author: SUGERMAN, Judge:

text:
    448 A.2d 64
    John L. RORABAUGH, Appellant, v. Mary Elizabeth RORABAUGH a/k/a Betty B. Rorabaugh.
    Superior Court of Pennsylvania.
    Argued June 14, 1979.
    Filed July 9, 1982.

      Louise G. Herr, Lancaster, for appellant.
    John W. Burge, Lancaster, for appellee.

      Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       Pres. Judge JOHN Q. STRANAHAN, of the Court of Common Pleas of Mercer County, Pennsylvania and Judge LEONARD SUGERMAN, of the Court of Common Pleas of Chester County, Pennsylvania, are sitting by designation.

   SUGERMAN, Judge:

Appellant, (“Husband”) appeals from an order of the lower court sustaining Appellee’s (“Wife”) exceptions to the report of a Master in Divorce and denying Appellant a Decree in Divorce upon the ground of indignities to the person. The Master recommended in her report that a Decree of Divorce be granted the husband, but the lower-court refused to adopt such recommendation upon finding that husband was not an injured and innocent spouse by reason of indignities committed by him.

Husband contends on appeal that the lower court erred in failing to accord appropriate weight to the findings of the Master with regard to the credibility of the witnesses who appeared before the Master.

Before we address Husband’s contention, we reiterate our scope of review, and as we stated in Brown v. Brown, 288 Pa.Super 354, 356, 431 A.2d 1085, 1086 (1981), (quoting from Schrock v. Schrock, 241 Pa.Super. 53, 57-8, 359 A.2d 435, 437-8 (1976)):

“ ‘. . . we must initially note that it is our duty, on appeal, to make an independent study of the record and to determine whether a legal cause of action for divorce exists. Barr v. Barr, 232 Pa.Super. 9, 331 A.2d 774 (1974); Arcure v. Arcure, 219 Pa.Super. 415, 281 A.2d 694 (1971). Moreover, while the master’s findings of fact and recommendation that a divorce be granted are only advisory, where the issue is one of credibility and the master is the one who heard and observed the witness, his findings should be given the fullest consideration. Gehris v. Gehris, 233 Pa.Super. 144, 334 A.2d 753 (1975); Sells v. Sells, 228 Pa.Super. 331, 323 A.2d 20 (1974).’ ”

And see, Gross v. Gross, 281 Pa.Super. 45, 47, 421 A.2d 1139, 1140 (1980) (quoting from Keller v. Keller, 275 Pa.Super. 573, 419 A.2d 49 (1980)); Britton v. Britton, 280 Pa.Super. 87, 421 A.2d 417 (1980).

As the lower court found that Husband committed indignities as well, we should also again observe that no general rule can be formulated as to the precise nature of the conduct that will constitute indignities to the person in a given case, as such conclusion will depend upon the circumstances of that particular case. Brown v. Brown, supra, 288 Pa.Super. at 356-7, 431 A.2d at 1086 (quoting from Schrock v. Schrock, supra, 241 Pa.Super. at 58, 359 A.2d at 437-8, which in turn quoted from Sells v. Sells, 228 Pa.Super. 331, 333-34, 323 A.2d 20, 22 (1974)); Shuda v. Shuda, 283 Pa.Super. 253, 423 A.2d 1242 (1980); Keller v. Keller, supra; Rollman v. Rollman, 280 Pa.Super. 344, 421 A.2d 755 (1980).

As no strict test thus applies, the Supreme Court has delineated a framework of conduct within which we may determine whether indignities are present:

“ ‘Indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement’ ” McKrell v. McKrell, 352 Pa. 173, 180, 42 A.2d 609, 612 (1945) (quoting from Evans v. Evans, 152 Pa. Super. 257, 262, 31 A.2d 590, 592 (1943)).

The McKrell court also said:

“The essential feature of the offense of indignities to the person is that it must consist of a course of conduct or continued treatment which renders the condition of the innocent party intolerable and his or her life burdensome . . . [citations omitted] .. . What is meant by such indignities is left undefined in the law, and depends largely upon the circumstances of each case; they must consist of such a course of conduct as is humiliating, degrading and inconsistent with the position and relation as a spouse ...” McKrell v. McKrell, supra, 352 Pa. at 180, 42 A.2d at 612.

In addition to proving indignities, however, the moving party must also prove that he or she is the injured and innocent spouse. 23 P.S. § 10(f); Liebendorfer v. Liebendorfer, 289 Pa.Super. 339, 341, 433 A.2d 480, 481 (1981); Brown v. Brown, supra, 288 Pa.Superior at 357, 431 A.2d at 1087; Gross v. Gross, supra, 288 Pa.Super. at 48, 421 A.2d at 1140 (quoting from Keller v. Keller, supra, 275 Pa.Superior at 576-7, 419 A.2d at 51); Rollman v. Rollman, supra, 280 Pa.Super. at 349, 421 A.2d at 757; Dukmen v. Dukmen, 278 Pa.Super. 530, 534, 420 A.2d 667, 670 (1980); Moorhead v. Moorhead, 278 Pa.Super. 275, 278, 420 A.2d 537, 539 (1980); Mintz v. Mintz, 258 Pa.Super. 187, 193, 392 A.2d 747, 750 (1978). Thus it has been said that a finding that the moving party is the innocent and injured spouse “is a prerequisite for entitlement to a divorce based upon the grounds of indignities”. Brown v. Brown, supra, 288 Pa.Super. at 357, 431 A.2d at 1087.

With these familiar principles in mind, then, and within our broad scope of review, we examine the record to determine whether Husband proved that he is an innocent and injured spouse. We must also note that we are assisted in our task by a comprehensive and scholarly opinion filed pursuant to Pa.R.A.P. 1925(a) by Judge Eckman of the Court below.

From the record of the hearing before the Master, it appears that the parties were married on October 5, 1946, and eight children resulted from the union. At the hearing, Husband, then 59 years of age, testified that he was a biology teacher by profession, and held the position of professor of biology at Millersville State College during the seventeen years immediately preceding the hearing. (R-7a). When examined upon the subject of indignities committed by Wife during the approximately 28 years of cohabitation, Husband testified that on one occasion in 1973, she removed all his clothing from the parties’ farm house and put them in his pickup truck parked at the College, and when he unloaded the clothes at home, the Wife again placed them in the truck (R-10a-lla, 54a); that Wife never encouraged Husband in his endeavor to improve the parties’ farm, never encouraged the children to work on the farm, and once did not permit their 8-year old son to assist Husband in planting corn (R-14a, 31a, 50a-51a); that on two occasions, the last of these occurring in 1976, Wife scratched Husband (R-18a-19a); that once, Wife told Husband several times that she would kill him (R-21a, 52a-53a); that on one occasion upon Husband’s return from an auction, Wife struck him (R-52a-53a); that Wife never encouraged Husband in his work as a teacher (R-30a); and that once, within a few months of the hearing, during the course of an argument, Wife tore Husband’s glasses off, and slammed them to the floor, bruising Husband’s ear as she did (R-34a35a). Husband presented no other witnesses or evidence in his case in chief.

At the hearing, Wife, then 51 years of age, testified that the parties’ marriage began to disintegrate approximately ten years prior to the hearing when Husband became violent (R-67a); that on one occasion, Husband savagely kicked Wife at the base of her spine, resulting in her inability to assume a sitting position without a pillow for two days (R-67a-68a); that Husband’s violent conduct toward Wife and the children continued during the ten-year period and increased in intensity “almost . . . beyond bearing” (R-68a69a); that Husband’s acts of violence toward Wife and the children were too numerous to enumerate (R-69a); that Husband once struck the parties’ 6-year old son and their oldest daughter in the face for no apparent reason, causing both to bleed (R-70a-71a); that Husband constantly “screamed” at Wife and the children (R-71a); that the violence ceased only at or about the time Husband filed the instant complaint in divorce (R-71a); that Husband continually associated with his young, female laboratory assistant; that when Husband traveled to the South Pacific on sabbatical leave for a period of one year, he gave Wife only $1800.00 for the support of Wife and the children, forcing Wife to seek charity from the parties’ church (R-77a-78a); that approximately one year prior to the hearing, Husband refused to pay the telephone bill, resulting in a cessation of telephone service for a period of six months (R 85a); that when the children invited friends to the parties’ home, Husband forced such friends to work and otherwise intentionally embarrassed them, and as a result, the children were unable to invite friends to the home (R-100a); that early in the marriage, Husband on several occasions pulled Wife down a flight of stairs by her hair and clothing (R 103a); that in May, 1973, Husband for no apparent reason, chased Wife down a road with a wooden board (R-T07a-108a); that Wife intercepted love letters written to Husband by a woman whom Husband met while on sabbatical leave (R-115a); and that Wife placed Husband’s clothing in his truck as the result of his constant association with his young laboratory assistant (R-110a Ilia).

The parties’ son John, Jr., twenty-nine years of age at the time of the hearing, testified on behalf of Wife that Husband has beaten and slapped Wife and pulled her hair “since I have a memory” (R 113a 129a); when asked how frequently Husband beat Wife, John, Jr. responded:

“A. I would say more than a hundred, probably in the thousands, I would say there have been months on end when it was a daily occurrence.” (R- 131a 132a, 150a);

that Husband beat John, Jr. and on occasion struck him with a board, once breaking John, Jr’s, nose, (R 134a); that Husband dragged John, Jr. to his automobile and intentionally closed the door before John, Jr. could remove his hand, breaking a finger (R 134a -135a, 154a); that Husband beat John, Jr. with a baseball bat (R-138a); that Husband continually beat the parties’ daughter Barbara, and on one occasion, broke down her bedroom door and pulled her by the hair (R-137a); that once when John, Jr. brought a friend home, Husband beat John, Jr. and screamed at him in the presence of the friend, severely embarrassing John, Jr. and causing him to refuse to bring friends to the home ever again (R-141a-142a); and that Husband constantly hurled invectives and obscenities at Wife (R-143a).

