author: DEL SOLE, Judge:

text:
    484 A.2d 151
    COMMONWEALTH of Pennsylvania v. Reginald H. WARDEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1984.
    Filed Nov. 9, 1984.

      Lonnie E. Walker, Assistant Public Defender, Harrisburg, for appellant.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before DEL SOLE, POPOVICH and ROBERTS, JJ.
   DEL SOLE, Judge:

Appellant was convicted, by a jury, of possession with intent to deliver a controlled substance, and unlawful possession of a controlled substance. Post-trial motions were filed and denied. The case proceeded to sentencing, and Appellant was sentenced to eleven and one-half to twenty-three (23) months imprisonment and fined $1,000. A Motion to Modify Sentence was filed and denied. This appeal followed.

Two issues are raised on appeal: 1) Did the court err in refusing to grant Appellant a continuance so that he could retain private counsel? and 2) Did the court err by failing to place on record the factors considered in imposing sentence?

The facts of this case are as follows: Officers performing surveillance duties observed Appellant and two other individuals engaging in several drug transactions from Appellant’s parked automobile. A subsequent search of Appellant and his vehicle revealed $70 on the Appellant’s left leg, and five $50 decks of heroin. In the vehicle, a bag containing seventeen $50 decks of heroin and 1/2 ounce of marijuana was discovered.

At Appellant’s preliminary hearing, private counsel appeared on Appellant’s behalf. However, at Appellant’s arraignment, he'was represented by an attorney from the public defender’s office. Appellant requested a trial by jury, which was set for June 30, 1983. On that date, Appellant, through his counsel requested additional time to prepare'for trial. A continuance was granted, and trial was rescheduled for August 1, 1983. Moments before the commencement of trial on August 4th, Appellant sought another continuance. This continuance was denied.

Appellant first argues, that he was denied a right to counsel of his choice when the court failed to grant him a continuance. Appellant asserts that he was indigent at the time he requested a public defender, but he later received a workmen’s compensation award. Appellant wished to use this award and the extra time in order to obtain private counsel.

The allowance of continuances is largely a matter within discretion of the trial court, and the denial of a continuance does not constitute reversible error unless there is an abuse of discretion. Commonwealth v. Kittrell, 285 Pa.Super. 464, 427 A.2d 1380 (1981). In determining whether the court abused its discretion in denying the continuance, the accused’s right to choose a particular counsel, which is not absolute, must be weighed against the public need for efficient and effective administration of justice. Commonwealth v. Atkins, 233 Pa.Super. 202, 336 A.2d 368 (1975).

After thoroughly reviewing the facts of this case in light of the above principles, we find that the trial court did not abuse its discretion in refusing Appellant’s request. Appellant was granted a continuance on the day initially set for trial. On the day his rescheduled trial was to begin, Appellant requested a second continuance. Appellant waited until the day his jury trial was to begin to request a continuance, although he testified that he had already obtained partial payment of his workmen’s compensation award. Appellant also told the court that he was unhappy with the time counsel had spent preparing the case. Appellant did not allege that counsel would be ineffective, nor does he advance that argument before this court. Appellant’s counsel stated that based on meetings with Appellant, and his investigation of the case, he was prepared to try the case. The Commonwealth also noted its readiness to proceed. Under these circumstances, a continuance would have disturbed the efficiency and effectiveness of the administration of justice.

The Appellant next claims that the sentencing judge failed to articulate on the record the reasons for the sentence imposed.

At the outset we will determine whether Appellant’s contention has been preserved for appellate review. In this case, Appellant did raise the above issue in his Motion to Modify Sentence, however, he failed to raise this objection during the sentencing proceedings. For the following reasons, we find that Appellant’s actions were sufficient to preserve this issue for our review.

In Commonwealth v. Tomasso, 311 Pa.Super. 103, 457 A.2d 514 (1983), the Commonwealth on appeal, alleged the following errors: 1) The sentencing court failed to follow the interim guidelines. 2) The sentencing court ignored the legislative intent of the interim guidelines to protect the public; 3) The sentencing court’s decision was based on inaccurate information, the correct version of which is (i) that the pre-sentence report did recommend incarceration, (ii) that Judge Cain had not yet acted on appellee’s parole violation, and (iii) that appellee had previously participated in drug treatment programs. The Superior Court concluded that the first two general sentencing issues were properly preserved for appellate review. Arguments 3(i), 3(ii) and 3(iii) were waived since these objections were not raised at the sentencing hearing. We note that this third issue and its sub-parts related to the validity of particular evidence heard by the sentencing court.

In reaching its determination the Tomasso court cited a passage from Commonwealth v. Stufflet, 291 Pa.Super. 516 at 519, 436 A.2d 235 at 237 (1981) as follows:

In the usual case, the failure of counsel to interpose a timely objection at the sentencing proceeding results in a waiver of the issue ... as does the failure to file an appropriate motion to modify the sentence imposed. (Citations deleted) (Emphasis supplied).

Commonwealth v. Tomasso, supra, 311 Pa.Super. at 104, 105, 457 A.2d at 515, 516. The Tomasso court then concluded:

Thus, a sentencing issue must be raised twice below (as well as on appeal): once before the trial court at the sentencing proceeding and again in the motion to modify sentence.6
6. Or, alternatively, in the hearing on the motion to modify sentence.

Commonwealth v. Tomasso, supra, 311 Pa.Super. at 105, 457 A.2d at 516.

Our interpretation of Commonwealth v. Stufflet, supra, leads us to conclude that we must expand the language used by the Tomasso court. The court in Tomasso deleted citations from the Stufflet passage which it cites. These citations are helpful in enabling us to clarify exactly what procedure must be followed to preserve a sentencing issue for appeal. The Stufflet court used the language quoted above, citing Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978) and Commonwealth v. Cruz, 265 Pa.Super. 474, 402 A.2d 536 (1979).

A reading of Commonwealth v. Walls, supra, and Commonwealth v. Cruz, supra, clearly indicates that only certain types of sentencing issues must be raised in both the sentencing proceeding and in the motion to modify sentence. These are objections relating to specific evidence, and testimony considered in the sentencing proceeding. As stated by the Tomasso court, this is merely a reflection of the procedures required to preserve non-sentencing issues where an objection must be made at trial, and in post-trial motions before being considered on appeal. Commonwealth v. Tomasso, supra, 311 Pa.Super. at 105, 457 A.2d at 516.

An example of such an issue can be found in Commonwealth v. Cruz, supra. Therein, the Commonwealth during the sentencing proceeding asserted that Appellant was a “weight dealer”. On appeal, the appellant alleged that the Commonwealth’s statement was unsubstantiated and, therefore, the judge considered an inappropriate factor in imposing sentence. The Superior Court held that by not specifically, and timely objecting to the accuracy of the Commonwealth’s assertion, the Appellant had waived the issue.

In Commonwealth v. Walls, supra, a case in which sentence was imposed prior to the effective date of Pa.R. Crim.P. 1408, the Appellant maintained that the trial judge imposed consecutive sentences under a misapprehension of the law. The Supreme Court held that his issue had been waived since the Appellant did not object to the sentence during the sentencing proceedings, nor did he file a petition for reconsideration of the sentence. The court stated:

Even accepting no established procedure exists for appellate review of a lawful sentence,1 this does not excuse a failure to object to the sentence during the sentencing proceedings. Moreover, even after sentencing, Walls was not limited to requesting permission to withdraw the guilty pleas, but could have filed a petition for reconsideration of the sentences ... Since he did neither, we agree with the ruling in the Superior Court that the issue has been waived.

Commonwealth v. Walls, 481 Pa. at 4, 391 A.2d at 1065 (footnote and citations omitted)

Our reading of Commonwealth v. Cruz, supra, and Commonwealth v. Walls, supra, leads us to conclude that those issues relating to specific evidence and testimony heard by the sentencing court must be raised both at the sentencing proceeding, and in the Motion to Modify Sentence under Rule 1410 to be preserved for appellate review. However, a general sentencing issue, such as is found in this case, will be preserved for appellate review if it is raised in the Motion to Modify Sentence. Such action is sufficient since this procedure will give the appellate court the benefit of the trial court’s views, and will give the trial court the first opportunity to modify sentence. Commonwealth v. Anderson, 304 Pa.Super. 476, 450 A.2d 1011 (1982).

Inasmuch as we have determined that Appellant’s argument is preserved for appeal, we now turn to a review of the issue on its merits. Appellant claims that the court failed to place on the record the reasons for the sentence imposed.

When imposing sentence, the court must consider both the character of the defendant, and the particular circumstances of the offense in light of the legislative guidelines for sentencing. Commonwealth v. Young, 299 Pa.Super. 488, 445 A.2d 1235 (1982). The sentence imposed must be the minimum punishment consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant. 42 Pa.C.S.A. § 9721(b); Commonwealth v. Mead, 300 Pa.Super. 510, 446 A.2d 971 (1982).

In this case, the court discussed the seriousness of the offense, but no mention was made of Appellant’s particular character and background. It is true that the court heard statements from the defense counsel and Appellant. Appellant testified that he had ties to the community because he was caring for a disabled nephew in his home. Appellant also indicated that he was presently employed. Defense counsel revealed to the court that Appellant was in his thirties and had never been in trouble with the law before this incident. However, there is no indication in the record that any consideration was given to the above-mentioned factors when sentence was imposed. The mere presence in the record of evidence the court could have relied on does not meet the requirement that the judge state what it was that the court did rely on in imposing sentence. Commonwealth v. Kraft, 294 Pa.Super. 599, 440 A.2d 627 (1982). The court’s only reference to the above-mentioned information was the statement that it would “give some consideration to that”. Such a statement does not reflect a consideration of the statutory guidelines, nor does it otherwise explain the reasoning behind the sentence imposed. Furthermore, there was absolutely no inquiry on the record as to Appellant’s ability to pay the fine imposed, as required by 42 Pa.C.S.A. § 9726.

