author: CERCONE, Judge: BECK, Judge,

text:
    502 A.2d 686
    Joyce FORMAN, Appellant, v. CHELTENHAM NATIONAL BANK.
    Superior Court of Pennsylvania.
    Argued April 17, 1985.
    Filed Dec. 27, 1985.

      Alvin Freiberg, Philadelphia, for appellant.
    Mark F. Bideau, Philadelphia, for appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an Order of the Court of Common Pleas, Montgomery County, denying appellant’s exceptions filed nunc pro tunc.

To understand our holding, a recitation of the complicated factual scenario is necessary. On April 26, 1977, the appellant commenced this action by a complaint in trespass for Slander of Title to certain real estate she had once owned.

Appellant’s husband had been involved in two businesses, World Wide Research, Ltd. and Chemcraft, Ltd. She was an officer in World Wide Research. The corporations negotiated a series of loans with the appellee bank, defendant below, which were secured by judgment notes endorsed by appellant and her husband individually. On March 14, 1975 the balances of the corporate loans were consolidated and secured by a new note to appellee in the amount of $45,000. This note was endorsed by appellant and her husband. Appellant alleges that her endorsement on the March 14, 1975 note was fraudulent. The lower court found that she did not execute the endorsement on that note but that her signatures on the previous note endorsements were valid.

On March 18, 1975, judgment was entered on the March 14, 1975 refinancing note in favor of the appellee and against appellant and her husband. Approximately two months later, appellant’s husband was found dead, the victim of an apparent suicide.

Appellant sold her home and appellee required her to satisfy the judgment from the proceeds of the sale. She asserts that the appellee/bank, especially the officer who handled the Forman business, Paul Brenner, was aware of the fact that the plaintiff’s signature was forged. By filing of record the Judgment based on a known forged signature of appellant, she alleges that appellee deterred and prevented her from being able to convey clear title to her home. Appellant asserted that her actual damages were $45,432.31 plus interest and she requested punitive damages as well.

Disparagement of title is the false and malicious representation of the title or quality of another’s interest in goods or property. Triester v. 191 Tenants Association, 272 Pa.Super. 271, 277, 415 A.2d 698, 701 (1979). In order to prevail in an action for slander of title, a plaintiff must show malice by the defendant. Hygienic Fleeced Underwear Co. v. Way, 35 Pa.Super. 229 (1908). Malice may be understood as the lack of good faith belief in the right to publish the allegedly slanderous utterance. Id. at 233. A person is conditionally privileged to disparage another’s property in land, chattels or intangible things by an assertion of an inconsistent legally protected interest in himself. See Restatement, Second, Torts § 647 (1977). Comment (b) to section 650A of the Restatement explains the meaning of “malice” required for a finding of an abuse of that conditional privilege. That comment states:

The exception stated in § 647 deals with the conditional privilege of a rival claimant to disparage another’s property by an honest assertion of his own claim, even though he has no reasonable ground for believing his claim to be valid. Since the privilege itself extends to an action based upon a reasonable belief, it is not abused when the publication is made without reasonable grounds for belief in its truth, but is abused only when the claimant does not believe honestly or in good faith believe that there is a substantial chance of his claim being sustained.

The lower court found that the appellee/bank acted with the reasonable belief that it held a valid judgment against appellant and, therefore, appellant had failed to prove that appellee acted with the required malice. We agree.

Appellee had entered judgment on the note against appellant and her husband on March 18, 1975, four days after its execution. Appellant did not contest the validity of that judgment until over two years later when she commenced this action in April, 1977. Appellee could reasonably have inferred that the judgment was valid because appellant failed to promptly contest its validity. See Sixsmith v. Martsolf, 413 Pa. 150, 196 A.2d 662 (1960) (“A contract secured by fraud is voidable only at the option of the injured party, who must act promptly on the discovery of the fraud or the right to rescind is waived.” Id., 413 Pa. at 152, 196 A.2d at 663).

We find that there is sufficient evidence to support the finding that the appellee acted with a reasonable belief in the validity of its claim. Accordingly, we affirm the Order of the court below.

Affirmed.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

I agree with the majority that appellée-bank has not exhibited bad faith in asserting its rival claim to appellant’s property and therefore has not abused its conditional privilege to disparage appellant’s title to the property in question. However, I disagree with the majority’s application of the law on slander of title to the facts of the present case. Inasmuch as my analysis of the facts in this appeal differs from that of the majority, I respectfully concur.

An action for slander of title safeguards an owner’s marketable interest in property against another person’s false and malicious representation of the owner’s title to the property. Triester v. 191 Tenants Association, 272 Pa.Super. 271, 415 A.2d 698 (1979); Young v. Geiske, 209 Pa. 515, 58 A. 887 (1904); Comment /to Section 647 of the Restatement (Second) of Torts (1976). “[M]alice — that is, absence of good faith — ... is of the gist of the action.” Hygienic Underwear Co. v. Way, 35 Pa.Super. 229, 233 (1908); Comment d to Section 647 of the Restatement.

A person is conditionally privileged to assert in property a legally protected interest inconsistent with the alleged property owner’s interest if the rival claim is asserted in good faith, i.e., with an honest belief in the claim’s substantial possibility of being sustained. Comment d to Section 647 of the Restatement; Comment b to Section 650A of the Restatement. “It is not necessary that the person asserting the claim should believe in its certain or even probable validity.” Comment d to Section 647 of the Restatement. The conditional privilege “is not abused when the publication [of the rival claim] is made without reasonable grounds for belief in its truth, but is abused only when the claimant does not believe honestly or in good faith that there is a substantial chance of his claim being sustained.” Comment b to Section 650A of the Restatement.

In the present case, the appellee-bank’s legally protected, rival interest in appellant’s property derived from promissory notes memorializing bank loans to appellant and her husband. On March 14, 1975, an attempt was made to consolidate the notes into a single note in the amount of forty-five thousand dollars ($45,000) which constituted the aggregate of the preceding notes.

To protect its right to repayment of the $45,000 debt, the appellee-bank asserted a rival claim to appellant’s property by having a judgment on the March 14 consolidation note entered against appellant and recorded as a lien against appellant’s property. Subsequently, the trial court found as a fact that appellant’s signature on the March 14 note was forged but that appellant’s signatures on the underlying, prior notes were valid.

The issue in this appeal is whether the appellee-bank lost its conditional privilege to assert a rival claim to appellant’s property by acting in bad faith when it had a judgment for $45,000 entered against appellant.

The majority states that the appellee-bank “could reasonably have inferred that the judgment was valid because appellant failed to promptly contest its validity.” At 688 (footnote deleted). Contrary to the majority, I would not confer hindsight justification upon the actions of one who asserts a rival property claim. The question is whether the appellee-bank believed in good faith, both when it initially asserted a rival property claim and when it thereafter continued to maintain the claim, that there was a substantial chance of having its claim upheld. In other words, if the appellee-bank asserted a rival interest in appellant’s property without honestly believing that it had a legitimate interest therein, the appellee-bank would be liable for slandering appellant’s title to property regardless of appellant’s subsequent action or inaction. Comment d to Section 647 of the Restatement; Comment b to Section 650A of the Restatement.

In the present case the appellee-bank was entitled to repayment of $45,000 in indebtedness represented by notes properly endorsed by appellant and her husband. By having a judgment for $45,000 against appellant entered along with a corresponding lien against appellant’s property, the appellee-bank was not acting maliciously to deprive appellant of an opportunity to sell her property but rather was acting to safeguard its right to repayment of the $45,000 debt. Therefore, I conclude that inasmuch as the appellee-bank had a valid claim against appellant in the amount of $45,000, the appellee-bank did not exhibit bad faith by having a judgment for $45,000 entered against appellant together with a correlative lien against appellant’s property.

      . See Restatement, Second, Torts, § 651 for a list of the elements plaintiff must allege and prove to succeed in an action for slander to title.

      . The lower court found that appellant acknowledged the existence of the note or judgment at the time of her husband’s funeral, sometime in May, 1975.

      . The essence of appellant’s arguments is that the lower court’s findings of fact are not supported by the evidence. Because we affirm the Order on the basis that appellant failed to show malice, we do not reach the lower court’s theory of unjust enrichment. All but one of appellant’s contentions go to that issue and need not be addressed here. Her contention that the lower court erred in finding that she had acknowledged, and therefore had notice of, the note, is meritless. The lower court clearly stated, as to that fact, it found appellee’s agent’s testimony to be most credible. We will not disturb that finding of fact.


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    502 A.2d 690
    COMMONWEALTH of Pennsylvania v. Albert HERBERT, a/k/a Robert Miller, Appellant.
    Superior Court of Pennsylvania.
    Argued April 16, 1985.
    Filed Dec. 27, 1985.

      Harvey L. Anderson, Philadelphia, for appellant.
    Elizabeth J. Chambers, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   WICKERSHAM, Judge:

The underlying facts to this appeal are as follows: Defendant was tried on the charges of robbery, theft by unlawful taking and simple assault on June 9, 1982, before the Honorable Nicholas M. D’Alessandro, sitting without a jury.

The trial evidence established the following. On July 7, 1981, at about 3:45 P.M., defendant grabbed the elderly, seventy-one year old victim, threw her into a doorway and then repeatedly knocked her to the ground while he tried to grab her purse. When defendant pulled at her purse, the victim struggled. To overcome her resistance, defendant knocked the elderly woman to the ground and kept pulling at her purse. He then picked her up and threw her back to the ground, this time successfully yanking her purse from her grasp. Police Officer John Russell and Joseph Walsh were on patrol when they observed defendant accost the victim as described above. They then chased defendant. During the chase, Officer Russell observed defendant throw the victim’s purse under a car. Defendant was then caught, arrested and the purse retrieved by the pursuing officers.

# Sit * * Sic *

After due deliberation, on June 11, 1982, Judge D’Ales-sandro found defendant guilty of all charges. Defendant, by trial counsel, Charles Junod, Esquire, timely filed and argued post-verdict motions. On August 8, 1982, the trial court denied defendant’s post-verdict motions and imposed a sentence of four to eight years incarceration for robbery and ruled that the charges of theft and simple assault merged with robbery for the purposes of sentencing. On August 24, 1982, defendant timely filed his pro se appeal. Charles Junod, Esquire, appointed as appellate counsel on September 9,1982, was removed on November 20, 1984. New counsel, Harvey L. Anderson, Esquire, was then appointed to represent defendant in his direct appeal.

