author: KELLY, Judge:

text:
    549 A.2d 1323
    COMMONWEALTH of Pennsylvania v. Michael ELLIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 20, 1988.
    Filed Nov. 10, 1988.

      Robert F. Pappano, Assistant Public Defender, Chester, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, Newton Square,-for Com.
    Before OLSZEWSKI, KELLY and HOFFMAN, JJ.
   KELLY, Judge:

Michael Ellis appeals from judgment of sentence imposed following his conviction of arson and related offenses. He contends that evidence secured during a warrantless arson investigation search was illegally obtained, statements made by him at the hospital were the product of an illegal custodial interrogation, evidence of prior convictions was improperly used against him at trial, and his convictions were against the weight of the evidence. We find no merit in the contentions and affirm judgment of sentence.

FACTS AND PROCEDURAL HISTORY

At approximately 6:30 p.m. on May 30, 1985, Officer Phillip Patched, working motorcycle patrol, was dispatched to investigate a report of a structural fire at Long Lane and Pembroke near the border of Upper Darby and Lansdowne in Delaware County, Pennsylvania. He arrived a short time thereafter and discovered a house fire. After properly reporting the fire, he was dispatched to the Delaware County Hospital where two occupants of the house had been taken for emergency treatment of second degree burns.

Shortly after Officer Patched left the scene, Officer John Egan and Fire Chief Dave Lauro arrived at the scene. Officer Egan had 14 years experience as a police patrolman; he was also the current president of the fire company and a 21 year veteran fire fighter.

Officer Egan and Fire Chief Lauro first attempted to enter the burning building to determine whether any occupants were trapped inside. Intense heat and thick black smoke drove them back. They then yelled into the house but no one responded. The fire company arrived a couple of minutes later, and the blaze was extinguished within 15 or 20 minutes.

While the fire was being fought, Officer Egan maintained crowd control. Fire Chief Lauro relayed to Officer Egan a report from firemen in the building that they smelled heavy gasoline fumes in the kitchen area. When the fire was extinguished Officer Egan and Fire Chief Lauro began to investigate the cause of the fire. In the kitchen, Officer Egan smelled a heavy odor of gasoline, confirming the firemen’s earlier report.

Prior to beginning his investigation, Officer Egan received a radio report that two occupants of the residence had been taken to the Delaware County Memorial Hospital for treatment of burns. He asked the radio dispatcher to send an officer to the hospital to confirm the report, and to keep them there until he could get there to interview them. Officer Patchell and Officer Edward Hunger (who went to the hospital to provide back-up and cruiser transport to Officer Patchell in case it was necessary) both testified that they had not been directed to detain either of the occupants, that they had taken no steps to detain them, and in fact did not speak to either of the occupants. Officer Hunger indicated that if either had attempted to leave he would have asked them to stay until Officer Egan could come to get information for his incident report, but that he would not have prevented them from leaving as he had no basis to detain them. The necessity for such conduct, however, never arose; neither attempted to leave while Officers Patchell and Hunger waited for Officer Egan.

After Officer Egan made his brief initial observations in the kitchen, he asked Fire Chief Lauro to preserve the scene by keeping the firemen out of the kitchen until after he returned from interviewing the two occupants at the hospital. On his way to the hospital (which was only a ten minute drive away), Officer Egan called Delaware County Fire Marshal George Lewis requesting him to come to the fire scene because of the suspicious nature of the fire, i.e. the presence of the strong odor of gasoline.

When Officer Egan arrived at the hospital, Officers Patchell and Hunger left. Officer Egan then interviewed one of the occupants, whom he knew on sight as Michael Ellis, the appellant. Officer Egan knew that appellant lived at the residence which had been on fire. Officer Egan asked appellant what happened. Appellant explained that he had been in the kitchen making tea when the gas stove exploded. Officer Egan then asked about some charred paint cans he had seen in the kitchen; appellant responded that he had been- painting the house a few days earlier. Finally, Officer Egan asked appellant if there had been any gasoline or other flammable materials in the kitchen; appellant answered that there was not.

Officer Egan then spoke briefly with the other occupant, Adam Abel, who was tried as appellant’s co-defendant but discharged upon a demurrer. Before leaving, Officer Egan seized the soot and blood stained clothing of the two occupants.

Officer Egan then returned to the scene of the fire where he was met by Fire Marshal Lucas. The firemen were still at the scene putting away equipment and “overhauling” the rooms other than the kitchen. For the next two and one-half hours, Officer Egan and Fire Marshal Lucas carefully photographed, examined, and preserved physical evidence in the kitchen area. In addition to the photographs which provided detailed evidence regarding burn patterns and charring depth necessary to reconstruct events and to establish the cause of the fire, they found and preserved partially melted plastic milk jugs which contained a liquid that smelled like gasoline (which was inexplicably poured out), and were able to establish the absence of any defect in the stove or the gas lines which could have caused an explosion as appellant had indicated had occurred. The investigation was completed by 8:30 p.m. Thus, no more than three hours had passed from the time when the fire was first reported to the time when the investigation was completed. Three days later, another search was conducted pursuant to a lawful search warrant; photographs were taken but no new evidence was seized.

On June 10, 1985, appellant was arrested and charged with arson and related offenses. A pre-trial suppression motion which sought suppression of the statements made by appellant at the hospital and the evidence seized at the scene of the fire was denied following a hearing on October 28, 1985. A jury trial commenced on November 12, 1985, and on November 14, 1985 appellant was found guilty of arson and recklessly endangering another person. Post-verdict motions were filed, argued and denied. On December 15, 1986, appellant was sentenced to an eleven and one-half (IIV2) month to twenty-three (23) month term of imprisonment on the arson conviction and a concurrent six (6) to twenty-three (23) month term of imprisonment on the recklessly endangering another person conviction.

Timely notice of appeal followed. We find no merit in any of the four contentions raised on appeal. We shall .discuss each seriatim.

I. WARRANTLESS FIRE INVESTIGATION

Appellant first contends that the trial court erred in failing to suppress the fruits of the warrantless fire investigation. Appellant argues that the search of his home did not come within the fire investigation/exigent circumstances exception as explained by the United States Supreme Court in Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) and Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984). Appellant argues that the search was for the purpose of gathering evidence and that no exigency justified Officer Egan’s failure to get a warrant before continuing his search after he returned from the hospital. Appellant misconstrues Tyler, Clifford, and their progeny.

A.

Fourth Amendment proscriptions apply only when the conduct challenged violates an actual expectation of privacy which society is prepared to accept as reasonable. See California v. Greenwood, 486 U.S. —, —, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30, 36 (1988) (collecting cases). Though the Fourth Amendment protects people rather than places, the determination of whether an actual and reasonable expectation of privacy existed usually requires some reference to place. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967); id., 389 U.S. at 361, 88 S.Ct. at 516, 19 L.Ed.2d at 587 (Harlan, J., concurring).

Undeniably, one of the primary sources of a reasonable expectation of privacy is the right to exclude trespassers which attaches to private property. See Rakas v. Illinois, 439 U.S. 128, 142 n. 12, 99 S.Ct. 421, 430 n. 12, 58 L.Ed.2d 387, 401 n. 12 (1978). One’s private residence is ordinarily a refuge wherein one’s reasonable expectations of privacy are exceptionally strong. See Payton v. New York, 445 U.S. 573, 587-88, 100 S.Ct. 1371, 1380-81, 63 L.Ed.2d 639, 651-52 (1980).

With regard to fire damaged property, the Supreme Court explained in Michigan v. Clifford, supra:

‘People may go on living in their homes or working in their offices after a fire. Even when that is impossible, private effects often remain on fire damaged premises.’ Privacy expectations will vary with the type of property, the amount of fire damage, the prior and continued use of the property, and in some cases, the owner’s efforts to secure it against intruders. Some fires may be so devastating that no reasonable privacy expectation remains in the ash and ruins, regardless of the owner’s subjective expectations. The test essentially is an objective one: whether ‘the expectation is one that society is prepared to recognize as “reasonable.” ’ If reasonable privacy interests remain in the fire damaged property, the warrant requirement applies, and any official entry must be made pursuant to a warrant in the absence of consent or exigent circumstances.

464 U.S. at 292-93, 104 S.Ct. at 646, 78 L.Ed.2d at 483. (Citations omitted, emphasis added). See e.g. State v. Carey, 42 Wash.App. 840, 714 P.2d 708 (1986) (no reasonable expectation of privacy under the totality of the circumstances); People v. Zeisler, 125 Ill.App.3d 558, 80 Ill.Dec. 736, 465 N.E.2d 1373 (1984) (no reasonable expectation of privacy under the totality of circumstances); People v. Superior Court, 141 Cal.Rptr. 562, 74 Cal.App.3d 488 (1977) (defendant/trespasser had no reasonable expectation of privacy); State v. Felger, 19 Or.App. 39, 526 P.2d 611 (1974) (tenant had no reasonable expectation of privacy in apartment abandoned after the fire).