Since the court failed to comply with the mandates of the sentencing code, we must vacate the Judgment of Sentence and remand for resentencing in accordance with this opinion.

Judgment of Sentence vacated and case remanded for resentencing.

Jurisdiction relinquished.

POPOVICH, J., dissents.


source: Caselaw Access Project

author: MONTEMURO, Judge: WIEAND, Judge:

license: Public Domain

text:
    484 A.2d 155
    COMMONWEALTH of Pennsylvania v. Gregory Aaron THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 21, 1983.
    Filed Nov. 9, 1984.
    Petition for Allowance of Appeal Granted for Commonwealth May 20, 1985.
    Petition for Allowance of Appeal Denied for Appellant May 20, 1985.

      Michael J. Byrne, Jr., Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from an order denying appellant’s petition filed under the Post Conviction Hearing Act, 19 P.S. §§ 1180-1 et seq. (hereafter PCHA) raising various allegations of ineffectiveness of counsel. Appellant also raised the question of legality of sentence for the first time in a supplemental brief to this appeal. We affirm the order of the trial court denying relief under the PCHA, and vacate one of appellant’s sentences on the basis of illegality.

The pertinent facts are as follows:

Appellant was arrested on January 16, 1970, and in due course indicted as of Bill Nos. 16-19, March Term, 1970, charging him with murder, aggravated robbery, conspiracy and weapons offenses.

Trial was held on October 27, 1971, before the Honorable James T. McDermott of the Court of Common Pleas of Philadelphia County, sitting with a jury. The jury returned verdicts of guilty on all Bills on November 2, 1971. Post verdict motions were denied on May 15, 1973. Thomas was sentenced to life imprisonment for murder in the first degree and a consecutive twenty year sentence was imposed for aggravated robbery.

Represented by new counsel, appellant took a direct appeal to the Supreme Court of Pennsylvania, which affirmed the lower court’s decision. Commonwealth v. Thomas, 459 Pa. 371, 329 A.2d 277 (1974). Petition for reargument was denied on February 19,1975. Turning to the federal courts, appellant filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania on July 23, 1975. The Honorable Alfred L. Luongo denied relief without opinion on August 27, 1975. United States ex rel. Thomas v. Cuyler, Docket No. 752034 (E.D.Pa.1977). The United States Court of Appeals for the Third Circuit affirmed. United States ex rel. Thomas v. Cuyler, 548 F.2d 460 (3d Cir.1977).

On July 6, 1977, appellant filed a pro se petition in the Court of Common Pleas of Philadelphia County seeking PCHA relief. Counsel was appointed and an amended petition was filed. On March 19, 1982, after a hearing, the Honorable Edward J. Blake denied appellant’s petition for relief, finding waiver; or, in the alternative, that appellant’s claims were meritless. This is an appeal from that order.

I.

Appellant is claiming ineffectiveness of trial counsel in that he: (1) failed to object to certain allegedly improper remarks made by the prosecution; (2) allowed the prosecution to cross-examine its own witness; (3) elicited uncontra-dicted hearsay evidence.

However, ineffectiveness of trial counsel was not raised by newly appointed counsel on direct appeal. Consequently, the issue of trial counsel’s ineffectiveness is waived. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

With respect to appellate counsel, appellant contends that his representation also was ineffective, solely because he failed to raise the issue of trial counsel’s ineffectiveness.

In evaluating such a claim, “the threshold question is whether the allegations of trial counsel’s ineffectiveness would have been frivolous. If so, we need engage no further in exploration of the basis of post-trial counsel’s omission.” Commonwealth v. Hubbard, supra at 472 Pa. 281, 372 A.2d at 697.

We now turn to an evaluation of the three allegations of trial counsel’s ineffectiveness stated above.

On direct appeal, the Pennsylvania Supreme Court examined the alleged impropriety on the part of the prosecution at trial and concluded that reversible error did not occur when the prosecutor referred to the witness and appellant as “bums.” The Court also examined appellant’s claim that prejudicial error occurred when the prosecution was permitted to impeach one of its own witnesses. On this contention the Court concluded that the prosecution was properly permitted to cross-examine its own witness when the prosecution was surprised by the unexpected contradiction of the witness’ prior statements to police, and that error in allowing the prosecutor’s cross-examination to go beyond the scope of the prior statements was harmless. Commonwealth v. Thomas, supra.

Appellant now urges this court to reconsider the same issues under an ineffective assistance of counsel theory. Since these issues were fully considered on direct appeal, they are fully litigated and not open to collateral attack. 19 P.S. §§ 1180-3(d), 1180-4(a)(3); Commonwealth v. Jones, 488 Pa. 270, 412 A.2d 503 (1980).

Appellant’s final contention under the PCHA, is that trial counsel was ineffective in the manner in which he conducted cross-examination of a prosecution witness. Appellant argues that due to the lack of elemental preparation for trial, counsel elicited uncontradicted hearsay evidence which falsely led the jury to believe that appellant had previously been identified by an eyewitness who did not testify at trial.

The prosecution witness and his cousin were eyewitnesses to the alleged murder. The cousin did not testify at trial. However, trial counsel asked questions of the prosecution witness regarding his cousin’s identification of one of the defendants at the police station (N.T., PCHA 12/6/79, pp. 7-8). Appellant argues that trial counsel was ineffective in continuing his inquiry concerning the course of conduct which occurred at the police station. The following line of questioning ensued:

Q. Now, your cousin, was he across the street?
A. Yes.
Q. Was he — did he come to the police station with you?
A. Yes.
Q. Where was he standing when these men ran past you, do you know?
A. No, I don’t.
Q. What is his name?
A. Robert Alfer.
Q. Robert what?
A. Robert Alfer.
Q. Does he live in the neighborhood of 61st and Market, also?
A. Yes.
Q. He went to he police station with you?
A. Yes.
Q. Was he asked to identify these men that were involved in this hold-up?
A. Yes.
Q. Do you know if he did?
A. I think he did. I’m not too sure. I didn’t ask him.
Q. Were you present when he was asked to identify these persons?
A. Yes.
Q. And who if anybody did he identify?
A. He identified the darker man.
Q. Pardon me?
A. He identified the darker man.
Q. The darker man?
A. Right.

(N.T. 46-47).

In resolving this contention we are guided by the standard set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):

“[counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.”

Since the prosecution witness could not identify appellant, trial counsel attempted to get the same information from the prosecution witness about his cousin’s identification.

At appellant’s PCHA hearing, counsel testified that is was his intention to impeach the prosecution witness because of his prior testimony that he could not remember, at first, whether or not his cousin made an identification of appellant. Counsel further testified that his cross-examination was an effort to emphasize the witness’ inability to identify the appellant even though he was in very close range of both of the defendants allegedly escaping from the scene (N.T., PCHA 12/6/79, p. 17).

As we have determined that appellant’s claims of ineffectiveness of trial counsel had no chance of succeeding, appellate counsel, therefore, had no reasonable grounds upon which to assert trial counsel’s ineffectiveness on direct appeal. We need not inquire into appellate counsel’s reasons for failing to raise these issues on appeal for counsel cannot be found ineffective for failure to raise meritless claims. Commonwealth v. Hubbard, supra.

Order affirmed.

II.

In a supplemental brief, the appellant raises the claim that the sentences imposed on him were illegal. On May 21, 1973, the appellant was sentenced to life imprisonment on a conviction of first degree murder, and also sentenced to a consecutive term of ten to twenty years on a conviction of aggravated robbery. Appellant contends that the aggravated robbery conviction should have merged with the first degree murder conviction for the purposes of sentencing, and, therefore, the imposition of two punishments for crimes constituting the same offense violates the multiple punishment aspect of the Double Jeopardy Clause of the Fifth Amendment.

At the outset, we note that at the time of the commission of these crimes, the crime of first degree murder was governed by the Penal Code of 1939 which provided:

Section 701. Murder of the First and Second Degree.— All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempting to perpetrate any arson, rape, robbery, burglary, or kidnapping, shall be murder in the first degree. All other kinds of murder shall be murder in the second degree____

Act of June 24, 1939, P.L. 872, § 701, 18 P.S. § 4701. (Repealed June 6, 1973). Thus, first degree murder under the Penal Code of 1939 encompassed both willful, deliberate, and premeditated killing; as well as felony-murder involving the five enumerated felonies.

The appellant’s first degree murder conviction under this statute was of the felony-murder type, based on the underlying felony of aggravated robbery. The evidence at trial established that on January 14, 1970, the victim, a deliveryman for a meat packing company, was in the process of making a delivery to a small meat market in Philadelphia. Two men accosted him in his truck. The first man scuffled with the victim in an attempt to get the victim’s money. The victim resisted, and then the second man, identified as the appellant, stepped up and shot the victim in the stomach. The two men ran from the scene. The victim subsequently died.

Relying on a case directly on point, Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981), the appellant asserts that his consecutive sentence for aggravated robbery must be vacated. We agree. In Tarver, the appellant was convicted of first degree murder under the Penal Code of 1939, such conviction resting on felony-murder. The appellant in Tarver was also convicted of the underlying felony which was aggravated robbery. Sentence was imposed of life on the first degree murder conviction, and, consecutively, ten to twenty years on the aggravated robbery conviction. The court in Tarver vacated the aggravated robbery sentence on the grounds that the underlying felony of robbery was a constituent offense of the felony-murder, and, therefore, double jeopardy prevented the trial court from exceeding its legislative authority and imposing multiple punishments. Consequently, we must vacate appellant’s consecutive sentence for aggravated robbery in the appeal before us.

