author: DEL SOLE, Judge: BROSKY, Judge,

text:
    542 A.2d 572
    COMMONWEALTH of Pennsylvania v. Drake REARDON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 14, 1987.
    Filed June 3, 1988.

      Michael J. Wherry, Grove City, for appellant.
    Kenneth K. McCann, Assistant District Attorney, Mercer, for Com., appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

Appellant and a co-defendant, Faith Swingle, were tried by a jury for crimes committed in association with the knife-point robbery of a gasoline/convenience store owner. A third co-defendant, Brian Collins, pled guilty to a charge of robbery, and a fourth individual, Terry Mays, who testified against Appellant at trial, was not tried. After Appellant’s timely filed post-trial motions were denied, he was sentenced to serve 3-6 years for his robbery conviction. Concurrent sentences of 1-2 years were imposed based on convictions for theft and conspiracy. As noted by the sentencing court, Appellant’s sentence “includes therein an addition of twelve (12) months on the minimum sentence of three (3) years and twelve (12) months on the maximum sentence of six (6) years as a result of the weapons enhancement”.

In this appeal, Appellant challenges the verdict as being against the weight of the evidence. He also maintains that the trial court erred by ruling that certain testimony sought to be elicited from Faith Swingle was inadmissible hearsay. Appellant’s final contention concerns the court’s failure to grant a mistrial sua sponte. Although we find no merit to any of these issues, we must vacate that portion of Appellant’s sentence which was imposed under the Deadly Weapon Enhancement provisions of the Sentencing Guidelines.

The first argument made by Appellant addresses the weight of the evidence used to convict him. Appellant points out that “the jury was faced with the dilemma of whether or not to believe the testimony of Terry Mays or (defense witnesses) Faith Swingle and Brian Collins”. Appellant’s Brief at 13. Appellant, who put forth an alibi defense, presented additional witnesses who testified as to his whereabouts at the time in question. The jury apparently believed the testimony of Terry Mays who was present at the scene and later detailed Appellant’s involvement. Appellant maintains that Mr. Mays was unworthy of belief because of inconsistencies which were apparent in his testimony. Appellant reasons that the verdict of the jury was against the fair weight of the evidence since it was premised on the “unreliable” testimony of Mr. Mays rather than the testimony of the witnesses called by the defense.

It is true that where evidence offered in support of a guilty verdict is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, an appellate court is justified in finding that it was reversible error to allow the jury to return a guilty verdict based thereon. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Bennett, 224 Pa.Super. 238, 303 A.2d 220 (1973). In the present case the contradictions in the testimony of Terry Mays to which Appellant points are not such as to require us to order a new trial.

The contradictions (appellant) relies on are discrepancies between information (the witness) gave police when he was arrested and his testimony at trial. (Appellant’s) reliance on contradictions between (the witness’) out-of-court statements and his in-court testimony is misplaced, for such discrepancies concern credibility and do not render impossible rational consideration of the evidence presented. A new trial may be appropriate in a case where the testimony at trial is hopelessly contradictory, but in this case (the witness’) testimony at trial was consistent.

Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234, 240 (1982). Further, the fact that the jury apparently chose not to accept the version of events as recounted by Appellant’s witnesses is of no concern since the finder of fact has the right to reject part or all of the witness’ testimony even if uncontradicted. Commonwealth v. Chermansky, 430 Pa. 170, 174, 242 A.2d 237, 240 (1968).

Appellant next characterizes as erroneous the trial court’s ruling prohibiting co-defendant Faith Swingle to testify in response to the question: “Okay, did he (Collins) tell you who had robbed the gas station?” The Commonwealth objected to the introduction of this evidence because it was hearsay. Appellant’s defense counsel argued that “even if it is hearsay, it’s a classic co-conspirator statement” and therefore it should be admitted. The trial court ruled that the inquiry required a hearsay response and, therefore, sustained the Commonwealth’s objection. In his Motion for New Trial and in his Brief before this Court, Appellant asserts that the testimony sought to be elicited fell within the “co-conspirator” exception to the hearsay rule. In support of his argument Appellant cites Commonwealth v. Kersten, 333 Pa.Super. 343, 482 A.2d 600 (1984), wherein the court outlined the proof necessary to “lay a foundation for the co-conspirator exception to the hearsay rule.” Id., 333 Pa.Superior Ct. at 350, 482 A.2d at 603. In this case, however, a necessary element of proof is missing. The court in Kersten noted that first it must be shown that “a conspiracy existed between declarant and the person against whom the evidence is offered.” Id. In the instant case, the evidence was sought to be admitted for Appellant not against him.

Under the guidance of Dean McCormick, it is said: [a] statement is not hearsay if—... The statement is offered against a party and is
(E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

C. McCormick, Evidence, § 263 at 776 (Cleary 3rd ed. 1984)

These assertions by a co-conspirator are said to be “nothing more than a special kind of assertion by an agent, which is attributable to his principal as an admission.” D. Binder, Hearsay Handbook, § 28.06 at 344 (2nd ed. 1983). Since they are admissible as an admission they “must be offered, not for, but against” the defendant. Evidence, supra. Accordingly, herein, the sought after testimony, was properly excluded from evidence.

The final claim presented for our consideration is whether the trial judge should have granted a mistrial sua sponte. Appellant asserts such action was warranted when co-defendant Swingle testified that acting on the suggestion of defense counsel she and Appellant’s girlfriend attempted to find the owner of a ski mask used in the robbery. Appellant claims that this incident and another in which the jury was advised that Mr. Collins had approached defense counsel and discussed the possibility of pleading guilty and exonerating Appellant, weakened the integrity and/or credibility of Appellant’s counsel.

Pa.R.Crim.P., Rule 1118 provides that a motion for mistrial may be made by defendant when an event prejudicial to the defendant occurs during trial. “Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.” Id. The decision whether to declare a mistrial of a criminal prosecution is within the sound discretion of the trial judge and will not be reversed absent a flagrant abuse of discretion. Commonwealth v. Stokes, 279 Pa.Super. 361, 421 A.2d 240 (1980). The trial judge in this case found nothing “so egregious occurred that would warrant our declaring a mistrial sua sponte.” After a review of record in light of Appellant’s claims, we agree with the trial court.

We next turn to an examination of Appellant’s sentence. Although such review would normally be precluded because Appellant has not presented this court with any sentencing issues, the illegality of a sentence is not a waivable issue and may be raised sua sponte by a reviewing court. Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982); Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985).

In view of the fact that a knife was used during the commission of the robbery, the sentencing court considered application of the Deadly Weapon Enhancement provisions of the Sentencing Guidelines, 204 Pa.Code § 303.4. It provides that “[w]hen the court determines that the defendant or an accomplice possessed a deadly weapon ... during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence range which would otherwise have been applicable.” Id. The sentencing court in the case at bar clearly indicated that it found the weapon enhancement applicable, and as required included an additional 12 month period of incarceration in formulating Appellant’s sentence.

The weapon enhancement provisions of the Sentencing Guidelines were also found to have been utilized by the sentencing court in a recent case considered by our Supreme Court, Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). The appellant therein challenged the validity of his sentence by questioning the method by which the Sentencing Guidelines were established. The Supreme Court found merit to appellant’s argument and ruled that the Pennsylvania Sentencing Guidelines are invalid as promulgated in violation of the bicameral consideration and gubernatorial presentment requirements of the Pennsylvania Constitution. Declaring that the present guidelines are “to be of no force at all,” the Supreme Court found it necessary to vacate the appellant’s sentence and remand for resentencing pursuant to the remaining valid provisions of the Sentencing Code. Id., 516 Pa. at 380, 532 A.2d at 782.

Following the dictates of Sessoms we conclude that the portion of Appellant’s sentence which was imposed in accordance with the Deadly Weapon Enhancement provisions of the now void Sentencing Guidelines is illegal and must be vacated. Because the 12 month period of time which was added to Appellant’s minimum and maximum and included in his 3-6 year sentence was readily identified by the sentencing court as attributed to the provisions of § 303.4, it will be vacated directly and there will be no need to remand for resentencing. Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980). The remaining portion of Appellant’s sentence will not be examined since any concerns which do not address the legality of Appellant’s sentence are not preserved for our review. (See: Id. 516 Pa. at 380 n. 2, 532 A.2d at 782 n. 2.

HOFFMAN, J., concurs in the result.

BROSKY, J., files a dissenting statement.

BROSKY, Judge,

dissenting:

While I agree with the majority’s disposition of the issues raised by appellant, I must respectfully dissent from the majority raising, sua sponte, the issue of appellant’s sentence.

Because, in my opinion, the trial court did not impose an illegal sentence upon appellant, the fact that appellant did not raise a sentencing issue precludes our review of his sentence. Thus, based upon my dissenting opinions in Commonwealth v. Gregory, 371 Pa.Super. 551, 538 A.2d 578 (1988); and Commonwealth v. Sanchez, 372 Pa.Super. 369, 539 A.2d 840 (1988) (en banc), I must dissent in the case sub judice.


source: Caselaw Access Project

license: Public Domain

text:
    542 A.2d 575
    COMMONWEALTH of Pennsylvania v. Marvin PHILLIPS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 27, 1988.
    Filed May 31, 1988.