In the instant case, the degree of fire damage to appellant’s private residence was not such as to eliminate any reasonable expectation of privacy. The majority of the damage was confined to the kitchen area. Though appellant had not taken steps to secure the property by the time the challenged search occurred, this does not establish an abandonment of the property or privacy expectations. Appellant was at the hospital receiving emergency treatment of burns received in the fire during the relevant time period. Under the standard set forth in Michigan v. Clifford, supra, appellant retained reasonable privacy expectations in the fire damaged property.

B.

The original entry of Officer Egan, Fire Chief Lauro and the fire fighters was plainly justified by exigent circumstances:

A burning building clearly presents an exigency of sufficient proportions to render a warrantless entry ‘reasonable.’ Indeed, it would defy reason to suppose that fireman must secure a warrant or consent before entering a burning structure to put out the blaze.

Michigan v. Tyler, 436 U.S. at 509, 98 S.Ct. at 1950, 56 L.Ed.2d at 498. The exigency which justified their original entry did not terminate when the flames were extinguished:

Fire officials are charged not only with extinguishing fires, but with finding their causes. Prompt determination of the fire’s origin may be necessary to prevent its recurrence, as through the detection of continuing dangers such as faulty wires or a defective furnace. Immediate investigation may also be necessary to preserve evidence from intentional or accidental destruction. And, of course, the sooner officials complete their duties, the less will be their subsequent interference with the privacy and recovery efforts of the victims. For these reasons, officials need no warrant to remain in a building for a reasonable time to investigate the cause of the blaze after it has been extinguished.

Michigan v. Tyler, 436 U.S. at 510, 98 S.Ct. at 1950, 56 L.Ed.2d at 498-99. (Emphasis added). See also Commonwealth v. Smith, 511 Pa. 36, 50-52, 511 A.2d 796, 803 (1986) (Larsen, J., concurring; Hutchinson, J., joins).

Appellant argues that the right to remain at a fire scene for a reasonable time does not justify the instant search because: Officer Egan left the scene to interview appellant at the hospital and then returned; Fire Marshal Lucas was called to the scene after the fire had been extinguished; and, the focus of the investigation had shifted from determining the cause of the fire to discovery and preserving evidence of arson. Appellant construes Tyler and Clifford too rigidly.

In Michigan v. Tyler, supra, the Supreme Court explained:

The circumstances of particular fires and the role of firemen and investigating officials will vary widely ... In determining what constitutes a ‘reasonable time to investigate,’ appropriate recognition must be given to the exigencies that confront officials serving under these conditions, as well as to the individual’s reasonable expectations of privacy.

436 U.S. at 511 n. 6, 98 S.Ct. at 1950 n. 6, 56 L.Ed.2d at 499 n. 6. Cf. United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575-76, 84 L.Ed.2d 605, 615-16 (1985) (the reasonableness of an investigative detention must be judged based upon reasonableness of steps taken to confirm or dispel suspicions; courts must consider the fact that events develop swiftly and should avoid unrealistic second guessing).

Here, Officer Egan began his fire investigation by confirming the firemen’s reports of a strong odor of gasoline, and then continued it by going to the nearby hospital to interview the two persons believed to have been injured in the fire. Though perhaps unusual, we cannot say that Officer Egan’s investigative priorities were unreasonable. When such witnesses are available, it is possible that information provided by such witnesses may help focus the investigative efforts and thereby reduce the duration of the official intrusion upon legitimate privacy interests. Officer Egan’s interview of appellant and the other person injured in the fire, though removed from the scene of the fire, was nonetheless a logical and reasonable facet of the fire investigation. Cf. Commonwealth v. White, 358 Pa.Super. 120, 131-32, 516 A.2d 1211, 1215-16 (1986) (it was reasonable for one police officer to detain the suspects in the patrol car while another police officer went a short distance to the scene of a suspected burglary to confirm or dispel the officers’ reasonable suspicions).

Appellant’s focus on the comings and goings of individual officials from the fire scene is misplaced. In Michigan v. Clifford, supra, the Supreme Court held that a warrant, consent, or a further exigency was only required for an “additional investigation begun after the fire has been extinguished and fire and police officials have left the scene.” 464 U.S. at 293, 104 S.Ct. at 647, 78 L.Ed.2d at 484. (Emphasis added). The focus is whether the official presence was continuous and whether the duration of the search was reasonable, not whether particular individuals were continuously present at the scene of the fire. Here, Officer Egan and Fire Marshal Lucas began the challenged search while fire fighters were still at the scene of the fire conducting standard overhaul activities. The entire fire investigation lasted approximately three hours. We find that the facts of this case do not trigger application of the three prong test for “continuation” searches set forth in Michigan v. Clifford, supra, and applied by our Supreme Court in Commonwealth v. Smith, supra. The challenged search commenced before the official presence at the fire scene had terminated; as the duration of that presence was not unreasonable, we do not read Tyler, Clifford, or Smith to require further analysis.

In light of the foregoing, we find no reason to disturb the trial court’s ruling that the warrantless investigation was reasonable under the standards set forth in Tyler and Clifford,

II. HOSPITAL STATEMENTS

Appellant contends that his statements at the hospital should have been suppressed as the fruit of an unconstitutional interrogation. He argues that the questioning was custodial in that he was questioned by police when he was confined by circumstances beyond his control. Appellant cites in support of this contention Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311 (1983), Commonwealth v. D’Nicuola, 448 Pa. 54, 292 A.2d 333 (1972) and Commonwealth v. Bordner, 432 Pa. 405, 247 A.2d 612 (1968). We find no merit in this contention.

A.

Miranda warnings are only required prior to custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966); see also Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983); Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980); Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976).

“[T]he right of silence described in those warnings derives from the Fifth Amendment and adds nothing to it. Although Miranda’s requirement of specific warnings creates a limited exception to the rule that privileges must be claimed, the exception does not apply outside the context of the inherently coercive custodial interrogations for which it was formed.” Roberts v. United States, supra, 445 U.S. at 560, 100 S.Ct. at 1364, 63 L.Ed.2d at 631. “The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion. Indeed, the Fifth Amendment privilege is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’ ” Colorado v. Connelly, 479 U.S. 157, 169, 107 S.Ct. 515, 523, 93 L.Ed.2d 473, 486 (1986).

The Supreme Court explained in Beckwith v. United States, supra, that:

The narrow issue before the Court in Miranda was presented very precisely in the opening paragraph of that opinion — ‘the admissibility of statements obtained from an individual who is subjected to custodial police interrogation.’ The Court concluded that compulsion is ‘inherent in custodial surroundings,’ and, consequently, that special safeguards were required in the case of ‘incommunicado interrogations of individuals in a police dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.’ In subsequent decisions, the Court specifically stressed that it was the custodial nature of the interrogation which triggered the necessity for adherence to the specific requirements of its Miranda holding.

425 U.S. at 345-46, 96 S.Ct. at 1615-16, 48 L.Ed.2d at 7. (Emphasis in original, citations omitted).

Miranda and subsequent cases explained that, “[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way.” Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706; California v. Beheler, supra, 463 U.S. at 1123, 103 S.Ct. at 3519, 77 L.Ed.2d at 1278; Oregon v. Mathiason, supra, 429 U.S. at 494, 97 S.Ct. at 713, 50 L.Ed.2d at 719.

The meaning of the phrase “or otherwise deprived of his freedom in any significant way,” was unclear until the Supreme Court’s decision in Berkemer v. McCarty, supra, wherein the Court explained:

Petitioner contends that a holding that every detained motorist must be advised of his rights before being questioned would constitute an unwarranted extension of the Miranda doctrine.
* * * * * *
It must be acknowledged at the outset that a traffic stop significantly curtails the freedom of action of the driver and the passengers, if any, of the detained vehicle.
* * * * * *
However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent \i.e. “or otherwise deprived of his freedom in any significant way”]. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated. Thus, we must determine whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.

468 U.S. at 436-37, 104 S.Ct. at 3148-49, 82 L.Ed.2d at 332-33. (Emphasis added).

It has been suggested that Berkemer affords “a measure of flexibility in deciding exactly when a suspect has been taken into custody.” Commonwealth v. Bruder, 365 Pa. Super. 106, 111, 528 A.2d 1385, 1387 (1987). This is true. However, while the Berkemer holding is certainly flexible, it does not leave us without guidance. The Court in Berkemer explained further:

[T]he usual traffic stop is more analogous to a so-called ‘Terry stop, than to a formal arrest. Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose ‘observations lead him reasonably to suspect’ that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to ‘investigate the circumstances that provoke suspicion.’ ‘[T]he stop and inquiry must be “reasonably related in scope to the justification for their initiation.” ’ Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond. And, unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordi nary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.
Respondent contends that to ‘exempt’ traffic stops from the coverage of Miranda will open the way to widespread abuse. Policemen will simply delay formally arresting detained motorists, and will subject them to sustained and intimidating interrogation at the scene of their initial detention.
!.< * tf * ¡C SfS
We are confident that the state of affairs projected by respondent will not come to pass. It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest’ If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him ‘in custody’ for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda.