Brief for Appellee at 1-2.

On appeal, appellant raises three issues:

I. Whether the Court erred in granting the Commonwealth an extension under Rule 1100, where the Commonwealth failed to sustain its burden of proof that it proceeded with due diligence to bring Appellant to trial within the time required by Rule 1100, Pennsylvania Rules of Criminal Procedure.
II. The trial court erred in allowing the testimony of the alleged victim’s brother to establish that the purse was the property of the alleged victim.
III. The Appellant was denied his constitutional right to confrontation and cross-examination, by the failure of the Commonwealth to produce the alleged victim to testify pertaining to the alleged offense.

Brief for Appellant at 3.

The trial court has comprehensively and thoroughly addressed defendant’s second and third appellate claims, and the lower court’s reasoning is adopted herein. See Opinion, D’Alessandro, J. However, in light of defendant’s discussion on appeal of several Rule 1100 claims which were either inadequately raised or totally omitted before the lower court, we supplement the lower court’s Rule 1100 discussion as follows.

A. DEFENDANT’S UNAVAILABILITY FULLY JUSTIFIED THE HEARING COURT’S EXTENSION OF TIME UNDER PA.R.CRIM.P. 1100.

Defendant, who hid himself under one of his seven aliases while incarcerated pending trial in the instant case, now seeks the windfall of absolute immunity from prosecution under Rule 1100. Defendant claims that the court improperly excluded the time that defendant was incarcerated under his alias.

The evidence at the Rule 1100 hearing established the following. Defendant was arrested under the incorrect name of Robert Miller. He was processed and originally imprisoned under that alias and that misnomer was carried on the official court documents in this case. Once in prison, defendant caused the prison authorities to change the name he was held under from Robert Miller to Albert Herbert, which he claimed was his correct name. Defendant alerted neither the district attorney nor his very own counsel to this name change.

Defendant’s name machinations at the prison resulted in predictable confusion at defendant’s first preliminary hearing on July 13, 1981. Originally believing defendant was not brought down from the prison, the preliminary hearing court contacted the prison. Informed that no one by the name of Robert Miller was in custody, the hearing court issued a bench warrant for defendant — as Robert Miller. Bench Warrant, dated July 13, 1981, issued by McCormack, J. Defendant was represented at the July 13, 1981 hearing by counsel who either failed to reveal or was unaware of defendant’s location or then current moniker.

No word was heard from defendant, who alone among the principals of this case knew where and under what name he was being held, until after the Rule 1100 rúndate of January 3, 1982. Thereafter, a flood of activity ensued. Two days after the rúndate, defendant’s bench warrant was lifted. Within two weeks of the Rule 1100 rúndate, on January 19, 1982, demonstrating a considerable familiarity and understanding of applicable law, defendant filed pro se two written petitions to dismiss the charges against him in this case. In both motions, defendant introduced himself to the court as Robert Miller a/k/a Alfred Herbert. Defendant, who had had no contact with his attorney prior to the running of the Rule 1100 period, thereafter initiated contact with his attorney by telephoning counsel from prison to ensure counsel’s presence at the February 8, 1982, Rule 1100 and preliminary hearings.

Upon this evidence, Judge Scott ruled that the period between July 13, 1981 and January 5, 1982, when defendant’s bench warrant was lifted, was excludable time. Accordingly, the hearing court extended the Rule 1100 rúndate to June 28,1982. The hearing court’s ruling was absolutely proper.

The record before the Court clearly demonstrated that, although incarcerated, defendant consciously made himself unavailable for prosecution of the charges against him. Defendant cleverly “lost” himself within the crevices of the criminal justice system to reappear magically at the appropriate time to lament the putative denial to him of a speedy trial. Judge Scott correctly saw through defendant’s ploy and properly held defendant accountable for the time lost as a result of defendant’s own ruse.

The hearing court’s ruling is fully and firmly supported in the law of this Commonwealth and is compelled by Supreme Court authority. In Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981), the Supreme Court made clear that when the accused himself is responsible for the delay in the commencement of trial, “[cjommon sense, the public interest and justice demand that [h]e not be permitted the windfall of an absolute dismissal under Rule 1100____” 493 Pa. at 407, 426 A.2d at 613. Accord, Commonwealth v. Brightwell, 486 Pa. 401, 407, 406 A.2d 503, 505 (1979) (Opinion in Support of Affirmance, Nix, J.) (“[W]e know of no case wherein the right to a speedy trial has been violated when the cause for delay has been properly attributable to the defendant.”)

Moreover, contrary to defendant’s claim, the fact that he was in custody in no way prevented his being ruled unavailable under Rule 1100. As Judge Spaeth (now President Judge) stated in Commonwealth v. Clark, 248 Pa.Super. 184, 188, 374 A.2d 1380, 1382 (1977):

Although it is axiomatic that “it is not the defendant’s duty to bring himself to trial,” (citation omitted), it does not follow from this axiom that a defendant may hide himself away in some crevice of the criminal justice system. To declare appellant a “fugitive” was unwarranted, given the fact that he was in custody. He may nevertheless have been “unavailable." (emphasis added).

Defendant, while in custody, clearly made himself unavailable for criminal prosecution. This is emphatically not a situation in which the criminal justice system mismanaged and “lost” defendant — instead, it is one in which defendant, displaying his savvy and understanding of the criminal justice system, seized an opportunity to exploit potential weaknesses in the system and delayed his trial until the period for timely criminal prosecution had passed. Defendant’s demand for immunity from prosecution based on his calculating action is intolerable and is condemned by all authority in this area of the law.

It is manifestly apparent that the last thing defendant wanted was a speedy trial; rather, all of his efforts were directed to the avoidance of criminal prosecution altogether. To have rewarded defendant’s errant behavior by giving him what he wanted all along — absolute immunity from criminal liability — under the pretext that the speedy trial he successfully avoided was denied him, would have constituted a monstrous and unacceptable distortion of Rule 1100. The hearing court and the trial court on post-verdict motions both readily recognized defendant’s ploy for what it was and refused to participate in defendant’s blatant, perverse attempt at exploiting Rule 1100. The rulings of both lower courts, reflecting as they do the clear dictates of authority in this area, were absolutely proper. Hence, defendant’s claim must be rejected.

B. DEFENDANT’S FIFTH AMENDMENT RIGHTS WERE NOT VIOLATED AT HIS RULE 1100 HEARING.

Defendant, who sought dismissal of all criminal prosecution against him with two pro se motions to dismiss filed under two of his seven aliases, now claims the Fifth Amendment prohibited the court from asking him what his name was. Defendant’s claim is waived. Defendant completely failed to raise this fifth amendment claim at any point during post-verdict motions. Defendant’s bare, unspecific Rule 1100 allegation, wholly omits all reference, implicit or explicit, to the fifth amendment claim he raises on appeal. Moreover, defendant failed to raise this issue before the lower court at oral argument on post-verdict motions. The result was that no post-verdict consideration of this claim occurred at all. See Opinion, D’Alessandro, J., 2-7. Such total circumvention of lower court review had been expressly, clearly and consistently prohibited by the Supreme Court since its decision in Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). See also, Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980); Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978), and cases cited therein. Accordingly, defendant’s claim was not preserved for appellate review. In any event, defendant’s claim is meritless.

C. NO DUE PROCESS VIOLATION OCCURRED AT DEFENDANT’S RULE 1100 HEARING.

Defendant next claims that an unspecified due process violation occurred in that the court exceeded its judicial authority by its simple act of asking him about the aliases used on the motion papers he had filed with the court. This claim is waived. Defendant did not preserve this objection at the Rule 1100 hearing. He further failed to specify this issue in his post-verdict motion on Rule 1100. Nor did he raise this issue before the lower court in oral argument on post-verdict motions. Since his failure to raise this issue at all in his post-verdict motions, or, in the alternative, his presentation on appeal of a new theory or ground not advanced below has resulted in absolutely no prior review of this claim at any stage before appeal, defendant has failed to preserve this claim for appellate review. See Commonwealth v. Blair, supra; in any event, defendant’s claim is meritless.

For the foregoing reasons, judgment of sentence is affirmed.

Judgment of sentence affirmed.

      . The pertinent Rule 1100 dates are as follows. A complaint was filed against defendant on July 7, 1981. One hundred eighty days from the filing of that complaint was January 3, 1982. A bench warrant was issued for defendant at his first preliminary hearing on July 13, 1981. The bench warrant was withdrawn on January 5, 1982. On January 12, 1982, the Commonwealth filed its petition to extend under Rule 1100 alleging the period between July 13, 1981 and January 5, 1982 to be excludable time under section (d) of Rule 1100 because defendant failed to appear for his scheduled hearing. On January 18, 1982, defendant filed an answer to the Commonwealth’s petition and a petition to dismiss alleging there were no periods of excludable time and that the Commonwealth failed to exercise due diligence to locate defendant. On January 19, 1982, defendant filed two additional, pro se motions to dismiss based on speedy trial claims. On February 8, 1982, the Rule 1100 hearing was held wherein the Honorable John J. Scott, Jr., ruled that defendant was unavailable between July 13, 1981 and January 5, 1982, and, therefore, further ruled that period of time excludable.

      . Defendant also challenges on appeal the timeliness of the Commonwealth’s filing of its Rule 1100 petition. This claim is waived. Since this is a new theory which defendant never raised in post-verdict motions, the trial court properly ruled this theory was not preserved for appellate review. D’Alessandro, J., at 570, n. 5. See Commonwealth v. Dunston, 496 Pa. 552, 437 A.2d 1178 (1981).

      . Contrary to defendant’s claim, he was afforded a full evidentiary Rule 1100 hearing. Judge Scott’s factual and legal conclusions were firmly rooted in the evidence before him which consisted of the official court documents of defendant’s case and defendant’s testimony. The law of this Commonwealth is clear that official court documents are proper and appropriate evidence at Rule 1100 hearings and are sufficient alone to support Rule 1100 findings and rulings. See Commonwealth v. Lewis, 319 Pa.Super. 33, 465 A.2d 1038 (1983); Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983); Commonwealth v. Postell, 280 Pa.Super. 550, 421 A.2d 1069 (1980). Moreover, no due process principles or testimonial privileges operated to preclude defendant’s testimony at this Rule 1100 hearing. Accordingly, defendant’s reliance on Commonwealth v. Reynolds, 277 Pa.Super. 145, 419 A.2d 703 (1980), is misplaced. In Reynolds, absolutely no evidence was presented, and the assistant district attorney uttered not one word at the hearing. The Reynolds court thereby ruled in an evidentiary vacuum. To the contrary in the instant case, the court’s ruling was based on testimony and documentary evidence, as well as argument from both sides.