The parties’ daughter Barbara, 25 years of age at the time of the hearing, also appeared as a witness on behalf of Wife and testified that Husband struck, slapped and beat Wife every weekend and at least two or three times during the week for years (R-186a-188a); and that she has seen Wife endeavoring to defend herself against Husband’s assaults with a frying pan (R-185a). Barbara confirmed John, Jr’s, account of the beatings administered to him by Husband (R-188a-189a), and testified that Husband’s violent behavior was unprovoked (R-187a-188a).

Robert Knappman, married to the parties’ oldest daughter Annetta, also appeared on behalf of Wife and testified that Husband attempted to strike him, and that he observed bruises upon Annetta (R-177a-179a).

Finally, in rebuttal, Husband called his brother as a witness, who testified that he visited the family frequently and never observed Husband physically abuse Wife or the children (R-217a-218a).

The Master, in her report, recounts the testimony in detail, and though she does not directly assess the credibility of either Husband or Wife, does say that:

“In evaluating the credibility of the witnesses, the Master feels that Plaintiff’s testimony has established by preponderance of the evidence that the defendant has committed such indignities as are required under the Statute and that defendant’s actions were not sufficiently provoked by Plaintiff so as to disallow a granting of a divorce on the grounds that Plaintiff is not the injured and innocent spouse. Defendant herself stated that although Plaintiff may have hit her, he never did so without a reason [] and, in fact, defendant did not find the physical nature of the family’s relationship objectionable but was most upset by which she believed to be examples of Plaintiff infidelity ...” (R-248a-249a)

and further

“A case of this nature presents an extremely difficult problem for the Master in evaluating credibility of witnesses and the wait to be afforded in their testimony. However, after having considered all the evidence and the testimony produced, the Master finds that the Plaintiff has established by preponderance of the evidence that defendant has exhibited an attitude of hate and estrangement toward Plaintiff, that such attitude through its continued course of conduct has rendered Plaintiff’s condition intolerable and life burdensome, and that Plaintiff is the injured and innocent spouse ...” (R-249a-250a)

As the lower court points out in its opinion:

“The Master did not explicitly find that the Plaintiff was more credible then the Defendant and her corroborating witnesses. In fact, the report does not address credibility per se, as it relates to the contradictory testimony. It appears from the report that the Master’s final recommendation was based on interpretations of the record, rather then on a disbelief of the testimony offered by the Defendant and her witnesses. Nowhere does the Master offer an explanation of the demeanor of the witnesses. In fact, it appears from a total reading of the report that the Master accepted as fact that there was violence in the home.” (A-5)

The lower court also carefully considered the Master’s finding that Wife excused the violent behavior of her Husband:

“The Master’s finding that Defendant excused Plaintiff’s behavior is somewhat curious in light of Defendant’s statement that at one point the violence reached a point beyond bearing. Defendant did testify that she continually forgave her husband for the violent episodes, but that they kept recurring. When asked about other marital problems, she stated . .. ‘well I guess you learn to live with those things like the insulting, and the beatings, but when something comes along like other woman, then you tend to wonder about a marriage’. In light of Defendant’s other testimony that she tried to keep things hidden from friends to prevent any belittling of the reputation of the family . . . though it is possible that she has grown accustom to Plaintiff’s behavior, we can not conclude that this excuse his conduct.”

The lower court then found Husband’s testimony to have been “shaken” and concluded that Husband initiated the episodes of violence and committed indignities toward Wife at least as grievous as those committed by Wife. As a result, the lower court found that Husband was not an innocent and injured spouse.

Husband argues that the Master, by finding Husband to be an innocent and injured spouse, impliedly resolved the issue of credibility in favor of Husband, and as the case at bar was at best a “swearing contest”, both the lower court and this court must accord the Master’s conclusions “the greatest weight”. Appellant’s Brief at 9.

The case is, first of all clearly not a “swearing contest”, as Wife’s testimony was in large part corroborated by the testimony of the parties’ children, while Husband was essentially the only witness in his case. More significantly, however, while it is of course quite correct to observe, as does Husband, that where the issue is one of credibility and the Master is the one who heard the testimony and observed the demeanor and appearance of the witnesses, a reviewing court must give the Master’s findings regarding credibility the fullest consideration, Rollman v. Rollman, supra; Schrock v. Schrock, supra, at the same time, we have said that the issue of credibility is not entirely to be resolved by the Master, and a reviewing court has the duty to make a complete and independent review of all the evidence, including a review of the weight and credibility to be accorded to the testimony of the witnesses. Rollman v. Rollman, supra; Keller v. Keller, supra (quoted in Britton v. Britton, supra).

At bar, the lower court conducted precisely the kind of review we have envisioned and found the testimony of Wife not only corroborated by the testimony of parties’ two children, but inherently more credible than that of Husband as well. The opinion of the lower court also takes issue with a number of the Master’s conclusions, as, for example, the conclusion that violence was accepted in the parties’ home as “normal”, and the unsupported finding by the Master that Wife provoked Husband’s physical attacks.

We have reviewed the record most carefully and agree with the lower court that such record makes abundantly and manifestly clear that Husband was neither injured nor innocent, Moorhead v. Moorhead, supra, 278 Pa.Super. at 279-83, 420 A.2d at 541-542, and that Husband committed indignities toward Wife at least as grievous as those committed by her. Our independent review of the record also convinces us that the Master’s contrary conclusions are wholly unsupported.

Although a plaintiff, as Husband, need not be entirely free from fault to be an innocent and injured spouse, Liebendorfer v. Liebendorfer, supra, Gross v. Gross, supra; Rollman v. Rollman, supra; Moorhead v. Moorhead, supra, it is apparent instantly that “[Hjusband’s derelictions were not a minor or passing phenomenon, but went to the very heart of the cause which brought about the marital difficulties.” Liebendorfer v. Liebendorfer, supra, 289 Pa.Super. at 343, 433 A.2d at 482. The lower court thus properly found that Husband was not an innocent and injured spouse and correctly dismissed his complaint.

Affirmed.

      . Act of May 2, 1929, P.L. 1237, § 10, as amended by the Act of March 19, 1943, P.L. 21, § 1, 23 P.S. § 10(f) (Repealed by the Act of April 2, 1980, P.L. 63, No. 26, §§ 101 et seq., 23 Pa.C.S.A. §§ 101 et seq.)

      . When asked by Wife’s counsel during cross examination whether this incident occurred, Husband responded, incredibly, that he was not aware of it as Wife “would not say anything to him” (R-35a36a).

      . At the time, Husband’s salary was $20,000.00 annually, (R 77a)

      . This conclusion by the Master is apparently based upon the following testimony by Wife during direct examination:
      “Q Has he ever struck you?

        A Yes, it’s in a provoked manner, he always has some reason.
      Q What reason?
      A If I would say something or even if I didn’t lots of times I didn’t say anything that was just as bad as if I did.
      Q Would you say that you encouraged [Husband] to strike you or give him reason to strike you?
      A No, because I would run away and he would come after me, but I would run away. I don’t think that’s encouraging it.” (R-84a-85a)
      It is at once obvious that the Master has misread the record. It is also apparent that the Master has misperceived the substance of Wife’s testimony. If there can ever be “reasons” justifying a physical attack by one spouse upon the other, silence is surely not among them.

      . Husband labels the case one of “competitive truthfulness”. Appellant’s Brief at 9.

      . Examples of “swearing contests” are found in Boniewicz v. Boniewicz, 266 Pa.Super. 210, 403 A.2d 999 (1979); Leucci v. Leucci, 261 Pa.Super. 107, 395 A.2d 1333 (1978); Hargrove v. Hargrove, 252 Pa.Super. 120, 381 A.2d 143 (1977).

      . As one of many examples, the Master did not discredit the testimony of John, Jr., who, it will be recalled testified that Husband physically abused him repeatedly. We have said in the past that if a spouse abuses the parties’ children a court may find that such spouse is not the innocent and injured party and that such conduct constitutes an indignity to the other spouse. McCaskey v. McCaskey, 253 Pa.Super. 360, 368-69, 385 A.2d 378, 383 (1978).


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    448 A.2d 70
    COMMONWEALTH of Pennsylvania v. Ronald PERKINS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 22, 1981.
    Filed July 16, 1982.

      Joan Saltzman, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and DiSALLE, JJ.
   HESTER, Judge:

The appellant, Ronald Perkins, pled guilty to charges of criminal conspiracy, criminal trespass and theft. He was later sentenced to IV2 to 3 years imprisonment followed by 4 years of probation on the theft conviction; 3V2 to 7 years imprisonment on the criminal conspiracy conviction, to run consecutively with the theft sentence; and, 7 years probation on the criminal trespass conviction, to run concurrently with the conspiracy sentence. After sentencing, the appellant filed a pro se Petition for Reconsideration of Sentence. When that Petition was denied on August 22, 1980, this appeal followed.

Appellant raises a number of arguments, only a few of which need be considered here in light of our disposition of this appeal. He argues that he did not waive his right to challenge the guilty plea on the direct appeal. For reasons hereinafter set forth, we agree and remand for a hearing on appellant’s petition to withdraw his guilty plea.

On December 17,1979, the appellant and his brother broke into a furniture warehouse at 3300 Jasper Street, Philadelphia, removed several boxes containing furniture and loaded them into a van. Four blocks away, at G and Thayer Streets, the co-defendants were apprehended by the police and owner of the furniture store. The recovered boxes were stamped “Julius Snyder Company, 3327 Kensington Avenue.” Once the co-defendants were taken into police custody, the appellant issued a statement to Detective Casey whereby he admitted that he and his brother removed several boxes from the warehouse and placed them in his brother’s van.

Appellant argues that his trial counsel was ineffective for failing to inform him of the elements of the crime in the guilty plea colloquy, for failing to properly advise him of his rights to petition to withdraw, and for failing to file the petition to withdraw. He concludes, therefore, that he must be permitted to raise the involuntary plea argument for the first time on appeal.