Accordingly, the order of the trial court denying appellant relief under the PCHA is affirmed, and the judgment of sentence entered upon the robbery conviction is vacated.

WIEAND, J., files a concurring statement.

WIEAND, Judge:

I join Part I of the majority’s opinion and concur in vacating the separate sentence imposed for robbery. I concur in Part II solely because I am compelled to do so by the decision of the Supreme Court in Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981). I am of the opinion, however, that Tarver should be reconsidered. In my best judgment, the crimes of robbery and murder committed by appellant in this case were distinct and discrete offenses; the former was not a necessary ingredient of the latter; and principles of double jeopardy do not prevent separate sentences for robbery and an intentional killing committed during the course thereof. See: McCampbell v. State, 421 So.2d 1072, 1074 (Fla.1982); Britt v. State, 453 So.2d 1154 (Fla.Dist. Ct.App.1984); Cobb v. State, 250 Ga. 1, 2, 295 S.E.2d 319, 320 (1982); People v. Gulliford, 86 Ill.App.3d 237, 244, 41 Ill.Dec. 596, 602, 407 N.E.2d 1094, 1100 (1980); State v. Close, 623 P.2d 940, 948-951 (Mont. 1981); Koza v. State, Nev., 681 P.2d 44, 50 (1984); State v. Martinez, 95 N.M. 421, 424-425, 622 P.2d 1041, 1044-1045 (1981); Fitzgerald v. Commonwealth, 223 Va. 615, 634-638, 292 S.E.2d 798, 809-811 (1982), cert. denied, 459 U.S. 1228, 103 S.Ct. 1235, 75 L.Ed.2d 469, reh. denied, 460 U.S. 1105, 103 S.Ct. 1809, 76 L.Ed.2d 371 (1983).

      . Act of January 25, 1966, P.L. (1965) 1580, § 1, 19 P.S. §§ 1180-1 et seq.; repealed, Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1397]. The current Post Conviction Hearing Act is found at 42 Pa.C.S.A. §§ 9541 et seq.

      . The judgment of sentence under the murder indictment was appealed directly to the Supreme Court of Pennsylvania, Act of July 31, 1970, P.L. 673, No. 223, Art. II, § 202, 17 P.S. § 211.202 (1) (Supp.1974-75).

      . Although appellant raises this issue for the first time in his supplemental brief on this appeal, it is properly addressed here since the question of the legality of a sentence is never waived. Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Fortune, 305 Pa.Super. 441, 451 A.2d 729 (1982); Commonwealth v. Belgrave, 258 Pa.Super. 40, 391 A.2d 662 (1978).


author: MONTEMURO, Judge: WICKERSHAM, Judge,

text:
    484 A.2d 159
    COMMONWEALTH of Pennsylvania v. Russell T. THOMPSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1984.
    Filed Nov. 9, 1984.
    Petition for Allowance of Appeal Denied May 14, 1985.

      Arthur L. Goldberg, Harrisburg, for appellant.
    Gregory B. Abeln, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   MONTEMURO, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Cumberland County. Because we find entrapment as a matter of law, we reverse.

On May 1, 1981, appellant, Russell Thompson, a former Carlisle policeman, was arrested and charged with one count of unlawful delivery of a small amount of marijuana and one count of criminal conspiracy. Appellant was convicted by a jury on both counts on September 23, 1981. After his post-verdict motions requesting a new trial or an arrest of judgment were denied, he was sentenced on the drug conviction to a term of imprisonment of not less than fifteen (15) days nor more than thirty (30) days and was fined fifty dollars; the sentence was suspended generally on the conspiracy conviction. This timely appeal followed.

Appellant raises two issues:

Did the [l]ower [c]ourt err in finding that under the facts in this case the police conduct in the investigation did not constitute entrapment as a matter of law?
Did the lower court err in permitting the Commonwealth to elicit prejudicial, conjectural testimony from the Commonwealth witness?

Brief for appellant at 3.

The first issue, whether the state police conduct in question constituted entrapment as a matter of law, was raised in pre-trial motions, during trial by demurrer following the Commonwealth’s case, in post-trial motions, and now on appeal. Appellant does not deny giving Trooper Lucinda Hammond a small amount of marijuana on the evening of March 23, 1981. Rather, he argues that the procurement and delivery of the marijuana were the result of a romantic relationship that developed on the part of the appellant, a relationship brought about by Hammond’s conduct over a ten month period. Because we agree with appellant’s contention that this conduct constituted entrapment, we need not reach the second issue he has raised.

Beginning on May 1, 1980, state police Trooper Lucinda Hammond became involved in an undercover investigation of appellant, a 46-year-old black male who was married and living with his wife and mentally retarded daughter in Carlisle. At the time this investigation began, he was a ten-year veteran of the Carlisle Borough Police Force. Trooper Hammond was a young, blonde, white female who apparently was very attractive.

The undercover officer came to Carlisle on May 2, May 9, May 12, May 16, May 22, May 23, May 28, June 5, June 6, June 12, June 19, and June 25 of 1980 in an attempt to make contact with appellant. Although Trooper Hammond was unable to establish any direct communication with appellant, he did wave to her on May 22 and May 28. Her purpose in making contact with appellant on all these occasions was to determine if he would provide her with drugs.

Trooper Hammond’s first “face-to-face” contact with appellant was on July 10, 1980 at the square in Carlisle. He was on duty and she approached him with a question about a false temporary driver’s license which apparently was used as a pretext for starting a conversation. She testified that at the time her hair was long and straight and she wore mid-thigh cut-off shorts and a short-sleeved jersey. During the conversation which ensued, the two began talking about “partying” and having a good time. Appellant discussed with Hammond his purported use of marijuana and she let him know that she “partied” and “got high.” He then told her he would be able to get drugs for her.

The second encounter between appellant and Hammond occurred on August 8, 1980 when she again walked up to him while he was on duty. She was again dressed in cut-offs and a jersey. There was a brief conversation, but no mention of drugs. Sometime after this meeting, Hammond began to telephone appellant at his place of work, the Carlisle Police Station. These calls continued over the course of the investigation, totaling at least eight to ten in all. Appellant never contacted Hammond and she never provided him with a means of doing so.

The third direct contact between them occurred on September 3, 1980, when she again walked up to him while he was working. She wore a blouse that was open in the back and shoulders, as well as her by now standard cut-offs. Appellant recognized her immediately and started a friendly conversation, which included a discussion of drugs and getting high. He tried to get her to meet him after work at a tavern called the Oliver Plunkett, but she declined and instead arranged to meet him the next night at another tavern called Yancy’s.

As had been arranged, they met and had drinks together at Yancy’s on September 4. It was their fourth meeting and first date. Again the discussion turned to partying and getting high. Appellant stated to Hammond that he kept marijuana in his locker at work which he would seize during drug arrests and then use himself. This appears to have been mere braggadocio. She asked if he was going to get some of this marijuana and he said no. He repeatedly, on that evening and throughout the investigation, indicated to her that he wanted her to trust him, that he might be a policeman, but he liked fun too. He assured her that he was not trying to set her up.

The fifth direct contact occurred on September 29, after she had called him at the police station. They met again at Yancy’s for a date, and she then asked him to obtain some marijuana for her personal use or “maybe make a little money on the side.” (N.T., Trial at 28). He responded by again trying to get her to go to the Oliver Plunkett after hours with him, telling her she could get some marijuana if she would go with him. She declined to do so and left Yancy’s.

The next and sixth personal contact did not occur until December 17, 1980. She had talked to him, however, on October 23 and 24, and, in another telephone conversation on November 25, had “point blank” asked him if he could make a deal for some drugs. On November 26 and December 3, she traveled to Carlisle looking for appellant but could not find him. At the December 17 meeting, when he was on duty, she again asked him about getting drugs. As before, he wanted her to meet him after midnight and she would not do so.

She met with him briefly on January 6, 1982 and arranged to meet him at Yancy’s the next day. During that date at Yancy’s, she began directly indicating to him that he “wasn’t coming across” with any drugs. (N.T. Trial at 88). Possibly as early as October or November, but certainly by this date, she began chiding him, telling him he was “all talk” and never produced anything for her. She began to question appellant’s ability to obtain drugs for her. He stated he would get some for her if she’d meet him again the next night. They did meet the following night, January 8, 1981, in a furniture store parking lot at the M.J. Carlisle Mall. On this eighth meeting between the two, she got into his car only to find he had no drugs. He indicated he would get them later in the evening, so they went to the Hamilton Lounge together. When she indicated to him she was interested in getting something for herself for later that night, he made no moves to get any drugs, despite having earlier mentioned his “connection” was in the Oliver Plunk-ett right across the street. Instead, he questioned her about her social life. Before she left, she asked about paying for the drugs, but he assured her the drugs would not cost her anything.

It is clear from the testimony that on or about December 1980 or January 1981, they were kissing at the end of their dates or meetings, either at her car or while in his car. They were often seen together in public in Carlisle, and appellant would put his arm around her and introduce her to his friends. She concluded from his conduct that he was possibly interested in a romantic or sexual relationship, although he always treated her respectfully. However, she never offered and he never requested sexual relations.

The telephone calls and meetings continued, with Hammond constantly requesting drugs and appellant just as consistently failing to provide them. She would insinuate that he couldn’t get any drugs, while he again assured her no payment would be necessary for any drugs he produced. Appellant kept up his entreaties, asking her to meet him after midnight and once to stay overnight, all of which she declined. On one occasion, she mentioned she felt ill and appellant offered to get her a motel room. Around this time, he also started suggesting to Hammond that she move to Carlisle.

