author: ROWLEY, President Judge: KELLY, Judge,

text:
    639 A.2d 46
    COMMONWEALTH of Pennsylvania v. Robert CANFIELD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 28, 1993.
    Filed March 4, 1994.

      Albert V.F. Nelthropp, Allentown, for appellant.
    Robert L. Steinberg, Dist. Atty., Allentown, for Com., appellee.
    Before ROWLEY, President Judge and McEWEN and KELLY, JJ.
   ROWLEY, President Judge:

Robert Canfield has appealed from the judgment of sentence which was imposed upon him following his plea of nolo contendere to Criminal Conspiracy to Commit Involuntary Deviate Sexual Intercourse, a felony of the second degree. On appeal, he contends that the sentence was (1) “manifestly excessive” in violation of “the whole spirit and philosophy of the [Sentencing] Guidelines” because it failed to take into account his lack of a prior record and also in that it was greater than the sentence imposed upon his co-defendant; (2) that it was imposed without adequate consideration of his rehabilitative needs; and finally, (3) that the sentencing court failed to provide a contemporaneous statement setting forth its reasons for departing upward from the Guidelines in sentencing him to the maximum term of incarceration allowed by law. After careful consideration of the arguments presented to us on these issues and following a conscientious review of the record, we conclude that appellant’s claims are merit-less. Therefore, we affirm appellant’s judgment of sentence.

The trial court accurately and succinctly set forth the factual underpinnings of this case, as follows:

“... [A]ppellant and his female co-defendant [who was also his fiancee] were managers of a Denny’s Restaurant at which [the victim] worked as a waitress. The three voluntarily ingested cocaine and alcohol together at appellant’s apartment to the extent that the victim suffered what sounds like a black-out. When she again became aware of events, she was lying naked on the bed of appellant and the co-defendant in the bedroom of [appellant and his co-defendant in] their apartment. The co-defendant was lying beside the victim. The appellant was pinning the victim’s hands above her head. Appellant attempted to insert his penis in[to] the victim’s mouth several times but was unsuccessful. [Meanwhile,] the female co-defendant performed oral sex on the victim against [the victim’s] will. All this drew resistance and screams from the victim which alerted neighbors[,] who [then] called the police. When the police arrived, the victim ran from the apartment half clothed and screaming hysterically.”

(Trial Court Opinion, 6/13/93, p. 3). Both appellant and his co-defendant were then arrested.

Appellant was charged with two counts of rape, two counts of involuntary deviate sexual intercourse, two counts of aggravated indecent assault, and two counts of indecent assault. Thereafter, a plea bargain was reached in which the Commonwealth agreed to drop all eight of the above-mentioned charges if appellant would plead nolo contendere to Criminal Conspiracy to Commit Involuntary Deviate Sexual Intercourse.

The criminal information was then amended to reflect the conspiracy charge and in accordance with the plea agreement, appellant pled no contest. Before he entered his plea, however, the trial court advised appellant that he could potentially receive up to the maximum of ten years in jail and a $25,-000.00 fine. Appellant stated that he understood this, and further, he acknowledged his understanding that there was no agreement regarding the sentence the court would impose. Following preparation of a pre-sentence investigation report, appellant was sentenced to a term of imprisonment of not less than five (5) nor more than ten (10) years. This timely appeal followed.

Before addressing the merits of appellant’s claims, we note that this appeal is only as to the discretionary aspects of sentencing. The legality of the sentence is not at issue. As noted recently by this Court in Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992) (en banc):

“[i]n such a case, the appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal. Pa.R.A.P.; Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Zelinski, 392 Pa.Super. 489, 573 A.2d 569 (1990), alloc, denied, 527 Pa. 646, 593 A.2d 419 (1990); Commonwealth v. Stalnaker, 376 Pa.Super. 181, 545 A.2d 886 (1988). ‘Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.’ 42 Pa.C.S.A. § 9781(b), referring to Chapter 97 (Sentencing). The determination of whether a particular issue constitutes a substantial question as to the appropriateness of sentence must be evaluated on a case-by-case basis; the court will be inclined to allow [the] appeal where the appellant advances a colorable argument that the trial judge’s actions were inconsistent with a specific provision of the sentencing code or contrary to the fundamental norms which underlie the sentencing process. Commonwealth v. Catanch, 398 Pa.Super. 466, 581 A.2d 226 (1990).”

Jones 418 Pa.Super. at 99-100, 613 A.2d at 590.

As to the first argument advanced in support of appellant’s excessiveness claim, we rely upon Jones, supra in concluding that it fails to raise a substantial question pursuant to 42 Pa.C.S.A. § 9781(b). In Jones, an appellant’s contention that his sentence was “manifestly excessive” due to the lack of a prior record was held not to raise a substantial question. Id. at 100, 613 A.2d at 590.

As to the second portion of appellant’s excessiveness claim, we find that a substantial question has been presented because a disparity between sentences imposed upon co-defendants does touch upon the fundamental norms which underlie the sentencing process. Having reviewed the issue, however, we conclude that it is without merit. In so concluding, we rely upon Commonwealth v. Jorden, 333 Pa.Super. 291, 482 A.2d 573 (1984). “The appellant’s claim is that the sentence is excessive, not that the sentencing judge failed to state on the record the reason for the disparate sentences.” Id. at 305 n. 7, 482 A.2d at 580 n. 7 (emphasis added). Thus, in the instant case, as in Jorden, “[t]he imposition of sentence is a matter vested in the sound discretion of the sentencing judge, [citations omitted]. We find no abuse of discretion,” Id. at 305, 482 A.2d at 580.

Moving on to appellant’s second issue, we refer to Commonwealth v. Smith, 394 Pa.Super. 164, 575 A.2d 150 (1990) in deciding that it, too, fails to raise a substantial question. In Smith, this Court decided that an argument concerning the weight that a sentencing court gives to legitimate sentencing factors (such as a defendant’s rehabilitative needs) does not raise a § 9781(b) substantial question.

Appellant’s third claim, however, does raise a substantial question in that it advances at least a colorable argument that the trial judge’s actions were inconsistent with a specific provision of the sentencing code. In support of our conclusion in this regard, we again rely upon Jones, supra and Commonwealth v. Thomas, 370 Pa.Super. 544, 550-551, 537 A.2d 9, 12 (1988). In both cases, this Court found a substantial question existed as to the appropriateness of the sentence imposed because, in fashioning it, the sentencing court failed to provide sufficient reasons of record for deviating upward from the guidelines.

The pertinent provision of the Sentencing Code, 42 Pa.C.S.A. § 9721(b), states as follows:

“General Standards.—In selecting from the alternatives [of probation, partial or total confinement, and/or a fine] the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court should also consider [the guidelines promulgated by the] Pennsylvania Commission on Sentencing ... In every case in which the court imposes a sentence for a felony or misdemeanor the court shall make as part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing ..., the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.”

42 Pa.C.S.A. § 9721(b). (emphasis added).

In Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984), this Court observed that if:

“... the sentence imposed [is] outside the guidelines provided by the Pennsylvania Commission on Sentencing, two issues are raised: (1) was the statement of the court made [and recorded] at sentencing in [appellant’s] presence ... a ‘contemporaneous written statement’; and if so then, (2) is the statement sufficient to meet the requirements of the act.”

Id. at 68, 476 A.2d at 457. (emphasis added).

We decide that, in the instant case, as in Royer, supra, the sentencing court’s statement made on the record and in appellant’s presence is a “contemporaneous written statement” within the meaning of § 9721(b). Id. at 69, 476 A.2d at 457. See also: Commonwealth v. Clever, 395 Pa.Super. 192, 195-196, 576 A.2d 1108, 1109 (1990). Thus, we reach the second step of the analysis, in which we are required to determine whether the sentencing court’s statement of reasons is statutorily sufficient.

In addressing this sentencing issue, we observe that:

“... the sentencing function is a matter vested in the sound discretion of the trial court whose judgment will not be disturbed by an appellate court in the absence of an abuse of discretion, [citations omitted]. When reviewing sentencing matters, we must accord the sentencing court great weight as it is in the best position to view the defendant’s character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime, [citation omitted].”

Jones, supra 418 Pa.Super. at 101-102, 613 A.2d at 591. (emphasis added). Furthermore:

“[a]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion [or imposing sentence] the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence of record, discretion is abused.”

Commonwealth v. Kocher, 529 Pa. 303, 305, 602 A.2d 1308, 1310 (1992). (emphasis added).

In the instant case, after careful consideration of all relevant facts and legal authorities, we conclude that the trial court did not abuse its discretion in sentencing appellant. The trial court detailed its reasons for deviating upward from the guidelines on the record, and although it did not recite the specific range of permissible sentences under the guidelines, we decide that its statement of reasons was statutorily sufficient pursuant to § 9721(b).

The statute requires a trial judge who intends to sentence a defendant outside the guidelines to demonstrate on the record, as a proper starting point, his awareness of the sentencing guidelines. Having done so, the sentencing court may deviate from the guidelines, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community, so long as he also states of record “the factual basis and specific reasons which compelled [him] to deviate from the guideline range.” Royer, supra at 70-71, 476 A.2d at 458. See also: Commonwealth v. Breter, 425 Pa.Super. 248, 624 A.2d 661, 663 (1993); Commonwealth v. Moyer, 421 Pa.Super. 102, 108-109, 617 A.2d 744, 747 (1992); Commonwealth v. Kephart, 406 Pa.Super. 321, 328-329, 594 A.2d 358, 361 (1991); Commonwealth v. Clever, 395 Pa.Super. 192, 196, 576 A.2d 1108, 1110 (1990); Commonwealth v. Rich, 392 Pa.Super. 380, 384, 572 A.2d 1283, 1285 (1990); and Commonwealth v. Sanchez, 372 Pa.Super. 369, 377, 539 A.2d 840, 842 (1988) (en banc), aff'd, 522 Pa. 153, 560 A.2d 148 (1989).