      William T. Morton, Assistant District Attorney, Erie, for Com., appellee.
    James A. Pitonyak, Erie, for appellant.
    Before BROSKY, WIEAND and DEL SOLE, JJ.
   DEL SOLE, Judge:

Presented for our review are consolidated appeals from a Judgment of Sentence directing that Appellant be incarcerated for a period totaling 7V2-15 years and from an order denying Appellant’s motion to withdraw his guilty plea. On appeal Appellant contends that the court erred in imposing an excessive sentence and that the court improperly refused to permit him to withdraw a guilty plea which was not voluntarily or understandingly entered.

We will begin by examining Appellant’s challenge to the entry of his guilty plea. Listed for our consideration are numerous allegations which Appellant contends would warrant a grant of his motion to withdraw the plea or an evidentiary hearing on this motion. Specifically Appellant alleges that counsel failed to inform him that he could receive consecutive sentences, that his prior juvenile adjudications would impact on his prior record score and that the arresting officer would not be subpoenaed to testify on his behalf at sentencing. Appellant also maintains that his youthful age (18 years) and limited educational background (9th grade) made it difficult for him to understand the total ramifications of his plea and that he was not aware that he was pleading guilty to three charges which were Felony Ill’s.

The standard for granting a withdrawal of a guilty plea following sentencing is that of “manifest justice.” That is, a defendant is entitled to withdraw a plea of guilty as a matter of right where the court finds that it was not voluntarily and intelligently made. Commonwealth v. Carter, 318 Pa.Super. 252, 464 A.2d 1327, 1333-4 (1983). However, the burden is on the petitioner to prove involuntariness. Id., 318 Pa.Superior Ct. at 1333-1334, 464 A.2d at 1334.

Instantly, it is clear that Appellant did not meet his burden of proof. The record reflects that a thorough colloquy was conducted in which Appellant was specifically advised of the charges against him including the fact that they constituted “felony three’s.” (N.T. at 7). Appellant was also apprised of the possible severity of the sentences to which he was exposed and the fact that these sentences could be entered consecutively, or in the court’s words: “one on top of the other”. (N.T. at 8). When asked if he understood these facts, Appellant answered in the affirmative. (N.T. at 8). Although we are unable to discern from the record what representations counsel made to appellant concerning the presence of the arresting officer at sentencing, a discussion of the relation of these asserted representations and their effect on Appellant’s plea would be of no value in view of our disposition of Appellant’s sentencing issues. (See discussion infra).

Appellants contention that his age and limited education resulted in an involuntary and unknowing plea is completely contrary to the attitude he demonstrated during sentencing. Appellant represented to the court that he understood the nature of the charges and the plea he was entering. Firmly entrenched within this Commonwealth’s body of law is the principle “that a criminal defendant who elects to plead guilty has a duty to answer questions truthfully”. Commonwealth v. Mitchell, 319 Pa.Super. 170, 465 A.2d 1284, 1286 (1983). Thus, we are not convinced that the court erred in entering an order denying Appellant the right to withdraw his guilty plea.

We next turn to a discussion of the challenges Appellant raises to the propriety of the sentence he received. Prefacing his argument on these issues, Appellant sets forth in his Brief specific reasons for challenging the discretionary aspect of his sentence. Among the allegations made by Appellant is a claim that the sentences were excessive and constituted an abuse of discretion since they were imposed consecutively without consideration (in determining the prior record score) of the fact that the crimes were part of an ongoing transaction. See 42 Pa.C.S.A. § 9721, 204 Pa.Code § 303.6 Concluding that Appellants concise statements of reasons relied upon for allowance of appeal constitutes a substantial question, we will address the merits of Appellant’s claim of error. See: Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Pa.R.A.P. 2119(f).

Appellant specifically contends that the sentencing court erred by using his prior record score of 6 in calculating the sentence for each conviction even though the offenses of conspiracy and theft at docket numbers 232 of 1987 and 353 of 1987 arose out of the same transaction. We are referred to the following provision:

§ 303.6 Consecutive sentences.
(a) When imposing sentences for convictions arising out of the same transaction, the prior record score is computed for the offense with the highest offense gravity score in such transactions. For the remaining offenses in such transaction, the prior record score shall be O.

42 Pa.C.S.A. § 9721, 204 Pa.Code § 303.6

In determining whether crimes were part of the same “transaction” this court in Commonwealth v. Fries, 362 Pa.Super. 163, 523 A.2d 1134 (1987), referred to the comments of the Pennsylvania Commission on Sentencing.

A “transaction” is a crime or crimes which were committed by a defendant at a single time or in temporally continuous actions that are part of the same episode, event, or incident, or which are conspiracy and the object offense. “Spree” crimes are not part of the same transaction unless they occurred as continuous actions not separated in time by law-abiding behavior. Pa.C. Sent.2d (September 1, 1986) p. 51.

Id., 362 Pa.Superior Ct. at 171, 523 A.2d at 1137-1138. (emphasis added).

The record in the instant case reveals that Appellant pled guilty to criminal conspiracy at number 232 of 1987. At the plea hearing Appellant was informed that at number 232 he was charged with “conspir[ing] with one Thomas Roth ... to engage in conduct which constitutes the crime of theft ... and in furtherance thereof, you took a vehicle belonging to Mervin Troyer.” (N.T. at 9-10). Appellant was also advised that at number 353 of 1987 he was charged with “unlawfully tak[ing] or exercise[ing] control over movable property of another, which was a 1980 Ford four-wheel drive pickup truck, having a value of $5,000 more or less ... belonging to Mervin Troyer ... with the intent of depriving] the owner of that property.” (N.T. at 10). It is clear that Appellant was convicted of conspiracy and theft involving the same vehicle and therefore these crimes should have been considered as a single transaction episode. Accordingly, Appellant’s prior record score of 6 should have been applied to one of his convictions and a prior record score of zero should have been used in calculating the sentence for the remaining crime. Since both convictions were for offenses with the same gravity score it would not matter which sentence was computing using the zero record score; however, it is obvious that a vastly different result from the sentence imposed by the court would have been suggested by the guidelines had a zero record score been utilized.

On the.charges of conspiracy and theft appellant was sentenced to 30-60 months on each charge, to run consecutively. Using a prior record score of six, this sentence would fall within the minimum range of 4-36 months suggested by the guidelines. But, using a record score of 0 the suggested minimum range would be 0-12 months. As noted by the court in Commonwealth v. Fries, supra., “thus, it is apparent that the range of sentences that are suggested by the guidelines vary substantially when the rule of 'single transaction’ is applied to computation of the sentence.” Id., 362 Pa.Superior Ct. at 175, 523 A.2d at 1139. Because the court employed an incorrect prior record score, we find it necessary to vacate the Judgment of Sentence on Appellant’s convictions for conspiracy at number 232 of 1987 and theft at number 353 of 1987 and we remand the case for resentencing on these convictions using the correct prior record score.

The remaining sentence challenge presented by Appellant, which we consider on the sentences imposed for his convictions of conspiracy at 325 of 1987 and criminal mischief at 353 of 1987, is without merit. Appellant alleges that his prior counsel was ineffective for failing to subpoena a witness, Officer Lyle, to appear at sentencing and speak on the Appellant’s behalf. Appellant maintains that Officer Lyle’s absence forced the sentencing judge to render a sentence without full and accurate information. The sentencing transcript indicates that Appellant’s counsel attempted to contact Officer Lyle the night before sentencing since the officer represented to counsel that he “would be happy to be here.” (N.T. at 4). Although the officer did not appear at sentencing, counsel informed the court that Appellant had assisted Officer Lyle in other prosecutions, had provided the Union City Police Department with information, had cooperated with their investigations and had testified in at least one other prosecution. The Commonwealth did not refute this information.

We find Appellant was not prejudiced by counsel’s inaction. The court was made aware of the substance of the comments Officer Lyle would make if he were to appear and the Commonwealth did not contest counsel’s statements. Further, Appellant does not supply this court with any specific information which the sentencing court was unable to consider because of Officer Lyle’s absence. Accordingly, we reject this claim of error.

Judgment of Sentence affirmed as to the convictions for Conspiracy at 325 of 1987 and Criminal Mischief at 353 at 1987. Judgment of Sentence reversed as to the convictions for Conspiracy at 232 of 1987 and Theft by Unlawful Taking at 353 of 1987. Case remanded for resentencing consistent with this memorandum.

WIEAND, J., concurs in the result.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I agree with the lead opinion’s conclusion that the trial court committed no error in refusing appellant’s request to withdraw his plea of guilty. I also join in its disposition of appellant’s ineffectiveness claim, in which appellant alleges that prior counsel failed to subpoena a witness to appear at sentencing to speak on appellant’s behalf, as meritless.

Bound by precedent, I concur, albeit with much constraint, in the majority’s recognition of appellant’s contention that the sentences he received were excessive and constituted an abuse of discretion in that they were imposed consecutively without consideration of the fact that the subject crimes were part of an ongoing transaction. The foregoing issue relates to a discretionary aspect of sentencing which concerns an erroneous application of the Sentencing Guidelines. See 42 Pa.C.S.A. § 9781(c). The lead opinion holds that this raises a substantial question which compromises the entire scheme of the Sentencing Code. See Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); 42 Pa.C.S.A. § 9781(b), Pa.R.A.P. 2119(f).