In Commonwealth v. Johnson, 258 Pa.Super. 214, 392 A.2d 760 (1978), the defendant attacked the voluntariness of his plea on direct appeal without first filing a petition to withdraw the plea. The Johnson court permitted him to challenge his plea for the first time on appeal because he never effectively waived his right to appeal. The court ruled that a “finding of waiver must be based on affirmative proof in the record that the defendant has been told by the lower court or counsel of (1) his right to petition to withdraw his guilty plea; (2) his right to assistance of counsel in filing such a petition; (3) the consequences of not filing such a petition.” Id. at 762.

That portion of the colloquy instructing the appellant of his appellate rights was sketchy:

“If you wish to appeal on the limited grounds which I explained to you, you must file a petition within 10 days from today asking Judge McDermott to withdraw the plea of guilty.
If that petition is not granted, then, of course, you could appeal on the grounds, in accordance with what has been explained in the colloquy.”

It is not clear from this language that the failure to file a petition precludes the raising of an involuntary plea for the first time on appeal; nor is any mention made of the appellant’s right to the assistance of counsel in drafting and presenting a petition to withdraw. The appellant did not effectively waive his right to appeal, because he was denied the opportunity, through the ineffectiveness of counsel, to preserve that right.

We refuse to consider the voluntariness of the plea itself. Since the lower court did not have an opportunity to decide the issue, we will not decide it here. Commonwealth v. Bittner, 441 Pa. 216, 272 A.2d 484 (1971); Commonwealth v. Robinson, 253 Pa.Super. 496, 385 A.2d 448 (1978).

The appellant raises several arguments on sentencing that we are constrained to address as well. First, he argues that the one and one-half (lVz) years to three (3) years imprisonment followed by four (4) years probation on the theft by unlawful taking conviction was excessive. We agree.

Theft by unlawful taking, where, as here, the amount involved does not exceed $2,000.00, constitutes a misdemean- or of the first degree. 18 Pa.C.S.A. Sec. 3903(b). Misdemeanors of the first degree are punishable by a term of imprisonment not in excess of five (5) years. The Superior Court in Commonwealth v. Nickens, 259 Pa.Super. 143, 393 A.2d 758 (1978), looked to the total period of the sentence and not the term of imprisonment alone in determining whether the statutory maximum was exceeded. According to the Sentencing Code, the court may order probation, partial confinement, total confinement, fine, guilt without penalty or combinations of the enumerated sentencing forms, 42 Pa.C.S.A. Sec. 9721. Although the appellant was ordered to serve a maximum cf three (3) years in prison for the theft conviction, the addition of the probationary term of four (4) years set the total period of the sentence in excess of the statutory limit of five (5) years.

The appellant next argues that the sentence on the conspiracy charge also exceeded the statutory maximum. He is correct in concluding that criminal conspiracy in any one particular criminal incident is the same grade offense as the most serious offense which is the object of the conspiracy. 18 Pa.C.S.A. Sec. 905. The appellant incorrectly concludes, however, that the theft offense was the most serious. Criminal trespass is a felony of the third degree; the theft by unlawful taking here is a misdemeanor in the first degree. 18 Pa.C.S.A. Sections 3503(a)(2), 3903(b). Criminal trespass carries a maximum term of imprisonment of seven (7) years, 18 Pa.C.S.A. Sec. 1103(3); consequently, the three and one-half (31/2) to seven (7) years imposed for the conspiracy charge did not exceed the statutory limits.

At the sentencing proceeding on July 25, 1980, in the Court of Common Pleas of Philadelphia County, the appellant was initially and orally sentenced to five (5) to fifteen (15) years on the criminal conspiracy bill; seven (7) years probation on the criminal trespass bill, running consecutive to the conspiracy bill; and, ten (10) years probation on the theft bill, running concurrent to the conspiracy bill. After a momentary recess, the sentencing court re-convened for changes in the sentencing that followed sentencing provisions. As a result, the appellant was sentenced to one and one-half (IV2) to three (3) years followed by four (4) years probation on the theft bill; three and one-half (3/2) to seven (7) years for criminal conspiracy, to run consecutive to the theft bill; and seven (7) years probation for criminal trespass, to run concurrent to the theft bill.

The appellant argues that this sentencing procedure violated the principles of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979), due to the fact that the court allegedly did not justify the initial and second sentence. Furthermore, the appellant argues that the sentencing court was not certain of the charges to which he pled guilty; consequently, the court was necessarily confused when imposing sentence. We disagree.

We recognize that the appellee referred to the appellant at sentencing as a burglar and the lower court stated in its opinion that he had pled guilty to burglary; nevertheless, there was no violation of sentencing standards. At the outset of the sentencing proceeding, the court verified with both parties that sentencing would be imposed on theft by unlawful taking, criminal trespass and criminal conspiracy. When sentence was actually imposed, burglary was not mentioned. The oral and written references to burglary were inadvertent and inconsequential.

The court justified the imposition of the initial, oral sentences; it was not necessary to repeat the reasons when the sentence was corrected. The court was merely correcting errors in the initial terms, the justification for the initial and final sentences could be the same.

Immediately before the imposition of the initial sentence, the court expressed for the record that the appellant was not capable of an immediate change to a law-abiding character, that he was an habitual criminal, that he had violated probation seven (7) times and parole six (6) times, and that a long incarceration would serve both as a rehabilitative measure and a deterrence. We find that the lower court followed the standards of the Sentencing Code, Riggins, supra, and Wicks, supra.

Finally, in regard to sentencing, the appellant argues that the re-sentencing on the conviction of theft and conspiracy was violative of the double jeopardy and due process clauses of the United States and Pennsylvania Constitutions. Although our Supreme Court has ruled that sentence modification which increases punishment is violative of the double jeopardy clause, Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971), there was simply one sentencing order docketed by the Court of Common Pleas of Philadelphia County. We view the initial, oral “sentence” as no real sentence at all since it was not reduced to a final order; therefore, we hold that only one sentence was imposed here. See Commonwealth v. Gallagher, 296 Pa.Super. 382, 442 A.2d 820 (1982).

Reversed and remanded for the appellant to have an opportunity to present a Petition to Withdraw his guilty plea; reversed and remanded also for resentencing. Jurisdiction is relinquished.

DiSALLE, J., did not participate in the consideration or decision of this case.


author: HESTER, Judge: SPAETH, Judge,

text:
    448 A.2d 74
    COMMONWEALTH of Pennsylvania v. James Michael THOMPSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 28, 1981.
    Filed July 16, 1982.

      S. James Buches, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, HESTER and WATKINS, JJ.
   HESTER, Judge:

On December 2, 1972, the appellant, James Michael Thompson, and a companion entered the residence of Milford Thompson in the City of Pittsburgh with the intent of finding the resident-victim and stealing his social security money. Upon discovering that the victim had no cash, the appellant and his companion proceeded to beat him unmercifully until death occurred. Both men then fled the scene with four cans of beer taken from the refrigerator.

On July 23, 1973, the appellant entered a guilty plea before Judges Loran Lewis and Benjamin Lenchner in the Court of Common Pleas of Allegheny County. The plea was accepted and convictions for murder in the first degree and attempted robbery were entered. The appellant was sentenced to imprisonment for life on the murder conviction and to a concurrent term of five to ten years on the attempted robbery conviction. No appeal was taken.

The appellant did file, however, a petition under the Post Conviction Hearing Act on June 20, 1978 alleging that he was denied his right to appeal. That petition was denied on December 5, 1978 and no appeal was taken once again. A second petition for relief under the Post Conviction Hearing Act was filed on July 1, 1980. The appellant was granted his right to appeal nunc pro tunc the Order of Court dated December 5, 1978, denying relief at the first post conviction hearing. This appeal followed.

The appellant argues that both the trial court and counsel failed to assure that the guilty plea was entered knowingly, intelligently and voluntarily as evidenced by the failure to inform the appellant of the possible range of sentences, of his right to participate in jury selection, of his presumption of innocence and of the nature and elements of the offenses charged. We find no merit to this argument and the accompanying allegations.

We agree that the guilty plea colloquy merely made a reference to the charges of robbery and murder. No attempt was made to define these offenses and inform the appellant of their nature and legal elements.

We are well aware of the holdings set forth in United States ex rel. McDonald v. Commonwealth of Pennsylvania, 343 F.2d 447 (1967), Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974) and Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976). Read conjunctively, these decisions indisputably required, at the time the appellant entered his plea, the conducting of a guilty plea colloquy that assured that the accused was fully cognizant of the nature and elements of the offenses charged. The law of these three decisions has no doubt generated concise, yet complete colloquies that safeguard an accused’s constitutional rights. We believe, however, that these three decisions are, in certain guilty plea proceedings, unnecessarily restrictive.

Certain colloquies, not satisfying the standards of Pennsylvania, Ingram, and Minor, supra, provide alternative methods of establishing the factual basis of the charges, and; consequently, assure a knowing, intelligent and voluntary plea. It is more prudent to hold that colloquies, as here, conducted without reference to the elements of the offense do not, per se, result in involuntary pleas; rather, at most, they shift the burden to the Commonwealth to prove voluntariness through other methods. See Commonwealth v. Belgrave, 445 Pa. 311, 285 A.2d 448 (1971). The guilty plea hearing here demonstrated the appellee’s accomplishment of that task.

A factual basis for the plea is universally required. Several courts have concluded that a factual basis existed even without considering whether a thoroughly conducted colloquy on the elements of the offenses was conducted. Commonwealth v. Campbell, 451 Pa. 465, 304 A.2d 121 (1973); Commonwealth v. Jackson, 450 Pa. 417, 299 A.2d 209 (1973). These decisions were formulated in spite of the earlier ruling in Pennsylvania, supra, and the retroactivity of Ingram, supra. The state of the law on guilty plea colloquies in this Commonwealth, then, is steadfast on the requirement of “factual basis”, but capricious on the methods employed to provide a factual basis.