We recognize that in the above-cited cases, our Court has opined that, prior to deviating from the guidelines, a sentencing judge must specifically articulate the permissible range of sentences under the guidelines on the record. However, we do not believe that the holdings of those cases control the disposition of this case. In those cases, unlike the instant one, affirmative evidence was presented on appeal to show that the sentencing court was either mistaken or unaware of the correct range of permissible sentences such that this Court was unable, in reviewing the judgment of sentence, to determine if “the correct starting point in the guidelines [was considered] before sentencing outside them.” Kephart, supra 406 Pa.Super. at 328-329, 594 A.2d at 362.

In this case, there is no evidence that the trial court was incognizant of the guidelines; rather, the sentencing transcript strongly suggests that the trial court was acutely aware of the standard range (4-12 months), the mitigated range (2^4 months) and the aggravated range (12-18 months) applicable to an individual, with no prior record, for the crime of conspiracy to commit involuntary deviate sexual intercourse. The instant trial judge made it quite plain, however, that he found said guidelines, including the aggravated range, far too lenient to adequately address appellant’s crime in light of the terribly unusual and shocking facts of the subject incident. In the exercise of its discretion, the trial court clearly communicated its intention to sentence appellant to the maximum penalty permitted by law. Indeed, prior to his plea, appellant was advised that such a sentence was distinctly possible.

At the sentencing hearing, prior to the imposition of appellant’s sentence, the trial court stated at length:

“Next, I’d like to make mention again, as for the reasons for the sentence. I’ve taken into account the fact that [appellant] has no prior criminal record. [Appellant] will recall that at the time the plea was entered, I asked him that question and it’s accurate that he has no criminal record. I will also take into account that he has served his country honorably and that speaks well of [appellant] and [also] we take [defense counsel] at his word as to his relationship with [appellant] pertaining to the fashion in which he has dealt with [counsel]. Those factors and all of the other favorable factors mentioned in the presentence report are taken into account by the court. And quite frankly, those were major considerations in the court’s acceptance of the subject [no contest] plea. If [appellant] had not led the responsible life that he led up to the time of these incidents, there very well may have been a rejection of this plea by the court. So, we took them into account in that regard. We’re also taking those favorable things into account in imposing the sentence that we’re about to impose. There’s a converse side to this. And the converse side is as follows.
We feel that the criminal conduct of [appellant], and we recognize that its a nolo contendere plea to criminal conspiracy to commit involuntary deviate sexual intercourse, that it caused or threatened harm to the victim in this case.... We feel that [appellant] is in need of correctional rehabilitation that can best occur by means of commitment to an institution. We feel that a lesser sentence would depreciate the seriousness of this crime and confinement is more likely to contribute to the rehabilitation of [appellant] than probation. We hear what [appellant] is saying pertaining to the ingestion of drugs, but at some point, especially when you’re forty-six years old, you’ve got to understand that you’re responsible for conduct that occurs while you’re under the influence of drugs.
We note that the sentencing guidelines, of course, provide a recommended standard range, aggravated range, and mitigated range. They are guidelines only. They are not binding upon the court and we feel that these guidelines do not accurately provide the court with the proper guidance in this particular case[,] [i]n that these guidelines for this particular offense cannot adequately address what occurred at the time that this crime was committed. [Appellant,] in committing the criminal act that he did, in concert with his codefendant under his plea, violated this particular victim in a most degrading way and we remember the things that the defense has alleged about the victim. Even if all of those are true, and the court is making no finding in that regard, even if all those are true, in no fashion do they mitigate or are they an excuse for the conduct of [appellant] in violating this victim in the fashion that she was violated.
The protection of the community requires the sentence that the court is about to impose and for all of those reasons, we depart from the guidelines, including the aggravated range ...”

(Sentencing Transcript, 11/30/92, p. 29-31). (emphasis added).

We do not believe that the trial court could have been more clear as to its reasons for deviating upward from the guidelines. Thus, although the trial court did fail to note the specific range of sentences recommended by the guidelines, we feel that the statutory requirements of § 9721(b) have been met in the subject case. Therefore, while we are urged by appellant to vacate the subject sentence and remand for resentencing merely because the trial judge failed to utter the “magic words” exactly as stated in the guidelines, we will not do so as such a disposition would be to exalt form over substance. We affirm the judgment of sentence. In so doing, however, we strenuously caution the trial court that, in the future, prior to sentencing a defendant outside the guidelines, it would do well to specifically articulate the guideline range of sentences and its precise reasons for deviating therefrom on the record.

Judgment of sentence affirmed.

KELLY, J., files a concurring statement.

KELLY, Judge,

concurring:

I wholeheartedly join the majority. I write only to add the following thoughts regarding the appellant’s allegation that his sentence was manifestly unjust because of the gross disparity between his sentence and that of his codefendant.

Pennsylvania law is well settled that the imposition of sentence is a matter vested in the sound discretion of the sentencing judge, and the trial court is not bound to impose an identical sentence on all participants of a crime. Commonwealth v. Myers, 370 Pa.Super. 326, 330, 536 A.2d 428, 430 (1988) (citing Commonwealth v. Sinwell, 311 Pa.Super. 419, 427, 457 A.2d 957, 960 (1983)). However, when imposing different sentences on codefendants, the court must articulate the differences between the codefendants which justify the disparate sentences and should articulate, on the record, its reasons for imposing a more severe sentence on one codefendant than on another codefendant. Commonwealth v. Besch, 418 Pa.Super. 576, 585, 614 A.2d 1155, 1160 (1992); Commonwealth v. Szczesniewski, 404 Pa.Super. 617, 620, 591 A.2d 1055, 1056 (1991), allocatur denied, 530 Pa. 654, 608 A.2d 29 (1992); Commonwealth v. Losch, 369 Pa.Super. 192, 211, 535 A.2d 115, 124 (1987); Commonwealth v. Sinwell, supra. We note also that even in those instances where codefendants are sentenced by different judges, there should not be gross disparity in the sentences imposed on codefendants, unless factors exist to warrant the unequal sentences. Commonwealth v. Szczesniewski, supra (quoting Commonwealth v. Holler, 326 Pa.Super. 304, 310, 473 A.2d 1103, 1107 (1984)); Commonwealth v. Myers, supra. See generally Commonwealth v. Fuller, 396 Pa.Super. 605, 579 A.2d 879 (1990), allocatur denied, 527 Pa. 585, 588 A.2d 508 (1991).

In the instant case, the appellant entered a plea of nolo contendere to the crime of criminal conspiracy to commit involuntary deviate sexual intercourse, a felony of the second degree, on October 19, 1992, before Judge William E. Ford. He was then sentenced by Judge Ford, on November 30,1992, to a term of imprisonment of not less than five years nor more than ten years. In contrast, the appellant’s codefendant, Patricia Alama, entered a plea of nolo contendere four and one-half months later, on March 1, 1993, to the crime of criminal conspiracy to commit indecent assault, a misdemean- or of the second degree. She was sentenced by Judge Ford to a term of imprisonment of not less than six months nor more than one day less than twenty-four months. Because the appellant and his codefendant entered pleas of nolo contendere to different crimes of vastly different seriousness, factors which would warrant unequal sentences, the sentencing court was not required to recite on the record the reasons for the disparity in their sentences.

      . We note that the Commonwealth’s brief erroneously states that "appellant was sentenced to serve no less than two and one-half nor more than five years in a state correctional facility.”

      . We take judicial notice of the information contained in the docket of Case Number 3707/1991, Commonwealth v. Alama, Court of Common Pleas of Lehigh County, Criminal Division, concerning the original charges, the subsequent pleas, and the eventual sentence. “A court may properly take judicial notice of uncontested notations in the court record.” Commonwealth v. Byrd, 325 Pa.Super. 325, 332, 472 A.2d 1141, 1145 (1984). Further, the court may take judicial notice of a record which bears the seal of any court in the state. Commonwealth v. Socci, 177 Pa.Super. 426, 110 A.2d 862 (1955).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    639 A.2d 52
    COMMONWEALTH of Pennsylvania, Appellee, v. John D. IRWIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1993.
    Filed March 21, 1994.
    Reargument and Reconsideration Denied May 24, 1994.

      Richard F. Pohl, Greensburg, for appellant.
    Maria V. Copetas, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before KELLY, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

The appellant, John D. Irwin, appeals the denial of his second request for relief pursuant to the Post-Conviction Relief Act (PCRA). We affirm.

The facts are undisputed and reveal that on November 9, 1988, the appellant appeared before the Honorable Walter Little charged with Rape, Statutory Rape and Involuntary Deviate Sexual Intercourse. Prior to the commencement of the non-jury , trial, the appellant indicated his willingness “to plead generally to the charges”. N.T. 9-10. However, before a plea could be entered formally, the appellant decided that he “didn’t commit the charges ... [and could]n’t plead guilty to them.” Id. at 14. Thereafter, the appellant was tried non-jury and found guilty of Rape and Involuntary Deviate Sexual Intercourse.

At the time set for sentencing, two llk to 15-year periods of imprisonment, to be served concurrently, were imposed by the court. An appeal was perfected by counsel other than trial counsel alleging the ineffectiveness of trial counsel for, inter alia, not seeking the court’s recusal after the appellant commented prior to trial that he wanted to plead guilty. This Court found the claim to be meritless: “From our review of the record, we conclude that trial counsel was not ineffective for not requesting recusal, for recusal was unwarranted in this case.” Commonwealth v. Irwin, 397 Pa.Super. 109, 579 A.2d 955, 958 (1990), appeal denied, 527 Pa. 592, 588 A.2d 913 (1991).