      . In fact, throughout his active criminal history beginning at age fifteen and covering twelve adult arrests, five felony convictions, and four commitments, defendant has carried at least five aliases, among which are the following: James Williams, George Herbert, Herbert Albert, as well as Alfred Herbert and Robert Miller. See Prisoner Bring-up Sheet, dated June 8, 1982.

      . Judge Scott properly took judicial notice of the meaning and significance of the various notations on the court transcript. See Commonwealth v. Selig, 317 Pa.Super. 533, 538, 464 A.2d 450, 453 (1983). ("The technique of judicial notice is a permissible method of reaching a conclusion and the use of that method in Rule 1100 hearings has received the clear approval of this court"). Accord, Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984); Commonwealth v. Byrd, 325 Pa.Super. 325, 472 A.2d 1141 (1984). The hearing court’s factual conclusions, based as they were on the court’s familiarity with and interpretation of those notations, were firmly based in the evidence before him and not, as defendant contends, in mere “surmise.”

      . In an apparent effort to cover all possibilities, defendant filed a petition to dismiss under Rule 1100 and a second petition to dismiss under the analogous Municipal Court rule governing speedy trials, Pa.R.Crim.P. 6013. Defendant’s filing of these two petitions was accomplished independent of discussion with his then counsel of record, the Defender Association of Philadelphia. Defendant’s counsel filed a separate petition to dismiss on defendant's behalf on January 18, 1982.

        . We have the benefit of the excellent appellee’s brief filed in this case.


author: CERCONE, Judge:

text:
    502 A.2d 694
    COMMONWEALTH of Pennsylvania, Appellant, v. Margaret SHERIDAN.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1985.
    Filed Dec. 27, 1985.

      Harriet R. Brumberg, Assistant District Attorney, Philadelphia, for Com., appellant.
    David E. Shapiro, Philadelphia, for appellee.
    Before WIEAND, CERCONE and ROBERTS, JJ.
   CERCONE, Judge:

This case is a direct Commonwealth appeal from the judgment of sentence imposed on appellee following her plea of guilty to four (4) counts of delivery of a controlled substance. 35 Pa.S. § 780-113(a)(30). The mitigated minimum sentence under the Sentencing Guidelines, 42 Pa.C. S.A. § 9712 et seq., is two (2) to four (4) months imprisonment for each of appellee’s four convictions. Appellee was sentenced to five (5) years strict drug probation subject to many conditions. The Commonwealth appeals, pursuant to 42 Pa.C.S.A. § 9781, alleging that the lower court’s deviation from the sentencing guidelines is manifestly unreasonable under the statutorily-mandated totality of the circumstances analysis as set forth in 42 Pa.C.S.A. § 9781(d). As a corollary argument, the Commonwealth asserts that the sentencing court failed to provide an adequate contemporaneous statement of its reasons for the sentence.

In Commonwealth v. Drumgoole, supra, the level of review to be used by this court was succinctly set forth, wherein it is stated:

The legislature has provided that the appellate court, in reviewing the discretionary aspects of a sentence on appeal, shall affirm the trial court’s sentence unless it finds: (1) that the guidelines were erroneously applied; (2) that the sentence even though within the guidelines, is “clearly unreasonable”; or (3) that the sentence, if outside the guidelines, “is unreasonable”. In any one of these three circumstances, we are required to vacate the trial court’s sentence and remand the case with instructions. 42 Pa.C.S.A. § 9781(c). In determining whether a particular sentence is “clearly unreasonable” or “unreasonable”, the appellate court must consider the defendant’s background and characteristics as well as the particular circumstances of the offense involved, the trial court’s opportunity to observe the defendant, the pre-sen-tence investigation report, if any, the Sentencing Guidelines as promulgated by the Sentencing Commission, and the “findings” upon which the trial court based its sentence.

341 Pa.Superior at 473, 491 A.2d at 1354. After reviewing the record in this case, we find that the sentencing court did not abuse its discretion in imposing sentence and that its stated reasons for imposing probationary sentence are supported by the record.

At the reconsideration of sentence hearing, the court enumerated several factors which it had considered in determining sentence:

(1) Appellee has a supportive family.
(2) Appellee has an eight year old child, with special medical needs, to support.
(3) Although seriously engaged in drug trafficking, ap-pellee was not so deeply involved that she couldn’t start a new life.
(4) Incarceration would be more harmful to appellee, because of her psychological structure, than its punitive effects would be helpful.
(5) Appellee’s remorse for her involvement with drugs and her fear of losing custody of her child would act as deterrents to future misconduct.
(6) A long and strict period of probation would not deprecate the seriousness of the offense.
(7) Appellee was currently in compliance with conditions of probation.

These factors are supported by the record in this case. In making this determination, we look to all evidence presented at any proceeding in this case as well as to the Pre-sen-tence Report.

It is clear that the trial judge has broad discretion in imposing sentence. Commonwealth v. Knepp, 307 Pa. Superior 535, 539, 453 A.2d 1016 (1982) (citing cases). The Sentencing Guidelines were enacted to provide a guide to the courts; they are not mandatory. See 42 Pa.C.S.A. § 9721; 204 Pa.Code Ch. 303, § 303.1(a). They do not preclude appropriate exercise of judicial discretion. See, generally, Commonwealth v. Drumgoole, supra; Commonwealth v. Hutchinson, 343 Pa.Superior 596, 495 A.2d 956 (1985). There can be no doubt that under Pennsylvania law sentences must be imposed individually, taking into account not only the offense but the characteristics of the offender. See, generally, Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976) (Identical sentences imposed on three co-defendants, without regard to individual characteristics and circumstances of each defendant, were illegal); Commonwealth v. Riggins, 474 Pa. 115, 122, 377 A.2d 140 (1977) (“This system of indeterminate sentencing ‘necessitates the granting of broad discretion of the trial judge, who must determine, among the sentencing alternatives and the range of permissible penalties, the proper sentence to be imposed.’ [Commonwealth v. Martin, supra, 466 Pa. at 130, 351 A.2d at 656.” (footnote citing cases omitted)); and Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981).

A sentence must be the minimum punishment consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant. Commonwealth v. Edrington, 490 Pa. 251, 256, 416 A.2d 455, 457 (1980). Our review of the record convinces us that the sentencing court did not abuse its discretion in this case. The pre-sentence report indicates that appellee does come from a stable family, that her son is a well-behaved child who succeeds at school, and that appellee has responded well to a drug treatment program. While the Commonwealth insists that appellee’s involvement with drug trafficking must have been more extensive than the four sales for which she was convicted, it provided no direct evidence of such. In fact, appellee’s explanation as to the extent of her involvement was plausible. Finally, a psychological report on appellee indicated that she had restricted intelligence with an extremely weak ego structure and that incarceration would exacerbate her problems. The combination of factors involved in this case are sufficient to support the sentence which was imposed outside the Sentencing Guidelines. Accordingly, the judgment of sentence is affirmed.

Affirmed.

      . The "offense gravity score” assigned to each of appellee's offenses is six (6). Her "prior record score" is zero (0).

      . The conditions of probation included the requirement that appellee achieve her G.E.D., maintain employment, and submit to systematic urine analysis to check for drug content.

      . As a general rule, when sentence imposed is outside the Sentencing Guidelines, supra, this court will conclude that there is a substantial question that the sentence imposed is not appropriate under the Guidelines and will allow the Commonwealth’s appeal. See Commonwealth v. Drumgoole, 341 Pa.Superior 468, 491 A.2d 1352 (1985). Our review of the record convinces us that a substantial question exists in this case and, therefore, the Commonwealth’s appeal will be allowed.

      . Following the intial sentencing, the Commonwealth timely filed a Petition to Vacate and Modify Sentence. After a full hearing, the court denied the petition and reimposed the initial sentence.

      . Although the lower court did not refer to 42 Pa.C.S.A. § 9722, many factors cited which may be accorded weight in favor of an order of probation are present in this case. See subsections (4), (8), (9), (10), (11), (12).


author: WIEAND, Judge:

text:
    502 A.2d 697
    Z & L LUMBER COMPANY OF ATLASBURG, a Corporation v. Thomas NORDQUIST, Donald Bott and Donald Samuels, individually and d/b/a Venture Enterprises, a partnership, Appellants, v. Frank TAYLOR, an individual, and Peoples Home Savings and Loan, a corporation.
    Superior Court of Pennsylvania.
    Argued May 15, 1985.
    Filed Dec. 31, 1985.

      Robert W. Deer, Washington, for appellants.
    Cathy D. Campbell, Beaver Falls, for appellee.
    Before SPAETH, President Judge, and ROWLÉY and WIEAND, JJ.
   WIEAND, Judge:

In July, 1981, Venture Enterprises, a partnership, contracted to build a log home for Frank Taylor at a price of $34,924.45. To obtain materials for the job, Venture obtained a line of credit with Z & L Lumber Co. (Z & L), a building supply company. Before construction had been completed, Z & L commenced an action against Venture to recover a balance which Venture refused to pay. Venture joined Taylor as an additional defendant. It also joined Peoples Home Savings and Loan Association, which had agreed to advance the construction money. After Z & L’s claim had been settled, the action continued for the purpose of adjudicating claims asserted against each other by Venture and Taylor.

The case was tried non-jury before the Honorable Robert E. Kunselman, who rendered a verdict in favor of Taylor in the amount of $7,282.78. The court en banc subsequently modified the amount of the verdict by adding $5,246.00, which had been omitted by the trial judge, but otherwise affirmed the findings of the trial judge. Judgment was entered in favor of Taylor and against Venture for $12,-528.78.