Rule 319(a) of the Pennsylvania Rules of Criminal Procedure requires only that a plea be entered “voluntarily and understanding^” in order to achieve validity. The accompanying legislative comments suggest a list of questions for colloquies that will likely generate a voluntary and understandable plea. One recommendation on the list is an inquiry into the factual basis of the plea; however, the legislature does not limit the production of a factual basis to an on-the-record inquiry into the accused’s understanding of each element of the offenses charged.

The factual basis here was established, and the Commonwealth carried its burden, by proving the commission of murder in the first degree and attempted robbery through a lengthy taped interview conducted by Officers DiShantz and Palomino of the appellant. This taped interview, along with the live testimony of two eye witnesses, was produced in full at the guilty plea hearing.

In the taped interview, the appellant described in detail his unauthorized entry into the victim’s home, the attempt to steal cash and the bludgeoning of the victim’s body. He admitted to kicking the victim, throwing him to the floor, pouring plaster over his entire body to cover fingerprints and contemplating the use of a saw to sever the victim’s head.

Albeit the appellant may have entered the house with the intent only to rob the victim, murder in the first degree was undeniably produced via the felony murder rule. The appellant provided the evidence of guilt himself at the interview. He listened to his own admission a second time at the guilty plea hearing and never objected to the accuracy and authenticity of his description of the unfolding events. Accordingly, the factual basis for the plea of guilt to murder in the first degree and attempted murder was established through a method just as effective and conclusive as a specific court inquiry into the elements of the offense.

Upon review of the trial transcripts, we find a specific inquiry by the court into the appellant’s understanding of the Commonwealth’s obligation to prove him guilty beyond a reasonable doubt. We also find that Judge Lewis interrupted the testimony of Chief Pathologist, Joshua Perper to inform the appellant of the maximum sentences that the court could impose on the robbery and murder convictions entered pursuant to the guilty pleas. Although we agree that the appellant was not informed of his right to participate in the selection of the jury, he has proposed no case law that requires the court to notify an accused of such a right before a guilty plea can be entered knowingly, intelligently and voluntarily. Case law and the trial record support the finding of a validly entered guilty plea. Having found that the guilty plea hearing as a whole insured the entry of a knowing, intelligent and voluntary plea, there is no substance, then, to the appellant’s assertion that his trial counsel was ineffective for failing to assist the court in conducting a complete hearing.

The appellant also argues that he did not intelligently waive his right to appeal following the imposition of sentence due to the fact that his trial counsel’s alleged ineffectiveness at the guilty plea hearing was an extraordinary circumstance that precluded any such waiver. In reiteration, the guilty plea was voluntarily entered pursuant to a properly conducted colloquy. Trial counsel could not object to an errorless colloquy; therefore, he acted effectively. An unintelligent waiver of appellate rights cannot be attributed here to ineffectiveness of counsel.

Next, appellant argues that his was not an intelligent waiver of appellate rights because the Court merely informed him of his rights to appeal and to court appointed counsel if he was otherwise unable to afford one. The appellant contends that such information was not enough to assure an intelligent waiver because appellant must also be informed of the extent of his appellate rights.

We are constrained to disagree. The appellant misinterprets the law of Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). The Wilson court did not require an on-the-record demonstration of the full import of the right of appeal and right to counsel; it merely suggested that such practice would be appropriate. The Wilson court remanded that case only for a determination of whether the Commonwealth could prove that the appellant was aware of his right to appellate counsel. It had already found that the appellant was aware of his right to appeal. The court concluded:

If the hearing court finds that the Commonwealth is able to demonstrate that appellant knew of his right of appellate counsel, it shall enter an order denying relief. Id., 430 Pa. 6, at 241 A.2d 763.

The appellant misconstrues the holding of Commonwealth v. Maloy, 438 Pa. 261, 264 A.2d 697 (1970), as well. Maloy, supra, held only that an appellant’s waiver of appellate rights is intelligently entered where he is aware of his right to appeal and his right to have the appeal generated by a free, court-appointed counsel. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Appellant, himself, admits being informed of these two rights by the trial court.

Order of Court, dated December 5, 1978, is hereby affirmed. Appellant is denied the right to file a petition to withdraw his guilty plea and to file a direct appeal. A second hearing on his Petition for Post Conviction Relief of June, 1978 is not granted.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

The majority admits that “the guilty plea colloquy merely made a reference to the charges of robbery and murder. No attempt was made to define these offenses and inform the appellant of their nature and legal elements.” At 75. Nevertheless, relying on an “alternative method[] of establishing the factual basis of the charges,” at 75, the majority affirms appellant’s conviction. The majority justifies its decision by characterizing case law to the contrary as “unnecessarily restrictive.” Id. I am unable to subscribe to this reasoning.

In the majority’s view, “Certain colloquies, not satisfying the standards of Pennsylvania, Ingram, and Minor, supra, provide alternative methods of establishing the factual basis of the charges, and, consequently, assure a knowing, intelligent and voluntary plea.” At 75. This statement is a non sequitur, which subordinates logic to a desired result. It does not follow—as the majority’s “consequently” suggests—that a plea was understanding^ and voluntarily tendered merely because there was a factual basis for its entry. Rule 319’s mandate that “the plea [must be] understanding^ and voluntarily tendered” is designed to insure that the accused understands the constitutional rights he is waiving by entering a plea of guilty. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970) (accused tendering guilty plea “stands as a witness against himself and is shielded by the Fifth Amendment from being compelled to do so. . . [and plea is a] waiver of his right to trial before a jury or a judge.”); Commonwealth v. Ammon, 275 Pa.Superior Ct. 324, 331 n. 4, 418 A.2d 744, 747 n. 4 (1980) (“guilty plea involves the surrender of a panoply of constitutional rights”); Commonwealth v. Landi, 280 Pa.Superior Ct. 134, 141, 421 A.2d 442, 445 (1980) (guilty plea is a waiver of “a number of significant constitutional rights”). To be sure, it is important to demonstrate on the record that a factual basis for the plea exists. But that demonstration is only a part of the larger demonstration that the plea was understandingly and voluntarily tendered. It may never serve, as the majority would have it serve, as a replacement for the rest of the demonstration.

In addition to depending on a non sequitur, the majority opinion ignores precedent. As an intermediate appellate court, “we are not free ... to overrule the decisional law enunciated by the Supreme Court of Pennsylvania,” Hillbrook Apartments, Inc. v. Nyce Crete Co., 237 Pa.Superior Ct. 565, 573, 352 A.2d 148, 152 (1975), and declare cases such as Ingram and Minor “unnecessarily restrictive,” while choosing a course we consider “more prudent.” At 75. Besides, the case on which the majority relies to chart its “more prudent” course, Commonwealth v. Belgrave, 445 Pa. 311, 285 A.2d 448 (1971), is not only pre-Ingram, but it supports a proposition contrary to that for which it is cited, for there the court required an “independent, judicial conclusion that the accused understands and admits the specific acts constituting the crime[s] charged.” Id., 445 Pa. at 317-18, 285 A.2d at 451 (emphasis in original).

If we were to abide by precedent, instead of charting our own course, we should conclude, I suggest, that the order of the lower court ought to be reversed and the case remanded with instructions to grant appellant leave to withdraw his guilty plea. I offer this conclusion quite aware of the unattractiveness of this case; it is, indeed, just the sort of case that invites one to ignore precedent. But the law is not worth much if we follow it only when it leads where we want to go.

-1-

On July 23, 1973, appellant pleaded guilty to murder and robbery, and after a hearing, was sentenced to life imprisonment for murder and five to ten years imprisonment for attempted robbery, the sentences to be served concurrently. N.T. 7/23/73, 72. On June 9, 1978, appellant filed a PCHA petition in which he alleged, inter alia, that his “[gjuilty plea was not knowingly and intelligently made” and that his “counsel was totally ineffective” and “had deliberately let [his] appeal rights expire knowing [he] demanded a direct appeal.” On December 5, 1978, after a hearing, the lower court dismissed the petition, without an opinion. No timely appeal from this order was filed.

On March 28, 1980, appellant filed, pro se, a “Motion in Application for Leave to Withdraw Guilty Plea” and an “Application for Leave to File and Proceed in forma pauper-is and for Appointment of Counsel.” On June 30, 1980, he filed a second PCHA petition, in which he made substantially the same allegations as he had in his first PCHA petition, and also alleged that although requested to do so, his counsel had failed to take an appeal from the order of December 5, 1978, by which the lower court had denied his first PCHA petition. A hearing was held at which the Commonwealth stipulated that in fact appellant had been denied his right to appeal, and on the basis of this stipulation the lower court, by order of November 17, 1980, granted appellant leave to file an appeal nunc pro tunc from the order of December 5, 1978. The appeal now before us was then filed.

In response to the appeal, the lower court, on February 25, 1981, filed an opinion explaining why it had entered its order of December 5, 1978. In its opinion, the lower court said:

A petitioner who fails to attack his guilty plea on direct appeal waives his right to make the allegation in a Post Conviction petition. In Commonwealth v. LaSane, [479 Pa. 629] 389 A.2d 48 (1978) and Commonwealth v. Porter, [256 Pa.Super. 163] 389 A.2d 651 (1978), the Supreme and Superior Courts of Pennsylvania held that because the validity of a guilty plea is cognizable on direct appeal, the issue is waived and cannot be raised in Post Conviction proceedings unless the petitioner establishes either the existence of extraordinary circumstances justifying the failure to raise the issue or he rebuts the presumption that his failure to appeal was a knowing and intelligent one. In the case at bar, petitioner failed to establish either of these matters which would remove the presumption of waiver.

Slip op. at 2.