What followed was a PCRA petition alleging that prior counsel was ineffective for failing to raise and preserve the issue of lack of a reasonably definite date for the commission of the charges lodged, fading to raise and preserve the issue of the Commonwealth filing the Rape charge absent a preliminary hearing, and failing to secure the testimony of a child psychologist regarding the victim. By opinion and order dated August 21, 1991, the appellant’s PCRA petition was denied. An appeal was filed and this Court affirmed in a memorandum opinion at No. 1549 Pittsburgh 1991 (on March 27, 1992). Thereafter, the appellant filed a second PCRA petition alleging the ineffectiveness of trial counsel for failing to seek recusal “based upon the trial judge’s knowledge of a prior conviction (guilty plea [to Aggravated Assault and Harassment six months earlier before the same jurist]) which would have been inadmissible during the trial----” Paragraph 33.

In a brief in support of the PCRA petition, the appellant asserted that trial counsel’s failure to seek a recusal of the trial court was arguably ineffectiveness; that no objectively reasonable basis designed to effectuate the appellant’s interest could exist for the omission; and but for the act of omission there is a reasonable probability that the result would have been more favorable to the appellant. Page 3. As such, the appellant claims that failure by counsel to seek recusal denied him a fair trial warranting the reversal of the judgment of sentence and the grant of a new trial. Id. at 11.

The appellant’s second PCRA petition was denied without a hearing with the court’s determination that PCRA counsel failed to “demonstrate a miscarriage of justice” which “so undermined the truth-determining process so that no reliable adjudication of guilt or innocence could have taken place.” PCRA Court Opinion at 2. This appeal followed and claims that prior PCRA counsel was ineffective for not raising trial counsel’s failure to seek recusal of the trial judge for accepting the appellant’s plea to Aggravated Assault and Harassment six months beforehand in an unrelated case and sentencing him to 2% to 5 years imprisonment.

More specifically, appellate counsel contends that, with the judge’s possession of the appellant’s prior convictions, the failure to seek recusal by trial counsel was arguably ineffectiveness and no reasonable basis existed, which would have advanced the appellant’s interest, in not seeking recusal. Therefore, had the court recused itself, “there is a reasonable probability that the result would have been more favorable to Mr. Irwin for the reason that evidence of a prior conviction would not have been known to the trier of fact.” Appellant’s Brief at 10. We disagree.

In Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), our Supreme Court concluded that a second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. Further, the Court held that a repetitive or serial petition may be entertained only for the purpose of avoiding a demonstrated miscarriage of justice, which no civilized society can tolerate.

The language utilized by the Lawson Court is clearly reflected in the Legislature’s enactment of Section 9543(a)(2)(ii) of the PCRA, which provides that a petitioner seeking relief on a claim of ineffective assistance of counsel must plead and prove that counsel’s stewardship “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.”

With regard to the instant case, the appellant does not assert that he is innocent of the charges. Rather, he merely asserts that his trial was not fair with the trial judge’s knowledge of his prior criminal record, and, thus, recusal should have been sought.

A party seeking recusal of the trial judge bears the burden of establishing the grounds for recusal. Commonwealth v. Gibson, 389 Pa.Super. 518, 567 A.2d 724, 727 (1989). “Even the fact that the trial judge may have been made aware of improper evidence does not require recusal; because, a trial judge is presumed to be capable of disregarding improper evidence, including evidence of prior criminal acts.” Id.; Commonwealth v. Irwin, supra.

We find that the remarks of the trial court, in responding to the appellant’s first PCRA petition alleging the ineffectiveness of trial counsel for failing to seek recusal upon his admission of guilt and subsequent withdrawal of the same prior to trial, to be insightful in disposing of the present ineffectiveness argument; to-wit:

It has long been held that trial judges, sitting as factfinders, are presumed to ignore prejudicial evidence in reaching a verdict. Commonwealth v. Brown, 336 Pa.Super. 628, 486 A.2d 441 (1985). Although appellant’s request to plead guilty does not technically qualify as “prejudicial evidence”, we can conclude on the same basis that appellant’s request to plead guilty without more did not unfairly prejudice an experienced trial judge. Even under circumstances where a defendant had informed a judge that he was guilty, we have held that recusal was not always required. “A judge may be relied upon to know—as a jury may not be—that a guilty plea is not an unambiguous event.” Commonwealth v. Casella, 312 Pa.Super. 373 [375], 379, 458 A.2d 1007, 1009 (1983).

It is also presumed that a trial judge is capable of recognizing in himself the symptoms of bias and impartiality. Our Supreme Court stated in Reilly By Reilly v. Southeastern Pa. Transportation, 507 Pa. 204, 219-21, 489 A.2d 1291, 1299 (1985): “If the judge feels that he can hear and dispose of the case fairly and without prejudice, his decision will be final unless there is an abuse of discretion.” Therefore, whenever the question of recusal is raised, either on motion or sua sponte, it is best answered by the trial judge himself. Upon being presented with appellant’s claim that he had been denied a fair trial, Judge Walter Little wrote:

We have reviewed the transcript of the non-jury trial and we are satisfied that the posture taken by this court was an impartial factfinder. Further, the Court’s posture throughout the hearing was not improper nor prejudicial to the defendant and all actions were unbiased and impartial.

Trial court opinion 6/30/89 at 6. Commonwealth v. Irwin, supra, 397 Pa.Super. at 115, 579 A.2d at 958 (Emphasis added).

Accordingly, from our scrutiny of the record against the backdrop of the applicable law, see Commonwealth v. Lott, 398 Pa.Super. 573, 581 A.2d 612, 615-616 (1990), we do not find that trial counsel was ineffective for not requesting recusal. In turn, this, exonerates first PCRA counsel’s claimed ineffectiveness for failing to raise the same issue, for counsel will not be deemed inept for failing to do a meritless act. Id.

Because the appellant has failed to satisfy his burden of establishing the grounds for recusal, or that the trial judge was biased or partial, we will affirm the order of the court below dismissing the appellant’s second PCRA petition without a hearing. See Commonwealth v. Lawson, supra.

Order affirmed.

      . 42 Pa.C.S.A. § 9541 et seq.


author: CAVANAUGH, Judge:

text:
    639 A.2d 458
    R. Bruce CARLSON, Appellant, v. James R. BUBASH, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1994.
    Filed Feb. 7, 1994.
    Reargument Denied April 11, 1994.

      Matthew R. Wimer, Pittsburgh, for appellant.
    Dara A. DeCourey, Pittsburgh, for appellee.

      Before CAVANAUGH, CHULLO and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

Appellant, R. Bruce Carlson, appeals from an order denying his motion for new trial. He contends that the trial court erred by: (1) characterizing the jury’s award as a permissible compromise verdict; (2) ruling that the 1990 amendment to 75 Pa.C.S.A. § 1722 precludes the admission into evidence of medical bills and expenses for the purpose of showing the extent of pain and suffering; and (3) instructing the jury not to consider the amount of his medical expenses when no such evidence was introduced at trial. For the reasons discussed below, we affirm.

In the early morning hours of April 6, 1991, appellant was sitting in his car at the apartment complex where his former girlfriend resided awaiting her return. Eventually, she returned accompanied by appellee, James R. Bubash. After she got out of appellee’s car, appellant approached the passenger-side window. Words were exchanged and appellee accelerated his vehicle. Appellant either leaned or was pulled into appellee’s passenger window, became entangled therein, and eventually fell from the vehicle as it was moving. He suffered multiple injuries including lacerations to the face, a multiple wrist fracture, a fracture of the frontozygomatic suture line and frontal wall of the sinus, and a fractured eye socket.

On September 3, 1991, appellant filed a complaint in Allegheny County alleging that his injuries were proximately caused by the negligence of appellee. Appellee denied liability while admitting that appellant’s injuries were sustained by a fall from his car.

Pursuant to 75 Pa.C.S.A. § 1722, appellee filed a motion in limine seeking to preclude appellant from introducing evidence of medical expenses paid or payable by his insurer. Appellee’s motion was granted.

After a three day trial, the jury returned a verdict by answering special interrogatories. Both parties were found causally negligent with 55% causation assigned to the negligence of appellee, 45% to appellant. Damages of $7,500 were awarded and the court molded the verdict to reflect the assignment of causation. Appellant’s motion for new trial was denied and judgment was entered on July 19, 1993. This appeal followed.

Appellant first contends that he is entitled to a new trial because the court erred in characterizing the jury’s award as a permissible compromise verdict. Our standard of review in this matter is well-settled:

‘Where the trial court grants a new trial on the ground of inadequacy the appellate courts will not interfere in the absence of a gross abuse of discretion. When the trial court refuses relief against an allegedly inadequate verdict the appellate court will exercise even greater caution in reviewing its action. The function of determining whether a jury’s verdict is arbitrary and capricious lies with the trial court, and its decisions will not be set aside in the absence of clear error of law or palpable abuse of discretion. While the appellate court will review the entire record to determine whether an inadequate and unjust verdict has occurred, it is justified in declaring the lower court guilty of such an abuse of discretion only if it is clearly convinced by the record that the jury was influenced by partiality or some misconception of the law or the evidence.’

Dawson v. Fowler, 384 Pa.Super. 329, 332-33, 558 A.2d 565, 566 (1989) (quoting Gudat v. Heuberger, 275 Pa.Super. 535, 539-40, 419 A.2d 30, 32 (1980)) (citations omitted) (emphasis in the original).

‘The amount of a jury verdict will rarely be held inadequate on appeal. Moreover, we emphasize that it Is the province of the jury to assess the evidence and to accept or reject conflicting testimony given by witnesses. Even if testimony is uncontradicted, the jury is not required to accept everything or anything a party presents.’