468 U.S. at 439-40, 104 S.Ct. at 3150, 82 L.Ed.2d at 334-35. (Emphasis added, citations omitted); cf. Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26, 29-30 (1988) (applying Berkemer and concluding that the appellant was not in “custody” despite his statutory duty to remain at the scene of the accident when he was not formally arrested but was merely asked a minimal number of questions at the scene of an accident on a public street).

The clear import of Berkemer is that traffic stops, like Terry stops, constitute investigative rather than custodial detentions, unless under the totality of circumstances the conditions and duration of the detention become the functional equivalent of an arrest. See Commonwealth v. Douglass, 372 Pa.Super. 227, 244, 539 A.2d 412, 421 (1988) (per Kelly, J.; Wieand and Popovich, JJ., concur in the result). The question in the instant case, then, is whether appellant’s encounter with the police was custodial or noncustodial.

Encounters with police may be classified as mere encounters, non-custodial detentions, custodial detentions and formal arrests. See Commonwealth v. Douglass, supra, 372 Pa.Superior Ct. at 238, 539 A.2d at 417; see generally Lafave, Classifying Detentions of the Person to Resolve Warrant Grounds and Search Issues, 17 U.Mich.J. L.Ref. 417, 417-38 (1984); McGinley, Characterizing Police Encounters Under the Fourth Amendment: Inquiry, Stop, Arrest? 10 Search & Seizure L.Rptr. 157, 157-64 (1988); Williamson, The Dimensions of Seizure: The Concepts of “Stop” and “Arrest, ” 43 Ohio St.L.J. 771, 771-818 (1982). The classification of the encounter determines the applicability and scope of constitutional protections, including Miranda rights.

A “mere encounter” is one which does not involve a seizure of the person. A seizure of a person sufficient to trigger the protections of the Fourth Amendment occurs “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” Michigan v. Chesternut, 486 U.S. —, —, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565, 572 (1988); see also INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247, 254 (1984); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 508 (1980) (plurality).

It is important to note, however, that while a “seizure” of a suspect by police triggers Fourth Amendment protections, it does not trigger Miranda rights under the Fifth Amendment. “Seizure” and “custody” are analytically distinct concepts in the modern criminal constitutional law lexicon. The mere fact that an individual is subjected to a stop and a period of detention during which the individual is subject to the control of the police and is not free to leave (a seizure) does not render such detention necessarily “custodial” so as to require Miranda warnings. “While a suspect may certainly walk away from a mere encounter with a police officer, every traffic stop and every Terry stop involves a stop and a period of time during which the suspect is not free to go but is subject to the control of the police officer detaining him.” Commonwealth v. Douglass, supra, 372 Pa.Superior Ct. at 242, 539 A.2d at 419. See also Berkemer v. McCarty, supra, 468 U.S. at 439-40, 104 S.Ct. at 3150, 82 L.Ed.2d at 334-35 (though a “traffic stop significantly curtails the freedom of action of the driver and the passengers, if any, of the detained vehicle,” “the non-coercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody,’ ” unless the suspect “thereafter is subjected to treatment that renders him ‘in custody’ for practical purposes”); Michigan v. Long, 463 U.S. 1032, 1051, 103 S.Ct. 3469, 3482, 77 L.Ed.2d 1201, 1221 (1984) (“[djuring any investigative detention, the suspect is ‘in the control’ of the officers in the sense that he ‘may be briefly detained against his will____’ ”); Commonwealth v. White, supra, 358 Pa.Superior Ct. at 131, 516 A.2d at 1217 (“every Terry stop involves both a stop and a period of detention during which the suspect is not free to leave but is subject to the control of the police officer”).

Though both Terry and Berkemer involved brief detentions, it is important to recall that:

In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the [suspect]. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second guessing.

Commonwealth v. White, supra, 358 Pa.Superior Ct. at 128, 516 A.2d at 1215, quoting Commonwealth v. Mayo, 344 Pa.Super. 336, 341-42, 496 A.2d 824, 826 (1985), quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575-76, 84 L.Ed.2d 605, 615-16 (1985) (rejecting per se time limits).,

Indeed, police detentions only become “custodial” when under the totality of circumstances the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of formal arrest. See Commonwealth v. Douglass, supra, 372 Pa.Superior Ct. at 239, 539 A.2d at 418; see also California v. Beheler, supra, 463 U.S. at 1125, 103 S.Ct. at 3520, 77 L.Ed.2d at 1279 (per curiam, Miranda applies when suspect is restrained to a degree associated with formal arrest); Dunaway v. New York, supra, 442 U.S. at 212, 99 S.Ct. at 2256, 60 L.Ed.2d at 835-36 (seizing, transporting, and then questioning a suspect at a police station was custodial as it was “in important respects indistinguishable from a traditional arrest”); Oregon v. Mathiason, supra, 429 U.S. at 495, 97 S.Ct. at 714, 50 L.Ed.2d at 719 (suspect who voluntarily accompanied police to stationhouse for questioning was not “in custody” where degree of restraint was not equivalent to that associated with formal arrest); Commonwealth v. Gonzalez, supra, 519 Pa. at 124, 546 A.2d at 30 (“appellant was not under arrest and he has not shown that he was subjected to restraints comparable to those associated with formal arrest”).

Among the factors which may be considered in determining whether a detention is custodial are: the basis for the detention (the crime suspected and the grounds for suspicion); the duration of the detention; the location of the detention (public or private); whether the suspect was transported against his will (how far, why); the method of the detention (restraints utilized); the show, threat or use of force; and the investigative methods used to confirm or dispel suspicions. Commonwealth v. Douglass, supra, 372 Pa.Superior Ct. at 245, 539 A.2d at 421, citing 3 LaFave, Search and Seizure, §§ 9.1, 9.2 at 332-422 (2d Ed.1987); see also LaFave, supra, 17 U.Mich.J.L.Ref. at 417-38; McGinley, supra, 10 Search & Seizure L.Rptr. at 157-64; Williamson, supra, 43 Ohio St.L.J. at 771-818.

Examples of “totality of the circumstances” reviews may be found in Commonwealth v. Gonzalez, supra, 519 Pa. at 124-126, 546 A.2d at 30, Commonwealth v. Douglass, supra, 372 Pa.Superior Ct. at 245-247, 539 A.2d at 421-23, Commonwealth v. Fento, 363 Pa.Super. 488, 498-99, 526 A.2d 784, 786-89 (1987), Commonwealth v. Grove, 363 Pa.Super. 328, 340-41 & n. 7, 526 A.2d 369, 375-76 & n. 7 (1987), and Commonwealth v. White, supra, 358 Pa.Superior Ct. at 131, 516 A.2d at 1217. These cases, and the federal cases previously cited, indicate that a review of several if not all of the factors noted above will ordinarily be required (rather than focusing on factors such as the time or location of the detention to the exclusion of other factors). We note, however, that the Supreme Court cautioned in California v. Beheler, supra, that:

Although the circumstances of each case must certainly influence a determination of whether a suspect is ‘in custody’ for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.

463 U.S. at 1125, 103 S.Ct. at 3520, 77 L.Ed.2d at 1279. (Emphasis added).

The instant case is in its material aspects indistinguishable from Commonwealth v. Fento, supra, wherein this Court held that a driver receiving emergency room treatment for injuries received in an automobile accident was not subjected to a custodial interrogation requiring the Miranda warnings when he was questioned briefly in a hospital emergency room by a police officer investigating the automobile accident, despite the confinement of the suspect to his hospital bed due to his injuries. As in Fento, appellant here was questioned in an open area ■ of the hospital emergency ward in view of hospital personnel. The questioning was brief and related to the occurrence which caused the injuries being treated. Appellant was not placed under arrest before, during, or after the questioning. The only restraints upon appellant’s freedom were those caused by his medical condition, as opposed to any action on the part of the police. We conclude, therefore, that appellant was not “in custody” and that the Miranda warnings were not required. Cf. Commonwealth v. Gonzalez, supra (similar questioning of a driver at the scene of an accident); accord State v. Clappes, 117 Wisc. 277, 344 N.W.2d 141 (1984); State v. Fields, 294 N.W.2d 404 (N.D.1980); State v. Brunner, 211 Kan. 596, 507 P.2d 233 (1973).

The cases cited by appellant do not support the conclusions appellant urges. Commonwealth v. Chacko, supra, cited by appellant, involved police questioning of a defendant who was incarcerated on unrelated charges; thus, Chacko is factually distinguishable in material respects regarding the issue of custody and is therefore inapposite. Commonwealth v. D’Nicuola, supra, and Commonwealth v. Bordner, supra, also cited by appellant, are not controlling because they were both decided under the “focus of the investigation” analysis subsequently disapproved by the United States Supreme Court in Beckwith v. United States, supra. See Commonwealth v. Fento, supra, 363 Pa.Superior Ct. at 496, 526 A.2d at 788 (analyzing and distinguishing D’Nicuola and other similar cases). Consequently, we find no merit in appellant’s contention that his statements at the hospital should have been suppressed.

III. PRIOR CONVICTION IMPEACHMENT EVIDENCE

Appellant next contends that the trial court erred in permitting the use of his six year old convictions for theft and receiving stolen property to impeach his credibility. As the convictions were less than ten years old and involved crimen falsi offenses, this contention is wholly without merit. See Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987).