This explanation is not acceptable. Appellant’s failure to file a direct appeal from the judgments of sentence entered on his guilty plea might in some circumstances have operated as a waiver of his right to challenge his plea, and thus have precluded his later PCHA attack on the plea. But that is not true if the failure to file a direct appeal was due to extraordinary circumstances. In his June 9, 1978, PCHA petition appellant alleged that his failure to file a direct appeal was due to extraordinary circumstances. For he alleged that his counsel at the guilty plea proceeding was ineffective, and the ineffectiveness of counsel is an extraordinary circumstance that, if proved, precludes waiver. Commonwealth v. Allen, 278 Pa.Superior Ct. 501, 420 A.2d 653 (1980). It is therefore necessary to decide whether appellant is right that his guilty plea counsel was ineffective. The most convenient way to make this decision is to decide whether appellant’s guilty plea was voluntarily and intelligently entered, and then, if it was not, decide whether appellant’s guilty plea counsel was ineffective for not challenging the colloquy preceding the plea.

2-

Appellant argues, in essence, that his guilty plea was not voluntarily and intelligently entered because the colloquy preceding it fell short of the requirements set forth in Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). Since appellant’s guilty plea was entered in 1973, before Ingram, this argument requires us to consider Ingram’s retroactivity.

Ingram’s retroactivity has been the issue in two recent, and conflicting, Supreme Court decisions. In Commonwealth v. Minor, 467 Pa. 230, 356 A.2d 346 (1976), the Court held that Ingram should be retroactively applied because it did not change the law regarding guilty plea colloquy requirements. The Court said: “In Pennsylvania, even before we decided Ingram, it has been the law that an understanding of the elements of the offense charged is necessary to an intelligent, knowing and voluntary guilty plea.” Id., 467 Pa. at 233, 356 A.2d at 347.

In Commonwealth v. Minarik, 493 Pa. 573, 427 A.2d 623 (1981), the Court again considered the issue of Ingram’s retroactivity. There, the defendant was told during his guilty plea colloquy, which had taken place in 1971, that:

he had been charged with' murder and voluntary manslaughter; that the purpose of the colloquy was to determine whether he understood the meaning of the charges; that he had been charged with unlawfully and feloniously causing the death of another; that by pleading guilty he was admitting that he was guilty of murder of the second degree; that the Commonwealth had the burden of proving that the murder was wilful, deliberate and premeditated in order to raise the crime to murder of the first degree; and that he had the burden of introducing evidence to lower the degree of the crime to voluntary manslaughter. In response to the judge’s questioning, appellee admitted having killed the victim; indicated that he understood everything the judge had told him; stated that he had had adequate opportunity to meet with his counsel and that he was pleased with the representation that counsel provided; and acknowledged that his guilty plea was the product of his own free will. At the conclusion of the colloquy, when the judge asked appellee whether he wished to say anything further, appellee responded simply: “My plea was entered voluntarily by myself. I understand.”

Id., 467 Pa. at 575, 427 A.2d at 624.

The lower court granted the defendant’s petition to withdraw his guilty plea. The Supreme Court reversed. Three justices—Justices LARSEN, FLAHERTY, and KAUFFMAN—would have held the colloquy sufficient despite the fact that it fell short of the requirements of Ingram because the defendant was not informed of the elements of the offense of murder. They said that “although the court did not inform appellee of the specific legal elements of the crime charged, the on-the-record colloquy shows that the plea was made voluntarily, knowingly and intelligently, and with a full understanding of the nature of the charges.” Id., 467 Pa. at 577, 427 A.2d at 625. In their view, Ingram did establish a new rule of criminal procedure, and Minor should be overruled. Id., 467 Pa. at 579, 427 A.2d at 626-27. But this view did not carry the day, for the other three Justices—Chief Justice O’BRIEN, Justice ROBERTS, and Justice NIX—would have held that the defendant’s challenge to his guilty plea was untimely and that the issue of Ingram’s retroactivity was therefore not before the Court, and “there [was] no reason for the opinion of Mr. Justice LARSEN to discuss, let alone attempt to overrule, this Court’s holding in Commonwealth v. Minor, supra.Id., 467 Pa. at 583, 427 A.2d at 628. Further, they said:

The opinion of Mr. Justice Larsen, which commands the votes of only three of six justices, does not reflect the view of a majority of the Court. Where, as here, the Court is equally divided on whether a previous holding should be overruled, that holding retains its full force and effect as existing law. Thus, the holdings of Commonwealth v. Minor and cases applying Minor are undisturbed and remain controlling law. See Neil v. Biggers, 409 U.S. 188, 192, 93 S.Ct. 375, 378-79, 34 L.Ed.2d 401 (1972) (equally divided court not entitled to precedential weight); Ohio ex rel. Eaton v. Price, 364 U.S. 263, 264, 80 S.Ct. 1463, 1464, 4 L.Ed.2d 1708 (1960) (same); Commonwealth v. Holly, 483 Pa. 371, 375, 396 A.2d 1215, 1217 (1979) (judgment of equally divided Court not final for purposes of Post-Conviction Hearing Act); Commonwealth v. Rightnour, 469 Pa. 107, 110, 364 A.2d 927, 928 (1976) (subject matter in dispute undisturbed where “no majority can be mustered to do otherwise”).

Id., 467 Pa. at 582, 427 A.2d at 628.

It may be that in some future case a majority of the Justices will agree that Minor should be overruled. But in the meantime we must follow it.

One issue remains, before the validity of appellant’s guilty plea may be appraised in the light of Ingram and Minor: it is necessary to consider whether appellant has waived his right to challenge the plea. As just indicated, in Minarik the Chief Justice, Justice ROBERTS, and Justice NIX would have held that the argument that the plea was invalid was waived. They said:

The present petition to withdraw a guilty plea entered in 1971 in no respect alleges either that appellee [the defendant] was unaware of his appellate rights or that counsel was ineffective for failing to pursue appellee’s desire to challenge the plea. Thus, the petition, filed six years after plea and sentence, is untimely, and should have been dismissed by the trial court. See Commonwealth v. Miller, 495 Pa. 177, 433 A.2d 1 (1981).

Id., 467 Pa. at 583, 427 A.2d at 628-29.

Here, however, there was no waiver. For appellant did allege that his plea was not intelligently entered and that his guilty plea counsel was ineffective in failing to file an appeal challenging the validity of the plea.

-3-

The entire colloquy preceding appellant’s guilty plea was as follows:

Q. Mr. Thompson, do you understand that you have been charged on two indictments, one robbery, and the other indictment, murder?
A. Yes.
Q. Do you understand what we mean by robbery?
A. Yes, sir.
Q. Of course, you understand what is meant by murder? A. Yes, sir.
Q. Taking the life of another?
A. Yes, sir.
Q. And you are guilty of these charges, are you?
A. Yes, sir, I am.
Q. And you are pleading guilty of your own free will? A. Yes, sir.
Q. Have any promises, threats or inducements been made to you to get you to plead guilty?
A. No, sir, have not.
Q. You understand you have a right to a jury trial?
A. Yes, sir.
Q. Do you understand that if you wish a jury trial you would have to be—the evidence would have to be presented by the Commonwealth to prove you guilty beyond a reasonable doubt?
A. Yes, sir.
Q. You understand all of that?
A. Yes, sir.
Q. In view of all of that, it is your wish to plead guilty to these two charges?
A. Yes, sir.
JUDGE LEWIS: All right.
BY MR. VILLAGE:
Q. Mr. Thompson, how old are you, sir?
A. Twenty-eight.
Q. How far did you go in school?
A. Tenth grade.
Q. Do you read and write the English language?
A. Yes, sir.
Q. I discussed the facts of this case with you?
A. Yes.
Q. On numerous occasions at the jail?
A. Correct.
Q. Now, sir, the Judge asked you if any threats or promises were made to you to induce you to sign this guilty plea and you answered the Judge no.
A. Correct.
Q. I did, however, explain to you, did I not, that I had discussed this case with the District Attorney in this particular case, Mr. Geary, and Mr. Geary and I entered into what is called a plea bargain, and that is that in view of the fact that you are pleading guilty to charges generally, Mr. Geary has agreed to recommend to the Judge that any sentences with regard to the robbery charge be concurrent with the sentence as regards the homicide charge.
A. Yes, sir.
Q. Do you understand this?
A. Yes, sir.
MR. VILLAGE: Is that a correct statement of our agreement?
MR. GEARY: Yes, sir. Mr. Village accurately portrayed our discussions to this point.
JUDGE LEWIS: We will accept the plea bargain. MR. VILLAGE: Thank you.

N.T. 7/23/73, 3-6.

A physician for the Coroner’s office then started to testify, but after a few questions had been put to him, the lower court interrupted, as follows:

JUDGE LEWIS: Just a minute. There.is one thing I neglected to ask the defendant, and that was whether or not he understood the sentence that could be given him. We ought to put that in.
(Defendant comes forward with counsel.)
JUDGE LEWIS: I neglected to ask you, Mr. Irwin, or alias Michael Thompson—
MR. VILLAGE: This is James Michael Thompson.
JUDGE LEWIS: I neglected to ask you if you realized the sentence that could be given you here in pleading guilty. I want you to understand that as far as the murder case goes, the maximum sentence to be given you would be life imprisonment. As far as the robbery case goes it would be a maximum sentence of 20 years. So, I want you to understand that before we go ahead with this guilty plea.
Do you understand that?
THE DEFENDANT: Yes, sir.
JUDGE LEWIS: Still you want to plead guilty?
THE WITNESS: Yes, sir.

N.T. 7/23/73, 7-8.

There can be no doubt—and the majority at least implicitly concedes—that under Ingram and Minor this colloquy was defective. The Court in Ingram said that:

We have often enunciated the principle that an adequate on the record colloquy under Rule 319(a) must include a demonstration “that the defendant understands the nature of the charges. . .. ” Commonwealth v. Campbell, 451 Pa. 465, 467, 304 A.2d 121, 122 (1973); Commonwealth v. Maddox, 450 Pa. 406, 408, 300 A.2d 503, 504 (1973); see also Commonwealth v. Belgrave, 445 Pa. 311, 317, 285 A.2d 448, 450 (1971). In order to demonstrate that a defendant possesses such understanding, he certainly must be told more than just that he has been charged with murder or robbery, for example. While such terms clearly connote some meaning to the layman, this meaning does not always embrace the basic legal elements of the crime.