Gallagher v. Marguglio, 429 Pa.Super. 451, 454, 632 A.2d 1309, 1311 No. 00818, slip op. at 3 (1993) (quoting Dawson, 384 Pa.Super. at 333, 558 A.2d at 567).

In Dawson, supra, appellant’s motorcycle collided with appellee’s car. A jury found both parties 50% causally negligent and returned a verdict of $382 (which was the total medical bill) in favor of appellant. On appeal, appellant argued that the verdict was inadequate because it did not account for lost wages and pain and suffering. Therefore, he claimed he was entitled to a new trial. This court affirmed the order denying his motion for new trial and summarized the law in this area as follows:

We have declared that seemingly low and unfair jury verdicts are nevertheless adequate when the jurors are presented with conflicting testimony on liability, contributory negligence, or degree of injury. Instantly, liability was contested____ We hold that notwithstanding a finding of comparative negligence, when liability is contested and conflicting testimony is presented, compromise verdicts are permissible to establish an amount that the jury determined would justly compensate a plaintiff for his loss.

Dawson, 384 Pa.Super. at 333-34, 558 A.2d at 567 (citing Deitrick v. Karnes, 329 Pa.Super. 372, 478 A.2d 835 (1984)) (emphasis added). See Guidry v. Johns-Manville Corporation, 377 Pa.Super. 308, 547 A.2d 382 (1988) (low verdict in product liability action on behalf of deceased asbestosis sufferer did not warrant a new trial where there was conflicting evidence as to the cause of death; nominal award could be explained as a permissible compromise verdict).

In the instant case, as in Dawson, liability was contested. Specifically, there was conflicting testimony as to whether appellant jumped into appellee’s car or whether he was somehow pulled into the car as it accelerated. Thus, the issue of causation was left to the jury which was free to accept or reject the evidence. See Phillips v. Schoenberger, 369 Pa.Super. 52, 534 A.2d 1075 (1987).

In reaching our conclusion, we reject appellant’s reliance on Deitrick v. Karnes, supra, to support his argument that the “nominal” award in this case does not constitute a compromise verdict as a matter of law.

Deitrick was a negligence action resulting from a boating accident in which appellant was injured. A jury concluded that both parties were 50% causally negligent and awarded appellant $500 for lost wages and pain and suffering. Appellant’s wife, also a party to' the suit, was awarded nothing for loss of consortium. On appeal, the order denying appellant’s motion for new trial was reversed due to an inadequate verdict. This court concluded that the $500 verdict amounted to little more than nonrecovery in light of the uncontradicted evidence on the issue of damages. Due to the uncontradicted damages evidence, the verdict could not be considered a compromise and the nominal award was “shocking.”

As to the core issue of whether or not there is a conflict between Deitrick and Dawson concerning the legal propriety of a compromise verdict in a comparative negligence case, there does appear to be a facial conflict between these two cases. However, Deitrick specifically opined that it was not necessary to decide whether compromise verdicts remain permissible under the comparative negligence doctrine whereas Dawson specifically held that compromises are permissible when liability is contested and conflicting testimony is presented. Dawson, 384 Pa.Super. at 334, 558 A.2d at 567.

There would seem to be merit in the argument that once a jury has passed on comparative negligence (which impacts on the amount of a verdict) that a further compromise in the amount of the verdict should be impermissible on the theory that any compromise has already taken place. Although Dawson did not give a rationale for its clear cut holding to the contrary, we suggest that as to the present case one might go as follows: If a jury is being given the right to compromise a verdict, it should not be limited to a mathematical allocation of negligence components but should further extend to the award of reparations. That is, given the jury’s power of compromise, it should not be judicially restricted short of irrationality. Thus, it would seem that, in a case such as this where the plaintiffs conduct was at least adventuresome, if not overtly confrontational, we would find it altogether appropriate and reasonable for the jury to exercise its power of compromise on the amount of the verdict as well as the comparative negligence determination.

We, thus, conclude that there is no merit to appellant’s argument that the verdict in this case represents an impermissible compromise.

Appellant next challenges the propriety of the grant of the motion in limine in favor of appellee which precluded the introduction into evidence of medical bills and expenses. Appellant argues that the amended version of 75 Pa.C.S.A. § 1722 evidences legislative intent to admit his medical bills and expenses for the purpose of showing the extent of pain and suffering. We disagree.

Prior to amendment in 1990, § 1722 read as follows:

In any action for damages against a tortfeasor arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits ... shall be precluded from pleading, introducing into evidence or recovering the amount of benefits paid or payable----

As amended, § 1722 reads:

In any action for damages against a tortfeasor, or in any uninsured or underinsured motorist proceeding, arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits ... shall be precluded from recovering the amount of benefits paid or payable----

75 Pa.C.S.A. § 1722 (emphasis added).

There do not appear to be any cases interpreting § 1722 with regard to this issue. Nevertheless, we do not find that deletion of the words “pleading” and “introducing into evidence” from the amended version necessarily allows the introduction of medical bills and expenses to show the extent of pain and suffering. Moreover, there is nothing to suggest that a court would err in refusing to admit medical bills as evidence of special damages.

Section 1722 abolished the practice which allowed a plaintiff to recover first-party insurance benefits from his insurer as well as special damages from the tortfeasor. Although appellant sought to introduce his medical bills and expenses to show the extent of his pain and suffering, there is no evidence that the jurors were sophisticated in translating special medical damages into general damages. Therefore, the introduction of such evidence might only serve to confuse the jury and prejudice appellee.

In Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983), our Supreme Court addressed the issue of whether the since-repealed Pennsylvania No-fault Motor Vehicle Insurance Act permitted the introduction of medical bills as evidence of pain and suffering. The Court ruled that the amount of money expended on medical treatment and related expenses has no relevance or correlation to the extent of pain and suffering:

It is immediately apparent that there is no logical or experiential correlation between the monetary value of medical services required to treat a given injury and the quantum of pain and suffering endured as a result of that injury. First, the mere dollar amount assigned to medical services masks the difference in severity between various types of injuries. A very painful injury may be untreatable, or, on the other hand, may require simpler and less costly treatment than a less painful one. The same disparity in treatment may exist between different but equally painful injuries. Second, given identical injuries, the method or extent of treatment sought by the patient or prescribed by the physician may vary from patient to patient and from physician to physician. Third, even where injury and treatment are identical, the reasonable value of that treatment may vary considerably depending upon the medical facility and community in which care is provided and the rates of physicians and other health care personnel involved. Finally, even given identical injuries, treatment and cost, the fact remains that pain is subjective and varies from individual to • individual.
Thus the fact that a particular amount of money was expended to treat an injury bears no logical correlation to the degree of pain and suffering which accompanied the injury to the plaintiff in question, forces the conclusion that such evidence possesses no probative value in a determination as to the appropriate monetary compensation to be awarded. Evidence of the cost of medical services is therefore irrelevant and, consequently must be held to be inadmissible for that purpose.

Id. at 423, 466 A.2d at 1025.

We find the reasoning of the Supreme Court in Martin applicable to the instant case and conclude that the court did not err in ruling that the medical bills and expenses were inadmissible under 75 Pa.C.S.A. § 1722 as evidence of pain and suffering. Therefore, the motion in limine was properly granted in favor of appellee.

The final issue is whether the trial court erred by instructing the jury not to consider appellant’s medical expenses when none were introduced into evidence.

When reviewing a claim that the trial court erred in instructing the jury, the scope of appellate review is whether the court committed an abuse of discretion or error of law which controlled the outcome of the case. Butler v. Kiwi, S.A., 412 Pa.Super. 591, 604 A.2d 270 (1992). We review the instructions in their entirety and will not consider individual portions taken out of context. Id.

After reviewing the jury instructions as a whole, we find neither an abuse of discretion nor error of law. At trial, appellant presented voluminous testimony concerning his past and future medical treatment. The instruction was intended to prevent the jury from speculating as to, and, perhaps erroneously considering, the cost of such treatment when reaching a verdict. Given the volume of medical testimony, we find the instruction was not only permissible, but appropriate to avoid potential prejudice against appellee.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. (repealed).


author: TAMILIA, Judge.

text:
    639 A.2d 462
    COMMONWEALTH of Pennsylvania v. Rickie Jay GADDIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1993.
    Filed March 22, 1994.

      David J. Kaltenbaugh, Asst. Public Defender, Johnstown, for appellant.
    Christian A. Fisanick, Asst. Dist. Atty., Barnesboro, for Com., appellee.
    Before: TAMILIA, HUDOCK and CERCONE, JJ.
   TAMILIA, Judge.

These consolidated appeals are taken from the judgments of sentence imposed on February 9, 1993. Appellant was found guilty in two separate trials of more than 150 counts of aggravated assault, 18 Pa.C.S. § 2702; recklessly endangering another person, § 2705; terroristic threats, § 2706; endangering the welfare of children, § 4304; corruption of minors, § 6301; false imprisonment, § 2903; simple assault, § 2701; prohibited offensive weapons, § 908; rape, § 3121; statutory rape, § 3122; involuntary deviate sexual intercourse, § 3123; aggravated indecent assault, § 3125; indecent exposure, § 3127; incest, § 4302; and criminal conspiracy, § 903. These charges arose from the horrific sexual, physical and emotional abuse and neglect by appellant, Rickie Jay Gaddis, of his minor children. Following the denial of post-trial motions, appellant was sentenced to an aggregate term of 235 to 470 years’ imprisonment, fines in the amount of $1,710,000 and costs in the amount of $210,910.