Eventually, she arranged a meeting with him on the evening of March 23 at the Hamilton Lounge. She testified on direct examination that:

A. After he made these statements about being able to take care of me as far as drugs were concerned, seeing how this was something I had heard from him on several occasions before I just really didn’t take it that seriously. And I just said to him, well, you know, you are all talk. I have heard this before. And that’s all I ever hear is just talk.
And he said, well, I am going to show you that I am on the level here. He said I am going to get a dime bag of grass this evening. And while I was talking with him another individual entered the bar----
Q. The codefendant in this case?
A. That’s correct.
Q. Go ahead, what happened next?
A. And shortly afterwards [appellant] called over to Mr. Coleman. And he took a $10.00 bill out of his pocket and put it on the bar. And he said to Mr. Coleman, “I want you to get me a dime bag of grass.”

(N.T. Trial at 12).

Appellant thereafter obtained 4.5 grams of marijuana from his friend, a Mr. Coleman, and gave it to Hammond. Appellant and Hammond then left the bar and went to his car where he rolled some marijuana cigarettes with papers supplied by Hammond. She offered to pay for the marijuana, but he refused to accept any money.

The final meeting during the investigation was on April 11, 1981 at the Hamilton Lounge. This date had been pre-arranged by Hammond by phone. Appellant asked her how the marijuana was and whether she had any left. She replied that since it was such a little amount, there was no more left. He then talked of obtaining more drugs for her, but never produced any. The meeting ended after the two of them drove around Carlisle looking at apartments as appellant continued to talk about her moving there. Eventually, appellant offered to pay one-half of her rent if she moved to Carlisle.

We now turn our attention to the issue of entrapment.

The present test for entrapment is set forth in section 313 of the Pennsylvania Crimes Code, 18 Pa.C.S. § 313. That section states in pertinent part:

§ 313. Entrapment
(a) General rule. — A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(b) Burden of proof. — Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of the evidence that his conduct occurred in response to an entrapment.

The test for entrapment in Pennsylvania under section 313 is an objective one which “focus[es] on the conduct of the police and will not be concerned with the defendant’s prior criminal activity or other indicia of a predisposition to commit crime.” Commonwealth v. Jones, 242 Pa.Super. 303, 311, 363 A.2d 1281, 1285 (1976); see also Commonwealth v. Taylor, 299 Pa.Super. 113, 445 A.2d 174 (1982); Commonwealth v. Danko, 281 Pa.Super, 97, 421 A.2d 1165 (1980); Commonwealth v. Stokes, 264 Pa.Super. 515, 400 A.2d 204 (1979); Commonwealth v. Manley, 252 Pa.Super. 77, 380 A.2d 1290 (1977), vacated on other grounds, 491 Pa. 461, 421 A.2d 636 (1980). This statute represented a significant shift in Pennsylvania law, in that it rejected the then-existing use of a subjective test in entrapment cases, i.e., a test which 'focused on the defendant’s predisposition to commit the crime.

While the judicial focus in entrapment cases had changed, the case law has been consistent in Pennsylvania in holding that the determination of whether police conduct constitutes entrapment is for the jury, unless the evidence of police conduct clearly establishes entrapment as a matter of law. Commonwealth v. Berrigan, 234 Pa.Super. 370, 373-374, 343 A.2d 355, 357 (1975) (divided court) (applying subjective test); Commonwealth v. Manley, supra, 252 Pa.Super. at 87, 380 A.2d at 1294 (applying objective test). Thus, after the defense of entrapment has been properly raised, the trial court should determine the question as a matter of law wherever there is no dispute as to the operative facts relating to the defense.

A careful review of the record in this case reveals no significant discrepancy in testimony of the Commonwealth’s sole witness (Trooper Hammond) and of appellant regarding the course of conduct between the two over a ten month period. Appellant was a middle-aged black male and the trooper was a young, blonde, attractive female. A series of meetings and telephone calls occurred over a ten-month period, all at the initiative of Trooper Hammond. Drugs were constantly discussed. Although it is not always clear who brought the subject up on each occasion; what is clear is that beginning on September 29, 1980, Hammond began requesting drugs from the appellant. By early 1981, and perhaps earlier, Hammond began to chide and criticize appellant for his consistent failure to obtain or provide drugs. Beginning in late 1980 or early 1981, the two began kissing after each meeting. Hammond also permitted appellant to put his arm around her, walked around in public with him, and socialized with his friends.

This testimony regarding Hammond’s course of dealings is uncontradicted. In fact, testimony of Hammond and appellant corroborate each other, as both agreed as to dates and locations of meetings, the clothes worn by Hammond on different occasions, the approximate time the kissing began, her repeated requests for drugs and criticism of his failure to provide them, etc. The critical question, of course, is whether or not this uncontradicted testimonial evidence of police conduct establishes entrapment as a matter of law.

As Mr. Justice Frankfurter noted, this “crucial question [is] not easy of answer.” Sherman v. United States, supra, 356 U.S. at 382, 78 S.Ct. at 825. Answering that question is made all the more difficult by the fact that we have found no cases where either this court, or our supreme court, has found entrapment as a matter of law under the objective test of section 313. Indeed the supreme court has never addressed the section 313 entrapment defense, except to intimate in passing that the statute changed Pennsylvania law in this area. Commonwealth v. Herron, 475 Pa. 461, 468 n. 2, 380 A.2d 1228, 1231 n. 2 (1977).

Some guidance can be found in the Sherman concurring opinion. In that opinion, the objective test was said to be necessary in order to advance the ultimate goal which the doctrine of entrapment seeks to establish, i.e., “[p]ublic confidence in the fair and honorable administration of justice.” 356 U.S. at 380, 78 S.Ct. at 825. The test, therefore, is aimed at condemning certain impermissible police conduct which, regardless of who may be induced by it to commit a crime, “falls below standards, to which common feelings respond, for the proper use of government power.” Id. at 382, 78 S.Ct. at 825. Although entrapment necessarily must be decided on a case-by-case basis, impermissible activity may include “[a]ppeals to sympathy, friendship, the possibility of exorbitant gain and so forth.” Id. at 383, 78 S.Ct. at 826.

Courts in other states which have also adopted the objective test provide additional insight into its application. For example, in State v. Mullen, Iowa, 216 N.W.2d 375, 382-383 (1974), the Supreme Court of Iowa stated:

In adopting an objective test we do not intimate the transactional negotiations and conduct of the government official (or his agent) and the defendant shall be ignored. What was said, and the defendant’s response to the inducements, should all be considered in judging what the effect of the government conduct would be on normally law-abiding persons. Depending on an evaluation of the facts in each case, prohibited governmental activity might include extreme pleas of desperate illness, appeals based primarily on sympathy, pity or close personal friendship, and offers of inordinate sums of money. (Citations omitted).

Finally, the opinions of this court addressing the entrapment defense provide us with direction in deciding, even if not providing examples of, the existence of entrapment. In Commonwealth v. Manley, supra, the appellant acted as middle-man in four drug sales to an undercover officer which occurred over a period of a month and a half. The transactions had been set up by an informant who was a friend of the appellant. Appellant argued entrapment, contending that he was induced by the informant’s repeated requests for drugs. In finding no entrapment existed as a matter of law, the Manley court noted that there was no evidence indicating the undercover agent was aware of the number or type of requests made by the informant, nor that the agent had “encouraged [the informant’s] repeated requests in order to wear down appellant’s resolve.” Commonwealth v. Manley, supra, 252 Pa.Super. at 87, 380 A.2d at 1294.

In Commonwealth v. Stokes, supra, we found no entrapment existed in a case where appellant sold heroin to an undercover agent. However, there the facts showed the officer had merely provided appellant with a market for the drugs by letting the appellant know he was interested in buying some heroin, and had never importuned appellant to make a sale.

Hence, Stokes reaffirmed the position, which was held in Pennsylvania prior to the enactment of section 313, that mere opportunity does not constitute entrapment. See also Commonwealth v. Tami, 309 Pa.Super. 341, 455 A.2d 641 (1982). We have also stated that “artifice and stratagem are legitimate tactics that may be employed by law enforcement officials to detect and combat crime.” Commonwealth v. Lee, 262 Pa.Super. 218, 396 A.2d 724 (1978).

In light of all this, and under the facts of this case, we are convinced that the methods employed by the Commonwealth constitute entrapment as a matter of law. The Commonwealth, acting through Trooper Hammond, pursued a long term, persistent course of persuasion and inducement aimed at luring appellant into delivering marijuana to Hammond. The use of a young, blonde female to coax a middle age male, after months of kissing and socializing, into committing a minor crime is not police conduct which presents the “mere opportunity” to commit a crime. As this case clearly shows, opportunity and inducement are two separate consequences of police activity. The latter occurred here.

Furthermore, this is not a case like Manley where the police were unaware of the importuning of a government agent (often an informant) involved in the investigation. Not only was Trooper Hammond obviously aware of her actions and of appellant’s interaction with her, she also admitted to suspecting the effect her conduct was having on appellant, i.e., romantic or sexual desires.

We are satisfied that appellant has successfully invoked the defense of entrapment by proving “by a preponderance of evidence that his conduct occurred in response to an entrapment.” 18 Pa.C.S. § 313(b). This burden was clearly met by the unconflicting testimony of both appellant and Trooper Hammond. See, Commonwealth v. Berrigan, supra, 234 Pa.Super. at 381, 343 A.2d at 361 (Hoffman, J., opinion in support of reversal) (testimony of government informant sufficient to meet defendant’s burden).