455 Pa. at 203, 316 A.2d at 80.

And in Minor the Court said, after collecting cases:

These cases demonstrate that the defendant’s understanding of the nature and elements of the charges against him has long been an essential part of a valid guilty plea in Pennsylvania. In this respect Ingram cannot be said to be new law.

467 Pa. at 235, 356 A.2d at 348 (footnote omitted).

Nowhere in the colloquy did the lower court explain to appellant the elements of the crimes of murder or of robbery. Rather, it did precisely what Ingram and Minor forbid—it merely told appellant that he had been charged with murder and robbery. A plea of guilty of murder cannot stand where the elements of murder, including malice, have not been explained. Commonwealth v. Brown, 269 Pa.Superior Ct. 498, 410 A.2d 366 (1979). See, Commonwealth v. Hare, 486 Pa. 123, 404 A.2d 388 (1979); Commonwealth v. Tabb, 477 Pa. 115, 383 A.2d 849 (1978); Commonwealth v. Holmes, 468 Pa. 409, 364 A.2d 259 (1976). Nor can a plea of guilty of robbery stand where the elements of robbery have not been explained. Commonwealth v. Allen, supra (theft); Commonwealth v. Morris, 271 Pa.Superior Ct. 362, 413 A.2d 708 (1979) (robbery); Commonwealth v. Davis, 267 Pa.Superior Ct. 118, 406 A.2d 547 (1979) (robbery). See also Pa.R.Crim.P. 319.

Moreover, the Supreme Court has recently reaffirmed Ingram’s vitality and its applicability to cases such as this. In Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982), the Court held that Ingram’s requirement that the elements of the crime charged be explained did not apply where the defendant entered his plea of guilty after the Commonwealth had rested its case in chief. The Court reasoned that the colloquy need not inform the defendant of the elements of the crime charged in such a situation because the- trial itself was a graphic explanation of this information. In reaching this conclusion, the Court specifically stated that it “[did] not by today’s holding intend to abolish the requirement laid down in Ingram that the elements of the crime must be explained on the record to the defendant prior to the acceptance of a guilty plea. . . . ” 498 Pa. 342, 446 A.2d 591. The Court also explained that the Ingram requirement is especially important where, as here, the defendant does not have “finite knowledge of the evidence available against him.” Said the Court:

If the stated purpose for conducting a colloquy is to “demonstrate that deféndant’s action is taken voluntarily and intelligently,” Commonwealth v. Ingram, 455 Pa. at 200, 316 A.2d at 78, it must be assumed that some weighing of alternatives, • going to trial versus entering a plea, occurs. Why then is it paramount that the elements of a crime be explained, on the record, to the defendant? In the ordinary case, where the defendant tenders a plea of guilty from a bargaining position which is devoid of finite knowledge of the evidence available against him, concern with an explanation -of the elements of the crime is of greater significance than in the case where the defendant, as here, enters the plea after the Commonwealth’s case has been presented. Presumably, an explanation of the elements enables the defendant to assess the Commonwealth’s ability to prove that which he is admitting in pleading guilty by comparing the elements to the evidence he knows or has reason to believe the Commonwealth has available. Thus, he determines whether the prosecution has the ability to convict should he instead choose to exercise his right to trial.

498 Pa. 342, 446 A.2d 591.

It is now in order to consider whether appellant’s guilty plea counsel was ineffective. Appellant argues that counsel was ineffective because he “not only failed to remedy the inadequacy of the Trial Court’s colloquy, but also failed to take a direct appeal or seek to withdraw the guilty plea.” Brief for Appellant at 16.

The lower court dealt only with the second of appellant’s arguments. It said:

At the hearing on the Post Conviction Hearing Act Petition, petitioner testified that his trial attorney told him that a direct appeal from his plea of guilty would automatically be taken. Trial counsel stated that he had no recollection of so advising the petitioner and, further, that such advice, under the circumstances of the case, would have been unlikely. Petitioner, although he knew that the direct appeal would have to be taken within 30 days, made no attempt to contact his attorney or the Court until 5 years after his plea of guilty, when he filed the instant Post Conviction Hearing Act Petition. Considering all the circumstances of this case as adduced at the Post Conviction Hearing, the Court concluded that the petitioner had no desire to take a direct appeal from his plea of guilty.

Slip op. at 1-2.

I am not persuaded by this reasoning. In Commonwealth v. Allen, 278 Pa.Superior Ct. 501, 420 A.2d 653 (1980), the Commonwealth argued that counsel should not be found ineffective for failing to appeal a defective guilty plea colloquy because the defendant had not asked him to do so. Rejecting this argument, we said:

Trial counsel was responsible for protecting appellant’s rights at the guilty plea hearing by ensuring that his guilty plea colloquy was complete. Having failed in this duty, counsel was required to inform appellant that the colloquy was fatally defective; that he had the right to petition the lower court to withdraw his pleas; and that if the lower court refused his petition, he had a meritorious claim for appeal.

278 Pa.Superior Ct. at 508, 420 A.2d at 656.

Thus, it is immaterial whether or not appellant “had no desire” to take an appeal. His counsel had a duty to inform him that the colloquy was defective, that he could appeal, and that on appeal, he could challenge the colloquy as defective. Although there was conflicting evidence at the PCHA hearing regarding whether counsel had told appellant that he could appeal or that appeal was “automatic,” N.T. 12/5/78, 6-9, there was no evidence that appellant was ever told that his colloquy was defective. On the contrary, his counsel testified that he did not believe there were any grounds for appeal. Id. 17. By this testimony, counsel himself demonstrated his ineffectiveness. See, Commonwealth v. Zakrzewski, 485 Pa. 532, 403 A.2d 516 (1979) (guilty plea; colloquy did not explain elements of murder; held, counsel ineffective for failing to advise that colloquy was defective and plea therefore invalid); Commonwealth v. Babel, 248 Pa.Superior Ct. 496, 375 A.2d 350 (1977) (guilty plea; colloquy did not explain elements of burglary; held, counsel ineffective for failing to take direct appeal.)

We should reverse the lower court’s order of December 5, 1978, and remand with instructions to permit appellant to withdraw his guilty plea and proceed to trial.


author: CAVANAUGH, Judge:

text:
    448 A.2d 83
    Robert M. SUPLEE, Appellant, v. Charles L. LEEDOM, Varrell D. Leedom and Jack Burgess, Jr., Intervenor.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1981.
    Filed July 16, 1982.

      Manya L. Kamerling, Philadelphia, for appellant.
    John W. Wellman, Media, for Leedom, appellees.
    Robert B. Surrick, Media, for Burgess, Jr., intervenor.
    Before HESTER, CAVANAUGH and SHERTZ, JJ.
   CAVANAUGH, Judge:

We are asked in this appeal to review an order granting partial summary judgment against plaintiff-appellant Robert Suplee and dismissing the remaining counts of the complaint filed by him for lack of personal jurisdiction over defendant-appellees Charles and Varrell Leedom.

Suplee filed a complaint in equity on October 17, 1980, requesting specific performance of an agreement of sale and compensatory and punitive damages. The agreement, entered into in August, 1978, involves a sale by the Leedoms to Suplee of a parcel of land located in Delaware County, Pennsylvania. The Leedoms filed preliminary objections to the complaint, demurring to the count for specific performance on the basis of laches and claiming that the court lacked personal jurisdiction over them insofar as the request for monetary damages was concerned. The Leedoms have at all times relevant to this case been residents of the state of Florida.

Pursuant to a stipulation of the parties, Jack Burgess was permitted to enter the suit as an intervenor in March, 1981. The Leedoms and Burgess filed separate motions for summary judgment and on April 3,1981, the lower court entered an order granting partial summary judgment, decreeing that Suplee was not entitled to specific performance of the agreement of sale, and also dismissing that portion of the complaint requesting monetary damages for lack of jurisdiction. Suplee has appealed from that order and we now reverse.

We note initially that:

It is settled law in the Commonwealth that one who moves for a summary judgment has the burden of showing that there is no genuine issue as to any material fact. Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). The court should accept as true all well pleaded facts and any admissions on file, but should resolve any doubts as to the existence of a genuine issue of a material fact against the moving party. Schacter v. Albert, supra. On appeal from a summary judgment, this court must examine the record in a light most favorable to the appellant. Speyer, Inc. v. Goodyear Tire & Rubber Company, 222 Pa.Super. 261, 295 A.2d 143 (1972).

Ammerman v. Lush, 236 Pa.Super. 231, 233, 345 A.2d 271, 272 (1975).

The relevant facts in this case are as follows. Suplee and the Leedoms entered into an agreement of sale for certain real estate with settlement to be held on or before September 30, 1978. By agreement, settlement was extended to December 30, 1978. Suplee secured a title report which indicated that an additional party would have to join in the deed in order to convey marketable title. He requested that the date for settlement be continued until June 1, 1979, in order to allow time to resolve the title problem. The Leedoms responded by notifying Suplee on January 3, 1979, that they were unilaterally voiding the agreement. Between January of 1979 and March of 1980, Suplee attempted to ascertain whether the signatures necessary to provide good title could be obtained.

In March, 1980, Suplee sent to the Leedoms a copy of an opinion letter from an attorney regarding the title in question and again requested that the Leedoms attempt to resolve the title problem. Later that month Suplee traveled to the Leedoms’ home in Florida to discuss the resolution of the title problem and consummation of the sale. Evidently, that meeting accomplished nothing. On or about August 12, 1980, Jack Burgess, the intervenor in this case, entered into an agreement of sale to purchase the subject property from the Leedoms.

Suplee has alleged by way of affidavit that on or about August 1, 1980, several days before Burgess entered into the agreement with the Leedoms, he (Suplee) received a telephone call from an attorney representing Mr. Burgess, in which the attorney inquired about the availability of a parcel of land adjoining the one which is the subject of this suit. During that conversation, Suplee advised the attorney of his equitable interest in the subject premises and of his intent to litigate in order to enforce his agreement of sale with the Leedoms. Burgess, on the other hand, filed an affidavit stating that this phone call took place after August 12, 1980, and that he had no knowledge of Suplee’s interest in the property or of his intent to litigate at the time he entered into an agreement with the Leedoms.