On appeal, appellant first argues the trial court erred in refusing to permit him to attack the credibility of D.G., appellant’s minor daughter and the primary victim of his sexual assaults, by questioning her about alleged false accusations made against third parties that they had sexually assaulted her. Appellant alleged in his written offer that D.G. falsely accused a male gym teacher of spying on her in the girls’ locker room in the fall of 1990; falsely accused therapists and others of sexually molesting her sometime between November, 1991 and January, 1992; falsely accused another individual of raping her on or about July 5,1992; and that she falsely accused three other individuals of sexually molesting her several years earlier. The trial court then conducted an in camera hearing on this issue. At the conclusion of the hearing, the trial court determined that, based on the insufficiency of appellant’s proffer and the lack of relevance of the allegations in the proffer to the charges against appellant, appellant would not be permitted to attack the victim’s credibility on the basis of her alleged false accusations against third parties of sexual assaults. See N.T., 9/21/92, pp. 81-92.

This claim presents a challenge to our Rape Shield Law, which provides:

§ 3104. Evidence of victim’s sexual conduct
(a) General rule.—Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not. be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings.—A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).

18 Pa.C.S. § 3104.

As the clear language of the Rape Shield Law indicates, the statute “is a bar to admission of testimony of prior sexual conduct involving a victim, whether it is consensual or the result of nonconsensual or assaultive behavior, unless it has probative value which is exculpatory to the defendant.” Commonwealth v. Johnson, 389 Pa.Super. 184, 195-196, 566 A.2d 1197, 1202 (1989), alloc. granted, 525 Pa. 643, 581 A.2d 569 (1990). See Commonwealth v. Smith, 410 Pa.Super. 363, 599 A.2d 1340 (1991); Commonwealth v. Kimble, 424 Pa.Super. 499, 623 A.2d 336 (1993).

To that end, limited exceptions to the broad exclusion of the rape shield law have arisen to demonstrate the rape shield law “will bow to a defendant’s right to cross-examine when a specific proffer demonstrates that the proposed inquiry is intended to elicit relevant evidence, which is more probative than prejudicial, and which is not cumulative of other evidence available without encroaching upon Rape Shield law protections.”

Smith, supra at 368-369, 599 A.2d 1340, quoting Commonwealth v. Nieves, 399 Pa.Super. 277, 288, 582 A.2d 341, 347 (1990).

Although this Court also has held that the Rape Shield Law may not be used to exclude relevant evidence attacking credibility or showing a witness’ bias, Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985), subsequent decisions have applied the holding in Black quite narrowly, and “only where the victim’s credibility was allegedly affected by bias against or hostility toward the defendant, or the victim had a motive to seek retribution.” Commonwealth v. Boyles, 407 Pa.Super. 343, 354, 595 A.2d 1180, 1186 (1991).

From our review, we find appellant has failed to surmount any of the obstacles necessary to skirt the prohibitions of the Rape Shield Law. Clearly, none of the allegations had probative value exculpatory to appellant, because in this case, unlike most sexual assault cases, the victim’s testimony was corroborated by the testimony of three eyewitnesses, namely the victim’s mother, brother and sister. In addition, appellant’s proffer lacked sufficient specificity, especially with regard to the allegation of the victim’s report of sexual assaults by three men several years earlier. Moreover, these allegations of false accusations by the victim against third parties were not relevant to attack her credibility because, as lodged against third parties, they did not establish that they were motivated by any bias or hostility toward appellant. Boyles, supra. Finally, as the trial court stated:

Any probative value found would be deminimus [sic] compared to the prejudice which would ensue by leaving the speculation as to the truth of the alleged incidents to the jury. In essence, there would of necessity be several trials within the trial sub judice to establish whether in fact the alleged incidents were true or false. Not only was there no connection with the Defendant on any of the alleged incidents, but no prior truth-determining process established the veracity of the asserted allegations. Prejudice would be implicit in any allowance of the evidence into this case as there was no connection, nor were the allegations established to be truth in fact.

(Slip Op., Long, P.J., 4/26/93 (Slip Op. I), pp. 4-5.) For these reasons, we find this claim without merit. See Commonwealth v. Coia, 342 Pa.Super. 358, 492 A.2d 1159 (1985).

Appellant next argues the trial court erred during the first trial by permitting the prosecution to introduce evidence of other criminal conduct by appellant. Specifically, appellant challenges the admissibility of the following testimony:

[M.G.] is the victim’s sister, and the daughter of the Defendant. She testified that her father established a set of rules to govern the behavior and whereabouts of the children. T. T. 9/28/92, [M.G.], at 17. One of the rules was that the children were not permitted to travel along Napoleon Street beyond the Ideal Market. Id. Immediately beyond this vicinity was located the Women’s Help Center, a facility to render assistance to abuse victims.
[M.G.’s] testimony indicated that her brother [R.G.], her sister [S.R.], and herself attempted to flee the Defendant’s home and seek assistance at the Women’s Help Center. Id. at 20. This was done in an effort to find refuge because of the ongoing abuse and injuries inflicted on their sister [D.G.], the victim. Id. at 23. [M.G.] testified that immediately prior to the three reaching the Women’s Help Center, the Defendant intercepted them. They were taken back to the family apartment, tied up, and beaten with a large wooden object. Id. at 23-26. The children finally confessed to the Defendant during the beating that they were attempting to reach the Women’s Help Center. Id. at 26. After receipt of the information, the Defendant continued to beat all three children. Id. at 27.

(Slip Op. I at 8-9.)

Evidence of separate, unrelated crimes is generally inadmissible to prove the crime for which the defendant is on trial. Where evidence is relevant, however, the mere fact that testimony of another crime may be prejudicial will not prevent its introduction into evidence. Commonwealth v. John, 408 Pa.Super. 234, 596 A.2d 834 (1991). Evidence of other crimes can be shown when it tends to prove motive, intent, absence of mistake or accident, identity or common scheme, plan or design. Commonwealth v. Grekis, 411 Pa.Super. 513, 601 A.2d 1284 (1992). A sixth exception is recognized where the uncharged crime was committed “to conceal the commission of the crime on trial or to escape its consequences.” Commonwealth v. Turner, 303 Pa.Super. 442, 451, 450 A.2d 9, 13 (1982).

We agree with the trial court’s finding that

[M.G.’s] testimony reasonably established an inference, if believed by the jury, that the Defendant prohibited the children from navigating beyond the Ideal Market on Napoleon Street to prevent them from interacting with the Women’s Help Center. A further inference can be reasonably established through [M.G.’s] testimony that the Defendant prevented the children from frequenting the vicinity of the Women’s Help Center because of his consciousness of guilt and knowledge that he would be subject to criminal prosecution if any information were given to the personnel at the Women’s Help Center. [M.G.] and the other two children were attempting to flee as a result of the abuse toward [D.G.], and in an effort to assist her, when the Defendant intercepted and retaliated against them. The testimony of [M.G.] that the Defendant beat her and her siblings on this occasion was relevant circumstantial evidence of the Defendant’s guilt. It was not prejudicial nor inflammatory, but rather germane to' the issues at trial regarding the abuse suffered by the victim [D.G.], and the family’s response to it.

(Slip Op. I at 11-12.)

It would be difficult to conceive of a trial at which the prosecution’s evidence was not prejudicial to the defendant. Commonwealth v. Moore, 389 Pa.Super. 473, 567 A.2d 701 (1989). “The difficulty arises when the evidence is so prejudicial that it sweeps the [fact finder] beyond a rational consideration of guilt or innocence of the crime on trial.” Commonwealth v. Moore, 389 Pa.Super. at 483, 567 A.2d at 706.

Commonwealth v. Davis, 394 Pa.Super. 591, 606, 576 A.2d 1005, 1013 (1990). Given the extent of the heinous charges against appellant, it is undoubted that the evidence against him was prejudicial. Our review of the record, however, discloses this evidence was relevant, and its probative value outweighed its prejudicial effect. Therefore, we find no error in the admission of M.G.’s testimony.

Appellant next argues the trial court erred in permit-, ting, in both trials, over objection, a police officer to testify about appellant’s physical appearance on the day of his arrest. Detective Richard Rok of the Johnstown Police Department testified that he first encountered appellant on the morning of November 1, 1991, when appellant arrived to place a missing juvenile report for the victim, D.G. Detective Rok described appellant as a big, bulky individual with a large Fu Manchu-type moustache and other unusual features. (Slip Op. at 13.) However, as the trial court noted:

[Appellant’s] appearance changed drastically from the time Detective Rok initially observed him to the time of the trial. There was a substantial alteration in [appellant’s] hairstyle and other features such as his weight. He had shed approximately thirty to forty pounds and had trimmed his Fu Manchu moustache. He also wore his hair significantly different by styling it more conventionally. Because of this alteration in appearance, Detective Rok’s description and identification of [appellant] became relevant.

(Slip Op. I at 14-15; Slip Op., Long, P.J., 4/26/93 (Slip Op. II), pp. 4-5.)

We agree with the trial court that Detective Rok’s description of appellant was relevant, especially with regard to the charges of terroristic threats and simple assault. Both of these crimes involve the instilling of fear or menace in their victims, and appellant’s appearance at the time of the commission of the offenses charged was “relevant circumstantial evidence of his state of mind and intent to inflict fear upon the victim, and/or whether he acted in reckless disregard of the possibility of inflicting fear upon the victim.” (Slip Op. I at 15; Slip Op. II at 5.) See also 18 Pa.C.S. §§ 2701, 2706.

As we find this evidence relevant, probative and not unduly prejudicial to appellant, this claim is without merit.

Appellant’s fourth claim is that the trial court erred at the first trial in allowing the Commonwealth to cross-examine a defense "witness about appellant’s appearance shortly before his arrest. Kimberly Ann Long, an officer with the Cambria County Juvenile Probation Office, testified for the defense about an interview she conducted with appellant and the victim on October 28,1991. On cross-examination, the district attorney asked the witness to describe appellant’s appearance at the time of the interview. Appellant objected, contending the question was beyond the scope of the direct examination and was not relevant. The Commonwealth responded that the witness’ recollection was at issue and was a proper subject of cross-examination.

