of husband’s petition to modify, his child support obligation was reflected in three places — first, in the parties’ oral agreement set forth in the transcript of the November 21, 1984 hearing before Judge Brown; second, in the parties’ written agreement dated September 5, 1985; and third, in the parties’ divorce decree into which the parties’ agreement was incorporated but not merged. There was no child support order entered by any court after a full hearing on the merits. The hearing that in fact was held was only that conducted on November 21, 1984, concerning the parties’ agreement. Notably, husband has never challenged the validity or enforceability of that agreement.

The trial court granted husband’s petition to modify, apparently on the basis of two mistaken assumptions, one factual and one legal. First, the court assumed that it was acting on a support order entered on July 1, 1985 after a full hearing. The order on appeal specifically directs that “the previous support order, dated the 1st day of July, 1985, ... is hereby modified....” Thus, the trial court erroneously acted upon a non-existent order. Second, the trial court supported its action based upon an erroneous interpretation of the law relating to the modification of support obligations arising from private agreements incorporated but not merged into orders or decrees of court. The trial court held that it had the power to modify husband’s obligation under our decision in Tokach v. Tokach, 326 Pa.Super. 359, 474 A.2d 41 (1984), where we held that an agreement that is incorporated into a divorce decree is deemed merged therein and the obligations expressed in the agreement become fully modifiable. This resolution ignores the clear intent of the parties to this dispute and is contrary to the principles enunciated in Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981), Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983), and McGough v. McGough, 361 Pa.Super. 391, 522 A.2d 638 (1987).

As I have opined at length in this case’s companion, Bonder v. Sonder, the intent of the parties’ is the central issue in determining whether a child support obligation expressed in the parties’ child support agreement will survive the entry of a divorce decree that incorporates that agreement. Here, as in McGough, supra, the parties’ intent is clear. Their agreement states that it shall be incorporated but not merged into the judgment in their divorce action. The divorce decree, from which no appeal is taken, states that the agreement, although incorporated, is not merged. In other words, the obligations the agreement imposes survive the entry of the decree and cannot be modified downward by the court.

Therefore, I would reverse the order of the trial court reducing husband’s child support obligation and deny husband’s petition to modify.

      . This case originated with a temporary support Order entered by Judge Tressler on July 22, 1982, with numerous modification Orders, attachment proceedings and court appearances relating to support from that time to the present. Due to the chaotic state of the record as transmitted by the lower court, we cannot verify from the record an Order dated July 1, 1985, but must accept the existence of such an Order from the court’s use of that date and the fact this was the date used by appellee in his petition to modify. At a hearing on November 21, 1984, the parties agreed on the record to enter an Order in the amount of $235 per week for support of the children as of January 1, 1985. This appears to be the Order on which the parties and the court are acting upon.

      . We take note that while it has no effect on this agreement, the amendment to the Divorce Code, Act. No. 1988-13, effective February 12, 1988, 23 P.S. 401.1, Effect of agreement between the parties, provides: “(b) A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances." This is a badly needed improvement as it states in statutory language that as to children, the needs of the children and the circumstances of the parents are irrevocably intertwined and they must be dealt with according to the realities of changing conditions and not according to nonmodifiable arrangements made at the time the agreement was entered.

      . I note that although the majority addresses the manner in which husband’s support obligation can be enforced, and concludes that remedies like attachment of the person are unavailable, in fact no issue regarding enforcement of husband's obligation is before us. This appeal raises only the question of modification and our discussion should be limited to that issue.