We believe that these conflicting affidavits indicate the existence of a genuine issue of material fact relevant to a determination of laches and that summary judgment should not, therefore, have been entered.

The Pennsylvania Supreme Court recently stated that: “While the defense of laches may be raised by preliminary objections, laches should never be declared unless the existence thereof is clear on the face of the record.” Estate of Marushak, 488 Pa. 607, 610, 413 A.2d 649, 651 (1980). Moreover,

The application of the equitable doctrine of laches does not depend upon the fact that a certain definite time has elapsed, but whether, under the circumstances of the particular case, the complaining party is guilty of want of due diligence in failing to act to another’s prejudice.

Id., 488 Pa. at 610, 413 A.2d at 651.

The Leedoms and Burgess claim that due to the rights in the subject property acquired by Burgess, the status quo can not be restored and that this in itself is sufficient to defeat Suplee’s claim for specific performance. They rely on two cases to support this proposition, Wilson v. King of Prussia Enterprises, Inc., 422 Pa. 128, 221 A.2d 123 (1966) and Dorsch v. Jenkins, 243 Pa.Super. 300, 365 A.2d 861 (1976). In both of those cases, however, third parties had, during a period of delay or inaction on the part of the plaintiff, acquired rights in the subject property without any notice of the claims of the plaintiff. Thus the court, in both of those cases, referred to the “innocent third parties.” It is significant that the lower court in the instant case stated that at time he entered into the agreement of sale with the Leedoms, “Mr. Burgess had no knowledge of any outstanding agreement of sale executed by Charles D. Leedom and specifically the agreement of sale upon which the plaintiff is seeking relief in this case.” Lower court opinion at 2. The court referred to Mr. Burgess as “an innocent third party.” Supplemental opinion at 3.

According to the affidavit filed by Suplee, Burgess did have notice of the prior agreement of sale between Suplee and the Leedoms and therefore he is not an innocent third party. The resolution of this factual dispute may well be a significant factor in determining whether Suplee “is guilty of want of due diligence in failing to act to another’s prejudice.” Marushak, supra.

We conclude that the lower court erred in finding that there was no genuine issue of material fact. The parties should be permitted to produce evidence at trial on the issue of whether Suplee’s claim for specific performance is barred by the doctrine of laches.

Suplee also claims that it was error for the lower court to dismiss, for lack of personal jurisdiction, the counts of his complaint seeking monetary damages. The Leedoms admit that the court has jurisdiction over the land which is the subject of this suit pursuant to Pa.R.C.P. No. 1503(a). Under the same rule, a party will be personally bound by a judgment, order, or decree if he “appears or otherwise submits himself to the jurisdiction of the court.” Since we have determined that the lower court erred in entering summary judgment, the Leedoms must appear and defend the claim on the merits, thus submitting themselves to the jurisdiction of the court, or suffer a default judgment. If they choose to appear, they will be bound by any order entered with regard to the ancillary claim for monetary damages.

Order granting summary judgment as to count one and dismissing counts two and three of appellant’s complaint is vacated. Appellant’s complaint is reinstated and the case is remanded for further proceedings. We do not retain jurisdiction.

SHERTZ, J., did not participate in the consideration or decision of this case.

      . In view of our disposition of the above claims, we need not address appellant’s additional argument that the lower court failed to act in accordance with its own local rules by granting summary judgment before he had an opportunity to respond.


author: WICKERSHAM, Judge:

text:
    448 A.2d 86
    Michael WILLIAMS, Appellant, v. KEYSTONE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1982.
    Filed July 16, 1982.

      James L. Womer, Philadelphia, for appellant.
    Mark Robert Bosniak, Philadelphia, for appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   WICKERSHAM, Judge:

The issue in this appeal involves the construction of the statute of limitations provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act. In this case, appellant, Michael Williams, instituted an action against appellee, Keystone Insurance Company (hereinafter Keystone), for refusing to provide him with basic loss benefits after his claim for such benefits had been assigned to Keystone under the assigned claims plan of the No-Fault Act. Keystone filed a motion for summary judgment raising a statute of limitations defense, the lower court granted the motion. For the reasons indicated herein, we reverse the order of the lower court.

In Petraglia v. American Motorists Insurance Company, 284 Pa.Super. 1, 3, 424 A.2d 1360, 1361 (1981), aff’d per curiam, 498 Pa. 33, 444 A.2d 653 (1982), we stated that:

Summary judgment ‘shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ Pa.R.Civ.P. 1035(b). Summary judgment can only be granted in the clearest of cases. See, e.g., Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). Additionally, the evidence must be viewed in the light most favorable to the non-moving party and all doubts must be resolved against the moving party. See Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Just v. Sons of Italy Hall, 240 Pa.Super. 416, 368 A.2d 308 (1976).

Viewed according to the standards set forth in Petraglia, the facts in this case may be summarized as follows.

On December 24, 1975, Michael Williams was traveling as a passenger in a pickup truck in the City of Philadelphia when the pickup truck collided with a bus. As a result of the collision, Williams sustained severe lacerations to his face and scalp, a broken nose and injuries to his right eye, chest and back. On November 28, 1977, Williams’ attorney wrote a letter to the assigned claims bureau in which he represented that neither Mr. Williams nor the car in which he was a passenger were insured at the time of the accident, and that he would like to make a claim with the assigned claims bureau for Mr. Williams’ medical bills and lost wages. Thereafter, Williams’ claim was assigned to Keystone. Keystone refused the claim and this action was commenced on September 11, 1978.

Keystone contends that Williams’ cause of action is barred by the statute of limitations provisions set forth in section 106(c)(1) of the No-Fault Act. Section 106(c)(1) provides in pertinent part that:

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

Keystone notes that under section 106(c)(1), the limitations period commences when the victim suffers the “loss.” “Loss” is defined in section 103 of the No-Fault Act as “accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to, allowable expense, work loss, replacement services loss, and survivor’s loss.” Keystone contends that Williams knew on the date of the accident, December 24, 1975, that he had suffered “loss” as a result of the accident, and, therefore, an action commenced more than two years after that date should be barred.

We cannot accept Keystone’s interpretation of the No-Fault Act. In construing the language of the No-Fault Act we are aided by a statement of legislative findings and purposes. The General Assembly found that “the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways, in intrastate commerce, and in activity affecting intrastate commerce is essential to the humane and purposeful functioning of commerce”. 40 P.S. § 1009.102(a)(3). It therefore declared its purpose “to establish ... a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.” 40 P.S. § 1009.102(b). Additionally, the Pennsylvania Supreme Court recently stated in Allstate Insurance Company v. Heffner, 491 Pa. 447, 455, 421 A.2d 629, 633 (1980), aff’g 265 Pa.Super. 181, 401 A.2d 1160 (1979), that:

Historically, the courts of this Commonwealth have routinely followed this spirit and found coverage for the insured in close or doubtful insurance cases. The tendency has been that if we should err in ascertaining the intent of the legislature or the intendment of an insurance policy, we should err in favor of coverage for the insured.

We recently considered the issue of when the limitations period set forth in the pertinent portion of section 106(c)(1) commences in Myers v. USAA Casualty Insurance Company, 298 Pa.Super. 366, 444 A.2d 1217 (1982). Myers involved an action by an injured plaintiff against his own no-fault insurance carrier. In Myers, we stated that:

The cause of action in the instant case is predicated upon an alleged breach of the insurer’s contractual duty to pay no-fault benefits. At common law, the statute of limitations in an action for breach of contract does not begin to run until the occurrence of the breach. A. J. Aberman, Inc. v. Funk Building Corp., 278 Pa.Super. 385, 420 A.2d 594 (1980). This is consistent with the general rule that a statute of limitations does not begin to run until the accrual of the cause of action. Pennsylvania Turnpike Commission v. Atlantic Richfield Company, 31 Pa.Commonwealth Ct. 212, 375 A.2d 890 (1977), affirmed 482 Pa. 615, 394 A.2d 491 (1978). It should be recalled that this was the analytical basis for our opinion in Bond v. Gallen, [292 Pa.Super. 207, 437 A.2d 7 (1981) ] in which we held that the statute of limitations in tort actions against third party tortfeasors does not begin until the right to such actions accrues.
Section 106(c)(1) of the No-Fault Act provides that the action must be commenced no later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident. “Loss” is defined in the general definition section of the No-Fault Act, section 1009.103 as follows:
‘Loss’ means accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to, allowable expense, work loss, replacement services loss, and survivor’s loss.
We believe that “loss” as that term is defined in the No-Fault Act must be equated with the common law concept of breach of contract because until such breach occurs, the claimant does not know that he has incurred any economic detriment. Moreover, until a breach has occurred, no cause of action based on contract exists and, as we concluded in Bond, to hold that the limitations period begins to run prior to the existence of a cause of action would be unjust and unnecessary.

At 1221.

Unlike Myers, which involved an action against an insurance carrier which owed a contractual duty to the injured plaintiff, the instant case involves an action against an insurance carrier which was assigned the injured plaintiff’s claim under the assigned claims plan. Despite this difference, however, we believe that our rationale in Myers is equally applicable to this case.

The cause of action in Myers was based on an alleged breach of a duty created by contract, and the cause of action here is based on an alleged breach of a duty created by statute. In Myers, we held that the limitation period does not commence until the cause of action accrues, and we reach the same holding now.

We believe that a cause of action against an insurance carrier for failing to pay a claim which was assigned to it under the assigned claims plan does not accrue until the alleged breach of the carrier’s statutory duty to pay such a claim occurs. It is evident that no cause of action against Keystone existed on December 24, 1975, the date of the accident, as Keystone suggests. At that time Keystone clearly had not been assigned plaintiff’s claim and, therefore, owed plaintiff no duty. Obviously Keystone was not assigned the claim until after Williams notified the bureau on November 28, 1977 that he had an assigned claim! Williams filed the instant action against Keystone on September 11, 1978, less than two years after November 28, 1977, the earliest conceivable date upon which a breach could have occurred. Hence his suit was timely. Accordingly, we reverse the order of the lower court.