On appeal, Venture argues that the trial court erred in finding that Venture was contractually obligated to supply all labor and material except electrical and plumbing fixtures and carpeting. The written contract provided, inter alia, that “[Venture] agrees to provide all the materials as specified and to perform all the labor shown on the working drawings and described in the specifications____” The working drawings and specifications consisted of a series of ten documents appearing in a construction manual. The first six documents were drawings indicating construction of the foundation and exterior of the home. They specified the types and sizes of materials to be used. The seventh and eighth sketches, entitled “elevations,” portrayed the completed home according to its front and side views. The home as depicted in these renderings contained, inter alia, doors and windows, including frames, a garage door, and shingles. The ninth drawing portrayed the proper construction of the roof, and delineated the types and sizes of lumber needed to complete that portion of the home. The final document specified the quantity, type, and size of the logs that would be necessary to complete the entire home. The remainder of the construction manual provided generalized instructions on how to perform the more intricate tasks involved in constructing a log home. Thomas Nordquist, one of the Venture partners, enumerated the responsibilities of the parties in a letter to the construction lender. He said that Venture was responsible for a log kit f.o.b. delivered, the doors and windows, and “the interior framing and second floor framing and roof framing including interior knotty pine walls and ceiling of 1 x 8 U-Notch Tongue and Groove.” Frank Taylor’s responsibility, according to Nord-quist’s letter, included supplying carpeting, plumbing fixtures in the bath and kitchen, lighting fixtures, electric wiring for the first and second floor, and labor for all of the above. Based on this evidence, the trial court found that Venture was liable for costs of labor and materials except for electrical wiring and fixtures, plumbing fixtures and carpeting.

The findings of a trial court, approved by a court en banc, are entitled to the same weight as a jury’s verdict and will not be disturbed on appeal if supported by adequate evidence. Albert v. Lehigh Coal & Navigation Co., 431 Pa. 600, 610, 246 A.2d 840, 845 (1968); Estate of Rudy, 329 Pa.Super. 458, 465, 478 A.2d 879, 882 (1984); Reed v. Wolyniec, 323 Pa.Super. 550, 556, 471 A.2d 80, 84 (1983). An appellant challenging a trial court’s findings bears the heavy burden of demonstrating that the trial judge committed a manifest error or a clear mistake. 16 Std.Pa.Prac.2d § 91:121 (1980). An appellate court, however, is not bound by the trial court’s conclusions of law derived from the underlying facts. Lawner v. Engelbach, 433 Pa. 311, 315, 249 A.2d 295, 297 (1969); Linnet v. Hitchcock, 324 Pa.Super. 209, 212-213, 471 A.2d 537, 539 (1984); Interest of Miller, 301 Pa.Super. 511, 515-516, 448 A.2d 25, 27 (1982).

Our review of the record discloses evidentiary support for the findings of the trial court. Appellant argues, however, that the letter written by Thomas Nordquist was extrinsic to the written contract and should not have been considered by the court. The trial court explained that the “specifications” were ambiguous and that the Nordquist letter would be considered in assisting it to interpret the written contract. We find no error in this ruling.

The fundamental objective of contract construction is to ascertain the intention of the parties. Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1131 (3d Cir.1969); Robert F. Felte, Inc. v. White, 451 Pa. 137, 143, 302 A.2d 347, 351 (1973); Metzger v. Clifford Realty Corp., 327 Pa.Super. 379, 385, 476 A.2d 1, 5 (1984); 8 P.L.E. Contracts § 144 (1971). When the terms of the contract are clearly expressed, the intention of the parties must be determined from the language used. East Crossroads Center, Inc. v. Mellon-Stuart Co., 416 Pa. 229, 230, 205 A.2d 865, 866 (1965); Pennsylvania Turnpike Commission v. U.S. Fidelity & Guaranty Co., 412 Pa. 222, 231, 194 A.2d 423, 428 (1963); 8 P.L.E. Contracts § 161 (1971). However, “[wjhere the language of the written contract is ambiguous, extrinsic or parol evidence may be considered to determine the intent of the parties.” Metzger v. Clifford Realty Corp., supra, 327 Pa.Super. at 385, 476 A.2d at 5. See: Herr Estate, 400 Pa. 90, 94, 161 A.2d 32, 34 (1960); 8 P.L.E. Contracts § 161 (1971).

The standard for determining the existence of an ambiguity was stated in Metzger v. Clifford Realty Corp., supra, as follows:

A contract will be found to be ambiguous:
if, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning. A contract is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of language in general, its meaning depends; and a contract is not rendered ambiguous by the mere fact that the parties do not agree upon the proper construction.
Commonwealth State Highway and Bridge Authority v. E.J. Albrecht Co., 59 Pa.Commw.Ct. 246, 251, 430 A.2d 328, 330 (1981) (Quoting 8 P.L.E. CONTRACTS § 146 (1971)). Ambiguities may be either patent or latent. A patent ambiguity appears on the face of the instrument and arises from the defective, obscure, or insensible language used. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). Latent ambiguities arise from extraneous or collateral facts which render the meaning of a written contract uncertain although the language, on its face, appears clear and unambiguous.

Id., 327 Pa.Super. at 386, 476 A.2d at 5 (footnote omitted). A court, in making this determination, should hear the evidence presented by both parties and then decide whether “there is objective indicia that, from the linguistic reference point of the parties, the terms of the contract are susceptible of differing meanings.” Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1011 (3d Cir.1980). Extrinsic evidence may be used to determine the intent of the parties whether the ambiguity be patent or latent. See: Metzger v. Clifford Realty Corp., supra (extrinsic evidence used to interpret patent ambiguity); Kohn v. Kohn, 242 Pa.Super. 435, 443, 364 A.2d 350, 354 (1976) (extrinsic evidence employed to construe latent ambiguity).

Ordinarily, the specifications of a construction contract will clearly denote the “kinds, quality, and quantity of work to be done, the details, time and manner of construction, without which the contract would be incomplete and ineffective.” Knelly v. Horwath, 208 Pa. 487, 491, 57 A. 957, 958 (1904); Cek v. Karinch, 11 Lebanon 371, 379 (Pa.1967); 8 P.L.E. Contracts § 225 (1971). In this case, however, the parties ascribed differing meanings to the term “specifications” in the contract. Venture contended that the specifications were limited to the schematic drawings (sketches two through six) contained in the back of the construction manual. Taylor argued, on the other hand, that the specifications included all of the materials and labor necessary to construct the home as it appeared in the “elevations” (drawings seven and eight). According to Taylor, this included exterior doors and windows, an overhead garage door, and shingles. Taylor also contended that Venture had been obligated to provide and install items such as interior doors, knotty pine walls, interior partitions, and insulation.

Specifications, according to expert testimony offered by Venture, are not ordinarily limited to construction drawings. Instead, the materials necessary to complete a construction project are listed in a specifications booklet. Here, there was no such booklet, and the parties looked to the drawings made a part of the contract. The trial court could properly determine that under these circumstances there was a latent ambiguity in the written contract.

Having found the contract ambiguous, the trial court could consider extrinsic evidence to determine the intent of the parties. See: Metzger v. Clifford Realty Corp., supra. Parol evidence which indicated the interpretation which the parties themselves had given to the contract, as manifested by their conduct after formation, was entitled to great weight in construing the agreement. Capitol Bus Co. v. Blue Bird Coach Lines, Inc., 478 F.2d 556, 560 (3d Cir.1973); Barcelona v. Fox Grocery Co. Employee's Pension Plan, 483 F.Supp. 1128, 1132 (W.D.Pa.1980); Maloney v. Glosser, 427 Pa. 548, 552, 235 A.2d 607, 609 (1967); Demharter v. First Fed. Sav. & Loan Ass’n of Pittsburgh, 412 Pa. 142, 154, 194 A.2d 214, 220 (1963); Commonwealth ex rel. Fleming v. Fleming, 288 Pa.Super. 504, 509, 432 A.2d 626, 628 (1981); 8 P.L.E. Contracts § 165 (1971). “[The parties’] interpretation is entitled to great, if not controlling, influence, and will generally be adopted and followed by the courts, particularly when the parties’ interpretation is made before any controversy, or when the construction of one party is against his interest.” 8 P.L.E. Contracts § 165 (1971) (footnotes omitted). The construction which parties themselves place upon their contract can be gleaned from contemporaneous or subsequent writings expressly stating their interpretation of ambiguous terms. See: Mellon Bank. N.A. v. Aetna Business Credit, Inc., supra; Metzger v. Clifford Realty Corp., supra. See also: 8 P.L.E. Contracts § 165 (1971).

The letter written by Nordquist was properly received by the trial court as an aid in determining the intention of the parties. It was sent by Nordquist, a Venture partner, in response to an inquiry by the construction lender and contained Nordquist’s interpretation of the responsibilities of the parties under the terms of their agreement. Nordquist’s letter supports the trial court's interpretation of the written contract.

Because Venture was required to provide a log home which, except for electric and plumbing fixtures, was substantially complete, Taylor was entitled to recover the cost of materials necessary to complete the work which Venture had left undone. Moreover, it was Venture who was liable to Z & L for most of the materials charged to its account by Taylor during construction. This was so in view of the trial court’s finding that Venture had authorized Taylor, who had agreed to perform some of the labor himself, to purchase materials and charge the same to Venture’s account. Except for electrical supplies purchased by Taylor, Venture was not entitled to a credit on account of purchases which he had made from Z & L.

The amount awarded by the court en banc, viz. $12,528.78, was arrived at by adding together the cost of the labor ($4,220.00) and materials ($8,251.03) necessary to complete Taylor’s home, plus the amount which Taylor had been required to advance to Z & L as a result of the settlement of its claim, and subtracting from the total thus obtained the cost of the electrical supplies purchased by Taylor from Z & L ($201.80), and the amount which Taylor owed on account of the contract price ($5,986.45). In an opinion filed pursuant to Pa.R.App.P. 1925(a) after an appeal had been filed, the court en banc observed that both the trial court and the court en banc had erred by omitting a bill for electrical supplies in the amount of $161.06 and by awarding to Taylor special damages which had not been pleaded in the amount of $642.56. Both of these errors accrued to Venture’s benefit. The court en banc recommended to this Court that the judgment be modified by subtracting these amounts. We will accommodate this recommended correction.

The judgment previously entered in favor of appellee, Frank Taylor, and against the appellant, Venture Enterprises, is reduced to $11,725.16. As so modified, the judgment is affirmed.

      . The partners were Thomas Nordquist, Donald Bott and Donald Samuels.