The law enforcement authorities clearly strayed beyond the limits of acceptable practice in this case. We cannot sanction methods of inducement such as this, which lure otherwise law-abiding citizens into crime. Here the appellant has conceded his guilt, as he must when the entrapment defense is invoked under the objective test. Commonwealth v. Jones, supra, 242 Pa.Super. at 314, 363 A.2d at 1286. However, it is the Commonwealth that is guilty of the greater evil of playing an ignoble part. Sherman v. United States, supra, 356 U.S. at 380, 78 S.Ct. at 824 (Frankfurter, J., concurring).

Judgment of sentence is reversed.

WICKERSHAM, J., files dissenting opinion.

WICKERSHAM, Judge,

dissenting:

I would affirm on the opinion of the Cumberland County Court en banc by Honorable Harold E. Sheely, P.J.

      . 35 Pa.C.S. § 780-113(a)(31).

      . 18 Pa.C.S. § 903.

      . It is not clear from the record why this investigation was ever started. Trooper Hammond’s testimony simply states there were "accusations" regarding the appellant.

      . Trooper Hammond testified appellant repeatedly told her the Oliver Plunkett was the bar where drugs could easily be gotten after closing time. Despite appellant’s constant requests that she meet him there after midnight, and despite her apparent familiarity with the bar, Hammond never went to the tavern with appellant.

      . The record discloses no attempt by the state police to verify whether there was in fact marijuana in appellant’s locker, and further, it appears uncontradicted on the record that during his tenure as a police officer, appellant had never even made a drug arrest.

      . Her testimony was as follows:
      A. When I left, he would come out and he would say, well, good night. And he would give me a kiss good night.
      Q. Did you get the feeling at that time that there was something more that interested him than the discussions about partying?
      A. I can’t say that I know what was going through his mind. I can only draw some sort of a conclusion.

        Q. What conclusion did you draw?
      A. Perhaps that he had — I don’t know, perhaps I guess that he would have ideas of attempting to take me to bed, I don't know.
      (N.T. Trial at 73)

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1, effective June 6, 1973, 18 Pa.C.S. § 313.

      . Commonwealth v. Jones, 242 Pa.Super. 303, 310 n. 5, 363 A.2d 1281, 1285 n. 5 (1976). See also Commonwealth v. Ferguson, 289 Pa.Super. 163, 174 n. 3, 432 A.2d 1103, 1108 n. 3 (1981) (Hoffman, J., dissenting). The existence of these two tests demonstrates a sharp controversy over the proper theoretical basis and application of the defense of entrapment, a disagreement perhaps most clearly seen in a series of United States Supreme Court decisions dealing with the defense. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). This court, however, has clearly stated that the "present codification of entrapment [§ 313] finds its origin in Mr. Justice Frankfurter's concurring opinion in Sherman....” Commonwealth v. Jones, supra, 242 Pa.Super. at 311, 363 A.2d at 1285. The objective test set forth there "shifts attention from the record and predisposition of the particular defendants to the conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit a crime.” Sherman v. United States, supra, 356 U.S. at 383-84, 78 S.Ct. at 826-27.

      . In rejecting appellant’s motion for a new trial and motion in arrest of judgment, the trial court found “some conflicting testimony as to the extent of the parties' emotional involvement or assumed emotional involvement with each other and as to the effect this may have had on defendant’s actions." Lower court opinion at 7-8. Without addressing appellant’s second contention in this appeal, we note that this “conflicting testimony" relates not to the trooper’s conduct and appellant’s response to it, but rather to the supposed state of mind of this particular appellant. By considering the testimony, the lower court focused subjectively on appellant’s mental state, and not on the conduct of the police as contemplated by the statute. Also, what appellant “thought” and what Hammond supposed he "thought” are not “conflicting" but only different.

      . Further muddying the waters in this area of the law, there appears to be some inconsistency in the way this court has applied the objective test of § 313, an inconsistency which has not gone unnoticed. Commonwealth v. Taylor, 299 Pa.Super. 113, 120-21 n. 2, 445 A.2d 174, 177-78 n. 2 (1982); see also Comment, Entrapment: The Myth of the Model Penal Code in Pennsylvania, 86 DICK.L.REV. 115 (1981); Ranney, The Entrapment Defense — What Hath Model Penal Code Wrought?, 16 DUQ.L.REV. 157, 158-61 (1977-1978); Park, The Entrapment Controversy, 60 MINN.L.REV. 163, 168 n. 16 (1976).

      . See note 8, supra.

      . In addition to Pennsylvania, the objective test has been adopted by statute in Hawaii, New Hampshire and North Dakota. It has been judicially adopted in Michigan, Iowa, California and Alaska. Comment, Causation and Intention in the Entrapment Defense, 28 U.C.L.A. L.REV. 859, 862 n. 16 (1981). See also Park, supra, at 168.

      . See note 6, supra.


author: TAMILIA, Judge:

text:
    484 A.2d 166
    COMMONWEALTH of Pennsylvania v. Stuart Richard COHEN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1984.
    Filed Nov. 9, 1984.
    Albert J. Krieger, Miami, Fla., appellant, in propria persona.

      Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.
    Before McEWEN, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

This is an appeal from an Order of the Common Pleas Court of Lackawanna County denying appellant’s pre-trial motion to dismiss the charges against him on grounds of double jeopardy. We affirm.

In 1975, appellant was convicted by a jury of third degree murder and criminal conspiracy. On appeal, judgment of sentence was reversed and the case remanded for a new trial on grounds that pre-trial publicity had prevented the selection of an impartial jury. See Commonwealth v. Cohen, 489 Pa. 167, 413 A.2d 1066 (1980). The Order from which this appeal stems was issued prior to appellant’s second trial in response to his Omnibus Motion to Dismiss the Charges. This, in turn, was bottomed on the notion that prosecutorial overreaching during the first trial was so egregious as to bar retrial under the double jeopardy clauses of the state and federal constitutions.

In its Opinion granting reversal, our Supreme Court, inter alia, took cognizance of appellant’s claim that the testimony of certain witnesses who implicated him in the 1974 killing of 16 year old Steven Warunek was the result of prosecuto-rial overreaching. It is now alleged that yet another witness was suborned by the prosecution, who in addition deliberately obstructed investigation into evidence of a clearly exculpatory tenor.

As the trial judge correctly pointed out in his Opinion, the equivocal nature of the evidence as it now stands removes from the trial court’s consideration any resolution as to the true facts of appellant’s involvement in the crime and has become a matter for jury determination. Despite the argument that the record before this court is different than the one on which the Pennsylvania Supreme Court’s Order of reversal was issued, we find the difference to be one of quantity rather than quality and that discharge is inappropriate. We, too, “cannot accept appellant’s claim that a new trial is not a sufficient remedy for the asserted prose-cutorial misconduct.” Id., 489 Pa. at 177, 413 A.2d 1072.

Order of the Court of Common Pleas of Lackawanna County is affirmed. ■ The case is remanded for proceedings consistent with this Opinion.

Jurisdiction is relinquished.


text:
    484 A.2d 168
    Cynthia L. PARKER v. Denton E. PARKER, Appellant.
    Argued June 7, 1984.
    Filed Nov. 9, 1984.

      Warren R. Baldys, Jr., Williamsport, for appellant.
    John P. Campana, Williamsport, for appellee.
    Before MeEWEN, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

This is an appeal from the Order of the Court of Common Pleas, Lycoming County, entered January 4, 1983, directing appellant/husband to pay $105 per week alimony pendente lite to his wife, Cynthia L. Parker. Wife filed for divorce on February 16, 1982, requesting, inter alia, alimony pen-dente lite, interim counsel fees and costs. A hearing was conducted before a master, and findings and recommendations were made on wife’s requests. Exceptions were timely filed to the master’s proposed order, and the lower court, after a hearing, entered the appealed from order. This appeal followed. The single issue on appeal is whether service-connected disability benefits paid by the Veterans’ Administration to appellant can be considered in determining the amount of alimony pendente lite to be awarded. We hold that such benefits may be considered and, therefore, affirm the order of the lower court.

Our scope of review of an award of alimony pendente lite is limited to determining whether or not the trial court has manifestly abused its discretion in awarding or denying alimony pendente lite. Cross v. Cross, 310 Pa.Super. 124, 456 A.2d 214 (1983).

The record discloses that the parties were married in 1975. Wife receives $127 per month from Social Security and $145 per month from the Veterans’ Administration. She is trained as a beautician but remains in the home as the primary caretaker of the parties’ two children. The lower court found that she could earn approximately $240 per month as a beautician working from her home. Appellant is certified as disabled resulting from his tenure in the military. Due to his disability, he receives $682 per month from Social Security and $1177 per month from the Veterans’ Administration. Appellant also has a modest cash savings and a rental property.