IV. SUFFICIENCY AND WEIGHT OF THE EVIDENCE

Finally, appellant contends that the evidence is not sufficient to sustain the convictions, or in the alternative that the verdicts were against the weight of the evidence. Appellant argues that reasonable inferences derivable from the testimony of Commonwealth witnesses and certain physical evidence established that appellant could not have poured the gasoline and lit the fire. Appellant also argues that there was no evidence to sustain the reckless endangerment conviction.

This Court explained in Commonwealth v. Pearsall, 368 Pa.Super. 327, 534 A.2d 106 (1987), that:

In reviewing the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. Where the evidence is conflicting, it is the province of the fact finder to determine credibility; it is the prerogative of the fact finder to believe all, part or none of the evidence presented. Whether a new trial should be granted because the verdict is against the weight of the evidence is an issue addressed to the sound discretion of the trial court; a new trial should be granted only when the verdict is so contrary to the evidence as to shock one’s sense of justice.

368 Pa.Superior Ct. at 329-330, 534 A.2d at 108. (Citations omitted, emphasis added).

Appellant errs in viewing the evidence in the light most favorable to appellant, in resolving all conflicts in favor of appellant, and in drawing all inferences in favor of appellant. Viewed in its proper light (i.e. that most favorable to the Commonwealth), the evidence is sufficient to sustain the verdict, and the verdict is not against the weight of the evidence.

Without proceeding to review the evidence here in minute detail, we note that: appellant owned and insured the mortgaged property; appellant was unquestionably present when the fire occurred; the evidence plainly established that the fire was started with the aid of a large amount of gasoline; yet, appellant informed the police shortly after the fire that no gasoline was in the kitchen and that the fire had started when the stove (which the fire investigators found to be without leak or defect) exploded. With respect to the endangerment offense, we note that both appellant and the other person present were severely burned in the fire, the fire occurred during a holiday time, near a busy intersection, and appellant risked a serious explosion by turning on the gas stove in an effort to cloak the use of gasoline as a flame accelerant. We find no reason to disturb the verdicts of the jury, or the order of the trial court denying appellant a new trial.

CONCLUSION

Based upon the foregoing, judgment of sentence is affirmed.

      . The clothing was not used against appellant at trial and the legality of its seizure is not before us in this appeal.

      . "Overhaul” of a fire scene is “a standard procedure whereby fire fighters search for indications that an extinguished fire could rekindle.” See State v. Moretti, 521 A.2d 1003, 1004 (R.I.1987).

      . Courts of our sister states have reached the same conclusion in similar cases. In State v. Moretti, 521 A.2d 1003 (R.I.1987), the Rhode Island Supreme Court rejected a claim that a warrantless fire investigation search was unreasonable because the fire inspector had not arrived at the fire scene until after the fire was extinguished and the firemen had begun overhaul efforts. Likewise, in State v. Jorgensen, 333 N.W.2d 725 (S.D.1983), the Supreme Court of South Dakota rejected a claim that a warrantless fire investigation search was unreasonable when the Fire Chief and a Deputy State Fire Marshal arrived at the scene after the fire had been extinguished. Accord Shultz v. State, 593 P.2d 640 (1979). We also note Davis v. State, 178 Ga.App. 760, 344 S.E.2d 730 (1986), wherein the Court of Appeals of Georgia held that a warrantless fire investigation search was reasonable when the fire was discovered at 11:00 p.m., extinguished by approximately 2:00 a.m., and two firemen remained at the site to check for hot spots until 7:00 a.m., when the assistant fire chief and state inspectors arrived to conduct the fire investigation search. The court explained:
      Keeping the two firemen at the scene was prudent and we do not find the duration of their vigil (approximately five hours) to have been unreasonable. Thus, because the authorized official entry had not terminated before the assistant fire chief returned, the appellant’s reasonable expectations of privacy did not extend to the warrantless investigation of the cause of the fire and collection of samples from the house.
      344 S.E.2d at 732. The intrusion upon privacy interests in the present case was of a substantially shorter duration than that approved in Davis.

      . The Court quoted with approval the observation of Chief Judge Lumbard of the Second Circuit Court of Appeals that, "it was the compulsive aspect of custodial interrogation, and not the strength or content of the government’s suspicions at the time the questioning was conducted, which led the court to impose the Miranda requirements with regard to custodial questioning.” Id., 425 U.S. at 346-47, 96 S.Ct. at 1616-17, 48 L.Ed.2d at 7-8, quoting United States v. Carello, 420 F.2d 471, 473 (2d Cir.1969).

      . Such encounters with police are also commonly referred to as Terry stops, traffic stops, investigatory detentions and intermediate detentions.

      . Accord United States v. Montoya De Hernandez, 473 U.S. 531, 542, 105 S.Ct. 3304, 3311, 87 L.Ed.2d 381, 392 (1985) (applying Sharpe; again rejecting per se time limits; and, holding that a 16 hour detention was reasonable under the circumstances of that case); Michigan v. Summers, 452 U.S. 692, 702 & n. 12, 101 S.Ct. 2587, 2593 & n. 12, 69 L.Ed.2d 340, 348 & n. 12 (1981) (noting that "[i]f purpose underlying a Terry stop — investigating possible criminal activity — is to be served, the police must under certain circumstances be able to detain the individual for longer than the brief time period involved in Terry and Adams "); Commonwealth v. Douglass, supra, 372 Pa.Superior Ct. at 245-246, 539 A.2d at 421-22 (classifying a three hour detention as a reasonable investigative detention under the circumstances of that case).

      . Officer Egan candidly admitted that he had asked the dispatcher to have an officer sent to detain the witnesses until he arrived. However, both Officer Patchell and Officer Hunger unequivocally denied speaking to either witness or in any way restraining their freedom of movement. The trial court apparently credited their testimony. We note that Officer Egan’s unexecuted and uncommunicated intent to have appellant detained is not relevant to our determination of whether appellant was in custody. ”[T]he subjective intent of the officers is relevant to an assessment of the Fourth Amendment implications of police conduct only to the extent that the intent has been conveyed to the person confronted." Michigan v. Chesternut, supra, 486 U.S. at — n. 7, 108 S.Ct. at 1980 n. 7, 100 L.Ed.2d at 573 n. 7 (1988), citing United States v. Mendenhall, supra, 446 U.S. at 554 n. 6, 100 S.Ct. at 1877 n. 6, 64 L.Ed.2d at 509 n. 6, and 3 LaFave, Search and Seizure, § 9.2(h) at 407 (2d ed. 1987).


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    550 A.2d 199
    Kathleen JACKMAN, Appellant, v. Anthony D. PELUSI.
    Superior Court of Pennsylvania.
    Argued May 11, 1988.
    Filed Sept. 21, 1988.
    Reargument Denied Nov. 16, 1988.

      David H. Moskowitz, Wayne, for appellant.

      David S. Kaplan, Pottstown, for appellee.
    Before MONTEMURO, TAMILIA and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from an order reducing child support arrearages. We reverse and remand.

Following the parties’ divorce, Kathleen Jackman, [Wife] gained custody of their four children. A support order was entered on May 25, 1967 in the Court of Common Pleas of Delaware County and was increased by order dated December 14, 1973 to the amount of $80.00 per week, twenty dollars a week per child. Anthony Pelusi [Husband] paid no child support after entry of this order. By August 1974 arrearages amounted to $2,495.00. Husband never petitioned for modification of the support order. Throughout 1974 Wife applied to the courts to obtain enforcement of the support order until she could no longer afford legal fees. Bench warrants were issued without effect and apparently were never enforced as arrearages continued to accrue. The Delaware County court placed the case on inactive status in 1976. In 1985 some of the children sought out Husband and resumed contact with him. Husband paid their college tuition, paid for airline tickets to his home and bought cars for them.

On February 3, 1986 Wife transferred the Delaware County support order to Chester County, Husband’s county of residence, by means of an inter-county order of registration. The arrearages on the order certified from Delaware County inclusive through December 27, 1985, totalled $46,-015.00.

Husband filed a petition to terminate the order and remit arrearages. Following a hearing, the Hearing Officer recommended that arrearages be modified to $29,257.66 based upon the fact that arrearages should not have accrued after each child’s eighteenth birthday, when each child became independent. Both parties filed exceptions to the Hearing Officer’s recommendations. By opinion and order of October 27,1987 the Honorable Alexander Endy further reduced the arrearages to $4,895.00. This appeal followed.

Wife argues that the trial court incorrectly and unfairly evaluated the factors that determined its reduction of the Hearing Officer’s recommendation for arrearages. After reviewing and accepting the Hearing Officer’s determination for existence and amount of arrearages through December 27, 1985, the trial court wrote:

It seems to me that imposing the full liability on [Husband] at this time is punitive in light of all that has transpired. [Wife] should not be unjustly enriched by [Husband’s] present ability to pay an obligation fixed by agreement of the parties fourteen years ago and disregarded by both parties for almost ten years, without regard to intervening circumstances.