We need not address the issue of" whether appellant’s appearance was relevant, as that claim was resolved, supra. As to whether the testimony was beyond the scope of cross-examination, our Supreme Court recently stated:

Cross-examination is a vital and fundamental part of a fair trial, providing the principal means by which the believability of a witness and the truth of his testimony are tested. In criminal cases, this right extends beyond the subjects testified to on direct examination, and includes the right to examine the witness on any facts tending to refute inferences or deductions arising from matters testified to on direct examination. Commonwealth v. Green, 525 Pa. 424, 454, 581 A.2d 544, 559 (1990). Subject always to the discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’s story to test the witness’s memory and perceptions, but the cross-examiner had traditionally been allowed to impeach or discredit the witness’s story. Commonwealth v. Robinson, 507 Pa. 522, 491 A.2d 107 (1985).

Commonwealth v. Spiewak, 533 Pa. 1, 10, 617 A.2d 696, 700 (1992).

From our examination of the trial transcript, we find no abuse of the trial court’s discretion in allowing the Commonwealth to question the witness about appellant’s appearance. We find this question was within the scope of the witness’ direct examination, and therefore this claim is also without merit.

The fifth claim presented by appellant is that the trial court abused its discretion in imposing a manifestly excessive sentence totalling 235 to 470 years’ imprisonment.

The scope of our review in challenges to the discretionary aspects of sentencing is well settled. Sentencing is a matter within the sound discretion of the sentencing court, and will not be disturbed absent a manifest abuse of that discretion. Commonwealth v. Minott, 395 Pa.Super. 552, 577 A.2d 928 (1990). To constitute an abuse of discretion, the sentence imposed must either exceed the statutory limits or be manifestly excessive. Id. As an initial matter, however, a challenge to the discretionary aspects of sentencing requires appellant to set forth in his brief a separate, concise statement of the reasons relied upon for allowance of appeal. Pa.R.A.P. 2119(f). In addition, appellant must raise a substantial question as to the appropriateness of the sentence, which would permit us to accept the appeal as to this issue. Common wealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). The determination of whether a particular issue constitutes a substantial question must be evaluated on a case by case basis. Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987). Generally, however, in order to establish a substantial question, appellant must show actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process. Commonwealth v. McLaughlin, 393 Pa.Super. 277, 574 A.2d 610 (1990). We find appellant has not presented a substantial question for our review.

Appellant concedes that the sentence imposed neither exceeds the statutory limits nor violates the sentencing guidelines (Brief of Appellant at 34). Instead, appellant asserts that a sentence imposing a minimum term of 235 years for crimes in which a life sentence is not authorized, is per se manifestly excessive. We disagree, and find this case controlled by Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992).

In Jones, supra, the defendant pled guilty to 61 counts arising from his sexual abuse of 14 boys, and ultimately was sentenced to a term of imprisonment totalling 50 to 100 years. The Jones Court found that the sentence imposed, while substantial, was significantly less than the statutory limits and could not be termed a life sentence. “Looking at the Sentencing Code as a whole, the sentence imposed by the lower court was within its mandates and consistent with its statutory provisions. On this basis, we conclude that the sentence imposed was not manifestly excessive.” Id. at 108, 613 A.2d at 594.

Considering appellant was found guilty of more than 150 counts, had the trial court sentenced appellant at the low end of the mitigated range of the sentencing guidelines on each count, it is extremely unlikely appellant would live long enough to serve his entire minimum sentence. In essence, appellant is challenging the court’s imposition of consecutive rather than concurrent sentences. Such a challenge does not present a substantial question.

From our sedulous review of the extensive record in this case, we find the court had before it at sentencing all testimony in the case, arguments of counsel, appellant’s record and a presentence investigation (N.T., 2/9/93; Slip Op., Long, P.J., 4/26/93 (Slip Op. Ill), pp. 2-4). Such information constitutes the relevant and material information required to impose a reasonable sentence. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988).

We find appellant has not shown actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process, and therefore, he has not presented a substantial question for review. Accordingly, this Court will not review further the length of appellant’s sentence.

As a caveat, however, we should note that a revisitation of the policy aspects of sentencing, beginning with mandatory sentences and including consecutive sentences or sentences for habitual criminals, also requires consideration of the fact these policy choices are rapidly filling all available prison space, requiring enormous expenditures for new prisons which exceed the taxing capacity of government to provide. Additionally, 30 or 40 years from now our prisons will be filled with elderly persons suffering myriad health problems which will place enormous burdens on our children and grandchildren to support. As we stated in Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985), appeal quashed for lack of jurisdiction, 515 Pa. 297, 528 A.2d 151 (1987): “Although none of the individual sentences imposed here are in excess of the statutory maximum, we find each of the individual sentences and hence, the cumulative sentence, to be manifestly excessive so as to inflict too severe a punishment.” Id. at 532, 490 A.2d at 907. Since then the Supreme Court in Tuladziecki, supra, has held that pursuant to 42 Pa.C.S. § 9781, Appellate review of sentence, appellant must raise a substantial question concerning propriety of sentence (claim of excessiveness of sentence does not raise substantial question). Devers, supra, and Jones, supra, allow any sentence to stand which is not illegal as being beyond statutory limits and which is supported by the court’s analysis or is justified by a presentence report. Sentences such as imposed here, while legal, raise the question of their overall impact upon society due to the costs which must be borne by future generations when measured against actuarial possibilities and actual potential for danger to the community once the defendant reaches elderly status. This, however, must be addressed by the Legislature rather than this Court. See 42 Pa.C.S. § 9781(f).

Appellant’s sixth claim is that the trial court abused its discretion in imposing an aggregate fine of $1,710,000, when it knew appellant did not have the financial resources to pay such fines.

Fines are provided for in the Sentencing Code as follows:

(b) Fine as additional sentence.—The court may sentence the defendant to pay a fine in addition to another sentence, either involving total or partial confinement or probation, when:
(1) the defendant has derived a pecuniary gain from the crime; or
(2) the court is of the opinion that a fine is specially adapted to deterrence of the crime involved or to the correction of the defendant.
(c) Exception.—The court shall not sentence a defendant to pay a fine unless it appears of record that:
(1) the defendant is or will be able to pay the fine; and
(2) the fine will not prevent the defendant from making restitution or reparation to the victim of the crime.
(d) Financial resources.—In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.

42 Pa.C.S. § 9726.

From our review of the sentencing transcript, we find the court erred in sentencing appellant to pay such an astronomical fine without making inquiry as to his ability to pay. Commonwealth v. Fusco, 406 Pa.Super. 351, 594 A.2d 373 (1991); Commonwealth v. Yacoubian, 339 Pa.Super. 413, 489 A.2d 228 (1985); Commonwealth v. Schwartz, 275 Pa.Super. 112, 418 A.2d 637 (1980).

At sentencing, the court stated:

Mr. Gaddis, I want to explain on the record although I realize you’re not a man of money why I imposed such large fines upon you. And the reason for that is it’s been brought to my attention that you are in the process of writing a book or trying to get a movie produced concerning these criminal episodes. The purpose of these large fines that were placed which are approximately 2 million dollars in costs and fines against you is to reimburse Cambria County for the costs that have been used as expenditures because of your crimes. I’m further requesting the County Solicitor to take these fines and reduce them to judgments and place them against you in the Prothonotary’s Office. It is also part of my sentence that I have incorporated as part of .your costs the amount that we have had to expend for the care, psychiatric and otherwise of your children you have abused. I’m going to order the Children and Youth Agency to compile that figure every six months and produce it to the Court and my sentence to you today is that I’m going to keep adding that to your restitution and costs of this case. So just in case you do come into a windfall through a book or movie or whatever, Cambria County is going to have the first shot of recouping the money they have spent and the amount of money used to pay for psychiatric treatment and housing and other treatment we have given your children.

(N.T., 2/9/93, pp. 42-43.)

The sentencing court later stated:

As to the fines levied on [appellant], they were not disproportionate. No monetary benefit should ever be rightfully reaped from a wrong perpetrated by a defendant, and this Court would be remiss to allow otherwise. Although [appellant] currently has no financial means available, the Court adapted the fines as a specific deterrence to the penchant of [appellant]. It was further fashioned to forestall an undeserved windfall to [appellant] for his immoral conduct. It was widespread knowledge the [appellant] was attempting to capitalize on his wrong by his receipt of tenuous preliminary negotiations from various news and publication media. The media inquired into his amenability to sell movie and book rights to the sordid affair.
The thought of any monetary gain to [appellant] for his vicious and repulsive behavior is repugnant to the conscience of this Court, and the interest of justice mandate a directive otherwise. At the time of sentencing there was a substantial likelihood that [appellant] would be able to pay the fines imposed from future proceeds. The fines are therefore more than appropriate under the circumstances of the case. He can not reap benefit to the expense of his family and society.

(Slip Op. Ill at 405.)

While the knowledge of appellant’s efforts to capitalize financially on his crimes may have been “widespread”, that information has not made its way into the record before us. Therefore, while the imposition of a fine, however harsh, may be appropriate to thwart a defendant’s pecuniary gain from, or as a special deterrence to, the crime involved, 42 Pa.C.S. § 9726(b)(1), (2), supra, it must be preceded by a determination of the defendant’s financial resources and ability to pay. Id., § 9726(c), (d), supra.