Appellant argues that the lower court erred in considering his service-connected disability Veterans’ Administration benefits in determining the amount of the award of alimony pendente lite since 38 U.S.C.A. § 3101(a) provides that those benefits are exempt from the claims of creditors. That code section states the following:

Payments of benefits due or to become due under any law administered by the Veterans’ Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary____

The purpose of the exemption under 38 U.S.C.A. § 3101(a) is to protect the recipient of the benefits from claims of creditors, see In re Estate of Pierce, 492 Pa. 10, 421 A.2d 1065 (1980) (and cases cited therein), and to afford some degree of security to the recipient’s family and dependants. State ex rel. Eastern State Hospital v. Beard, Okl., 600 P.2d 324 (1979). Section 3101(a) does not apply in this case since a wife seeking to recover alimony pendente lite is not a “creditor” of her husband, the claim not being based upon a debt. See Magrini v. Magrini, 263 Pa.Super. 366, 371 n. 3, 398 A.2d 179, 181 n. 3 (1979); Commonwealth v. Berfield, 160 Pa.Super. 438, 441, 51 A.2d 523, 525 (1947); Commonwealth ex rel. Peterson v. Peterson, 100 Pa.Super. 600 (1930); see also Commonwealth ex rel. Deutsch v. Deutsch, 347 Pa. 66, 68, 31 A.2d 526, 527 (1943). Other jurisdictions agree. See, Mims v. Mims, Ala.App., 442 So.2d 102 (1983); Smolin v. First Fidelity Savings and Loan Association, 238 Md. 386, 209 A.2d 546 (1965) (and cases cited therein); Gerold v. Gerold, 6 Or.App. 353, 488 P.2d 294 (1971); see also, Brown v. Brown, 32 Ohio App.2d 139, 288 N.E.2d 852 (1972) (social security benefits); Meadows v. Meadows, Okl., 619 P.2d 598 (1980) (workman’s compensation benefits); Dillard v. Dillard, Tx.App., 341 S.W.2d 668 (1960). Furthermore, the instant proceeding is not litigation in which the wife seeks to attach, levy or seize appellant’s veterans’ benefits. Suffice it to say, 38 USCA § 3101(a) does not preclude consideration of these benefits by the court as a source of income coincident to appellant’s ability to pay and upon which an award of alimony pendente lite may, in the particular circumstances of the case, be based. See, Orr v. Orr, 315 Pa.Super. 168, 461 A.2d 850 (1983); Bees v. Bees, 255 Pa.Super. 19, 386 A.2d 114 (1978).

Appellant also argues that 42 U.S.C.A. § 659(a) and 42 U.S.C.A. § 662(f)(2) bar from consideration service-connected disability payments. Section 659(a) states the following:

Enforcement of individual’s legal obligations to provide child support or make alimony payments
(a) United States and District of Columbia to be subject to legal process
Notwithstanding any other provision of law (including section 407 of this title) effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the armed services, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments.

Section 662(f)(2) states the following:

For purposes of section 659 of this title—
(f) Entitlement of an individual to any money shall be deemed to be “based upon remuneration for employment”, if such money consists of—
(1) •••
(2) periodic benefits ... which provides for the payment of pensions, retirement or retired pay, annuities, dependents or survivors’ benefits, or similar amounts payable on account of personal services performed by himself or any other individual (not including any payment as compensation for death under any Federal program, any payment under any Federal program established to provide “black lung” benefits, any payment by the Veterans’ Administration as pension, or any payments by the Veterans’ Administration as compensation for a service-connected disability or death, ...), and does not consist of amounts paid, by way of reimbursement or otherwise, to such individual by his employer to defray expenses incurred by such individual in carrying out duties associated with his employment.

With the passage of this act, Congress intended to remove the bar of sovereign immunity enjoyed by the United States so as to permit garnishment of pays of federal employees who might otherwise fail to make alimony or support payments. Appellant contends that Congress intended to prohibit evidence of receipt of Veterans’ Administration benefits in the consideration of the amount of alimony pendente lite. Furthermore, appellant contends that consideration of these benefits contravenes the Supremacy Clause, U.S. Constitution, Art. VI, cl. 2. Such contentions are unsupportable. It is true that appellant’s benefits are service-connected and, therefore, are not "... moneys [ (]the entitlement to which is based upon remuneration for employment) ] ...” under § 659(a). While it may be correct that these payments in the hands of the government are not subject to legal process brought for the enforcement of appellant’s legal obligation to make a payment of alimony pendente lite, nothing here persuades us that these benefits cannot be considered in determining the amount of the award. See Meadows v. Meadows, supra; compare Miller v. Miller, 96 N.M. 497, 632 P.2d 732 (1981).

We find that the trial court has not manifestly abused its discretion and, therefore, affirm the order of the lower court.

Order affirmed.

      . Appellant was also ordered to pay arrearages and interim costs to reimburse the master’s fee. This part of the order is not challenged on appeal.

      . See 4 U.S.Code Cong., and Admin.News, 93rd Congress, 2d Session, pp. 8133, 8157. See also Diaz v. Diaz, 568 F.2d 1061 (4th Cir.1977); Young v. Young, 547 F.Supp. 1 (W.D.Tenn.1980); Meadows v. Meadows, supra.


author: POPOVICH, Judge:

text:
    484 A.2d 171
    COMMONWEALTH of Pennsylvania v. Carl REDEL, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 28, 1984.
    Filed Nov. 9, 1984.

      Jeffrey M. Miller, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before OLSZEWSKI, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

Appellant, Carl Redel, was convicted by a jury of arson endangering property and creating a danger, arson endangering property in an attempt to collect insurance, risking a catastrophe, and recklessly endangering other persons, all in violation of Title 18 C.P.S. §§ 3301, 3302, 3304 and 2705, respectively.

A criminal mischief charge was withdrawn by the prosecution at the close of trial testimony. Appellant was acquitted of arson endangering other persons.

Appellant was sentenced to ten years reporting probation with mandatory out-patient psychotherapy and a fine of $10,000. Appellant’s trial counsel filed post-verdict motions which were denied.

The relevant facts are as follows. On June 22, 1981, at approximately 3:00 A.M., the Philadelphia Fire Department was called to a fire at 1031 South 9th Street in Philadelphia. The building was owned by the appellant who used the first floor as a storage area for eggs in connection with his egg and poultry business. The appellant ran his business from two nearby buildings located at 1029 and 1037 South 9th Street.

A neighbor, Barbara Guarner, who was returning home with her husband from a trip to Atlantic City, observed fire coming from appellant’s property. She also observed appellant in front of the building in a dazed condition. (N.T. 4.11) While Guarner phoned the fire department, her husband watched the appellant enter a silver Chrysler which was parked nearby. Appellant remained at the scene of the fire. Finally, he was ordered to move his car by a police officer but did not leave the area until Mrs. Guarner shouted to another officer that "he (appellant) was the one who came out of the building.” (N.T. 4.12)

Appellant was stopped approximately two blocks from the fire scene. He was arrested by Officers Leo Judge, James Long, and Kathleen Long of the Philadelphia Police Department and was transported to police headquarters by Officer James Long, who observed that Redel was “in shock,” “white,” “perspiring” and “smelled of gasoline.” (N.T. 3.112)

Inside the car on the front seat, police officers found a box containing four empty one-gallon bleach jugs. Six more of the same type of container were found in the trunk. The vehicle smelled of gasoline (N.T. 1.32), and it was later determined that the jugs contained gasoline residue. (N.T. 5.27) It was the opinion of the Fire Marshal’s expert that the fire was caused by ignited gasoline. (N.T. 4.100-4.101) In addition, police officers found one empty matchbook, three packs of partially used matches and a complete wardrobe of laundered clothes sized to fit appellant in the car. (N.T. 4.36, 4.38, 4.39)

As the result of these incidents and the evidence found, appellant was charged with the crimes leading to this appeal.

Six issues are raised on appeal: (1) whether the Commonwealth violated appellant’s Fifth Amendment right to remain silent by cross-examining appellant about his post-arrest silence and commenting upon it in closing argument; (2) whether the trial court erred in refusing to allow appellant to present relevant evidence that he was a Holocaust survivor to explain his conduct during arrest and his presence at the scene of the fire at 3:00 A.M.; (3) whether the District Attorney’s argument that appellant’s reputation was irrelevant because “Jean Harris” also had a good reputation before committing murder, and the prosecutor’s statement that appellant said nothing when arrested because he knew he had been caught “red-handed,” were inflammatory, misleading, and prejudicial remarks violating appellant’s right to a fair trial; (4) whether the Commonwealth’s prejudicial comments amounted to prosecutorial overreaching precluding retrial under the Double Jeopardy Clause of the Fifth Amendment; (5) whether the trial court erred in refusing to instruct the jury that where evidence presented is equally capable of two inferences, guilt or innocence, the jury must adopt the conclusion consistent with innocence; and (6) whether the trial court erred in instructing the jury that a defendant charged with a catastrophe and recklessly endangering other persons need not intend the danger he creates.

Appellant contends that references by the District Attorney, in his cross-examination of appellant and in his closing argument, constitute reversible error warranting the grant of a new trial. We agree.

The law is clear that questions or comments by a prosecutor concerning a defendant’s post-arrest silence constitute a clear violation of the defendant’s Fifth Amendment right to remain silent. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91 (1976). In addition, the court in Commonwealth v. Williams, 296 Pa.Super. 97, 100, 442 A.2d 314, 316 (1982) held: “An accused’s Fifth Amendment right to remain silent is unequivocal. Any mention of the fact that a defendant availed himself of that protection must be scrupulously avoided.”

The United States Supreme Court established the constitutional permissibility of references at trial to post-arrest silence where the silence in question occurred prior to the giving of Miranda warning. Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 1310, 1312, 71 L.Ed.2d 490 (1982). However, the Pennsylvania Supreme Court, acknowledging that their position is more restrictive than that taken by the United States Supreme Court in Fletcher v. Weir, id., declined to hold, under the Pennsylvania Constitution, that the existence of Miranda warnings, or their absence, affects a person’s legitimate expectation not to be penalized for exercising the right to remain silent. Commonwealth v. Turner, 499 Pa. 579, 584, 454 A.2d 537, 540 (1982).

In Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826 (1976) our Supreme Court declared:

The law is clear. It is reversible error to admit evidence of a defendant’s silence at the time of his arrest. Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590 (1973); Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). The prohibition of any reference to an accused’s silence reflects the court’s desire that an accused not be penalized for exercising his constitutional rights. Commonwealth v. Stafford, supra; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is a recognition that most lay persons would view an assertion of the constitutional privilege as an admission of guilt. Commonwealth v. Haideman, 449 Pa. at 371, 296 A.2d at 767, citing Walker v. United States, 404 F.2d 900, 903 (5th Cir.1968). Id. 465 Pa. at 403-04, 350 A.2d at 828.