Opinion, 10/27/87, at 9. The trial court then decided that, based on these “cognizable equities,” Husband’s obligation should terminate on March 21, 1975, the date Wife filed the petition for name change, the “final affirmative action” by Wife. Opinion, 10/27/87 at 10.

On appeal, a child support order will not be disturbed absent an abuse of discretion, either by a misapplication of law or by an unreasonable exercise in judgment. Scheidemantle v. Senka, 371 Pa.Super. 500, 538 A.2d 552 (1988). An abuse of discretion:

does not necessarily imply a willful abuse, but if, in reaching a conclusion ... the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error.

Hartley v. Hartley, 364 Pa.Super. 430, 436, 528 A.2d 233, 236 (1987). A finding of abuse of discretion is not made lightly but must rest on clear and convincing evidence; the trial court must be affirmed on any valid ground. Lyday v. Lyday, 360 Pa.Super. 16, 519 A.2d 967 (1986).

We find that the trial court abused its discretion in reducing the Hearing Officer’s determination of arrearages. After review of the entire record, we find that the Hearing Officer correctly reduced the certified amount of arrearages to $29,257.66 because each child became independent after his eighteenth birthday. The trial court’s further reduction of this amount to $4,895.00 was unwarranted. Husband did not raise, nor did the trial court consider, the propriety of the support orders upon which arrearages accrued. Indeed, while Husband testified that he was in debt during this period, he made no attempt to prove that the alleged debt made it impossible for him to meet his support obligation. Thus, the situation in which this Court has, on occasion, reduced or remitted arrearages in child support cases when there had been a substantial change in the obligor’s circumstances does not apply to the present case. See Commonwealth ex rel. Cochran v. Cochran, 339 Pa.Super. 602, 489 A.2d 804 (1985). For instance, in Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983), this Court remitted arrearages because, shortly after the original support order was issued, the husband became permanently and totally disabled by heart disease and diabetes. We held that remittance of arrearages was the only equitable solution, especially considering the fact that the unmodified support order was greater than the husband’s entire social security payment, his only source of income.

In the present case, however, the trial court remitted arrearages solely based upon its finding that Wife was at fault for not having the support order enforced and that therefore laches should preclude her from collecting the accrued arrearages. The court’s determination was manifestly unreasonable on two grounds. First, Husband does not sustain his burden required by the test for application of laches. Second, the trial court based its conclusion on incorrect assumptions. The facts of this case do not support the trial court’s conclusion that Wife’s fault rises to a level that terminates her rights.

Courts have been extremely cautious in applying the doctrine of laches to situations like the one before us in which a child support order has not been enforced, even when long periods of time are involved. See Annotation, Laches or Acquiesence as Defense, So As To Bar Recovery of Arrearages of Permanent Alimony or Child Support, 5 A.L.R. 4th 1015 (1981). There is ample evidence that a large proportion of child support awards are not paid or not paid in full and on time. H.H. Clark, Jr., The Law of Domestic Relations in the United States, Vol. 2, § 18.3 at 380 (1987). A 1983 Census Bureau study established that of the 5,000,000 child support orders issued that year, only one-half received full payments, one-fourth received partial payments and one-fourth received no payment at all. Creech, Survey of Developments in North Carolina Law, 1986: Domestic Law: Legislating Responsibility: North Carolina’s New Child Support Enforcement Acts, 65 North Carolina L.R. 1354, 1357 n. 3 (1986). That is, 1.25 million orders were not enforced at all. This evidence, in strongly suggesting a problem endemic to the system of support enforcement, argues against the legitimacy of blaming the individual custodial parent for failure to enforce the orders. Clark points out that lack of funds for legal counsel is a major cause of this failure. If, as in the present case, the custodial parent obtains counsel whose efforts do not effect enforcement, we must question whether the law requires her to repeat costly and futile gestures; the law does not require a futile act.

In response to this situation, courts have either tempered the doctrine of laches or have barred its use completely. See Annotation, Laches as Defense, supra p. 202. Generally, the doctrine of laches is applied according to the following test:

The party asserting laches must show, first, a delay arising from the other party’s failure to exercise due diligence, and second, prejudice from the delay. ... It is not enough to show delay arising from failure to exercise due diligence; for “laches will not be imputed where no injury has resulted to the other party by reason of the delay.”

Kehoe v. Gilroy, 320 Pa.Super. 206, 212, 467 A.2d 1, 4 (1983) (quoting Brodt v. Brown, 404 Pa. 391, 394, 172 A.2d 152, 154 (1961)) (other citations omitted). The Pennsylvania Supreme Court has established, when applying the equitable remedy of laches, that whether the elements of laches exist is a factual question to be answered in examining the circumstances of each particular case. Leedom v. Thomas, 473 Pa. 198, 373 A.2d 1329 (1977).

Application of laches in the present case, then, first depends on whether the delay in enforcement of the order was caused by Wife’s failure to exercise due diligence. Courts in other jurisdictions have found due diligence even when a long delay in enforcement had occurred. For instance, in Thurn v. Thurn, 310 N.W.2d 539 (Iowa App. 1981), the court held that laches could not apply when, although the wife did not attempt to enforce her support order for 22 years, she did not do so because she was aware of the bad state of her former husband’s finances. The court held that her delay in asserting her rights was reasonable under these circumstances. Further, delay alone, no matter for how long, does not itself establish laches. Kehoe, supra. The record discloses Husband’s failure to prove lack of due diligence on Wife’s part.

Husband claims that he did not make the support payments because he was in debt. Wife was aware of Husband’s financial situation. Wife could have concluded that to further pursue Husband would be futile. That Wife’s renewal of her enforcement efforts coincide with Husband’s new financial stability as demonstrated by his substantial gifts to the children supports this construction of the facts. Further, we must recognize that the record before us is from Chester and not Delaware County; we cannot determine whether Wife had contact, formal or informal, with the domestic relations section in Delaware County during the years in question. Regardless, Husband makes no attempt to prove, aside from reciting the bare fact that the order remained unenforced, that non-enforcement of the order arose from any lack of due diligence or unreasonableness on Wife’s part.

Second, Husband fails to discharge his burden of proving that he was prejudiced by the delay in enforcement of the order. Prejudice is an essential element of laches; in the absence of prejudice to the party asserting laches, the doctrine will not be applied. Kehoe, supra. In fact, if Husband is in more stable financial condition now than he had been in the past, the delay worked in his favor. Further, Husband has had the advantage of the time value of the money he should have paid out in child support over the nine and one-half-year period.

Husband claims that he ceased making support payments because he relied on Wife’s changing of the children’s names as an indication that his support obligations had terminated. As authority he cites Commonwealth ex rel. Crane v. Rosenberger, 212 Pa.Super. 144, 239 A.2d 810 (1968). In Rosenberger this Court held that the husband’s reliance on a letter from the court, telling him that if he were denied his visitation rights that he would no longer be obligated to pay support, was reasonable. The trial court in the present case found that the notice of name-change gave Husband reason to believe that his support obligations were terminated:

[Husband] was under an honest, though perhaps mistaken, belief that this action on the part of [Wife] terminated his support obligation, which, added to the lack of visitation with his children since 1974 or 1975 and the financial difficulties which he was apparently experiencing explains, even if it does not excuse, his failure to contest.

Opinion of 10/27/87 at 7. We do not agree. A notice of name change, unlike a letter from the court specifically regarding support obligations, cannot be reasonably construed as notice of termination of support obligations. Wife did not remarry; no third person assumed responsibility for the children. Wife merely changed the children’s names (and her own name) to her maiden name. We find that it was manifestly unreasonable for the trial court to credit Husband with proper behavior for believing that his support obligation to his four children was terminated simply because Wife changed the children’s names.

Therefore, even if a rationale exists for remitting some of the arrearages, (and we believe it does not), the date chosen by the trial court, March 21, 1975, the date upon which the children’s names were changed, is a manifestly unreasonable date upon which to stop the calculation of arrearages. Wife’s claim for the support was still valid on that date, merely months after the order had been issued.

The trial court’s second error arose from its adopting erroneous conclusions that work an injustice in its purportedly equitable solution. First, the trial court states that the support obligation was by “agreement of the parties.” This is incorrect. The support obligation was created by order of court. This distinction between a support order and a support agreement is material to this case. A support order is a creation of statute and is enforceable by operation of law, while a support agreement is a contract governed by contract law in which the court has no involvement. Hollman v. Hollman, 347 Pa.Super. 289, 500 A.2d 837 (1985) (en banc), rev’d on other grounds, 515 Pa. 288, 528 A.2d 146 (1987). The trial court is therefore incorrect in assuming that Wife had the primary obligation, as she would have under contract law, to enforce her rights.

After Wife initiated the enforcement, it was the province of the court to enforce the support order:

A support or alimony order is a creation of statute and an incident of the marriage which is enforceable by operation of law. Commonwealth ex rel. Smith v. Smith, 260 Pa.Super. 203, 393 A.2d 1224 (1978). ... [T]he legislature has extended the. [power] to bring about compliance by granting courts the right to attach property and wages and to incarcerate willfully delinquent obligors ... [and] provides that the court will have domestic relations sections and personnel to receive, disburse and monitor payments ... Thus, upon analysis, it is apparent that extraordinary attributes and conditions are attached to support and alimony orders, which become instruments of the court, and not subject to the control of the parties.