We also note that the windfall to appellant which the sentencing court sought to prevent has been prohibited by another statute. The Administrative Code specifies that any moneys owing to a person accused or convicted of a crime “with respect to the reenactment of such crime, by way of movie, book, magazine article, tape recording, phonograph record, radio or television presentation, live entertainment of any kind, or from the expression of the accused or convicted person’s thoughts, feelings, opinions or emotions regarding such crime” shall be paid over to the Pennsylvania Crime Victim’s Compensation Board to be held in escrow for the victims of the crime. 71 P.S. § 180-7.18.

For the foregoing reasons, we vacate the fine imposed, but in light of the length of the term of imprisonment imposed and affirmed herein, as well as appellant’s present indigency, we need not remand for resentencing.

Appellant next contends the sentencing court erred in relying on section 9728(g) of the Sentencing Code in its imposition of certain costs on appellant. 42 Pa.C.S. § 9728(g). The court stated: “The majority of the costs taxable to the case are associated with county and state expenditures for Children and Youth foster and placement care charges. There were also expenditures for psychiatric and psychological assistance for the subject children. The county and state funding for these services is an appropriate governmental agency cost as to that term is set forth in 42 Pa.C.S.A. § 9728(g).” (Slip Op. Ill at 6.) We disagree.

The Sentencing Code provides, in pertinent part, as follows:

§ 9728. Collection of restitution, reparation, fees, costs, fines and penalties
(a) General rule.—All restitution, reparation, fees, costs, fines and penalties shall be collectible in any manner provided by law. However, such restitution, reparation, fees, costs, fines and penalties are part of a criminal action or proceeding and shall not be deemed debts. A sentence or pretrial disposition order for restitution, reparation, fees, costs, fines or penalties shall, together with interest and any additional costs that may accrue, be a judgment in favor of the probation department upon the person or the property of the person sentenced or subject to the pretrial disposition order.
(b) Procedure.—The county probation department or other appropriate governmental agency shall, upon sentencing or pretrial disposition, transmit to the prothonotary of the respective county certified copies of all judgments for restitution, reparation, fees, costs, fines and penalties, and it shall be the duty of each prothonotary to enter and docket the same of record in his office and to index the same as judgments are indexed, without requiring the payment of costs as a condition precedent to the entry thereof. The total amount for which the person is liable pursuant to this section may be entered as a judgment upon the person or the property of the person sentenced, regardless of whether the amount has been ordered to be paid in installments.
(g) Costs, etc.—Any sheriffs costs, filing fees and costs of the county probation department or other appropriate governmental agency shall be borne by the defendant and shall be collected by the county probation department or other appropriate governmental agency along with the total amount of the judgment and remitted to the appropriate agencies at the time of or prior to satisfaction of judgment.

42 Pa.C.S. § 9728. It is a maxim of statutory construction that an Act of Assembly which imposes penal sanctions for violations of its provisions must be strictly construed. 1 Pa.C.S. § 1928; Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978). A clear reading of section 9728 indicates that subsections (a) and (b) govern the status of restitution, reparation, fees, costs, fines and penalties imposed as part of sentencing or pretrial disposition, and the manner in which judgment for same may be entered with the prothonotary against a defendant. Restitution, reparation, fees, costs, fines and penalties are not delineated in separate subsections of section 9728, but are all contained in subsection (a). Therefore, we agree with appellant that the separate reference to “costs” in subsection (g) provides for the collection of costs associated with obtaining a money judgment against the defendant, and does not provide for the imposition of the costs of prosecution itself, as the sentencing court in this case envisioned.

Moreover, we do not find that the imposition of the expenses of Cambria County Children and Youth Services (CYS) on appellant in this case was proper, even under section 9278(a). The statute states: “A sentence ... for restitution, reparation, fees, costs, fines or penalties shall ... be a judgment in favor of the probation department upon the person or the property of the person sentenced____” Id., § 9728(a) (emphasis added). Any monies collected from appellant, then, could not satisfy the CYS costs, as only the Cambria County Probation Department would be a judgment holder under section 9728.

As stated, supra, the practical effect of the imposition of substantial fines and/or costs on appellant is negligible, given appellant’s penury and lengthy prison term. While CYS may obtain a judgment against appellant in the unlikely event he ever obtains any financial resources, see 62 P.S. §§ 1973-1975, the imposition of CYS costs in the amount of $137,500 against appellant under 42 Pa.C.S. § 9728(g) was in error. There is clear statutory authority for imposition of costs for care, support and maintenance of children who become wards of court or placed in the care of CYS. Pursuant to 62 P.S. § 704.1, Payments to counties for services to children, the Pennsylvania Department of Welfare is responsible for reimbursement of county institution districts, according to a schedule of partial reimbursements detailed in subsections (a)(1) through (a)(8). Pursuant to subsection (e), the responsibility of parents to the maintenance and support of their children who are placed by the Juvenile Court with CYS is clearly spelled out as follows:

(e) If, after due notice to the parents or other persons legally obligated to care for and support the child, and after affording them an opportunity to be heard, the court finds that they are financially able to pay all or part of the costs and expenses stated in subsection (a), the court may order them to pay the same and prescribe the manner of payment. Unless otherwise ordered, payment shall be made to the clerk of the court for remittance to the person to whom compensation is due, or if the costs and expenses have been paid by the county, to the appropriate officer of the county.

The appropriate court to make this finding is the Juvenile Court or Family Court, pursuant to the Juvenile Act, 42 Pa.C.S. § 6301 et seq. The Criminal Court as an adjunct to its finding of guilt pursuant to the statutes quoted above relating to costs and restitution is not empowered to make the findings it attempted to make here based on its speculation of future earning possibilities. Consequently, we vacate that portion of the costs imposed on appellant for services rendered by CYS. We affirm, however, the remainder of the costs imposed.

The final claim presented by appellant is that the sentence imposed, consisting of fines totalling $1,700,000 and costs totalling $210,910, as well as an aggregate prison term of 235 to 470 years’ imprisonment, violates the constitutional guarantees against cruel and unusual punishment. This claim lacks any merit.

The United States Supreme Court stated recently that “the Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin v. Michigan, 501 U.S. 957, —, 111 S.Ct. 2680, 2683, 115 L.Ed.2d 836, 869 (1991) (Kennedy, J., joined by O’Connor and Souter, JJ., concurring in part and concurring in the judgment). See Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). See also Commonwealth v. Spells, 417 Pa.Super. 233, 612 A.2d 458 (1992).

Given our vacation of the fine imposed on appellant, as well as the portion of costs attributable to CYS, we do not find this aspect of appellant’s sentence grossly disproportionate to his crimes. Further, this Court is unaware of any case in this Commonwealth in which the term of imprisonment in a non-capital case was found to be “cruel and unusual.” Absent such authority, we find the term of imprisonment proportionate to the crimes committed. Jones, supra.

For all of the foregoing reasons, we vacate the fine of $1,710,000 and costs of $137,500 for CYS imposed against appellant. We affirm all other aspects of the judgment of sentence.

. Judgment affirmed in part; vacated in part.

Jurisdiction relinquished.

HUDOCK, J., concurs in the result.

      . A recent panel of this Court held that a claim of excessiveness "does not constitute a substantial question when the sentence in question is within the statutory limits.” Commonwealth v. Martin, 416 Pa.Super. 507, 519, 611 A.2d 731, 737 (1992) (citations omitted).

      . Although we are constrained to vacate the fine and CYS costs imposed in this case, we recognize the trial court was aware of appellant’s tenuous financial position, and the remote likelihood of collecting any money, and imposed those fines and costs as a deterrent to appellant and others committing such acts in the future. Our decision in this case should in no way be considered a weakening of our support for the underlying public policy goal in appropriate circumstances.


author: HOFFMAN, Judge:

text:
    639 A.2d 474
    JEFFERSON BANK v. J. ROY MORRIS AND SCANFORMS, INC. Appeal of SCANFORMS, INC.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1993.
    Filed March 24, 1994.

      Neil E. Jokelson, Philadelphia, for appellant.
    Barry N. Sklar, Jenkintown, for Jefferson Bank, appellee.
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order entered March 4, 1993, directing appellant/garnishee, Scanforms, Inc. (hereinafter ‘garnishee’), to pay several sums due judgment debtor, J. Roy Morris, to appellee/garnishor, Jefferson Bank (hereinafter ‘garnishor’). Garnishee, presents the following issues for our review:

1. Whether Appellant/Garnishee can raise the issue of exemption or immunity of property from execution at the assessment of damages hearing under Pa.R.Civ.P. 3146(a) in light of Pa.R.Civ.P. 3142(c) which provides that exemption or immunity of property from execution may be raised at any time.
2. Whether fees due to the defendant/judgment debtor from garnishee under the consulting contract in the instant case constitute wages “in the hand[s] of the employer” under 42 Pa.C.S.A. § 8127.
3. Whether garnishee/appellant had a complete set off against defendant under the consulting agreement which limits defendant/judgment debtor’s exclusive remedy to having fees otherwise due him to be applied as an offset to the promissory note he owed garnishee/appellant.

Garnishee’s Brief at 5. For the following reasons, we reverse.

On January 11, 1991, judgment debtor, J. Roy Morris and garnishee, Scanforms, Inc., entered into two written agreements. The first agreement, Exhibit G-l (hereinafter “G-l”), was entered into in settlement of a lawsuit which involved Morris, garnishee, and several other parties. G-l provided, in part, for issuance of a note payable from Morris to garnishee. Additionally, pursuant to G-l, garnishee and Morris entered into a consulting agreement (Exhibit G-2).

Under G-l, Morris executed a note to garnishee for $219,-738.00, payable in 48 monthly installments from October 31, 1992 through 1996. The agreement provided that Morris would have a thirty (30) day grace period to pay any amount of principal or interest due before default could be declared. In the event of Morris’ default on the note, any payments due Morris under the consulting agreement, would be automatically assigned to and applied in payment of the principal and interest then due and unpaid under G-l. The consulting agreement also provided that default would terminate any obligation of garnishee to provide benefits and payments to Morris, effective on the date of such default.