However, neither the Supreme Court nor the Superior Court has failed to recognize that, in certain circumstances, curative measures can eradicate possible prejudice. In Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976), Justice Eagen, after reviewing conflicting Pennsylvania authorities, wrote for a plurality of the Court:

In order that there will be no confusion henceforth, we now specifically rule that in Pennsylvania adequate instructions under some circumstances may cure error of the nature here complained of Initially, whether the harm can be removed by curative instructions will be within the sound discretion of the trial judge and his determination will be subject to appellate review. In making this decision, the following will be important considerations but not necessarily exclusive: (1) the nature of the reference, particularly, whether it was a specific comment on the accused’s silence at trial or at the time of arrest or whether it was, as in Commonwealth v. Ross [403 Pa. 358, 169 A.2d 780 (1961) ], merely a reference to the fact that incriminating evidence of the Commonwealth was undenied or uncontradicted; and (2) whether the accused’s silence was exploited by the district attorney. Id. 469 Pa. at 349, 365 A.2d at 1241.

In the instant case, appellant took the stand in his own defense and testified that he did not set the fire. Rather, he had remained in the building to fix the conveyor belts on his machinery and to take care of the flooding in the basement and, after making the necessary repairs, had taken a nap on the third floor of the premises. Later, after leaving the building and the area, he was arrested by police on charges of setting fire to the building.

On cross-examination, the District Attorney asked the following questions:

Q. After they told you to put your hands up they then handcuffed you did they not?
A. Yes, behind my back.
Q. An[d] put you in the police car?
A. Yes.
Q. An[d] took you away?
A. Yes.
Q. Didn’t you wonder why?
A. I didn’t know why.
Q. Did you ask?
A. I didn’t ask.
Q. Officer Massaro was there, your friend?
A. He wasn’t there when they was arresting me.
Q. But he came up and saw what was going on?
A. Ño, I moved away about seven or eight or ten or twelve doors away when I make the right turn there.
Q. An[d] you did not ask why you were being arrested?
A. No.
Q. If you did not know the building was burning can you tell us whether you heard the young lady shout stop that car. Did you hear that?
A. No, I didn’t hear that.
Q. That had nothing to do with you?
A. I didn’t hear that.
Q. Mr. Redel, isn’t it true that you knew why they were locking you up. You knew didn’t you, sir?
A. What’s that?
Q. You knew why they were locking you up so therefore you didn’t have to ask?
A. I didn’t know it.
Q. Did you call your lawyer?
MR. SLOMSKY: May we see you at side bar.
THE COURT: No, not yet.
(N.T. 8.121-8.122)

Later, in his closing argument, the District Attorney again remarked that appellant had remained silent during his arrest and asked the jury to infer from that silence that appellant knew why he was being arrested, i.e., he was guilty:

Now when Mr. Slomsky was talking to you he said that isn’t it strange that Mr. Redel didn’t complain about being arrested. That is not what I asked him. I didn’t say anything about complaints, I said why didn’t you ask and Ladies and Gentlemen of the jury, I urge you to believe that he already knew why he was being arrested. He knew more than anyone else knew. He knew the building was burning and he knew that he had been caught with the evidence red-handed.
(N.T. 9.106)

The District Attorney’s questions and remarks concerning the appellant’s post-arrest silence are nothing but blatant violations of appellant’s Fifth Amendment right to remain silent. The record reveals no testimony or other circumstances to justify the need for even one such prejudicial question or remark, let alone a number of them. Through his questions and remarks, the District Attorney clearly attempted to reinforce the issue of appellant’s post-arrest silence on the minds of the jury and to lead the jurors to believe that the appellant’s silence was an admission of his guilt. Thus, this is a distinct case of exploitation of appellant’s silence by the District Attorney.

In the instant case, we reject the argument offered by the Commonwealth in its brief that in the context of the record, recounted in great detail, “there is no reasonable possibility that a few brief and passing references to defendant’s post-arrest silence in a two-week trial could have contributed to the verdict, and any possible error in this regard must be considered de minimus.” Such error is “harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless.” Commonwealth v. Story, 476 Pa. 391, 405, 383 A.2d 155, 162 (1978). Unless the court determines that the error could not have contributed to the verdict, the “reasonable possibility” that the error did contribute to the verdict negates any notion of harmlessness. Id., 476 Pa. at 408-409, 383 A.2d at 164.

The jury may have decided that the Commonwealth’s case was significantly bolstered by the references to appellant’s post-arrest silence. Jury verdicts are arrived at after many objective and subjective considerations, and they do not always conform perfectly to the instructions given by the court. Turner, 499 Pa. at 585, 454 A.2d at 540. To attempt to draw such conclusions is to speculate.

The District Attorney’s questions and closing remarks concerning appellant’s post-arrest silence were direct inferences of appellant’s guilt. The appellant was not permitted to mitigate the resulting prejudice by explaining why he remained silent. His explanation involved his Holocaust experience, and Judge Abraham refused to permit such testimony since she believed it to be irrelevant and might envoke the prejudice or sympathy of the jury.

In addition, the jury sent a note to the judge asking whether they could recommend leniency. Judge Abraham answered in the negative but also told the jury that she would be glad to consider the request as a recommendation at the time of sentence and would note it on the record. (N.T. 10.30-10.31)

Thus, no sound conclusions can be drawn from the verdict about “what the jury believed” concerning appellant’s credibility. It would be pure speculation for us to assume that the jury would have resolved the case in the same manner absent the references to appellant’s post-arrest silence. Thus, we are not convinced beyond a reasonable doubt the references to appellant’s post-arrest silence did not contribute to the verdict.

It is well-settled that defendant’s failure to object to allegedly improper testimony at the proper stage in the questioning of the witness constitutes a waiver. Commonwealth v. Berrios, 495 Pa. 444, 453-454, 434 A.2d 1173, 1179 (1981). In the case at bar, the trial court in its Opinion and the Commonwealth contend that appellant’s trial counsel did not object to the questions and comments concerning appellant’s post-verdict silence at the proper stages and, thus, waived the issue.

Appellant’s appellate counsel contends and the record shows that immediately after the District Attorney had questioned appellant about his post-arrest silence, appellant’s trial counsel interrupted the cross-examination and asked to see the court at sidebar. (N.T. 8.122) The court refused. (N.T. 8.122) After re-direct examination, appellant’s trial counsel again approached the bar and specifically objected to the prosecutor’s questions on the ground that they violated appellant’s constitutional right to remain silent. (N.T. 8.131) Appellant’s counsel also asked the court at this point to reverse its earlier ruling precluding testimony about appellant’s Holocaust experience to explain why appellant was frightened and said nothing to arresting officers since the District Attorney opened the door with his improper questions. Trial counsel considered it a “catch-22” situation since the District Attorney was permitted to ask appellant why he did not ask police why he was being arrested, but the appellant was precluded by the court’s prior ruling from giving his answer. (N.T. 8.128-8.133) The objections were noted for the record and overruled. (N.T. 8.133)

Also, prior to the District Attorney’s closing argument, appellant’s counsel requested the trial court to instruct the District Attorney not to argue appellant’s silence to the jury. The request was denied since the court refused to proscribe either lawyer’s closing argument in-anticipation of what the other might say. At sidebar, the court told appellant’s counsel that he could object to improper prose-cutorial comment if and when any such comment was made. (N.T. 9.7-9.8) Counsel did not object when the actual comment was made.

After careful review of the record, we believe that appellant’s counsel did object at trial to questions and comments concerning appellant’s post-arrest silence and properly preserved the issue for review. Even though counsel did not specifically object to the District Attorney’s actual comment during his closing argument or after, we believe that his prior request put the court on notice that the remarks were prejudicial and gave the court an opportunity to either preclude such comment or attempt to correct the damage once it occurred. All testimony and opening and closing statements were recorded, and, thus, there is no dispute as to the content of the remarks. Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253, 256 (1977). Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287, 290 (1976).

Curative instructions were neither requested nor given. However, in this case, there were specific questions and comments by the District Attorney on the accused’s silence at the time of arrest. The accused’s silence was definitely exploited by the District Attorney during cross-examination of the appellant and during his. closing argument. Thus, in the context of this case, we find that a curative instruction would not have negated the inferences of guilt surrounding the appellant’s post-arrest silence.

In our view, however, this type of prosecutorial misconduct, although erroneous, does not require the extreme sanction of barring retrial of appellant. The test to be applied is whether the Commonwealth engaged in either intentional or bad faith “overreaching.” Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498, 500 (1980). The United States Supreme Court has enunciated two types of prosecu-torial overreaching. First, there is prosecutorial misconduct which is designed to provoke a mistrial in order to secure a second, perhaps more favorable, opportunity to convict the defendant. Second, there is prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 1081-1082, 47 L.Ed.2d 267 (1976).

Although the instances of misconduct in this case cannot be condoned, and clearly require reversal of the appellant’s convictions, they do not constitute overreaching. After reviewing the record, we conclude that the District Attorney’s remarks had some basis in trial strategy and cannot be considered an attempt to provoke a mistrial or a bad faith attempt to prejudice or harass the appellant.

In view of our disposition of this issue, we do not need to address the remaining questions raised in this appeal.

Accordingly, the judgment of sentence of the Court of Common Pleas is vacated, and the case is remanded for a new trial.

Jurisdiction is relinquished.

      . An expert witness called by the defense maintained that this liquid was kerosene, not gasoline. However, both men agreed that the fire was of an incendiary origin with a flammable liquid used as accelerant. (N.T. 4.100; 7.95).