      . The original action had been commenced in Washington County by Z & L. After its claim had been settled, the action was transferred to Beaver County for trial of the cross-claims asserted by Venture and Taylor.


author: ROWLEY, Judge:

text:
    502 A.2d 702
    COMMONWEALTH of Pennsylvania, Appellant, v. Daniel James REAGAN.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1985.
    Filed Dec. 31, 1985.

      Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellant.
    Lawrence J. Hracho, Reading, for appellee.
    Before SPAETH, President Judge, and BROSKY, ROW-LEY, WIEAND, McEWEN, CIRILLO, OLSZEWSKI, MON-TEMURO and TAMILIA, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is a direct appeal by the Commonwealth from a judgment of sentence of imprisonment for 48 hours to 12 months. Appellee pled guilty to driving under the influence of alcohol and disorderly conduct. At the time of sentencing on March 26, 1984, the Commonwealth requested the court to sentence appellee to a minimum of 30 days in jail pursuant to 75 Pa.C.S. § 3731(e)(1)(h), the recidivist provision of the Drunk Driving Act, because it alleged that appellee had previously been convicted of driving while under the influence of alcohol within the last seven years. But because the criminal Information did not allege any prior convictions, the trial court refused to consider appellee as anything other than a first offender. The trial court sentenced him to 48 hours to 12 months imprisonment for driving while under the influence of alcohol and to a fine of $100 for disorderly conduct. Pursuant to 75 Pa.C.S. § 3731(e)(4) which grants the Commonwealth the right to appeal directly an order of court which imposes a sentence that does not meet the requirements of the Drunk Driving Act, the Commonwealth has appealed.

The Commonwealth raises three issues on appeal: 1) whether it must allege prior convictions in the criminal Information in order to seek sentencing for a defendant under 75 Pa.C.S. § 3731(e)(l)(ii) — (iv); 2) whether Commonwealth v. Campbell, 273 Pa.Super. 407, 417 A.2d 712 (1980), Commonwealth v. Longo, 269 Pa.Super. 502, 410 A.2d 368 (1979), and Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118 (1979) should be overruled; and 3) whether a defendant’s due process rights can be protected by requiring the Commonwealth to establish sentence enhancing factors at the sentence proceeding. Argument before the court en banc was granted to consider these issues. We reverse.

I.

The Drunk Driving Law, 75 Pa.C.S. § 3731, provides: (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:

(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
(2) under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as ‘The Controlled Substance, Drug, Device and Cosmetic Act,’ to a degree which renders the person incapable of safe driving;
(3) under the combined influence of alcohol and any controlled substance to a degree which renders the person incapable of safe driving; or
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

(Footnote omitted.)

Subsection (e)(1) of this statute sets forth the penalty to be imposed for violation of the statute:

(e) Penalty.—
(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(i) not less than 48 consecutive hours.
(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(iii) not less than 90 days if the person has twice previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(iv) not less than one year if the person has three times previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

The Commonwealth contends that because prior convictions are not included in the definition of the crime and are not elements thereof, they need not be alleged in the criminal information. The prior convictions do not alter the guilt or innocence of the person charged with drunken driving; rather they are relevant only to the minimum mandatory sentence to be imposed following a finding of guilty by a judge or a jury or after a guilty plea has been entered. We agree.

The Pennsylvania Rules of Criminal Procedure set forth in Rule 225 the required contents of a criminal Information as follows:

(b) The information shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains:
(1) a caption showing that the prosecution is carried on in the name of and by the authority of the Commonwealth of Pennsylvania;
(2) the name of the defendant, or if he is unknown, a description of him as nearly as may be;
(3) the date when the offense is alleged to have been committed if the precise date is known, and the day of the week if it is an essential element of the offense charged, provided that if the precise date is not known or if the offense is a continuing one, an allegation that it was committed on or about any date within the period fixed by the statute of limitations shall be sufficient;
(4) the county where the offense is alleged to have been committed;
(5) a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint; and
(6) a concluding statement that ‘all of which is against the Act of Assembly and the peace and dignity of the Commonwealth’.
(c) The information shall contain the official or customary citation of the statute and section thereof, or other provision of law which the defendant is alleged therein to have violated; but the omission of or error in such citation shall not affect the validity or sufficiency of the information.
(d) In all court cases tried on an information the issues at trial shall be defined by such information.

Nowhere does the rule require that a prior conviction be averred in the information. Therefore, unless the prior conviction is an “essential element” of the crime and required to be averred in the Information by Rule 225(b)(5), it is not necessary to include the averment of a prior conviction in the Information. Our review of the applicable statutes and relevant case law compels us to conclude that prior convictions are not an element of the crime of drunken driving and therefore need not be alleged in the Information.

The Crimes Code defines an “element of an offense” as: Such conduct or such attendant circumstances or such a result of conduct as:
(1) is included in the description of the forbidden conduct in the definition of the offense;
(2) establishes the required kind of culpability;
(3) negatives an excuse or justification for such conduct;
(4) negatives a defense under the statute of limitation; or
(5) establishes jurisdiction or venue.

18 Pa.C.S. § 103. A prior conviction is nowhere mentioned in 75 Pa.C.S. § 3731(a) which is captioned “offense defined”. Neither does a prior conviction establish the required culpability. A prior conviction does not excuse or justify driving under the influence of alcohol and an averment of a prior conviction could neither negate a statute of limitations defense nor establish jurisdiction or venue. Therefore, under 18 Pa.C.S. § 103, a prior conviction is not an element of driving while under the influence of alcohol or a controlled substance.

In a long line of cases applying recidivist penalties under a variety of statutes, the Pennsylvania courts have required the Commonwealth to allege in the Information or Indictment the prior convictions of the defendant and have held explicitly or implicitly that the prior conviction is an element of the crime for which the increased penalty is sought. Rauch v. Commonwealth, 78 Pa. 490 (1875); Commonwealth v. Payne, 242 Pa. 394, 89 A. 559 (1913); Halder-man’s Case, 53 Pa.Super. 554 (1913); Commonwealth ex rel. Blattenberger v. Ashe, 133 Pa.Super. 509, 3 A.2d 287 (1939); Commonwealth ex rel. Flory v. Ashe, 132 Pa.Super. 405, 1 A.2d 685 (1938); Commonwealth ex rel. Der-mendzin v. Myers, 397 Pa. 607, 156 A.2d 804 (1959); Commonwealth v. Moses, 441 Pa. 145, 271 A.2d 339 (1970); Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118 (1979); Commonwealth v. Longo, 269 Pa.Super. 502, 410 A.2d 368 (1979); Commonwealth v. Campbell, 273 Pa.Super. 407, 417 A.2d 712 (1980). However, in each of these cases, the recidivist statute under which the defendant was sentenced provided for an increased maximum sentence or an “enlarged” sentence, and it was for this reason that the Courts concluded that prior convictions had to be alleged in the Information or Indictment. The Courts held that the increased maximum sentence, or change in grade of offense, made a subsequent offense different in kind and character than a first offense.

The recidivist penalty provision of the Drunk Driving Law provided in 75 Pa.C.S. § 3731(e)(1), however, does not provide for an increased maximum penalty and does not alter the grade of the underlying offense. Any violation of § 3731 is a second degree misdemeanor. The maximum term of imprisonment for a second degree misdemeanor is two years. 18 Pa.C.S. § 1104. Yet the sentence required by 75 Pa.C.S. § 3731(e)(l)(iv) for even a fourth conviction for drunk driving, is “not less than one year.” Thus the penalties provided in the Drunk Driving Law do not change either the nature or grade of the offense, nor do they increase the maximum sentence. Because those cases which held that the Indictment or Information must contain averments of prior convictions to subject a defendant to a recidivist penalty involved statutes which it was held altered the nature and grade of the offense, they are not controlling in the instant case.

We find persuasive and relevant those cases involving the Mandatory Minimum Sentencing Act. 42 Pa.C.S. § 9712 et seq. The penalty provisions for driving under the influence of alcohol are similar to the provisions of the Mandatory Minimum Sentencing Act for offenses committed with firearms (42 Pa.C.S. § 9712) and certain second and subsequent offenses (42 Pa.C.S. § 9714). These statutes provide for a mandatory minimum sentence of five years imprisonment for conviction of certain enumerated offenses. Just as the Drunken Driving Act’s mandatory minimum sentences for subsequent convictions do not change the grade or nature of the offense or increase the maximum penalty which could otherwise be imposed, so too the mandatory minimum sentences under 42 Pa.C.S. §§ 9712 and 9714 do not impose any penalty more severe than that which could be imposed if the statutes did not apply. These statutes simply remove the sentencing court’s discretion to impose a lesser sentence.

Under the Mandatory Minimum Sentence Act, the factors which trigger the applicability of the recidivist provisions are not elements of the underlying offense and need not be averred in the Information. See 42 Pa.C.S. §§ 9712(b) and 9714(c). The Pennsylvania Supreme Court has recently held §§ 9712 and 9714 of the Mandatory Minimum Sentence Act to be constitutional. Commonwealth v. Allen, 508 Pa. 114, 494 A.2d 1067 (1985); Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985). In Allen, the Supreme Court held that a prior conviction for an offense described in 42 Pa.C.S. § 9714(b) is not an element of the crime for which a defendant subject to § 9714 is to be sentenced, and can be proven by the preponderance of the evidence. In Wright, the Court held that visible possession of a firearm is not an element of the crime for which a defendant subject to § 9712 is to be sentenced and that visible possession can be proven by a preponderance of the evidence.

Based on the Supreme Court’s holding in Allen and Wright, as well as the fact that a prior conviction for drunken driving does not constitute an “element” of the crime of driving while under the influence of alcohol pursuant to 18 Pa.C.S. § 103 and 75 Pa.C.S. § 3731(a), we hold that under 75 Pa.C.S. § 3731, the Commonwealth is not required to allege prior convictions in the criminal Information.

II.

Appellant argues that three of the cases cited above, Commonwealth v. Campbell, 273 Pa.Super. 407, 417 A.2d 712 (1980), Commonwealth v. Longo, 269 Pa.Super. 502, 410 A.2d 368 (1979), and Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118 (1979), should be explicitly overruled because Commonwealth v. Moses, 441 Pa. 145, 271 A.2d 339 (1970), upon which they rely, has been overruled sub silentio by the Pennsylvania Supreme Court in Allen. Moses, Campbell, Longo and Herstine involve provisions of the Liquor Code and the Retail Theft statute which provide for an increased maximum penalty and, as already discussed, they are irrelevant to the case at bar. Therefore, the continuing viability of those cases in light of Allen need not be decided by us.