Order reversed.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq. (Supp. 1981-82). Hereinafter referred to as the No-Fault Act or the Act.

      . Section 108 of the No-Fault Act establishes an assigned claims plan under which an assigned claims bureau consisting of all insurers offering no-fault motor vehicle insurance in the Commonwealth is created. The purpose of the assigned claims plan is to provide basic loss benefits for victims or survivors of deceased victims who are not covered by no-fault motor vehicle insurance. Under the assigned claims plan, such claims are assigned to a participating insurer which shall provide basic loss benefits.

      . Keystone points out that Williams did not complete a formal application for basic loss benefits under the assigned claims plan until July 14, 1978. We believe that this is irrelevant, however, because the time limitation for presenting a claim under the assigned claims plan, found at section 108(c)(1) of the Act, only requires the claimant to notify the assigned claims bureau of his claim within a specified time. Williams’ letter to the assigned claims bureau dated November 28, 1977 constituted such notification. We observe that this notification to the bureau was timely under section 108(c)(1) of the Act.


author:
BROSKY, Judge:
      CIRILLO, Judge,

text:
    448 A.2d 89
    COMMONWEALTH of Pennsylvania v. Ulysses GILLIAM, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 13, 1980.
    Filed July 16, 1982.

      Robert I. Segal, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and HOFFMAN, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania is sitting by designation.

   BROSKY, Judge:

On August 14, 1978, Ulysses Gilliam, appellant, was convicted at a bench trial of robbery, criminal conspiracy, simple assault, and possession of an instrument of crime. Post-verdict motions were filed and denied. Gilliam was sentenced to concurrent terms of imprisonment of four to ten years for robbery, four to ten years for criminal conspiracy, one to two years for simple assault, and two to five years for possession of an instrument of crime. Gilliam appeals, contending the Commonwealth failed to bring him to trial pursuant to Pennsylvania Rule of Criminal Procedure 1100, and that, accordingly, he should be discharged. We affirm the decision of the trial court.

Gilliam and his codefendant, Bernard Carr, had a complaint filed against them on November 16, 1977. Thus, under Rule 1100, trial was to commence by May 14, 1978. On January 12, 1978, trial was scheduled to begin. The Commonwealth, Gilliam and defense counsel all appeared, however, defense counsel requested a continuance to enable the defense to obtain the notes of testimony from the preliminary hearing. A continuance was granted. Trial was set for February 22, 1978. On February 22, 1978, Gilliam appeared for trial but his counsel did not. The court continued the case until March 21, 1978.

On March 21, 1978, Gilliam’s and Carr’s cases were listed to be tried jointly. A pretrial hearing on Carr’s motion to suppress evidence was heard before the trial court. The suppression motions were denied, however, the suppression hearing judge recused himself, sun sponte, from trial. Trial was then set for April 19, 1978. On April 19, 1978, Gilliam and Carr both failed to appear for trial because they were on trial elsewhere and accordingly unavailable. A new trial date was set for May 11, 1978. On May 11, 1978, the complainant failed to appear and a new trial date was set for June 22, 1978. The next day, May 12, 1978, the Commonwealth filed a petition for an extension under Rule 1100(c). On June 9, 1978, the trial court granted an extension and set a new trial date of June 22, 1978. On June 22, 1978, Gilliam was on trial elsewhere and accordingly unavailable. A Rule 1100(c) petition requesting an extension was timely filed on June 23, 1978, and that petition was granted after a hearing held on July 27,1978. A new trial date was set for August 14, 1978. Trial commenced and ended on August 14, 1978.

Gilliam contends the Commonwealth did not take reasonable steps to assure the complainant would appear on May 11, 1978 and that, therefore, the trial court erred in granting an extension on June 9,1978. The record disclosed that on May 2, 1978, the Commonwealth attempted to serve a subpoena upon the complainant. Copies of the subpoena were left at every known address of the complainant.

In deciding whether the lower court properly granted the Commonwealth’s petition to extend, we must examine the record in light of the following principle:

The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c). Cf. Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Furthermore, in reviewing a hearing court’s ruling that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth and so much evidence, as fairly read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Mitchell, supra. Commonwealth v. Ehredt, supra 485 Pa. 191 at 194, 401 A.2d 358 at 360. [485 Pa. 191, 401 A.2d 358 (1979) ]
Commonwealth v. Freeman, 280 Pa.Super. 462, 421 A.2d 814, 817 (1980).
We also note that while it is clear that the unavailability of a Commonwealth witness is a relevant factor in determining whether an extension should be granted, see Commonwealth v. Brown, 252 Pa.Super. 365, 381 A.2d 961 (1977), it is just as clear that bare statements by the Commonwealth’s attorney of witness unavailability, without more, do not establish due diligence within the standards outlined in Pa.R.Crim.P. 1100(c). See Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Jackson, 269 Pa.Super. 249, 409 A.2d 873 (1979).

Commonwealth v. Schuster, 288 Pa.Super. 310, 315-316, 431 A.2d 1063, 1065-1066 (1981). We hold that the Commonwealth exercised due diligence in its attempts to serve a subpoena upon the complainant. The unavailability of the Commonwealth’s witness occurred despite its due diligence. Commonwealth v. Thompson, 292 Pa.Super. 108, 436 A.2d 1028 (1981), Commonwealth v. Brown, 251 Pa.Super. 179, 380 A.2d 436 (1977). Accordingly, the first 1100(c) extension was properly granted.

Gilliam contends further, that the trial court erred in computing the extension it granted until June 23, 1978. Thus, Gilliam argues that the second 1100(c) extension sought by the Commonwealth was not timely.

Gilliam asserts that he was not responsible for all the delays and as such the first 1100(c) extension should only have been granted until June 1, 1978. However, the record clearly indicates that each continuance was granted until the next available trial date and that Gilliam did not object to the continuances. Accordingly, Gilliam cannot now argue that the delays were improperly charged to his responsibility. Rule 1100(c) refers to the due diligence of the prosecuting attorney’s office. It does not refer to the judiciary. The fact that the trial dates were not available at an earlier time does not reflect upon the diligence of the Commonwealth. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). The Commonwealth was ready for trial at all times excepting on May 11, 1978. We have already held that the Commonwealth exercised due diligence to proceed to trial on that date. The Commonwealth made every attempt to bring Gilliam to trial at the earliest conceivable trial date. Thus, we are unable to hold that the Commonwealth did not exercise due diligence. Commonwealth v. Smith, 477 Pa. 424, 383 A.2d 1280 (1978), Commonwealth v. Bayani, 261 Pa.Super. 369, 396 A.2d 443 (1978).

Judgment of sentence affirmed, except the sentence for simple assault is vacated.

CIRILLO, J., files concurring opinion.

CIRILLO, Judge,

concurring:

I agree with the majority that appellant’s Rule 1100 claim is meritless and approve of most of the reasoning in its opinion. Nevertheless, I am compelled to briefly comment on appellant’s contention that the lower court improperly computed the length of the first extension permitted by Rule 1100.

Appellant maintains that the lower court improperly concluded that certain periods of delay were caused by him. He contends, therefore, that the length of the first extension was excessive, making the filing of the second petition for extension untimely. Even assuming that appellant did not cause all of the delays attributed to him by the lower court, his argument is without merit. The length of the extension is not determined solely by the length of delay which could have been excluded under the Rule. “The length of extension is restricted only by the requirement that the extension be ‘reasonable, limited. . . specifying the date or period within which trial shall be commenced.’ ” Commonwealth v. Gibson, 248 Pa.Super. 348, 352, 375 A.2d 132, 134 (1977), quoting Commonwealth v. Mayfield, 469 Pa. 214, 220, 364 A.2d 1345, 1348 (1976). I would find that the length of the first extension was reasonable. The extension order specified the date before which trial was to commence, and trial, in fact, was scheduled before the new run date. Therefore, the second petition for extension filed prior to the new run date was timely, and appellant was not denied his right to a speedy trial.

      . We note that Gilliam was convicted of simple assault, a lesser included offense of the robbery conviction. Simple assault merges with robbery for sentencing purposes. Commonwealth v. Bryant, 282 Pa.Super. 600, 423 A.2d 407 (1980). We are permitted to examine an issue of an illegal sentence sua sponte. Commonwealth v. Aeschbacher, 276 Pa.Super. 554, 419 A.2d 596 (1980). While the trial court sought to vacate the simple assault sentence in its opinion of November 13, 1979, it was without jurisdiction to do so. Pa.R. A.P. Rule 1701. We are satisfied that the sentence for simple assault was improperly imposed. Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980). Accordingly, we vacate the sentence imposed for simple assault.

      . Rule 1100(c) provides:
      (c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.

      . Moreover, in compliance with Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), the record shows the causes of the court delay and the reasons why the delay could not be avoided.

      . Gilliam’s codefendant, Carr, appealed to this court contending that his trial was not brought within the time constraints provided in Rule 1100. We affirmed the decision of the trial court which denied Carr’s Rule 1100(c) petition in Commonwealth v. Carr, 292 Pa.Super. 137, 436 A.2d 1189 (1981). We are convinced that the reasons stated in our decision in Commonwealth v. Carr, supra, are applicable to the instant case and provide further support for our decision to affirm the judgment of sentence entered by the trial court.

      . Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A.

      . The lower court and appellant refer to particular periods of delay as “chargeable” to either party. It should be noted that in Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), the Supreme Court expressly denounced the wording of Rule 1100 issues in this manner: “... [Sjuch terminology only serves to confuse the issue and thereby tends to cause confusion in the application of the Rule.... [Arguments relating to Rule 1100 are properly advanced by employing the terminology of the Rule.” Id., 469 Pa. at 13-14, 364 A.2d at 696-697. See also Commonwealth v. Goodman, 260 Pa.Super. 266, 393 A.2d 1256 (1978).