In Commonwealth v. Sanchez, 372 Pa.Super. 369, 539 A.2d 840 (1988) (en banc), a majority of this Court reached the conclusion that the Supreme Court’s decision in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), while voiding the Sentencing Guidelines because of their unconstitutional promulgation, nevertheless conditioned its holding upon proper preservation of this precise issue through all stages of the post-sentencing proceedings. In other words, Sanchez held that post-Sessoms consideration of a Guidelines question is still ripe and cognizable as raising a substantial question pursuant to Commonwealth v. Tuladziecki, supra, unless the appellant preserves the specific Sessoms issue at all stages of adjudication. Sanchez applies this issue preservation directive appearing in footnote 2 of Sessoms (Id., 516 Pa. at 380, 532 A.2d at 782) to the following language in Sessoms:

Because the present guidelines were not adopted according to this scheme, however, but were the product of a rejection resolution that was not presented to the Governor in violation of Article III, § 9, they must be declared to be of no force at all.

Id. However, the footnote reference is actually appended to the sentence immediately following the above:

The appellant’s sentence is vacated and his case remanded for resentencing pursuant to the remaining valid provisions of the Sentencing Code.

Thus, the placement of the above footnote could rationally lead to the conclusion that the Sentencing Guidelines, due to their unconstitutional enactment, are now void ab initio as to all Guidelines-implicated cases, and, accordingly, proper preservation of the Sessoms issue triggers only the directive of sentence vacation and remand for resentencing under the still viable provisions of the Sentencing Code. A finding of invalidity of the Sentencing Guidelines as to a particular case implicating a Guidelines question does not rest upon preservation of the Sessoms issue in that specific case. Sessoms voided these Guidelines ab initio. See Commonwealth v. Sanchez, supra (Brosky, J. dissenting).

Stated another way, an appellant need not raise a Sessoms challenge to preserve that issue, i.e., the constitutionally flawed enactment of the Guidelines. Sessoms holds that the Guidelines, because of this constitutional impairment, are void ab initio. It is only when the Sessoms question has been preserved throughout all adjudicative stages that the remedy of vacation of the judgment of sentence and remand for resentencing under the remaining constitutionally intact provisions of the Sentencing Code obtains. See Commonwealth v. Sanchez, supra (Brosky, J., dissenting).

Compelled and checked by precedent, however, I concur in the lead opinion’s resolution of this issue.

      . The Pennsylvania Supreme Court, in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), held that the Sentencing guidelines were invalid in toto. However, the Court also held in Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404 (1987), that a failure to preserve a challenge to the constitutionality of the guidelines renders Sessoms inapplicable. See also: Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987). The sentencing issues in the instant case are not moot since Appellant has not preserved a challenge to the constitutionality of the guidelines.

      . This ruling is applicable to cases where the issue has been "properly preserved at all stages of adjudication up to and including any direct appeal.” Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).


author: WIEAND, Judge:

text:
    542 A.2d 580
    Patricia Anderson CILIBERTI, Appellee, v. Anthony CILIBERTI, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1988.
    Filed June 10, 1988.

      Natale F. Carabello, Jr., Philadelphia, for appellant.
    Anthony J. De Fino, Philadelphia, for appellee.
    Before WIEAND, MONTGOMERY and HESTER, JJ.
   WIEAND, Judge:

The issue of first impression in this appeal is whether a police disability pension is marital property subject to equitable distribution between spouses. The trial court determined that disability payments must be deemed marital property and directed that Husband pay to Wife therefrom the sum of fifty ($50.00) dollars per week. We reverse and remand for further proceedings.

Patricia and Anthony Ciliberti were married on September 25, 1963. They had two children, Denise and Patricia, both of whom are now emancipated. A complaint in divorce was filed on May 25, 1984. Wife is presently employed in a clerical position at the Union League of Philadelphia. Her net income is estimated to be nine hundred twenty-six ($926.00) dollars per month. Husband is a disabled policeman who receives six hundred thirty-five ($635.00) dollars per month pursuant to a disability pension paid by the City of Philadelphia.

The parties were able to resolve amicably most of the economic issues pertaining to the dissolution of their marriage. They agreed that premises located at 912 Darien Street, Philadelphia, would be conveyed to Wife and that other real estate, situated at 617 Washington Street, Philadelphia, would be conveyed to Husband. They also agreed that Husband would pay alimony to Wife for one year in the amount of thirty-two dollars and fifty cents ($32.50) per week. The parties were unable to agree to a disposition of Wife’s claim for counsel fees. This claim, however, was denied in the trial court, and Wife has not appealed therefrom.

The remaining area of dispute pertains to Husband’s disability pension. The parties were able to agree that if the disability benefits were determined to be marital property, Wife’s interest in Husband’s disability pension should be valued at fifty ($50.00) dollars per week. The master determined that the disability pension was marital property and made an award to Wife therefrom in the amount of fifty ($50.00) dollars per week. Husband filed exceptions, but these exceptions were dismissed following argument by the court.

The Divorce Code of April 2, 1980, P.L. 63, No. 26, § 401(e), 23 P.S. § 401(e), defines marital property as follows:

(e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except:
(1) Property acquired in exchange for property acquired prior to the marriage except for the increase in value during the marriage.
(2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.
(3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.
(4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until their divorce.
(5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the time proceedings for the divorce are commenced.
(6) Veterans’ benefits exempt from attachment, levy or seizure pursuant to the act of September 2, 1958, Public Law 85-857, 72 Statute 1229, as amended, except for those benefits received by a veteran where such veteran has waived a portion of his military retirement pay in order to receive Veteran’s Compensation.
(7) Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the time proceedings for the divorce are commenced.

This section of the statute, in subsection (e)(6), makes it clear that military retirement pensions are to be included as marital property, but that military disability payments are not to be deemed marital property. See also: Vaughn v. Vaughn, 370 Pa.Super. 333, 334, 536 A.2d 431, 432 (1988); Major v. Major, 359 Pa.Super. 344, 349, 518 A.2d 1267, 1270 (1986). This is consistent with federal law. See: 10 U.S.C. §§ 1408(a)(4), (c)(1).

Although the pertinent section of the Divorce Code does not otherwise refer to retirement pension benefits, it is now firmly established that retirement pension benefits, vested and non-vested, military and civilian, are deemed marital property subject to equitable distribution. Verdile v. Verdile, 370 Pa.Super. 475, 485, 536 A.2d 1364, 1369 (1988). See also: Vaughn v. Vaughn, supra; Major v. Major, supra; Barnhart v. Barnhart, 343 Pa.Super. 234, 494 A.2d 443 (1985); Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985); Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985); King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). Whether disability payments are to be deemed marital property, however, has not previously been decided by an appellate court in this Commonwealth.

The courts of other jurisdictions have reached varying results. Several courts have held that disability benefits are not marital property but, rather, compensation for loss of earning capacity. Such compensation, these courts have held, is the separate property of the employee spouse. See: Freeman v. Freeman, 468 So.2d 326 (Fla.App. 5th Dist. 1985); In the Matter of Minnis and Minnis, 54 Or.App. 70, 634 P.2d 259 (1981). Other courts have held, to the contrary, that disability pensions are to be deemed marital property. See: Morrison v. Morrison, 286 Ark. 353, 692 S.W.2d 601 (1985); Kruger v. Kruger, 73 N.J. 464, 375 A.2d 659 (1977); Hughes v. Hughes, 96 N.M. 719, 634 P.2d 1271 (1981). See also: In re Marriage of Smith, 84 Ill.App.3d 446, 39 Ill.Dec. 905, 405 N.E.2d 884 (1980) (discussing cases from various jurisdictions). The rationale of these cases is that the right to receive disability retirement benefits has accrued as a result of past employment and is derived from an annuity purchased during the marriage from spousal earnings.

A third approach is to scrutinize closely the disability benefit to determine whether it is more akin to a retirement benefit or to compensation for disability and to classify the benefit accordingly. See: Gilbert v. Gilbert, 442 So.2d 1330 (La.App. 1983). Alternately, a court may label a disability plan as marital property but assign to it a lesser value because of the contingent nature of a disability plan which pays benefits according to the varying physical condition of the employee. See: Lookingbill v. Lookingbill, 301 Md. 283, 483 A.2d 1 (1984). Finally, there are those jurisdictions which, although agreeing that many disability plans have features akin to retirement plans, have declined mechanically to label them “marital property.” These courts separate the “retirement component” of a pension from the “disability component.” All sums received by the disabled spouse in excess of that attributable to deferred compensation for past employment are deemed to be the separate property of the disabled spouse. See, e.g.: Villasenor v. Villasenor, 134 Ariz. 476, 657 P.2d 889 (Ct.App.1982); In re Marriage of Stenquist, 21 Cal.3d 779, 148 Cal.Rptr 9, 582 P.2d 96 (1978); West v. West, 115 A.D.2d 601, 496 N.Y.S.2d 263 (1985).