III.

Appellant’s final argument is that a defendant’s due process rights are adequately protected as long as the Commonwealth establishes sentence enhancing factors, such as prior convictions, at the time of sentencing. Because of the similarities between the sentencing provisions of the Drunk Driving Law and the Mandatory Minimum Sentencing Act, which has been held to be constitutional, we find the notice provisions of the Mandatory Minimum Sentencing Act helpful as a guide to determining when the defendant must be notified of the sentence enhancement provisions of the Drunk Driving Law. The Mandatory Minimum Sentencing Act provides that notice of the Act and its recidivist penalties is not required prior to conviction, but must be provided after conviction and before sentencing. 42 Pa.C.S. §§ 9712(b) and 9714(c). Providing notice of the recidivist penalty under the Drunk Driving Law after conviction and prior to sentencing, too, will protect a defendant’s due process rights.

Postponing the required notice of the penalty provision of § 3731(e) until after conviction but prior to sentencing would neither prejudice the Commonwealth nor jeopardize the due process rights of a defendant. Counsel for the parties were unable to identify any alteration in a defendant’s trial tactics which would be advisible if the defendant knew before trial that the Commonwealth believed him to have prior convictions. Prior convictions have no bearing on the guilt or innocence of the defendant which would be the sole issue at trial. However, requiring the Commonwealth to provide notice to a defendant prior to trial that it intends to seek a sentence pursuant to § 3731(e)(l)(ii)-(iv) may impose a burden on the Commonwealth. The Commonwealth may not have knowledge of a defendant's prior convictions prior to a trial particularly if the defendant has a recent prior conviction or one from another jurisdiction. This information may be difficult to obtain and may take longer to acquire. However, requiring the Commonwealth to provide notice of the recidivist sentencing provision prior to sentencing will provide the Commonwealth ample opportunity to learn of prior convictions.

Although we require notice of the Commonwealth’s intention to seek a sentence pursuant to the recidivist provisions prior to sentencing, the defendant still has an adequate opportunity to deny the prior conviction, challenge its timeliness, or offer any explanation for it. Therefore, notice of the recidivist penalty prior to sentencing adequately protects a defendant’s due process rights.

When a defendant pleads guilty rather than proceeds to trial, however, the defendant must be advised of the recidivist statute prior to entering his guilty plea. There is no dispute that a plea entered without knowledge of not only the maximum penalty which could be imposed, but also the minimum penalty which must be imposed, would not be a valid plea. Knowledge of the higher mandatory minimum sentence for repeat offenders may affect the defendant’s decision to plead guilty even though knowledge of the recidivist penalty would not affect a defendant’s defense for the crime charged. Therefore, although notice of the recidivist penalty is not required prior to trial, it is required prior to a guilty plea.

In the instant case, although appellee pled guilty to driving while under the influence of alcohol, he does not allege that his plea was not knowing, intelligent and voluntary. Therefore, the timeliness of the notice of the recidivist provisions is not an issue. However, because the trial court erroneously ruled that it had to consider the defendant as a first offender because prior convictions were not alleged in the Information, we must vacate the judgment of sentence and remand for resentencing.

Judgment of sentence for driving while under the influence of alcohol is vacated and the case is remanded for resentencing in accordance with this opinion. Jurisdiction is not retained.

      . 75 Pa.C.S. § 3731(a).

      . 18 Pa.C.S. § 5503(a). Appellee was also charged with resisting arrest, 18 Pa.C.S. § 5104 and public drunkenness, 18 Pa.C.S. § 5505, but these charges were dismissed at sentencing.

      . The United States Supreme Court has granted certiorari to review the Pennsylvania Supreme Court’s decision in Wright, sub nom. McMillan v. Pennsylvania, — U.S. —, 106 S.Ct. 58, 88 L.Ed.2d 47 (1985). It should be noted that the trial court did not have the benefit of the decision in either Allen or Wright at the time of its decision in the instant case.


text:
    502 A.2d 707
    COMMONWEALTH of Pennsylvania, Appellant, v. Lloyd E. HESS.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1985.
    Filed Dec. 31, 1985.

      Stuart Suss, Assistant District Attorney, Reading, for Com., appellant.
    Byran Yatron, Reading, for appellee.
    Before SPAETH, President Judge, and BROSKY, ROW-LEY, WIEAND, McEWEN, CIRILLO, OLSZEWSKI, MON-TEMURO and TAMILIA, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is a direct appeal by the Commonwealth from a judgment of sentence of two days to twelve months imprisonment for driving while under the influence of alcohol. Appellee pled guilty to driving while under the influence of alcohol and driving on the right side of the roadway in violation of 75 Pa.C.S. §§ 3731 and 3301(a) respectively. At the time of sentencing on October 26, 1984, the trial court refused to consider any prior convictions of appellee because the criminal Information did not allege any prior convictions. Therefore, although the Commonwealth believed appellee to have been convicted within the last seven

years for driving while under the influence of alcohol and requested the court to sentence appellee to a minimum of 30 days in jail pursuant to 75 Pa.C.S. § 3731(e)(1)(H), the recidivist provision of the Drunk Driving Law, appellee was sentenced to only two days to twelve months imprisonment for driving while under the influence of alcohol and to a fine of $25 for driving on the right side of the road. Appellee immediately began to serve his sentence, and the Commonwealth appealed.

The Commonwealth raises three issues on appeal: 1) whether the Commonwealth must allege prior convictions in the criminal Information in order to seek sentencing for a defendant under 75 Pa.C.S. § 3731(e)(l)(ii)-(iv); 2) whether Commonwealth v. Campbell, 273 Pa.Super. 407, 417 A.2d 712 (1980), Commonwealth v. Longo, 269 Pa.Super. 502, 410 A.2d 368 (1979), and Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118 (1979) should be overruled; and 3) whether a defendant’s due process rights can be protected by requiring the Commonwealth to establish sentence enhancing factors at the sentence proceeding. Argument before the Court en banc was granted to consider these issues as well as the issue raised by appellee that to remand his case for resentencing after he has fully served his original sentence would violate the Double Jeopardy Clause of the constitution. We reverse and remand for resentencing.

The precise issues raised by the Commonwealth in this case were also presented in Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985). In that case, we held that the Commonwealth need not aver prior convictions under the Drunk Driving Law in the criminal Information, but must do so either after conviction and before sentencing or before a plea is entered.

In the instant case, although appellee pled guilty to driving while under the influence of alcohol, he does not allege that his plea was not knowing, intelligent, and voluntary. Therefore, the timeliness of the notice of the recidivist provisions is not an issue. However, because the trial court erroneously ruled that it had to consider the defendant as a first offender because prior convictions were not alleged in the Information, we must vacate the judgment of sentence and remand for resentencing.

Appellee, however, argues that to remand his case for resentencing will violate the Double Jeopardy Clause of the United States Constitution and the Pennsylvania Constitution because he has completed serving his sentence. Appellee contends that the Court, in Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873), held that the Double Jeopardy Clause prohibited increasing a sentence after the defendant had commenced serving it. He also argues that a series of Pennsylvania cases have held that a sentence modification which increases the punishment constitutes double jeopardy in violation of the constitutional provisions. Commonwealth v. Brown, 455 Pa. 274, 314 A.2d 506 (1974); Commonwealth v. Allen, 443 Pa. 96, 277 A.2d 803 (1971); Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971); Commonwealth v. Coleman, 271 Pa.Super. 581, 414 A.2d 635 (1979); Commonwealth v. Johnson, 269 Pa.Super. 122, 409 A.2d 94 (1979); Commonwealth v. Walter, 240 Pa.Super. 433, 367 A.2d 1113 (1976); Commonwealth v. Thomas, 219 Pa.Super. 22, 280 A.2d 651 (1971).

The United States Supreme Court has said that the Double Jeopardy Clause of the constitution was designed “to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense____” Green v. United States, 355 U.S. 184, at 187, 78 S.Ct. 221, at 223, 2 L.Ed.2d 199 (1957). The Court has also said that the Double Jeopardy Clause encompasses three constitutional protections: 1) it protects against a second prosecution after acquittal; 2) it protects against a second prosecution for the same offense after conviction; and 3) it protects against multiple punishments for the same crime. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). However, the Court has also held that the Double Jeopardy Clause does not render a sentence final and conclusive once it is imposed. United States v. DiFrancesco, 449 U.S. 117, at 133, 101 S.Ct. 426, at 435, 66 L.Ed.2d 328 (1980).

In DiFrancesco, the Supreme Court addressed the issue of whether the “dangerous special offender” provision of the Organized Crime Control Act of 1970 granting the Government the right to appeal a sentence violated the constitutional double jeopardy guarantee against multiple punishment. In concluding that it did not, the Court noted that there is no constitutional bar to the legislature’s grant to the prosecution of the right to appeal from a sentence. The Court reasoned as follows:

This limited appeal does not involve a retrial or approximate ordeal of a trial on the basic issue of guilt or innocence____ The defendant, of course, is charged with knowledge of the statute and its appeal provision, and has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired____ The defendant’s primary concern and anxiety obviously relate to the determination of innocence or guilt, and that already is behind him____ The Double Jeopardy Clause does not provide the defendant with what the exact limit of his punishment will turn out to be____ Respondent was similarly aware that a dangerous special offender sentence is subject to increase on appeal. His legitimate expectations are not defeated if his sentence is increased on appeal any more than are the expectations of the defendant who is placed on parole or probation that is later revoked____ Although it might be argued that the defendant perceives the length of his sentence as finally determined when he begins to serve it, and that the trial judge should be prohibited from thereafter increasing the sentence, that argument has no force where, as in the dangerous special offender statute, Congress has specifically provided that the sentence is subject to appeal. Under such circumstances there can be no expectation of finality in the original sentence.

Id. at 136-137, 139, 101 S.Ct. at 437-438, 439.