Hollman v. Hollman, 347 Pa.Super. at 299, 500 A.2d at 842. Second, if Wife did not have the primary responsibility, as she would with a support agreement, to enforce the order, it cannot be said that she slept on her rights when enforcement was not achieved. As was discussed above, a system-wide, endemic problem with enforcing support orders cannot be laid at Wife’s feet. By initiating the enforcement of support action and in following it through as far as her finances would allow, Wife acted with the reasonable diligence required by courts of equity. See Snyder v. Queen Cutlery Co., 357 Pa.Super. 456, 516 A.2d 71 (1986); Kehoe, supra. Her action put Husband on notice and nothing Wife subsequently did should have led Husband to believe that Wife had abandoned her rights. Id.

The trial court itself characterizes Husband’s request to be for equitable relief and its remedy as an equitable one. However, the principles of equity do not allow Husband, with unclean hands, to seek equity. The doctrine of unclean hands applies when the wrongdoing directly affects the relationship between the parties and is directly connected with the matter in controversy. In re Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984). As the issue presented to this Court centers on Husband’s misconduct, his non-payment of support, the doctrine applies in this case. Although Wife did not expressly present Husband’s conduct in terms of unclean hands, we may raise the doctrine sua sponte, as the doctrine is implicated when the party’s conduct shocks the moral sensibilities of the court; it has nothing to do with the rights or liabilities of the parties. Id; Gaudiosi v. Mellon, 269 F.2d 873 (3d Cir.1959). Husband failed, over a period of years, to pay court-ordered child support for his four children. He never sought modification of the order. Although he was in debt, he held the same job throughout the period in question, a point that he in fact emphasized. Wife’s inability to have the order enforced cannot absolve him. See Nucci v. Nucci, 355 Pa.Super. 549, 513 A.2d 1059 (1986). Husband essentially argues that because he has escaped paying support for all this time and because his children are now self-supporting adults, he should be retroactively absolved of his responsibility. With this we cannot agree.

We find the trial court’s statement that Wife would be unjustly enriched were she to receive the arrearages inappropriate. Wife would not be unjustly enriched; she would simply collect the funds awarded to her by previous courts for money she has already spent in raising their four children. That such arrearages reimburses the custodial parent for money spent for the children and is thus money for the children has been made clear by our supreme court in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Husband’s present ability to pay should be reason to enforce the arrearages, not, as the trial court says, to remit them. The trial court wrote:

We have nothing in the record as to how the children were supported during the almost ten year hiatus during which [Wife] was remarried and divorced and lived with her parents for some time.

Opinion, 10/27/87 at 9. The court implies that Wife has a burden of proving her expenditures on the children’s behalf before she is entitled to arrearages. Wife has already made her case for the childrens’ needs in the original support hearing. The law does not require her to prove her case yet again. Further, the trial court’s conclusion flies against common sense. We do know that Husband has not supported the children.

The trial court did not expressly take into account Husband’s gifts to his children, the tuition, airline tickets and cars, given by Husband after the children resumed contact with him. These payments totaled over $20,000. Husband argues that had the trial court given Husband credit for these expenditures, “such a result under the circumstances of the case before the trial court would not have been implausible,” and that the trial court’s decision as it now stands strikes a compromise. Appellee’s brief at 13. The law of this Commonwealth does not allow this compromise. Payment for such items as cars and airline tickets do not satisfy the supporting parent’s obligation of reasonable and necessary support and cannot therefore be credited to his arrearages. Melzer, supra. More important, a court could have found that the tuition payments were an additional support obligation. See Miller v. Miller, 353 Pa.Super. 194, 509 A.2d 402 (1986); Fortune/Forsythe v. Fortune, 352 Pa.Super. 547, 508 A.2d 1205 (1986). This additional obligation cannot be credited against Husband’s obligation to supply necessities, and if the trial court had done so, it would have abused its discretion.

For these reasons we find that the trial court abused its discretion in modifying the recommendations of the hearing officer.

The trial court correctly resolved Wife’s remaining issues. Wife claims that she was entitled to reimbursement for various of the children’s medical expenses from Husband. The trial court determined, and we agree, that the evidence she presented to document these expenses was entirely inadequate to establish the amount of these expenses. We agree as well with the trial court’s denial of Wife’s request for interest. Wife is not entitled to pre-judgment interest.

Last, Wife submits that the Chester County Court erred in not accepting as final the amount of arrearages owed as certified to it by the Delaware County Domestic Relations Office. Wife is incorrect. Section 4540(a) of the Revised Uniform Reciprocal Enforcement of Support Act, titled Effect and Enforcement of Registered Order, establishes that:

[The registered order] has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a support order of this Commonwealth and may be enforced and satisfied in like manner.

23 Pa.C.S. § 4540(a). That this act applies if “both the obligee and the obligor are in this Commonwealth but in different counties” is established by 23 Pa.C.S. § 4533. The Hearing Officer correctly adjusted the order according to law because the children were not owed support beyond their eighteenth birthdays. The trial court did not abuse its discretion in resolving these issues.

Our resolution of this dispute is keyed to the facts of this particular case. A change in the law obviates the need to apply such an approach in the future. Until recently the law in this Commonwealth has been that a court may, at any time, remit, correct or reduce the amount of any arrearages. Akers v. Akers, 373 Pa.Super. 1, 540 A.2d 269 (1988). This came within the court’s discretionary powers, mandating the court to consider all relevant factors in the exercise of its discretion. Prescott v. Prescott, 284 Pa.Super. 430, 426 A.2d 123 (1981). As Wife has raised supple-mentally, by Act of March 25, 1988, the legislature has removed this matter from the discretionary powers of the court by prohibiting retroactive modification of arrearages unless there is a pending petition for modification of support. The Act reads in pertinent part:

(d) Retroactive modification of arrears. — No court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there is pending a petition for modification____

Amendments to Support Act, Act No. 1988-35, 1988 Pa.Leg-is.Serv. 198 (to be codified at 23 Pa.C.S. § 4352(d)). The legislature has further underscored this point by deleting the language “the court may at any time remit, correct or reduce the amount of arrearages” from former 23 Pa.C.S. § 4352(c) pertaining to foreign support orders. Amendments to Support Act, Act No. 1988-35, 1988 Pa.Legis.Serv. 200 (to be codified at 23 Pa.C.S. § 4352(e)). The legislature fashioned these amendments pursuant to the Child Support Enforcement Amendments of 1986, amendments to Title IV-D of the Social Security Act. Congress amended Title IV-D in 1986 to require, as a condition for continued state receipt of AFDC funds, that the states, among other requirements, must prohibit retroactive modification of arrearages. 42 U.S.C. § 666(a)(9).

Although these provisions were not effective at the time of issue of the 10/27/87 order from which this appeal was taken, they became effective as of 3/25/88. The Act provides that:

The amendments affecting section 4352 shall apply to all support orders under which an arrearage exists on or is accrued after the effective date of this act.

Act of March 25, 1988 § 4 (to be codified at 23 Pa.C.S. § 4352 note). Because we now vacate that order, the Act will thus control subsequent action by the trial court.

We vacate the order appealed from and remand for the trial court to readjust the arrearages in a manner consistent with this opinion.

Order vacated. Case remanded. Jurisdiction relinquished.

      . Nothing in the record indicates that either party was at fault for this “lack of visitation.”

      . The question before the supreme court in Hollman was whether pension benefits are exempt from attachment pursuant to 42 Pa.C.S. § 8124(b)(l)(vii) (pensions are exempt from attachment by a judgment creditor when the pension plan provides that the pension shall not be assignable) by a former wife to satisfy arrearages in support payments when the payments are based upon a support agreement. Hollman v. Hollman, 515 Pa. at 589-90, 528 A.2d at 147. The supreme court reversed this Court’s holding that a former husband’s pension fund could be attached pursuant to an order for support but not pursuant to a judgment based on a separation agreement. The supreme court wrote that this particular application of the distinction between support agreements and support orders elevated form over substance when the question was whether the wife was entitled to attach a pension which accrued over the course of the husband and wife’s long marriage.

      . Wife was remarried for less than a year.


author: CAVANAUGH, Judge:

text:
    550 A.2d 207
    COMMONWEALTH of Pennsylvania, Appellee, v. Samuel Blair HAINSEY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 9, 1988.
    Filed Sept. 21, 1988.
    Keargument Denied Nov. 18, 1988.

      J. Randall Miller, Assistant Public Defender, Hollidaysburg, for appellant.
    Keith A. Pesto, Assistant District Attorney, Hollidaysburg, for Com., appellee.
    Before CAVANAUGH, ROWLEY and KELLY, JJ.
   CAVANAUGH, Judge:

The issues on appeal relate to the claimed excessiveness of sentence and alleged defective sentencing procedures in the imposition of sentences of imprisonment imposed upon Samuel Blair Hainsey and his wife, Sandra Lee Hainsey.