As explained by the Supreme Court of California in In Re Marriage of Stenquist, supra, disability benefits may serve multiple purposes. They may compensate for the loss of earnings resulting from compelled premature retirement and from a diminished ability to compete in the employment market. Disability benefits may also serve to compensate the disabled person for personal suffering caused by the disability. Finally, disability benefits may serve to replace a retirement pension by providing support for the disabled worker and his family after he leaves the job. Id. 21 Cal.3d at 788, 148 Cal.Rptr. at 14, 582 P.2d at 101. The California Court concluded that:

“where the employee spouse elects to receive disability benefits in lieu of a matured right to retirement benefits, only the net amount thus received over and above what would have been received as retirement benefits constitutes compensation for personal anguish and loss of earning capacity and is, thus, the employee spouse’s separate property. The amount received in lieu of matured retirement benefits remains community property subject to division on dissolution.”

Id., quoting In re Marriage of Mueller, 70 Cal.App.3d 66, 71, 137 Cal.Rptr. 129, 132 (1977).

We decline to hold that true disability payments are marital property subject to equitable distribution. Such benefits are intended to compensate the employee spouse for lost earning capacity. They are paid in lieu of the earnings which would have been paid to the employee if he or she had been able to work. They replace the future salary or wages which the employee, because of physical or mental disability, will not be able to earn. They are comparable to Workmen’s Compensation disability payments. Post-divorce payments intended to compensate for an inability to work are not marital property.

Where it can be shown, however, that a portion of the employee spouse’s disability pension is representative of retirement benefits, the amount received by the disabled employee in lieu of retirement benefits remains marital property subject to distribution. This is consistent with the provision of the Pennsylvania Divorce Code pertaining to veterans’ disability pensions, which are not to be deemed marital property “except for those benefits received by a veteran where such veteran has waived a portion of his military retirement pay in order to receive Veteran’s compensation.”

In the instant case, it is impossible to determine whether there is a “retirement component” included in the disability payments made to Husband or whether such payments are intended to be mere compensation for lost earnings. Similarly, it cannot be determined whether the disability benefits are permanent in nature or subject to divestment. Indeed, the record is even insufficient to permit a determination of the length of Husband’s service as a policeman or the nature of his disability.

The parties have stipulated that if Husband’s disability pension is marital property, the court shall award to Wife therefrom the sum of fifty ($50.00) dollars per week. On the basis of the record now before us, we cannot determine whether any portion of the Husband’s disability pension is actually a retirement portion. In the absence of such evidence, Husband’s disability benefits cannot be deemed marital property. Under the circumstances, the matter must be remanded for an evidentiary hearing to determine whether any portion of Husband’s disability pension represents a retirement component. If so, the trial court should then determine Wife’s distributive share of the retirement portion of Husband’s payments. This share should not be more than the stipulated sum of fifty ($50.00) dollars per week, which is the portion assigned to the Wife by the parties’ agreement in the event the husband’s entire disability payment were held to be marital property.

Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

      . It would create a disturbing anomaly for different rules to be applicable depending upon whether the employer was the federal government or the City of Philadelphia.


author: POPOVICH, Judge: OLSZEWSKI, Judge,

text:
    542 A.2d 1000
    COMMONWEALTH of Pennsylvania, Appellant v. Daniel Lee BALLIET.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1988.
    Filed May 2, 1988.
    Reargument Denied June 21, 1988.

      Amy L. Hallenbeck, Assistant District Attorney, Montoursville, for Com., appellant.
    Peter T. Campana, Williamsport, for appellee.
    Before CAVANAUGH, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Lycoming County granting a motion to suppress by the appellee. We reverse.

The validity of the warrant is not at issue; only the manner in which it was executed is under scrutiny.

The record indicates that Pennsylvania State Trooper Daniel Rogers, in the company of Corporal Donald Dorsett and two other police officers, set out to execute a warrant of the appellee’s (Daniel Lee Balliet’s) apartment. It appears that a bomb had been discovered under a vehicle being used by the appellee’s former mother-in-law, whom the appellee purportedly blamed for his ex-wife’s departure. Also, the ex-wife stated to the authorities that she witnessed appellee making bombs in his apartment. Thus, with warrant in hand, Trooper Rogers and Corporal Dorsett, at approximately 5:30 p.m. on the 6th of December, 1986, made their way to the appellee’s apartment. Once there, Trooper Rogers gave the following account of what transpired in response to questions being asked of him by the attorney for the Commonwealth:

Q. And can you describe to us what happened when you went to execute the search warrant?
A. I myself and corporal Dorsett met with two city police officers. We went to the home of Mr. Balliet at 640 Grace Street, went to the second floor where his apartment was located. We rapped at the door several times. We received no response. I personally vocally identified ourselves as being state police officers. Still no response. We then discussed whether or not we should forcibly enter into the home, or apartment, rather, for another minute or so and we did decide that we should forcibly enter the apartment.
Q. From the time that you first arrived and knocked on the door until you entered the apartment, how long— how much time would you say had elapsed?
A. No more than five minutes.
Q. And when you say you forcibly entered the apartment, can you describe to me what you did?
A. I kicked the door with my foot.
Q. When you went inside the apartment was there anyone there?
A. No.
Q. How long would you say you were there, Trooper?
A. We were there probably there better part of an hour.
Q. While you were there did anyone arrive at the apartment other than any police officers?
A. Yes, Mr. Balliet arrived probably five minutes before we were ready to leave his apartment.
Q. And when Mr. Balliet arrived did you speak to him?
A. Yes, I did.
Q. Can you tell me what you said?
A. Well, we explained our presence for being there and also furnished him an inventory sheet of the property that we seized.

Our Supreme Court, on the subject of technical non-compliance with our Rules of Criminal Procedure and its consequences, has stated:

... we reject the automatic application of the exclusionary rule to suppress evidence seized pursuant to a search which in some way violates the Pennsylvania Rules of Criminal Procedure relating to the issuance and execution of search warrants.
This Court most assuredly has not fashioned an automatic rule of exclusion of evidence for violations of Chapter 2000 of the Rules of Criminal Procedure generally____ Indeed, we have made it clear that the execution of a search warrant which violates these Rules will not automatically require the exclusion of evidence so obtained. In Commonwealth v. Musi, 486 Pa. 102, [115-16,] 404 A.2d 378[, 385] (1979), we held:
A rule of exclusion is properly employed where the objection goes to the question of the reliability of the challenged evidence ... or reflects intolerable government conduct which is widespread and cannot otherwise be controlled____ Experience does not suggest there has been such a widespread and flagrant abuse of rule 2008(a) that would require the fashioning of a per se exclusionary rule for its violation____ Therefore, the imposition of a sanction requiring the exclusion of evidence that results from a search where there has not been compliance with the rule must depend upon the relationship of the violation to the reliability of the evidence seized. Here, there was probable cause for the entry and search and there is no dispute that the rifle was in fact found on the premises described in the warrant and seized pursuant to that search. Thus, appellant’s rights were not prejudiced by the officer’s failure to fully comply with the mandates of the rule.
Federal cases interpreting a comparable rule of criminal procedure, see Rule 41(d) of the Federal Rules of Criminal Procedure, have concluded that although important, the procedures required for execution and return of the warrant are ministerial and that irregularities should not void an otherwise valid search absent a showing of prejudice. See e.g., U.S. v. Hall, 505 F.2d 961 (3d Cir.1974); In Re Ellsberg, 446 F.2d 954 (1st Cir.1971); U.S. v. Klapholz, 230 F.2d 494 (2d Cir.1956) cert. denied, 351 U.S. 924, 76 S.Ct. 781, 100 L.Ed. 1454. We accept the wisdom of this approach and hold that where, as here, appellant has failed to demonstrate that she was prejudiced from the violation of this rule a request to suppress the fruits of the search is not justified.
The Circuit Court of Appeals for the Ninth Circuit recently elaborated as to when exclusion of evidence would be an appropriate remedy for the violation of rules of criminal procedure. In United States v. Johnson, 660 F.2d 749, 753 (9th Cir.1981), cert. denied, 455 U.S. 912, 102 S.Ct. 1263, 71 L.Ed.2d 452 (1982), that court stated:
Even granting appellants’ contentions that the rule was not followed, the evidence should not be suppressed.
“Only a ‘fundamental’ violation of Rule 41 requires automatic suppression, and a violation is ‘fundamental’ only where it, in effect, renders the search unconstitutional under traditional fourth amendment standards.” U.S. v. Vasser, 648 F.2d 507, 510 (9th Cir.1980). Where the alleged violation of Rule 41 is not “fundamental” suppression is required only where:
“(1) there was ‘prejudice’ in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision of the Rule.” Id. (citations omitted).
See also United States v. Searp, 586 F.2d 1117 (6th Cir.1978), cert. denied, 440 U.S. 921, 99 S.Ct. 1247, 59 L.Ed.2d 474 (1979) (suppression due to Rules violation not justified absent bad faith conduct on the part of police or prejudice to defendant in sense that search would not have occurred or would not have been as obtrusive).
From the foregoing, we reemphasize that exclusion/suppression of evidence is not an appropriate remedy for every violation of the Pennsylvania Rules of Criminal Procedure concerning searches and seizures. It is only where the violation also implicates fundamental, constitutional concerns, is conducted in bad-faith or has substantially prejudiced the defendant that exclusion may be an appropriate remedy. Under the circumstances of the instant case, it is clear that even if Rule 2004 had been violated (we hold, infra, that it has not been), suppression of the evidence seized from appellee’s apartment “would be a remedy out of all proportion to the benefits gained to the end of obtaining justice while preserving individual liberties unimpaired.” United States v. Searp, supra at 586 F.2d 1123. To make such a caricature of form distorts justice. See also Commonwealth v. Corley, 507 Pa. 540, 491 A.2d 829 (1985) (refusal to extend exclusionary rule to cases where evidence was obtained as a result of an allegedly unlawful arrest by a private citizen).