Under the consulting agreement, garnishee agreed to pay Morris $85,000.00 a year for five years, with payments applying retroactively from October 1,1990. The payments were to be made from January 16, 1991, in monthly installments of $2,916.67. The default provision provided that if garnishee failed to make payments for two consecutive months, Morris’ only remedy would be to require garnishee to apply the due payments to the satisfaction of the note payable to garnishee, under G-l. The consulting agreement provided that Morris had to give garnishee notice of breach of the agreement and a period of fifteen (15) days in which to cure the breach. Through October 4, 1991, garnishee paid Morris his regular monthly fee pursuant to the consulting agreement.

Morris had also made a note payable to garnishor, Jefferson Bank. On October 9, 1991, garnishor filed a complaint for confession of judgment against Morris for accelerated payment of the note, following Morris’ default in March of 1991. On the same day, judgment in the amount of $339,094.81 was entered.

In an attempt to collect the sums paid to Morris under the consulting agreement, garnishor served garnishee with a writ of garnishment and interrogatories on October 22, 1991. Subsequently, judgment for failure to answer interrogatories was entered against garnishee on August 24, 1992. On October 28, 1992, garnishor filed a petition for assessment of damages hearing, pursuant to Pa.R.Civ.P. 3146.

Following the hearing, on January 19, 1993, briefs were filed by the parties. On March 4, 1993, the trial court found in favor of garnishor and against garnishee in the amount of $46,466.72, representing 16 monthly payments due to Morris from garnishee between October 22, 1991 and the date of the trial court’s order, in addition to any legal interest. The court also ordered garnishee to pay to garnishor all future monthly sums due Morris, until January 1, 1996. This timely appeal followed.

In it’s first two issues, garnishee contends that the trial court erred in determining that it was precluded from raising the defense of exemption of wages in the hands of an employer from execution. Specifically, garnishee asserts that Pa. R.Civ.P. 3142(c) provides that the defense of exemption or immunity of property from execution may be raised for the first time at an assessment of damages hearing. We disagree.

Following service of writ of garnishment, a garnishee may defend an action on behalf of the judgment debtor by raising the defense of exemption of wages from attachment. Pa.R.Civ.P. 3142. Once default judgment has been entered, the rights of the judgment debtor are assigned to garnishor. The garnishee may then resist attachment only by raising defenses which would be valid against judgment debtor. Ramins v. Chemical Decontamination Corp., 126 Pa.Cmwlth. 559, 560 A.2d 836 (1989) alloc. denied (a garnishee may raise its own defense of immunity or exemption of property at the assessment of damages hearing).

42 Pa.C.S. § 8127(a) provides that “[t]he wages, salaries and commissions of individuals shall while in the hands of the employer be exempt from any attachment, execution or other process except upon an action or proceeding for support or for board for four weeks or less.” 42 Pa.C.S. § 8127(a). In applying 42 Pa.C.S. § 8127(a), to an assessment of damages hearing, the court must first determine whether the exemption of wages from attachment is a defense which the garnishee may raise against the judgment debtor. See Pa.R.Civ.P. 3146. Where the garnishee may raise such a defense against the judgment debtor, the court must consider whether (1) the sums in the hands of the garnishee constitute monies exempt from attachment; and (2) the garnishee is an employer of the judgment debtor. See Eastern Lithographing Corp. v. Neville, 203 Pa.Super. 21, 24, 198 A.2d 391, 393 (1964).

The defense of exemption of wages is designed to protect the wage earner. Id. (“The obvious purpose of the act is to protect earnings”). See also Hild Floor Mach. Co. v. Rudolph, 156 Pa.Super. 102, 39 A.2d 457 (1944). As the purpose of the wage exemption defense is to protect the judgment debtor from garnishment of his wages, it may not be raised by garnishee against judgment debtor. Accordingly, garnishee is precluded from raising the defense of exemption of wages following entry of default judgment. Id. at 104, 39 A.2d at 458 (defense of exemption of wages may be stricken even when made by judgment debtor following entry of judgment for judgment creditor). See also Ramins v. Chemical Decontamination Corp., 126 Pa.Cmwlth. 559, 560 A.2d 836 (1989) (default judgment barred where defense of immunity or exemption of property raised, by untimely preliminary objections and answers to interrogatories with new matter but before judgment creditor filed a praecipe for entry of default judgment).

Garnishee also contends that the trial court erred in denying garnishee’s contractual right to set-off wages due to judgment debtor against the note made by judgment debtor to garnishee. Essentially, garnishee contends that under the consulting agreement, judgment debtor’s, and consequently garnishor’s, sole remedy for garnishee’s failure to pay wages is set-off against the outstanding note to garnishee. We agree.

A garnishor’s rights are derivative from those of his debtor’s and cannot exceed the debtor’s rights. First Pa. Banking and Trust Co. v. Liberati, 282 Pa.Super. 198, 204, 422 A.2d 1074, 1077 (1980) (citations omitted). See also Clardy v. Barco Constr. Co., 205 Pa.Super. 218, 223, 208 A.2d 793, 795 (1965) (“the general rule is that the plaintiff in such proceedings is not to be placed in any better position than the garnishee or in any worse position than he would be if defendant himself were enforcing his claims”) (citations omitted). “[I]n the absence of fraud, [a garnishor] can claim no greater right than was vested in the [debtor] at the time the writ was served on the garnishee”. First Pa. Banking and Trust Co., supra. The service of writ of garnishment does not alter any contractual relations existing between garnishee and judgment debtor. 38 C.J.S. Garnishment § 179 (1943). Once a debtor has lost his rights to property and could not maintain an action to recover the property his creditor’s claim for attachment will also fail. First Pa. Banking and Trust Co., at 205, 422 A.2d at 1077.

In the instant case, judgment debtor could not have instituted a successful action against garnishee, to recover wages under the consulting agreement. The consulting agreement required garnishee to. pay wages to judgment debtor or to set-off payments due, against the note made to garnishee. Any action brought by judgment debtor to collect wages, would only result in the remedy of set-off. As the consulting agreement precluded judgment debtor from recovering wages from garnishee in any legal proceeding, garnishor cannot successfully attach the wages. Accordingly, we reverse the order of the trial court.

Order reversed.

      . Mr. Morris is not a party to this appeal.

      . The grace period was to be calculated from the date payment was due, if notice of failure to pay was given within fifteen (15) days of the due date. If notice was sent more than fifteen (15) days after payment was due, then the grace period would be calculated from the date that notice was sent. The agreement also stipulated that there could be no successive grace periods.

      . Additionally, G-l stated that subsequent curing of the default would not serve to reinstate any of the entitlements or benefits to Morris.

      . Garnishor Jefferson Bank was not a party to the action involving garnishee Scanforms, Inc. and judgment debtor Morris. In addition, this note was not issued pursuant to either G-l or the consulting agreement.

      . Thereafter, garnishee stopped making payments to Morris. On October 7, 1992, days before Morris’ first payments to garnishee, under G-l, were scheduled to become due, garnishee notified Morris that all past due and future consulting fees, under G-2, would be applied against the note executed on garnishee's behalf. Garnishee received no response from Morris. No notice of default was sent by Morris under the consulting agreement or by garnishee under G-l until January 6, 1993, when garnishee sent a letter informing Morris of the writ of execution in attachment against his fees.

      . Garnishee also asserts that it received notice of the assessment of damages hearing eight days before the hearing and was subsequently precluded from raising the issue of exemption. We note that the requirement that notice of defenses be received by all parties ten days before the hearing is impliedly contingent upon the garnishee’s receiving timely notice of the assessment hearing. See, e.g., Franklin Interior, Inc. v. Browns Lane, Inc., 227 Pa.Super. 252, 319 A.2d 682 (1974). Notice is deemed to occur on the date of actual receipt, not on the date that it was sent. Id. Although there is a presumption that a party receives notice within the due course of mail, it is "rebuttable and the [aggrieved party] may offer evidence in support ... to show that notice was not received.” Id. In the instant case, the trial court did not allow the defense because it was inapplicable, not because garnishee failed to give timely notice of its defenses to garnishor.

      . The intent behind the Pennsylvania Rules of Civil Procedure is that each rule be construed with reference to the rules of civil procedure as a whole, in order to avoid a result that is absurd, impossible or unreasonable. Pa.R.Civ.P. 128(a), (b). Cf. Wilson v. Central Penn Indus. Inc., 306 Pa.Super. 146, 452 A.2d 257 (1982) (in determining legislative intent, sections of a statute must be read together and construed with reference to the entire statute). To this end, where two rules arguably cover the same matter and appear to be inconsistent, the specific rule will prevail over the more general. Pa.R.Civ.P. 132. Cf. Williams v. State Farm Mut. Auto. Ins. Co., 763 F.Supp. 121 (E.D.Pa.1991) (a specific provision of a statute prevails over an inconsistent general provision, which appears to cover the same matter). As the more specific provision, Pa.R.Civ.P. 3146 controls procedure following entry of default judgment and the garnishee’s ability to raise any defenses, including exemption of property, is restricted to the limitations imposed therein.

      . Generally, "[a] valid set off must be of a debt or demand due at the time of the commencement of the [garnishment] action in which it is interposed. If the claim is not then ripe for action it cannot be set off.” Almi, Inc. v. Dick Corp., 31 Pa.Cmwlth. 26, 35, 375 A.2d 1343, 1348 (1977). In the instant case, however, garnishee is asserting set-off as a contractually provided remedy, following its failure to pay wages.

      . Garnishor does not raise any claim of fraud and is therefore not entitled to greater rights than had vested in the debtor at the time writ of garnishment was served.