On August 11, 1987, appellant Samuel Blair Hainsey, was sentenced to a period of forty-eight hours to six months imprisonment and fined on a conviction of driving under the influence. On the same date, Hainsey was sentenced to a period of nine months to thirty-six months imprisonment for multiple charges of poolselling and bookmaking and a conspiracy charge. The latter sentence also included a fine and an order of restitution to the Pennsylvania State Police.

We first address the appellant’s claim that the sentences of incarceration on the poolselling and bookmaking charges are excessive and we note that there is a companion appeal raising similar arguments filed on behalf of appellant’s wife, Sandra Lee Hainsey, who on the same day was given a sentence of three to twenty-three and one-half months imprisonment on identical poolselling, bookmaking and conspiracy charges. Our discussion relates to both cases.

It is well settled that the appellate scope of review is severely limited when considering a bare claim of excessiveness of sentence. Our system of sentencing necessitates that we grant broad discretion to the trial judge and our appellate courts have traditionally left sentences undisturbed on appeal because of the view that the sentencing court is in a far better position to weigh the factors involved in sentencing determinations. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Thus, an appellate court will not find an abuse of discretion, provided that the sentence imposed is not so manifestly excessive as to inflict too severe a punishment. Commonwealth v. Ziomek, 291 Pa.Super. 251, 435 A.2d 894 (1981). See also Commonwealth v. Burtner, 307 Pa.Super. 230, 453 A.2d 10 (1982); Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1981); Commonwealth v. Person, 450 Pa. 1, 297 A.2d 460 (1972).

So charged, we examine the background which led to the sentences, initially as to the poolselling and bookmaking charges. The Hainseys were charged with nineteen counts of poolselling and bookmaking, 18 Pa.C.S.A. § 5514, and one count of criminal conspiracy, 18 Pa.C.S.A. § 903, following their arrest in June of 1986. In March of 1987, they entered pleas of guilty before the Honorable David E. Grine, sitting as a visiting judge in Blair County. After the conduct of a presentence investigation report, the appellants were sentenced in August of 1987 as previously stated. Except for modification of a restitution order, their motions for reconsideration were denied and this appeal followed.

The nineteen offenses resulted from an investigation by the Pennsylvania State Police and consisted of contacts by a confidential informant using consensual telephone calls in the presence of a state policeman and using consensual wire equipment in the case of personal meetings. The personal contact was at the location of a tavern owned by the Hainseys known as the Double “S” in Juniata, Pennsylvania. During the course of these contacts by phone and in person with either appellant, the informant was given the “betting line” on college football and professional football games each weekend during the 1985 football season. The informant bet on both college and professional games- each week. (These successive transactions constituted the basis for the nineteen charges.) After the weekend, the informant would stop by the Double “S” Bar and settle his betting account for the previous weekend. Sometimes the informant won, more often he lost, with the result, says the Commonwealth, that the Hainseys netted $824.00 from this series of wagers.

Samuel Hainsey, age fifty, in addition to his ownership of the Double “S” Bar, is employed by Conrail as an engineer at a salary of approximately $42,000.00 a year. Sandra, age forty-four, retired in 1985 after thirteen years with the Commonwealth of Pennsylvania. Between them they have five children including a youngster of thirteen. Sandra had no criminal record and Samuel had only a driving under the influence conviction which will be discussed later in this opinion.

Underpinning appellant’s argument on appeal is a supplication to heed the contradiction in the fact that the iniquity made illicit by the Commonwealth’s poolselling and bookmaking laws, is precisely the kind of business which is conducted by the Commonwealth in its Pennsylvania Lottery which is championed throughout the Commonwealth in extravagant and persuasive ads aimed at every segment of our society; that the Commonwealth has licensed wagering at race tracks in Pennsylvania; and that people from every strata of society engage in formal and informal bets on college and professional football games, facilitated by point spreads published by the print media throughout the state. Compared to this, say the Hainseys, their betting operation was but a “Mom and Pop” enterprise furnished to accommodate the sporting aspirations of a small group of their acquaintences. As to this last contention, there is nothing in the record including the presentence reports to suggest or prove otherwise. Certainly the trial court has not stated otherwise and, of course, we must assume that the court was aware that sentencing may not be based on facts or factors not of record nor disclosed to the defendants. One can argue with some reason the unseemliness of the Hainsey’s incarceration in the Blair County Prison for engaging in a wagering enterprise whilst the Commonwealth and its licensees trade millions of dollars in gambling endeavors which have placed organized wagering on an altar of respectability said to provide for the recreational and aspirational needs of the citizenry. Of course private and unregulated wagering upon which the present charges were grounded may create risks and opportunities inconsistent with the public weal. This is a legitimate concern but, counter the Hainseys, though we now admit that we have transgressed the law and learned our lesson, our sentence reflects an unfair judgment not of our folly, but rather that our conduct was sinister and corrupt. However, the appellants have freely chosen to plead guilty to a crime enacted as a legitimate exercise of legislative authority; the investigation and prosecution was pursued, unquestionably with an unusually sustained vigor, but nonetheless within the framework prosecutor’s delegated authority as a member of the executive branch of government and the trial court, as appellants must concede, acted within the bounds of its legal sentencing authority. Under these circumstances and considering our limited role in passing on the excessiveness of sentences, we cannot substitute our judgment for the tripartite governmental actions which have led to the appellant’s sentences on the basis of excessiveness.

More specifically, appellants argue that the sentencing court must, under Pennsylvania law, state on the record the reasons for the sentence imposed, and that the present sentencing was defective in this regard. It is of course true that since Commonwealth v. Riggins, supra, it has been the law that a sentencing court must state on the record the reasons for the sentence imposed. The court must state its reasons in order to reflect that he has considered the provisions of the Sentencing Code, the circumstances of the offense and the character of the offender. Commonwealth v. Riggins, supra; Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985); Commonwealth v. DiVincenzo 362 Pa.Super. 27, 523 A.2d 758 (1987). It must be demonstrated that the cóurt considered’ the statutory factors enunciated for determination of sentencing alternatives, and the sentencing guidelines, 42 Pa.C.S.A. § 9721-9726. Commonwealth v. Riggins, 474 Pa. 115, 134-135, 377 A.2d 140 (1985). Instantly no argument is made by appellants that the sentences deviated from the sentencing guidelines. We must further find that the court’s sentencing statement sufficiently demonstrated consideration of the factors to be considered in selecting sentencing alternatives. Thus, the court stated in sentencing Samuel Hainsey:

It is my duty to state the reasons for imposing my sentence. The sentence imposed should call for a minimum amount of confinement consistent with protection of the public, gravity of the offense and the rehabilitative needs of the Defendant. I’ve considered the pre-sentence report and incorporate the same into the record as part of the reason for my sentence in your case. I’ve considered statements made by your counsel and circumstances of the offense and the number of counts, your education, character, background and other circumstances surrounding this. I’ve considered probation and rejected the same because I believe you did not act under any strong provocation and no grounds pending to excuse or justify your conduct. And it’s not likely that you would respond affirmatively to probationary treatment. I’ve chosen total confinement as I believe a lesser sentence would seriously depreciate the nature of the crime.

Our cases have made it clear that the sentencing court need not specifically cite or include the language of the Sentencing Code so long as it demonstrates that the factors specified in the Code have been considered. Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982); Commonwealth v. DeLuca, 275 Pa.Super. 176, 418 A.2d 669 (1980); Commonwealth v. Kane, 315 Pa.Super. 212, 461 A.2d 1246 (1983). The sufficiency of this statement is made clear by the recent Supreme Court opinion in Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12, (1988) which in sum prohibits our disturbing sentences where it appears that the court has been fully informed by the presentence report.

Appellants also argue that the sentences are excessive in that they, when measured against sentences in comparable gambling cases in Blair County, are substantially and disproportionately harsher. The comparative sentences include a sentence by the present sentencing judge imposed on the same day that appellant’s petition for modification of sentence was denied. These sentences (except the one given by Judge Grine) were brought to the attention of the sentencing judge on the petition for modification. Suffice it to say that the sentences cited do support the appellant’s argument in that, even recognizing the variances that exist among the cases, none of the others involved a direct sentence of incarceration, save the other gambling sentence given by Judge Grine, and that involved a sentence of 30 days minimum. In its opinion in support of refusing to modify the sentences, the court stated in response to the disparity argument that as a sentencing judge he was not bound by sentences given by other judges. Cases which have required a statement by the sentencing judge to explain disparity with other sentences are cases which relate to co-defendants where individuals are sentenced for crimes arising out of the same circumstances. See Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983); Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987); Commonwealth v. Thurmond, 257 Pa.Super. 464, 390 A.2d 1330 (1978). There is no requirement that the court explain disparity of sentences in the same jurisdiction. Obviously the number of such cases and the unlimited variables would make such a practice impractical and unwise. The sentencing guidelines, about which appellants raise no complaint here, are designed to minimize disparity of sentences among defendants who are similarly situated. In fact, an attempt to employ a county-wide sentencing standard for particular crimes without reference to the defendants individual backgrounds and characteristics, relative culpability or prospects for rehabilitation was specifically condemned by our Supreme Court in Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976).