Commonwealth v. Mason, 507 Pa. 396, 401-404, 405-407, 490 A.2d 421, 423-424, 426 (1985).

Based on the recitation of the law in Mason as to the criteria to utilize in determining whether a violation of a Rule of Criminal Procedure justifies the suppression of evidence, it is quite evident that exclusion is the exception rather than the rule. And then, exclusion of seized evidence may be appropriate only where the violation also touches upon fundamental, constitutional concerns, is conducted in bad-faith or has substantially prejudiced the defendant. See Commonwealth v. Morgan, 517 Pa. 93, 96 n. 2, 534 A.2d 1054, 1056 n. 2 (1987).

Instantly, the police knocked and identified themselves without receiving any response to their inquiry. As a result, the officers discussed among themselves what course to pursue next. After the passage of almost five (5) minutes, and still no one having indicated their presence in the apartment, the police decided to enter forcibly and did so by kicking the front door open.

Under the Mason criteria, we have been presented with no evidence by the defendant that he was “prejudiced” by the entry and search, i.e., (1) “ ‘in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision of the Rule.’ ” Id. 507 Pa. at 406, 490 A.2d at 426 (Citation omitted). To the same effect, no “bad-faith” on the part of the police is alleged since they did make an effort to comply with the spirit of Rule 2007 by knocking, identifying themselves and waiting a reasonable period of time to afford an occupant/owner of the apartment to relinquish his/her possession of the premises peacefully and voluntarily. Accordingly, we find no “fundamental” violation of Rule 2007 requiring an automatic exclusion of the evidence seized. To do so, we believe, would be disproportionate to the violation or benefit to be gained by affirming the lower court’s suppression of the evidence seized by the authorities. As such, the ruling entered by the court below is held to be erroneous and subject to reversal.

Order reversed.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent. In light of constitutional considerations, the “knock and announce” rule, and clear-cut case law in this Commonwealth, I believe that the trial court correctly suppressed the evidence seized in the instant case. In reaching this conclusion, I acknowledge that when it comes to unoccupied dwellings, it is futile to require the authorities to knock and announce their identity and purpose and wait for a refusal of entry from someone who is not there. See Commonwealth v. Baker, 361 Pa.Super. 401, 522 A.2d 643 (1987). The simple fact that there was no response to their knock, however, is insufficient to establish a dweller’s absence. Commonwealth v. Wallace, 293 Pa. Super. 73, 437 A.2d 996 (1981). The occupant “could have been asleep, or avoiding an old girlfriend or a bill collector.” Id., 293 Pa.Superior Ct. at 77, 437 A.2d at 998.

I further recognize that police are not required to comply with the formalities of procedural rules when to do so would be a “useless act.” Baker, supra, 361 Pa.Super. at 406, 522 A.2d at 646. We have mandated, however, that the police have knowledge that an occupant is away from his dwelling before they enter and search it without complying with the knock and announce requirements. Id.

Instantly, the Commonwealth does not dispute that there was no announcement of purpose nor claim that there were exigent circumstances that would have justified entry without proper announcement. Rather, the Commonwealth asserts that the violation was at most a technical one which does not require suppression. The Commonwealth attempts to support its position by analogizing the present facts to those of Baker. In Baker, however, the police were informed by children in the vicinity of defendant’s residence and defendant’s brother that defendant was not at home.

I am not persuaded by the Commonwealth’s argument. The law in Pennsylvania is clear that the failure of the officers to announce purpose cannot be excused by the fact that ultimately appellee’s home was found to be unoccupied. Wallace, supra, 293 Pa.Super. at 77, 437 A.2d at 998. It is not “too much to expect of the officers to announce their purpose in demanding admission____‘[t]he burden of making an express announcement is certainly slight. A few more words by the officers would have satisfied the requirements in this case.’ ” Commonwealth v. Newman, 429 Pa. 441, 447, 240 A.2d 795, 798 (1968), quoting Miller v. United States, 357 U.S. 301, 309-310, 78 S.Ct. 1190, 1195-1196, 2 L.Ed.2d 1332 (1958); Commonwealth v. Golden, 277 Pa.Super. 180, 186, 419 A.2d 721, 724 (1980).

It is my opinion that the execution of the warrant, because of the failure to state purpose or ascertain appellee’s absence from the premises, violated appellee’s right to be free from unreasonable search and seizure under the Fourth Amendment, see Newman, supra; as well as the “knock and announce” rule codified in Pa.R.Crim.P. 2007. The failure to announce purpose was not, therefore, a mere technical violation of Rule 2007 as the Commonwealth would have us believe. While I realize the importance of the use of seized evidence in making the Commonwealth’s case, I cannot reconcile reversing the trial court’s decision in the face of compelling case law. I would hold that the trial court correctly excluded the evidence because of a violation of constitutional magnitude.

      . In its brief to us at page 2, the Commonwealth correctly "certifies pursuant to ... Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985) that this appeal is taken in good faith and that the Order below granting Appellee’s motion to suppress evidence has substantially handicapped the Commonwealth in its prosecution of its case.”

      . We note that the facts in Wallace are analogous to the facts in the case at bar. In both instances, when Rule 2007 was violated, the occupant was not at home but the police did not have knowledge of his absence prior to entering the dwelling.


text:
    542 A.2d 1004
    COMMONWEALTH of Pennsylvania v. Louis RIGGINS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1988.
    Filed May 24, 1988.

      James S. Bruno, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WIEAND, MONTGOMERY and HESTER, JJ.
   WIEAND, Judge:

Louis Riggins was tried by jury in October, 1974, and was found guilty of first degree murder and conspiracy. Post-trial motions were filed and denied, and Riggins was sentenced to life imprisonment on the murder conviction and to a consecutive five to ten year term of imprisonment for conspiracy. On direct appeal, the Supreme Court affirmed the judgment of sentence. In September, 1986, Riggins filed a pro se petition under the Post Conviction Hearing Act (P.C.H.A.). Counsel was appointed, and an amended P.C.H.A. petition was filed. Upon motion of the Commonwealth, the amended P.C.H.A. petition was dismissed without hearing. On appeal from the order of the P.C.H.A. court, Riggins raises several issues challenging the effectiveness of his trial and appellate counsel. Specifically he argues that:

A. Trial counsel was ineffective for failing to object to the District Attorney’s remarks regarding the presumption of innocence and appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness.
B. Trial counsel was ineffective for failing to object to the Commonwealth presentation of testimony regarding the fact appellant was a member of the black Muslim religion and appellant [sic] counsel was ineffective for failing to raise this, issue in appellant’s appeal.
C. Appellant was deprived of a fair trial by the testimony that he had previously been in jail and that trial counsel and appelalnt [sic] counsel were ineffective for failing to properly preserve this issue on appeal.
D. Trial counsel erred in permitting an exhibit containing the dying declaration to be admitted into evidence as his failure to object allowed the exhibit to be sent out with the jury during their deliberations and appellate counsel was ineffective for failing to raise this issue on appeal.
E. Trial counsel erred in failing to object to the trial court’s expressing its opinion in the charge to the jury that there was evidence that would tend to establish that appellant solicited, agreed, participated and performed acts which caused the death of the victim.

Riggins has also filed a pro se supplemental brief in which he challenges the effectiveness of his appointed P.C.H.A. counsel. Finding no merit in any of Riggins’ contentions, we affirm the order of the P.C.H.A. court.

The evidence which led to Riggins’ conviction was summarized by the Supreme Court as follows:

The victim’s mother, accompanied by a co-worker, Mrs. Young, stopped by the home of her two daughters late at night to see that all was well. She discovered a large cooking knife and bloody paper towels on the kitchen countertop, and at the same time heard the victim calling faintly from the basement. Upon going down to the basement, the mother found the victim lying in a pool of blood with numerous stab wounds to her right arm, chest and throat. In answer to her mother’s question as to what caused her injuries, the victim clearly and repeatedly named the appellant and two of appellant’s regular companions. The mother’s co-worker came down the stairs and heard the same three people named as the assailants.
The mother called the police and an emergency patrol wagon arrived within minutes. The senior police officer found the victim in a severely wounded state and heard her say repeatedly that she was dying. When questioned, she replied, “They stabbed me.” She also stated there had been three assailants. The police officer then grabbed the nearest available thing to write on, a napkin. The victim gave him the same three names she had given her mother, and told the officer they were all Muslims who lived in Frankford and belonged to the Susquehanna Mosque. The officer wrote this information in abbreviated form on the napkin. After taking the victim to the hospital, the officer showed the names on the napkin to another policeman. Seeing appellant’s name, the other officer said he knew where appellant lived. When the police went to the address supplied by the officer, they were given another address by appellant’s parents. Arriving at that destination, they apprehended appellant as he ran to get into a car.
The victim’s sister, Rose DeBose, testified at trial that earlier during the evening in question she answered the telephone at the home where she and her sister, the deceased, resided. The caller identified himself as “Louis” and asked for Linda DeBose, the victim. The witness further testified that she recognized the voice as that of Louis Riggins, whom she knew from having spoken to him before, both in person and by telephone. At the end of the telephone conversation, Linda DeBose, the victim, told Rose DeBose, “Louis will over later on.” When the sister left the house at 9:30 p.m. she locked the door. The door had two locks and a peephole. She testified that they always kept the door locked and admitted no one unless identified. She returned to the house at 11:45 p.m., after the police had taken the victim to the hospital. There was no sign of forcible entry. Rose DeBose further testified that three nights before the stabbing she observed Linda in their home along with appellant and one of the other named assailants. The other individual and Linda were engaged in an angry argument.