In DiFrancesco, the Court also considered Lange and the way in which it has been interpreted. The Court explicitly rejected the general rule for which Lange is frequently cited. The Court stated that Lange did not hold that once a defendant had begun serving his sentence, the trial court could not increase the sentence without violating the Double Jeopardy Clause. Rather, the Court limited Lange to its particular facts and stated that Lange demonstrates only that a defendant may not receive a greater sentence than the legislature has authorized. DiFrancesco, at 138-139, 101 S.Ct. at 438-439. See Commonwealth v. Adams, Pa. Super., 1793 Philadelphia, 1982 (the Court followed DiFran-cesco and refused to expansively interpret the Double Jeopardy Clause as those Pennsylvania cases did which cited Lange as holding that a trial court could never increase a sentence once a defendant had begun to serve it.) The sentence which the Commonwealth seeks to have the Court impose in the instant case is not only authorized by the legislature but mandated by it.

The federal dangerous special offender statute considered by the Court in DiFrancesco, in pertinent part, is similar to the state drunken driving statute under consideration here. The federal statute empowers the trial court to increase a sentence in certain circumstances, and it specifically grants to the Government the right to appeal the sentence for review by the appellate court which, upon review, may itself increase the sentence or remand for resentencing. 18 U.S.C. §§ 3575 and 3576. The state drunk driving statute specifically provides for mandatory increases in minimum sentences for second and subsequent offenses and provides that if the Commonwealth believes that the recidivist provisions have not been properly followed, the Commonwealth has the right to appeal directly to the Superior Court. Upon appeal, if the Superior Court finds that the sentence does not comport with the sentencing provisions, the Court is to vacate the sentence and remand for resentencing in accordance with the law. 75 Pa.C.S. § 3731(e).

Because of these similarities, the same can be said here as was said in DiFrancesco. The primary concern of appel-lee — the determination of his guilt — is behind him. Appel-lee was aware of the statute under which he was sentenced and therefore had notice that the Commonwealth could appeal the sentence and that the Superior Court might vacate the sentence and have to remand for imposition of a higher minimum sentence. Where, as here, the legislature has specifically provided that the sentence is subject to appeal, there can be no expectation of finality in the original sentence. Therefore, we hold that to remand this case for resentencing will not violate the Double Jeopardy Clause even though the time involved in taking this appeal has been longer than the maximum time for which appellee was originally sentenced and the sentence as originally imposed has been fully served.

The Pennsylvania cases relied upon by appellee as holding that a sentence modification which increases the punishment constitutes double jeopardy and is constitutionally prohibited do not involve a statute like the one in the instant case which grants the Commonwealth the right to appeal and leaves open the possibility of the original sentence being vacated because it is not in compliance with the statute and the proper, legislatively mandated, increased minimum sentence being imposed. They also base their holdings either directly or indirectly on the now discredited interpretation of Lange discussed previously. Therefore we do not consider them persuasive.

We vacate the judgment of sentence of driving while under the influence of alcohol and remand the case for resentencing in accordance with the appropriate law. Jurisdiction is not retained.

      . 18 U.S.C. §§ 3575 and 3576.

      . If upon remand the trial court finds that appellee is in fact a second offender and that it must sentence him to a minimum of 30 days in jail, he should receive credit for time served on the prior improper sentence. See Commonwealth v. Allen, Pa.Super., 1793 Philadelphia, 1982.

      . See cases cited at pp. 602-604 supra.


author: SPAETH, President Judge: BECK, Judge,

text:
    502 A.2d 711
    COMMONWEALTH of Pennsylvania v. Antony J. TERRIZZI, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 4, 1985.
    Filed Dec. 31, 1985.

      Thomas G. Klingensmith, Assistant Public Defender, Eliz-abethtown, for appellant.
    Henry S. Kenderdine, Jr., District Attorney, Lancaster, for Commonwealth, appellee.
    Before SPAETH, President Judge, and McEWEN and BECK, JJ.
   SPAETH, President Judge:

This is an appeal from judgments of sentence for rape and burglary. Appellant argues that the trial court abused its discretion in imposing sentences exceeding the Sentencing Guidelines. We find that the court did not abuse its discretion in imposing the sentence for rape. We therefore affirm that sentence. We also find, however, that in imposing the sentence for burglary, the court did not adequately explain its departure from the guidelines. We therefore vacate that sentence and remand for resentencing.

The court sentenced appellant to a 10 to 20 year term of incarceration for rape and a consecutive 10 to 20 year term of incarceration for burglary (Lancaster Cr. No. 1091 of 1983). Both sentences are the maximum allowed by law. Appellant argues that the court abused its discretion in failing to explain its departure from the guidelines, and in failing to take into consideration certain mitigating circumstances. Brief for Appellant at 15.

We begin with the principle that sentencing is within the sound discretion of the trial court. Accordingly, absent an abuse of discretion, we will not disturb the sentence. Commonwealth v. Johnson, 333 Pa.Super. 42, 45, 481 A.2d 1212, 1214 (1984). In exercising its discretion, however, the trial court must comply with certain procedures.

In Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), the Supreme Court held that the trial court must state the reasons for its sentence on the record, as such a statement is “invaluable” in determining “whether the sentence imposed was based upon accurate, sufficient and proper information.” Id., 474 Pa. at 131, 377 A.2d at 148. In addition, the legislature has required a statement of reasons: “In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentence, a statement of the reason or reasons for the sentence imposed.” Act of Nov. 26, 1978, P.L. 1316, No. 319, § 1, effective January 1, 1979, 18 Pa.C.S. § 1321(b) [now 42 Pa.C.S. § 9721(b) ]. The failure to provide a statement of reasons is error requiring resentencing. Commonwealth v. Zimmerman, 495 Pa. 425, 434 A.2d 1164 (1981); Commonwealth v. Gaskin, 325 Pa.Super. 349, 472 A.2d 1154 (1984); Commonwealth v. McCall, 320 Pa.Super. 473, 467 A.2d 631 (1983).

Since the promulgation of the Sentencing Guidelines, the trial court must also consider the guidelines, and if it departs from them, provide a statement of reasons for the departure. 42 Pa.C.S. § 9721(b). “Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.” Id. We must also vacate and remand for resentencing when

(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.
42 Pa.C.S. § 9781(c).

See also 42 Pa.C.S. § 9781(d) (factors to be considered in making above determination). In determining whether the sentence is “unreasonable” or “clearly unreasonable,” we must consider whether the court has provided the statement of reasons required by 42 Pa.C.S. § 9721(b). Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984).

Here, the trial court offered the following statement of reasons for the sentence:

THE COURT: The Court is now about to impose sentence and it is obligated to state its reasons for so doing. The Court has obviously reviewed at great length the presen-tence investigation, including the reports from Norris-town State Hospital which are attached thereto, as well as the reports submitted to the Court by Mr. Cullen [counsel for appellant] today which was directed to Judge Perezous and which I will direct to be made a part of this record as far as Judge Perezous’s copy is concerned. There’s no question from all that review that the defendant is one of not a great deal of educational background, but certainly is old enough and knowledgeable enough to understand the significance of the acts he performed here. The Court has also considered his prior adult record, which is a crime of violence similar to the crime, one of the crimes he is charged with committing or was found guilty of committing here in this courtroom. The Court is also aware of the fact that shortly after he got out of the State Correctional Institution at Camp Hill he committed these crimes of which — with which — to which he was found guilty by a jury.
The Court has also considered the arguments of counsel and the sentencing code and the alternatives available to it under the sentencing code and also, obviously by the very nature and circumstances of this crime, the only reasonable alternatives of the ones given to the Court is total incarceration.
The Court further considered the sentencing guidelines as it is bound to do and feels it should go outside those guidelines for these reasons. Number one, the defendant’s prior record indicates to me that he represents a real threat to society if he is out in society. Within five or — well, I guess it’s within about five or six months of his being released these crimes were committed. In my opinion he is definitely a threat to society. The nature of the crimes of rape and burglary regarding the young 19-year-old girl, Brenda Blaxland, were also such that the very nature of these crimes demands a sentence that is significant both as a deterrent and as a punishment. The rape represents the ultimate insult to a human being which was committed on this young lady and the burglary of her apartment in the nighttime, hiding there waiting for her to arrive, is just — well, it speaks for itself. It’s a horrendous crime in the Court’s opinion.
N.T. 9/5/84, 13-15.

After the court pronounced sentence, defense counsel objected and argued that the court had failed to consider certain mitigating factors. In response, the court stated:

THE COURT: The Court wishes to add simply that the Court will recommend to the extent it would be appropriate that psychiatric treatment be added to the sentence. I do wish to make the following comments to Mr. Cullen for part of the record. That the Court did in great detail consider this presentence investigation, every bit of it, including the pathetic family background of the defendant and the record of drug and alcohol abuse. It also considered all the psychiatric reports it had available to it and the final — in the final analysis the real reason for this sentence as articulated by me before I imposed it, number one, the very serious nature of this crime and on that the record speaks for itself. The notes of testimony speak for themselves. And, secondly, the very real fact that this man does in the Court’s opinion constitute a menace to society if he gets out again. As I pointed out before, it was a very, very short time he was out and he was back in trouble and doing the very same thing. There’s no question in my mind that the maximum was the only sentence that is going to keep society safe from this defendant. So with that, this sentencing is complete. MR. CULLEN: Okay. Just one more point if I might. The Court — I hate to just add this, but I must protect the record — the Court gave no consideration to the parole back time he also served.
THE COURT: I also considered that when I considered the arguments, Mr. Cullen. Okay.
N.T. 9/5/84, 19-21.

Following imposition of sentence, the trial court, as required, completed a sentencing guidelines form and made it part of the record. 204 Pa.Code § 303.1(b). The form indicated the following guidelines ranges for an offender with a prior record score of three: rape — 40 to 54 months (mitigated minimum range), 54 to 78 months (minimum range), and 78 to 97 months (aggravated minimum range); burglary — 16 to 22 months, 22 to 39 months, and 39 to 49 months, respectively. In regard to the rape, no deadly weapon enhancement was indicated. In regard to the burglary, the deadly weapon enhancement provision was checked “Yes”, and “knife” was specified, but the term was not enhanced. The court filled in Section VIII of the form, which directs the court to explain a departure from the guidelines. The following was written in that section:

REASONS FOR DEPARTURE FROM GUIDELINES RANGE ARE:
The nature of the crime itself which involved the entry into the victim’s apartment through a window, during the night, waiting for her to come home and hiding until she began to undress, then attacking the victim at knife point, tying her hands and raping her.
Secondly, the defendant had just been released from prison about 8 months before this incident occurred after having served time for robbery and felonious restraint again involving a woman being held at knife point. This and other matters in the pre-sentence report indicate the defendant is a real danger to the community.