      .. Appellant’s trial counsel requested the court to permit appellant to testify that appellant was in this shaken state because he was a Holocaust survivor, and when the officers converged upon him with flashing lights and handcuffs, appellant had a flashback to the time of his arrest in Poland by the gestapo, which caused him to be in a state of shock. (N.T. 4.3)
      Appellant also sought to introduce the fact of his Holocaust experience to explain his presence at the fire at such an unusual hour. In essence, appellant would have testified that he worked long hours to keep his mind from focusing on the Holocaust. Appellant’s counsel informed the trial court that appellant would not elaborate on the details of his Holocaust experience, but would only assert the fact of its existence as the reason behind his behavior. (N.T. 4.3-4.8)


author: MONTGOMERY, Judge:

text:
    484 A.2d 177
    Edwin G. ROBSON and Elizabeth Robson, His Wife, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, and Harry J. Bechman, III, An Individual.
    Superior Court of Pennsylvania.
    Argued June 20, 1984.
    Filed Nov. 9, 1984.

      Paul L. Hammer, Pittsburgh, for appellants.
    Thomas F. Weis, Pittsburgh, for appellees.
    Before TAMILIA, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The Plaintiff-Appellants instituted the instant action in assumpsit, seeking to recover certain medical payments from the Defendant-Appellees, the Appellants’ No-fault automobile insurance provider, and one of its employees. After proceedings which will be more fully discussed later in this Opinion, the lower court en banc entered an order granting the Appellees’ motion for summary judgment with regard to a part of the Appellants’ claims. The remainder of the Appellants’ claims were then rejected, just before trial, by the entry of a compulsory non-suit by the trial judge. On this appeal, the Appellants challenged the propriety of the summary judgment as well as the non-suit entered against them.

The record shows that on February 27, 1981, the minor daughter of the Appellants received personal injuries in an automobile accident. At the time, the Appellant Mr. Robson was a named insured in a policy of No-fault automobile insurance issued by the Appellee, State Farm Mutual Automobile Insurance Company. Normally, there would be no question that the Appellants’ injured minor daughter would be eligible for medical payments coverage under the terms of such a No-fault policy. However, at some time prior to February 27, 1981, Mr. Robson apparently elected to have medical insurance provided through his employment be the primary coverage for any medical expenses incurred as a result of injuries arising from the use of a motor vehicle, which would otherwise be reimbursable under the Personal Injury Protection portion of the No-fault automobile insurance policy then issued by the Appellee, State Farm.

After the accident in which his daughter was injured, Mr. Robson had a series of discussions with the Appellee Harry J. Bechman, III, a representative of State Farm. During these discussions Mr. Bechman, on one or more occasions, allegedly advised Mr. Robson that State Farm would pay him amounts for medical benefits, equivalent to the bills which had been or would be incurred by the Appellants’ daughter as a result of her February 27, 1981 injuries. Subsequently, some months later, the Appellee insurer, through Bechman, advised Mr. Robson that State Farm would not make such payments, and took the position that the Appellants’ health insurance coverage was primarily responsible, and should pay the bills.

The Appellants, as noted above, sought in this action to recover No-fault automobile insurance benefits, pursuant to their contract of insurance with State Farm, and alternatively, sought such a recovery against State Farm on a theory of estoppel, maintaining that they had detrimentally relied upon the assurances of payment which had been made. In that regard, they alleged they had incurred large debts, relying upon the expectation that State Farm was going to pay the amount of the medical bills. The Appellants also sought to recover damages from State Farm’s representative, Mr. Bechman, on a theory which Appellants described as “breach of warranty of authority”.

Prior to trial, both the Appellants and the Appellees filed motions for summary judgment. On November 10, 1982, the lower court en banc issued an order, denying the motion filed by the Appellants, but partially granting summary judgment to the Appellees, to the extent that the court determined as a matter of law that the Appellants’ non-automobile medical insurance coverage was to be the primary source of coverage for the minor daughter’s medical expenses. In its order, the lower court en banc noted its conclusion that the doctrines of waiver or estoppel could not create an insurance contract where none otherwise existed. The court dismissed the Appellants’ claims based upon such theories. Further, the court en banc ordered that the case proceed to trial on the question of whether or not there were any remaining medical expenses of the Appellants’ minor daughter for which coverage had not been provided under the Appellants’ medical insurance coverage.

The Appellants filed “exceptions” to the lower court’s November 10, 1982 order. By another order dated December 16, 1982, the lower court en banc elected to treat the “exceptions” as a motion for reargument and reconsideration, which it summarily rejected. Further, it also denied the Appellants’ request to have the case certified pursuant to 42 Pa.C.S.A. § 702(b), refusing to declare that the case involved a controlling question of law as to which there was a substantial ground for difference of opinion, and also refusing to declare that an immediate appeal from their order might materially advance the ultimate termination of the matter. While the court en banc did not prepare any opinion, its Order briefly explained the rationale for its conclusions and made reference to court decisions upon which it relied in reaching such conclusions.

On February 8, 1988 the remaining issues in the case were scheduled for jury trial. However, after the Appellants submitted an offer of proof, the trial judge entered a compulsory non-suit against them. The trial judge simultaneously permitted the Appellants to file an oral motion to take off that compulsory non-suit, which the trial judge then denied. The trial judge further waived en banc argument on the motion to take off the compulsory non-suit, apparently because he felt that the matter had already been argued before the court en banc on the motion for summary judgment. In a written order, the trial judge noted that it was his purpose to certify the case for immediate appeal. No Opinion was prepared by the trial judge to explain the rationale for his decision. Unlike the court en banc, the trial judge did not provide any written explanation of the factual or legal basis for his actions. After entry of judgment for the Appellees in the lower court, the Appellants filed the instant appeal.

Before discussing other issues presented on this appeal and troublesome procedural problems confronting our Court with regard to those issues, it is first appropriate that we address the claim by the Appellees that the Appellants failed to take a timely appeal from the summary judgment order of the court en banc. That order, as discussed above, declared as a matter of law that the Appellants’ claims based upon the doctrines of estoppel or waiver could not be maintained. Although it appears that in the lower court the Appellees successfully contested the Appellants’ efforts to bring that decision up for immediate appellate review, they now strenuously maintain that the Appellants failed to file a timely appeal from the same order. Such tactics are not useful, and are worthy of criticism. Moreover, the Appel-lees’ present position is obviously devoid of arguable merit.

The lower court en banc granted only partial summary judgment, and ordered the case to proceed to trial on remaining issues which were not resolved by the granting of the summary judgment. Also, the court en banc refused to certify that its order was appropriate for immediate appellate review. Our Court has refused to consider comparable appeals in the past which have arisen from the grant of a partial summary judgment, or its equivalent, when other matters in the case remained for resolution in further proceedings in the lower court. See Epstein v. State Farm Insurance Company, 308 Pa.Super. 33, 453 A.2d 1054 (1982) and Williams v. Erie Insurance Exchange, 290 Pa.Super. 279, 434 A.2d 752 (1981), and other decisions cited in both cases. Thus, we reject the assertion that the Appellants have waived the right to challenge the lower court’s summary judgment decision on appeal.

Unfortunately, that holding does not resolve other problems which are evident to us regarding appellate review in the instant case. As discussed earlier, the court en banc directed a trial to proceed on the question of the Appellants’ claims for medical expenses which were not covered by Mr. Robson’s medical insurance, but were not paid by State Farm under the No-fault coverage. The trial court, in a colloquy with counsel at the time it orally announced a non-suit, declared that the matter of unpaid medical bills would best be determined by discussions between counsel. The court stated that it would be “judicially inefficient” to have a jury determine such matters. The Appellants, while protesting that decision, also argued against the lower court’s refusal to permit a jury to consider a claim for counsel fees and costs which had been asserted in the Appellants’ Complaint.

Because there is no written trial court opinion in this case, and the colloquy does not adequately disclose the legal or factual rationale for the lower court’s order for a non-suit, we have no basis for any determination as to the propriety of the trial court’s order for a non-suit, or its refusal to submit these issues to a jury. Reasonable conjecture may lead to the conclusion that the trial judge’s actions were motivated by a decision on his part that the estoppel and waiver decisions of the court en banc were deserving of immediate appellate review, despite the fact that the court en banc had refused to certify their decision as deserving of such treatment. Thus, it is clear that the present procedural posture of the case makes it impossible for us to meaningfully review the question of unpaid medical expenses, which the court en banc referred to a jury trial. No jury trial took place, and the claim simply has not been resolved in any way by the trial court. It is also evident that neither the court en banc nor the trial judge addressed the Appellants’ claims against the Appellees for legal fees and costs. Further, the issue of the possible liability of the Appellee Harry J. Bechman, III has never been resolved in any way in the lower court.

The Appellants raised all of these issues in the lower court and again on this appeal. We cannot properly decide them in the present setting of the case. We also cannot resolve the questions raised on this appeal by the Appellants regarding the correctness of the lower court’s order entering summary judgment on the Appellants’ estop-pel and waiver claims against State Farm because such matters are interlocutory, pending the complete disposition of all issues in the case in the lower court. This case must be remanded to the lower court to address the various problems and questions which remain undecided.

While it appears that a trial may be appropriate to resolve some of the issues presented, we can take no position regarding the possible merit in any of the Appellants’ unresolved claims, but will leave those for resolution by such rulings or proceedings as the lower court may deem proper. In view of the likelihood of further trial proceedings, it is not appropriate that we retain jurisdiction. However, in the event of any future appeal by any party, the lower court should furnish an opinion detailing its rationale for any of its rulings or actions which become the subject of appellate review.

The lower court’s order of non-suit is vacated and this case is remanded to the lower court for further proceedings consistent with this Opinion. Jurisdiction is not retained.

      . See Pennsylvania Rule of Appellate Procedure 1925.