Commonwealth v. Riggins, 478 Pa. 222, 225-226, 386 A.2d 520, 521-522 (1978).

In examining claims of ineffective assistance of counsel, “we must first determine if the underlying issue is of arguable merit.” Commonwealth v. Thomas, 363 Pa.Super. 348, 352, 526 A.2d 380, 381 (1987). Only when the issue is of arguable merit may we proceed to the next inquiry which is “whether the course of action chosen by counsel had some reasonable basis designed to effectuate the client’s interest.” Id., 363 Pa.Superior Ct. at 352, 526 A.2d at 382. Finally, the appellant must also “establish that the ineffectiveness so prejudiced his case that he did not receive a fair trial.” Id., 363 Pa.Superior Ct. at 353, 526 A.2d at 382. See also: Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Cope, 359 Pa.Super. 140, 518 A.2d 819 (1986).

Appellant’s first allegation of ineffective assistance is based on the following remark made by the prosecuting attorney during his closing argument:

Also, the term presumption of innocence has been mentioned, and in connection with that term “presumption of innocence” has been used the word “cloak”. The defendant like all defendants is cloaked with the presumption of innocence. Keep in mind that this is a cloak for the innocent, not a shield for the guilty to hide behind.

Appellant argues that this remark was both improper and prejudicial. We disagree. The remark by the prosecuting attorney, in our view, was neither improper nor prejudicial. “In reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made.” Commonwealth v. Williams, 346 Pa.Super. 456, 459, 499 A.2d 1089, 1091 (1985). Moreover, “ ‘[i]t is well settled that comments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.’ ” Commonwealth v. Chew, 338 Pa.Super. 472, 484, 487 A.2d 1379, 1385 (1985), quoting Commonwealth v. Tabron, 502 Pa. 154, 160, 465 A.2d 637, 639-640 (1983). See also: Commonwealth v. D'Amato, 514 Pa. 471, 526 A.2d 300 (1987). In the instant case, the prosecuting attorney was merely responding to the same analogy which had been employed by defense counsel in his closing argument. Because the remark was not improper, neither appellant’s trial counsel nor his appellate counsel was ineffective for failing to challenge the same. Counsel was not required to assert a meritless claim. See: Commonwealth v. Albrecht, 510 Pa. 603, 626, 511 A.2d 764, 776 (1986), cert. denied, — U.S. —, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987); Commonwealth v. Stoyko, 504 Pa. 455, 472, 475 A.2d 714, 723 (1984), cert. denied, 469 U.S. 963, 105 S.Ct. 361, 83 L.Ed.2d 297 (1984).

In a dying declaration, the victim identified appellant as one of her three assailants and stated that all three were Muslims. At trial, the Commonwealth elicited testimony concerning appellant’s membership in the Black Muslim religion. Appellant contends that this testimony was irrelevant and that it improperly injected the element of racial prejudice into his trial. He contends further that both his trial and appellate counsel were ineffective for failing to raise the issue. We disagree. The P.C.H.A. court concluded, and we agree, that appellant’s being a Muslim was a relevant fact in view of the circumstances of this case. It was relevant with respect to the identification of the killer in view of the victim’s dying declaration. Cf. Commonwealth v. Rainey, 271 Pa.Super. 240, 245-246, 412 A.2d 1106, 1108-1109 (1979) (police officer’s testimony concerning witness’ reference to a Muslim meeting was proper since it concerned a legitimate response to a valid question asked by police during their investigation); Commonwealth v. Griffin, 271 Pa.Super. 228, 238, 412 A.2d 897, 902 (1979) (references to Muslim religion were properly admitted to demonstrate existence of strong common bond among appellant, his co-defendants, decedent and witnesses).

During the Commonwealth’s cross-examination of defense witness, Thomas Ferguson, the witness volunteered via unresponsive answer that appellant had been released from jail during the year prior to the murder. The trial court, in response to a motion for mistrial, found that the prosecuting attorney had neither solicited the response from the witness nor exploited it in any way. The court, thus, denied appellant’s motion for a mistrial. Appellant argues on appeal that the Commonwealth improperly conveyed to the jury the fact that he had a prior criminal record and that his trial and appellate counsel were ineffective for failing to preserve this issue on direct appeal. We find that the trial court’s ruling was proper and that counsel were not ineffective.

The decision whether to declare a mistrial is within the sound discretion of the trial judge and will not be reversed absent a flagrant abuse of that discretion. Commonwealth v. Hamm, 325 Pa.Super. 401, 412, 473 A.2d 128, 133 (1984); Commonwealth v. Seigrist, 253 Pa.Super. 411, 418, 385 A.2d 405, 408 (1978). It has long been held that “evidence of a distinct crime, except under special circumstances, is inadmissible against a defendant who is being tried for another crime, because the commission of one crime is not proof of the commission of another, and the effect of such evidence is to create prejudice against the defendant in the jury’s mind.” Commonwealth v. Morris, supra, 493 Pa. [164] at 174-175, 425 A.2d [715] at 720 [1981]. Thus, clear references to prior unrelated criminal activity warrant a mistrial. Commonwealth v. Watson, 355 Pa.Super. 160, 167, 512 A.2d 1261, 1265 (1986). Our Supreme Court made clear in Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979), however, that “(not) all references which may indicate prior criminal activity warrant reversal.” Mere “passing references” to prior criminal activity will not necessarily require reversal unless the record illustrates that prejudice resulted from the reference. Id.
Additionally, the nature of the reference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required. Commonwealth v. Pursell, 508 Pa. 212, 230, 495 A.2d 183, 192 (1985); Commonwealth v. Williams, 470 Pa. 172, 178, 368 A.2d 249, 252 (1977).

Commonwealth v. Thomas, 361 Pa.Super. 1, 14-15, 521 A.2d 442, 449-450 (1987) (footnote omitted). See also: Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162 (1981); Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984). Our review of the record confirms the trial court’s determination that the witness’ remark concerning appellant’s having been released from jail was neither solicited by the prosecution nor taken advantage of in any way. We find nothing in this isolated remark which was so prejudicial as to require that appellant be awarded a new trial. His trial counsel had moved for a mistrial, and the motion had been denied. Neither trial counsel nor appellate counsel was ineffective for failing to preserve the issue thereafter.

Appellant next argues that his trial counsel was ineffective for failing to object to the admission into evidence of the napkin on which a police officer had recorded the victim’s dying declaration. He further contends that his appellate counsel was ineffective for failing to raise this issue on appeal. While appellant argues that the napkin should not have been admitted into evidence, he suggests no basis upon which it could properly have been excluded at trial. Absent some showing by appellant that an adequate basis existed to exclude the evidence, we will not find counsel ineffective. See: Commonwealth v. Ehrsam, 355 Pa.Super. 40, 56, 512 A.2d 1199, 1207 (1986); Commonwealth v. Scott, 345 Pa.Super. 86, 91, 497 A.2d 656, 659 (1985); Commonwealth v. Durah-El, 344 Pa.Super. 511, 516, 496 A.2d 1222, 1225 (1985). Moreover, the police officer was present and testified before the jury. The receipt of his recorded version of the dying declaration was not prejudicial.

As a part of its charge to the jury the trial court said, “there is evidence that would tend to establish, if believed by you, that the defendant solicited and agreed with others, as well as participated in and performed acts which caused the death of Linda DeBose.” Appellant complains that this portion of the charge created for the jury the impression that they could find him guilty as an accomplice even though not convinced beyond a reasonable doubt. In that trial counsel did not object to this portion of the jury charge, appellant alleges that he was ineffective; and because appellate counsel did not question trial counsel’s effectiveness, appellant argues that he too was ineffective. This argument is wholly without merit.

In evaluating a trial court’s instructions, we review the charge as a whole. Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983); Commonwealth v. Sparks, 351 Pa. Super. 320, 505 A.2d 1002 (1986). We may not predicate a finding of error upon isolated excerpts of the charge as it is the general effect of the charge that controls. Commonwealth v. Smith, 343 Pa.Super. 435, 495 A.2d 543 (1985). Even if the court erred when it instructed the jury, we will reverse only if the error prejudiced the appellant. Levy and Surrick v. Surrick, 362 Pa.Super. 510, 524 A.2d 993 (1987). See Commonwealth v. Ohle, supra.