Thus, it would appear that the sentences are not excessive given the framework from which excessiveness must be viewed under our law; the court made the sufficient allusion to the Sentencing Code and the appropriate factors to be considered including the presentence report; and comparison with sentences to other defendants is of no avail.

However, closer scrutiny leads us to conclude that the sentencing record deserves comment. Examination of the court’s statement of reasons for the sentences reveals that they are substantially identical being just short of verbatim recitations of the same statement. The statement of reasons at Mr. Hainsey’s sentencing is:

It is my duty to state the reasons for sentences. The sentence imposed should call for a minimum amount of confinement consistent with the protection of the public, gravity of the offense and the rehabilitative needs of the Defendant. I considered your pre-sentence report and incorporate the same into the record as part of the reason for my sentence in your case. I considered statements made by your counsel, your education, character, background and the circumstances surrounding this case. I considered probation and rejected the same because I believe you did not act under any strong provocation nor are there any grounds tending to excuse or justify your conduct. I’ve chosen total confinement as I believe a lesser sentence would seriously depreciate the nature and the number of crimes committed in this case.

As previously stated, our cases have not required that the statement of reasons for sentences as required by Riggins be highly detailed, but must simply reflect that the court had a degree of awareness of the sentencing considerations. Commonwealth v. Devers, supra. Still, it would seem that the goals of individualized consideration are defeated when the court chooses to make a recitation of reasons for sentencing and it becomes a mere formula which once on the record mechanically deflects appellate review. As an example, the court stated that probation was rejected because the appellants “did not act under any strong provocation” and there were no “grounds tending to excuse or justify the appellants conduct”. Of the twelve statutory considerations which should be accorded weight in favor of an order of probation, the two which the court articulated were those which by their nature would be least applicable to the crimes of poolselling and bookmaking while others unmentioned would be of great relevance. 42 Pa.C.S.A. § 9722 provides:

(1) The criminal conduct of the defendant neither caused nor threatened serious harm.
(2) The defendant did not contemplate that his conduct would cause or threaten serious harm.
(3) The defendant acted under a strong provocation.
(4) There were substantial grounds tending to excuse or justify the criminal conduct of the defendant, though failing to establish a defense.
(5) The victim of the criminal conduct of the defendant induced or facilitated its commission.
(6) The defendant has compensated or will compensate the victim or his criminal conduct for the damage or injury that he sustained.
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime.
(8) The criminal conduct of the defendant was the result of circumstances unlikely to recur.
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.
(10) The defendant is particularly likely to respond affirmatively to probationary treatment.
(11) The confinement of the defendant would entail excessive hardship to him or his dependents.
(12) Such other grounds as indicate the desirability of probation.

Moreover, returning to our discussion concerning disparity of sentence we have here (although both appellants claim that their sentences are excessive) a substantial difference in the sentences between co-defendants with no explanation by the trial court for the disparity. While this defect does not point to the relief which appellants seek, it does serve to illustrate that where a judge chooses to make a statement for reasons for sentence which is in formulistic compliance with Riggins and Devers, the offered rationale is effectively placed beyond judicial review. Nevertheless, we find that the court has met the requirements of Riggins and Devers.

There is a separate issue with respect to the appeal of Samuel Hainsey. At the time of his sentencing on the poolselling and bookmaking charges, he was given an additional sentence as follows:

NOW, this 11th day of August, 1987, the sentence of this Court for the charge of Driving Under the Influence of Alcohol at C.A. No. 333 of 1983 is that you pay for the use of the Court of Blair the sum of Three Hundred Dollars ($300.00), that fines and costs be paid in accordanee with a contract in which a payment schedule will be established by the Blair County Department of Costs and Fines, that your operator’s license be suspended for a period of one (1) year, that you undergo an alcohol safe driving course, that you undergo imprisonment in the Blair County prison for a period of not less than forty-eight (48) hours nor more than six (6) months, credit to be given for any time previously served on this sentence.

This sentence related to a conviction for driving under the influence before another judge four years previously. The record concerning the conviction is somewhat ambiguous, but, in any event, post-trial motions were filed but never disposed of. The present sentencing records discloses that Judge Grine believed that there was an appeal pending in the appellate courts, but decided to impose the sentence and defer its execution until the appeal was returned from the appellate court. Since there were undecided post-verdict motions, the sentencing on the driving under the influence charges was premature. Post-verdict motions must be decided before sentencing and an appeal lies only from a judgment of sentence. Pa.R.Crim.P. 1123; 42 Pa.C.S.A. § 102, 742. In addition, there is nothing in the record to explain why the sentence could not be given by the judge who presided at the trial as required by the law except under extraordinary circumstances. Pa.R.Crim.P. 1401. Finally, even if there was an appeal pending in our court at the time of the sentence, the court was without power to impose sentence. Pa.R.A.P. 1701. The sentence imposed for the 1983 conviction for DUI must be vacated. The fact that the prior charges were unresolved at the trial level is important since under those circumstances it should not have been treated as a final conviction in considering the gambling offense.

As part of each sentence, the court ordered restitution in the amount of $1,328.00 to the Pennsylvania State Police. In its opinion dated December 15, 1987, following the petition for modification of sentence the court explained that only a total of $1,328.00 in restitution was intended giving the Commonwealth the option of obtaining the total amount from either defendant “and allowing the paying defendant to look to the non-paying defendant to recoup his share.” However, previously on September 18, 1987 the court had modified the restitution order and reduced it to a sentence of restitution of $664.00 in each case. Be that as it may, appellants challenge the order of restitution. In Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197 (1986) a majority of our court en banc held that money paid by undercover agents for the purchase of drugs could be recouped as restitution since the Commonwealth qualified as a “victim” under the restitution statute. However, our Supreme Court granted a petition for allowance of appeal in Mourar and on December 4, 1987 the Supreme Court vacated the order of the Superior Court and remanded to this court for further proceedings in light of Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). Commonwealth v. Mourar, 517 Pa. 83, 534 A.2d 1050 (1987). While Mourar is therefore a case of at least weakened authority, appellant makes the further argument that under the statute providing for restitution, 18 Pa.C.S.A. § 1106, there is no evidence that appellants have improperly stolen, converted, or unlawfully obtained property belonging to the Pennsylvania State Police. In addition, there is no evidence as to how the sum was calculated — what composed the “loss” suffered by the state police, how the defendant’s actions caused the injury and that they will be able to pay for it. Our court has held with respect to an order of restitution that:

Since an order of restitution is a sentence, whether it is imposed as a direct sentence or as a condition of probation or parole, it must be supported by the record. See Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). Among the things the sentencing court must consider on the record are: the extent of the injury-suffered, see 18 Pa.C.S. § 1106(c)(1); the fact that the defendant’s action caused the injury and that he will be able to pay for it, see State v. Harris, supra [70 N.J. 586, 363 A.2d 32 (1976)]; and the type of payment — lump sum or installment — that will best serve the needs of the victim and the capabilities of the defendant. See 18 Pa.C.S. § 1106(c)(1).

Commonwealth v. Fuqua, 267 Pa.Super. 504, 510, 407 A.2d 24 (1979). Accord: Commonwealth v. Erb, 286 Pa.Super. 65, 428 A.2d 574 (1981); Commonwealth v. Valent, 317 Pa.Super. 145, 463 A.2d 1127 (1983); Commonwealth v. Kioske, 337 Pa.Super. 593, 487 A.2d 420 (1985). Since the sentencing court failed to follow these mandates the sentence of restitution must be vacated in order to demonstrate the computation of the loss and the extent of injury suffered by the victim as well as the other requirements of Fuqua. In addition, since the court improperly sentenced on the DUI case, it is likely that the court considered Mr. Hainsey’s record in an inaccurate posture.

Although it is not an issue raised by the parties to this appeal, since a resentencing is required one other aspect of the sentence must be discussed. In the sentencing order as to each appellant the court provides that defendant shall be available for work release during any incarceration. Since this is obviously a sentence of partial confinement under 42 Pa.C.S.A. § 9724 such a sentence requires compliance with 42 Pa.C.S.A. 9755(a) which requires that certain determinations be made at the time of sentencing as well as other considerations which might affect the structure of the sentence of partial confinement. See 42 Pa.C.S.A. 9755(a) to (f).

For the reasons stated, we vacate the judgment of sentence of Samuel B. Hainsey on August 11, 1987, as modified by the order of September 18, 1987 and remand for resentencing consistent with this opinion. A separate order of the same import will be entered in the case of Sandra Hainsey.

Judgment of sentence vacated. Remanded for resentencing.

KELLY, J., concurs in the result.

ROWLEY, J., dissents.

      . The original sentencing order for Sandra states $3,128.00. We assume this is in error.

      . In a persuasive dissent Judge Johnson argued that under the statute there was no proof that the "property" was stolen, converted, or otherwise unlawfully obtained. 18 Pa.C.S. § 1106(a).

      . In addition, Samuel was fined $5,000.* and Sandra $2,000.