We shall first consider the sentence for rape, and then the sentence for burglary.

In imposing sentence, the trial court stated that the nature of the rape, here involving a 19-year-old victim, called for “a sentence that is significant both as a deterrent and as a punishment”. The court further noted that rape is the “ultimate insult to a human being.” N.T. 9/5/84, 15. When the court later referred to the “very serious nature of this crime,” id. at 20, it is evident that it was referring to the victim’s testimony regarding the rape. Thus, the victim had testified that she was tied up and appellant “threatened [her] with a knife;” N.T. 11/21/83, 228-30, and the court’s comments on the sentencing guidelines form reflect this testimony. Sentencing Guidelines Form, Section VIII. The court also “considered [appellant’s] prior adult record, which is a crime of violence similar to the crime,” N.T. 9/5/84, 14, and again, it is evident that “the crime” referred to was the rape, for the prior offense was robbery and unlawful restraint of a woman at knife point. And see the court’s comments in Section VIII of the Sentencing Guidelines Form. In our view, this record establishes that the trial court did give a statement of reasons for the sentence for rape and a statement of reasons for departing from the guidelines, if indeed, as we shall discuss, the sentence did depart from the guidelines. 42 Pa.C.S. § 9721(b). Having reaching this conclusion, we must now consider the adequacy of the statement. Commonwealth v. Royer, supra.

The trial court’s statement of reasons shows that it considered both the nature of the offense and the characteristics of the offender. When defense counsel called certain mitigating circumstances to the court’s attention, the court responded that it had considered these circumstances. N.T. 9/5/84, 19-21. We therefore find no merit in appellant’s argument that the court abused its discretion in failing to consider the nature of the offense, the characteristics of the offender, and the mitigating circumstances.

With respect to whether the sentence for rape departed from the guidelines: If the deadly weapon enhancement was applicable, the sentence did not depart from the guidelines. The trial court evidently believed that the deadly weapon enhancement was applicable. See its comments that “the victim [was attacked] at knife point.” Sentencing Guidelines Form, Section VIII. Nevertheless, as we have observed above, on the guidelines form the deadly weapon enhancement was not applied to the rape, but, rather, to the burglary. It seems likely that this was a typographical error, and we might well hold that in fact the sentence for rape was within the guidelines. If, however, we read the guidelines form literally, and therefore regard the sentence as departing from the guidelines, our decision remains the same. For in our judgment, the trial court’s statement of its reasons for the sentence for rape was adequate to support a sentence approximately two years beyond the aggravated minimum range. Cf. Commonwealth v. Thomas, 335 Pa.Super. 99, 483 A.2d 974 (1984) (departure from guidelines for rape upheld where the court’s reasons related to the circumstances of the offense, a similar prior occurrence by defendant, defendant’s lack of remorse, and his apparently violent nature). The judgment of sentence for rape will therefore be affirmed.

In regard to the burglary sentence, we must proceed as with the rape sentence: we must first consider whether the court gave a statement of reasons for the sentence, and next, since the sentence exceeded the guidelines, whether the statement explained the departure.

As the transcript shows, the trial court began by noting that it was “obligated to state its reasons” for the sentences it was about to impose. N.T. 9/5/84, 13. In stating its reasons, the court said that “the very nature of these crimes [of rape and burglary] demands a sentence that is significant both as a deterrent and as a punishment.” Id., 15. After commenting on the nature of the rape, the court said, “and the burglary of her apartment in the nighttime, hiding there waiting for her to arrive, is just— well, it speaks for itself. It’s a horrendous crime in the Court’s opinion.” Id. These comments are reflected in the Sentencing Guidelines Form, Section VIII. Nevertheless, brief as they are, the comments do constitute a statement of reasons. The adequacy of the statement is another matter.

We have concluded that the trial court’s comments were inadequate as a statement of reasons why the court had departed from the sentencing guidelines. The record does show that appellant entered the victim’s apartment during the night. However, when appellant challenged the sufficiency of the evidence to show that when he entered, he intended to commit a crime in the apartment, the court found the evidence sufficient to show “the intent to commit a theft.” Slip op. of tr. ct. at 8 (emphasis added). The court made no finding that appellant had waited for the victim to arrive. Moreover, the Commonwealth did not allege that he had, alleging rather that appellant “entered this residence with the intent to commit the crime of theft.” Id. at 7; And see Brief for Commonwealth at 12. Consistent with the Commonwealth’s allegation, the evidence was that appellant “apparently entered the victim’s apartment through an open window while the victim was away for the evening.” Slip op. of tr. ct. at 8. And see id. at 9 (“[appellant’s] rooting through drawers in the bedroom provided sufficient evidence for the jury to find that [appellant] had the intent to commit theft when he reentered the downstairs apartment”). The court’s statement of reasons for the sentence for burglary is thus inconsistent with both the Commonwealth’s allegation and the court’s own view of the evidence. Nor may we dismiss this inconsistency as unimportant, for in imposing the sentence for burglary, the court did not depart from the guidelines to a minor extent. As we have noted, the guidelines form stated an aggravated minimum range of sentence for burglary of 39 to 49 months. The court, however, imposed a minimum of 10 years, which is to say, 120 months.

In Commonwealth v. Dixon, 344 Pa.Super. 293, 496 A.2d 802 (1985), petition for allocatur pending, we were faced with a situation the converse of the one we are faced with here. There the court’s sentence “plunged more than 54 months below the floor of the guidelines’ mitigated range.” We remanded for resentencing because we found “[n]othing in the evidence presented at the guilty plea and sentencing proceedings, and nothing in the court’s explanation of its sentence, [that] supported] such a departure.” Id., 344 Pa.Superior Ct. at 310, 496 A.2d at 810. So here, we are unable to find the court’s very great departure from the guidelines explained either by the record or the court’s statement of reasons. We are therefore compelled to vacate the sentence for burglary and remand for resentenc-ing.

Judgments of sentence for rape on Lancaster Cr. No. 1091 of 1983 and for burglary on Lancaster Cr. No. 1090 of 1983 are affirmed. Judgment of sentence for burglary on Lancaster Cr. No. 1091 of 1983 is vacated and the case remanded for resentencing consistent with this opinion. Jurisdiction relinquished.

BECK, J., files a concurring and dissenting opinion.

BECK, Judge,

concurring and dissenting:

I join the majority on all points save one. I do not agree that the contemporaneous statement of Judge Buckwalter provided inadequate reasons for sentencing the defendant to a period of incarceration beyond that recommended by the sentencing guidelines. Judge Buckwalter stated:

Number one, the defendant’s prior record indicates to me that he represents a real threat to society if he is out in society. Within five or — well, I guess it’s within about five or six months of his being released these crimes were committed. In my opinion he is definitely a threat to society. The nature of the crimes of rape and burglary regarding the young 19-year-old girl, Brenda Blaxland, were also such that the very nature of these crimes demands a sentence that is significant both as a deterrent and as a punishment. The rape represents the ultimate insult to a human being which was committed on this young lady and the burglary of her apartment in the nighttime, hiding there waiting for her to arrive, is just-well, it speaks for itself. It’s a horrendous crime in the Court’s opinion.

These reasons are applicable to the crimes of rape and burglary. I, therefore would not remand for sentencing on the burglary conviction.

      . Appellant was sentenced for burglary on Lancaster Cr. No. 1090 of 1983 and for rape and burglary on Lancaster Cr. No. 1091 of 1983.

      . Appellant also raises non-sentencing issues: Whether the Commonwealth established that the police had probable cause to arrest appellant; whether the evidence was sufficient to establish that appellant entered the apartment with the intent to commit a crime therein; whether the evidence was sufficient to prove that the victim did not consent to intercourse; and whether a mistrial should have been granted when the District Attorney expressed his personal opinion regarding the testimony of defense witnesses. The trial court’s opinion adequately disposes of these arguments. Slip op. of tr. ct. at 2-12.

      . Appellant also received a sentence of three to six years for burglary on Lancaster Cr. No. 1090 of 1983, to be served concurrently with the burglary term on Lancaster Cr. No. 1091 of 1983. This sentence, which is within the guidelines, has not been challenged.

      . Appellant asserts that his prior record score was "one." Brief for Appellant at 15. The record shows that appellant had a prior robbery conviction, but it does not show the grade of the robbery. A prior conviction of a robbery constituting a felony of the first degree converts into a prior record score of three. 204 Pa.Code § 303.-7(b)(2)(i). At the sentencing proceeding, appellant did not contest the calculation of his prior record score as three. Accordingly, if the calculation was in error, the error has been waived.

      . If the deadly weapon enhancement was applicable, the court's sentence of 10 years (i.e., 120 months) was within the aggravated minimum range of 90 to 121 months (actually 120 months, which is the statutory limit for the minimum). The applicable test is then that set forth in Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985).

      . We recognize that the court’s use of appellant's prior record as a reason for departing from the guidelines is problematic. In Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985), which involved a sentence falling below the mitigated minimum range, this court stated in dictum that "assigning] the lack of, or even minimal, prior record as a reason for deviating from the guidelines is to, in effect, give an accused credit for the same factor twice [and] ... is error.” Id., 341 Pa.Superior Ct. at 471, 491 A.2d at 1355. In Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985), which involved a sentence within the aggravated range, this court found no reason to to remand where the trial court did not “rely solely” on the defendant’s prior record; we concluded that "prior record was a reasonable consideration in attempting to predict whether [the defendant] would likely repeat his crimes if given a light or probationary sentence.” Id., 341 Pa.Superior Ct. at 220, 491 A.2d at 233. See also the discussion in the majority and dissenting opinions in Commonwealth v. Mills, 344 Pa.Super. 200, 496 A.2d 752 (1985). Here, the trial court’s reliance on prior record was equivalent to that in Duffy, which we did not find objectionable.

      . There is no question that the sentence for burglary exceeded the guidelines. Neither party contends that the score was miscalculated. But see note 4, supra. It appears that the proper prior record score for burglary should have been zero because the court imposed consecutive sentences involving the same transaction. 204 Pa.Code § 303.6. Even so, the sentence would have exceeded the guidelines.

      . In remanding, we intimate no opinion regarding what an appropriate sentence would be.