Commonwealth v. Klinger, 369 Pa.Super. 526, 538, 535 A.2d 1060, 1066 (1987). In the instant case, not only did the trial court fully explain to the jury the burden of finding guilt beyond a reasonable doubt, but, immediately prior to the complained of portion of the charge, the court had stated:

You may find the defendant guilty of murder in this case on the ground that he was an accomplice in that murder or a co-conspirator in that murder, as long as you are satisfied beyond a reasonable doubt that the crime was committed, first, and second, that the defendant was the person that committed it or was an accomplice of the person or persons who committed it.

Thus, appellant’s claim that the jury was not properly instructed on the burden of finding him guilty. beyond a reasonable doubt is totally unwarranted. Trial and appellate counsel were not ineffective for failing to pursue this completely meritless issue.

Finally appellant, in a pro se supplemental brief, challenges the effectiveness of his court appointed P.C.H.A. counsel. Appellant argues that his P.C.H.A. counsel was ineffective for abandoning the claim that a portion of the jury charge was in violation of constitutional due process as determined by the United States Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). This claim had been included in appellant’s initial pro se P.C.H.A. petition, but it was not included in the amended petition filed by counsel. In Sandstrom, the Supreme Court determined that a jury charge which, in part, had stated that “the law presumes that a person intends the ordinary consequences of his voluntary acts” was in violation of the Due Process Clause of the Fourteenth Amendment. Specifically, the Court held that such an instruction, without telling the jury that it was only an inference which the jury could ignore, allowed the state to prove the intentional, knowing aspect of a homicide by proof that was not beyond a reasonable doubt. In the instant case, a portion of the charge to the jury was similar to that which was found to be unconstitutional in Sandstrom. Appellant argues that he should be granted a new trial due to P.C.H.A. counsel’s failure to assert this issue. We disagree. Even if the instruction were arguably erroneous, counsel cannot be deemed ineffective for failing to object.

One is presumed to know and must intend the natural and probable consequences of his act, so that if one uses a deadly weapon, such as a knife, upon the body of another at some vital spot such as the neck or the chest—the thorax area—in the absence of qualifying circumstances he is presumed to intend the natural and probable consequences of his act, which is death, and if from the evidence you find that the defendant did inflict wounds as

Appellant was convicted of first degree murder in 1974. His conviction became final when it was affirmed on direct appeal by the Pennsylvania Supreme Court in 1978. The decision of the United States Supreme Court in Sandstrom was not handed down until 1979, after appellant’s conviction had become final. Appellant argues, however, that Sandstrom should be applied retroactively to cases now pending on collateral review. Our review of the relevant case law leads us to a different conclusion. In

Commonwealth v. Gillespie, 512 Pa. 349, 516 A.2d 1180 (1986), our Supreme Court held that “a new rule of law to which we give full retroactive effect, will not be applied to any case on collateral review unless that decision was handed down during the pendency of an appellant’s direct appeal and the issue was properly preserved there, or ... is non-waivable.” Id., 512 Pa. at 355, 516 A.2d at 1183 (adopting the reasoning of the United States Supreme Court in Shea v. Louisiana, 470 U.S. 51, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985)). See also: Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (held that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) does not apply retroactively to cases on collateral review); Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring) (cases on collateral review ordinarily should be considered in light of the law as it stood when conviction became final); Commonwealth v. Harper, 512 Pa. 155, 516 A.2d 319 (1986); Commonwealth v. Carr, 370 Pa.Super. 1, 535 A.2d 1120 (1987); Commonwealth v. Ahearn, 357 Pa.Super. 404, 516 A.2d 45 (1986). Our reading of Commonwealth v. Gillespie, supra, convinces us that appellant is not entitled to retroactive application of the Sandstrom case in the context of a P.C.H.A. proceeding. His P.C.H.A. counsel was not ineffective for failing to pursue this issue.

The order of the P.C.H.A. court is affirmed.

      . On direct appeal the Supreme Court found that this issue had been waived due to counsel’s failure to make a timely objection. Commonwealth v. Riggins, 478 Pa. 222, 231, 386 A.2d 520, 524-525 (1978).

      . Appellant also takes issue with the trial court’s decision to allow this napkin to go out with the jury during its deliberations. This issue was finally litigated before the Supreme Court in appellant’s direct appeal, Commonwealth v. Riggins, supra, 478 Pa. at 231-233, 386 A.2d at 525-526, and we will not review this claim further in the context of a P.C.H.A. proceeding. See: 42 Pa.C.S. § 9544(a)(3).

      . That portion of the jury charge which appellant claims is at odds with the holding in Sandstrom was as follows: described by our doctor in the case you may infer both malice and the intention to cause Linda DeBose’s death.

      . Appellant asserts that the Supreme Court’s holding in Yates v. Aiken, 484 U.S. —, 108 S.Ct. 534, 98 L.Ed.2d 546 (1988), requires that Sandstrom be applied retroactively to cases on collateral review. Appellant, however, misinterprets Yates. The petitioner in Yates had been convicted after Sandstrom had been decided. In Yates the Supreme Court rejected an argument by the State of South Carolina that Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) not be applied retroactively on collateral review. The Court determined that the Francis case did not announce a new rule of law but, rather, was merely an application of the principle established in Sandstrom. The Court in Yates did not hold that Sandstrom should be applied retroactively to cases on collateral review.


author: OLSZEWSKI, Judge: POPOVICH, Judge,

text:
    542 A.2d 1010
    COMMONWEALTH of Pennsylvania, Appellant v. David A. STEWART.
    Superior Court of Pennsylvania.
    Submitted Nov. 16, 1987.
    Filed May 16, 1988.

      Narcy L. Hughes, Assistant District Attorney, Lancaster, for Com., appellant.
    Theodore H. Watts, Meadville, for appellee.
    Before OLSZEWSKI, POPOVICH and WATKINS, JJ.
   OLSZEWSKI, Judge:

This is an appeal by the Commonwealth from the judgment of sentence imposed following a guilty plea to a charge of driving under the influence. The sole question presented is whether an individual who has successfully completed a period of accelerated rehabilitation disposition (herein after A.R.D.) arising out of an arrest under section 3731 of the Motor Vehicle Code of 1976, 75 Pa.C.S.A. § 3731 , (hereinafter referred to as “old drunk driving law)”, must be sentenced as a second offender under section 3731, 75 Pa.C.S. § 3731 Supp.1984, (hereinafter referred to as “new drunk driving law”) as it was amended in 1982, when the acceptance of A.R.D. came after the new drunk driving law became effective. We hold that he should not.

On August 24, 1982, David Stewart was arrested on a charge of driving under the influence in violation of section 3731 of the old drunk driving law. On September 13, 1983, after the effective date of the new drunk driving law, he was accepted into and successfully completed the A.R.D. program on the charge. Subsequently, on January 2, 1987, Stewart again was arrested for driving under the influence. Following entry of a guilty plea on May 15, 1987, Stewart was sentenced as a first offender on June 19, 1987 to a minimum term of 48 hours. A timely motion for reconsideration of sentence was filed by the Commonwealth, which, after argument, was denied, and this timely appeal followed.

On appeal, the Commonwealth argues that Stewart should have been sentenced as a second offender as the new drunk driving law specifically provides that acceptance of A.R.D. for a D.U.I. offense is to be considered a conviction for sentencing enhancement purposes. 75 Pa.C.S. § 3731(e)(2). See also Commonwealth v. Kornicki, 357 Pa.Super. 182, 515 A.2d 925 (1986). It is the Commonwealth’s position that if a defendant voluntarily participated in an A.R.D. program on a drunk driving offense after January 14, 1983, the effective date of the new D.U.I. law, regardless of the date of that arrest, that offense should be considered a conviction for sentencing enhancement purposes.

In Kornicki, we stated that “(s)ection 3731 ... requires a sentencing court to consider a conviction which had occurred before the new law went into effect in imposing sentence on a subsequent conviction,” Commonwealth v. Kopycinski, 353 Pa.Super. 387, 389, 510 A.2d 365, 366 (1986). We note that Kornicki is factually distinguishable from the case at bar and therefore does not lend support to the Commonwealth’s argument. In Kornicki, as in the case cited therein, Kopycinski, the defendant had prior drunk driving convictions under the old drunk driving law, and, as such, we held that the Commonwealth was entitled to pursue an enhancement of the sentence entered by the trial court. In the case at bar, we cannot accept that Stewart’s acceptance and completion of A.R.D. can be considered a conviction under the new drunk driving law.

Sentencing for D.U.I. convictions is governed by § 3731(e) of the Vehicle Code. That section provides in part:

(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.
(2) Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.

75 Pa.C.S.A. § 3731(e).

It is clear that the statute contains provisions for separate treatment of a person previously convicted of an offense under this section or, an equivalent offense and for those who had accepted A.R.D. of the charge brought under this section.

In construing statutes, we are to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S.A. 1921(a). When the language of a statute is clear and unambiguous, we are to construe its provisions in accordance with their plain meaning and common usage. Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986). When the words are not explicit, however, the intention of the General Assembly may be ascertained by considering other matters. 1 Pa.C. S.A. § 1921(c).

The Commonwealth asserts that the definitive word in Section 3731(e)(2) is “acceptance” and the legislature intended the date of acceptance rather than the date of arrest to be controlling.

The construction of the statute urged upon us by appellant would require that we ignore a substantial portion of the statute requiring that the prior charge given A.R.D. treatment must be brought under that section to be considered as a first conviction. Yet, in construing the language of a statute, the court must assume that the legislature intended that every word of the statute would have effect. See Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979).

We find that the language of § 3731(e)(ii) is not explicit as it does not indicate when a person must have been previously convicted in order to trigger its enhanced penalty. Accordingly, we may consider matters other than the language itself.

Both parties cite Commonwealth v. Godsey, 342 Pa.Super. 24, 492 A.2d 44 (1985) and Commonwealth v. Frost, 342 Pa.Super. 173, 492 A.2d 448 (1985). In Frost, supra, the defendant had, in 1979, successfully completed a period of A.R.D. arising out of an arrest under the old D.U.I. law and the charge was dismissed. In November 1983 defendant pled guilty to a charge of D.U.I. under the new law. At sentencing, the judge determined that 75 Pa.C.S. § 3731(e)(2) of the new D.U.I. law required individuals who had successfully completed a period of A.R.D. under the old law be treated as second offenders for sentencing purposes.

This court determined that the legislature did not intend an A.R.D. under the old law to be considered a prior conviction for mandatory sentencing provisions of Section 3731(e)(2) and therefore, it is applicable only to acceptances of A.R.D. after the effective date of the amendment. The panel reasoned that acceptance of A.R.D. under the old law was in accordance with Pa.R.Crim.P. Nos. 175-185 Rule 178. The procedure at the hearing on the motion for A.R.D. required telling the defendant that upon successful completion of the A.R.D. program, the charges would be dismissed and would be of no further consequence. Under the new D.U.I. law defendants are informed at the A.R.D. hearing that an A.R.D. will be considered a conviction for sentencing purposes in the event of an arrest for drunk driving within the next seven years. The court then went on to hold that the legislature did not intend on A.R.D. under the old drunk driving law to be considered a prior conviction for the purpose of applying the mandatory sentencing provisions of Section 3731(e)(1) and therefore Section 3731(e)(2) of the new law is applicable only to acceptances of A.R.D. after the effective date of the amendment. The court based its decision in part on the fact that under the old law, when a party accepted A.R.D. he was asked on the record if he understood that satisfactory completion of the program earned him a dismissal of the pending charges. Acceptance of A.R.D. under the new D.U.I. law requires that defendants be told that it would be considered a conviction for sentencing purposes in the event of a subsequent arrest for D.U.I. within the next seven years. Under the new D.U.I. law, defendants are given notice of the enhancement effect of A.R.D. The court held that Section 3731(e)(2) applies only to acceptances of A.R.D. since January 14, 1983, and therefore, an acceptance of A.R.D. before that date cannot be considered a conviction for purposes of applying the sentencing provisions of Section 3731(e)(1).

In Godsey, supra, the defendant had a prior arrest for D.U.I. under the old D.U.I. law in 1981 and was placed in A.R.D. Following his arrest in 1984 under the new D.U.I. law, defendant entered a guilty plea and received the mandatory sentence for a second conviction of thirty days to six months imprisonment. On appeal, a panel of this court held that Godsey could not be convicted as a second offender because the legislature did not intend that 75 Pa.C.S.A. § 3731(e)(2) be applied retroactively. Godsey had accepted and successfully completed the A.R.D. program and in accordance with the rules on A.R.D. which provide that upon successful completion of the program, the charges are dismissed against the defendant. As such, Godsey was never convicted. The panel determined 75 Pa.C.S.A. § 3731(e)(2) applies to that section as presently written, because a person who accepted A.R.D. prior to enactment of the new D.U.I. law was assured by then existing law that successful completion would result in a discharge. Godsey construed 3731(e)(2) to apply only to A.R.D. cases which arose subsequent to January 15, 1983, as being equivalent to a conviction for purposes of computing the penalty on subsequent convictions.

We note that there is dicta in Frost to support the Commonwealth’s interpretation of the statute:

“Based upon all of the foregoing we hold that Section 3731(e)(2) applies only to acceptances of A.R.D. since January 14, 1983, and therefore an acceptance of A.R.D. which occurred before that date cannot be considered a conviction for purposes of applying the sentencing provisions of Section 3731(e)(1).”

Frost at 178, 492 A.2d at 450.

Likewise, we find that the following language in Godsey, supra supports the appellee’s position:

It is further provided under 75 Pa.C.S.A. 3731(e)(2):

“Acceptance of accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.’
The language above clearly applies to that section as presently written. Any doubt in construing a penal statute must be resolved in favor of the accused. (Citations omitted) If the legislature intended to include A.R.D. disposition under prior enactments, it could easily have incorporated language eliminating any ambiguity.” (Emphasis in original)

Godsey at 29, 492 A.2d at 47 (1985).

Pa.R.Crim.P. 179 permits a defendant to be placed in the A.R.D. program only after he or she has requested acceptance into the program, has indicated an understanding of the proceedings, and has accepted and agreed to comply with the conditions imposed by the trial court. Commonwealth v. Scheinert, 359 Pa.Super. 423, 519 A.2d 422 (1986). “Defendants who accept A.R.D. for drunk driving are now told that an A.R.D. will be considered a conviction for sentencing purposes in the event of an arrest for drunk driving within the next seven years. Therefore, defendants who have accepted A.R.D. since the effective date of the new drunk driving law have been given notice of the possible consequences of their acceptance.” Commonwealth v. Frost, 342 Pa.Super. 173, 178, 492 A.2d 448, 450 (1985). In light of the voluntary character of A.R.D. participation and the required notice of its collateral consequences, it cannot be said that notions of fundamental fairness are violated because the legislature has directed that a person who has been on A.R.D. shall be sentenced as a second offender if he or she is convicted of driving while under the influence of alcohol.

The reasoning employed in Frost is based upon a theory similar to estoppel, i.e., the defendant did not and could not know when he accepted A.R.D. that it could even be counted as a first offense if the A.R.D. was accepted prior to the effective date of the new Act. Godsey, on the other hand, bases its reasoning on the fact that the new D.U.I. Act refers to A.R.D. cases which were “brought under this section” and construes those words as meaning the section as now written. Following the Godsey reasoning, the A.R.D. disposition is this case would not count because it was not “brought under this section”.

In Godsey and Frost, we held that section 3731(e)(2) of the Vehicle Code, which became effective on January 14, 1983, is not applicable to acceptances of A.R.D. which occurred before the effective date of the statute. We are faced with the entirely different issue of whether section 3731(e)(2) of the new drunk driving law is applicable to acceptances of A.R.D. after the effective date of the new act where the defendant is charged under the old drunk driving law. We hold that it is not.

When a criminal statute is susceptible of two constructions, both reasonable, it is not the construction that is supported by the greater reason that is to prevail but the one that operates in favor of the defendant’s liberty. Commonwealth v. Mourar, 349 Pa.Super. 583, 595, 504 A.2d 197, 204, allowance of appeal granted, 511 Pa. 619, 515 A.2d 898 (1986); Commonwealth v. Wolfe, 349 Pa.Super, 415, 418-19, 503 A.2d 435, 437, allowance of appeal granted, 514 Pa. 617, 521 A.2d 932 (1986). A penal statute must be strictly construed in favor of the defendant. Commonwealth v. Broughton, 257 Pa.Super. 369, 390 A.2d 1282 (1978).

If the legislature intended to include A.R.D. disposition under prior enactments, it could easily have incorporated language eliminating any ambiguity (citations omitted). The rationale behind strict construction of a penal statute is the injustice of convicting a person without clear notice to him that his contemplated conduct is unlawful, as well as notice of the penalties, Broughton, supra, 257 Pa.Superior Ct. at 377, 390 A.2d at 1286. For the foregoing reasons we affirm the judgment of sentence.

Judgment of sentence affirmed.

POPOVICH, J., dissents.

POPOVICH, Judge,

dissenting:

I dissent to the Majority’s holding that an individual arrested under the 1976 Motor Vehicle Code, and his acceptance into an Accelerated Rehabilitative Disposition program (ARD) in effect at the time of the 1982 Motor Vehicle Code, is not to be treated as a repeat offender so as to be liable to a mandatory 30-day minimum sentence under 75 Pa.C.S. § 3731(3)(l)(ii) (Supp.1987-88).

Recently, an en banc panel of this Court concluded that the mere “acceptance” into ARD is the equivalent of a “conviction” under § 3731 for purposes of determining the recidivist status of a defendant charged a second time with driving while intoxicated. See Commonwealth v. Becker, 366 Pa.Super. 54, 530 A.2d 888 (1987).

Accordingly, read in a common sense fashion (1 Pa.C.S. § 1921), § 3731(e) requires a person previously convicted of an offense under the section in question (i.e., “accepted” into ARD program, Becker, supra) to be considered a repeat offender rendering him subject to imprisonment for 30 days or more.

The statute in question is subject to such an interpretation without engaging in any legerdemain. Therefore, the Majority construing the statute in question to the contrary prompts my dissent.

      . Act of June 17, 1976, P.L. 162, No. 81, § 1, effective July 1, 1977.

      . Act of December 15, 1982, P.L. 1268, No. 289, § 9, effective January 14, 1983.

      . Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.